The Ecological Approach to Crime
The ecological approach conceptualizes crime as the product of mechanistic brain machinery, inviting discussion of whether mechanistic behavioral models deprive their subjects of free will.[1] If criminals can be reduced to animals or machines, some ask, how can we legitimately hold them responsible for their crimes? My position is that this and related questions are inappropriate for scientists and policymakers in the ecological tradition. Criminal responsibility is an empty concept that can be abandoned without subverting the criminal law’s chief theoretical and practical interest, which is the efficient deterrence of social harms. Rethinking responsibility and punishment in light of scientific principles is a desirable if not inevitable consequence of the ecological approach to crime.
As said, criminal-law traditionalists worry that the ecological approach relieves criminals of responsibility for their crimes. The answer to this objection is suggested by philosopher John Deigh,[2] who makes an important distinction between responsibility and deterrability. For Deigh, a criminal is responsible if he physically commits a criminal act. A criminal is deterrable if the threat of punishment can prospectively prevent him from committing that act. These concepts are separable, as demonstrated by those cases of responsibility without deterrability-that is, where the actor physically performs a criminal act but the threat of punishment imposes negligible negative incentive on him. Deigh offers as examples of this category those people who are undeterrable because of mental illness and those people who are undeterrable because of political or religious fanaticism.[3] For Deigh, there is an important distinction between these two groups: The mentally ill are relieved of responsibility for their crimes, while ideological fanatics remain criminally responsible. This distinction dovetails with our moral intuitions, but it has no implications for the criminal law. From the perspective of social welfare maximization, expending state resources to prosecute and punish an undeterrable ideologue can be as wasteful as prosecuting and punishing a person with mental illness. Assuming that the criminal law cannot deter enlistment into ideological cults in the first place, prosecution and punishment would accrue neither retrospective nor prospective benefits. Deigh’s responsibility distinction does not change this circumstance, nor does it have any implications for differences in efficient treatment between the fanatic and the mentally ill person. A rational regime would treat them identically, perhaps seeking a medicinal or psychotherapeutic cure for the mentally ill person as well as the fanatic. If no efficient preventative mechanism is feasible, the state is justified in incarcerating the fanatic as if he were mentally ill-not as punishment, but as a protective measure for the rest of society. Naturally, due process rights would still be respected, and some legal process would still be undertaken to make sure that the criminal’s claims of undeterrability are factually grounded and handled fairly. In any case, criminal responsibility plays no role in the analysis.
The aforementioned efforts to rehabilitate the fanatic rather than punish him will grate on the retributive sensibilities of many. Because the fanatic understands language and follows goal-directed behavior, he registers in our minds as an intuitive person-a moral agent. As a result, the fanatic activates our negative-reciprocity emotion mechanisms, and we feel the uncontrollable urge to take retributive action against him. That negative-reciprocity mechanism is a fitness-enhancing adaptation encoded by natural selection,[4] and it continues to motivate retributive behavior even after the criminal law has made the mechanism obsolete. Anger’s selective response to the acts of intuitive persons proved an effective strategy in primordial environments because those entities that presented person-like qualities-e.g., linguistic capacity and goal-directed behavior-were also usually deterrable by the threat of angry retribution. Intuitive personhood’s value as a proxy for sociomoral deterrability persists to this day, but the fanatic is one type of person where the heuristic fails. In consequence, the intuition persists that the fanatic deserves legal punishment despite the absence of any deterrent effect.
Assuming that the policymaker recognizes the social waste of punishing the fanatic, it is still open to question what alternative remedial measures should be taken. The ecological approach invites creative remedial solutions that transcend traditional concepts of deterrence. The general rule should be that the most efficient method to deter a social harm should be applied.
As far as general deterrence is concerned, the ecological approach benefits from a more nuanced understanding of the relationship between legal and non-legal norms. Presumably, establishment of welfare-maximizing social and moral norms is more efficient than the criminal law in deterring some crimes.[5] Education, for instance, has been shown to significantly reduce future criminality,[6] and the instillation of communitarian social and moral norms likely accounts for much of this reduction. Jim Heckman’s research is relevant in this regard.[7] On this view, investing in schools might do far more to deter crime than investing in prisons.
The ecological approach’s recommendations for specific deterrence might be even more important, especially in light of recent studies indicating that incarceration does not serve a specific-deterrent function. After being in prison, these studies show, former convicts are actually deterred less from the threat of future incarceration than they were before their initial conviction.[8] These counterintuitive and discomfiting findings constitute compelling grounds for seeking alternative and/or additional criminal remedies to imprisonment. As a starting point, criminal rehabilitation should be expanded dramatically in light of compelling empirical evidence that rehabilitative treatment results in significantly lower recidivism rates than strict incarceration.[9] In addition, medical treatments might be expanded beyond the scope of drug addicts to other kinds of offenses, such as those related to aggression. Imprisonment imposes a negligible deterrent on the criminal with antisocial personality disorder, after all, so it might be more efficient to medicate rather than prosecute. Recent neurophysiological studies have implicated specific neurotransmitters in aggressive behavior,[10] and drugs regulating them should not be far behind.[11] Likewise, serial rapists and pedophiles, plagued by uncontrollable lust feelings, might agree to undergo surgical sterilization in lieu of going to prison.[12] The superior specific deterrence afforded by these remedies weighs in favor of their replacing incarceration, notwithstanding the political controversies they would spark.
