In the penalty phase trial of the person who has pleaded guilty to carrying out the massacre of 17 people in the Marjory Stoneman Douglas High School in Parkland, Florida, in February 2018, the defense has argued that he should not be executed but instead serve life in prison without parole because “his brain was irretrievably broken, through no fault of his own,” by his childhood and even while in his mother’s womb because she was a drug and alcohol addict, and thus he should not be held responsible for his actions.
The prosecution meanwhile has argued that he deserves to die for the “goal-directed, planned, systematic murder – mass murder – of 14 students, an athletic director, a teacher and a coach”. Note the word ‘deserves’. This raises once again the strong retributive strain that runs through the US legal system, the backward looking view hat people should be punished harshly because of who they are and what they have done, not for any benefit the punishment might provide for society. The defense is arguing that the killer was not acting because of decisions made freely by a normally functioning brain but was following the compulsions of a brain that was ‘broken’. In other words, both prosecution and defense are using ideas of free will but the defense is arguing that in this special case, he did not have it.
But if, as I believe, we do not have free will, how would murder trials go? In his article on how the legal system could function in the absence of a belief in free will, Anthony Cashmore suggests that in such cases, such trials should be split up into two parts. The first part would simply focus on whether the person committed the act or not and omit any discussion of their mental state. In other words, the insanity defense would simply not be entertained in this phase of the proceedings but allowed only when it comes to sentencing. This means that the composition of the people rendering the verdict should be different in the two phases.
“[P]sychiatrists and other experts on human behavior should be eliminated from the initial judicial proceedings—the role of the jury would be to simply determine whether or not the defendant was guilty of committing the crime; the mental state of the defendant would play no part in this decision. However, if a defendant were found guilty, then a court-appointed panel of experts would play a role in advising on matters of punishment and treatment.”
The original standard for judgment as to whether an act was caused by at least temporary insanity is based on something called the M’Naghten rules that state that a claim of insanity requires that “the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and the quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong”.
In a post in 2010, I expanded on the M’Naghten rules.
The M’Naghten rule focuses on the cognitive awareness of right and wrong and is quite a stringent test. The only reason to not punish a wrong action is if the person could not have been deterred by the thought of punishment in the first place because their brain was incapable of making the kinds of judgments involved. As Pinker says (p. 184), “If someone is too addled to know that an act would harm someone, he cannot be inhibited by the injunction “Don’t harm people, or else!” The M’Naghten rule aims to forgo spiteful punishment – retribution that harms the perpetrator with no hope of deterring him or people similar to him.” If everyone knows that that the lack of cognitive awareness is the sole reason for exculpation, then the deterrent effect of punishment is still strong. The only people who would not be deterred are those whose brains are similarly addled.
The rules for mitigation have sometimes been expanded to include cases where the person did know the difference between right and wrong but was unable to control their impulses or was coerced. For example, we believe that the instinct to survive is so strong that if we are faced with a deadly threat we may kill the attacker before they can kill us, even though we know that killing is wrong and that we may face punishment. The law recognizes that in such cases, we are not really making a free choice, but that we are acting on instinct, and so we have the self-defense argument. The cases of coercion are somewhat easier to adjudicate. If someone is forced to do something at the point of a gun, we view the action with leniency.
More complicated are the so-called ‘crimes of passion’ in which some acts occur because of emotions so strong that even if the perpetrator knows the action is wrong, they carry it out anyway. The ‘police officer at the elbow’ test (i.e., would the person still have committed the act even if a police officer was in the immediate vicinity) could be used to make such discriminations.
The M’Naghten standard is quite a high bar to reach, though courts have watered it down somewhat subsequently.
It is difficult for a layperson to make these kinds of judgments which is why Cashmore argues that it should be left for people who are experts in the field. By allowing the insanity defense along with the question of whether the person committed the offense or not, we muddy the situation by mixing questions of guilt with that of responsibility. In the system envisaged by Cashmore, the verdict “not guilty by virtue of insanity” would cease to exist. Someone is either guilty of the act or not. It is only if they are guilty do we consider the merits of insanity in determining the nature of the punishment.
This person’s brain was not “addled” or “broken:” he didn’t just flip out one day, he made a plan, acquired the tools he decided he needed to carry it out, and carried it out. If his mind had been influenced by his “culture” and environment, then perhaps the best counter to such bad influences is for everyone to see such crimes punished consistently and unequivocally, and to see them roundly condemned and dismissed by solid majorities of normal people. (Oh, and maybe better public education and mental-health policies?)
As for what specific punishment this sadistic moron deserves, my general philosophy is “ask for death, settle for life.”
I don’t think the case is as airtight as all that. There are plenty of people that think a defence by reason of insanity is a simple matter of pretending to be insane while being questioned.
I think there is a very small amount of merit to the claim of the defense that the murderer was insane, but that this claim would also apply equally to EVERY person charged with murder. I doubt many people would find that acceptable.
On the other hand, the prosecution makes an argument that could be seen as being extremely anti-theistic. By seeking punishment for one who “deserves” death, that implies the state has a collective absolute faith that no God exists who has the power or guts to punish anyone after death.
Of course, I believe that there is no afterlife, and thus that punishment ends at death. But I did not expect the State of Florida to match my firm rejection of religion.
