THEORIES OF CRIMINAL LAW AND OF LEGAL PUNISHMENT

The Moral Permissibility of Punishment

(Source: Zachary Hoskins, The Moral Permissibility of Punishment, Internet Encyclopedia of Philosophy. Available at:
http://www.iep.utm.edu/m-p-puni/)

The legal institution of punishment presents a distinctive moral challenge because it involves a

state’s infliction of intentionally harsh, or burdensome, treatment on some of its members—
treatment that typically would be considered morally impermissible. Most of us would agree, for
instance, that it is typically impermissible to imprison people, to force them to pay monetary
sanctions or engage in community service, or to execute them. The moral challenge of
punishment, then, is to establish what (if anything) makes it permissible to subject those who
have been convicted of crimes to such treatment.
Traditionally, justifications of punishment have been either consequentialist or retributivist.
Consequentialist accounts contend that punishment is justified as a means to securing some
valuable end—typically crime reduction, by deterring, incapacitating, or reforming offenders.
Retributivism, by contrast, holds that punishment is an intrinsically appropriate (because
deserved) response to criminal wrongdoing. Each type of account has been roundly criticized,
on a variety of grounds, by theorists in the other camp. In an effort to break this impasse,
scholars have attempted to find alternative strategies that incorporate certain consequentialist or
retributivist elements but avoid the standard objections directed at each. Each of these accounts
has, in turn, met with criticism. Finally, abolitionists argue that none of these defenses of
punishment is satisfactory, and that the practice is morally impermissible; the salient question
for abolitionists, then, is how else (if at all) society should respond to those forms of wrongdoing
that we now punish.
This article first looks more closely at what punishment is; in particular, it examines the
distinctive features of punishment in virtue of which it stands in need of justification. It then
highlights various questions that a full justification of punishment would need to answer. With
these questions in mind, the article considers the most prominent consequentialist, retributivist,
and hybrid attempts at establishing punishment’s moral permissibility. Finally, it considers the
abolitionist alternative.
Table of Contents
What is Punishment?
Various Questions
Consequentialist Accounts
Deterrence
Incapacitation
Offender Reform
Sentencing
Objections and Responses
Retributivist Accounts
Deserved Suffering
Fair Play
Censure
Other Versions
Sentencing
Alternative Accounts
Rights Forfeiture
Consent
Self-Defense
Moral Education
Hybrid Approaches
Abolitionism
References and Further Reading
1. What is Punishment?
When we consider whether punishment is morally permissible, it is important first to be clear
about what it is that we are evaluating. Theorists disagree about a precise definition of
punishment; nevertheless, we can identify a number of features that are commonly cited as
elements of punishment.
First, it is generally accepted that punishment involves the infliction of a burden. The state
confines people in jails and prisons, where liberties such as their freedom of movement and
association, and their privacy, are heavily restricted. It imposes often heavy monetary sanctions
or forces people to take part in community service work. It subjects people to periods of
probation during which their movements and activities are closely supervised. In the most
extreme cases, it executes people. Theorists disagree on precisely how to characterize this
feature of punishment. Some describe punishment as essentially painful, or as involving the
infliction of suffering, harsh treatment, or harm. Others instead write of punishment as involving
the restriction of liberties. However we characterize the specific nature of the burden, it is
relatively uncontroversial that punishment in its various forms is burdensome.
One might object that some prisoners could become accustomed to incarceration and so not
see it as a burden, or that the masochist might even enjoy his corporal punishment. In response
to supposed counterexamples such as these, a defender of the “burdensomeness” feature of
punishment might argue that the comfortable prisoner and the masochist are still punished
insofar as they are treated in ways that are typically regarded as burdensome by those on
whom they are inflicted. Alternatively, one might argue that a particular case of incarceration,
corporal punishment, and so forth, indeed does not count as punishment if the prisoner does not
find it burdensome (Boonin, 2008: 8-10). Whatever one makes of these attempted
counterexamples, it remains the case that punishment theorists by and large agree that
burdensomeness is an essential feature of punishment.
But punishment is not merely burdensome. A second widely accepted feature of punishment is
that it is intended to be burdensome. This feature distinguishes punishment from other forms of
treatment that may be burdensome but are not intentionally so. Many people undoubtedly
regard it as burdensome to pay their taxes, for instance, but presumably most do not regard this
as a form of punishment. This is because although taxes may be foreseeably burdensome, they
are not intentionally so. That is, the state does not levy taxes intending for them to be
burdensome; rather, the intention is to pay for roads, an education system, and other public
goods. That paying for these goods is burdensome to many taxpayers is incidental, and if there
were a way to collect sufficient revenue to pay for needed public goods without this being a
burden to taxpayers, then so much the better.
Punishment, however, is different. Punishment is intended to be burdensome. If it were not
burdensome, then it would not be doing its job. For instance, as we will see below, some
theorists contend that the aim of punishment is to reduce crime by deterring potential criminals.
But for the threat of punishment to be the sort of thing likely to deter criminals, the punishment
itself must be burdensome. Other theorists (retributivists) contend that wrongdoers deserve to
suffer, and that punishment is justified as the infliction of this deserved suffering. Here again, the
burdensomeness of punishment is not merely incidental, it is intended.
Of course, not all impositions of intended burdens count as punishment. A third commonly
accepted feature of punishment is that it is imposed on someone guilty of an offense, as a
response to that offense. Actually, there is some disagreement about this point. To count as
punishment, must it be imposed on someone who is actually guilty of a crime? Or would it make
sense to talk of punishing an innocent person (either mistakenly or intentionally)? Some
scholars contend that punishment must be of a guilty person. Susan Dimock writes, “The
innocent may be ‘victimized’ by the penal system, but they cannot be ‘punished’” (Dimock, 1997:
42). By contrast, H. L. A. Hart contends that we should acknowledge not only punishment of
actual offenders, but also cases (which he calls “sub-standard or secondary”) of punishment “of
persons…who neither are in fact nor supposed to be offenders” (see Hart, 1968: 5).
A fourth feature of punishment, widely acknowledged at least since the publication of Joel
Feinberg’s seminal 1970 article “The Expressive Function of Punishment” is that it serves to
express condemnation, or censure, of the offender for her offense. As Feinberg discusses, it is
this condemning element that distinguishes punishment from what he calls “nonpunitive
penalties” such as parking tickets, demotions, flunkings, and so forth. (Feinberg, 1965: 398-
401). As we will see below, some scholars have taken this expression of censure to be central
to the justification of punishment. But whether or not it plays a role in the justification of the
practice, this expressive function is typically accepted as a distinctive feature of punishment.
Finally, it is worth highlighting that this article focuses on the legal institution of punishment—
rather than, say, parents’ punishment of their children or other interpersonal cases of
punishment (but see Zaibert, 2006). Legal theorists often assert as one of punishment’s
features that it must be imposed by a properly constituted legal authority (typically, the state).
They thereby aim to differentiate legal punishment from private vengeance or vigilantism. This
does not mean we must accept uncritically that the state is the proper authority to impose
punishment. Ideally, a full account of punishment should provide a plausible answer to why (or
if) the state has an exclusive right to impose punishment.
These, then, are the most commonly cited features of punishment: punishment involves the
state’s imposition of intended burdens—burdens that express social condemnation—on people
(believed to be) guilty of crimes, in response to those crimes. This is not intended as a precise
definition or a set of necessary and sufficient conditions for punishment. Theorists may disagree
about particular elements, or especially about how exactly to flesh out the various elements. But
this description is sufficient to give us a sense of why punishment stands in need of justification:
It involves the state’s treating some of its members (imposing intentionally burdensome,
censuring sanctions) in ways that typically would be morally impermissible.
2. Various Questions
When theorists ask whether punishment is justified, they typically assume a backdrop in which
the legal system administering punishment is legitimate, and the criminal laws themselves are
reasonably just. This is not to say that they assume that all legal systems are legitimate and all
criminal laws are reasonably just in the actual world. Indeed, questions of political legitimacy
and criminalization are important topics that have received a great deal of attention in their own
right. But even in societies in which the legal system is legitimate and the laws are reasonably
just, a general question arises of whether (and if so, why) it is permissible for the state to
impose intended, censuring burdens on those who violate the laws.
This general question of punishment’s moral permissibility actually comprises a number of
particular questions. A full normative account of punishment should provide answers to each of
these questions.
First, there is the question of punishment’s function, or purpose. Put simply, what reason is
there to want an institution of punishment? H. L. A. Hart referred to this as punishment’s
“general justifying aim,” although this term may be misleading in two ways: on one hand, to say
that the aim is justifying implies that it is sufficient, by itself, to establish punishment’s
permissibility. As we will see, some scholars point out that more is needed to justify punishment
than merely citing its function, no matter how valuable. On the other hand, talk of a
justifying aim seems to privilege consequentialist accounts, according to which punishment is
justified as a means to some socially valuable goal. But even for retributivist accounts,
according to which punishment is justified not as a means to some end but rather as an
intrinsically appropriate response to wrongdoing, we still need an explanation of why such a
response is important enough to warrant the state’s institution of punishment. A first question,
then, is what sufficiently important function punishment serves.
Even if we establish some sufficiently valuable function of punishment, this may not be enough
to justify the practice. Some scholars contend that a crucial question is whether punishment
violates the moral rights of those punished. If punishing offenders violates their rights, then it
may be morally impermissible even if it serves some important function (Simmons, 1991;
Wellman, 2009). What we need, according to this view, is an account of why, in principle, the
practice of imposing intended burdens on people in the ways characteristic of punishment does
not violate their moral rights.
In addition to justifying the practice of punishment in general, a complete account of punishment
should also provide guidance in determining how to punish in particular cases. Even if the
institution of punishment is morally permissible, a particular sentence may be impermissible if it
is excessively harsh (or on some accounts, if it is too lenient). What principles and
considerations should guide assessments of how severely to punish?
Relatedly, although this point has received less attention, we should ask not only about the
appropriate severity of punishment but also about the proper mode of punishment. We may
critique certain sentences not in virtue of their severity but because we believe the form of
punishment (incarceration, capital punishment, and so forth) is in some sense inappropriate
(Reiman, 1985; Moskos, 2011). What considerations, then, should guide assessments of
whether imprisonment, fines, community service, probation, capital punishment, or some other
form of punishment is the appropriate response to instances of criminal wrongdoing?
Finally, as mentioned, it is important to ask about the state’s role as the agent of punishment.
Why is it the state’s right to impose punishment (if indeed it is)? Furthermore, what gives the
state the exclusive right to punish (Wellman, 2009)? Why may victims not inflict punishment on
their assailants (or hire someone to inflict the punishment)? Another question related to the
proper agent of punishment—a question that has become increasingly salient in the decades
following the Nuremberg trials—is when (if ever) the international community, rather than a
particular state, can be the proper agent of punishment. What sorts of crime, and which
criminals, are properly accountable to the institutions of international criminal law rather than (or
perhaps in addition) to the domestic legal systems of particular states?
As we will see, various accounts of punishment focus on different questions. Also, some
accounts seek to answer each of these questions by appealing to the same moral principles or
considerations, whereas others appeal to different considerations in answering the different
questions.
3. Consequentialist Accounts
Consequentialism holds that the rightness or wrongness of actions—or rules for action, or
(relevant to our context) institutions—is determined solely by their consequences. Thus
consequentialist accounts of punishment defend the practice as instrumentally valuable: the
consequences of maintaining an institution of legal punishment, according to this view, are
better than the consequences of not having such an institution. For many consequentialists, the
burden of punishment itself is seen as a negative consequence—an “evil,” as Jeremy Bentham
called it (Bentham, 1789: 158). Thus for punishment to be justified, it must be the case that it
brings about other, sufficiently valuable consequences to outweigh its onerousness for the
person on whom it is inflicted. Typically, punishment is defended as a necessary means to the
socially valuable end of crime reduction, through deterrence, incapacitation, or offender reform.
a. Deterrence
Deterrence accounts contend that the threat of punishment serves as a disincentive for potential
criminals. On such accounts, for the threat of punishment to be effective as a deterrent, it must
be credible—it must have teeth, so to speak—and thus the legal system must follow through on
the threat and impose punishment on those who violate laws. Theorists have distinguished two
potential audiences for the deterrent threat: first, the threat of punishment might serve to
dissuade members of the public generally from committing crimes that they might otherwise
have committed. This is called general deterrence. Second, for those who do commit crimes
and are subjected to punishment, the threat of future punishment (namely, the prospect of
having to experience prison again, or pay further fines, and so forth) might provide a
disincentive to reoffending. This is typically referred to as specific (or special) deterrence.
b. Incapacitation
Punishment might also help to reduce crime by incapacitating criminals. Unlike deterrence,
incapacitation does not operate by dissuading potential offenders. Incapacitation instead aims to
remove dangerous people from situations in which they could commit crimes. Imprisoning
someone in a solitary confinement unit, for instance, may or may not convince her not to commit
crimes in the future; but while she is locked up, she will be unable to commit (most) crimes.
c. Offender Reform
A third way in which punishment might help to reduce crime is by encouraging or facilitating
offender reform. The aim of reform is like that of specific deterrence in one respect: both seek to
induce a change in the offender’s behavior. That is, the aim for both is that she should choose
not to reoffend. In this respect, both reform and specific deterrence differ from incapacitation,
which is concerned with restricting rather than influencing offenders’ choices. But reform differs
from specific deterrence in terms of the ways in which each seeks to induce different choices.
Punishment aimed at specific deterrence provides prudential reasons: we impose onerous
treatment on an offender in hopes that her aversion to undergoing such treatment again will
convince her not to reoffend. Punishment with the aim of offender reform, by contrast, aims to
reshape offenders’ moral motives and dispositions.
d. Sentencing
Each of these aims—deterrence, incapacitation, and reform—will have distinct implications with
respect to sentencing. Punishment aimed at reducing crime through deterrence would in
general need to be severe enough to provide members of the public with a significant incentive
not to offend, or to provide offenders with an incentive not to reoffend. Also, as Bentham
explained, the severity of sentences should reflect the relative seriousness of the crimes
punished (Bentham, 1789: 168). More serious crimes should receive more severe punishments
than do less serious crimes, so that prospective offenders, if they are going to commit one crime
or the other, will have an incentive to choose the less serious crime.
For punishment aimed at reducing crime through incapacitation, sentences should be restrictive
enough that dangerous offenders will be unable to victimize others (so, for instance, prison
appears generally preferable to fines as a form of incapacitative punishment). In terms of
duration, incapacitative sentences should last as long as the offender poses a genuine threat.
Similarly, sentences aimed at reducing crime through offender reform should be tailored, in
terms of the form, severity, and duration of punishment, in whatever ways are determined to be
most conducive to this aim.
