Thus does Morris Hoffman begin his fascinating new book--The Punisher's Brain: The Evolution of Judge and Jury (Cambridge University Press, 2014). Hoffman is a trial judge in Denver, Colorado, and the most engaging feature of this book is that he speaks as a trial judge who wants to understand his experience in deciding whether and how to punish people charged with law-breaking. The students in my course on "Biopolitics and Human Nature" this semester have enjoyed how he illustrates his points with stories about the cases he has had.
Hoffman first developed his interest in law and biology from attending the conferences of the Gruter Institute for Law and Behavioral Research organized first by Margaret Gruter and later by her granddaughter, Monika Gruter Cheney. He was then introduced to law and neuroscience by joining the John D. and Catherine T. MacArthur Foundation's Research Network on Law and Neuroscience, directed by Owen Jones. From these two groups, he learned how to apply evolutionary psychology and behavioral neuroscience to the study of law.
I largely agree with Hoffman, because most of what he says I see as the application of Darwinian natural right to the study of law. My only disagreement is that in relying on neuroscience, and especially brain-scanning experiments, he does not acknowledge, much less respond to, the many criticisms of what Sally Satel and Scott Lilienfeld have called "mindless neuroscience"--the exaggerated claims for brain-scanning as mind-reading that ignore the problems in inferring the thoughts and feelings of the mind from neural correlates in the brain.
I have written posts on the "brain-imaging fallacy" here and here. The fundamental problem is the mystery of consciousness--that our only direct access to conscious thoughts and feelings is through our own internal subjectivity, and that any inference of what's happening in the mind from what is happening in the brain must always be uncertain and imprecise. Hoffman could have acknowledged such problems in neuroscience and brain-scanning without weakening his general argument, which is supported by many different lines of reasoning.
Hoffman begins with a story about a murder trial.
"Several years ago, I presided over a first-degree murder trial in which a young Czech émigré was charged with stabbing his Brazilian au pair girlfriend. The crime took place in the au pair's bedroom, in the basement of her employer-family's house. The young man stabbed her seventy-four times. He confessed to the murder but denied it was premeditated. Despite his denial, the premeditation evidence was pretty strong. He not only entered the bedroom through a window, armed with a knife and carrying some duct tape, but he also admitted to police that a few days before the killing he tried to dig a small grave in a remote field but gave up because the ground was frozen."
"On the other hand, he testified that he regularly went through the window for late-night visits with her, and that he went there that night not to kill her but only to see if she would change her mind about breaking up. he claimed he had the knife and duct tape because he was moving. As for the grave, he testified that he started to dig the hole in the field to 'bury her memory,' and that all he intended to bury there were a few items of personal property that reminded him of her. When he went to see her that final time, and she told him she was set on leaving him, he 'snapped.'"
"But he didn't say the word 'snapped.' What he said was, 'A darkness came across my eyes.' He even said it a second time in cross-examination. It seemed oddly and rather beautifully phrased, and vaguely familiar. Neither of the lawyers asked him about it. Long after the jury convicted him of first-degree murder, and I sentenced him to the mandatory life in prison without the possibility of parole, it hit me. 'Darkness covered his eyes,' and variations of that phrase, are used over and over by Homer to describe many of the battle deaths in The Iliad." (1-2)Judge Hoffman offers this as an illustration of what he has seen as a common occurrence in criminal law cases, where there is no dispute over the fact that the defendant committed the crime, but the question for judges and juries is what was going through the defendant's mind at the time of the crime. Was the defendant acting purposefully, knowingly, recklessly, or negligently in committing the crime? In this case, the difference was between a purposeful, first-degree murder punished with a life sentence in prison and a knowing, second-degree murder punished in Colorado with a mandatory prison sentence of 16-48 years.
In such cases, modern juries and judges must decide blameworthiness and punishment through judging the harm and the intentionality of wrongdoers' conduct. The greater the harm and the clearer the intentionality of the conduct, the greater the blame and punishment that it will elicit.
In doing this, Hoffman argues, modern juries and judges are doing what our evolutionary ancestors have been doing for over 100,000 years in deciding how to respond to wrongdoers. And while much of the law is a cultural construction that reflects the historical contingencies that have shaped each legal system, there is also a universal pattern in law that manifests evolved human nature.