I call on the state to set a long prison term for the murderer, as that would be a bigger punishment than granting him the quick release of death. Anyone who plans such a crime as his has already accepted the likelihood of being confronted and gunned to death that very day. So the criminal has already shown his willingness to die. To execute him would be to endorse his choice of suicide.
I think we should in this case support Florida in their firm faith that there is no afterlife.
These arguments can be tricky. I could argue that, since his brain is “irretrievably broken”, there is almost no chance of him ever moving on to a normal life, so why not execute him?
Holms @#2,
What you argue would be true if showing insanity is as simple as that. But the M’Naghten standard is pretty daunting, especially if the person claiming insanity is evaluated by experts in the field.
Reginald @#4,
For the same reason we do not execute people who have serious brain damage who do not commit horrific offenses.
When the state kills a murderer, they not only justify their killing of him, they also justify the murderer’s killing of his victim because they share the common element of justification for killing a person who is helplessly in their power.
The death penalty justifies the very act that it seeks to condemn.
Why shouldn’t they just kill him? Why pay to keep him in prison for a lifetime? I think the Hmong solution of killing murderers and rapists to protect society is a better solution to prisons.
Death penalty is to remove the rabid individual from the herd, it’s not a punishment.
Free will? On the wave between birth and death, nothing is predetermined. We choose. We learn. We have agency.
According to physics, humans can’t fly, and yet…..
@Tethys, 7:
Why shouldn’t they kill him? You want a list?
How about:
1. yes, he deserves to die… but no civilised person (or country) should countenance being directly responsible for that death, purely for the reason that it taints one’s own spirit to be that kind of person (or country).
2. in order to kill him you have to have a system for doing so -- procedures, laws, and so on. And no matter how sure you are THIS time that this fucker is guilty, sooner or later there’s going to be a case where even though you’re sure as sure can be TODAY, tomorrow will turn up the DNA evidence to prove the guy was innocent… too late.
I’ll trot out my usual: have a referendum on the death penalty. Two questions:
(1) Death penalty, yes, or no?
(2) If yes -- and given the unarguable fact that any system put in place to implement it will be administered by fallible humans and will therefore inevitably sooner or later murder in cold blood an innocent person -- do YOU, personally, volunteer to BE that person, TODAY?
If you vote “No”, your vote is counted. If you vote “Yes”, then “Yes”, you’re locked in the voting booth for 30 minutes and it’s filled with pure nitrogen. If you vote “Yes”, then “No”, your vote is ignored, because your first “Yes” actually means “Yes, but only if it’s other people”, which is not a morally coherent answer.
Any country that has and uses the death penalty is a barbarian shithole. Grow the fuck up.
Prison works perfectly well to remove the dangerous individual from the herd, as do secure mental institutions.
I’ll skip lightly over the inconsistency apparent in stating “nothing is predetermined”, then appealing in the next line to physics.
Also, I’d argue that “humans can’t fly” is a statement of biology, not physics. And on that basis, it’s 100% correct.
The M’Naghten rule focuses on the cognitive awareness of right and wrong …
Had that principle held sway ~6,026 years ago, Adam and Eve would have won acquittal on that apple-scrumping charge by reason of insanity. Maybe SCOTUS will use that as grounds for eliminating M’Naghten in their next session.
If we do not have free will, we already know how murder trials would go: exactly as they are now, since already the legal system is made by people without free will and the prosecution is made by people without free will and the judging is made by people without free will and the sentencing is made by people without free will.
(Not the most useful concept, is ‘free will’, outside of theodicy)
I am completely opposed to the death penalty if there is any doubt that the person responsible did it. Not just reasonable doubt, but any doubt at all.
Also I personally think life without parole is a shitty fate, and it removes the perpetrator from society just as permanently, so there is no need to kill them.
However cases of mass murder where the perpetrator is not insane fall outside that. In such cases, I’m ambivalent if the death penalty is the sentence. The perpetrator has no value to me, and I understand the families of the victims who want the perpetrator to die. Under those circumstances, I say go ahead and kill them if it makes the families feel better.
As regards this particular case, I don’t see the background of the perpetrator has any relevance unless he is insane.
On the other hand, the prosecution makes an argument that could be seen as being extremely anti-theistic. By seeking punishment for one who “deserves” death, that implies the state has a collective absolute faith that no God exists who has the power or guts to punish anyone after death.
Actually, that’s a non-sequitur. Even if I believed in a god who would judge and punish wrongdoers in the afterlife, I’d still want to see them punished in this life, and I’d still want others in this life to SEE them punished, both to get them off the streets and to achieve whatever deterrent effect the state can get (if any). No theist really believes that just saying “HAHAHAHAHA you’ll probably get yours after you die!” is likely to enhance criminal justice or deterrence anywhere.
#5 Mano
My point was that a lot of people don’t know how stringent the examination is, and think they can just wing it by saying absurd randomness in an interview.
We put down dangerous dogs. We don’t accept “Oh, his brain is broken” and let them run loose attacking people (and other animals). We rightly recognize that they can’t be fixed, and _humanely_ euthanize them.
Dangerous people — murderers, rapists, pedophiles, domestic abusers — should get the same treatment, for the same reasons.
#14 WMD
Do you believe the courts are infallible?
Only 1% try using insanity as a defense. And of that 1%, only 1% are acquitted based on the insanity defense