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Official Magazine of the Denver Bar Association

Book Review: The Punisher’s Brain – The Evolution of Judge and Jury

 

“We are lived by powers we pretend to understand: They arrange our lives; it is they who direct at the end.”

 —W.H. Auden

Book(1)Cambridge Studies in Economics, Choice and Society sponsors publications in its University Press that promote original research and the synthesis of social science and economic studies. So, Judge Morris Hoffman may be proud of his efforts to take legal studies outside their customary boxes. He has pursued an idea that our rules of law are products of the same human brain that our Paleolithic ancestors had when they dealt with problems of cooperative and selfish behaviors that they instinctively felt to be acceptable and, thus, protected, or to be rejected and punished. Before societies and their complicated legal systems began to grow and flourish, human nature (the brain) had already evolved to react to the influence of powerful instinctual impulses in the face of perceived harm. From about 100,000 years ago, our ancestors in their small survival groups made decisions about guilt and punishment that are still basic to the evolution of law, in all its forms. Judge Hoffman takes the approach that “law is applied human nature.” He prompts us to question how moral/legal guilt and blame are to be understood, how punishment satisfies or fails to comport with these beliefs, and how forgiveness is part of the judgmental process.

The author explains the essence of our justice problem in his first chapter:

“We evolved in small groups of mostly related individuals, which gave us enormous survival advantages, and therefore enormous incentives to cooperate with one another. As a result, we have deep emotional ties to our groups, and a powerful hunger for social belonging. But because natural selection was operating at the individual level, it also gave us a paradoxical incentive to cheat. After all, if we could cheat and not get caught, we could still enjoy all the advantages of social living and yet get a leg up on everyone else. This deeply embedded tension between cooperation and cheating, between community and individuality, between selflessness and selfishness, is what I will call The Social Problem. It has been the central challenge of our species since our emergence.”

The “neural paradox” at the heart of the Social Problem, with instinctual prods to react contrariwise from opposite moral poles, produces behavior any lawyer will recognize: “Our cooperation is of a limited, grudging sort. We are constantly probing for chances to cheat, and just as constantly on the lookout for cheaters.” If we did not understand cheating well, we would not have the sophistication and sensitive intuition needed to catch it. The cooperative solution to the Social Problem is to find ways to prevent and punish the cheaters. For this, we need rules.

Judge Hoffman suggests that two rules of right and wrong can be seen to contain all the variations necessary to give us an answer to the moral yin/yang struggle of the Stone Age:

“Rule 1: Transfers of property must be voluntary.

Rule 2: Promises must be kept.”

 

 

 

The elaboration of rules of “ownership” and the “promises” that are implicit in group living are developed over the course of civilized history. They also force the creation of a third rule:

“Serious violations of Rules 1 and 2 must be punished.”

 

 

Neuroscience and psychological testing show how the human brain tends to react to the seriousness of misconduct by the degree of harm caused to the victim whose rights or well-being are jeopardized, and by the degree of bad intent that motivated the bad actor. Legal systems take these factors routinely into account, but not consistently. “No harm, no foul” is not a rule that applies to criminal conspiracies or attempts. Transferred bad intent may make whatever harm happens to an unintended victim into a crime. Strict liability requires no bad intent. Corporate misconduct may have no owner or stockholder involved in the decision to adopt an illegal policy. If the fact of a crime is found, but its seriousness is less in the mind of the judge, then the punishment will tend to reflect this result under the constant law of “applied human nature.”

“Forgiving wrongs is as central to our humanity as punishing them,” according to Judge Hoffman. Punishment evolved in a restrained way because the “urge to forgive was an important restraining force.” Like cheating and cooperating, punishment and forgiveness are “built into our brains in delicate balance.” The Tao of their contrary natures, is an “evolutionary puzzle.” Too much forgiveness creates anarchy, and too much punishment creates rebellion. With his gift for phrasing difficult concepts in clear ways, Judge Hoffman notes that, “Our brains were built to forgive small wrongs and to struggle with forgiving great ones.” He suggests that a criminal who seeks actively to atone for his wrongdoing, rather than simply to beg forgiveness, is likely to achieve leniency because of the evolutionary nature of human adaptation: (1) apologies are cheap, paying back is hard, a form of self-punishment, not mere regret; (2) blame, forgiveness and punishment all are “evolutionary shortcuts for deterrence,” and atonement carries credibility as acceptance of blame; and (3) taking responsibility for the wrong done to one another is concretely demonstrated by a sacrifice that is meaningful.

Judge Hoffman identifies a “dissonance” that arises when our moral intuitions, formed through evolution, conflict with punishment for victimless crimes (for instance, conspiracies and attempts) or those acts causing harm done with little or no intent on the part of the actor. When such dissonances are subject to disagreements, as part of his own original contribution to jurisprudence, Judge Hoffman proposes an analytical process based on his understanding of the evolved human mind, in its Stone Age state. Legally dissonant rules relating to fault/blame or to the seriousness of the misconduct that supports punishment may be understood in a very basic context: (1) Is the rule a universally held societal belief or “real” moral intuition? (2) Is it “evolutionarily rooted,” in a widespread understanding that it supplies a “palpable moral advantage” to societies where it is enforced? (3) Has it strayed from the “core evolutionary principle”? (4) Does the dissonance proceed in a direction that is too far from or too inconsistent with a core principle? and (5) Are there too many exceptions or contradictory applications of the rule? This analytical system is followed in the judge’s evaluation of a number of controversial cases.

In his own Denver cases, in those of other judges, in appellate decisions, in behavioral experiments, through neuroscientific tests, and in literary examples, Judge Hoffman elaborates how criminal justice and, to a much lesser extent, civil justice function in the real world of law. As a review of criminal law and procedure, his book is refreshing, challenging, and accessible to general readers. This book would be a great gift from a lawyer to a partner, spouse, friend, or adolescent child. Then, they can talk about it.

Judge Morris B. Hoffman has been a trial judge for Colorado’s Second Judicial District (Denver) since December 1990. He teaches at the University of Colorado and the University of Denver. His law articles have appeared in numerous scholarly publications, and he also has written for newspapers and scientific journals.

By Thomas L. Kanan, Claims Manager for Western Guaranty Fund Services, headquartered in Denver, Colorado. His law practice is limited to consultation and to work as a hearing officer.

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