Finally, insofar as punishment itself is considered to be, in Bentham’s words, an “evil,” the
consequentialist is committed to the view that sentences should be no more severe than is
necessary to accomplish their aim. Thus whether she endorses deterrence, incapacitation,
reform, or some other aim (or a combination of these), the consequentialist should also endorse
a parsimony constraint on sentence severity (Tonry, 2011). After all, to impose sentences that
are more severe than is necessary to accomplish punishment’s aim(s) would appear to be an
infliction of gratuitous suffering—and so, from a consequentialist perspective, unjustified.
e. Objections and Responses
Typical consequentialist accounts of punishment contend that the practice is justified because it
produces, on balance, positive consequences by helping to reduce crime, either through
deterrence, incapacitation, or offender reform. Critics have objected to such consequentialist
accounts on a number of grounds.
First, some have objected to deterrence accounts on grounds that punishment does not actually
deter potential offenders. A key worry is that often (perhaps typically) those who commit crimes
act impulsively or irrationally, rather than as efficient calculators of expected utility, and so they
are not responsive to the threat of punishment. The question of whether punishment deters is
an empirical one, and criminological studies on this question have come to different
conclusions. In general, evidence seems to indicate that punishment does have some deterrent
effect, but that the certainty of apprehension plays a greater deterrent role than does the
severity of punishment (Nagin, 2013).
A similar line of objection has been raised against reform-based accounts of punishment.
Criminological research in the 1970s led many scholars and practitioners to conclude that
punishment did not, indeed could not, promote offender reform (the mantra “nothing works” was
for many years ubiquitous in these discussions). More recent criminological work, however, has
generated somewhat more optimism about the prospects for offender reform (Cullen, 2013).
Whereas critics have questioned whether punishment deters or facilitates offender reform, there
is little doubt that punishment—especially incarceration—incapacitates (prisoners may still have
opportunities to commit crimes, but their opportunities are at least significantly limited.) Critics
have raised questions, however, about the link between incapacitation and crime reduction. For
punishment to be justified on incapacitative grounds, after all, it would need to be the case not
only that punishment in fact incapacitates, but that in so doing it helps to reduce crime. At least
in some cases, there is reason to doubt whether the link between incapacitation and crime
reduction holds. Most notably, locking up drug dealers or gang members does not appear to
decrease drug- or gang-related crimes, because the incapacitated person is quickly and easily
replaced by someone else (Tonry, 2006: 31-32).
Even if we accept, for argument’s sake, that punishment contributes to crime reduction, it still
may not be justified on consequentialist grounds if it also generates costs that outweigh its
benefits. The costs of punishment are not limited to the suffering or other burdens inflicted on
offenders, although these burdens do matter from a consequentialist perspective. Scholars have
also highlighted burdens associated with certain forms of punishment—in particular,
incarceration—for offenders’ families and communities (Mauer and Chesney-Lind, 2002). These
costs matter in consequentialist calculations. In addition, we must consider the financial costs of
maintaining an institution of criminal punishment. In 2012, the Vera Institute of Justice released
a study of 40 U.S. states that found that the total taxpayer cost of prisons in these states was
$39 billion. Thus defenders of punishment on consequentialist grounds must show not only that
punishment is beneficial, but also that its benefits are significant enough to outweigh its costs to
offenders and to society generally.
Furthermore, even if punishment’s benefits outweigh its costs, consequentialists must make the
case that these benefits cannot be achieved through some other, less burdensome response to
crime. If there are alternatives to punishment that are equally effective in reducing crime but are
less costly overall, then from a consequentialist perspective, these alternatives would be
preferable (Boonin, 2008: 53, 264-67).
Suppose, however, that the benefits of punishment outweigh its harms and also that there are
no alternatives to punishment that generate, on balance, better overall consequences. In this
case, punishment would be justified from a consequentialist perspective. Many theorists,
however, do not endorse consequentialism. Indeed, the most prominent philosophical
objections to consequentialist accounts of punishment take aim specifically at supposed
deficiencies of consequentialism itself.
Perhaps the most common objection to consequentialist accounts is that they are unable to
provide principled grounds for ruling out punishment of the innocent. If there were ever a
situation in which punishing an innocent person would promote the best consequences, then
consequentialism appears committed to doing so. H. J. McCloskey imagines a case in which, in
the wake of a heinous crime, a small-town sheriff must decide whether to frame and punish a
person whom the townspeople believe to be guilty but the sheriff knows is innocent if doing so is
the only way to prevent rioting by the townspeople (McCloskey, 1957: 468-69). If punishing the
innocent person defuses the residents’ hostilities and prevents the riots—and thereby produces
better overall consequences than continuing to search for the actual criminal—then it appears
that the consequentialist is committed to punishing the innocent person. But knowingly
punishing an innocent person strikes most of us as deeply unjust.
Consequentialists have responded to this objection in various ways. Some contend that what
McCloskey describes is not actually punishment, because punishment, by definition, is a
response to those guilty of crimes (or at least believed to be guilty, whereas in McCloskey’s
example, the sheriff knows the person to be innocent). H. L. A. Hart refers to this response as
the “definitional stop” and he suggests it is unhelpful because it seeks to define away the
interesting normative questions. Setting terminology aside, the relevant questions are whether
and why it is permissible to impose intended, condemnatory burdens on those (believed to be)
guilty of crimes. The consequentialist’s response is that doing so produces the best
consequences, but then it seems that the consequentialist should be committed to imposing
such burdens on those not (believed to be) guilty of crimes when doing so produces the best
consequences. Such a practice would strike many as morally wrong, however. Thus the
objection arises for consequentialists regardless of definitions.
Others have responded to the objection that consequentialism would allow for punishing the
innocent by suggesting that scenarios such as McCloskey suggests are so far-fetched that they
are unlikely to occur in the real world. In actual cases, punishing the innocent will rarely, if ever,
produce the best consequences. For instance, some contend that the sheriff in the example
would likely be found out, and as a result the public would lose its trust in law enforcement
officials; the long-term consequences, therefore, would be worse than if the sheriff had not
punished the innocent person. As critics have pointed out, however, this response only shows
that punishing the innocent will usually be ruled out by consequentialism. There might still be
cases, albeit rare, in which punishing the innocent would generate the best consequences
(maybe the sheriff is adept at covering up his act). At best, then, consequentialism seems only
able to ground a contingent prohibition on punishing the innocent. Some consequentialists have
accepted this implication, albeit reluctantly (see Smart, 1973: 69-73).
A similar objection to consequentialist accounts is that they cannot provide a principled basis for
the widely held intuition that punishment should be no more severe than an offender deserves
(where desert is the product of the seriousness of the offense and the offender’s culpability). On
this view, it is morally wrong to subject those guilty of relatively minor crimes to harsh
punishment; such punishment would be excessive. For consequentialist accounts, though, it
appears that excessively harsh sentences would be permitted (indeed, required) if they
produced the best overall consequences.
Jeremy Bentham contended that consequentialism does have the resources to ground relative
proportionality in sentencing—that is, lesser offenses should receive less severe sentences than
more serious offenses receive. His reasoning was that if sentences for minor offenses were as
harsh as for more serious offenses, potential offenders would have no incentive to commit the
lesser offense rather than the more serious one (Bentham, 1789: 168). If Bentham is right, then
there is a consequentialist basis for punishing shoplifters, for instance, less harshly than armed
robbers. But this does not rule out punishing shoplifters harshly (more harshly than most of us
would think justified) and punishing armed robbers even more harshly; again, a consequentialist
would seem committed to such a sentencing scheme if it promoted the best overall
consequences.
Defenders of consequentialist sentencing have another response available, namely that
excessively harsh sentences do not, in practice, produce the best consequences. For instance,
criminological research suggests a) that stiffer sentences do not produce significant deterrent
effects (it is primarily the certainty of punishment rather than its severity that deters); b) that
extremely long prison terms are not justified on incapacitative grounds (for one reason, most
offenders “age out” of criminal behavior anyway by their 30s or 40s); and c) that extremely
harsh sentences may, on balance, have criminogenic effects (that is, they may make people
more likely to reoffend). This sort of response, of course, makes the prohibition of
disproportionate punishment a contingent matter; in other words, if extremely harsh sentences
did help to reduce crime and this produced, on balance, the best overall consequences, then
consequentialism would appear to endorse such sentences. Critics thus charge that
consequentialist accounts are unappealing insofar as they are unable to ground more than a
contingent prohibition on disproportionately harsh punishment.
Even if we prohibit punishment of the innocent or disproportionate punishment of the guilty, a
third, Kantian objection holds that consequentialist punishment is not properly responsive to the
person being punished. According to this objection, to punish offenders as a means to securing
some valuable social end (namely, crime reduction) is to use them as mere means, rather than
respecting them as ends in themselves (Kant, 1797: 473; Murphy, 1973).
In response to this objection, some scholars have contended that although consequentialists
regard punishment as a means to an end, punishment does not treat offenders as mere means
to this end. If we limit punishment to those who have been found guilty of crimes, then this
treatment is arguably responsive to their choices and does not use them as mere means. Kant
himself suggested that as long as we reserve punishment only for those found guilty of crimes,
then it is permissible to punish with an eye toward potential benefits (Kant, 1797: 473).
A more recent objection to consequentialist systems of punishment, developed by R. A. Duff
(1986, 2001), charges that consequentialist systems of punishment, with their focus on crime
reduction, treat offenders as dangerous “outsiders”—as the “they” whom “we,” the law-abiding
members of society, must threaten, incapacitate, or remold to ensure our safety. Such a
conception of the criminal law is inappropriately exclusionary, Duff claims. The criminal law, and
the institution of punishment, in a liberal polity should treat offenders inclusively, as (still)
members of the community who despite having violated its values could, and should,
nevertheless (re)commit to these values.
In response, one might object that systems of punishment aimed at crime reduction need not be
exclusionary in the way Duff suggests. In particular, punishment that aims to deter crime might
be said to treat all community members equally, namely as potential offenders. For those who
have not committed crimes, deterrent punishment regards them as potential offenders and aims
to provide an incentive not to offend (that is, general deterrence). For those who have
committed crimes, deterrent punishment similarly regards them as potential (re)offenders and
aims to provide an incentive not to (re)offend (that is, specific deterrence). In this way,
punishment with a deterrent aim might be said to speak to all community members in the same
terms, and thus not to be objectionably exclusionary.
4. Retributivist Accounts
As we have seen, consequentialist accounts of punishment are essentially forward-looking—
punishment is said to be justified in virtue of the consequences it helps to produce. A different
sort of account regards punishment as justified not because of what it brings about, but instead
because it is an intrinsically appropriate response to crime. Accounts of the second sort have
traditionally been described as retributivist. In general, we can say that retributivism views
punishment as justified because it is deserved, although particular accounts differ about what
exactly this means.
Theorists have distinguished two varieties of retributivism: positive retributivism and negative
retributivism. Positive retributivism is typically characterized as the view that an offender’s
desert provides a positive justifying reason for punishment; in other words, the state should
punish those who are found guilty of criminal wrongdoing because they deserve it. Negative
retributivism, by contrast, provides a constraint on punishment: punishment is justified only of
those who deserve it. Because negative retributivism provides only a constraint on punishment,
not a positive reason to punish, the negative retributive constraint has featured prominently in
attempts at mixed accounts of punishment; such accounts allow punishment for
consequentialist aims as long as the punishment is only of those who deserve it. On the other
hand, because negative retributivism does not provide a positive justifying reason to punish,
some scholars argue that it does not properly count as retributivism at all.
The distinction between retributivism and consequentialism is not always a neat one. Notice that
one might endorse the claim that punishment is a deserved response to wrongdoing and then
further assert that it is a valuable state of affairs when wrongdoers get the punishment they
deserve—a state of affairs that therefore should be promoted. On this type of account,
retribution itself essentially becomes the consequentialist aim of punishment (Moore, 1903;
Zaibert, 2006). Nevertheless, in keeping with general practice, this article will treat retributivism
as distinct from, and in competition with, consequentialist accounts.
a. Deserved Suffering
One common version of retributivism contends simply that wrongdoers deserve to suffer in
proportion to their wrongdoing. Often this claim is made by way of appeal to intuitions about
particular, usually heinous crimes: surely the unrepentant war criminal, for example, who has
tortured and murdered many innocent people, deserves to suffer for what he has done.
Proponents argue that retributivism is justified because it best accounts for our intuitions about
particular cases such as these (Moore, 1987; Kleinig, 1973).
Justifying retributivism requires more, of course, than merely appealing to common intuitions
about such cases. After all, even if many (even most) people do feel, in hearing reports of
terrible crimes, that the perpetrators deserve to suffer, not everyone feels this way. And even
those who do have such intuitions may not feel entirely comfortable with them. What we would
like to know is whether the intuitions themselves are justified, or whether, for instance, they
amount to an unhealthy desire for vengeance. Critics contend that those who rely on our
intuitions about particular cases as evidence that retributivism is justified fail to provide the
needed explanation of why the intuitions are justified.
There are other questions for such a view: does any sort of moral wrongdoing deserve to be
met with suffering, or only some cases of wrongdoing? Which ones? And why is meting out
deserved suffering for wrongdoing properly the concern of the state?
b. Fair Play
Another prominent type of retributivist account begins with a conception of society as a
cooperative venture in which each member benefits when there is general compliance with the
rules governing the venture. Because each of us benefits when everyone else plays by the
rules, fairness dictates that we each have an obligation to reciprocate by playing by the rules,
too. A criminal, like other members of society, benefits from general compliance with laws, but
she fails to reciprocate by complying with the laws herself. She essentially becomes a free rider,
because she counts on others to play by the rules that she violates. By failing to restrain herself
appropriately, she gains an unfair advantage over others in society. The justification of
punishment is that it corrects this unfair advantage by inflicting burdens on the offender
proportionate to the benefit she gained by committing her crime (Morris, 1968).
On the fair play view, then, punishment is justified as a deserved response to an unfair
advantage taken against members of society generally. Such an account offers a relatively
straightforward answer to the question of why punishment is the state’s business. The state has
an interest in assuring those who accept the burdens of compliance with the law that they will
not be at a disadvantage to those who would free-ride on the system.
Critics of the fair play view have argued that it provides a counterintuitive conception of the
crime to which punishment responds. It seems strange, for instance, to think of the wrong
perpetrated by, say, a rapist as a sort of free-riding wrong against society in general, rather than
an egregious wrong perpetrated against the victim in particular. In response to this charge,
Dagger (1993) argues that crimes may be wrong in both senses: they may wrong particular
victims in various ways, but they are also in every case wrongs in the sense of free riding on
society generally.

