How Evolution Explains the Conflicted Death-Penalty Debate

A new book suggests that humans' urge to mercy evolved alongside our urge for vengeance. Has the practice of hiding prisoners and executions away stifled the mercy?
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The electric chair at New York's Auburn State Prison in about 1908 (Library of Congress)

The botched execution of Clayton Lockett in Oklahoma last week generated many predictable responses—some more productive than others. There were those who said the convicted murderer got off easy compared to his victim, whether he was tortured or not before he died. There were those who said the execution proved again the immorality of capital punishment. And there were those, like my colleague Conor Friedersdorf, who suggested that part of the problem is that executions in America are hidden from public view. Bring back the guillotine! he urged.

But the work that may best explain why it happened and why we reacted the way we did is a new book written by Morris Hoffman, a trial judge in Denver. The Punisher's Brain: The Evolution of Judge and Jury explains how humans are hard-wired by 100,000 years of evolution to perceive and respond to punishment. Consider it a prequel to Robert Ferguson's masterful work on crime and punishment, Inferno; and then go out and buy yourself the book and read it.

While Ferguson emphasizes the "exceptionalism" of America's harsh punishment regime, Hoffman goes back to the dawn of human life on Earth, and explains how, in the small groups we initially formed to stay alive, humans ingrained concepts of blame and culpability and crime and punishment that in some ways remain today. "Evolution's last laugh, when it came to the human animal, was that it built our brains with two deeply conflicting predispositions," Hoffman writes.

We are predisposed to cooperate with each other, because living in groups gave us substantial long-term survival advantage. But we are also born cheaters, because cheating in the right circumstances gave us a short-term survival advantage.

As these two conflicting tendencies tugged for our souls, we simultaneously evolved punishment behaviors—a way to dampen cheating by increasing the short-term costs to the cheater.

But our punishment instincts are infected with the same conflict—our brains have been built to punish cheaters, but that punishment urge is intrinsically restrained, in no small part because we all know that we, too, are cheaters.

This helps explain, he argues, why modern judges and juries perform essentially the same functions that our ancestors performed 100,000 years ago. But how does this relate to capital punishment, to Friedersdorf's plea to make executions public again? Hoffman argues that by hiding punishment, modern American society has systematically compromised the intrinsic urge to restrain the punishment we mete out even to the worst among us. We've turned criminals into monsters so that we can hide them away. By hiding them away we are unable to see them again as anything but monsters.

If Hoffman is right—and his book is relentless in supporting his conclusions—then reintroducing public executions would likely have the impact that Friedersdorf and others urge. Some witnesses would, of course, revel in the savagery. But many others, comfortable today with capital punishment because they never have to see a death sentence carried out, would be repulsed by what is done in the name of the state. The evolutionary tensions Hoffman identifies would again be in full harmony.

Before the Lockett fiasco, I asked Hoffman to discuss via email how the modern American penchant for punishment is driven by evolutionary forces we (until now) probably weren't even aware of. Here is his reply, edited for space:

In our small groups, where we all witnessed the punishment, we all got a dose of personal satisfaction out of it that we simply don’t get today, in our modern, disinfected way of punishing .... [V]ictims just hear some words about how long a Defendant must spend in prison, and then see him go behind a hidden door in my courtroom ...

So victims of crime, and the general public reading about crime, never get their fires of blame doused by witnessing actual punishment .... Punishments go up because people never really appreciate the experience of prison, whose whole modern function is to take these wrongdoers away from us. But when ordinary people are actually required to decide punishment amounts—even in hypothetical circumstances—the very act of having the power to decide seems to restrain our punishment.

This disconnect between blame and punishment seems to be an especially virulent driver of what I call in the book the “one-way punishment ratchet” of modern American sentencing politics. It is very easy for all of us to blame, because we don’t face the deep evolutionary costs of also imposing punishment.

A legislator voting to criminalize some act, or even to increase the punishment for an existing crime, doesn’t feel any of the inherent restraint those of us actually imposing the punishment feel, I am guessing in large part because these remote acts engage the largely unrestrained blame circuits and not the highly restrained punishment circuits. The result: no one gets booted out of office for being too hard on crime.

Hoffman's book looks back more than forward, so he doesn't dwell on ways to bridge the gulf. But I asked him to suggest a path forward (again, edited for space):

What can be done? I am not too optimistic .... Things that might help could include: doing more to unmask prisons for what they are—places of abject punishment and not rehabilitation; requiring (I suppose just encouraging will have to do) all legislators to watch a criminal docket and visit a prison; and, somewhat ironically, trying to get judges, legislators and really all people to get in tune with our punishing natures.

By that I mean to recognize that we are all stained with original sin, or in evolutionary terms we all have been built to cheat, that jails and prisons are places where cheaters can earn their way back into the social fold, and not necessarily dumping grounds for the incorrigible.

In terms of legal changes, maybe this means legislatures should provide for, and judges should be imposing, more custodial sentences but of much shorter length. Maybe we abolish probation. Maybe ALL of us should spend some short time in jail (one day) even for the most minor of offenses, like speeding or parking violations, to appreciate the impact a loss of freedom (and loss of society) can have.

And then he suggested something radical:

Some creative thinking about reputational punishment might also help. Maybe drug dealers do a little jail time and then have to sit in a pillory in the 'hood, getting pelted with rotten fruit. My guess is that that would do a whole lot more for the community—when it needs to be able to forgive the drug dealer to accept him back—and for the drug dealer himself—when he needs to decide whether to continue dealing drugs—than any prison sentence of any length.

I know this sounds naïve to most people, certainly to most criminologists with an economic or other utilitarian bent. But part of the message of this book is that our evolved moral judgments are much more complicated than can be explained by a narrow view of “self-interest.”

Unless they are psychopaths, even the most hardened criminals are social animals with an insatiable need to belong to a social group. Reputational punishments could go a long way toward leveraging that insatiable need into real forgiveness and real reintegration.

It's hard to argue that Clayton Lockett was anything but a psychopath. But it is equally clear that many other death-row inmates are not. Some, like Warren Lee Hill in Georgia or Freddie Lee Hall in Florida, are intellectually disabled. Others, like Tyrone Noling in Ohio or Willie Manning in Mississippi, are likely innocent. Others, like Glenn Ford in Louisiana, spent decades wrongly imprisoned for crimes they did not commit.

We've evolved so much since we foraged for food in small groups, and we'd like to think our sense of justice has evolved, too. But Hoffman's book raises grave doubt about that—and the timing of that doubt could hardly be better.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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