Insane, or evil?

That was the headline of a story on one of the major news web sites about the world's most famous human, J.L. Loughner. The question obviously proposes an absurd false dichotomy, but it prompts me to reflect a bit.

I'm not an expert on criminal justice, and I'm not particularly interested in the minutiae of the insanity defense or mitigating circumstances. Suffice it to say that state laws vary, but to varying degrees and under varying standards a criminal defendant can raise an insanity defense, which if successful would lead to a Not Guilty verdict and, probably, civil commitment. This is rarely successful. Once convicted, a defendant (or really, his or her lawyers) can raise mental illness in asking for a lesser sentence, in other words it can be seen to somewhat reduce the person's culpability. As examples, John Hinckley is not guilty by reason of insanity and so civilly committed to a mental hospital. Ted Kaczynski is guilty, but was spared the death penalty because of insanity.

This seems nonsensical to me, but that is because I do not share the prevailing view in our culture of the nature of free will and responsibility, nor of the essential rationale for criminal justice and criminal sanctions.

What does it mean to say that someone cannot appreciate the wrongfulness of his (usually -- women commit fewer crimes than men) actions, or is unable to conform his conduct to the requirements of the law? We know that Loughner could not conform his conduct to the requirements of the law by virtue of the observable fact that he did not. That probably seems a bizarre statement to most readers. Let me explain.

Granted, I have physical and cognitive limitations. I cannot dunk a basketball or read Russian. But within my possible range of action, it may appear that I make choices and could have made other choices than I did at any time. But the truth is, our actions are the effects of causes. We are what we are, operating within an environment which simply happens to us. None of us created ourselves. The subjective experience of most people is that we made a large contribution to our own development but that is an illusion.

We developed from a seed endowed with particular potential, which then unfolded in the environment where it happened to be. Interaction between the developing organism and the environment shaped both; at every point in time, we happened to have some particular capacity to respond to the environment we happened to be in, and that's how we responded. Connections among neurons developed as we grew, the brain happened to in some state when stimulus X occurred, and behavior Y then issued. We perceive most of our behaviors as choices, that we could have made otherwise, but in fact, what we did is the only thing we could have done because that is the behavior that our brain, with the traits it possessed and the state it was in, produced.

Free will and personal responsibility are fictions, but they are necessary. These fictions are essential substrates of the social mechanisms that maintain society and enable trust and cooperation. They are necessary to the mechanisms of shaming, and correction through more concrete sanctions. They are needed to teach children how to behave, and are presumed to be useful for trying to fix adults who misbehave.

As a slight digression, we could not live, and experience ourselves as human, without them. Indeed, agency is one of the most powerful predictors of satisfaction and happiness. People who are agentic -- who perceive themselves as having autonomy and control -- feel fulfilled.

But what difference does it really make to the evil of an act whether the perpetrator was operating under a bizarre delusion, or lacked empathy, or was deeply infected with anger, or felt some compelling need which outweighed the harm of the act? Any of these internal states might have produced the evil act, but it is the same act in the end, and the perpetrator somehow came to that state through some history.

In my view, the law should be designed to reduce the frequency of evil acts and optimize social trust, coherence, and the potential of society's members. On those criteria, the relative "evil" of a person who does bad things is irrelevant, actually nonsensical. The evil is in the act. We should try to understand why it happened and respond in the most constructive way we can, to protect public safety, reduce the risk of evil events in the future, if at all possible, and lastly, yes, to maximize the welfare and potential of the perpetrator within the constraints of the previous two requirements.

I will leave the implementation of those priorities for another time. But deciding how "evil" or "insane" Mr. Loughner may be is not helpful.