Does the desire to punish have any place in modern justice?

Punishment has been a human universal, because it has been in our evolutionary interests. But those evolutionary impulses are crude guides to how we should deal with offenders in contemporary society.

Human beings are a punitive species. Perhaps because we are social animals, and require the cooperation of others to achieve our goals, we are strongly disposed to punish those who take advantage of us. Those who ‘free-ride’, taking benefits to which they are not entitled, are subject to exclusion, the imposition of fines or harsher penalties. Wrongdoing arouses strong emotions in us, whether it is done to us, or to others. Our indignation and resentment have fuelled a dizzying variety of punitive practices – ostracism, branding, beheading, quartering, fining, and very many more. The details vary from place to place and time to culture but punishment has been a human universal, because it has been in our evolutionary interests. However, those evolutionary impulses are crude guides to how we should deal with offenders in contemporary society.

Our moral emotions fuel our impulses toward retribution. Retributivists believe that people should be punished because that’s what they deserve. Retributivism is not the only justification for punishment, of course. We also punish to deter others, to prevent the person offending again, and perhaps to rehabilitate the offender. But these consequentialist grounds alone cannot justify our current system of criminal justice. We want punishments to ‘fit the crime’ – the worse the crime, the worse the punishment – without regard for the evidence of whether it ‘works’, that is, without thinking about punishment in consequentialist terms.

Deterrence works (at least somewhat) for property crimes, but not very well for many different kinds of assault and homicides, and most murderers are very unlikely to reoffend. On purely consequentialist grounds, we probably treat murderers much more harshly than we can justify. And of course, prisons very often make people worse, rather than better. If people didn’t deserve retributivist punishment, we would probably have to incarcerate far fewer people for much shorter periods, in much better conditions.

So the justification of our current system of punishment depends on whether people deserve harsh treatment. Some thinkers, including Sam Harris and the neuroscientist John-Dylan Haynes, have suggested that, in fact, no one at all deserves to be punished because our choices and behaviour are all determined by physical processes we can’t control. Most philosophers are unconvinced. They are compatibilists: they think that free will and moral responsibility are compatible with determinism. Determinism doesn’t coerce or compel us, and it doesn’t prevent us from assessing reasons and responding appropriately. If anything, determinism enables us to do these things. I think the compatibilists are right: determinism does not undermine our freedom or responsibility. But there are other obstacles to the possession of freedom and responsibility that I think are more serious.

We have a strong sense that people don’t deserve to be punished if they did something bad, but only because of chance or luck. When does luck explain how people act? When more than one option is consistent with their values or their character, then chance features of their internal or external environment (psychologists call these ‘primes’) will influence how they act. Whether someone helps or fails to help is influenced by primes constantly. People are more likely to stop and help someone who dropped something, or give them change, if there are pleasant smells in the environment than if there are not; on the other hand, they are more honest if they think they are being watched, even when merely in the presence of a picture of a pair of eyes. These chance features of our environment make a difference to our behaviour all the time.

Whenever you are strongly tempted to do something wrong (to drive off without leaving a note on the windshield of the car you’ve hit; to keep the wallet that you just saw someone drop), you are probably in a situation in which luck can make a big difference to how you act. A smell, a picture, a sound (which reminds you of your mother, or your boss) can make the difference between doing the right thing or not.

But of course there are lots of situations in which luck doesn’t make this kind of difference. Some people would keep the money without a second thought, or mug a passerby if they thought they could get away with it. Yet most of us would never mug someone, so we’re resistant to that kind of luck. Still, the fact that people are different in the way that they respond to temptations to do wrong is also due to luck – a different kind of luck.

People might be good or bad due to what the philosopher Thomas Nagel in 1979 called constitutive luck. This is luck in one’s genes, or the environment in which you grew up, which leads to someone being a particular kind of person, with a distinct set of strengths, weaknesses, talents and values.

Some philosophers argue that we can take responsibility for our constitutive luck. It’s certainly true that adults are never just the product of their genes and formative environment. Their choices have shaped the kind of people they are. But these choices, too, are shot through with luck. When they are easy choices, they merely express our constitutive luck. To the extent to which they are not easy, they are vulnerable to present luck. Between them, constitutive and present luck seem to strip away all blame and all praise due to us for our actions.

Of course, you might not agree with me that luck plays such an important role in who we are and how we make decisions. But the onus is on those who disagree, not on me. Here’s why: to impose punishments on people is to treat them in a way that is a clear violation of their human rights, if they don’t deserve such treatment. We should refrain from such serious harms unless we have very powerful reasons to think that doing so is strongly justified. Because punishing people involves harming them, we should refrain from retributive punishment unless we have really strong arguments for it.

Does my responsibility-skepticism mean that I believe we should let murderers and rapists go free? Of course not: we have a right and a duty to protect ourselves and others. The other functions of punishment remain legitimate: to deter crime, incapacitate those who can’t be deterred, and rehabilitate offenders.

However, a system of justice that is based on those needs will be very different from present-day systems of retributive punishment, especially prolonged imprisonment. Sometimes there will be an overlap: we will still need to confine some people in places where they can’t re-offend. We won’t get deterrence unless the conditions of confinement are somewhat unpleasant. But for those people who are not psychopaths, confinement could be very short. The data from criminology is messy and hard to interpret, but there are reasons to think that we can secure all the deterrence benefits of prison sentences with very much shorter sentences.