c. Censure
Another influential version of retributivism begins with the claim, discussed earlier, that one of
punishment’s distinctive features is that it communicates censure, or condemnation, of the
offender for her offense. This retributivist account, developed most notably by R. A. Duff (1986,
2001), takes the censuring feature as the key to establishing punishment’s moral permissibility.
Offenders deserve to be censured for what they have done, and punishment is justified because
it delivers this censuring message.
Duff understands crimes as public wrongs, as violations of important public values. It follows on
this account that the state is the appropriate agent of punishment; the state properly calls
offenders to account for their violations of the political community’s shared values.
Censuring involves, in part, urging an offender to think about the wrong she has done, to repent
and (re)commit herself to the values that she has violated. Thus it follows from censure
accounts such as Duff’s that offender self-reform is an aim of punishment. But notice the crucial
distinction between this sort of account and the variety of consequentialist account that aims at
offender reform. Although offender reform is an aim of punishment on the censure account, it is
not a justifying aim. In other words, on the censure view, punishment is not justified insofar as it
tends to promote offender reform. Rather, punishment is justified because it communicates
deserved censure. Part of what it means to censure, however, is to urge wrongdoers to repent
and reform.
A common critique of the censure view asks why punishment—that is, the imposition of
intended burdens—is the proper way to censure wrongdoers. It seems that the polity could
communicate messages of censure to offenders without imposing intended burdens; for
example, it could issue a public proclamation condemning the crime and blaming the offender.
Why, then, is the hard treatment characteristic of punishment an appropriate vehicle for
conveying such messages? One type of response, offered by Duff and others (see also Falls,
1987), holds that hard treatment is needed to convey adequately the polity’s condemnation of
crimes. Nonpunitive censure—blaming without imposing intended hard treatment—would fail to
communicate the seriousness of the wrongdoing.
Also, on Duff’s account, hard treatment can function to induce in offenders the sort of moral
reflection that may lead to repentance, reform, and reconciliation (with their victims and the
community more generally). Some have objected, however, that such an account implies too
intrusive a role for the state. It is not a proper function of the state, critics charge, to seek to
induce repentance and moral reform in offenders. Thus even some scholars who agree that
punishment is justified as a form of censure nevertheless disagree about the role of the hard
treatment element. For Andrew von Hirsch (1993), for instance, the intended burdens
characteristic of punishment act as a sort of prudential supplement: punishment, as censure,
serves to remind offenders (and community members) of the moral reasons to comply with the
law. Punishment, as hard treatment, also provides a prudential threat as a sort of supplement
for those of us for whom the moral message is not sufficient. One worry with such an account,
however, is whether the prudential threat will tend to drown out the moral message.
d. Other Versions
Alternative versions of retributivism have been offered. Some scholars, for instance, argue that
those who commit crimes violate the trust of their fellow community members. Trust, on this
account, is an essential feature of a healthy community. Offenders undermine this trust when
they victimize others. In such cases, punishment is a deserved response to such violations and
an appropriate way to help maintain (or restore) the conditions of trust among community
members (see Dimock, 1997). Advocates of this trust-based variety of retributivism must explain
which violations of trust rise to the level that warrants criminalization, so that violators should be
subject to punishment. Also, we might question whether such accounts are purely retributivist
after all: if punishment is justified at least in part as a means of helping to maintain conditions of
trust in a community, then this appears to be a consequentialist rationale. On the other hand, if
punishment is justified not for what it helps to bring about but rather as an intrinsically
appropriate (because deserved) response to violations of trust, then we need an explanation of
why such violations deserve punishment, perhaps as opposed to some other form of response.
Another form of retributivism holds that offenders incur a moral debt to their victims, and so they
deserve punishment as a way to repay this debt (McDermott, 2001). This moral debt is distinct
from the material debt that an offender may incur. In other words, a person who robs from
another person incurs a material debt equal to the value of whatever was stolen, but she also
incurs a moral debt for violating the victim’s rights. The offender takes not only a material good
from the victim but also a moral good. Repayment of material goods does not settle this moral
debt, and so punishment is needed to fill this role. As Daniel McDermott characterizes it,
punishment serves to deny the ill-gotten moral good to the perpetrator  (McDermott, 2001: 424).
Such an account raises a host of questions: what precisely is the nature of the moral good that
has been taken from the victim? How can a moral good be taken away from someone? In what
sense (if at all) has the perpetrator gained this good? How does punishment deny this good to
the offender, and how does this thereby make things right for the victim?
e. Sentencing
Because retributivism claims that punishment is justified as a deserved response to wrongdoing,
retributivist accounts should provide some guidance about what sentences are deserved in
particular cases. Typically, retributivists hold that sentences should be no more severe than is
deserved. This negative retributivist constraint on sentencing corresponds with the negative
retributivist constraint on punishment itself (namely, that punishment is justified only of those
who deserve it). By contrast, positive retributivism holds that offenders’ sentences should be no
less severe than they deserve. Some scholars find this positive retributivism unappealing
because it seems to preclude the state from taking into account mercy or other considerations
that might count in favor of lenient sentences. In other words, some are more comfortable with
retributivism’s setting a ceiling but not a floor on sentence severity. One question, though, is
whether (and if so, why) retributivists are justified in endorsing the negative retributivist
constraint on sentencing without also endorsing the positive retributivist constraint.
Retributivists often discuss sentencing in terms of proportionality, where a proportionate
sentence is understood as one that is deserved (or at least, on some accounts, not clearly
undeserved). Sentences may be proportionate in two senses: first, they may be proportionate
(or disproportionate) relative to each other. This sense of proportionality, called ordinal
proportionality, holds that similarly serious offenses should receive similarly severe punishments
(like cases should be treated alike); that more serious offenses should be punished more
harshly than less serious offenses (murder should be punished more harshly than shoplifting,
for instance); and that differences in sentence severity should reflect differences in relative
seriousness of offenses (because murder is much more serious than shoplifting, murder should
carry a much more severe sentence).
Some scholars have challenged the notion of ordinal proportionality constraints in sentencing,
both because offenders cannot neatly be distinguished into a manageable number of desert-
based groups—Michael Tonry calls this the “illusion of ‘like-situated offenders’” (Tonry, 2011)—
and because individual offenders’ subjective experiences of the same sentence may vary
greatly. For example, someone who is young, physically imposing, or has no children may have
a much different experience of a 10-year prison term from someone who is much older,
physically frail, or must leave behind her children to serve the sentence. Considerations such as
these do not in themselves demonstrate that the tenets of ordinal proportionality are false (that
like cases should not be treated alike, for instance, or that more serious violations should not
receive harsher sentences). Rather, these considerations raise challenges to our ability in
practice to implement a just sentencing scheme that reflects ordinal proportionality.
Even if sentences can be devised that satisfy ordinal proportionality, however—in other words,
even if a sentencing scheme itself is internally proportionate—particular sentences may fail to
be proportionate if the entire sentencing scheme is too severe (or lenient). For instance, a
sentencing scheme in which even the least offenses were punished with prison terms would
appear disproportionate even if sentences in the scheme were proportionate relative to each
other. Thus theorists note a second sense of proportionality: cardinal, or nonrelative,
proportionality. Cardinal proportionality considers whether sentences are commensurate with
the crimes they punish. A prison term for jaywalking would appear to violate cardinal
proportionality, because such a sentence strikes us as too severe given the offense, even if this
sentence were proportionate with other sentences in a sentencing scheme—that is, even if it
satisfied ordinal proportionality. Thus cardinal proportionality concerns not the relation of
sentences to one another, but instead the relation of a sentence to the crime to which it is a
response. Put another way, even if an entire sentencing scheme is internally (ordinally)
proportionate, we need guidance in how to anchor the sentencing scheme to the crimes
themselves so that offenders in particular cases receive the sentences they deserve.
In addition to addressing questions of deserved sentence severity, we would like retributivism to
provide some guidance about how to determine what mode, or form, of punishment is
appropriate in response to a given crime. Is prison time, community service, capital punishment,
probation, or something else the deserved form of response, and why?
The implications of retributivism for sentencing will depend on the specific account’s explanation
of why punishment is said to be the deserved response to offending.
Those who appeal to intuitions that the guilty deserve to suffer, for instance, can similarly appeal
to intuitions that those who are guilty of more serious offenses deserve to suffer more than
those who are guilty of less serious offenses. As discussed, however, we would like to know
how much punishment is deserved in particular cases in nonrelative terms, and also what form
the suffering should take. One well-known account of sentencing is provided by lex talionis (that
is, an eye for an eye, a tooth for a tooth). Immanuel Kant famously endorsed this principle:
“Accordingly, whatever undeserved evil you inflict upon another within the people, that you inflict
upon yourself” (Kant, 1797: 473). As critics have noted, though, not every crime appears to
have an obvious like-for-like response—what would lex talionis demand for the childless
kidnapper, for instance (Shafer-Landau, 2000: 193)? And even when a like-for-like response is
clearly indicated, it will not always be palatable (torturing the torturer, for example).
We might assert instead that the sentence and the offense need not be alike in kind, but that the
sentence should impose an amount of suffering equal to the harm done by the offender. Still,
questions arise of how to make interpersonal comparisons of suffering. And again, for the most
heinous crimes, a principle of inflicting equal amounts of suffering may recommend sentences
that we would find troubling.
The fair play view holds that punishment functions to remove an unfair advantage gained by an
offender relative to members of society generally. Critics of this view often object, however, that
it provides insufficient or counterintuitive guidance about sentencing. Put simply, there does not
seem to be any advantage that an offender gains, in proportion with the seriousness of her
crime, relative to community members generally. On one version of the view, the offender gains
freedom from the burden of self-constraint that others accept in complying with the particular
law that the offender violates. If so, then the sentence severity should be proportionate to the
burden others feel in complying with that law. But compliance with laws is often not a burden for
most citizens. Indeed, it is often less burdensome to comply with prohibitions on serious
offenses (murder, assault, and so forth) than it is to comply with prohibitions on lesser crimes
(tax evasion, jaywalking, and so forth), given that we are more often tempted to commit the
lesser crimes. But if the unfair advantage that punishment aims to remove is freedom from the
burden of self-constraint, and if self-constraint is often more burdensome with lesser crimes,
then these less serious crimes will often appear to merit relatively more severe punishments.
This is a violation of ordinal proportionality.
Similar problems arise for other versions of the fair play view. Suppose, for instance, that the
unfair advantage a criminal gains is not freedom from the burden of complying with the
particular law she violates, but rather freedom from complying with the rule of law in general.
This general compliance, Richard Dagger writes, is a genuine burden: “there are times for
almost all of us when we would like to have the best of both worlds—that is, the freedom we
enjoy under the rule of law plus freedom from the burden of obeying laws” (Dagger, 1993: 483).
Critics have objected, however, that on this conception of the unfair advantage all offenses
become, for the purposes of punishment, the same offense. Both the murderer’s and the tax
cheat’s unfair advantage is freedom from compliance with the rule of law generally. If the unfair
advantage is the same, however, then removing the advantage would seem to require equal
sentences. Again, such sentencing appears to violate ordinal proportionality.
For the censure view, questions arise about what form of punishment and what severity will
communicate the deserved message of condemnation in particular cases. On such a view, the
principles of ordinal proportionality appear to follow straightforwardly: censure should reflect the
seriousness of the wrongdoing, and so if punishment is the vehicle of communicating censure,
then sentences should reflect the appropriate relative degree of censure for each case.
The censure view should provide guidance not only about how severely to punish crimes
relative to each other, but also how severely to punish in absolute terms, and also the
appropriate mode of punishment. To say that manslaughter should be censured more severely
than theft, for instance, does not actually tell us how severely to censure manslaughter or theft,
or with what form of punishment. Again, the challenge is in determining how to anchor the
sentencing scale to actual offenses. Should the least serious offenses receive censure in the
form of a small fine, a day in jail, or a year in jail? Should the most serious offenses receive
capital punishment, life imprisonment, or some less severe sentence?
Similar questions arise for accounts that characterize punishment as a deserved response to
violations of trust, or as a deserved response to the incurrence of a moral debt. What form and
severity of punishment is appropriate to maintain conditions of community trust in response to
attempted kidnapping, or the theft of a valuable piece of art? How severe must a sentence be to
resolve the moral debt that is incurred when one impersonates a police officer, or cheats on her
taxes?
Indeed, questions about fixing deserved sentences in response to particular offenses arise for
retributivist accounts generally. Critics have charged that retributivism is unable to provide
adequate, nonarbitrary guidance about either the deserved severity or deserved form of
punishment in particular cases (see Shafer-Landau, 2000).
Retributivists are, of course, aware of such objections and have sought to meet them in various
ways. Nonetheless, questions about proportionate sentencing continue to be a central challenge
for retributivist accounts.
5. Alternative Accounts
In part as a response to objections commonly raised against consequentialist or retributivist
views, a number of theorists have sought to develop alternative accounts of punishment.
a. Rights Forfeiture
At the outset, we said that the central question of punishment’s permissibility is why (if at all) it is
permissible to treat those who have committed criminal offenses in ways that typically would be
impermissible. For some theorists, this question is best cast in terms of rights: why are the sorts
of intended burdens characteristic of punishment, which would constitute rights violations if
imposed on those who have not been convicted of criminal wrongdoing, not violations of the
rights of those punished?
One way in which punishment would not violate the rights of offenders is if, in committing the
crime for which they are convicted, they forfeit the relevant right(s). Because offenders forfeit
their right not to be punished, the state has no corresponding duty not to punish them. As W. D.
Ross writes, “the offender, by violating the life or liberty or property of another, has lost his own
right to have his life, liberty, or property respected, so that the state has no prima facie duty to
spare him, as it has a prima facie duty to spare the innocent” (1930: 60-61).
Notice that the forfeiture view itself does not imply any particular positive justification of
punishment; it merely purports to explain why punishing offenders does not violate their rights.
This is consistent with maintaining that the positive justification of punishment is that it helps
reduce crime, or conversely, that wrongdoers deserve to be punished. Thus the forfeiture view
does not provide a complete account of the justification of punishment. Proponents, however,
take this feature to be a virtue rather than a weakness of the view.
The forfeiture claim raises a number of key questions: first, why does someone who violates the
law thereby forfeit the right not to be punished? For those who are gripped by the dilemma of
why punishing offenders does not violate their rights, the mere answer that offenders forfeit their
rights, without some deeper account of what this forfeiture amounts to, may seem inadequate.
Thus some theorists attempt to ground their forfeiture claim in a more comprehensive moral or
political theory (see, for instance, Morris, 1991).
Second, what is the nature of the rights forfeited? Do offenders forfeit the same rights they
violate? If so, then this raises some of the same challenges as we saw with certain forms of
retributivism: what right is forfeited by a childless kidnapper, for example? Alternatively, is the
forfeited right simply the right not to be punished? If every offender forfeits this same, general
right, then on what basis can we distinguish what sentence is permissible for different
offenders? For example, if the burglar forfeits the same right as the murderer, then what
prevents us from imposing the same punishment in each case (could two offenders forfeit the
same right to different degrees, as some have suggested)?
Third, how should we determine the duration of the forfeiture? Fourth, if an offender forfeits her
right against punishment, then why does the state maintain an exclusive right to punish? Why
are other individuals not permitted to punish?
b. Consent
Rights forfeiture theorists argue that punishment does not violate offenders’ rights because
offenders forfeit the relevant rights. Another way that punishment might be said not to violate
offenders’ rights is if offenders waive their rights. This is the central claim of the consent view.
Defended most notably by C. S. Nino (1983), the consent view holds that when a person
voluntarily commits a crime while knowing the consequences of doing so, she effectively
consents to these consequences. In doing so, she waives her right not to be subject to
punishment. This is not to say that she explicitly consents to being punished, but rather that by
her voluntary action she tacitly consents to be subject to what she knows are the
consequences.
Like the forfeiture view, the consent view does not supply a positive justification for punishment.
To say that a person consents to some treatment does not by itself provide us with a reason to
treat her that way. So the consent view, like the forfeiture view, is compatible with
consequentialist aims or with the claim that punishment is a deserved response to offending.
One challenge for the consent view is that it does not seem to justify punishment of offenders
who do not know that their acts are subject to punishment. For someone to have consented to
be subject to certain consequences of an act, she must know of these consequences. What’s
more, even if an offender knows she is committing a punishable act, she might not know the
extent of the punishment to which she is subject. If so, then it is not clear how she can be said
to consent to her punishment. It is not clear, for example, that a robber who knows that robbery
is a punishable offense but does not realize the severity of the punishment to which she will be
subject thereby consents to her sentence.
By contrast, other critics have charged that the consent view cannot rule out sentences that
most of us would find excessive. This is because a person who voluntarily commits an action
with knowledge of the legal consequences, whatever these consequences happen to be, has
consented to be subject to the consequences. As Larry Alexander has put it: “If the law imposes
capital punishment for overparking, then one who voluntarily overparks ‘consents’ to be
executed” (Alexander, 1986).
Another difficulty for the consent view is that tacit consent typically can be overridden by explicit
denials of consent. Thus it would seem to follow that one who tacitly consents to be subject to
punishment could override this tacit consent by explicitly denying that she consents. But of
course, we do not think that an offender should be able to avoid punishment by explicitly
refusing to consent to it (Boonin, 2008).
c. Self-Defense
Another proposed justification of punishment conceives of punishment as a form of societal self-
defense. First consider self-defense in the interpersonal context: When an assailant attacks me,
he culpably creates a situation in which harm will occur: either harm to me if I do not effectively
defend myself or harm to him if I do. In such a circumstance, I am justified in acting so that the
harm falls on my attacker rather than on me. Similarly, when an offender creates a situation in
which either she or her victim will be harmed, the state is permitted to use force to ensure that
the harm falls on the perpetrator rather than on the victim (Montague, 1995).
So far, this view appears to justify state intervention only to stop ongoing crimes or ward off
impending crimes. How does this view justify punishment as a response to past crimes?
Advocates of the view claim that the state is not only justified in intervening to stop actual
offenses; it is also permitted to threaten the use of force to deter such crimes. For the threat to
be credible and thus effective as a deterrent, however, the state will need to follow through on
the threat in cases in which offenders are not deterred. Thus punishment of offenders is
permissible.
Notice that although the self-defense account views punishment as a deterrent threat, it is not a
pure consequentialist account. Crucial to punishment’s permissibility on the self-defense view is
the claim that an offender has culpably created the circumstance in which harm will fall either on
the perpetrator or the victim. This backward-looking element is missing from pure
consequentialist accounts that cite punishment’s deterrent effects in defending the practice.
Critics object that the analogy between self-defense and punishment breaks down in a number
of respects. First, many self-defense theorists argue that the logic of defensive force permits the
use of such force even against “innocent” threats. But we do not typically believe that, by
analogy, punishment of innocent people is permitted, even if such punishment helped to
maintain the credibility of a deterrent threat. Second, the degree of force that is permitted to stop
an actual attack may far exceed what we intuitively believe would be permitted as punishment of
an offense that has already been committed.
Third, it is one thing to follow through on a threat in order to deter the person who has just
offended from offending again. It is another thing—and one might argue, more difficult to justify
—to punish one person in order to maintain a credible deterrent threat against the public
generally. If we believe the primary deterrent effect of punishment is as a general deterrent
(rather than as a specific deterrent), then the analogy with typical accounts of self-defense
seems strained. It would be as if, to deter the oncoming assailant from following through with his
attack, I grab someone nearby (who has previously attacked me) and inflict the same degree of
harm that I would aim to inflict on the assailant to defend myself. This might, of course, be
permissible if my previous attacker had thereby acquired a duty to protect me from future harm
by allowing himself to be punished as a means of maintaining a credible deterrent threat
(Tadros, 2011).
d. Moral Education
The moral education view shares certain features of consequentialist accounts as well as
retributivist accounts. On this view, punishment is justified as a means of teaching a moral
lesson to those who commit crimes (and perhaps to community members more generally, as
well).
Like standard consequentialist accounts, the education view acknowledges that part of the story
of punishment’s justification involves its importance in reducing crime. But the education theorist
also takes seriously the worry expressed by many retributivists that aiming to shape people’s
behavior merely by issuing threats is, in G. W. F. Hegel’s words, “much the same as when one
raises a cane against a dog; a man is not treated in accordance with his dignity and honour, but
as a dog” (Hegel, 1821: 36). By contrast, a central feature of the moral education view is that
those who commit crimes are moral agents, capable of reflecting on and responding to moral
reasons. Thus moral education theorists view punishment not as a means of conditioning
people to behave in certain ways, but rather of “teaching the wrongdoer that the action she did
(or wants to do) is forbidden because it is morally wrong and should not be done for that reason”
(Hampton, 1984).
Another way to express this difference between the education view and standard
consequentialist views is that consequentialist views focus entirely on whether punishment
promotes some goal. The education view, however, holds that only certain means are
appropriate for pursuing this goal: namely, punishment aims to engage with the offender as a
moral agent, to teach her that (and why) her behavior was morally wrong, so that she will reform
herself. Thus we can even distinguish the education view from consequentialist accounts that
aim at crime reduction through offender reform. For such consequentialist accounts,
punishment’s justification is solely a matter of whether, on balance, it promotes these ends. The
education view sets offender reform as an end, but it also grounds certain constraints on how
we may appropriately pursue this end.
The education view, like the retributive censure view discussed earlier, views punishment as a
communicative enterprise. Punishment communicates to offenders (indeed, to the community
more generally) that what they have done is wrong. Thus on both accounts, punishment aims to
encourage offenders to reform themselves. But whereas the retributive censure theorists view
the message conveyed by punishment as justified insofar as it is deserved, education theorists
contend that punishment is justified in virtue of what it aims to accomplish. In this respect, the
education view sits more comfortably with standard consequentialist accounts than with
retributivist views.
The education view conceives of punishment as aiming to confer a benefit on the offender, the
benefit of moral education. This is not to say that punishment is not burdensome; as we have
seen, its burdensomeness is an essential feature of punishment. But the burdens of punishment
are intended to be ultimately beneficial. Thus education theorists roundly reject accounts
according to which it is permissible (or even required) to inflict harm on those guilty of
wrongdoing. Instead, education theorists hold, following Plato, that we should never do harm to
anyone, even those who have wronged us.
Critics have raised various objections to the moral education view. Some are skeptical about
whether punishment is the most effective means of moral education. Others point out that many
(perhaps most) offenders are not apparently in need of moral education: many offenders realize
they are doing something wrong but do so anyway. Even those who do not realize this as they
are acting may recognize it soon afterward. Thus they do not seem to need moral education.
Finally, some object that the education view is inappropriately paternalistic. According to the
education view, after all, the state is justified in coercively restricting offenders’ liberties as a
means to conferring a benefit (moral education) on them. Many liberal theorists are
uncomfortable, however, with the idea that the state may coerce a person for her own benefit.
e. Hybrid Approaches
Finally, some theorists have responded to seemingly intractable disputes between
consequentialists and retributivists by contending that the question of punishment’s
permissibility is not actually a single question at all. Instead, establishing punishment’s
permissibility involves answering a number of questions: questions about the aim of the
practice, about its limits, and so on. Once we distinguish different questions that bear on
punishment’s permissibility, we can then recognize that these questions may be answered by
appeal to different moral considerations. What emerges is a hybrid account of punishment’s
permissibility.
The most famous articulation of a hybrid view comes from H. L. A. Hart (1968), although there
have been numerous attempts to develop such accounts both before and after Hart. The
specifics of these accounts vary somewhat, but in general the point has been to distinguish the
question of punishment’s aim (Hart called this the “general justifying aim”) from the question of
how we must constrain our pursuit of that aim. The first question, about punishment’s aim, is
usually answered according to consequentialist considerations, whereas the second question,
about appropriate constraints, is typically answered by appeal to retributivist principles. In other
words, if we are asking what reason could justify society in maintaining a system of punishment,
the answer will appeal to punishment’s role in reducing crime, and thereby protecting the safety
and security of community members. But if we ask how we may punish in particular cases, the
answer will appeal to retributivist principles about proportionality and desert. Some have
distinguished these questions in terms of the proper (consequentialist) rationale of legislators in
criminalizing certain types of behaviors and the proper (retributivist) rationale of judges in
imposing sentences on those who violate the criminal laws.
Although such views are sometimes described as “two-question” or “two-level” views, with the
focus on consequentialist aims and retributivist constraints, there is no reason in principle why
we should distinguish only two questions. As we saw earlier, punishment actually raises a host
of specific normative questions, and so if we accept the general strategy of distinguishing
questions and answering them by appeal to different considerations, then there is no reason in
principle to stop with only a two-level hybrid theory. A hybrid view might offer distinct
considerations in answer to a variety of questions: what is the positive aim of punishment? Does
punishment violate offenders’ rights? How severely may we punish in particular cases? What
mode of punishment is permissible in particular cases? And so on.
Also, although hybrid theories typically follow the pattern of aims and constraints, so that
consequentialism provides the reason to have an institution of punishment and retributivism
provides constraints on how we punish, there is no reason in principle why this could not be
reversed. A hybrid theory might hold that suffering is an intrinsically appropriate (deserved)
response to wrongdoing, but then endorse as a constraint, for example, that such retributive
punishment should never tend to undermine offender reform.
Critics have charged hybrid accounts with being ad hoc and unstable. Although we can
distinguish different questions related to punishment’s permissibility, it is a mistake to think that
the answers to these questions are entirely independent of each other, so that we can answer
each by appeal to entirely distinct considerations. For example, if we accept the
consequentialist view that punishment’s general justifying aim is that it helps to deter crime, then
why would considerations of deterrence not also play a role (even a decisive role) in how
severely we punish in particular cases? Why should retributivist proportionality considerations
govern in sentencing if these conflict with the pursuit of crime reduction through deterrence?
Retributivists, for their part, often argue that hybrid theories such as Hart’s, on which
consequentialism supplies the justifying aim of punishment, relegate retributivism to a peripheral
role. Retributivists, after all, tend to regard consequentialism as providing inappropriate reasons
to punish. Characterizing retributivism’s role as providing constraints on the pursuit of
consequentialist aims is thus unsatisfying to many retributivists.
6. Abolitionism
Some scholars are unpersuaded by any of the standardly articulated justifications of
punishment. In fact, they conclude that punishment is morally unjustified, and thus that the
practice should be abolished. An obvious question for abolitionists, of course, is what (if
anything) should take the place of punishment. That is, how should society respond to those
who behave in ways (committing tax fraud, burglary, assault, and so on) that currently are
subject to punishment?
One option would be to endorse a model of treatment rather than punishment. On this model,
an offender is viewed as manifesting some form of disease or pathology, and the appropriate
response is thus to try to treat and cure the person rather than to punish her. Treatment differs
from punishment, first, because it need not be burdensome. At least in principle, treatment could
be pleasant. In practice, of course, treatment may often be burdensome—indeed, it may involve
many of the same sorts of restrictions and burdens as we find with punishment. But even
though courses of treatment may be burdensome, treatment does not typically convey the
condemnation that is characteristic of punishment. After all, we generally think of those who are
sick as warranting sympathy or concern, not condemnation.
Other options for abolitionists would be to endorse some model of restitutive or restorative,
rather than criminal, justice. We might require that offenders make restitution to their victims, as
defendants in civil lawsuits are often required to make restitution to plaintiffs (Boonin, 2008: 213-
75). Or offenders might engage with victims in a process of restorative justice, one in which both
offenders and victims play an active role, with aims of repairing the harms done and restoring
the relationships that have been damaged (Braithwaite, 1999). Neither the restitutive nor the
restorative models are centrally concerned with imposing intended, censuring burdens on
offenders.
Not surprisingly, these alternative accounts are themselves subject to various objections. Critics
of the treatment model, for instance, charge that it provides insufficient limits on what sort of
treatment of offenders is permissible. The aim of “curing” diseased individuals might warrant
quite severe treatment, both in scope and duration. Similarly, scholars have argued that the
treatment model fails properly to respect offenders, as it treats them merely as patients rather
than as moral agents who are responsible, and should be held responsible, for their actions
(Morris, 1968).
Critics of the restitutive and restorative models may point out that some crimes do not clearly
lend themselves to restitution or restoration: some crimes may seem so heinous that no victim
restitution or restoration of relationships is possible. Other crimes do not have clearly specifiable
victims. In addition, consequentialists may worry that practices of restitution or restoration may
be inadequate as means of crime reduction if, for example, they are less effective than
punishment at deterring potential offenders. Retributivists also may argue that something
important is lost when we respond to wrongdoing solely with restitutive or restorative practices.
Particularly for those who hold that an important function of punishment is to convey societal
censure, restitution or restoration may seem inadequate as responses to crime insofar as they
are not essentially concerned with censuring offenders. Alternatively, some retributivists argue
that the restorative ideals can best be served by a system of retributive punishment (Duff, 2001;
Bennett, 2008).
 A Father’s Pain, a Judge’s Duty, and a Justice Beyond Their Reach

