This is an exciting time to be in the brain business. The study of the human mind has never been more in the public eye. Nearly every day turns up another occasion for neuroscience and evolutionary psychology to explain the ways in which human beings respond to one another and to their world.
Human evolution works on multiple levels, and the survivalist decisions of our primitive ancestors ended up being imprinted on our brains and informing our moral development. One of the truly mind-boggling twists of our evolutionary natures involves the decision to punish the wrongdoers among us. We’ve always done so. But why do we go to the trouble? On an individual level, a victim who can’t turn the other cheek might resort to revenge. But why should everyone have a stake in punishment? Why do we all care?
The Punisher’s Brain: The Evolution of Judge and Jury
By Morris B. Hoffman (Cambridge University Press)
These questions are expertly asked and answered by the Colorado trial judge and adjunct law professor Morris B. Hoffman in The Punisher’s Brain: The Evolution of Judge and Jury. It is a book filled with dark truths and unpleasant findings. According to Hoffman, humans have conflicting dispositions that coalesce in the “Social Problem": We are born cheaters, and encounter many incentives to cheat, but we are also blessed with brains that remind us that cooperation has its merits in perpetuating the species. These fluctuating urges—to cheat or to cooperate, to advance the individual or the community—are immutable parts of our nature.
Neuroscience bears this out. Our brains are hard-wired to retaliate and punish those who have done wrong. But we are also equipped with private reservoirs of conscience and guilt that introduce restraint and forgiveness into decisions regarding punishment. As Hoffman puts it, “Conscience is a kind of coming attraction that gives us a peek at how others will feel about us if we cheat.”
Over time we evolved from vengeful second-party punishers—taking justice into our own hands—into third-party retributive punishers, disciplining, as a group, wrongdoers for violating collective norms. That was reflected in the Social Contract of the Enlightenment, in which judges and juries became the instruments though which decisions about punishment were made. Hoffman argues that third-party punishments transcended the messy emotions of retaliation and revenge, substituted by the cool dispassion and formalized restraint of the rule of law. It is through these third-party measures, Hoffman suggests, that our urges to both retaliate and forgive are at their most acute.
Hoffman demonstrates the distinctions between individual vengefulness and community discipline by recalling cases from his own docket in which he allowed his emotions to get the better of him.
“Our second-party urges drive all judges to say and do dumb things at sentencing,” he writes. “I once described a white-collar thief as a ‘sociopath in a three-piece suit,’ and, as some of my prosecutors still delight in reminding me, a drug dealer as a ‘gangster doofus.’ … I thought these turns of phrase were clever at the time, and so did the newspapers. But in retrospect, I see that I let my second-party anger get out of control. These defendants deserved the sentences I gave them, but they did not deserve my parting shots.”
But maybe they did deserve to hear what Hoffman truly felt about them. Why must wearing a robe cloak the moral outrage that human beings would otherwise be expected to feel? Hoffman’s obligations to the rule of law are not invalidated simply because he sometimes directs second-party indignation. The added commentary humanizes the law; it doesn’t dishonor it.
Hoffman does not discuss, but he surely can’t deny, how the law’s rigid proceduralism often results in wrongdoers’ avoiding their just deserts. That leaves victims voiceless and shortchanged. Under such circumstances, revenge becomes appealing, and respect for the law loses its moral force. Ignoring such primal feelings—whether as a victim or a jurist—is not a sign of evolutionary progress. Indeed, it runs counter to human nature.
Hoffman identifies a different and deeper set of failings that he calls “dissonances,” in which our punishment decisions contradict our moral intuitions. People around the world, and across history, have shared a fair degree of unanimity in how they judge blameworthiness—the various configurations of intent and harm that result in premeditated murder, attempted murder, or civil negligence. Yet, Hoffman writes, some laws are inconsistent with our neural development and our feelings about the assignment of blame.
For instance, the felony-murder rule stipulates that killing without intent in the course of committing a felony amounts to murder instead of manslaughter. Our evolutionary intuition is to punish intentional killers more harshly than accidental ones. Why then does the law ignore the dissonance in the felony-murder rule? Conspiracy presents the same dissonance in punishing those who haven’t yet even attempted the crime. Similarly, the rule against allowing in trials evidence of prior convictions contradicts the common-sense inference a human being would naturally make.
Such doctrines often disillusion judges and confound juries. The crimes of corporations during the Great Recession presented yet another example of dissonance whereby the sins of top executives were visited upon innocent shareholders. Federal District Judge Jed S. Rakoff, for instance, in rulings and in an op-ed, chafed at such settlements where corporate officers who commit misdeeds receive bonuses and it’s left to the shareholders to pay the penalties.
But the institutional failing that disturbs Hoffman the most is long and, to his mind, pointless prison sentences. Communities gain little satisfaction from them, and offenders end up on the conveyor belt to recidivism, less likely to ever reintegrate into society. America has the world’s highest prison population, yet most of those serving time are nonviolent offenders who have broken drug laws or the terms of their parole but are otherwise harmless. Locking people in prison and throwing away the key, a relatively modern sentencing phenomenon, is a reaction to the failed rehabilitation strategies of the 1960s. Overpunishing wrongdoers who aren’t dangerous contradicts our moral evolution, writes Hoffman.
But this strand of his argument is the weakest. Crime rates have fallen to historic lows. Surely some of that decline is related to the oversupplied prison population that Hoffman deplores. And surely society is better off—from both a utilitarian perspective and as an evolutionary condition—when citizens can walk the streets safely.
After laying the groundwork in this powerful book for an evolutionary basis for punishment, Hoffman concludes with some ambivalence about how the law has evolved. In that respect, he is perhaps judging himself and his bench brethren too harshly.
Thane Rosenbaum is a novelist and law professor at New York University. He is the author, most recently, of Payback: The Case for Revenge (University of Chicago Press, 2013).
