THE
CONCEPT OF RESPONSIBILITY
September,
2003
In a
1964 lecture at
Georgetown
University, noted District of
Columbia Judge David C. Bazelon said:
"There have been major advances in our knowledge about the causation
of behavior—advances in psychiatry, anthropology, physiology and other
disciplines. But we ignore much of
that knowledge in obedience to the traditional view that the proper approach to
crime is and must remain punishment and its anticipated deterrent effects.
"The fundamental approach to criminality remains the concept of
individual responsibility, punishment and hoped-for deterrence notwithstanding
overwhelming evidence that poverty in all its manifestations is the chief factor
producing antisocial behavior. And notwithstanding the overwhelming evidence of
recidivism, mounting crime rates and swollen prison populations that this
approach is working only in the very limited sense that a portion of the
criminal population is temporarily kept off the streets.
"In addition to our current approach's dismal record toward reducing
crime, we are not morally justified in ignoring what we know of the source and
cause of criminal behavior.
"The genius of the common law is its capacity to assimilate new
knowledge and adapt to new needs. But
it has not used this capacity in the area of criminal responsibility.
Recent decades have witnessed tremendous advances in relevant knowledge
of brain behavior. But legal
thinking has lagged far behind. Criminal
law should abandon the myth of total individual responsibility and adapt to the
realities of scientific and psychiatric knowledge.
What the common law cannot do, while remaining true to its traditions, is
stand still while scientific and sociological knowledge advances."
In the nearly forty years since Judge Bazelon wrote those words there
have been even more tremendous advances in the medical, biological and
behavioral sciences, notably genetics. But
far from "abandon(ing) the myth of total individual responsibility",
legal thinking and criminal law have progressed only marginally, if at all,
toward recognizing the dilemma posed by scientific discoveries for the concept
of individual responsibility. The
irresponsibility of the very young, of the insane, of the mentally handicapped,
and of those disadvantaged in their formative years continues to be recognized
in principle but is often only reluctantly and partially observed in practice.
The view that the sane adult individual is a self-determining entity who
should be held fully responsible for his or her acts remains intact.
Horrible crimes are committed, and the author of this essay is repelled
no less than the average citizen by the thought of not holding those who commit
such crimes fully responsible for them, deserving of punishment commensurate
with the gravity of the crime. And
we are all aware of the importance of the concept of responsibility to the
workings of ordered societies. There
is nevertheless a chain of logical reasoning questioning the concept which I
first presented in 1954
and which I believe is even more deserving of consideration today in light of
what the sciences are revealing about the sources and causes of human behavior.
A CHAIN OF LOGICAL REASONING
The chain of reasoning starts from what seems the indisputable fact that
we have no role in the decisions and acts leading to our birth—that we do not
choose to be born. It seems equally
clear that we have no role in the determination of our inherited
characteristics. And we clearly have
no role in the determination of early environment influences, which begin to act
upon us from conception. And if we
have a "soul," some element placed within us which we did not inherit
from our forbearers or obtain as a result of early environmental influences, we
clearly have no role in its determination either.
And, finally, though chance plays a role in all our lives, chance, by
very definition, is not something we choose and can logically be held
responsible for.
The irresponsibility of the very young is everywhere recognized.
But as a child grows we find the average mother beginning to impute an
independent and responsible personality to it and to hold it at least partially
culpable for its misdeeds. Reprimands
and physical punishment begin to include a note of blame.
Reward and punishment are no longer administered purely for their
educative value but are regarded as a least partly deserved by the child, which
is now considered to be beginning to determine its own behavior and hence to be
at least partly responsible for that behavior.
The mother's change of attitude is understandable, but would seem to have
no logical basis. Only if the child,
in passing from an irresponsible to a supposed responsible age, had somehow been
able to free itself from the control of its existing, passively acquired
"character" and, in stepping outside itself, select and introduce into
its make-up new elements not in accordance with its character, would we be
justified in considering that it had become responsible, i.e., come to deserve
blame or praise, punishment or reward for its actions.
Having independently of its existing, passively derived character
introduced new elements into its make-up, it could logically be held to be
responsible for actions which it might later take as a result of those elements.
Needless to say, there is no evidence that children, in reaching an age
when their parents begin to consider them responsible, take any such action.
There is no evidence that their characters at this age are any more than
the rational development of their former irresponsible characters, as a result
of increasing age and widening and changing environmental influences.
It would be impossible for a child or anyone else to put aside his
existing nature and add elements to his makeup not in accordance with his
existing nature.