(Source: Barry Siegel, A Father’s Pain, A Judge’s Duty, and a Justice Beyond their Reach, Los Angeles Times
(December 30, 2001). Available at: https://www.latimes.com/archives/la-xpm-2001-dec-30-mn-18995-story.html)

SILVER SUMMIT, Utah — He sat in his chambers, unprepared for this. “Just giving you a heads
up,” his court administrator was saying. “Paul Wayment hasn’t reported in yet. They can’t find
him.”
Judge Robert Hilder felt uneasy. Wayment was supposed to start his jail sentence this morning.
The 52-year-old judge walked slowly to his Summit County district courtroom. The trial
underway passed as a blur. More than once, clerks pulled him off the bench to give him updates
on Wayment. Each time, in his chambers, he stared out windows at the jail, hoping to see Paul
drive up. At the lunch break, he went into Park City to eat, alone with his thoughts.
He’d sentenced Wayment to jail even though the prosecutor didn’t want this distraught father to
serve time. Hilder felt he had to. Wayment’s negligence caused his young son’s death. There
must be consequences, the judge ruled.
Now there were--more than he had intended.
On his way back from lunch, Hilder punched off the car radio, wanting to avoid the news. As
always, his 6-year-old son’s drawings and broken Lego toys covered the floor of his Ford
Taurus. At the courthouse, he walked down a hallway that took him past the administrator’s
glass-walled office. She rose and waved him in. Concern, he saw, strained her face. He
approached her door, bracing himself.
Had he driven Wayment to suicide? Hilder believed it possible. Just as he believed it possible
that he’d caused his own father’s suicide, 20 years before.
Although it includes the Park City ski resorts, Summit County is less the province of people than
of rolling pastures and mountain forests. Only about 25,000 live in 1,849 square miles. Only one
judge--Hilder--hears criminal cases. Three lawyers comprise the county attorney’s criminal
division. Two private lawyers on a part-time retainer fill the public defender’s role. When they
heard of Gage Wayment’s death, all of them knew it would come to them. They knew they’d
soon have to make their own choices.
The first choice, though, had been Paul Wayment’s.
There he stood last year on a radiant October morning, high in a remote forest. Before him
spread the wild green abundance of Chalk Creek Basin, a rugged 8,000-foot-high hunting
ground where deer and elk and moose wander through dense stands of golden quaking aspens.
Behind him, strapped in a car seat in his red Dodge pickup, sat his son Gage, his inseparable
buddy, his most precious gift, his future hunting partner.

