Punishment’s purpose: How humans became hardwired for justice

March 20, 2015
Australian Supreme Court judges take part in traditional Red Mass at St. Mary's Cathedral in Sydney

Australian Supreme Court judges. REUTERS/Mick Tsikas

One of the positive things about the media frenzy over cases like the Boston Marathon bombing and the Aurora Theater shooting is that these types of cases remind us there are profound mysteries of the human condition that we usually tune out during our everyday lives. What is the nature of good and evil? When are we responsible for our actions and when should we be excused? Why do we blame and punish, and when do we forgive?

These questions are no longer the exclusive domain of religion, law, psychiatry, or philosophy. There is increasing evidence that natural selection built our brains with default settings that not only make us presumptively cooperative and rule-abiding, but also drive us to blame then punish the wrongdoers among us.

Human brains actually come pre-equipped with three levels of punishment. The first is conscience, and its after-the-fact cousin, guilt. One of the biggest reasons I don’t punch people in the nose every time I have a disagreement with them is that I know hitting is wrong. We have internalized evolution’s relentlessly utilitarian deterrent calculations into several prosocial moral intuitions, including “don’t steal” and “don’t break promises.”

But conscience alone was simply not strong enough to restrain enough of our selfish ancestors to prevent anarchy in our small groups. So evolution armed us, as it has armed many other animal species, with a second level of punishment — retaliation. Another reason I don’t hit people during arguments is that I know they will hit me back.

In a species as devilishly clever as we, even conscience and the fear of retaliation were not enough. We needed a third level of punishment to deter our ancient cheaters: third-party punishment. Unlike any other animal species, even our closest primate relatives, all psychiatrically intact humans have a powerful urge to punish wrongdoers even when they are not themselves the victims of the wrong. This third-party urge is of course not as strong as retaliation, and that’s a good thing, otherwise our groups would have deteriorated into an anarchy of busybodies instead of an anarchy of cheaters.

Of course, how a particular individual reacts to any particular wrong is driven by a myriad of impossible-to-predict factors, both cultural and situational. But the templates on which these individual punishment decisions are made are part of our evolved neuroarchitectures.

Those same neuroarchitectures built the law, with the result that laws across many different cultures and over vast spans of time share many characteristics. For example, virtually every legal system has recognized that the state cannot punish a wrongdoer unless his prohibited act was intentional or at least reckless. That is, we don’t generally punish simple accidents. Doing so is all cost and very little deterrent benefit.

For exactly the same evolutionary reasons, we don’t blame wrongdoers whose brains are sufficiently irrational. Debates about insanity, and especially about our confidence in modern psychiatry’s ability to reliably detect it, rage on, but the core idea remains alive and well: some people’s brains are so diseased that we simply have no urge to punish them.

Our punishment instincts came with other built-in governors, including powerful urges to forgive if the right signals are received. As every good defense lawyer knows, and every child for that matter, even insincere contrition dampens our retributive fires. Forgiveness is also powerfully transformative. Alan Paton, the famed South African writer, once wrote that “when a deep injury is done us, we never fully recover until we forgive.”

Forgiveness can have the same curative potential for the forgiven as it has for the forgiving. I have sentenced dozens of murderers in my years as a trial court judge. Usually, they sit flat and emotionless as the victim’s survivors try to express their profound loss. But on those occasions when a survivor says “I forgive you,” and there have been more than you might think, almost without exception the murderers have broken down and wept. What a strange and complicated species we are when words of forgiveness can touch us, but words of the grievous loss we caused cannot. This is one hint about the deep evolutionary power of forgiveness.

One of the popular myths about the history of punishment is that our ancestors were extraordinarily harsh, and that only with the advance of civilization have savage punishments become steadily more enlightened and proportional. But the very opposite is true. In our emergent groups, which were small and consisted of mostly related individuals, we would no more have cut off a thief’s hand than we would cut off our sister’s hand if we caught her stealing today. Even long after our emergence, punishments for all but the most serious of wrongs were unimaginably lenient by modern standards. Some ancient German tribes punished all crimes, even murder, with a series of fines scheduled to the seriousness of the offense.

Punishments got severe and cruel only when our groups began to grow into larger and larger units, and especially when agriculture drove most of us into fixed settlements and towns. Faced with punishing people our brains told us were outsiders but our political organizations insisted were insiders, punishment became more like war and less like family education.

As we contemplate the latest trials of the century, and especially as we struggle to balance the need to hold criminals responsible with the challenges of exploding prison populations, there are no easy answers. After all, we’ve been struggling with the problem of what to do with the wrongdoers among us since we first roamed the planet. But appreciating that fact, and appreciating that the brains we are using to answer these questions were themselves built in an era when punishment was the key to our evolutionary survival, may make us more open to change a system everyone seems to recognize needs changing, without altering its central retributive purpose.


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Interesting piece Judge Hoffman. Perhaps in the future you’ll write more about your thoughts on how we might modify our current system to punish and rehabilitate more fairly.

Posted by ltcrunch | Report as abusive

Let’s be a little more real ltcrunch. Our justice system is corrupt and more accurately represents a system of oppression to favor certain groups. Racists and feminists (and wealthy) are guarded by our so called legal system. Everyone else is getting screwed. Judges, lawyers and police are more corrupt than not, and money can buy anyone. Justice, what a joke.

Posted by brotherkenny4 | Report as abusive

Very insightful. Thanks for this!

Posted by JulsMan | Report as abusive

I feel like this topic has been much more articulately addressed elsewhere, not least of all by this guy: http://en.wikipedia.org/wiki/Discipline_ and_Punish

Posted by klingston | Report as abusive

Mr. Hoffman,

What are these three levels of punishment based on? Do you have any references or are you making this up?

Posted by ozzzo | Report as abusive