A recent, somewhat lighthearted article by Dahlia Lithwick in Slate explored the concept of ‘kid justice’. Lithwick, in proposing the compilation of a First Restatement of Kid Law, explored several instances in which children display an ability to formulate legal doctrines and standards that mimic adult formulations dealing with similar situations. For instance, “Kid Torts: He left his Transformer on the counter and it fell on my leg and now I can’t walk! Can I have his Transformer!?”. All veterans of the playground courtrooms of elementary school should be able to locate a vein of truth in Lithwick’s proposal. More seriously, Yale psychologist Paul Bloom has conducted a series of studies that demonstrate that a ‘moral sensibility’ begins at a remarkably young age. The experiments demonstrate that babies as young as nine months display a marked preference for characters who display helpfulness to others, and disfavor towards unhelpful characters. A further discussion of Bloom’s study, as well as some of it’s possible implications for criminal law, especially our normative justifications of punishment, follows below.
Bloom describes a typical experiment as follows: “a three-dimensional display in which real geometrical objects, manipulated like puppets, acted out the helping/hindering situations: a yellow square would help the circle up the hill; a red triangle would push it down. After showing the babies the scene, the experimenter placed the helper and the hinderer on a tray and brought them to the child. In this instance, we opted to record not the babies’ looking time but rather which character they reached for, on the theory that what a baby reaches for is a reliable indicator of what a baby wants. In the end, we found that 6- and 10-month-old infants overwhelmingly preferred the helpful individual to the hindering individual. This wasn’t a subtle statistical trend; just about all the babies reached for the good guy.”
Bloom is cautious about the conclusions that can be made from such experiments, writing ” Does our research show that babies believe that the helpful character is good and the hindering character is bad? Not necessarily. All that we can safely infer from what the babies reached for is that babies prefer the good guy and show an aversion to the bad guy. But what’s exciting here is that these preferences are based on how one individual treated another, on whether one individual was helping another individual achieve its goals or hindering it. This is preference of a very special sort; babies were responding to behaviors that adults would describe as nice or mean.”
There are obviously a number of different avenues to follow based on Bloom’s study. For instance, Bloom’s study may complement the work done by Knowles & Ditto on the deep-seated connection between our preferences and the principles which we subsequently marshal as justifications. The very terms ‘nice’ and ‘mean’, normally viewed as innocuous adjectives, may be more akin to principles, which we apply to label our innate preference for helpful behavior in a more rational and normative sense.
There are also possible applications of Bloom’s work in the continuing debate over the proper normative justifications of the criminal justice system. I believe that the theoretical landscape of criminal law, as usually described, contains some marked distinctions from that of private law. The major theoretical frameworks of private law, such as individualism v. egalitarianism, generally stand in semi-direct opposition to each other. Their application can be traced in both a subject as a whole, or into the specifics of a legal doctrine. Criminal law, at least at first glance, seems to fail to find the same oppositional clarity produced by the competing theories of other legal subjects. The major theoretical justifications of criminal law are rationalizations of the need to punish. These rationalizations can include elaborate theories based on the ideas of deterrence, or retribution. Although these theories are not identical, their aims are overlapping; they seek to provide principled, theoretical justification for the enactment of punishment. Rather than stand in opposition as the doctrine develops, their primary purpose seems to be to provide a logical reason for the decision. It’s quite easy to imagine a judicial decision upholding a criminal sentence justifying its result on the basis of multiple theories of deterrence, retribution and societal protection. It is much harder to imagine a judicial decision in a contract case that can marshal both egalitarian and individualistic support for its decision. (However, perhaps one of the central benefits of a certain form of economic analysis is that it can justify an individualistic decision on the grounds of utilitarian societal benefit, producing a pleasing harmony that eases the strain of the existing dialectical conflict.)
The limitations of these various theoretical justifications has been displayed in a number of troubling oddities in the criminal law that fail to be fully explained by these doctrines. For instance, the doctrine of Felony Murder makes a criminal liable for any deaths that may occur during the felony. This rule can apply even if the causal link is somewhat tenuous. For instance, if during a bank robbery one of the tellers drops dead of a heart attack, caused by the stress of the crime, the robbers may be convicted of murder. Or, if a policeman intervenes, during the commission of a robbery, and misfires, shooting a civilian, the robber can be attributed with the homicide. Professor Lloyd Weinreb uses this doctrine, and other similar ones such as misdemeanor manslaughter, to critique the explanatory efficiency of these theories. Professor Weinreb finds that a number of doctrines in the criminal law share a common element; “a person’s liability to be punished is affected by a circumstance beyond his control.” Professor Weinreb ultimately finds that the key determinant of our criminal justice system is not the moral theories that we generally use as justification but the question of agency. If an individual is found to have agency, and the exercise of that agency can be connected to a ‘bad outcome’, the criminal justice system will generally find that individual responsible, even if the ultimate event is relatively removed in the causation chain from the original event. Weinreb observes that “Facts that explain why a person deserves to be punished have to be described in a certain way; or, one may prefer to say, they have to include a certain kind of fact. They must refer to the person as an actor, not simply someone who was affected or someone the effect on whom contributed to other effects.” Most excuses, to be effective, must include a denial of criminal responsibility.