Human beings have always faced what Hoffman calls the Social Problem, which is similar to what others have called the Collective Action Problem, the Commitment Problem, the Trust Problem, or the Altruism Problem. The problem arises from our human nature as both selfish and social animals, so that we must always face the question: cheat or cooperate? We are inclined to cheat others in our group whenever cheating would be to our selfish advantage. But we are also inclined to cooperate, because living in cooperative groups has always given us long-term advantages in the struggles of life. We have evolved instincts both to cheat and to cooperate. But we also have a third evolved instinct--to punish cheaters in order to reduce cheating and increase cooperation by increasing the costs of cheating.
Hoffman explains our punishment of cheaters as moving through three levels. Through first-party punishment, we punish ourselves with conscience and guilt. Through second-party punishment, we punish our tormentors with retaliation and revenge. Through third-party punishment, we act as a group in punishing wrongdoers with retribution. Judges and jurors are acting as third-party punishers. Hoffman's argument is that the human brain has been shaped by biological evolution to have the instinctive propensities for punishment at all three levels.
Moreover, he argues, at all three levels, we are guided by three rules of right and wrong rooted in our evolved human nature to secure property and promises. Rule 1: Transfers of property must be voluntary. Rule 2: Promises must be kept. Rule 3: Serious violations of Rules 1 and 2 must be punished.
Hoffman interprets "property" in a broad sense as starting with self-ownership and encompassing one's life, health, and possessions, as well as the life, health, and possessions of one's family and others to whom one is attached. (Although he does not mention John Locke, Hoffman here echoes Locke's argument for self-ownership as the ground of property rights. Indeed, it seems to me that Hoffman's whole argument for the evolution of punishment supports Locke's account of how the instinctive propensities for punishment sustain social order.) Understood in this broad way, Rule 1 embraces criminal law and tort law, while Rule 2 embraces contract law.
Classical liberals or libertarians could embrace this as a good statement of their claim that the primary purpose of law is to punish force and fraud and secure the liberty of individuals to live as they please so long as they do not harm others.
Hoffman supports his argument for these kinds of rules and punishment being rooted in evolved human nature with at least ten kinds of evidence.
(1) Economic game experiments (such as the Ultimatum Game, the Public Goods Game, and the Trust Game) can show, both within our culture and cross-culturally, that most human beings are inclined to cheat, to cooperate, and to punish cheaters at all three levels.
(2) Comparison with other species of animals can show that some other animals show similar behavioral inclinations.
(3) We can see how hormones (such as oxytocin and testosterone) support these inclinations.
(4) We can study the brain as a behavioral fossil record of evolution.
(5) We can look to anthropology for evidence that these instinctive inclinations are human universals.
(6) We can also look to anthropology for evidence of the law in primitive societies that might show instinctive behavior like that of our distant evolutionary ancestors.
(7) We can study experimental surveys in which people are presented with hypothetical legal scenarios, and they are asked to judge blameworthiness and punishment, which allow us to see if they show these instinctive inclinations.
(8) If people are in brain-scanning machines (fMRI), we can conduct surveys or have them play economic games, and then we can try to infer the neural correlates of the feelings and thoughts that drive our instincts for punishing.
(9) We can look at the history of law to see patterns of punishing that manifest our evolved instincts.
(10) Finally, we can look at young human infants for evidence of those instincts arising early in life.
Every one of these lines of evidence is rightly open to dispute. But, at least, this wide range of evidence shows that Hoffman's biolegal theory cannot be dismissed as a "just-so story" that is untestable.
FIRST-PARTY PUNISHMENT: CONSCIENCE AND GUILT
Most human beings punish themselves for cheating through conscience and guilt. Guilt is retroactive blame, feeling pained by the thought of our past misconduct. Conscience is prospective blame, imagining the pain we would feel if we were to engage in some misconduct. Such conscience and guilt requires empathy--being able to imaginatively put ourselves in the situation of others and feel the pain they might feel from our injuring them.
Hoffman points to the evidence for the neural correlates of conscience and guilt in particular parts of the brain, and for the diminished capacity for conscience and guilt when there is some innate or acquired abnormality in these parts of the brain. So, for example, reduced connectivity in the ventromedial prefrontal cortex (vmPFC) of the brain seems to be associated with psychopathic psychology. Psychopaths--those with little or no capacity for conscience and guilt--are the exception that proves the rule that most human beings have some instinctive propensity to punish themselves for violating moral rules against harming others.
SECOND-PARTY PUNISHMENT: RETALIATION AND REVENGE
If conscience and guilt fail to restrain us from cheating, we must then worry about the punishment coming from our victims or their family and friends. For most of our evolutionary history, the primary punishment of wrongdoers was retaliation and revenge (delayed retaliation).