Paul Wayment felt more comfortable in these mountains than anywhere. At 38, he was an
uncomplicated man, raised in small Utah towns, instructed in the Mormon faith, captivated by
both hunting and the wilderness. When he worked, which wasn’t always, it was in construction
or on an assembly line. He found the inside of homes stifling. The same with any kind of social
gathering, unless they held it outdoors, made it a picnic. He was fine with silence. He could sit
for hours high on a ridge, watching the deer, studying the sky, searching for bald eagles. The
mountains gave him solace and sanctuary, the mountains made him whole.
So did Gage. There had been a brief, troubled marriage, then a divorce. Now, for the time
being, Paul had full custody. Gage was big for his age, a rambunctious 33-pound ball of energy
who looked closer to 4. Father and son did everything together. Camping and boating as often
as they could. Playing ball in the backyard, fixing things around the house, planting their
vegetable garden. They’d roll around their neighborhood, Paul pulling Gage in a wagon, giving
away their extra produce. They’d hike down to a vacant field, Gage on Paul’s shoulders, to see
the cows and geese. They looked so happy, joined at the heart. You never saw one without the
other. Gage’s gregarious manner made Paul more outgoing. Mr. Mom, the neighbors called
him. On days when she felt in need of a lift, one neighbor would sit on her porch just to watch
them, just so she could smile inside.
Bringing his young son into the wilderness made sense to Wayment. There he could join
together the two things he loved most. Yet on this morning, he had to choose between them.
Before him stood three deer, two does and a buck.
Behind him Gage slept in the pickup.
The deer began to move off, gliding into the forest. Wayment counted five of them now. He’d
come to scout deer, preparation for a weekend hunting trip.
He turned toward Gage, then back to the deer. All around him, the quaking aspens seemed
alive in the breeze, humming a faint prayer. “In one brief monumental moment,” he would later
say of this instant, “I made the biggest and most painful mistake of my life.”
He took a step. He began to follow the deer.
He had left Gage asleep out here once before, but that time he’d strayed only 75 yards from the
pickup. Now he was well beyond 75 yards, well beyond sight of Gage.
The deer disappeared over a ridge. Wayment crept after them. Minutes passed--just how many
remains uncertain. Wayment walked a mile, maybe two.
While he walked, two hunters drove by his pickup. They saw Gage alone in his car seat, awake
and watching them. What they saw bothered them, but they thought the dad must be nearby.
They also feared being taken for kidnappers. So they drove on, deciding there was nothing they
could do.
In the forest, Wayment began to have a bad feeling. He turned and hurried back to the pickup.
Even from afar, he could see he was too late. The driver’s side door was wide open. The car
seat was empty. Gage had gotten out, Gage had wandered off.
Wayment plunged into a nearby pond, fighting a rising panic. Gage loved the water. That’s
where he’d go. For sure he’s in the pond.
He wasn’t, though. The pond was muddy, waist deep. Wayment thrashed about, reaching out,
feeling nothing. He clambered out of the water. He raced up and down ridges, shouting Gage’s
name. He jumped into his pickup, roaring off in search of help. My son is missing, he gasped to
the hunters he found. My son is gone.
Rather than duck responsibility, Wayment drowned in it. The first deputy sheriff to arrive found
him writhing on the ground, crying and vomiting, his face caked with snot and pond mud. “Just
shoot me,” Wayment urged when the deputy asked what he could do for him. And minutes later:
“I should have never left him in the truck. That is the stupidest thing I’ve ever done in my life,
and I should be skinned and shot for that.”
They kept someone by Wayment’s side that evening, fearing what he’d do if left alone. Past
midnight, a storm blew in as search crews gathered on the mountainside. Temperatures
plummeted; the rain turned to sleet, then snow. At 3 a.m., Wayment sat in a search-and-rescue
commander’s Ford Explorer with two sheriff’s detectives. He was calmer now, but no less
aware.
“I’m responsible for his death if he is dead,” Wayment said. “I’m responsible for his death. I don’t
think you can put it any other way. . . . I had custody of him. I was supposed to look out for him.
He was under my care.”
Whispers and Suspicions
Impatient with the sound bite approach to journalism, Judge Hilder avoids television. For his
news he reads the major newspapers on the Internet and listens to National Public Radio. Yet
he could not help hearing about the missing boy on the mountain. At the Summit County Justice
Center, 30 miles east of Salt Lake City, people he saw every day quickly became part of the
organized search. The Wayments were a major topic of conversation.
Hilder’s first response was as a parent, not a judge. In his second marriage now, he is father to
six sons and one daughter, including two stepsons, the youngest 6 years old. Of the missing
little boy, he thought, what a tragedy. He believed Gage had the slimmest of chances.
Then Hilder began to hear hints that this might be something other than an awful accident. In
time, the hints became no easier to avoid than news of the search itself. After all, there was
Wayment’s ex-wife, Brenda, telling detectives and TV cameras that she believed Paul had
hidden Gage in order to deny her custody.
As the search widened and more hours slipped by and the snow fell heavier, not just Brenda
voiced suspicions. There were whispers about the Wayment family’s “marital problems.” There
was talk of protective orders and a thick Division of Child and Family Services file. Those who
hadn’t seen Paul in the early hours wondered why he now appeared so stoic, so lacking in
remorse. Some wondered why, with dogs and horses and computers and helicopters, they still
couldn’t find Gage. Many searchers came to believe that Gage was not in the forest at all. Many
thought Paul Wayment guilty of foul play or deception.
When darkness fell Sunday night, four days after Gage disappeared, officials called off their
search. Sheriff’s deputies invited Wayment to their headquarters for a polygraph exam and what
they promised would be “a lengthy and detailed interview.” The lead detective believed they
needed to investigate the “ever-growing possibility that Gage had been abducted or hidden by
his father.”
From the Bench, the Human Stories
It’s an honest world when you’re running, Robert Hilder believes. He can think clearly. So he
jogs often, sometimes five or six miles a morning.
The Wayment affair now sometimes crept into his thoughts as he ran, but he made no
conclusions. He couldn’t, for he had to keep this matter at arm’s length. He had to prepare
himself to judge its meaning. What manner of story might he hear this time in his courtroom? If
he felt some unease, he also felt anticipation. It was human stories like this that first drew him to
the bench.
Hilder had always wanted to be a judge more than a practicing attorney. He was not at core
committed to the adversary system, to the role of lawyer as advocate. He was much more
interested in the narratives and issues heard in a courtroom. He liked to try to resolve them. He
thought he was good at resolving them.
Sentencing, on the other hand, he found hard. There was always that horrible moment, after he
heard the tremendous advocacy, the arguments, the pleas. Suddenly there was silence--and he
had to decide. That was hell. That also was what he’d signed up for.
He didn’t have a typical judge’s background. For one thing, he’d never finished high school. He
grew up in Australia, one of four siblings. His alcoholic father was abusive with his mother. By
the time Hilder was 14 and more than 6 feet tall, he was intervening, getting his dad in
headlocks. By 15, he’d left home.
For years, he found jobs where he could. He apprenticed on a farm. He labored over pipelines
in underground tunnels. He worked as a bartender and bouncer by night, a bank clerk by day.
He was making his way, but at the age of 24, he thought his life empty. He had few friends and
little social life beyond the bars where he drank.
Then, as he sat in his apartment one night, reading a book on Lenin and Stalin--one of many
history volumes in his self-improvement program--there came a knock on the door. A reformed
drinking buddy had sent two Mormon missionaries his way. At first Hilder listened only out of
curiosity. The curiosity soon turned to interest. He admired these young men’s commitment and
aestheticism, but what he embraced most was the sense of family they offered. They made him
feel part of something.
Within two weeks, he’d joined the Church of Jesus Christ of Latter-day Saints; within six
months, he was a Bible teacher and Sunday school president. He felt so needed. Asked if he
wanted to do missionary work, he readily agreed, setting off on a two-year tour of southern
Australia.
There he grew close to the mission president, a lawyer from Salt Lake City. Hilder thought him
an excellent role model. Far more so than his own father. When Hilder returned to Sydney from
his mission, he found his dad in a halfway house, recently released from jail. He was 60 and
looked pathetic. Once a successful wool and sheepskin broker, he was living a drunken
transient’s life that took him to dry-out cells and psychiatric wards. Hilder had visited him as
often as he could in these places. Yet it seemed as if his father wanted more from him--a
rescue. He wrote Hilder letters, saying we need to make plans. I’m feeling stronger, he reported,
as if to show he could be like his son. I’m reading the Book of Mormon, I’m meeting
missionaries.
Hilder had hated his father for a time but had never deserted him. Now he could not think of a
way to help him, for he’d met a woman on his Mormon mission, and they planned to move to the
United States. Two weeks before he was to leave, Hilder got the call on a cold May morning:
His father had hanged himself. This, Hilder believed, was his dad’s response to hopelessness,
to the prospect of his son leaving. At the funeral, an elderly aunt mentioned that his father had
left a letter for him. Hilder never asked for it, never saw it. He was starting a new life. He just
didn’t want to know.
A month later in Utah’s Mormon Temple, he married the woman from his mission. Ten months
later came their first son. Hilder was 28, with a 10th-grade education. For a while, he made a
living at day labor, then found a job as bookkeeper for a demolition company.
Desperate to do better, he took a high school equivalency test and then the college Scholastic
Aptitude Test, scoring in the 99th percentile on both, a feat he credits to a lifetime of voracious
reading. In January 1979, he was accepted at the University of Utah, from which he graduated 2
1/2 years later, a political science major with a nearly straight-A average. By the time he
enrolled in the university’s law school, he had three children. He earned his law degree at 35.
Within 11 years, he was a Mormon bishop and managing partner at a Salt Lake City law firm.
That’s when Utah’s governor appointed Hilder, a Democrat in a very Republican state, to the
bench. Eventually, he began sitting in Summit County, commuting from his Salt Lake City home.
Over the last six years, he has earned the trust and warm regard of prosecutors and defense
attorneys alike. Their testimonials on his behalf focus as much on his humanity as his legal
acuity. They say there “probably is no more decent person in the legal profession than Judge
Hilder.” They call him “one of the kindest, most compassionate, gentlest people to sit on the
bench.” They think no jurist is “more prepared, fair and understanding than Judge Hilder.”
That’s not to say he’s a pushover. He is seen as more complex than that. In one well-publicized
case, Hilder sent a child molester to prison against all recommendations. Yet in another case,
he spared a teenage boy who’d somehow accelerated his car into a crowd, killing two people.
Hilder knew he should lock him up, but what he saw before him was a sweet kid he just couldn’t
send to jail.
Four days had passed now since Gage Wayment went missing. In Hilder’s home, the news
managed to filter through, as did images of Gage, for a house guest sometimes watched
television. When would they find the body? When would this be Hilder’s story to hear?
Rising Suspicions as the Search Goes On
The Utah Division of Child and Family Services did its best to quell the rising suspicions about
Paul Wayment. For more than a decade, their own attention had been focused not on him but
his ex-wife, Brenda, who had five children and two husbands before Paul, one husband after,
and a 10-year history of domestic troubles. The agency director made this as plain as he could
when he publicly confirmed that they’d intervened with the Wayment family, but only due to
Brenda’s alleged behavior.
“We’ve had no allegations against him for any type of mistreatment,” Ken Patterson told
reporters. It was Brenda, he said, who had been referred to the agency in the mid-1990s; it was
from Brenda that all six children, including Gage, had been taken. In June, the court, pending a
final hearing, had awarded Wayment sole custody of Gage. Subsequent visits by social workers
to his home had been “uneventful.”
The suspicions would not subside, however. Paul’s sister Valerie Burke became convinced that
authorities were dropping their search because they believed Paul had killed or hidden Gage.
So even before the county withdrew Sunday evening, she made a public plea for volunteers to
take their place.
By mid-morning Monday, about 150 citizens from across the state were swarming the snow-
covered mountains above Coalville. Among them was James Wilkes, 35, the husky proprietor of
a self-service pet wash shop in a Salt Lake City suburb.
He brought with him his dog Dino, a giant schnauzer. At the base camp, he met a shy muscular
man who seemed consumed by pain. Paul Wayment introduced himself, tears welling in his
eyes. He could not look at Wilkes. Instead, he offered a sandwich. Wilkes shared it with his dog
as he sat in his pickup trying to warm up by the truck’s heater. Then he climbed out and plunged
into the forest.
It had started to snow, a foot deep in places. Wilkes lost the trail and his bearings. He slid into a
gully. It began snowing harder. He couldn’t tell north from south. Guessing, he started up a
mountain. He stumbled. On his hands and knees, he crawled. Darkness fell. In time, he and
Dino settled under a large sheltering pine tree. There he dug a hole, 2 feet by 4, and climbed in,
his body wrapped around his dog. They each kept the other warm, the two covered by a blanket
of broken branches.
It was the longest night Wilkes ever spent. He feared falling asleep, afraid he’d never wake up.
Near 5 a.m, he rose and began to walk. Within minutes, Dino’s nose went down. The schnauzer
darted up a slope to the base of a pine tree. From below, Wilkes could see his dog licking a
mound of snow. Then, as he approached, he saw two little feet.
By the time Wilkes reached the tree, Dino had cleaned off Gage’s face. Six inches of snow
covered the small body. Gage lay in a fetal position, his hands clenched, his eyes wide open.
His pajama legs were up to knees; his feet had worn through his thin booties. His throat was
blue. In his eyes were frozen tears.
A Decision on the Charges
To those who wonder why he takes on the daunting role of judging others, Robert Hilder says:
“What am I going to do? Not do this job and instead let someone get up there and decide
instead of me? Someone who sees it all in black and white? Some come in so sure. They don’t
see the complexity. I’m 52. What worries me is people who can’t see the complexity.”
Watching the Wayment case unfold from afar, it was hard now for anyone to ignore the
complexity. They had a body. They also had new suspicions. Some were asking how James
Wilkes could have located Gage when hundreds of others had failed. Some wondered whether
a conspiracy might be the explanation--a conspiracy between him and Paul Wayment.
Yet it still wasn’t Hilder’s turn. Maybe it never would be. The immediate issue--perhaps the
toughest of all--was what, if anything, to charge.
That decision rested with Summit County Atty. Robert Adkins. Like Hilder, his first response to
news of a missing boy was as a parent. He knew the rugged terrain up there--he was a former
hunter--and that gave him concern. Then he saw Brenda on TV, accusing Paul of hiding Gage.
He hoped she was right; better that than a lost boy.
Adkins could feel Paul Wayment’s anguish clear to his bones. In 1989, he’d lost his own 8-year-
old son in an accident. The boy had been playing with his cousins across the street at his
grandmother’s house. Someone activated the automatic garage door, which lacked an auto-
reverse. The door pinned Adkins’ son, obstructing his breathing. He died 21 days later. Adkins,
who’d been at work, at his desk, never forgave himself. Something had told him, go home. But
he’d thought, I’ll just finish up.
Now they had Gage Wayment’s body.
Adkins knew that those investigating Wayment didn’t believe he should be charged with a crime.
The deputies and detectives had spent more time with him than anyone. They had also met with
the family services staff, whose account convinced them that domestic abuse accusations
against Wayment could not be substantiated. Brenda had twice sought protective orders against
him, but the judge had dismissed one, and Brenda herself eventually moved to dismiss the
other. To a man, the detectives felt Wayment had already suffered enough. To a man, they felt
Wayment would already be punished for the rest of his life.
When Adkins received the sheriff’s report, he tried to focus on the facts, not the mounting public
furor. Wayment drove into the wilderness with Gage dressed lightly in pajamas. He left Gage in
a rugged, isolated area, with the pickup parked on a slant, which meant the car door could
easily swing open, pulled by gravity. He was gone some unknowable length of time, anywhere
from 30 to 90 minutes.
Certainly, it was not OK to do what Wayment did. Still, this was clearly a good man who had
made a horrible mistake. He was a straight arrow, in fact, who didn’t drink or use drugs. But for
a stint in the Army, he’d lived at his mom’s home until he met Brenda at age 34. He had no
criminal history. Despite the headlines and whispers, Gage’s death involved no conspiracies.
To forgive and empathize, or condemn and punish?
Adkins had never forgiven himself for failing to protect his own son. Now he had a chance to
forgive another father. That was his inclination. Yet there were two other prosecutors in his
office’s criminal division, and they were of different minds.
For days, the three debated around a conference table. At times, voices rose. Adkins was most
inclined toward leniency, David Brickey and Mary-Kathleen Wolsey toward exacting a severe
punishment. Unable to sway his colleagues, wishing to give them their due, Adkins sought the
advice of two consultants, who themselves couldn’t agree.
In the end, Adkins had to make the call himself. Adkins struggled, wavered--and finally decided
they must charge Wayment with something. If they didn’t, they’d be saying it was OK, or at least
not criminal, to leave children alone in a remote area.
Adkins didn’t really want to punish Wayment, though. He chose one of the mildest
recommendations, negligent homicide, a misdemeanor. He also decided he would not seek a
jail sentence. He just couldn’t argue for incarceration. Not in this situation, not where the man’s
son had died.
Robert Hilder learned of the prosecutor’s choice when a detective appeared in his chambers
one morning with a document that described the “probable cause” for charging Wayment. Hilder
glanced at the pages as the detective stood before him formally swearing to their truth. The
judge kept his face blank, not saying or showing anything. What he saw distressed him, though.
It would have been so much easier if they hadn’t charged Paul Wayment. They didn’t have to.
By filing, the prosecutors had handed their quandary to the judge.
There would be no right answer in this matter, he believed. In no way could he make a good
decision when this came down. Sentencing would be the hardest. In fact, if Paul Wayment
wasn’t acquitted, sentencing would be impossible.
A Plea That Reflects the Defendant
Judge Hilder first saw Paul Wayment face to face at his arraignment on Jan. 9. At 6 feet, 2
inches and 205 pounds, Wayment was big and muscular, with strawberry blond hair and bulging
shoulders. Although he showed no emotion, the judge knew his pain and shame must be
unbearable. He thought Wayment a decent, stoic man.
Yet there Paul stood, not just being stoic but pleading not guilty. A guilty plea would not have
surprised Hilder, given that Wayment had openly accepted responsibility. Instead, it looked as if
his public defenders were digging in for a vigorous fight.
Hilder thought he understood. This didn’t necessarily mean Wayment wasn’t accepting
responsibility. This meant he was deferring to counsel. The defense lawyers, in turn, were just
doing their job.
As it happened, Hilder was only partly right. Paul Wayment’s plea that day reflected something
more complex than his attorney’s natural reflexes. The plea reflected Wayment’s own attitude.
From the beginning, Paul and his sister Valerie had talked of the consequences he faced. He
felt he had to go to jail. He said it over and over. “I know I’m going to jail.” It was almost as if he
were willing it, Valerie thought, as if he wanted to pay a price.
Yet Wayment recoiled when the prosecutors finally did file charges. They were calling what he’d
done “criminal” negligence. Negligence he readily admitted, but he had a hard time with
criminal. He felt they were saying he intentionally killed Gage. So he was adamant that he
wouldn’t plead guilty. Valerie sensed that it was somehow important for Paul’s sanity that he not
see himself as a criminal.
He was already tormented enough. There were terrible nightmares now, Paul waking up in a
panic, reliving Gage’s loss. He’d go out to his pickup in the middle of the night, trying to figure
how Gage opened the car. He’d sit in the cab, locking and unlocking the door, asking, “How
could he get out?”
He’d regularly go up to the mountain, driving as far as he could in the winter snow, trying to
reach where he’d lost Gage. Once he enlisted the help of James Wilkes, who’d served as
honored pallbearer at Gage’s funeral. They rented snowmobiles and plunged deep into the
frozen wilderness but had to turn back when one of the vehicles caught fire.
Paul wrote a letter to Gage: So strong so sweet an angel, a warrior, my dreams with you had
only begun. If I could only be with you again. To hold you again . . . to kiss your tiny face. . . . Oh
how I love you. . . . You were my most precious gift, heaven sent. . . .
Valerie and Paul talked openly in these days about suicide. She’d ask whether he thought about
hurting himself. He would always reassure her. He couldn’t do that, he pointed out, because
then he’d never see Gage. Since he died so young, Gage went to the highest level of the
Mormon heavenly kingdom. If Paul killed himself, he’d never get to that level, never rejoin his
son. “So don’t worry,” he told Valerie. “I won’t kill myself. This is my test. I have to live through
this.”
His test only intensified in the days after his arraignment. The public debate about Wayment
expanded steadily, consuming much of Utah. There he was in newspaper articles and on TV
news broadcasts, a magnifying glass put to his past domestic troubles, to his spotty
employment record, to his love for hunting. People wrote letters to the editor, called radio talk
shows, sent Internet messages, rendered verdicts on Web site polls. Those opposed to guns
and hunting were heard from, and those horrified or victimized by child abuse. It was as parents,
particularly, that so many spoke out--parents who could imagine themselves in Wayment’s
place and parents who could not. There were those who shuddered, thinking of their own past
lapses. There were many more who thundered, unable to accept Wayment’s failing.
Wayment cringed at the attention. He withdrew ever deeper into his stoicism. He hesitated to
leave his house. He phoned his sister Valerie, in a monotone asking what was in the
newspapers that day. One morning, it was Brenda’s sister, publicly accusing him once again of
domestic violence. He couldn’t bear that. Nor could he bear being called a killer.
“Why do they hate me?” he asked Valerie.
In an e-mail to a friend, she wrote: “I’m wondering if it will stop once he kills himself.”
Legal Maneuvering Takes Its Toll
The fevered public discourse about Paul Wayment reached even into Judge Hilder’s bedroom.
Because his daughter had changed the station on his alarm clock radio, there were two
mornings when he awoke to talk show conversations. In both, he heard rabid voices declaring
that the death penalty was not a sufficient punishment for this man.
Then, in late March, came an evidentiary hearing. Again a stoic Paul Wayment stood before
Robert Hilder, saying little, visibly uncomfortable in a coat and tie. Three detectives took the
stand, offering detailed accounts of what transpired in the days after Gage went missing. The
lawyers followed, rising to argue over what photos of Gage and statements by Paul could be
admitted at trial. Listening, Hilder for the first time gained direct exposure to this distraught
father’s grief and his ex-wife’s suspicions. Nothing he heard persuaded him that this case
involved anything more than a tragic mistake.
That was not, however, how the Summit County chief criminal prosecutor, David Brickey, saw
matters. He saw in Paul Wayment a neglectful father. Brickey had a son himself, a 10-month-
old. He couldn’t forget Gage, couldn’t forget that this little boy had been a real person.
Like Hilder, Brickey loves stories. What he must do in the courtroom, he believes, is tell the
better story. He learned that much when he attended a prosecutors’ school in South Carolina.
There Brickey took a course on child abusers. The class taught him you always want to use any
information that suggests the parent isn’t a perfect person. He came back to Utah promoting the
fact that prosecutors don’t use “prior bad acts” nearly enough. He started planting that idea with
his boss, Summit County Atty. Robert Adkins. Let’s try to use prior bad acts to our advantage.
In the Wayment case, Brickey believed there were “prior bad acts” in Paul’s domestic problems.
He believed this despite the fact that Adkins saw nothing in the family services file they could
use at trial. They weren’t going to wade into that history, Adkins had resolved. They definitely
weren’t going to call Brenda’s other children to the stand.
Adkins hadn’t shared that decision with Wayment’s attorneys, though. In fact, for bargaining
purposes, he’d argued in court that the family history should be admissible. Brickey took that
thought further in his own talks with the defense attorneys. He meant to use whatever he could,
he told Glen Cook and Julie George. If you don’t plea bargain, he warned them, if you go to trial,
we will seek to establish that Paul has done this before.
Cook and George, unsure where Hilder might land, saw no alternative: If Brickey was going to
fling accusations, they’d have to respond, they’d have to disprove. That meant bringing in
Brenda, bringing in the kids, bringing in the whole juvenile file.
Outrage and frustration consumed Wayment when his lawyers told him what might be coming.
“All that stuff isn’t true,” he shouted. “Just look at the documents. I don’t understand why you
have to disprove anything. I don’t want the kids involved. I don’t want Brenda involved.”
While they debated, they heard again from David Brickey. One Friday afternoon, he called Julie
George to say he might also charge Paul Wayment with witness tampering. Wayment, it turned
out, had contacted James Wilkes. He’d asked Wilkes if they could try again to visit where Gage
died. Wilkes had balked, for he had a lawyer now, a lawyer who’d ordered him not to talk with
Paul, not to fuel suspicions about their connection. They’d talked anyway, among other things
about the coming trial. Wilkes’ lawyer had alerted Brickey. The prosecutor paid Wilkes a visit--
and brought a tape recorder.
Clutching her phone, Julie George swore at Brickey, screaming and threatening, reminding that
Wilkes wasn’t even a subpoenaed witness. Then she called Wayment. This latest development
stunned him. He began to cry.
Refusing to plead guilty--in his mind, refusing to say he intentionally, criminally harmed Gage--
was the strand of sanity Wayment had been clinging to for months. Now he let go, now he
conceded.
Julie George’s phone rang three days later. “I need to take a plea,” Wayment told her. “I want it
over. I can’t take any more.”
During the course of two hours and three calls, they argued and anguished. It was no use.
Wayment spoke in a monotone. “I can’t put my family through this anymore,” he said. “This is
hurting too many people. Nobody else should be hurt by this except me.”
Wayment quit going to church. He quit talking to Julie George. Using directions provided by a
sheriff’s detective, he started weekly pilgrimages to the spot where Gage had died. He brought
Gage’s toys with him, he carved their names in a tree, he built a memorial. There he sat for
hours on end, reading the Bible.

