Choice, Responsibility, and Crime

[psychtrainee]

During lunch, I was speaking to a psychiatrist who collaborates with my supervisor, about crime and abuse, freedom and choice, responsibility...philosophical stuff. He believed that unless the abuser/criminal was fully psychotic at the time, he must have had a choice, and therefore, he is fully responsible for the damage he has caused.

This is black and white, categorical thinking, in my opinion. Is it not true that a person's genes, personality, environment, upbringing, social/cultural background, intelligence, influence his quality of choice, his freedom to choose? Surely if I'm starving, I'm more likely to steal a loaf of bread, than when I'm not. Now consider someone with history of abuse, trauma, and raised in a dirt poor highly dysfunctional family, who is unable to resist the impulse to abuse her family member. I am not justifying nor excusing abuse, nor am I saying we have no choice. I am simply "explaining" that it is more compassionate and more human to consider all factors involved when assigning choice and responsibility to this person because reality of it is that choice is not something absolute, untouched by life lived or circumstances.

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[splik]

You bring up one of the central debates in psychology and the social sciences, one of determinism vs. free will. Do we as human beings have free will, or is our behavior constrained by biology, intrapsychical conflicts, or even society at large?

There are 3 or 4 main types of determinism (biological determinism or essentialism), psychoanalytic determinism, social determinism, and cultural determinism.

Biological determinism suggests that we subject to impulses and drives that are hard-wired into us, a product of our genes and brain development. Biological determinism may be part of evolutionary biology (but not necessarily) which sees behavior as having evolved to confer specific benefits. Our genes made us do it.

Freud believed that free will was illusory, that the illusion was necessary for civilization as was repression of our desires, but that our behavior was really governed by libidinal instincts, desire, aggression, and re-enacting patterns from our early experiences and relationships. We are unaware of the deeper meaning or significance of our behavior, and thus consciously have less control of our actions than we think.

Social determinism in more classic sense sees behavior as a 'social' fact, that can be explained by other social facts. It is part of the positivistic tradition in sociology that sees behavior as explained and thus constrained by wider social factors such as age, gender, religion, race, socio-economic status, social networks and so on. If for example you socio-economic status is strongly associated with smoking, is smoking simply and individual choice or is your behavior constrained by this social factor that makes you so much more likely to smoke?

Cultural determinism sees our behavior as shaped by cultural factors (and is thus another form of essentialism) rather than biologically inherited traits. The values and traditions our our culture, what is seen as morally acceptable and unnacceptable, what is respected and revered, what is regarded as transgression and so on impact on our behavior. Many of those who object the cultural permissiveness of homosexuality do so on cultural determinist grounds. They believe if homosexuality is culturally acceptable, a new moral standard for behavior will be set that will influence the behavior of that society.

The problem with many of these sociological and psychological theories (and there are many many more, I have crudely simplified here) is they provide a particular cultural script which has shifted the nature of personal responsibility away from the individual and onto the 'broken brain', 'defective genes', 'nature', a bad childhood, a broken society, cultural permisiveness and so on. We are increasingly encouraged to have an external locus of control and whether we like it or not, in doing so, we do provide moral exculpation for individuals. I myself have a deep sympathy for social determinism and I tend to see individual behavior as constrained by wider social factors. But deterministic theories of behavior also lead to a therapeutic nihilism. If behavior is not under individual control, what can psychiatrists do to change behavior? Should the law make exceptions for individuals where their crimes are determined by other factors beyond their control? Wouldn't doing so create a cultural permissiveness around criminal activity that may lead to an increase in crime? In the end, as Freud suggested, we at least need to have some illusion of free will (if we believe it is illusory) in order for society to function. We have particularly values, we set the limits of what is right and wrong. Whilst this process is fraught with its own biases and limitations, some consensus that some behaviors will not be tolerated is necessary. You don't need to be a raging libertarian or neoliberal to believe in personal responsibility, whilst also saying that we as a society have a responsibility to be fair and understand that whilst we should account individuals for the behavior, we cannot necessarily hold them fully accountable.

 

[kugel]

During lunch, I was speaking to a psychiatrist who collaborates with my supervisor, about crime and abuse, freedom and choice, responsibility...philosophical stuff. He believed that unless the abuser/criminal was fully psychotic at the time, he must have had a choice, and therefore, he is fully responsible for the damage he has caused.

This is black and white, categorical thinking, in my opinion. Is it not true that a person's genes, personality, environment, upbringing, social/cultural background, intelligence, influence his quality of choice, his freedom to choose? Surely if I'm starving, I'm more likely to steal a loaf of bread, than when I'm not. Now consider someone with history of abuse, trauma, and raised in a dirt poor highly dysfunctional family, who is unable to resist the impulse to abuse her family member. I am not justifying nor excusing abuse, nor am I saying we have no choice. I am simply "explaining" that it is more compassionate and more human to consider all factors involved when assigning choice and responsibility to this person because reality of it is that choice is not something absolute, untouched by life lived or circumstances.

The choice to do one thing over another may well be more difficult in some circumstances (poverty, hunger, withdrawal from opiates, etc.), but that doesn't really mean that it is not a choice, does it? Are we only responsible for the easy choices? Is a man less responsible for his choice whether to rape a woman who is vulnerable and naked than the choice whether to rape a woman is neither of those? Does someone stealing TV out of my home because he is going into heroin withdrawal have less of a choice than someone who is doing it simply because he broke his own TV so wants mine for free?
None of these questions is about what sentence to hand down, only whether the perpetrator had a "real choice" in committing the crime. It seems to me that someone stealing a car in order to get his critically injured wife to the hospital from a place with no phone service still made a choice - but the prosecutor might choose to dismiss the case, or the sentence might be very light. However the choice to steal was just a real as for the career criminal looking to impress his mafioso mentors.

