Criminal Justice, Causation and Society
by Charles Hlavac
This paper was written as a review/ critique of various articles in a textbook used at some California State Universities (Philosophy and Contemporary Issues by John Burr and Milton Goldinger). I selected articles on "criminal justice", and later decided to include other papers in the textbook which are relevant to criminal justice issues (determinism vs. free will, morals, mind and consciousness, etc.) and integrated these into this paper. My conclusion is generally that what constitutes a "criminal" act is defined by the society in which the act is committed and this also applies to "punishment". While the issue of "responsibility" (free will vs. the automaton theory of human nature) is discussed here, the end of the paper illustrates how a specific social/ cultural climate can itself define what is "criminal", and that as a society changes, so does the definition of the term "criminal act" change.
I took the liberty of combining three chapters and three contemporary issues for this paper: From Chapter One, the issue of "The Responsibility of Criminals" (Burr, 66-80), seems to be tied to many of the questions raised in discussions of "Mind and Body", Chapter Five, specifically Christopher Evans' "Can A Machine Think?" (358), which addresses what some writers have expressed as a view of the 'human mind as an organic computer', with all of the deterministic issues that that phrase implies. The issues of 'mind' and 'self', as seen in other introductory philosophy texts often link 'automaton' theories of mind with 'illusions of moral responsibility' and 'mind as a form of behavior' with the dilemmas of 'freedom' and 'necessity' (Edwards and Pap; Titus). 'Justice' must decide when (and if) a person is 'responsible' and whether it is right to impose "The Enforcement of Morals", one of the issues in Chapter Four, "State and Society", as discussed by Devlin in "Morals and the Criminal Law" (304) and H.L.A. Hart's "Immorality and Treason" (316). These three Chapters present related opinions as to the meaning of 'justice', and all bear on the issue of the meaning and purpose of 'punishment' as applied to criminal behavior.
The word 'criminal' has to do with an act that is considered to be a 'crime' by the society in which the act occurs. 'Crime' can be defined as 'an act committed in violation of a law prohibiting it, or omitted in violation of a law ordering it'. Secondarily, it has been defined as 'an offense against morality: sin', or as 'something regrettable or deplorable' (Webster's New World Dictionary). 'Justice', according to the Oxford Companion To Philosophy, pps 433-434, (Honderich), has to do with receiving 'benefits' or 'burdens, good or bad things of many sorts', from the society in which one resides, often without reference to specific acts. 'Criminal justice' is then understood as a system whereby 'criminal acts' are dealt with, when proven true (guilt), with certain 'burdens' upon the agent(s) of the act(s), for violating a law, i.e., some form of 'punishment'.
Social and Cultural Differences
Every culture has had unique ways of defining and administering 'justice'. The day I arrived in Izmir, Turkey, in 1961, the former President, Adnan Menderes, had just been hanged, and most Turkish cities were under martial law. He had been accused of stealing from State funds.
This event would be unimaginable in Western Countries. Clarence Darrow, in his "Address Delivered to Prisoners in the Chicago County Jail" (Burr, 66), could have been hung himself had he been a Turkish citizen publishing his opinions on criminal justice at that time. In fact, in the USA , his words are not too well taken by law enforcement officers, the penal systems, or by the courts as a whole.
Darrow's issue was not so much with the 'act' of crime as its causes. Working from effect to cause, he concluded that 'there is no such thing as crime as the word is generally understood' and that criminals are 'in no way responsible' (Burr, 68-69). To Darrow, there were small crimes and larger crimes, the larger crimes being the inequalities in society that allow 'big' criminals, such as the industrialists and capitalists, to take control of whole economic sectors to their advantage, a crime in itself, according to Darrow (and Marx, of course). These unfair practices of the 'big criminals' then breed the sort of petty crimes that lead to the imprisonment of the economically disadvantaged few who opt to 'steal' or commit other crimes to create an 'equal balance' of opportunity. Darrow's view creates a paradox in that it is the 'society at large' that is to 'blame' for the criminal acts of individuals, yet it is the individuals themselves who receive the punishment. In doing this, he removes most of the 'responsibility' for criminal behavior from the person and onto the local society: there are no 'criminals', only people who broke a law.
Further Definitions of Justice and Punishment
C.S. Lewis, in his criticism of 'The Humanitarian Theory of Punishment' (Burr, 74), sees justice and punishment as a 'deserved... deterrent' to such behavior. To be punished is to 'be treated as a human person made in God's image' (Burr, 78). Deterrence is contrasted with the idea of a 'cure', according to which the acts, regardless of cause, which are deemed to be crimes, must be 'treated' as a 'disease' in which the criminal is forced to be cured. These 'diseases' must be treated by 'experts' (e.g., the police and penal system), and not on the 'grounds of justice' (Burr, 79). Simply stated, the idea opposed by Lewis is of criminal behavior as a sickness, not something that asks for 'justice', but for cure, and the cure is punishment. To make an example of one criminal's acts via a system of prescribed punishment also acts as a deterrent to other similar acts, much as a flu shot prevents the flu.