By the time the child reaches eleven or twelve years, the impression of
an independently self-determining, responsible individual is almost
overpowering. When a boy of this age
steals, the parents are likely to ascribe part of the blame to undesirable
neighborhood associates, and a court will emphasize correction rather than
punishment until the age of reason or full responsibility is reached.
But both parents and court are likely to place a major share of blame on
the boy himself, irrespective of the qualities he inherited, his early
environment, his possible soul, and chance.
The boy himself will probably feel that the decision to commit the
misdeed was personally and independently his.
Reason indicates, however, that all decisions and consequent actions of a
boy of eleven or twelve are dictated by his character reacting to contemporary
circumstances and influences; that he possesses no powers of decision or action
independent of his character; and that he is not responsible for the nature of
his character because at any given time it is the cumulative product of the fact
that he was born at all, inherited characteristics, environmental influences,
perhaps a soul, and chance, plus a long series of actions since early childhood
for which, since they were always dictated by and in accordance with a character
for which he was not responsible, he cannot logically be held responsible.
The underlying cause of warped character and consequent bad behavior in a
boy of this age is of course not always readily apparent from his background.
The more obscure the cause the more inclined the parents and judge are to
blame the boy "himself." Take, for example, a boy born of respectable,
well-to-do caring parents and brought up in a good neighborhood.
Nevertheless at the age of twelve he begins to show a disobedient and
recalcitrant streak, runs away, shows a preference for bad over good associates,
and finally ends up in court in his sixteenth year charged with repeated serious
offenses. In sending him to a
reformatory or prison the judge would be likely to develop the point that
although in cases of underprivileged boys from poor environments he usually felt
more inclined to pity than to blame, in this case, where the boy had had every
advantage but had chosen to repudiate his good upbringing and training, he felt
he fully deserved the punishment he was getting.
This attitude seems logically indefensible.
There seems to be no justification, simply because the cause of the boy's
misdoing is not easily perceived in his background, for jumping to the
conclusion that the cause is not in his background, i.e., in relatively
obscure inherited or environmental influences, his soul, or chance, in whose
determination he was as passive as a less advantaged contemporary.
If more were known about these inputs, the boy's misdeeds would be as
apparent in his background as in other more obvious cases.
The actions of John Doe, age 40, give every appearance of being taken by
an independently self-determining person in whom such factors as inherited
characteristics and environmental influences have been completely submerged and
overshadowed by the character of John Doe "himself".
And yet reason indicates that the character of an adult is as completely
the product of external factors over which he has had no control as the
character of a boy of sixteen. Each
stage of his life derives from the previous stage, going back to an early
childhood of obvious irresponsibility. No
decision that John Doe has made during his entire lifetime could have
been made differently from the way it was, given his character at the moment of
the decision, a character for the nature of which he was not responsible, and
the contemporary external situation, including chance.
Being what he was and the circumstances what they were, his decisions and
actions, good and bad, followed unavoidably, and cannot logically be said to
entitle him to praise or blame, reward or punishment.
A SOUL?
Of the four sources of character—inherited attributes, environmental
influences, possibly a soul, and chance—the relation of the soul to the
concept of individual responsibility is the most difficult to analyze.
Although we may believe much, we know nothing about the possible
existence and composition of the soul. The
fact that so many persons' characters are so different from what even the most
exhaustive research into their inherited attributes and environmental
backgrounds would lead one to expect supports the idea that an individual's
make-up does include a fourth element received from some unknown source.
Thus far I have confined my treatment of the soul to what would seem the
indisputable statement that if an individual possesses a soul he did not select
it himself, and therefore, as with inherited characteristics and environmental
influences, he cannot logically be held responsible for its nature, or for
actions to which he may be led as a consequence of its nature.
The concept herein developed of man as the passive product of factors
over which he has exerted no independent, self-determined control is left
unimpaired by this interpretation of the soul.
Some, however, have a view of the soul which would for them constitute
complete refutation of the suggestion that people cannot logically be considered
responsible, deserving blame or praise, reward or punishment for their actions.
To those of this view the soul is the seat and source of human
responsibility. Through the soul,
given each of us by a Creator, sometimes represented even as a piece of the
Creator, we are held each of us to have been originally constructed, and to
remain, responsible, self-determining individuals.
The fact that one does not choose his soul makes no difference.
He has it and by its possession is ipso facto a responsible being.
This view, that we are created responsible in the same way that we are
created with two arms and two legs, cannot be disproved.
