Today, it's a majestic castle in downtown London where couples pose for wedding photos. But until the late-19th Century, crowds used to gather there on warm summer evenings to witness public hangings.Classical economics is based on the assumption that humans are generally rational and self-interested. Likewise, our justice system defines our responsibility towards others—our “duty of care”—by the extent that the consequences of our actions are “reasonably foreseeable.” This emphasis on reason and rationality has its roots in ancient Greece, and has formed the core of our identity as a modernist society. It also has a religious basis: according to Christian tradition, man is distinguishable from animal in that she possesses the God-like gift of reason.
Unfortunately for the Christians and the ancient Greeks, psychology is going in a different direction. Reason and rationality fail to explain human behaviour in many circumstances. Reasonable people don’t get angry at each other. Rational people don’t have to eat Kraft Dinner all week because they drank themselves broke at the Dominion Tavern on Saturday night. (Fuck!) Economists and psychologists have developed game theory experiments to mimic human interaction in a controlled environment. This helps them to identify when humans behave rationally, and when they deviate from that classical norm. They then use the theory of evolution in order to attempt to explain why we humans have come to behave in the strange ways that we do.
In 2002, the Swiss economists Ernst Fehr & Simon Gächter published a groundbreaking article about human social behaviour in the journal Nature. They designed a game theory experiment that allows participants to punish their fellow guinea pigs for refusing to contribute to the group’s common goal. Fehr and Gächter found that the participants were willing to pay money for the right to punish, even when they would have been better off themselves to just turn the other cheek. This experiment shows that humans act not only in the interest of themselves and their kin, but are also willing to make sacrifices in order to punish someone who wronged a total stranger. The authors concluded that this altruistic punishment, driven by negative emotions towards the social deviants, is an important factor in human cooperation. In other words, our instinctive and sometimes violent sense of righteous indignation is a core component of our social organization. This has both positive and negative repercussions. Tonight I will focus on the latter.
Public hostility towards wrong-doers has formed the basis of our justice system since its primitive beginnings. Individuals who violated social norms—theves, adulteresses, prostitutes, and murderers—faced beating, stoning, amputation and execution, often before a bloodthirsty public. This is as much a part of our own history as it is a reality in some parts of the world. Today, the old Middlesex County Courthouse is a majestic castle in downtown London where couples pose for wedding photos. But until the late-19th Century, crowds used to gather there on warm summer evenings to witness public hangings. They would get hammered in advance and shout insults at the condemned, laughing at his pleas of innocence in the last seconds before the force of gravity breaks his neck.In our modern society of reason and rationality, these primitive instincts are supposed to have given way to a more humane form of justice. But populism sometimes overshadows humanity in politics, especially when there’s an election looming. Last week, Attorney General Rob Nicholson introduced a bill in the House of Commons that will limit the judge’s discretion in determining the sentence that best fits the criminal and the circumstances of the crime. The bill imposes a mandatory minimum six-month jail sentence for growing pot in your backyard; for stealing a car; for break-and-enter; for theft over $5,000; and for arson.
In removing the judge’s discretion, Mr. Nicholson is appealing to our evolutionary predisposition towards punishing wrongdoers. The problem with this approach is that it won’t reduce the crime rate. Criminals don’t commit crimes because punishments are too lenient; they commit crimes because they don’t think about the consequences of their actions. If we want to reduce the crime rate, we need to convince the criminals to act rationally and think ahead. Traumatizing them by throwing them in jail will have the opposite effect.
So don’t let Mr. Nicholson trick you. Criminals are not monsters to be slain; there is no such thing as monsters. Criminals are human beings that are every bit as complex as you and me. If our goal is to reduce the crime rate and make our communities safer, judges need to be given the discretion to apply the law in a way that best fits the circumstance.
But if our goal is to get more support from the bloodthirsty masses, then he without sin cast the first vote.