To what extent are certain 'acts' punishable, and why, is a topic raised by Sir Patrick Devlin in his "Morals and the Criminal Law' (Burr, 304). While he spends considerable time on the issues of private vs. public morality (specifically homosexuality), he finally asks whether the 'law' should punish 'immorality' if it is 'private'? In doing so, he leads us to the idea that 'criminal law' 'cannot justify any of its provisions by reference to the moral law' (Burr, 305). But he concedes that if a society as a whole has such strong ideas and vehement abhorrence of certain behaviors, then these behaviors must be made illegal to 'protect' the shared morality.
Devlin was wise in stating that 'The limits of tolerance shift' (Burr, 312), giving us a platform for a more pragmatic view of justice, and maintaining that 'privacy should be respected' , but then he capitulates to 'moral standards... come from divine revelation... so they do not shift' (Burr, 312), and goes on to say that 'the extent to which society will tolerate... departures... varies from generation to generation'. This is a confusing mix of 'absolutes' and 'relativistic' moral standards. The only guide to what is really 'moral', according to Devlin, comes from the 'clergy', who are the 'guardians of public morality', and that the system of criminal law is there for one reason: To determine what will happen to those who 'do not behave' in public. I wonder what would happen to two homosexuals whose 'private' behavior suddenly came 'out of the closet', and into a society who he says, 'has a general abhorrence of homosexuality'? Perhaps they would be listening to Darrow's speech in Chicago while sitting out their prison terms or being 'cured' in some form of 'deterrent treatment' facility?
H.L.A Hart's "Immorality and Treason" (Burr, 316), brings to light the basic fault in the use of 'morality' to define what is 'criminal' and what is not: He quotes John Stuart Mill: 'to prevent harm to others' is the sole use of 'justice', and adds that 'private morality...is not the law's business'. (Burr, 317). All of the 'moral laws' are based on 'feelings' of indignation, intolerance, disgust, ignorance, superstition, or misunderstanding and thus become 'feelings... supported by law'. There is a special risk in democracies, he says, where 'the majority may dictate how all should live'. A sort of a 'hyperdemocracy' could exist where we are forced to be equal, whether we like it or not... and if you do not act the same as everyone else, well, you could be accused of treason: 'private immorality' equals 'private treason'.
Causation, Free Will, and Determinism
But, going back to Darrow, do criminals even think of the nature of their acts, or are they just responding to the social forces they find themselves in? Are they 'acting' immorally or are they mere cogs in a cultural machine that produces priests, paupers, and pilferers alike? Are they responsible or not?
Christopher Evans' "Are Men Machines?" (Burr, 358) reviews several options, the primary issue being whether the behavior of a machine/ computer/ human is 'predictable', and is the outcome 'determined' (programmed)? Of the many objections to the idea of a 'thinking machine', the main one is that only the idea of a machine with 'self-knowledge', with feelings, and with some degree of 'curiosity' would seem to come close to being 'human'. But that a machine is not biological is no reason to assume that it cannot think. Computer programs, especially the new 'adaptive' programs, with streams of subsets of sub-programs, come close to emulating what we think we see when we encounter a 'human' mind. Yet, according to Evans, there is the 'feeling' that only the human thinking machine can be creative, produce and enjoy art, language, games, and all of the signs and symbols that go with them, including the emotions one has when responding to these signs. There seems to be, among rationalists and artificial intelligence gurus, a forgetfulness with respect to the biological and evolutionary status of the human nervous system: It is not just the 'brain', it is a limbic system, a spinal cord, a heart beating, and hormones flowing, all of which influence and color the thoughts and impressions received by and created by the brain, which itself has a non-linguistic side to it.
So perhaps criminals 'feel' more than they think, react more than they act... So, they may not be totally rational... and therefore not responsible? Can the limbic system be programmed? Is it responsible? Can a mistreated animal be cured of its fear of others? Will it retreat or will it attack?
In "What The Human Mind Can Do", (Burr, 370) Morton Hunt speaks of the limbic elements of human consciousness and feeling and that the 'awareness of self is what the essence of being alive means to us'. He extrapolates from this that somehow culture, art, and politics evolve from a 'moral wisdom' based on this consciousness, and that computers need to be regarded only as tools to extend our capabilities, just as microscopes or video-teleconferencing.
One of Hunt's remarks applies to the issue of 'criminality', and that is the idea of being 'conscious of alternatives'. There are many alternatives to any behavior, so why do we choose one over the other? Darrow would suggest societal necessity. Lewis would propose a lapse of morals - a deviation from what is 'right' and 'proper'. Evans would suggest 'bad programming'.