He Knew He Had to Land Somewhere

To say that Paul Wayment made a tragic mistake did not, in Judge Hilder’s view, mean there
was no culpable negligence. That’s what bothered him as Wayment stood before him on June
5. Once again this man looked so stoic. Rather than admitting guilt, he was entering a no
contest plea, which meant he was only conceding the state could prove its case. In exchange,
the prosecutors were not seeking a jail sentence.
Hilder couldn’t help wonder: If this was what it came down to, then why were they all here?
I understand your deal, he told those gathered before him. But I’m not bound by it. I retain the
right to impose jail or any other penalty.
Hilder pondered for days about Paul Wayment, often while jogging through the dense stand of
sycamores that shaded his urban Salt Lake City neighborhood. Influenced by his tenure on the
bench, he’d strayed from his Mormon faith in the last two years. After looking at so many good
but fallible human beings, it was hard to live with any religion certain it had all the answers. The
truth was, Hilder’s role as a judge had caused him to question the nature of God, and
particularly the certainty of the Mormon faith.
Yet he finally had to land somewhere.
For Paul Wayment, he decided, there’s got to be a consequence. Wayment was not a monster;
Wayment was no more or less than any man. All the same, he’d exposed Gage to significant
risk. He’d caused Gage to wander through the forest, terrified and suffering.
There was no need for deterrence here, and no need for punishment. There was need for
society to make a statement, for society to say, this is wrong. There was also need for
rehabilitation. Hilder felt Wayment must pay some kind of penance, or he would never be able to
put this behind him.
Was this a court’s job, to worry about atonement? Hilder thought it was. Of course, he had to be
careful not to step over a line. He wasn’t a priest; he didn’t want to play God.
And yet: In a way, a judge was a god.
“God.”
Hilder would later speak that word out loud, reflecting on the Wayment case. Then he’d say, “I
shudder at how that will look on paper. But it’s true.”
An Admission; an Acceptance of Fate
When his sentencing hearing began on the morning of July 17, Paul Wayment seemed not just
stoic but hollow, as if he weren’t there. Rising first, Summit County Atty. Robert Adkins talked of
how “difficult” this case was, of how much “sympathy and empathy” his office had for the
defendant. Then came defense attorney Glen Cook, arguing that Paul’s “punishment will
continue until he and Gage are together again.” Finally Paul Wayment spoke, in an
expressionless monotone:

If I could change places with my son, I would give up my life without question. But I can’t. The
life that I now live in is the hell that I alone created. The pain is incomprehensible. . . . The word
“sorry” does not even begin to express the feelings I now live with. . . . I admit full responsibility
for my actions and will accept whatever punishment you deem appropriate.
Soon enough came the horrible moment that Hilder thought such hell. Silence fell in the packed
courtroom. Even those lawyers and defendants there for other matters stopped conferring and
turned to the bench. As Hilder began to speak, Paul Wayment remained impassive while around
him his relatives blinked back tears. Paul’s sister Valerie Burke thought the judge seemed so
soft-spoken, so kind, so determined to explain his decision to Paul. She also thought the judge
seemed full of heartache.
He’d planned to give Wayment a 90-day sentence, a quarter of the possible one-year maximum.
But after hearing the arguments--and seeing that the probation department also opposed jail--he
chose to reduce the penalty and require a mental evaluation, followed by counseling if
recommended. “The pre-sentence report . . . ,” Robert Hilder began, “says that nobody
associated with this case believes serving jail time will serve a useful purpose. The problem . . .
is that none of these people have to make the decision. The decision comes here. . . . The court
understands that there is nothing it can do that would be a greater punishment to Mr. Wayment
than the suffering he’s going to endure daily for the rest of his life. But the court cannot fully
accept the argument that there shouldn’t be some further consequence. . . . The court rules
there must be a consequence.”
Moments later, Hilder imposed a 30-day jail sentence and invited Wayment to pick the date
when it would start. Paul and his attorney Glen Cook conferred privately for 90 seconds. Then
Cook said, “Thank you for the courtesy, judge. Tomorrow morning.”
At the defense table, Julie George hugged Paul. Of the coming jail time, Wayment said, “It’s
three hots [hot meals] and a cot.” George offered to walk him to his car, as she’d done before to
buffer him from reporters. “You don’t have to anymore,” he said, patting her on the back. “It’s
over.”
Robert Hilder did not rise from the bench this morning feeling he had made the right decision.
He did not walk out thinking, I got it right. He walked out thinking, I did the best I could.
A Father’s Final Choice
The questions still haunt about Paul Wayment’s final choice, for they can’t be answered. Why
did neighbors see him outside planting flowers just days before? Why had he just gotten a new
hunting license, a new truck, a new job? All people know is that Paul, as he left his sentencing
hearing, said he was “going to the ridge.” No one stopped him, for he always went up the
mountain for comfort. Valerie told him, “Phone me when you get home.”
Around nightfall, she started calling his house. By midnight, she was scared. In bed, in the
middle of the night, she heard his voice speaking to her. Valerie. That gave her a warm feeling,
a sense that Paul was home, Paul was OK. She fell back asleep.
Only in the early morning did she learn he still hadn’t returned. Maybe he stayed for sunrise, she
told herself. But in her heart, she knew.

So did Julie George. “I have my four-wheel drive,” she told colleagues at 9:45 a.m. “I’m going to
go look for him.”
They found his body on a sloping ridge next to a pair of binoculars, a Pepsi Big Gulp and a
Winchester .243 hunting rifle. He’d picked a spot, surrounded by quaking aspens, that provided
a view of the hills where they’d searched for Gage. Julie George imagined his final afternoon.
He’d sat with the binoculars, surveying where Gage died. At sunset--he would have waited for
his beloved dusk--he’d put down the binoculars and picked up the rifle.
By the time Valerie Burke arrived on the ridge, a news media helicopter was hovering overhead.
Julie George and others rushed to cover Paul’s body, not wanting his mother to see it on TV.
But the helicopter kept blowing the cover off.
At the courthouse that afternoon, Hilder sat dazed in his chambers. Tears filled his eyes. For a
moment, he fixed on the far wall. There hung an aboriginal bark painting, an image of a
shearing shed in the Australian outback. That was a memory; he’d worked in just such a shed in
his teens. Hilder wanted nothing more now than to call his wife, Jan. When he reached her, she
offered to come be with him. “I don’t think that would help,” he said. “I have to go on the bench.”
What consumed him as he walked into the courtroom was his father’s suicide. He’d never
stopped wondering what he could have done. Suicides made their own decisions, he realized,
and his father was never a happy man. Could he have prevented his death, though? He’d left
his father’s farewell letter unclaimed, not wanting to know what it might say.
This time, with Wayment, he did want to know. He didn’t want to fight off his sense of
responsibility.
On the witness stand, a water rights expert was testifying. Only occasionally did Hilder listen.
Mostly, his eyes were on the legal pad beside his right hand. Judges never do such things, but
he felt compelled to compose a public statement. He wanted to let people know why he
sentenced Paul Wayment to jail. Blame me for this, he would tell them. Blame me if you will. But
not because I didn’t think about it.
Hilder picked up a pen and began. The first sentence he scratched out. The rest came without
struggle or revision.
It is a judge’s worst nightmare that his or her actions may lead to unforeseen and tragic human
consequences. The death of Paul Wayment is such a tragedy. . . . As hard as it is for me to
contemplate any contribution of mine to Mr. Wayment’s death, his family and the public have a
right to know how I feel as a person and as a judge. As Paul Wayment’s fellow man, I am
devastated, I hurt deeply. . . . Having suffered through my father’s suicide over 20 years ago, I
know the survivors’ anguish. . . . As a judge, however, my sworn duty is to all who appear
before me. . . . If the jail sentence I imposed was a factor, large or small, in Mr. Wayment’s
decision, I regret that result with all my heart, but I cannot change my decision. . . . For the rest
of my career I will remember Paul Wayment and try to never lose sight of the human
consequences as I discharge my responsibilities.
There Is Much Anguish Now

Among those besides Robert Hilder whose choices affected Paul Wayment in his final months--
the lawyers, detectives, journalists, relatives, hunters and friends--there is much anguish now.
Many berate themselves. Many look to themselves when talking of responsibility.
It was Hilder, though, who faced the greatest barrage of criticism immediately after Wayment’s
death. A few particularly harassing letters prompted the county to provide temporary protection.
Where once there were calls for accountability and consequences, now there was outrage at
the judge who provided just that. People assailed Hilder, demanding his resignation or
dismissal, charging him with “a pathetic lack of wisdom,” declaring him “directly responsible for
the death of Paul Wayment.”
Soon enough, there came an even greater wave of support for Hilder from lawyers, pundits,
hundreds of citizens and--over and over--Wayment’s sister Valerie Burke. “I don’t believe the
30-day sentence caused Paul to kill himself,” she told reporters. “I think the judge was
compassionate. Our family understands where the judge was coming from, and we don’t blame
him at all. He had to do what he felt was right.”
Hilder can only shake his head at that phrase, “what he felt was right.” He takes comfort from all
the support but is no more certain now than before of making correct decisions. This latest
experience, above all, has made him look even harder at the role of the judge.
He reflects on what the law accomplishes, what the law can’t accomplish. He loves the law but
does not worship it. He believes it does not have the answer to everything. In matters full of
ambiguity, he suggests, there may be no good solution. “Black and white answers are not
always what’s needed,” he says. “But sometimes they’re the only answer.”
He says something else as well: “It’s not a bad thing to have Paul Wayment’s face forever part
of my life.”
 MODERN CHALLENGES TO CONCEPTIONS OF CRIMINAL LIABILITY
(Source: David Eagleman, The Brain on Trial, The Atlantic (July/August 2011). Available at
http://www.theatlantic.com/magazine/archive/2011/07/the-brain-on-trial/308520/?single_page=true)

The Brain on Trial

Advances in brain science are calling into question the volition behind many criminal acts. A
leading neuroscientist describes how the foundations of our criminal-justice system are
beginning to crumble, and proposes a new way forward for law and order.
By David Eagleman

ON THE STEAMY first day of August 1966, Charles Whitman took an elevator to the top floor of
the University of Texas Tower in Austin. The 25-year-old climbed the stairs to the observation
deck, lugging with him a footlocker full of guns and ammunition. At the top, he killed a
receptionist with the butt of his rifle. Two families of tourists came up the stairwell; he shot at
them at point-blank range. Then he began to fire indiscriminately from the deck at people below.
The first woman he shot was pregnant. As her boyfriend knelt to help her, Whitman shot him as
well. He shot pedestrians in the street and an ambulance driver who came to rescue them.
The evening before, Whitman had sat at his typewriter and composed a suicide note:
I don’t really understand myself these days. I am supposed to be an average reasonable and
intelligent young man. However, lately (I can’t recall when it started) I have been a victim of
many unusual and irrational thoughts.
By the time the police shot him dead, Whitman had killed 13 people and wounded 32 more. The
story of his rampage dominated national headlines the next day. And when police went to
investigate his home for clues, the story became even stranger: in the early hours of the
morning on the day of the shooting, he had murdered his mother and stabbed his wife to death
in her sleep.
It was after much thought that I decided to kill my wife, Kathy, tonight … I love her dearly, and
she has been as fine a wife to me as any man could ever hope to have. I cannot rationally
pinpoint any specific reason for doing this …
Along with the shock of the murders lay another, more hidden, surprise: the juxtaposition of his
aberrant actions with his unremarkable personal life. Whitman was an Eagle Scout and a former
marine, studied architectural engineering at the University of Texas, and briefly worked as a
bank teller and volunteered as a scoutmaster for Austin’s Boy Scout Troop 5. As a child, he’d
scored 138 on the Stanford-Binet IQ test, placing in the 99th percentile. So after his shooting
spree from the University of Texas Tower, everyone wanted answers.
For that matter, so did Whitman. He requested in his suicide note that an autopsy be performed
to determine if something had changed in his brain—because he suspected it had.
I talked with a Doctor once for about two hours and tried to convey to him my fears that I felt
[overcome by] overwhelming violent impulses. After one session I never saw the Doctor again,
and since then I have been fighting my mental turmoil alone, and seemingly to no avail.
Whitman’s body was taken to the morgue, his skull was put under the bone saw, and the
medical examiner lifted the brain from its vault. He discovered that Whitman’s brain harbored a
tumor the diameter of a nickel. This tumor, called a glioblastoma, had blossomed from beneath
a structure called the thalamus, impinged on the hypothalamus, and compressed a third region
called the amygdala. The amygdala is involved in emotional regulation, especially of fear and
aggression. By the late 1800s, researchers had discovered that damage to the amygdala
caused emotional and social disturbances. In the 1930s, the researchers Heinrich Klüver and
Paul Bucy demonstrated that damage to the amygdala in monkeys led to a constellation of
symptoms, including lack of fear, blunting of emotion, and overreaction. Female monkeys with
amygdala damage often neglected or physically abused their infants. In humans, activity in the
amygdala increases when people are shown threatening faces, are put into frightening
situations, or experience social phobias. Whitman’s intuition about himself—that something in
his brain was changing his behavior—was spot-on.
Stories like Whitman’s are not uncommon: legal cases involving brain damage crop up
increasingly often. As we develop better technologies for probing the brain, we detect more
problems, and link them more easily to aberrant behavior. Take the 2000 case of a 40-year-old
man we’ll call Alex, whose sexual preferences suddenly began to transform. He developed an
interest in child pornography—and not just a little interest, but an overwhelming one. He poured
his time into child-pornography Web sites and magazines. He also solicited prostitution at a
massage parlor, something he said he had never previously done. He reported later that he’d
wanted to stop, but “the pleasure principle overrode” his restraint. He worked to hide his acts,
but subtle sexual advances toward his prepubescent stepdaughter alarmed his wife, who soon
discovered his collection of child pornography. He was removed from his house, found guilty of
child molestation, and sentenced to rehabilitation in lieu of prison. In the rehabilitation program,
he made inappropriate sexual advances toward the staff and other clients, and was expelled
and routed toward prison.
At the same time, Alex was complaining of worsening headaches. The night before he was to
report for prison sentencing, he couldn’t stand the pain anymore, and took himself to the
emergency room. He underwent a brain scan, which revealed a massive tumor in his
orbitofrontal cortex. Neurosurgeons removed the tumor. Alex’s sexual appetite returned to
normal.
The year after the brain surgery, his pedophilic behavior began to return. The neuroradiologist
discovered that a portion of the tumor had been missed in the surgery and was regrowing—and
Alex went back under the knife. After the removal of the remaining tumor, his behavior again
returned to normal.