But neither is there any evidence to support it.
Man's nature, activity and entire course of existence can be completely
explained and accounted for on the basis of the directly opposite thesis—that
we are not created responsible but that each of us is the passive product of
factors over which we had no control, including, possibly, a soul in the limited
sensed of a portion of our make-ups not derived from inheritance or environment
or chance but instilled in us at birth or later.
Why should the soul, if we each have a soul, be of such particular type
as to make us responsible? There is
no reason, though it is easy to see why man with his limited knowledge of the
effects of heredity and environment should have from earliest times assumed
that, from the possession of a soul or simply from the way he was made, he was
his own master, self-determining and hence responsible.
When one analysis—leading to the conclusion that an individual is the
product of factors over which he has had no control—accords with experience
and objective fact, is it reasonable to reject that analysis in favor of another
which rests only on belief, even if the belief of untold generations, and which
involves us in practices which appear patently wrong and misconceived, notably
our criminal judicial and penal practices?
RECOGNITION WILL BE GRADUAL
A number of readers of my 1954 article referred to in the footnote on
page 2 wrote that they were repelled by the idea that individuals are not
self-determining, responsible entities. The
belief that one's character is essentially one's own creation is one of man's
most cherished and self-satisfying concepts.
Realization that he is not a self-determining entity but rather the
product of factors in whose determination he played no part would be a most
disillusioning experience for the average member of the human race.
Even those whose understanding of genetics and the other scientific
advances of recent decades force them intellectually to recognize the
illogicality of the concept of individual responsibility pull back from explicit
recognition of that illogicality and from engaging in consideration of the need
for legal and other reforms reflecting it.
This reluctance flows from three principal considerations:
First and foremost is the argument that whatever the evidence of genetic
and other scientific advances, and of the above-presented chain of logical
reasoning, the concept is critical to the workings of an ordered society.
Adjustments here and there in our criminal judicial and penal system to
reflect what science and logic are telling us may be acceptable, but any more
general attack on the concept would have highly damaging consequences for
mankind.
Second, science is not always truth in the larger sense, and logic is not
always "right." There may
be higher knowledge and higher logic. For
much of the world's population, religious faith transcends reason and logic and
would preclude any fundamental challenge to the concept of man as a creature of
God, personally responsible for his conduct and to be rewarded or punished for
that conduct in a hereafter if not on earth.
Third, the question whether each of us is endowed with a soul remains
unresolved. The fact that some
people's characters are different from what even the deepest research into their
backgrounds would lead one to expect supports the idea that an individual's
makeup does include a soul. To some,
as earlier noted, the soul is the seat and source of human responsibility,—the
fact that one does not choose one's soul makes no difference.
These considerations and deeply embedded human beliefs will for the
indefinite future prevent any widely accepted, fundamental challenge to the
concept of individual responsibility. But
the evidence of science and logic that the concept does not stand up to modern
critical analysis is there, is not going to go away, and points the way to a
long overdue reform of our criminal judicial and penal system.
ELEMENTS
OF A MORE RATIONAL
CRIMINAL
JUDICIAL AND PENAL SYSTEM
What should the principal elements of such a reform be?
Fifty years ago in the Northwestern University article I proposed that
the objectives of the reform should be, first, to eliminate the concept of
deserved retribution in criminal sentences, and second, by keeping the criminal
in confinement for as long as he remains a public danger, while making every
effort to accomplish his permanent reform, to afford society a higher degree of
protection from its criminal element than it now receives.
The criminal would still go to jail but conditions of confinement would
reflect the fact that he was being held not in punishment, which would form no
part of his treatment, but solely to ensure that he did not constitute a public
danger and in order to facilitate his reform.
His sentence would not be for a specified period of time but for as long
as he was considered by competent examiners, repeating their examinations at
regular intervals, to be a public danger.
The examiners, professional psychologists and criminologists, would base
their decisions on such factors as the premeditated or unpremeditated nature of
the crime, the criminal's previous history examined in detail back to earliest
childhood and including hereditary influences, and his behavior while in
confinement. A criminal whom the
examiners believed highly unlikely to return to crime might be held in
confinement a relatively brief period, while a confirmed criminal might be
detained indefinitely. Capital
punishment would be abolished. It
would be the duty of the state, foreign as the idea may seem in our present
state of beliefs, to confine under as tolerable conditions as practicable the
most brutal murderer for his entire lifetime, if continual observation and
frequent examinations indicated that he would be a public danger if released.
