Crime Without Punishment: Towards a New Paradigm

• In Event: Crime prevention and criminal justice

Abstract

Deterrence and retribution are the two bases traditionally offered to justify punishment for crime. Both justifications rest on the belief that offenders have intentionally chosen to harm others.
But the science of human behavior tells us otherwise. In the past century, we have come to understand that factors beyond one’s control determine conduct. We have learned that brain tumors and trauma affect conduct in unpredictable ways, and that a condition like epilepsy is a biological disorder, not a sign of demonic possession. Recent neurobiology tells us that people with immature or damaged brains are unable to regulate their actions to conform to what they know to be right.
Dr. Robert Sapolsky, esteemed neuroscientist at Stanford University, goes even further. He asserts that none of us has free will—that our good actions as well as our bad are determined by our particular brain structure, hormones, fetal environment, genetics, evolution. These physiological factors are in turn modulated by circumstances also beyond our control such, for example, as the socio-economic condition into which we are born, and the trauma, abuse or neglect to which we may have been exposed in our early lives.
If we agree with Dr. Sapolsky—or even if believe that science is not finished revealing to us new biological bases for what we previously attributed to intentional malevolent choices—then maintaining a system of punishment based on culpability is not just cruel, it makes no sense.
Once we overcome the age-old impulse to equate criminal conduct with a will to do evil, we snap the logical bond between crime and punishment. This, in turn, will free us to restrain offenders from doing future harm without inflicting pain on them. It will also help us re-direct resources to providing comprehensive aid to victims whom we too often neglect.

Author

• Amy Gershenfeld Donnella, Villanova University School of Law