When your biology changes, so can your decision-making and your desires. The drives you take
for granted (“I’m a heterosexual/homosexual,” “I’m attracted to children/adults,” “I’m
aggressive/not aggressive,” and so on) depend on the intricate details of your neural machinery.
Although acting on such drives is popularly thought to be a free choice, the most cursory
examination of the evidence demonstrates the limits of that assumption.
Alex’s sudden pedophilia illustrates that hidden drives and desires can lurk undetected behind
the neural machinery of socialization. When the frontal lobes are compromised, people become
disinhibited, and startling behaviors can emerge. Disinhibition is commonly seen in patients with
frontotemporal dementia, a tragic disease in which the frontal and temporal lobes degenerate.
With the loss of that brain tissue, patients lose the ability to control their hidden impulses. To the
frustration of their loved ones, these patients violate social norms in endless ways: shoplifting in
front of store managers, removing their clothes in public, running stop signs, breaking out in
song at inappropriate times, eating food scraps found in public trash cans, being physically
aggressive or sexually transgressive. Patients with frontotemporal dementia commonly end up
in courtrooms, where their lawyers, doctors, and embarrassed adult children must explain to the
judge that the violation was not the perpetrator’s fault, exactly: much of the brain has
degenerated, and medicine offers no remedy. Fifty-seven percent of frontotemporal-dementia
patients violate social norms, as compared with only 27 percent of Alzheimer’s patients.
Changes in the balance of brain chemistry, even small ones, can also cause large and
unexpected changes in behavior. Victims of Parkinson’s disease offer an example. In 2001,
families and caretakers of Parkinson’s patients began to notice something strange. When
patients were given a drug called pramipexole, some of them turned into gamblers. And not just
casual gamblers, but pathological gamblers. These were people who had never gambled much
before, and now they were flying off to Vegas. One 68-year-old man amassed losses of more
than $200,000 in six months at a series of casinos. Some patients became consumed with
Internet poker, racking up unpayable credit-card bills. For several, the new addiction reached
beyond gambling, to compulsive eating, excessive alcohol consumption, and hypersexuality.
What was going on? Parkinson’s involves the loss of brain cells that produce a neurotransmitter
known as dopamine. Pramipexole works by impersonating dopamine. But it turns out that
dopamine is a chemical doing double duty in the brain. Along with its role in motor commands, it
also mediates the reward systems, guiding a person toward food, drink, mates, and other things
useful for survival. Because of dopamine’s role in weighing the costs and benefits of decisions,
imbalances in its levels can trigger gambling, overeating, and drug addiction—behaviors that
result from a reward system gone awry. Physicians now watch for these behavioral changes as
a possible side effect of drugs like pramipexole. Luckily, the negative effects of the drug are
reversible—the physician simply lowers the dosage, and the compulsive gambling goes away.
The lesson from all these stories is the same: human behavior cannot be separated from human
biology. If we like to believe that people make free choices about their behavior (as in, “I don’t
gamble, because I’m strong-willed”), cases like Alex the pedophile, the frontotemporal
shoplifters, and the gambling Parkinson’s patients may encourage us to examine our views
more carefully. Perhaps not everyone is equally “free” to make socially appropriate choices.
DOES THE DISCOVERY of Charles Whitman’s brain tumor modify your feelings about the
senseless murders he committed? Does it affect the sentence you would find appropriate for
him, had he survived that day? Does the tumor change the degree to which you consider the
killings “his fault”? Couldn’t you just as easily be unlucky enough to develop a tumor and lose
control of your behavior?
On the other hand, wouldn’t it be dangerous to conclude that people with a tumor are free of
guilt, and that they should be let off the hook for their crimes?
As our understanding of the human brain improves, juries are increasingly challenged with
these sorts of questions. When a criminal stands in front of the judge’s bench today, the legal
system wants to know whether he is blameworthy. Was it his fault, or his biology’s fault?
I submit that this is the wrong question to be asking. The choices we make are inseparably
yoked to our neural circuitry, and therefore we have no meaningful way to tease the two apart.
The more we learn, the more the seemingly simple concept of blameworthiness becomes
complicated, and the more the foundations of our legal system are strained.
If I seem to be heading in an uncomfortable direction—toward letting criminals off the hook—
please read on, because I’m going to show the logic of a new argument, piece by piece. The
upshot is that we can build a legal system more deeply informed by science, in which we will
continue to take criminals off the streets, but we will customize sentencing, leverage new
opportunities for rehabilitation, and structure better incentives for good behavior. Discoveries in
neuroscience suggest a new way forward for law and order—one that will lead to a more cost-
effective, humane, and flexible system than the one we have today. When modern brain science
is laid out clearly, it is difficult to justify how our legal system can continue to function without
taking what we’ve learned into account.
MANY OF US like to believe that all adults possess the same capacity to make sound choices.
It’s a charitable idea, but demonstrably wrong. People’s brains are vastly different.
Who you even have the possibility to be starts at conception. If you think genes don’t affect how
people behave, consider this fact: if you are a carrier of a particular set of genes, the probability
that you will commit a violent crime is four times as high as it would be if you lacked those
genes. You’re three times as likely to commit robbery, five times as likely to commit aggravated
assault, eight times as likely to be arrested for murder, and 13 times as likely to be arrested for
a sexual offense. The overwhelming majority of prisoners carry these genes; 98.1 percent of
death-row inmates do. These statistics alone indicate that we cannot presume that everyone is
coming to the table equally equipped in terms of drives and behaviors.
And this feeds into a larger lesson of biology: we are not the ones steering the boat of our
behavior, at least not nearly as much as we believe. Who we are runs well below the surface of
our conscious access, and the details reach back in time to before our birth, when the meeting
of a sperm and an egg granted us certain attributes and not others. Who we can be starts with
our molecular blueprints—a series of alien codes written in invisibly small strings of acids—well
before we have anything to do with it. Each of us is, in part, a product of our inaccessible,
microscopic history. By the way, as regards that dangerous set of genes, you’ve probably heard
of them. They are summarized as the Y chromosome. If you’re a carrier, we call you a male.
Genes are part of the story, but they’re not the whole story. We are likewise influenced by the
environments in which we grow up. Substance abuse by a mother during pregnancy, maternal
stress, and low birth weight all can influence how a baby will turn out as an adult. As a child
grows, neglect, physical abuse, and head injury can impede mental development, as can the
physical environment. (For example, the major public-health movement to eliminate lead-based
paint grew out of an understanding that ingesting lead can cause brain damage, making
children less intelligent and, in some cases, more impulsive and aggressive.) And every
experience throughout our lives can modify genetic expression—activating certain genes or
switching others off—which in turn can inaugurate new behaviors. In this way, genes and
environments intertwine.
When it comes to nature and nurture, the important point is that we choose neither one. We are
each constructed from a genetic blueprint, and then born into a world of circumstances that we
cannot control in our most-formative years. The complex interactions of genes and environment
mean that all citizens—equal before the law—possess different perspectives, dissimilar
personalities, and varied capacities for decision-making. The unique patterns of neurobiology
inside each of our heads cannot qualify as choices; these are the cards we’re dealt.
Because we did not choose the factors that affected the formation and structure of our brain, the
concepts of free will and personal responsibility begin to sprout question marks. Is it meaningful
to say that Alex made bad choices, even though his brain tumor was not his fault? Is it justifiable
to say that the patients with frontotemporal dementia or Parkinson’s should be punished for their
bad behavior?

It is problematic to imagine yourself in the shoes of someone breaking the law and conclude,
“Well, I wouldn’t have done that”—because if you weren’t exposed to in utero cocaine, lead
poisoning, and physical abuse, and he was, then you and he are not directly comparable. You
cannot walk a mile in his shoes.

THE LEGAL SYSTEM rests on the assumption that we are “practical reasoners,” a term of art
that presumes, at bottom, the existence of free will. The idea is that we use conscious
deliberation when deciding how to act—that is, in the absence of external duress, we make free
decisions. This concept of the practical reasoner is intuitive but problematic.

The existence of free will in human behavior is the subject of an ancient debate. Arguments in
support of free will are typically based on direct subjective experience (“I feel like I made the
decision to lift my finger just now”). But evaluating free will requires some nuance beyond our
immediate intuitions.
Consider a decision to move or speak. It feels as though free will leads you to stick out your
tongue, or scrunch up your face, or call someone a name. But free will is not required to play
any role in these acts. People with Tourette’s syndrome, for instance, suffer from involuntary
movements and vocalizations. A typical Touretter may stick out his tongue, scrunch up his face,
or call someone a name—all without choosing to do so.

We immediately learn two things from the Tourette’s patient. First, actions can occur in the
absence of free will. Second, the Tourette’s patient has no free won’t. He cannot use free will to
override or control what subconscious parts of his brain have decided to do. What the lack of
free will and the lack of free won’t have in common is the lack of “free.” Tourette’s syndrome
provides a case in which the underlying neural machinery does its thing, and we all agree that
the person is not responsible.
This same phenomenon arises in people with a condition known as chorea, for whom actions of
the hands, arms, legs, and face are involuntary, even though they certainly look voluntary: ask
such a patient why she is moving her fingers up and down, and she will explain that she has no
control over her hand. She cannot not do it. Similarly, some split-brain patients (who have had
the two hemispheres of the brain surgically disconnected) develop alien-hand syndrome: while
one hand buttons up a shirt, the other hand works to unbutton it. When one hand reaches for a
pencil, the other bats it away. No matter how hard the patient tries, he cannot make his alien
hand not do what it’s doing. The movements are not “his” to freely start or stop.
Unconscious acts are not limited to unintended shouts or wayward hands; they can be
surprisingly sophisticated. Consider Kenneth Parks, a 23-year-old Canadian with a wife, a five-
month-old daughter, and a close relationship with his in-laws (his mother-in-law described him
as a “gentle giant”). Suffering from financial difficulties, marital problems, and a gambling
addiction, he made plans to go see his in-laws to talk about his troubles.

In the wee hours of May 23, 1987, Kenneth arose from the couch on which he had fallen asleep,
but he did not awaken. Sleepwalking, he climbed into his car and drove the 14 miles to his in-
laws’ home. He broke in, stabbed his mother-in-law to death, and assaulted his father-in-law,
who survived. Afterward, he drove himself to the police station. Once there, he said, “I think I
have killed some people … My hands,” realizing for the first time that his own hands were
severely cut.

Over the next year, Kenneth’s testimony was remarkably consistent, even in the face of
attempts to lead him astray: he remembered nothing of the incident. Moreover, while all parties
agreed that Kenneth had undoubtedly committed the murder, they also agreed that he had no
motive. His defense attorneys argued that this was a case of killing while sleepwalking, known
as homicidal somnambulism.

Although critics cried “Faker!,” sleepwalking is a verifiable phenomenon. On May 25, 1988, after
lengthy consideration of electrical recordings from Kenneth’s brain, the jury concluded that his
actions had indeed been involuntary, and declared him not guilty.
As with Tourette’s sufferers, split-brain patients, and those with choreic movements, Kenneth’s
case illustrates that high-level behaviors can take place in the absence of free will. Like your
heartbeat, breathing, blinking, and swallowing, even your mental machinery can run on
autopilot. The crux of the question is whether all of your actions are fundamentally on autopilot
or whether some little bit of you is “free” to choose, independent of the rules of biology.

This has always been the sticking point for philosophers and scientists alike. After all, there is
no spot in the brain that is not densely interconnected with—and driven by—other brain parts.
And that suggests that no part is independent and therefore “free.” In modern science, it is
difficult to find the gap into which to slip free will—the uncaused causer—because there seems
to be no part of the machinery that does not follow in a causal relationship from the other parts.
Free will may exist (it may simply be beyond our current science), but one thing seems clear: if
free will does exist, it has little room in which to operate. It can at best be a small factor riding on
top of vast neural networks shaped by genes and environment. In fact, free will may end up
being so small that we eventually think about bad decision-making in the same way we think
about any physical process, such as diabetes or lung disease.
THE STUDY OF BRAINS and behaviors is in the midst of a conceptual shift. Historically,
clinicians and lawyers have agreed on an intuitive distinction between neurological disorders
(“brain problems”) and psychiatric disorders (“mind problems”). As recently as a century ago, a
common approach was to get psychiatric patients to “toughen up,” through deprivation,
pleading, or torture. Not surprisingly, this approach was medically fruitless. After all, while
psychiatric disorders tend to be the product of more-subtle forms of brain pathology, they, too,
are based in the biological details of the brain.

What accounts for the shift from blame to biology? Perhaps the largest driving force is the
effectiveness of pharmaceutical treatments. No amount of threatening will chase away
depression, but a little pill called fluoxetine often does the trick. Schizophrenic symptoms cannot
be overcome by exorcism, but they can be controlled by risperidone. Mania responds not to talk
or to ostracism, but to lithium. These successes, most of them introduced in the past 60 years,
have underscored the idea that calling some disorders “brain problems” while consigning others
to the ineffable realm of “the psychic” does not make sense. Instead, we have begun to
approach mental problems in the same way we might approach a broken leg. The
neuroscientist Robert Sapolsky invites us to contemplate this conceptual shift with a series of
questions:

Is a loved one, sunk in a depression so severe that she cannot function, a case of a disease
whose biochemical basis is as “real” as is the biochemistry of, say, diabetes, or is she merely
indulging herself? Is a child doing poorly at school because he is unmotivated and slow, or
because there is a neurobiologically based learning disability? Is a friend, edging towards a
serious problem with substance abuse, displaying a simple lack of discipline, or suffering from
problems with the neurochemistry of reward?
Acts cannot be understood separately from the biology of the actors—and this recognition has
legal implications. Tom Bingham, Britain’s former senior law lord, once put it this way:

