The Dopamine of Justice
Stanford Neurobiology Professor Robert Sapolsky has a problem with the American system of criminal justice. He obviously believes that the way the brain develops in human beings can affect how they behave. That is the name of his 2017 book – Behave, The Biology of Humans at our Best and Worst. But when we are talking about the criminal justice system we are looking primarily at the worst.
In my recent commentary on brain development (The Politics of Glucocorticoids, June 19, 2019) we discussed how childhood adversity and other environmental factors affected the brain development of children and that this impact was greatest on poor kids where poverty exacerbated adverse situations. We saw that that kids with lower socio-economic status have higher glucocorticoid levels (which indicate high levels of stress), resulting in a thinner frontal cortex and poorer frontal functions affecting memory, the regulation of emotion, impulse control and executive decision making.
These brain developmental factors, that make it difficult for poor kids to rise above their low socio-economic status, also make it more likely that they will engage in criminal behavior. If glucocorticoids produced as a result of adversity and stress, inhibit the development of the frontal cortex, the person would have a reduced capacity to make rational decisions. In addition, constant exposure to these chemicals enlarges the amygdala. The amygdala is closely associated with aggression and an enlarged amygdala is thought to make violent people even more violent.
Mental defect has often been used as a defense for criminal behavior (although it is not often successful). Dr. Sapolsky points out that, “if someone had their entire frontal cortex destroyed, you probably shouldn’t hold them responsible for their actions, because their rationality is grossly impaired.” He goes on to ask if the person would be responsible if only part of the frontal cortex was destroyed. Dr. Sapolsky notes that we do not hold children to the same standards as adults and often prohibit severe punishments for juveniles because their frontal cortexes are not fully developed. Only in particularly heinous (or politically prominent) crimes are juveniles tried as adults.
Some neuroscientists believe that free will is an illusion. Every action we take, every thought that we think has been triggered by some factor in the external environment that caused the brain to secrete chemicals or fire neurons that generated certain muscle movements. And defendants have used this theory to say that they acted under a compulsion when committing their criminal acts.
We now know that epileptic seizures are caused by excessive and abnormal neuronal activity in the brain. People with epilepsy are ill and need to be treated. But in medieval times, epileptics were thought to be possessed by the devil and were often thought to be witches and were subjected to torture and death. We now are horrified by such actions but Dr. Sapolsky speculates that numerous activities that today are thought to be criminal or evil will turn out to be nothing more than misfiring neurons and excessive chemicals.
Dr. Sapolsky may exonerate criminals because they are not responsible for their crimes, but he does not recommend that they be let loose on society. Dangerous people must be segregated from the general public but they should not be punished for their actions because they could not resist the compulsion generated by their wayward neurons and faulty chemicals.
He goes further. He states that, “precluding free will precludes punishment being an end in and of itself.” Although he admits that fear of punishment may deter the production of chemicals and the firing of neurons that lead to criminal behavior, he also states (citing experiments conducted by prominent scientists) that punishing people produces a surge of dopamine in the brain of the punisher and feels good. I can see Senator Elizabeth Warren receiving just such a rush when she contemplates the punishment she is going to dish out to greedy one-percenters, if elected.
But punishment is more than vengeful people meting out severe punishments to hapless criminals that are at the mercy of their misfiring neurons and rogue chemicals. Punishment is often a group activity. Public hangings were popular in the Old West. Louis XVI and Marie Antoinette were guillotined in the public square, Place de la Concorde (although it had a less friendly name at the time). Public punishment gives the gathered throng an Elizabeth Warren-like dopamine surge as the malefactors are subjected to judgment.
In the United States, the Rule of Law depends on such punishment. The people must believe that justice is being meted out in order to support the Rule of Law. In Latin America, the impunity of political leaders and the wealthy elite to the wheels of justice, is one of the chief complaints that there is no rule of law. My ministry driver in the Dominican Republic told me that the Rule of Law was what he most admired about America.
Without the Rule of Law society begins to fall apart. It begins with the impunity of elites but seeps into every nook and cranny of society. Impunity breeds a lack of respect for the society in which you live and the laws by which it is ordered. If others are getting away with major crimes, a little crime is not a big deal. If fat cats are bribing politicians, surely it’s not a big deal to bribe a policeman to get out of a ticket and a fine. But if letting someone get off on a ticket nets a tidy profit, why not stop people for made up infractions in order to reap even more bribes. Corruption infects every level of government. Efficiency drops. Transparency is replaced by obscurity. Soon the country ceases to function.
The rule of law is essential for creating a stable, productive country. This rule of law can employ force by a draconian authoritarian state to assure compliance to the law, as envisioned by Thomas Hobbes in Leviathan. But in a democracy (or a constitutional republic like America) the people must willingly comply with the law. At an intersection in America there is only one car and it comes to a halt at the red light. The driver looks around and sees no other cars, so he continues through the intersection safely (I have seen it many times in my times in other countries). But you are outraged at the scofflaw. You want him to be punished.
And while we’re at it:
But having people follow the law (and maybe even fear punishment for violating the law) is not sufficient. People must respect the law and in order to earn that respect, the law must be reasonable.
On the highway there are a lot of rules that you are required to follow when driving. There are speed limits, no turn lanes, turn signals and many others. But when you have hundreds of peoples driving down a busy interstate in two-thousand pound plus machines, an erratic driver not following any of the proscribed rules is a danger to all the other drivers on the road. So most people follows those rules and when they see someone flagrantly violating those rules they hope that a policeman is nearby.
But those rules of the road must be reasonable. When the government mandated a 55 mile an hour speed limit nationwide many people complained. Many people exceeded this unreasonably slow speed limit until the government was forced to concede and allow the states to raise speed limits to what they thought was reasonable (here in Texas some roads have a speed limit of 85 mph).
But in the United States we are blinded by a wall of laws created by Congress and the administrative state that defy understanding, respect and even compliance. Some laws are so complex, like Obamacare, that few people truly understand its intricacies or implications. Others, like subsidies for ethanol made from corn, favor a few people or corporations, but are a disadvantage the vast majority of people.
Much of the division and acrimony in America is related to the Rule of Law.
Conservatives believe that the law is too complex, that it favors coastal elites and globalists. They believe that Washington is a “swamp” and that the administrative state is running rampant over the rights of the people.
Progressives believe that the law discriminates against minorities and other identities (LGBTQ, black, woman, immigrant, etc.) and that it is not fair. They believe that the one-percenters use the law to reap unjustifiable wealth at the expense of the common people and working poor.
So it is clear that to restore the unity of the American people we must restore respect for the rule of law. But which law? What should be the focus of the law? This is why the conservatives want to control the Supreme Court and why the progressives want to control the administrative state. But neither of these approaches are appropriate and would likely create even more dissatisfaction and disunity. The conservatives want to politicize the Court and the progressives want a rule of outcomes not of law.
To restore the Rule of Law and the people’s respect for the Rule of Law, we need to deconstruct the law down to its philosophical roots and rebuild it to reflect those roots and common values based on our Founding Principles.