Responsibility and Action
Being conscious of one's self does not necessarily imply an understanding of the reasons for all of one's actions, as Freud and psychiatry have demonstrated. Consciousness of 'self' therefore is no guarantee of 'responsibility'. Without complete 'self-knowledge', one cannot be said to be fully aware of all of the alternatives to 'deviant' behavior, nor capable of making the 'right choices', considering the 'unconscious' factors prevalent in human life (family, social and cultural conditioning, early traumatic experiences, chemical imbalances, etc.). Not to disregard the DNA factor: Machines are for all purposes mechanical. Humans evolve and reproduce though DNA, which itself can change (mutate). Except for identical twins (biological 'clones'), no two humans look alike. Why then should we suppose that we all have the capacity to perceive, feel, and think alike? There may be limitations among us all. You're short, I'm tall. I can't play a note, but I can speak five languages. You have an IQ of 180, but I can't repair a leaky faucet. I think, you feel. I'm serious. You're playful.
Whatever 'self' you are born with and develop, it is your 'self' . As a 'self', as a causal agent, you do things in the world around you. Whether you feel free to do them or not, or whether you have deliberated long and hard or not, it is 'you' who 'act' upon the world. Your sense of being an 'agent' is what counts. You cannot, unless you are not aware of anything 'you' do, claim otherwise. It is "I" who am writing this, not some other "I".
While there is always a struggle for freedom vs. 'order and security' (Titus, 461) and that these two form the basis for Rules of Law, there should always be room for the 'unorthodox', whether considered immoral or not by the larger society.
Democratic justice, unlike some other systems, tries not to penalize nonconformity, but encourages criticism (Henry Steele Commager in Titus, 465), and does not attempt to wield arbitrary power. The 'selfhood' of individuals is thus maintained, and freedom along with personal responsibility and choice are all enhanced and amplified. Whether human actions are really free or determined in this case is not the point. They have the potential to be free. They 'feel' free. There are no threats to your ability to make your own choices. 'You are free to do whatever you want. You only have to face the consequences'. (Kopp)
The responsibility of criminals lies in knowing that they chose to act in a certain manner that is considered to be against the law of the society they live in. The majority of these laws are there for the protection of the other 'selves', the other "I's", in that society, whose rights and freedoms are taken from them by the actions of the 'criminal'. This taking away of the rights of another is an offense. Taking away the rights of the offender is the 'punishment' and a deterrent to all who would also choose this course of action. Removing the offender from society or punishing him (in financial ways, or others) and dispensing 'justice' upon him is the way we 'protect citizens at large ' from any further injury or loss.
So it is not a matter of morality, conditioning, cures, diseases, private or public treason, nonconformity, or arbitrary power or willfulness. Criminal justice defines (in each society) what 'will happen to them if they do not behave' (Devlin in Burr, 314) and by behave we mean not doing harm or injustice to others. These are the 'laws', for better or for worse.
And, as Sir Patrick reminded us, the 'laws' may change from 'generation to generation... to the extent to which society will tolerate... departures..." (Burr, 312).
Postscript - An Example of a Social Definition of Criminal Behavior
I recall being a young Air Force trainee in 1961 Biloxi, Mississippi, walking down the street with another Airman (both of us from New York City), who happened to be black. A Biloxi police officer reminded us sternly that it was 'illegal' to do that - for a black and a white to walk together side by side.
We were headed for the Biloxi 'Free Public Library', where there was a sign posted: 'No Coloreds'. I insisted sarcastically that my friend was not "Colored", that he was Black and that "color" is green, purple, blue, etc. My humor was not received too well. We were both arrested for two counts of 'disturbing the peace' and returned to the Air Force Base gate in a patrol car. So, whose 'peace' were we disturbing? Who was being 'protected'? Of course, our actions were deliberate and designed to snub the 'arbitrary powers' in a segregated South, but it was a matter of personal morality and public treason, not the other way around.
To paraphrase Andre Malraux:
"Man's fate is his laws."
1. "Man's fate is his character."
Burr, John R. and Philosophy and Contemporary Issues, 4th Edition Goldinger, Milton New York: Macmillan, 1984
Edwards, Paul and A Modern Introduction to Philosophy, 3rd Edition Pap, Arthur, eds. New York: The Free Press, 1973
Nagel, Thomas What Does It All Mean? New York: Oxford University Press, 1987
Titus, Harold H. Living Issues in Philosophy, 5th Edition New York: Van Nostrand Reinhold Company, 1970
Honderich, Ted, Ed. The Oxford Companion To Philosophy New York: Oxford University Press, 1995
Neufeldt, Victoria, Ed. Webster's New World Dictionary New York: Prentice Hall, 1994
© Charles Hlavac 2005
Windsor, CA, USA 95492