Transcript

Evil or Sick? · Underthrow

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SPEAKER_00: The Lindsey Clancy case is resurfacing a fresh debate about mens rea and actus reus.
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SPEAKER_00: That is, the guilty mind and the guilty act.
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SPEAKER_00: And it's running along the same track as it always has.
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SPEAKER_00: Was she evil or was she sick?
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SPEAKER_00: Prison or hospital?
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SPEAKER_00: You know how this goes.
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SPEAKER_00: One side says it was a choice.
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SPEAKER_00: The other says the choice was made for her by her wiring, her childhood, her biochemistry.
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SPEAKER_00: Prosecutors build the first story.
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SPEAKER_00: Defense attorneys hire experts to build the second.
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SPEAKER_00: Then 12 people are meant to settle a question philosophers haven't settled
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SPEAKER_00: in 3000 years, ideally in time for everyone to get home for dinner.
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SPEAKER_00: The question of dessert.
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SPEAKER_00: Both sides are answering the same question, but it's the wrong question.
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SPEAKER_00: Team Criminalization asks whether the accused deserves punishment.
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SPEAKER_00: Team Clinicalization asks whether she's too sick to deserve it.
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SPEAKER_00: Both make dessert the gate through which everything else So,
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SPEAKER_00: case after case becomes a referendum on free will,
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SPEAKER_00: which nobody wins and the verdict goes to whichever story is more fashionable at
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SPEAKER_00: the time.
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SPEAKER_00: Whether the Clancy case pushes us further from criminalization
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SPEAKER_00: toward clinicalization, I cannot say.
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SPEAKER_00: I suspect it will.
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SPEAKER_00: But notice who isn't always central to either calculation.
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SPEAKER_00: The victim.
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SPEAKER_00: Three questions, one verdict.
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SPEAKER_00: The way through isn't to split the difference.
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SPEAKER_00: It's to notice that criminal law fuses three separate questions into
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SPEAKER_00: a single verdict, even though they come apart cleanly.
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SPEAKER_00: Did he do it?
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SPEAKER_00: Is he blameworthy?
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SPEAKER_00: And what is owed?
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SPEAKER_00: The first question, did he do it?
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SPEAKER_00: That's a question of fact.
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SPEAKER_00: The act either happened or it didn't, and that's answerable by police work, not psychiatry.
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SPEAKER_00: Now the second question, is he blameworthy?
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SPEAKER_00: That's a question about capacity more than diagnosis.
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SPEAKER_00: Could reasons reach him?
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SPEAKER_00: That we can investigate.
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SPEAKER_00: And a psychiatric diagnosis is evidence, not an automatic verdict.
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SPEAKER_00: Most people with any given diagnosis obey the law most of the time,
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SPEAKER_00: which Tells you that diagnosis alone can't be what exculpates.
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SPEAKER_00: Skeptics will say testing responsiveness to reasons just restates the battle of the experts.
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SPEAKER_00: But there's a world of difference between asking a clinician to determine
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SPEAKER_00: a person's motives and asking whether an actor could process a basic warning.
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SPEAKER_00: Now, the third question.
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SPEAKER_00: What is owed, and implicitly, to whom?
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SPEAKER_00: That's the question far too few people ask in these matters.
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SPEAKER_00: And the important answer is that a debt survives a diagnosis.
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SPEAKER_00: The man who smashes your window might have
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SPEAKER_00: Law professor Randy Barnett calls this restitute of justice.
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SPEAKER_00: Retribution asks what the accused deserves.
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SPEAKER_00: Rehabilitation asks what he needs.
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SPEAKER_00: But restitution asks what he owes and to whom.
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SPEAKER_00: That third question doesn't require us to solve the metaphysics of free will because
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SPEAKER_00: a debt isn't a verdict on the soul.
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SPEAKER_00: It's an accounting of who bears a cost and who ought to bear it.
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SPEAKER_00: The debt survives the diagnosis.
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SPEAKER_00: Three things fall into place once these questions come apart.
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SPEAKER_00: A man in a psychotic break burns down a house.
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SPEAKER_00: Under retributive justice, we punish someone reasons couldn't reach.
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SPEAKER_00: Under rehabilitative justice,
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SPEAKER_00: the state treats the offender and the victim's family That means
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SPEAKER_00: the loss does not automatically become the victim's burden.
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SPEAKER_00: And we get a verdict that tells the whole truth.
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SPEAKER_00: Guilty can imply a degree of culpability he didn't possess.
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SPEAKER_00: Not guilty by reason of insanity can sound to ordinary ears as though
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SPEAKER_00: the act itself has somehow disappeared.
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SPEAKER_00: But a third finding can say two true things.
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SPEAKER_00: He did it and the loss is attributable to him.
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SPEAKER_00: Whether he's to blame is a separate finding.
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SPEAKER_00: Let's not forget about the problem of therapeutic iatrogenesis.
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SPEAKER_00: A culture that routes every harm through diagnosis risks manufacturing legions
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SPEAKER_00: of helpless people with no internal locus of control who blame the world
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SPEAKER_00: for everything and answer for nothing.
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SPEAKER_00: Restitution keeps an open ledger.
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SPEAKER_00: You may not be found blameworthy,
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SPEAKER_00: but you are still answerable for paying your debts to your victims and
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SPEAKER_00: or their families.