In the past, the law has tended to base its approach … on a series of rather crude working
assumptions: adults of competent mental capacity are free to choose whether they will act in
one way or another; they are presumed to act rationally, and in what they conceive to be their
own best interests; they are credited with such foresight of the consequences of their actions as
reasonable people in their position could ordinarily be expected to have; they are generally
taken to mean what they say.
Whatever the merits or demerits of working assumptions such as these in the ordinary range of
cases, it is evident that they do not provide a uniformly accurate guide to human behaviour.
The more we discover about the circuitry of the brain, the more we tip away from accusations of
indulgence, lack of motivation, and poor discipline—and toward the details of biology. The shift
from blame to science reflects our modern understanding that our perceptions and behaviors
are steered by deeply embedded neural programs.
IMAGINE A SPECTRUM of culpability. On one end, we find people like Alex the pedophile, or a
patient with frontotemporal dementia who exposes himself in public. In the eyes of the judge
and jury, these are people who suffered brain damage at the hands of fate and did not choose
their neural situation. On the other end of the spectrum—the blameworthy side of the “fault” line
—we find the common criminal, whose brain receives little study, and about whom our current
technology might be able to say little anyway. The overwhelming majority of lawbreakers are on
this side of the line, because they don’t have any obvious, measurable biological problems.
They are simply thought of as freely choosing actors.
Such a spectrum captures the common intuition that juries hold regarding blameworthiness. But
there is a deep problem with this intuition. Technology will continue to improve, and as we grow
better at measuring problems in the brain, the fault line will drift into the territory of people we
currently hold fully accountable for their crimes. Problems that are now opaque will open up to
examination by new techniques, and we may someday find that many types of bad behavior
have a basic biological explanation—as has happened with schizophrenia, epilepsy,
depression, and mania.
Today, neuroimaging is a crude technology, unable to explain the details of individual behavior.
We can detect only large-scale problems, but within the coming decades, we will be able to
detect patterns at unimaginably small levels of the microcircuitry that correlate with behavioral
problems. Neuroscience will be better able to say why people are predisposed to act the way
they do. As we become more skilled at specifying how behavior results from the microscopic
details of the brain, more defense lawyers will point to biological mitigators of guilt, and more
juries will place defendants on the not-blameworthy side of the line.
This puts us in a strange situation. After all, a just legal system cannot define culpability simply
by the limitations of current technology. Expert medical testimony generally reflects only
whether we yet have names and measurements for a problem, not whether a problem exists. A
legal system that declares a person culpable at the beginning of a decade and not culpable at
the end is one in which culpability carries no clear meaning.
The crux of the problem is that it no longer makes sense to ask, “To what extent was it his
biology, and to what extent was it him?,” because we now understand that there is no
meaningful distinction between a person’s biology and his decision-making. They are
inseparable.
WHILE OUR CURRENT style of punishment rests on a bedrock of personal volition and blame,
our modern understanding of the brain suggests a different approach. Blameworthiness should
be removed from the legal argot. It is a backward-looking concept that demands the impossible
task of untangling the hopelessly complex web of genetics and environment that constructs the
trajectory of a human life.
Instead of debating culpability, we should focus on what to do, moving forward, with an accused
lawbreaker. I suggest that the legal system has to become forward-looking, primarily because it
can no longer hope to do otherwise. As science complicates the question of culpability, our legal
and social policy will need to shift toward a different set of questions: How is a person likely to
behave in the future? Are criminal actions likely to be repeated? Can this person be helped
toward pro-social behavior? How can incentives be realistically structured to deter crime?
The important change will be in the way we respond to the vast range of criminal acts. Biological
explanation will not exculpate criminals; we will still remove from the streets lawbreakers who
prove overaggressive, underempathetic, and poor at controlling their impulses. Consider, for
example, that the majority of known serial killers were abused as children. Does this make them
less blameworthy? Who cares? It’s the wrong question. The knowledge that they were abused
encourages us to support social programs to prevent child abuse, but it does nothing to change
the way we deal with the particular serial murderer standing in front of the bench. We still need
to keep him off the streets, irrespective of his past misfortunes. The child abuse cannot serve as
an excuse to let him go; the judge must keep society safe.
Those who break social contracts need to be confined, but in this framework, the future is more
important than the past. Deeper biological insight into behavior will foster a better understanding
of recidivism—and this offers a basis for empirically based sentencing. Some people will need
to be taken off the streets for a longer time (even a lifetime), because their likelihood of
reoffense is high; others, because of differences in neural constitution, are less likely to
recidivate, and so can be released sooner.
The law is already forward-looking in some respects: consider the leniency afforded a crime of
passion versus a premeditated murder. Those who commit the former are less likely to
recidivate than those who commit the latter, and their sentences sensibly reflect that. Likewise,
American law draws a bright line between criminal acts committed by minors and those by
adults, punishing the latter more harshly. This approach may be crude, but the intuition behind it
is sound: adolescents command lesser skills in decision-making and impulse control than do
adults; a teenager’s brain is simply not like an adult’s brain. Lighter sentences are appropriate
for those whose impulse control is likely to improve naturally as adolescence gives way to
adulthood.
Taking a more scientific approach to sentencing, case by case, could move us beyond these
limited examples. For instance, important changes are happening in the sentencing of sex
offenders. In the past, researchers have asked psychiatrists and parole-board members how
likely specific sex offenders were to relapse when let out of prison. Both groups had experience
with sex offenders, so predicting who was going straight and who was coming back seemed
simple. But surprisingly, the expert guesses showed almost no correlation with the actual
outcomes. The psychiatrists and parole-board members had only slightly better predictive
accuracy than coin-flippers. This astounded the legal community.
So researchers tried a more actuarial approach. They set about recording dozens of
characteristics of some 23,000 released sex offenders: whether the offender had unstable
employment, had been sexually abused as a child, was addicted to drugs, showed remorse,
had deviant sexual interests, and so on. Researchers then tracked the offenders for an average
of five years after release to see who wound up back in prison. At the end of the study, they
computed which factors best explained the reoffense rates, and from these and later data they
were able to build actuarial tables to be used in sentencing.
Which factors mattered? Take, for instance, low remorse, denial of the crime, and sexual abuse
as a child. You might guess that these factors would correlate with sex offenders’ recidivism.
But you would be wrong: those factors offer no predictive power. How about antisocial
personality disorder and failure to complete treatment? These offer somewhat more predictive
power. But among the strongest predictors of recidivism are prior sexual offenses and sexual
interest in children. When you compare the predictive power of the actuarial approach with that
of the parole boards and psychiatrists, there is no contest: numbers beat intuition. In courtrooms
across the nation, these actuarial tests are now used in presentencing to modulate the length of
prison terms.
We will never know with certainty what someone will do upon release from prison, because real
life is complicated. But greater predictive power is hidden in the numbers than people generally
expect. Statistically based sentencing is imperfect, but it nonetheless allows evidence to trump
folk intuition, and it offers customization in place of the blunt guidelines that the legal system
typically employs. The current actuarial approaches do not require a deep understanding of
genes or brain chemistry, but as we introduce more science into these measures—for example,
with neuroimaging studies—the predictive power will only improve. (To make such a system
immune to government abuse, the data and equations that compose the sentencing guidelines
must be transparent and available online for anyone to verify.)
BEYOND CUSTOMIZED SENTENCING, a forward-thinking legal system informed by scientific
insights into the brain will enable us to stop treating prison as a one-size-fits-all solution. To be
clear, I’m not opposed to incarceration, and its purpose is not limited to the removal of
dangerous people from the streets. The prospect of incarceration deters many crimes, and time
actually spent in prison can steer some people away from further criminal acts upon their
release. But that works only for those whose brains function normally. The problem is that
prisons have become our de facto mental-health-care institutions—and inflicting punishment on
the mentally ill usually has little influence on their future behavior. An encouraging trend is the
establishment of mental-health courts around the nation: through such courts, people with
mental illnesses can be helped while confined in a tailored environment. Cities such as
Richmond, Virginia, are moving in this direction, for reasons of justice as well as cost-
effectiveness. Sheriff C. T. Woody, who estimates that nearly 20 percent of Richmond’s
prisoners are mentally ill, told CBS News, “The jail isn’t a place for them. They should be in a
mental-health facility.” Similarly, many jurisdictions are opening drug courts and developing
alternative sentences; they have realized that prisons are not as useful for solving addictions as
are meaningful drug-rehabilitation programs.
A forward-thinking legal system will also parlay biological understanding into customized
rehabilitation, viewing criminal behavior the way we understand other medical conditions such
as epilepsy, schizophrenia, and depression—conditions that now allow the seeking and giving
of help. These and other brain disorders find themselves on the not-blameworthy side of the
fault line, where they are now recognized as biological, not demonic, issues.
Many people recognize the long-term cost-effectiveness of rehabilitating offenders instead of
packing them into overcrowded prisons. The challenge has been the dearth of new ideas about
how to rehabilitate them. A better understanding of the brain offers new ideas. For example,
poor impulse control is characteristic of many prisoners. These people generally can express
the difference between right and wrong actions, and they understand the disadvantages of
punishment—but they are handicapped by poor control of their impulses. Whether as a result of
anger or temptation, their actions override reasoned consideration of the future.
If it seems difficult to empathize with people who have poor impulse control, just think of all the
things you succumb to against your better judgment. Alcohol? Chocolate cake? Television? It’s
not that we don’t know what’s best for us, it’s simply that the frontal-lobe circuits representing
long-term considerations can’t always win against short-term desire when temptation is in front
of us.
With this understanding in mind, we can modify the justice system in several ways. One
approach, advocated by Mark A. R. Kleiman, a professor of public policy at UCLA, is to ramp up
the certainty and swiftness of punishment—for instance, by requiring drug offenders to undergo
twice-weekly drug testing, with automatic, immediate consequences for failure—thereby not
relying on distant abstraction alone. Similarly, economists have suggested that the drop in crime
since the early 1990s has been due, in part, to the increased presence of police on the streets:
their visibility shores up support for the parts of the brain that weigh long-term consequences.
We may be on the cusp of finding new rehabilitative strategies as well, affording people better
control of their behavior, even in the absence of external authority. To help a citizen reintegrate
into society, the ethical goal is to change him as little as possible while bringing his behavior into
line with society’s needs. My colleagues and I are proposing a new approach, one that grows
from the understanding that the brain operates like a team of rivals, with different neural
populations competing to control the single output channel of behavior. Because it’s a
competition, the outcome can be tipped. I call the approach “the prefrontal workout.”
The basic idea is to give the frontal lobes practice in squelching the short-term brain circuits. To
this end, my colleagues Stephen LaConte and Pearl Chiu have begun providing real-time
feedback to people during brain scanning. Imagine that you’d like to quit smoking cigarettes. In
this experiment, you look at pictures of cigarettes during brain imaging, and the experimenters
measure which regions of your brain are involved in the craving. Then they show you the activity
in those networks, represented by a vertical bar on a computer screen, while you look at more
cigarette pictures. The bar acts as a thermometer for your craving: if your craving networks are
revving high, the bar is high; if you’re suppressing your craving, the bar is low. Your job is to
make the bar go down. Perhaps you have insight into what you’re doing to resist the craving;
perhaps the mechanism is inaccessible. In any case, you try out different mental avenues until
the bar begins to slowly sink. When it goes all the way down, that means you’ve successfully
recruited frontal circuitry to squelch the activity in the networks involved in impulsive craving.
The goal is for the long term to trump the short term. Still looking at pictures of cigarettes, you
practice making the bar go down over and over, until you’ve strengthened those frontal circuits.
By this method, you’re able to visualize the activity in the parts of your brain that need
modulation, and you can witness the effects of different mental approaches you might take.
If this sounds like biofeedback from the 1970s, it is—but this time with vastly more
sophistication, monitoring specific networks inside the head rather than a single electrode on the
skin. This research is just beginning, so the method’s efficacy is not yet known—but if it works
well, it will be a game changer. We will be able to take it to the incarcerated population,
especially those approaching release, to try to help them avoid coming back through the
revolving prison doors.
This prefrontal workout is designed to better balance the debate between the long- and short-
term parties of the brain, giving the option of reflection before action to those who lack it. And
really, that’s all maturation is. The main difference between teenage and adult brains is the
development of the frontal lobes. The human prefrontal cortex does not fully develop until the
early 20s, and this fact underlies the impulsive behavior of teenagers. The frontal lobes are
sometimes called the organ of socialization, because becoming socialized largely involves
developing the circuitry to squelch our first impulses.
This explains why damage to the frontal lobes unmasks unsocialized behavior that we would
never have thought was hidden inside us. Recall the patients with frontotemporal dementia who
shoplift, expose themselves, and burst into song at inappropriate times. The networks for those
behaviors have been lurking under the surface all along, but they’ve been masked by normally
functioning frontal lobes. The same sort of unmasking happens in people who go out and get
rip-roaring drunk on a Saturday night: they’re disinhibiting normal frontal-lobe function and
letting more-impulsive networks climb onto the main stage. After training at the prefrontal gym, a
person might still crave a cigarette, but he’ll know how to beat the craving instead of letting it
win. It’s not that we don’t want to enjoy our impulsive thoughts (Mmm, cake), it’s merely that we
want to endow the frontal cortex with some control over whether we act upon them (I’ll pass).
Similarly, if a person thinks about committing a criminal act, that’s permissible as long as he
doesn’t take action.
For the pedophile, we cannot hope to control whether he is attracted to children. That he never
acts on the attraction may be the best we can hope for, especially as a society that respects
individual rights and freedom of thought. Social policy can hope only to prevent impulsive
thoughts from tipping into behavior without reflection. The goal is to give more control to the
neural populations that care about long-term consequences—to inhibit impulsivity, to encourage
reflection. If a person thinks about long-term consequences and still decides to move forward
with an illegal act, then we’ll respond accordingly. The prefrontal workout leaves the brain intact
—no drugs or surgery—and uses the natural mechanisms of brain plasticity to help the brain
help itself. It’s a tune-up rather than a product recall.
We have hope that this approach represents the correct model: it is grounded simultaneously in
biology and in libertarian ethics, allowing a person to help himself by improving his long-term
decision-making. Like any scientific attempt, it could fail for any number of unforeseen reasons.
But at least we have reached a point where we can develop new ideas rather than assuming
that repeated incarceration is the single practical solution for deterring crime.
ALONG ANY AXIS that we use to measure human beings, we discover a wide-ranging
distribution, whether in empathy, intelligence, impulse control, or aggression. People are not
created equal. Although this variability is often imagined to be best swept under the rug, it is in
fact the engine of evolution. In each generation, nature tries out as many varieties as it can
produce, along all available dimensions.
Variation gives rise to lushly diverse societies—but it serves as a source of trouble for the legal
system, which is largely built on the premise that humans are all equal before the law. This myth
of human equality suggests that people are equally capable of controlling impulses, making
decisions, and comprehending consequences. While admirable in spirit, the notion of neural
equality is simply not true.
As brain science improves, we will better understand that people exist along continua of
capabilities, rather than in simplistic categories. And we will be better able to tailor sentencing
and rehabilitation for the individual, rather than maintain the pretense that all brains respond
identically to complex challenges and that all people therefore deserve the same punishments.
Some people wonder whether it’s unfair to take a scientific approach to sentencing—after all,
where’s the humanity in that? But what’s the alternative? As it stands now, ugly people receive
longer sentences than attractive people; psychiatrists have no capacity to guess which sex
offenders will reoffend; and our prisons are overcrowded with drug addicts and the mentally ill,
both of whom could be better helped by rehabilitation. So is current sentencing really superior to
a scientifically informed approach?
Neuroscience is beginning to touch on questions that were once only in the domain of
philosophers and psychologists, questions about how people make decisions and the degree to
which those decisions are truly “free.” These are not idle questions. Ultimately, they will shape
the future of legal theory and create a more biologically informed jurisprudence.
 Pangilinan hits 'wrong' implementation of juvenile justice law
(Source: Xave Gregorio, Pangilinan hits "wrong" implementation of juvenile justice law, available at
https://cnnphilippines.com/news/2019/1/30/kiko-pangilinan-wrong-implementation-juvenile-justice-law.html)

Metro Manila (CNN Philippines, January 30) — Senator Francis "Kiko" Pangilinan slammed the
"erroneous" implementation of the Juvenile Justice and Welfare Act, saying that children who
commit crimes should not just be released, but instead be placed in youth care facilities for
rehabilitation.

"Any child in conflict with the law should be brought to a social welfare officer or a Bahay Pag-
asa," Pangilinan told CNN Philippines' The Source on Wednesday.

President Rodrigo Duterte has repeatedly ripped at Pangilinan for the "great injustice" the
Juvenile Justice and Welfare Act, which he authored, supposedly caused.

In November 2018, Duterte lamented at how teens caught committing rape and homicide would
come in-and-out of jail since they cannot be prosecuted.

However, Pangilinan said the law has already been amended so that any child aged 12 to 15
who commit serious offenses like murder and rape would have to be placed in a Bahay Pag-asa
for at least one year.

The law has also been amended so that children below 15 years old who are found by the local
social welfare and development officer to be dependent, abandoned, neglected or abused by
their parents can be placed in a Bahay Pag-asa, upon authorization of their parents or
guardians, or in their absence or refusal, through a petition for involuntary commitment.

Children aged 12 to 15 who are repeat offenders who have already undergone a community-
based intervention program can also be placed in a Bahay Pag-asa as long as it is in their best
interest and their parents or guardians approve of it, or if they are absent or refuse, a petition for
their involuntary commitment is approved.
However, the opposition senator noted that there is a lack of Bahay Pag-asas, despite
Congress allotting in 2013 ?400 million for the establishment of these facilities across the
country.

"Pinasa natin 'yung batas, naglagay tayo ng pondo. Ano pang gagawin ng legislation?
Execution na ito, implementation na ito at hindi ginagawa," he said.
[Translation: We already passed the law, we allotted funding. What else does the legislature
have to do? This is already a matter of execution and implementation, and it is not being done.]

The Juvenile Justice and Welfare Council, the executive agency tasked to monitor the
implementation of the present law, has said that Bahay Pag-asas — where children in conflict
with the law are supposed to be sent to for rehabilitation — are inadequate, poorly staffed and
are sometimes even "worse than prisons."

As there are not enough Bahay Pag-asas, some children in conflict with the law end up in jails
with hardened criminals, Pangilinan said. The Commission on Human Rights has also recorded
cases where children end up staying in police stations or in the homes of social workers.

House Justice committee chair Oriental Mindoro 1st District Rep. Doy Leachon said the lower
chamber's proposed amendments to the Juvenile Justice and Welfare Act would remedy this by
making the national government responsible for the establishment and upkeep of Bahay Pag-
asas instead of the local government.

Why run after kids?

The House passed on Monday a bill which lowers the minimum age of responsibility for children
in conflict with the law from 15 to 12 — a move met with approval from Duterte.

Meanwhile, the Senate Justice committee, chaired by Senator Richard "Dick" Gordon, is
expected to present to the plenary its recommendation to lower the minimum age of criminal
responsibility to 12, which is supposedly backed by a majority of senators.
But Pangilinan said the government should not be training its sight on children, but on big time
syndicates who use minors for criminal activity.

"Bakit hindi habulin 'yung sindikato? Ilegal 'yun eh. Bakit hindi sila ang habulin, hindi 'yung bata?
My sense is, mas madali kasing habulin 'yung bata at 'yung mga sindikato, coddled by corrupt
local officials and coddled by corrupt policemen," he said.

[Translation: Why don't they run after syndicates? That's illegal. Why don't they run after them,
not children? My sense is, it's easier for them to run after children, and the syndicates, they are
coddled by corrupt local officials and coddled by corrupt policemen.]
He added that children in conflict with the law typically come from poor, abusive and
dysfunctional families and would need help, instead of imprisonment.

READ: Pangilinan: Address poverty instead of holding children criminally liable

The Catholic Bishops Conference of the Philippines echoed this in a pastoral letter, adding that
"we cannot call ourselves a civilized society if we hold children in conflict with the law criminally
liable."

The Commission on Human Rights released yesterday a survey they commissioned which
shows that majority of Filipinos still want the minimum age of criminal responsibility to remain at
15.

Psychologists and pediatricians have come forward in opposition to the proposal, pointing out
that even if children as young as nine can already distinguish between what is right and wrong,
their brains are not developed enough for them to be held liable for crimes.
 UN Philippines’ statement on increasing the age to determine statutory rape
(Source: UN Philippines' Statement on increasing the age to determine statutory rape, available at
https://www.unicef.org/philippines/press-releases/un-philippines-statement-increasing-age-determine-statutory-rape)

Statement attributable to:

Mr. Gustavo Gonzalez, Resident Coordinator, Head of all UN agencies in the Philippines
Dr. Leila Sajii Joudane, Representative of UN Population Fund Philippines, the UN agency for
reproductive health
Ms. Oyunsaikhan Dendevnorov, Representative of UNICEF Philippines, the UN agency for
children
Dr. Rabindra Abeyasinghe, Representative of WHO Philippines, the UN agency for health
As the opening of the third regular session of the 18th Congress draws near, the Head of the
UN in the Philippines, along with the Representatives of the WHO, UNFPA and UNICEF
Philippines, call on both chambers of the Philippine Congress to prioritize the immediate
passage of a law that increases the age for determining the commission of statutory rape from
below 12 to below 16.

The UN has long voiced concerns about the alarmingly low age of sexual consent in the
Philippines. The age of consent is the lowest in Asia and one of the lowest in the world, leaving
children in the Philippines vulnerable to abuse and exploitation.

The first National Baseline Study on Violence Against Children conducted in 2015, which was
led by the Council for the Welfare of Children (CWC) supported by UNICEF and the World
Health Organization with the academe and civil society organizations, revealed that one in every
five children in the Philippines (19.1%) aged 13-17 years old reported experiencing sexual
violence, while one in 25 (4.8%) of all respondents experienced forced consummated sex during
childhood. The study also revealed that the perpetrators are often family members and that
more boys (22.1%) than girls (15.9%) reported experiencing sexual violence.

Prodded by the findings and extensive consultations with key stakeholders, the UN advocated
for more holistic, non-discriminatory, protective, and responsive measures that have been
incorporated in the separate versions in the House of Representatives and Senate, including:

Increasing the age to determine statutory rape from below 12 to below 16

Equalizing the protection for victims of rape, regardless of gender
Adopting the “close in age exemption,” which serves to avoid criminalizing adolescents of
similar ages for factually consensual and non-exploitative sexual activity.
Removal of marriage as forgiveness exemption where the perpetrator is freed of legal
responsibility if the perpetrator marries the victim.
Sexual violence results in severe physical, psychological and social harm for children. Victims
experience an increased risk of HIV and other sexually transmitted infections, pain, illness,
unwanted pregnancy, social isolation and psychological trauma. Some victims may resort to
risky behaviours like substance abuse to cope with trauma.

As child victims reach adulthood, sexual violence can reduce their ability to care for themselves
and others. The harmful norms that perpetuate sexual violence take a heavy toll on families and
communities too.

Most children who face sexual abuse experience other kinds of violence. As abuse and
exploitation become entrenched, progress towards development and peace can stall – with
consequences for entire societies.

The United Nations system in the Philippines underscores the urgency of passing legislation
currently being considered by both Houses of Congress as an essential step towards fulfilling
children’s rights to protection from sexual violence, abuse and exploitation, regardless of their
sex, orientation and gender identity and expression.

The UN remains committed to supporting the Government in creating a safe environment for
children. We commend other ongoing legislative efforts that seek to protect our children from
other forms of violence such as online sexual abuse and exploitation. The UN is also one in
calling for the prioritization and adequate financing of programmes that prevent teenage
pregnancy.