The law of self-defense--that everyone has the right to retaliate against attacks on their lives, their health, or their property--is universal, and it is supported by neural circuitry in the amygdala, the insula, the vmPFC, the cingulate, and the dorsolateral prefrontal cortex (dlPFC). If people play the Ultimatum Game while they're in a brain-scanning machine, we can see the enhanced activity of this neural circuitry when they refuse unfair offers, and thus inflict a costly punishment on the other player.
And yet this propensity for retaliation and revenge is dangerous, because it can easily become too extreme. Too much punishment can be as disruptive to social order as too little punishment. This is what turns a state of nature from a state of peace to a state of war. To avoid this, we need the rule of law or third-party punishment, because third-party punishers tend to be more dispassionate in their retaliation.
THIRD-PARTY PUNISHMENT: RETRIBUTION
The emotions that we feel when we punish wrongdoers for harming others can be very strong, but usually they are not as strong as they are when we are punishing those who have harmed us directly. For that reason, third-party punishers can move towards a more impartial judgment, which is what we look for in the rule of law.
Treating our families as extensions of ourselves turns second-party punishment into third-party punishment. But this familial third-party punishment is not likely to be as impartial as punishment coming from someone who is unrelated to the victim or the wrongdoer. Originally, those dominant individuals who acted as mediators or judges of disputes in the band or tribe exercised third-party punishment on their own. But in some special cases, they might have delegated this to select groups of people, which would have acted as the first juries.
From brain-scanning, there is some evidence for the neural correlates of third-party punishment. The right dorsolateral prefrontal cortex seems to be active both when people are engaged in third-party punishment (in weighing punishment for hypothetical criminal behavior) and when they are engaged in second-party punishment (in retaliating against unfair players in economic games). This suggests that the modern legal system--with a centralized government enforcing punishment--could have been built on the cognitive mechanisms that evolved for retaliation and revenge.
The detailed rules and procedures for third-party punishment in modern legal systems show the vagaries of historical contingency in the cultural evolution of law that is highly variable across legal systems. But still these modern rules and procedures can manifest general patterns rooted in ancient human instincts for punishing. For example, one ancient form of punishment for the most severe crimes was ostracism or banishment from the community. Although prisons are a relatively new invention in legal history, Hoffman observes, imprisonment can be seen as a new way to punish people by ostracizing or banishing them from the community, either temporarily or permanently.
THE GUT FEELINGS OF LEGAL PUNISHMENT
Judge Hoffman thinks that most trial judges show "our evolved retributive feelings" when they punish. "We get a gut, retributive, feeling about the sentence, and then move in one direction or another off that gut feeling based on information about the criminal that affects our views about special deterrence--the likelihood he will reoffend and the crimes he is likely to commit" (345).
Surely, many readers will be disturbed to learn that most trial judges are guided in their judgments by "gut feelings." After all, doesn't Judge Hoffman indicate that third-party punishing should be "more dispassionate" and impartial than second-party punishing (138)? Or is he saying that even if they are "more dispassionate," judges cannot, and should not, be completely free from the moral passions that instinctively drive legal punishment?
I agree with Judge Hoffman about the importance of evolved "gut feelings" for law. I see this as very similar to what I say in Darwinian Natural Right (61-83) about "natural morality." The moral judgments expressed in law, like all moral judgments, require a combination of moral emotion and moral reason as evolved moral instincts. Reason can elicit, direct, and organize feelings. But pure reason alone could never create moral right or wrong, because it cannot create moral feelings.
We do not commit a naturalistic fallacy when we move from natural facts to moral values--or from is to ought--if we limit ourselves to the claim that for the kind of species that we are, certain feelings are predictably aroused by certain facts, and the experience of those feelings is the only ground for making moral judgments. Except for psychopaths, most human beings feel the moral emotions of conscience, guilt, retaliation, revenge, and retribution in response to the facts of criminal misconduct.
Judge Hoffman shows this combination of evaluative emotion and factual reasoning in his book. The gut feelings of trial judges are rational if they are "based on information about the criminal that affects our views." In telling the stories of his trials, he always relates the facts of the case with the expectation that these facts will elicit the same "gut feelings" that they elicited in the judges and the jurors as they reached their decision.
