THE CONCEPT OF RESPONSIBILITY

Robert A. Fearey

September 2003 

1954 Article

1951 Strecker Letter

1953 Gault Letter

1964 Acheson Letter

1964 Bazelon Letter

Author Contact Information

Summary

            In this article I argue that whatever an individual's makeup, derived from inherited characteristics, environment, a soul if we have such, and chance, he or she does not choose those factors, and therefore cannot logically be held responsible for what they are, which determines what in any given circumstance he or she does.  I contend that in light of this reasoning, and equally or more importantly, in light of what advances in the medical sciences, notably genetics, are every day revealing, the concept of individual responsibility needs reexamination.  At the same time I explicitly recognize that the essentials of the concept remain a key requirement of an ordered society.

            I first laid out this reasoning in the June 1954 issue of the Northwestern University Law School 's "Journal of Criminal Law, Criminology and Police Science".  I there maintained that the contention that one is basically the product of factors one had no part in choosing, and therefore cannot logically be held responsible for, is of course more easily grasped and accepted for the very young and for juveniles than for adults, reflected in our more tolerant treatment of youthful criminals in our judicial system.  The actions of John Doe, aged 40, on the other hand, 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, I argued, reason dictates that the character of an adult is as completely the product of external factors over which he had no independently determined control as is the case with a boy of six, eight or sixteen.  Each state of life derives from the previous stage going back to an early childhood of obvious irresponsibility.  Chance constantly plays a role in our lives--a crippling auto accident can change the whole course of a life.  But chance, by very definition, is not something we choose and consequently can logically be held responsible for, any more than we choose and can logically be held responsible for our inherited characteristics and early nurturing and environment.  Fatalism or determinism play no part in this reasoning--our lives are too obviously influenced by chance for such theories to have any validity.

            Beyond inherited characteristics and environmental influences, there is of course a third possible source of character makeup--a "soul".  The fact that so many people's characters are so different from what even the deepest research into their inherited and environmental backgrounds would lead one to expect supports the idea that an individual's makeup does include a third element, received from a Creator or other unknown source.  But the crucial point is that if we have a soul, we have no role in selecting it, any more than in selecting our inherited characteristics or early environment, and that we therefore cannot logically be held responsible for whatever influence it has on our makeup and actions.

            The 1954 article described a "way to a reasonable penology" whose principles would be, first, to shift from the concept of deserved retribution to emphasis on rehabilitation and reform, and second, to keep the criminal in confinement for as long as he is viewed by professional psychologists and criminologists to be a public danger, based on such factors as the premeditated or unpremeditated nature of the crime, the criminal's history back to early childhood, hereditary influences, and his behavior in confinement.

            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, under affordable, tolerable conditions, while other criminals will be held in productive, much more tolerable, confinement, for only as long as their rehabilitation is judged by experts to require in the interest of public safety.

            The principal motivating force for progress in this direction will be anticipated further advances in the genetic, biological and behavioral sciences, producing ever greater recognition of the extent to which we are the product of our genes and environmental influences.  The reasoning of my 1954 article, indicating that the concept of individual responsibility needs fundamental re-examination, not only because of what these sciences are revealing but also because the concept has no logical basis, will probably continue to find only gradually increasing acceptance.  But the reasoning is there, accepted by some and refuted by none, and I believe some day will add important weight to science's evidence that the concept is flawed and needs re-examination, not only in respect to criminal law and penology but also in other areas of human behavior.  Scientists are everywhere hinting at this need as they pursue their genetic and behavioral research.  But, conscious of mankind's deeply felt attachment to the concept and of the role it plays in ordered societies, they have thus far stopped short of openly recognizing and espousing that need. 

            My background is as a U.S. Foreign Service officer, followed by 18 years with Population Action International, a Washington based non-profit organization.  My Foreign Service positions included Civil Administrator of the Ryukyu Islands ( Okinawa ) 1969-72 and Special Assistant to Secretary of State Kissinger and U.S. Coordinator for Combating Terrorism 1975-77.

            I hope that the fact that I am not an acknowledged expert in the matters discussed in this article does not exclude it from consideration.  It did not in 1954 when the earlier article was published.  And no expert that I have been able to discover has been prepared to draw the inescapable connection between what the medical sciences, notably genetics, are ever making clearer about the sources of behavior and the bases of our criminal judicial and penal systems.

            David C. Acheson, a former United States Attorney for the District of Columbia and son of former Secretary of State Dean Acheson, writes that "the article is solid, well written, argued with a ruthless logic, and important.  As a former senior public prosecutor I would be happy to contribute an introduction to that effect." 

             I venture to quote a rework by a nineteenth century German naturalist, Karl Ernst von Baer, that all new and important ideas must pass through three stages: first dismissed as nonsense, then rejected as against religion, and finally acknowledged as true, with the proviso from initial opponents that they knew it all along.   

--- End of Summary ---

 

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[1] 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.  


[1] Published in the June 1954 issue of the Northwestern University School of Law's "Journal of Criminal Law, Criminology and Police Science."  The article was commended by my godfather, Judge Learned Hand, by Judge Bazelon and by David Acheson, U.S. Attorney for the District of Columbia , and according to the Journal's Editor, Robert H. Gault, occasioned considerable reader interest.

Robert A. Fearey Biographic Information

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