By spending more on rehabilitation, and on policies that ameliorate criminogenic environments, we can ensure that there are fewer people who will choose crime. There will likely remain a class of people who are not deterred, and some of them will be dangerous. They might require longer sentences. But there are likely to be relatively few of them, and the costs of housing them in secure but non-punitive environments need not be high. If we can overcome our evolutionary bent to mete out brutal treatment to those who break the social codes, we begin to glimpse responses to crime that are much less harsh, but much more effective in reducing its costs.

Neil Levy

This article was originally published at Aeon and has been republished under Creative Commons.

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Homo sapiens have been on earth for 200,000 years — give or take a few ten-thousand-year stretches. Much of that time is shrouded in the fog of prehistory. What we do know has been pieced together by deciphering the fossil record through the principles of evolutionary theory. Yet new discoveries contain the potential to refashion that knowledge and lead scientists to new, previously unconsidered conclusions.

A set of 8-million-year-old teeth may have done just that. Researchers recently inspected the upper and lower jaw of an ancient European ape. Their conclusions suggest that humanity's forebearers may have arisen in Europe before migrating to Africa, potentially upending a scientific consensus that has stood since Darwin's day.

Rethinking humanity's origin story

The frontispiece of Thomas Huxley's Evidence as to Man's Place in Nature (1863) sketched by natural history artist Benjamin Waterhouse Hawkins. (Photo: Wikimedia Commons)

As reported in New Scientist, the 8- to 9-million-year-old hominin jaw bones were found at Nikiti, northern Greece, in the '90s. Scientists originally pegged the chompers as belonging to a member of Ouranopithecus, an genus of extinct Eurasian ape.

David Begun, an anthropologist at the University of Toronto, and his team recently reexamined the jaw bones. They argue that the original identification was incorrect. Based on the fossil's hominin-like canines and premolar roots, they identify that the ape belongs to a previously unknown proto-hominin.

The researchers hypothesize that these proto-hominins were the evolutionary ancestors of another European great ape Graecopithecus, which the same team tentatively identified as an early hominin in 2017. Graecopithecus lived in south-east Europe 7.2 million years ago. If the premise is correct, these hominins would have migrated to Africa 7 million years ago, after undergoing much of their evolutionary development in Europe.

Begun points out that south-east Europe was once occupied by the ancestors of animals like the giraffe and rhino, too. "It's widely agreed that this was the found fauna of most of what we see in Africa today," he told New Scientists. "If the antelopes and giraffes could get into Africa 7 million years ago, why not the apes?"

He recently outlined this idea at a conference of the American Association of Physical Anthropologists.

It's worth noting that Begun has made similar hypotheses before. Writing for the Journal of Human Evolution in 2002, Begun and Elmar Heizmann of the Natural history Museum of Stuttgart discussed a great ape fossil found in Germany that they argued could be the ancestor (broadly speaking) of all living great apes and humans.

"Found in Germany 20 years ago, this specimen is about 16.5 million years old, some 1.5 million years older than similar species from East Africa," Begun said in a statement then. "It suggests that the great ape and human lineage first appeared in Eurasia and not Africa."

Migrating out of Africa

In the Descent of Man, Charles Darwin proposed that hominins descended out of Africa. Considering the relatively few fossils available at the time, it is a testament to Darwin's astuteness that his hypothesis remains the leading theory.

Since Darwin's time, we have unearthed many more fossils and discovered new evidence in genetics. As such, our African-origin story has undergone many updates and revisions since 1871. Today, it has splintered into two theories: the "out of Africa" theory and the "multi-regional" theory.

The out of Africa theory suggests that the cradle of all humanity was Africa. Homo sapiens evolved exclusively and recently on that continent. At some point in prehistory, our ancestors migrated from Africa to Eurasia and replaced other subspecies of the genus Homo, such as Neanderthals. This is the dominant theory among scientists, and current evidence seems to support it best — though, say that in some circles and be prepared for a late-night debate that goes well past last call.

The multi-regional theory suggests that humans evolved in parallel across various regions. According to this model, the hominins Homo erectus left Africa to settle across Eurasia and (maybe) Australia. These disparate populations eventually evolved into modern humans thanks to a helping dollop of gene flow.

Of course, there are the broad strokes of very nuanced models, and we're leaving a lot of discussion out. There is, for example, a debate as to whether African Homo erectus fossils should be considered alongside Asian ones or should be labeled as a different subspecies, Homo ergaster.

Proponents of the out-of-Africa model aren't sure whether non-African humans descended from a single migration out of Africa or at least two major waves of migration followed by a lot of interbreeding.

Did we head east or south of Eden?

Not all anthropologists agree with Begun and his team's conclusions. As noted by New Scientist, it is possible that the Nikiti ape is not related to hominins at all. It may have evolved similar features independently, developing teeth to eat similar foods or chew in a similar manner as early hominins.

Ultimately, Nikiti ape alone doesn't offer enough evidence to upend the out of Africa model, which is supported by a more robust fossil record and DNA evidence. But additional evidence may be uncovered to lend further credence to Begun's hypothesis or lead us to yet unconsidered ideas about humanity's evolution.