So, for example, when Judge Hoffman relates the story of the young Czech murder, he presents the evidence that he and the jury saw as evidence that the man was lying about his murder being unpremeditated. He assumes that his readers will agree with this factual reasoning, and that they will also feel the retributive emotions that demanded a first-degree murder conviction.
Thus, the gut feelings of Judge Hoffman and his jurors do not confirm to any cosmically objective standard of right and wrong, but neither are they expressing purely arbitrary personal emotions. As Judge Hoffman indicates, the instinctive propensity to punish cheaters to enforce cooperation has been evolutionarily adaptive for the human species, but not necessarily for other species. "Social cooperation is not an abstract good" (26). That is to say that evolution does not enforce some cosmic good like Kant's Categorical Imperative. Rather, what is good is relative to each species.
But that species-specific good for human beings does have an intersubjective objectivity, in that the facts of each case rightly understood should evoke similar moral emotions in most normal human beings. We can agree that legal doctrines and legal decisions are just as long as they conform to our evolved instinctive feelings.
By contrast, those legal doctrines and decisions that violate our instinctive feelings can be judged to be unjust. Judge Hoffman indicates this in his discussion of "legal dissonances." He notes that juries can nullify laws they find offensive by refusing to convict defendants who have clearly violated those laws. For example, jurors often acquit defendants charged with buying small amounts of illegal drugs, because the jurors don't see this as a serious crime. Hoffman then defines "legal dissonance" as "a narrow segment of nullification involving legal rules that seem to conflict with our evolved intuitions, especially our evolved notions of blameworthiness" (252).
A good example of a legal doctrine that conflicts with our evolved intuitions is the felony murder rule, which says that if anyone dies in the commission of a felony, the felon is guilty of first-degree murder, even if the felon did not intend to cause the death. Hoffman tells the story of a famous case in Colorado:
"In November of 1997, a nineteen-year-old woman named Lisl Auman left her abusive boyfriend, and was staying overnight at a girlfriend's apartment. The girlfriend was having her own boyfriend problems, and she asked a couple friends of hers, including a skinhead named Matthaeus Jaehnig, to act as muscle when the two women went to retrieve her belongings from their respective exes. Auman's ex was not at home, so one of the other men cut the lock off the apartment door, as Jaehnig stayed outside as lookout. Auman went in and took her belongings, plus several things belonging to her ex. Another resident of the apartment complex became suspicious, wrote down Jaehnig's license number, and called police. A high-speed chase ensued, during which Auman told Jaaehnig several times that she was afraid, and he should stop the car. Instead, Jaehnig drove the girlfriend's apartment, and even shot at police a few times along the way. Before police managed to catch up to them, Jaehnig and the others split up. Police arrested Auman, handcuffed her, and placed her in the back of a police car. They even drove the squad car a little further away in the parking lot to get away from the scene. Other officers pursued Jaehnig. by the time the five-minute foot chase was over, Jaehnig had shot and killed one of the officers, and then turned the gun on himself. At the moment of the officer's and Jaenig's deaths, Auman was cuffed and sitting in the back of the police car hundreds of feet away." (254)Under Colorado's version of the felony murder rule, Auman was charged and convicted of first-degree murder, and sentenced to life in prison without parole. When this case was appealed to the Colorado Supreme Court, the Court upheld this application of the felony murder rule, but the Court reversed the conviction, because it detected an error in the jury instruction on the burglary charge. But since this error had nothing to do with the outcome of the case, this did not justify the reversal. Clearly, Judge Hoffman observes, the Court used this as "an excuse to undue a profoundly unjust result" (255).
Hoffman points out that the felony murder rule was originally adopted by a few American states through an "academic accident" (302). It was imported from England because some English legal commentators incorrectly reported that it was widely adopted in England. In fact, it had been adopted in only a few cases in England in the 1880s; it was criticized by many commentators; and it was abolished by Parliament in 1957.
Hoffman thinks there are good reasons to abolish the felony murder rule in the few states were it exists. "It conflicts with our deepest notion that we blame only intentional wrongs, it is not itself deeply-grounded in our evolution or in our jurisprudence, it grossly over-punishes in the eyes of ordinary citizens, and in its one hundred thirty years of existence, it has already winked out either by outright abolition or by exceptions that swallow it" (303-304).
Judge Hoffman never uses terms like "natural law" or "natural right." But isn't this a clear case of natural-law reasoning, in which we see that some laws are unjust if they violate our evolved moral instincts?
Some posts on related topics can be found here, here, and here.