Would this scheme, I queried in 1954, under which a life of confinement
under non-punitive conditions would be the worst any criminal need fear, remove
the deterrent to crime which our present harsher penal system is considered to
provide and lead to an increased crime rate?
Though the deterrent effect of the proposed scheme might be less than
that of the present system, that, I maintained, was not certain.
Criminals now know that they will be released after completion of their
set terms (probably before if their behavior is good) irrespective of whether
they appear likely to return to crime or not.
Under the proposed plan, on the other hand, the criminal would know that
there was no possibility of his release until expert examiners had decided that
the chances of his committing a further crime were remote.
Confirmed criminals, particularly, would thus face the probability of
longer confinements than now, in many cases life—not an attractive prospect or
without its deterrent value no matter what the conditions of confinement.
Even if the proposed scheme should constitute less of a deterrent to
crime than the present system, I maintained that there was reason to believe
that it would bring a substantial reduction in the total incidence of crime.
This would follow primarily from the fact that the practice of releasing
thousands of confirmed criminals each year would be at an end.
Further, the fact that the emphasis would be entirely on correction and
reform, and not at all on punishment or the simple completion of terms, should
increase the percentage of reforms. With
release possible only on the decision of experts that a reversion to crime was
highly unlikely, the state would have a powerful incentive from a financial
point of view to accomplish the reform of criminals.
And public knowledge that convicts were released only on expert testimony
that they had reformed would assist ex-convicts to rehabilitate themselves and
to avoid slipping back into crime.
Fifty years later these principles still seem sound, but only as
long-term objectives. Our prison
population is now so large that the cost and other practical requirements of the
principles' implementation, would be prohibitive, unless and until, after years
of progress in their acceptance and implementation, there has been a substantial
reduction in the prison population. It
is reasonable to believe that the day will come when confirmed criminals will be
confined as a matter of course for life, while other criminals will be held for
only as long as their rehabilitation is judged by experts to require in the
public interest.
The principal motivating forces for progress in this direction will be
(1) anticipated further advances in the medical, biological and behavioral
sciences, producing ever greater evidence of the extent to which we are the
product of our genes, environmental influences, chance, and possibly a soul; (2)
ever mounting evidence of the failings and injustice of our present criminal
judicial and penal system; and (3) the reasoning herein presented that the
concept of responsibility, on which the present system rests, lacks a logical
basis.
A Harvard summa cum laude graduate wrote a few years ago:
"There is no logical lapse in your essay on responsibility.
Indeed there is now even more support for your thesis that individual
responsibility is an artificial and illogical concept.
Research continues to show that there is a genetic basis for a number of
so-called "life choices"; criminality and homosexuality aren't
"choices" at all—they are genetically determined.
In another hundred years the concept of incarceration and state-mandated
executions will seem as medieval as the Inquisition or debtor's prison seem
today."
CONCLUSION
It is becoming ever more obvious that our criminal judicial and penal
system needs fundamental revision. Every
year vast amounts of taxpayer money are spent in apprehending and convicting
criminals. Sentences are in
accordance with the seriousness of the crime; whether the crime was a temporary
aberration not likely to be repeated is a secondary consideration.
During confinement, efforts for reform are frequently negligible to
nonexistent, while the influence of prison associations is all in the direction
of confirming the first offender in a life of crime.
Eligibility for parole is primarily on the basis of good behavior, which
can be practiced as successfully by the confirmed criminal as by the novice.
As the inevitable result of these factors large numbers of criminals who
have served their terms or been paroled but are completely unregenerate are each
year sent forth to resume their careers of pillage and murder until once again
apprehended, convicted and returned to jail.
Are we to continue with this system indefinitely, recognizing in
principle but often not in practice the irresponsibility of the very young, the
insane and the mentally handicapped but basically ignoring what the sciences are
ever more clearly and forcefully telling us—that all criminal activity
originates with the criminal's genes, influences during his formative years,
elements that may have been put into him from some unknown source, and chance?
The approach to a more rational criminal judicial and penal system
advanced above is not free of practical concerns, for example as to the ability
of the expert examiners to arrive at sound judgments of the likelihood or
unlikelihood of a criminal's return to crime.
But the present system is illogical, immoral and egregiously ineffective
in controlling crime. Step-by-step
movement in the direction suggested seems clearly desirable.
At the least let us hope that social scientists and others who write
about the impact of genes and early environment on human behavior will go on to
discuss the implications of that fact for the concept of individual
responsibility. None has yet, as
best as I have been able to observe.