 

[whopper]

He believed that unless the abuser/criminal was fully psychotic at the time, he must have had a choice, and therefore, he is fully responsible for the damage he has caused.

The way the laws are, it pretty much is that way in terms of guilty or not guilty by reason of insanity for most states.

If a defendant wants to claim not gulity by reason of insanity (NGRI), they are admitting to doing the behaviors that meet half the criteria of actually committing the crime. So using that defense can be risky, especially since in studies, defendants rarely are found NGRI. The other half is the intent part. A NGRI defendant, by the ways the laws are in most states, are saying they couldn't tell what they were doing was wrong or illegal (depends on which state, some states specifically state they couldn't tell it was illegal, others state wrong, some don't clarify the difference).

Guilty, or NGRI is black or white where the law is concerned. One cannot be 91% guilty. You're either guilty or not in a court. While one can argue that the truth is often in shades of grey, there are other portions of a trial that reflect these complexities. For example, after the verdict is determined, if the defendant is found guilty, the defense could argue for a lesser sentence, parole instead of jailtime, or forced-treatment int the community.

To give you an example, I worked on a case of a woman who had recurrent UTIs and a severely damaged genitourinary system. Since she was a small child she had UTIs that went untreated because as a little girl she didn't know to tell her parents, her parents didn't get quick help, and scar tissue formed. She eventually developed permanent problems.

She eventually became an opioid dependent patient and was given a chronic source of opioids from a doctor who never warned her to watch her dosages and gave her as much opioids needed to control her pain telling her it was all appropriate care. After further investigation, it turned out this doctor never even kept records of his opioid prescription writing. There were no progress notes, but there was a long paper trail of him giving her plenty of opioids.

This patient, after developing withdrawal, could not get a supply of opioids for some time, and took a blank script from a friend of hers that was in the healthcare field, wrote a fake script, and was caught, arrested, and went to court.

This person was a mother, a contributing member to society, and had no prior criminal history. She had a disorder that predisposed to her a drug problem and her doctor didn't take any steps in watching her opioid dosage, never provided her with pain meds that could reduce pain that were non-addictive (e.g. SNRIs, Gabapentin, etc), and even told her not to worry when she mentioned she was concerned about dependence.

She plead guilty (on the charge of writing a fake prescription) and by the law's definition of it she was guilty. Where I came in was I rendered a report showing that she already had chips stacked against her (a disorder she got that as a child she had no capacity to prevent), a doctor who was not treating her appropriately and may have been responsible for her drug dependence, and that now she was seeing a doctor trying to treat her pain without opioids, with no prior criminal history, with her being a mother, prison wasn't necessary.

A judge in such a case could find a person guilty but could give a sentence where no prison time is assigned based on the other information.

In short, NGRI or guilty is black or white but sentencing phase is not.

 

[aphenomenon]

I liked this recent article on a somewhat related matter:
http://muse.jhu.edu/login?auth=0&ty...sychiatry_and_psychology/v018/18.2.doorn.html

Mental Competence or Capacity to Form a Will: An Anthropological Approach

Because of the concern for abuse of compulsory admission and involuntary treatment, the question of how to assess mental competence is a topic of ongoing debate. The literature seems to focus on empirical approaches, thereby overlooking the lack of conceptual clearness. This article describes an anthropological reflection on the concept of competence. Contrary to the current approach within medical ethics, this conceptualization of competence is based on positive autonomy. In this article, the question of mental competence is linked to the patient's ability to respond to a given situation in coherence with what he values in life. Based on Frankfurt's real self view to responsibility, this approach is further elaborated. The human capacity for self-reflection, including the power to act upon it, plays a crucial role in this view. If a patient lacks this capacity or if he otherwise fails to conform his (first-order) will to his deeper motives and values, his will does not seem to reflect his real self and he cannot be deemed fully responsible for it. As such, mental incompetence could be considered an impairment of one's capacity for responsibility. In the interaction between the physician and the patient, more attention should be paid to fostering this capacity instead of the assessment thereof.

 

[sunlioness]

The choice to do one thing over another may well be more difficult in some circumstances (poverty, hunger, withdrawal from opiates, etc.), but that doesn't really mean that it is not a choice, does it? Are we only responsible for the easy choices? Is a man less responsible for his choice whether to rape a woman who is vulnerable and naked than the choice whether to rape a woman is neither of those? Does someone stealing TV out of my home because he is going into heroin withdrawal have less of a choice than someone who is doing it simply because he broke his own TV so wants mine for free?
None of these questions is about what sentence to hand down, only whether the perpetrator had a "real choice" in committing the crime. It seems to me that someone stealing a car in order to get his critically injured wife to the hospital from a place with no phone service still made a choice - but the prosecutor might choose to dismiss the case, or the sentence might be very light. However the choice to steal was just a real as for the career criminal looking to impress his mafioso mentors.

Kugel pretty much just said what I was going to say. That yes, it is a choice, but some choices are a heck of a lot harder than others. I can think of several examples from my own life, which while they don't rise to the level of committing a crime certainly weren't the wisest things for me to be doing and didn't feel like a choice at the time. In retrospect though, they were choices . . . just the external and/or internal pressures to choose a certain way were pretty darned intense. (As mundane as this sounds, I experience this dilemma most commonly in the realm of proper diet and exercise.). Like Kugel said, I think the law can show compassion for certain situations without denying that there was still a choice that the perpetrator made to commit the crime in question. I also think that ever deciding that these things aren't choices is very disempowering. If we can't choose our behavior, how can we choose to learn to do better?