Moral Judgment: Does the Abuse Excuse Threaten Our Legal System

“Moral Judgment: Does the Abuse Excuse Threaten Our Legal System,” By James Q. Wilson.

James Q. Wilson’s “Moral Judgment: Does the abuse excuse threaten our legal system?” (1997) is a good contribution to a usually muddled discussion. I think that even people, like myself, who disagree with most of Wilson’s attitudes toward criminal justice should agree with most of what he says here.

Wilson favors a vocabulary of religion and traditional philosophy and displays a certain longing for English Victorian traditions. He has nothing to say, though the opportunity couldn’t offer itself more starkly, of attempts that might be made, and made at less financial and human expense, to prevent crimes from occurring through non-punitive means like education, the
elimination of poverty, help for drug and alcohol abusers, attempts at reconciliation of disputes, banning handguns, improving pop-culture, etc. Wilson is not disturbed by America’s extreme rate of incarceration, and slants his figures to minimize it. (For example, on p. 4 he says that Americans’ belief that our courts are “more likely” than other nations’ to excuse an offender and to moderate a penalty is “right” because an offender’s chances of going to prison are “about the same” as in four other countries.) Wilson suggests that we may imprison so much because our crime rate is so high, and that our crime rates (in certain ways) may be so low because we imprison so much. Obviously an opposite case could be made with exactly equal plausibility: our crime rate is high despite or because of our culture of incarceration, and we incarcerate despite low crime rates (and because of factors like political cowardice and financial profit for prison companies).

Wilson favors the best science in court rooms, but takes for granted certain powers of deterrence for which there isn’t any evidence of that quality. Wilson also speaks of “deterrence and retribution” without explaining the latter term at all. Wilson seems (bottom of page 4) to think that it is good to imprison based on a past record, though on pp. 90-91 he cites a study
showing that juries vary their sentences radically based on records, on psychological testimony, and on the likeableness of a person – things which Wilson, rightly, I think, complains are largely irrelevant. (Though I don’t expect to hear him questioning the use of juries.)

Wilson also has relatively little to say about the horrors of our prisons as reported by many human rights groups. He describes inhumane punishment as a thing of the past. And he dwells little on the possibility that some acquittals that have been labeled cases of abuse-excuse may be jury nullification on the basis of disagreement with laws and/or punishments. In two instances Wilson does show that he is aware of the prevalence of this sort of thing (pp. 77, 110).

I am obviously coming at these matters from a different perspective than Wilson. But I agree with his main point and take it to be an important one. There is a difference between explaining the causes of a crime and dealing with that crime in a court of law. An explanation is not necessarily an excuse, and vice versa. I even think that Wilson is right in those cases
where some readers will, no doubt, call him sexist or racist. I do not think that past abuse of a wife justifies a wife’s killing a sleeping husband. I think that treating a woman as helpless is precisely NOT feminism. I would even combine Wilson’s dismissal of the alcohol excuse with his dismissal of the female excuse and say that, yes, on occasion drunk women willfully have
sex (though, of course, a drunk woman can also be raped).

That said, I think that Wilson could make his case a little better. The abuse-excuse is part and parcel of the same way of thinking that convicts criminals in America, a way of thinking from which Wilson does not attempt to escape. This thinking might be called anti-consequentialism. It is sentimental and backward-looking. It may lean toward vengeance or sympathy, but it does not aim at reducing crime and crime’s damage in the future. It
does not take seriously goals of restitution, reconciliation, rehabilitation, protection, or even deterrence (which needs to be studied and at least guessed at, not just assumed). Wilson approves of some moderate degree of sympathy and vengeance, but not of what he sees as their extremes. This is different from treating them as irrelevant in a court of law and productive both of the excuses that bother Wilson and of the “Victims’ Rights Movement” and its lynching speeches which bother some other people.

Wilson recognizes the conflict that most people believe exists between responsibility and determinism. He professes (and I’ve never seen an even remotely convincing argument for anything else) a belief that everything is caused. He then points out that if we excuse whatever is caused we will excuse everything. This, he says, is absurd, and therefore we shouldn’t do
it. I agree with the conclusion, but am not sure the argument will convince everyone. For Wilson, anything that requires radical change is, for that reason, wrong. On pp. 60 and 100 he dismisses certain conclusions because to accept them would require rewriting a lot of laws and court decisions. Well, so what? Is that a good enough argument for people more open than Wilson is to change?

I think there is an argument for Wilson’s position that will be more persuasive to people who, for example, would like to see our incarceration rate drastically cut. Wilson analyzes the problem well. He points out that juries often long for an explanation of how something came about. But he does not do enough to prove his point that such longings should, in many cases, be irrelevant. Wilson suggests admirable rewordings of legal distinctions. And he makes a strong case for holding people responsible for their delusions and misconceptions. But he doesn’t make a clear enough case.

Wilson bases this last stance on the standard of what a “reasonable person” would do, rather than a “subjective” judgment. But he, himself, sometimes scare-quotes and makes fun of the notion of a “reasonable person.” The judgment and sentence ought to be based on what is needed in the way of rehabilitation and restitution, and what we can best predict is needed in the
way of protecting society and deterring others. This forward-looking approach is possible, albeit uncertain. A backward-looking one is imaginary. (“Could he or a ‘reasonable person in his place’ have been deterred?”, “Did he know that what he was doing was ‘wrong’?”) Wilson’s only attempt to explain what he means by “wrong” (p. 41) seems to define it as whatever a child wants to do but doesn’t want his mommy to see him do. But what is the relevance of wanting to keep something secret? Elsewhere, Wilson indicates, rather persuasively, that the only mental-state question he considers relevant is that of (really severe) insanity. Some criminals want their crimes publicized while some lunatics try to keep secrets.

Wilson is also a little quick with his distinction between “soft” and “hard” science. He does not seem to recognize that there will always be disputes over whether some science, such as the polygraph, for example, is one or the other. The sharpness of his distinction and the ridicule he gives “soft scientists” is a little odd coming from a self-acknowledged “soft scientist” whose book contains arguments that hardly meet a traditional scientific test. (For example, he claims to show that English courts are not biased against defendants by comparing their conviction rates with America’s. But this makes certain assumptions about the biases of American courts and the laws and the behavior of the police and prosecutors in both countries.)

Arguments for the compatibility of determinism and “responsibility” or “freedom” can be found through the entire history of philosophy, prominently in modern times in David Hume and Jean Paul Sartre, and recently in Eugene Schlossberger and George Thomas, to name only two writers from a large group. The strongest of these arguments suggest not just that excusing everything would be weird but that excusing everything is not required by the facts. It
has been well-argued that we do not typically excuse because something is explained, but rather because the explanation tells us something about intention. Beginning to excuse things just because some of their causes are pointed out would be a change, not an adherence to principle.

But some change is needed in how we talk about what we are doing if we are to be able to continue doing it. We need to drop the idea of “free will” as omething opposed to causation. We need to rework our vocabulary to make clear that choice-making and causality are not in conflict. I cannot rehearse a thorough argument for this here, but have written on it elsewhere. A huge literature is available on the topic. Until this is done, Wilson’s position will seem like a failure of philosophical nerve, not a redescription of human activity. It would be a shame if Wilson proved to be too much of a die-hard traditionalist to devote his great talents to making a better case against the abuse-excuse.

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