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.