As these creative remedial reforms illustrate, the ecological approach ultimately favors a broader view of criminal policymaking that moves beyond deterrence. Perhaps the most important point to take away from this discussion is that focusing on the individual criminal as a singular moral agent ignores the bigger problem: the grave systemic maladies that spawned the criminal behavior in the first place. The investigations made by Philip Zimbardo and colleagues show that evil, rather than being the product of an individual will, is often the product of a corrupt system. Any ordinary person can be driven to foul deeds by foul ecology.[13] In criminal trials, then, justice is never really served; the judgment preserves the systemic maladies responsible for the crime while relieving the rest of us of the responsibility for dealing with them. Because deterrence strategies are individualistic, a robust ecological approach must ultimately look beyond them.
How the law will revolutionize itself to deal with systemic malignancies is wholly unclear, but revolution is definitely the operative word. The law in general and the criminal law in particular have always been focused on individuals rather than systems, not least because the law and its instruments are organs of that system. The guiding principle should be that, in the ecological approach to the criminal law, manipulating the ecology is at least as important as manipulating the organism.
[1] Josuha Greene and Jonathan Cohen, “For law, neuroscience changes nothing and everything,” Philosophical Transactions of the Royal Society vol. 359 (2004), 1775-1785.
[2] John Deigh, Emotions, Values, and the Law (2008).
[3] Other conditions that might preclude deterrability include congenital disorders like schizophrenia, lesions in brain areas associated with decision-making, and environmental factors like battered women’s syndrome.
[4] Michael Price, Leda Cosmides, & John Tooby, Punitive sentiment as anti-free rider psychological device, Evolution and Human Behavior 35, 2002.
[5] Eric Posner, note 64 above, ch. 5.
[6] Lance Lochner and Enrico Moretti, “The Effect of Education on Crime: Evidence from Prison Inmates, Arrests, and Self-Reports,” The American Economic Review vol. 94 no. 1 (2004), pgs. 155-189 (estimating that “the social savings from crime reduction associated with high school graduation (for men) is about 14-26 percent of the private return”).
[7] James J. Heckman & Dmitri V. Masterov, “The Productivity Argument for Investing in Young Children,” Review of Agricultural Economics vol. 29 no. 3 (2007), pgs. 446-493.
[8] Francesco Drago, Roberto Galbiati & Pietro Vertova, “The Deterrent Effects of Prison: Evidence from a Natural Experiment,” Journal of Political Economy (forthcoming, available at http://www.econ-pol.unisi.it/~drago/).
[9] Mark W. Lipsey and Francis T. Cullen, “The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews,” Annual Review of Law and Social Science vol. 3 (2007), (Finding that “Supervision and sanctions, at best, show modest mean reductions in recidivism and, in some instances, have the opposite effect and increase reoffense rates. The mean recidivism effects found in studies of rehabilitation treatment, by comparison, are consistently positive and relatively large.”).
[10] Thomas R. Gregg and Allan Siegel, “Brain structures and neurotransmitters regulating aggression in cats: Implications for human aggression,” Progress in neuro-psychopharmacology & biological psychiatry (2001).
[11] Extended-release intramuscular injections of psychotropic medicines have recently been developed that are effective for an entire month. Extended-release injections of the antipsychotics haloperidol, fluphenazine, risperidone, and paliperidone are useful for uncooperative psychotic patients [Heather Dlugosz & Henry A. Nasrallah, "Paliperidone: a new extended-release oral atypical antipsychotic," Expert Opinion on Pharmacotherapy vol. 8 no. 14 (2007), pgs. 2307-2313]. Naltrexone, also available as an extended-release injection, is an opiod antagonist that blocks the pleasurable effects of morphine, heroin, and alcohol [T. K. Tucker & A.J. Ritter, "Naltrexone in the treatment of heroin dependence: a literature review," Drug and Alcohol Review vol. 19 no. 1 (2000), pgs. 73-82]. One can readily imagine similar interventions for other addictions, and even for maladaptive behaviors like impulsivity and aggression.
[12] See William Edwards and Christopher Hensley, “Restructuring Sex Offender Sentencing: A Therapeutic Jurisprudence Approach to the Criminal Justice Process,” International Journal of Offender Therapy and Comparative Criminology vol. 45 no. 6 (2001), pp. 646-662.
[13] Philip Zombardo, The Lucifer Effect (2008).