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SPEAKER_00: You can't bill a tornado.
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SPEAKER_00: Someone will object that a man out of his mind is like a tornado, destructive but not an agent.
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SPEAKER_00: And you can't send a tornado a bill.
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SPEAKER_00: But tort law generally doesn't let insanity erase liability.
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SPEAKER_00: When one of two innocent people must bear the cost of a loss,
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SPEAKER_00: the law often places it on the person who caused it,
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SPEAKER_00: a rule the courts arrived at long
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SPEAKER_00: before anyone had worked out what causation implies about our motives.
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SPEAKER_00: In other words, restitution asks the tort question rather than the criminal one.
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SPEAKER_00: And the tort question already has a settled answer.
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SPEAKER_00: To those who object that tort only manages property
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SPEAKER_00: while crime strips physical liberty,
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SPEAKER_00: Barnett's point is that we already lock people up.
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SPEAKER_00: The question is whether we lock them up
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SPEAKER_00: to satisfy state power's debt-to-society criterion or to force
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SPEAKER_00: a structured accounting to the people they actually harmed.
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SPEAKER_00: What cannot be paid?
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SPEAKER_00: Now for the sticky part, and I won't pretend otherwise.
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SPEAKER_00: Some debts can't be paid.
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SPEAKER_00: A murderer cannot make a murdered man whole.
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SPEAKER_00: And some people will offend again the day they're free, whatever they owe.
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SPEAKER_00: Critics point out that the most violent or psychotic offenders are indigent,
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SPEAKER_00: meaning the victim's family gets nothing and the debt remains an abstraction.
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SPEAKER_00: More process do.
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SPEAKER_00: That said, restitution can't be the whole system.
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SPEAKER_00: But where restitution runs its course,
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SPEAKER_00: restraint begins and restraint is dangerous,
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SPEAKER_00: because at least debt has a number attached to it.
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SPEAKER_00: Dangerousness doesn't.
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SPEAKER_00: So the constraints on authority have to tighten that line, not loosen.
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SPEAKER_00: If we can fine a man because he's dangerous rather than because he's indebted,
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SPEAKER_00: we owe him more process, not less.
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SPEAKER_00: Restraint in these cases isn't retribution.
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SPEAKER_00: It is an act of society's self-defense designed for innocent civilians
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SPEAKER_00: to be protected from those likely to re-offend.
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SPEAKER_00: Look at who the authorities can hold the longest.
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SPEAKER_00: A convict has a sentence with an end A man acquitted by reason of insanity does not.
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SPEAKER_00: And in 1983,
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SPEAKER_00: the Supreme Court held that because an insanity acquitty is confined on grounds
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SPEAKER_00: of mental illness and dangerousness rather than punishment,
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SPEAKER_00: the maximum sentence he might have served And a man found incompetent
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SPEAKER_00: to stand trial gets no verdict at all.
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SPEAKER_00: He can wait in a county jail sometimes for months,
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SPEAKER_00: and in some jurisdictions far longer,
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SPEAKER_00: for a hospital bed, while the question of guilt remains unresolved.
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SPEAKER_00: So right now we have this backward in both directions.
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SPEAKER_00: The insanity acquitty gets less protection than the convict, potentially anyway.
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SPEAKER_00: The man on the competency waitlist gets less than either.
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SPEAKER_00: Due process limits the state's use of force,
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SPEAKER_00: but the accused loses his liberty whether we call it a sentence or a treatment plan.
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SPEAKER_00: The Determinist The determinist will say all of this misses the point.
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SPEAKER_00: If the laws of nature are fixed,
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SPEAKER_00: no one is ever responsible for what they do, and justice is just a useful illusion.
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SPEAKER_00: Maybe so.
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SPEAKER_00: But watch what the determinist does when he says it.
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SPEAKER_00: He doesn't throw a rock.
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SPEAKER_00: He doesn't hand you a prescription.
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SPEAKER_00: He argues, which means he tries to change your mind.
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SPEAKER_00: He treats you as precisely the kind of creature that reasons can reach.
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SPEAKER_00: Even if he claims he's just running new physics on your neural software, fine.
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SPEAKER_00: If an argument is just informational cause and effect,
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SPEAKER_00: then holding a man to his debt is the exact cause and effect needed to keep
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SPEAKER_00: a free society intact.
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SPEAKER_00: That isn't proof of some uncaused ghost in the machine.
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SPEAKER_00: It's just the everyday thing that agency requires.
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SPEAKER_00: We need the useful illusion.
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SPEAKER_00: So,
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SPEAKER_00: when the next headline breaks and the country splits over whether a subject was evil
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SPEAKER_00: or sick, don't accept the choice.
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SPEAKER_00: Ask whether she did it.
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SPEAKER_00: Ask what capacities she possessed, but don't stop there.
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SPEAKER_00: Ask what she owes and ask who's been left holding the bill while the rest
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SPEAKER_00: of us debated her state of mind.
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SPEAKER_00: I'm Max Borders.
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SPEAKER_00: Let's criticize by creating.
9:52
SPEAKER_00: Underthrow is brought to you by Human Respect Labs,
9:55
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9:59
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10:14
SPEAKER_00: That's humanrespectlabs.org.