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May 29, 2011

"Eventually, science will kill capital punishment"

The title of this post is the headline of this new notable commentary in the Arizona Republic, which discusses the impact advances in neuroscience and genetics could have on modern criminal justice systems.  Here are excerpts:

We don't know if the recently executed child rapist and killer Donald Beaty had the genetic defect that scientists call the "murder gene." I'm pretty sure we didn't want to know. We wanted him dead.

Just as we wanted the murderer Jeffrey Landrigan executed last October, although Landrigan's attorneys claimed he might have possessed the gene, which is believed to create a predisposition to violence when linked with other factors. But the U.S. Supreme Court decided that Landrigan had waived his right to raise that issue, and there was no reprieve coming from the governor.

"In this area the science appears to be going one way and the politics another," said Gary E. Marchant, executive director of the Center for Law, Science & Innovations at Arizona State University's Sandra Day O'Connor College of Law. Marchant has a law degree from Harvard and a Ph.D. in genetics from the University of British Columbia.

He recently hosted a conference at ASU that dealt with advances in neuroscience and genetics and how they help to explain criminal behavior. "Right now, politics is winning out in this discussion," Marchant said. "But at some point it will become impossible to deny the science. There will be so much evidence."

For generations, capital punishment has been a moral, economic and political issue. In the not-to-distant future, science will kill the death penalty. "There is a ton of new science coming forward in both genetics and neuroscience that describe the brain in a way that leads to a predisposition to violent behavior," Marchant said.

The goal in studying this is to find treatments for those affected, particularly if the conditions can be diagnosed when the person is young. "At our conference there were about 350 people," Marchant said. "There were discussions about what position the criminal-justice system should take. It raises some profound questions that people have differing opinions about, ranging from ignore the science altogether to wanting the information used as a mitigating factor, if not for culpability, then in sentencing."

The science already is beginning to make its way into criminal trials. Marchant pointed to a case in Tennessee in which genetic evidence led to a manslaughter rather than murder conviction. The science won't prevent us from punishing killers, only from executing them. We'd like to believe that criminal behavior has nothing to do with genetics. But in some cases it does. And right now we don't know which ones.

"Defense attorneys are using it right now," Marchant said. "But imagine if a kid gets into trouble and you did testing and found some of these conditions existed within his brain. What then?"...

The value of advances in neuroscience and genetics isn't in preventing people like Harding from facing the death penalty, but in identifying his problem early, treating him and saving the men, women and children who might otherwise become his victims.

I am not sure I concur with the notion that advances in neuroscience and genetics will prove always to be mitigating factors rather than aggravating factors.  But I am sure that science will always be changing, if not necessarily killing, how we look at serious crimes and serious punishments.

May 29, 2011 at 02:59 PM | Permalink


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"The science won't prevent us from punishing killers, only from executing them."

Why the limitation? The author's implication is that the killer's behavior is pre-determined by genetic factors he can't control. If that's the case, he shouldn't get ANY punishment. It would be like punishing someone for having red hair.

The author's putting forth an unprincipled compromise (punishment but not execution) reflects exactly the "politics" he's criticizing -- shuffling away from the conclusion to which your analysis plainly commits you in order to bring over a few more votes.

Of course the whole thing is hogwash anyway. All manner of behavior is affected by "predisposition." The point of law -- indeed the point of civilization -- is to require human beings, by the time they're adults, to CONTROL their predispositions. If they don't, that's not just a problem for science. It's a problem for law, and it will be handled by law, as it is now.

Posted by: Bill Otis | May 29, 2011 3:36:33 PM

Well, I can buy the premise of the title. We'll eventually end up in some Larry Niven ARM-type world where every mental abnormality is forcibly medicated and the entire population consists of passive zombies that don't have the passion to commit murder.

But barring that, I fail to see how someone possessing a murder gene should give them any sort of pass.

Maybe we'll end up in a world with breeding controls instead and carriers of such negative genes simply won't be allowed to procreate.

Posted by: Soronel Haetir | May 29, 2011 3:43:42 PM

The biologically based mind of a murderer no more determines nor fails to determine his behavior than that of anyone else. Prof. Berman has a professor gene, that made him stand out in kindergarten, when he parsed the Jack and Jill books, word for stunning word.

This career outcome is no more nor less determined than the death penalty for the repeat violent offender. Prof. Berman took his basic equipment and worked it hard, studying 80 hours a week at Harvard. The violent offender did the same with his crime career, and had to be just as dedicated as Prof. Berman.

By the logic of the pro-criminal freaks Prof. Berman repeatedly quotes, a pitcher should not receive $10 million for his ability to throw a ball at 97 mph. Nor should a model receive a $1000 an hour for the use of her beautiful face in a display ad. Prof. Berman does not deserve his endowed chair salary because all his accomplishments will be found by science to have resulted from a law professor gene. He should return all of it if he wants us to buy the garbage he is quoting.

If the murder gene is found (it never will), it will fully justify the death penalty at age 3. That conclusion has equal validity as the idiotic conclusions of the Harvard indoctrinated pro-murderer lawyers above. Why spend any money, why have murder victims, why not kill the child and his parents so they spawn no more defective offspring?

Posted by: Supremacy Claus | May 29, 2011 4:51:16 PM

A direct action group of families of murder victims need to bring street justice to these irresponsible intellectual buffoons. They misuse science for their sick partisan cult purposes. Beat their asses.