Weinreb ultimately resolves this conundrum through the application of what he refers to as ‘the normative ontological perspective’ also, loosely paraphrased as the ‘what will be, will be’ idea. Weinreb believes that there is a tradition of thought that believes in a normative natural order, often expressed in theological terms. (Weinreb mentions the Greek idea of Fate and the Christian concept of divine providence.) These descriptive orders do not believe in the concept of fortuity, every event occurs as part of a normative natural order. Weinreb’s key thesis is “the cases that trouble us are distinctive not because their circumstances are especially compelling evidence of normative natural order but the opposite, because they call that assumption particularly into question…By identifying the commission of the felony as the cause of the death and attributing the death to the felon, it is as if we exculpate nature.” Although Weinreb doesn’t directly discuss the matter, at the center of his thesis stands the human tendency to favor dispositionist explanations of human conduct. “The criminal law departs from convention in order not to undermine the conventional basis of desert altogether, by calling into question whether a person can ever truly be said to have acted with freedom and responsibility despite the determinate conditions of his existence.”
Bloom’s research helps show how the convention of desert based on personal responsibility begins at a remarkably early age. First, Bloom is presenting to babies dispositionist tales – there is a ‘bad’ actor or a ‘good’ actor, who are in absolute control of their actions. This basic characterization of human agency is clearly remarkably easy to tell; it can, after all, be understood by babies. It is almost impossible to imagine how a situational version, which explained the circumstances that underlay the actor’s decisions, could be conveyed in an understandable fashion to infants. Furthermore, this dispositionist tale easily produces reactions of punishment and reward. This reaction is illustrated in one of Bloom’s studies.
“To find out, we tested 8-month-olds by first showing them a character who acted as a helper (for instance, helping a puppet trying to open a box) and then presenting a scene in which this helper was the target of a good action by one puppet and a bad action by another puppet. Then we got the babies to choose between these two puppets. That is, they had to choose between a puppet who rewarded a good guy versus a puppet who punished a good guy. Likewise, we showed them a character who acted as a hinderer (for example, keeping a puppet from opening a box) and then had them choose between a puppet who rewarded the bad guy versus one who punished the bad guy.
The results were striking. When the target of the action was itself a good guy, babies preferred the puppet who was nice to it. This alone wasn’t very surprising, given that the other studies found an overall preference among babies for those who act nicely. What was more interesting was what happened when they watched the bad guy being rewarded or punished. Here they chose the punisher. Despite their overall preference for good actors over bad, then, babies are drawn to bad actors when those actors are punishing bad behavior.”
The central theoretical conflict in the criminal justice system may, ultimately, be between situationist and dispositionist accounts of human criminal behavior, with dispositionist accounts having an early head start in their appeal to human sensibilities. Each time we examine a potentially criminal action, we may either emphasize the agency possessed by the actor OR the variety of situational circumstances that contributed to the action. The emphasis that we choose, and the level of our desire to attribute a normatively unfortunate outcome to an identifiable human actor, may influence the level of punishment that we assign to the nearest available actor. For instance, the question of causation (unlike in Torts) is largely buried in the criminal justice system. If an actor, through an intentional act, produces harm to another; we assign all of the blame to them. This attribution is generally assumed so strongly that to question it would seem ridiculous. (If a drug dealer kills another drug dealer, we focus all of the blame on the drug dealer, not on the circumstances that led him to that point in time.) Even when other circumstances blatantly intervene, the criminal justice system still tends to attribute all of the blame to the identifiable human actor. For instance, if a person strikes another whom eventually dies, a series of intervening events (poor medical care, other medical symptoms, the actions of another individual) are generally not enough to overcome a charge of homicide. An awareness of situational factors may change our judgments about what a criminal actor deserves as punishment. Initial accounts of situational factors, such as Adam Benforado’s discussion of the effects of space on criminal action, herald the way for the strengthening of a situational approach to criminal justice. However, such an approach must reckon with the work of Paul Bloom, and others, which indicate that dispositional tendencies may be functionally innate.
However, Bloom, himself, at the end of his piece points out that – “‘The aspect of morality that we truly marvel at — its generality and universality — is the product of culture, not of biology. There is no need to posit divine intervention. A fully developed morality is the product of cultural development, of the accumulation of rational insight and hard-earned innovations. The morality we start off with is primitive, not merely in the obvious sense that it’s incomplete, but in the deeper sense that when individuals and societies aspire toward an enlightened morality — one in which all beings capable of reason and suffering are on an equal footing, where all people are equal — they are fighting with what children have from the get-go.” A situational account of criminal justice may provide a welcome influence on our cultural perception of criminal justice and lead to a better understanding of criminal action, and a more just application of punishment.