Crime and Punishment (Part 2)

Continued from yesterday’s Part 1, here.

The issue becomes even stickier when you consider mental health issues, and the “insanity defense”. When is it unreasonable to hold someone accountable for their actions if they are not mentally stable?

A recent edition of stats-nerdery programme More Or Less on Radio 4 talked about a man who began making sexual advances to his eleven-year-old stepdaughter. The man was later discovered to be suffering from a brain tumour. He’d never displayed any such behaviour previously, and it stopped immediately after the tumour was surgically removed. Both the tumour and the inappropriate behaviour began to return over time, and it was clear that his personality and identity were being profoundly affected by this unnatural growth intruding on his grey matter.

For someone with a severe medical condition, it seems that the most important treatment offered or imposed may also be medical, rather than simply punitive. But we don’t even need to delve particularly far into the complex science of mind and consciousness to question whether any kind of punishment or criminal justice is warranted in a case like this.

We are our brains, after all, and so there can be no obvious cut-off point at which we’re no longer personally responsible for our actions. If a brain tumour can put sufficient distance between our actions and our “selves” that we can be absolved of guilt, then what about a minor head injury or birth defect? What about mental trauma from childhood abuse, or any other psychological troubles that might induce you to behave irrationally? There’s no easy answer as to when it becomes somebody’s “fault”, even (I suspect) in principle.

But we can still come to useful conclusions about criminal justice without getting bogged down in these difficulties. While we might find child abuse unambiguously unacceptable, can it possibly help anyone, in any way, to lock the perpetrator up in jail, in the brain tumour scenario described above?

It’s not like he needs to be deterred from doing anything terrible ever again. When he doesn’t have an abnormal brain condition, he’s shown no inclination for such acts, and when he does, his inhibitions are so biologically affected that any psychological deterrent will be worthless. And it can hardly be said that we’re “sending a message” that other potential child abusers don’t need to worry about being caught; a brain tumour is something we can check, after all, and there are still systems of punishment in place for those whose behaviours can’t be so easily corrected.

The possibility of the tumour recurring is of concern. The extent to which we’d be justified in detaining someone who might someday develop a medical condition that could lead them to unacceptable behaviour is an important question, and one largely informed by the current state of our medical science.

But this is a real scenario, and it really shakes the foundation of any punitive deterrent-based system of justice. It’s entirely possible that somebody could commit a horrible crime, and yet the response that would accomplish the most good – fewest children molested in future, smallest reduction in individual freedoms, etc. – is not to punish them at all.

If that’s the case, there are staggering numbers of non-violent and casual drug offenders whose prison sentences may urgently merit reconsideration. And that’s just a start.

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