Posted by: Supremacy Claus | May 29, 2011 4:56:56 PM

Half the murderers are legally intoxicated. Half the murder victims are legally intoxicated. No mention by these dishonest pro-criminal lawyers.

Posted by: Supremacy Claus | May 29, 2011 5:03:31 PM

In related news, Uncle Sam want you(re DNA).

Posted by: George | May 29, 2011 5:23:41 PM

George, you got it. Exactly. And then put everyone with the criminal gene on a Registry.

Posted by: anon2 | May 29, 2011 5:58:07 PM

There is nothing near a concensus as to genetic predisposition in commission of capital murder or other violent crimes or that such predisposition is determiniative in the outcomes. We can and do reject negative impulses, that is clear. Can the majority of negative impulses be overcome by restraint and can the majority of positive impulses overcome the negative?

Furthermore, will we reject the notion that all folks deserve reward, be that the death penalty, a Pulitzer or Nobel prize?

Posted by: Dudley Sharp | May 29, 2011 9:20:30 PM

"I am not sure I concur with the notion that advances in neuroscience and genetics will prove always to be mitigating factors rather than aggravating factors."

Do you mean to say that a genetic characteristic could be an aggravating factor?

Posted by: The Death Penalty Sucks. | May 30, 2011 3:01:02 PM

Yes, the tendency in genetics makes the person more dangerous. The earlier the execution in his life, the greater the number of innocent lives spared the evil of your customer. Abolitionists have chosen their side, that of the murderer over that of the victim. They are morally reprehensible and legally irresponsible. Why? To generate lawyer jobs. Victims generate nothing and may rot. . Murderers generate $billions for the lawyer profession. One may not even verbally criticize them, that being labelled emotional abuse, resulting in one's losing one's job.

Posted by: Supremacy Claus | May 30, 2011 3:56:32 PM

Supremacy Claus:

Do you think that we approve of the things that our clients have done? We don't. Do you think that we like the fact that the friends and families of murder victims have suffered a loss? We don't. If it were it up to us, no one would be murdered in the first place.

Posted by: The Death Penalty Sucks. | May 30, 2011 5:07:21 PM

Sc: You forgot to say that Half the LAwyers are also intoxicated. All this is junk science. Another way to abdicate repsonsibility. Just like in the Tom Cruise Movie: we arrest and jail anyone who is found to have this psycho gene. Lets not wait for them to kill. I wonder how the civil liberterians will like that.

Posted by: DeanO | May 31, 2011 7:51:00 AM

TDPS: I have no doubt about your sincere feelings. But the Supreme Court hierarchy has a priority, lawyer jobs. So the Guidelines dropped crime, including murder, 40%. One of the greatest achievements of the lawyer profession, and one coinciding with an economic boom, coming out of the economic strains of the 70' and 80's. That drop in crime likely raised real estate prices 20%, I have no doubt. That is what the lawyer profession is good for. When it does its job, we are all richer, safer, freer.

No. The guidelines also eliminated massive numbers of lawyer jobs. So they are now discretionary.

I do not hesitate to see nor to praise great lawyer achievement. I want fairness credit for that, and people to stop saying I am anti-lawyer. But rent seeking is a form of armed robbery, and its takes priority over your sincere feelings.

Posted by: Supremacy Claus | May 31, 2011 8:47:13 AM

Dean: Half the lawyers only act as if intoxicated. What they really are is indoctrinated. They have supernatural beliefs intimidated into them in law school. They believe minds can be read, the future forecast and a host of other supernatural beliefs. Intoxication may be an excuse, but unfortunately, hey are quite sober, intelligent, and modern. They have no excuse for these beliefs, save they fit into a church Inquisition model and business plan. Beyond the failure of the profession caused by these false beliefs, supernatural beliefs are prohibited in our secular nation.

Posted by: Supremacy Claus | May 31, 2011 8:53:08 AM

This is an area in which I'm not sure the advocates truly appreciate the implications of their position.

Put aside the death penalty for a moment: if someone really has such a serious, unalterable, genetic predisposition to commit violent crime, such that the violent crimes they commit supposedly shouldn't be considered the product of free will (i.e., it isn't reasonable to have expected the person to have acted otherwise), why should society have to wait for the person to commmit a (presumably likely-to-inevitable) violent crime before that person is locked up for society's protection? (If the idea of preventive "incarceration" offends the advocates, suppose we call it preventive "institutionalization," and do it in facilities that aren't prisons.)

What would be the point of allowing the person the opportunity to demonstrate that he or she will behave responsibly and not as their genes supposedly dictate if we believe that they don't have much free will anyway and that they are largely unable to control their behavior? Why wouldn't the chance of seeing whether they will or won't behave as expected be considered a dangerous and incredibly irresponsible game of Russian roulette for society to play?

Unless the point is that even the advocates don't believe (or are unwilling to act as if they believe) that individuals lack free will to avoid committing violent crimes, but rather only that the supposed disposition to commmit violent crimes is something that should be regarded as being relevant for capital sentencing purposes inasmuch as it shows that the person somehow is responsible but not "fully" responsible or culpable and that capital punishment is therefore unwarranted or unjustifiable.

In which case I agree with Professor B.: unless we're at a point where anything that arguably helps "explain" a defendant's behavior is a one-way-ratchet, which must be treated only as mitigating, it's hard to imagine why at least some juries wouldn't consider it as aggravating -- inasmuch as it shows a lower chance for rehabilitation, greater risk for further violence in prison, or out of prison in the event of escape or release, etc.

Posted by: guest | May 31, 2011 4:32:39 PM

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