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Ideas | Maria Devlin McNair

Should the law be based on luck?

adobe/globe staff

Should the law be based on luck?

The Supreme Court doesn’t think so. In its 1978 decision in United States v. Grayson, the court affirmed that a “foundation stone in our system of law, and particularly in our approach to punishment, sentencing, and incarceration, is the ‘belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.’ ”

This belief is central to what some theorists describe as our country’s retributive attitude to punishment. When people freely choose to commit a crime, they deserve to be blamed and to suffer for their actions. But prosecution cases amidst today’s opioid epidemic reveal some cracks in this foundation.


Opioid addiction poses questions that our traditional ways of understanding crime and punishment are ill-suited to answer. It’s a condition in which free will is no longer free and where deterrence doesn’t deter. And when it comes to who overdoses and who gets punished, justice can become a matter of chance.

In May, The New York Times ran a story on several people who had supplied drugs, including opioids, to friends and family members. When their loved ones later overdosed on those drugs and died, these people were charged with their deaths. “None of these survivors intended to cause a death. In fact, each could easily have been the one who ended up dead,” reporter Rosa Goldensohn wrote. It was good luck that they lived — and bad luck that the others died. Nevertheless, “all were charged with murder.”

Thirty-six states have passed laws to charge people with manslaughter or murder for supplying a drug that leads to another person’s death. Law enforcement official Dan Mimnaugh said of drug overdose laws in Pennsylvania, “Our goal is to make somebody responsible for that death.” Making someone responsible seems to violate the law’s supposed foundation in free will and to hold people responsible for unintended consequences. In other words, we blame them for bad luck.


Blaming people for luck, psychologists have found, is a natural function of the brain in some ways. We feel inclined to punish people not only for their bad intentions but also for harm they never intended. Harvard psychology professor Fiery Cushman, who studies the moral dimensions of luck, examines why this is so. He describes a hypothetical scenario in which two friends have a few too many beers at a bar. Each drives home, falls asleep at the wheel, and spins out of control on a snowy road. One is lucky, and spins into some bushes. The other is unlucky and hits a little girl. We feel conflicted about how to punish the two drivers because different approaches to punishment correspond with different goals.

“On the one hand, I feel like these two drunk drivers should be treated equally,” Cushman says in an interview. “That’s the part of your brain that’s designed to choose future social partners. . . On the other hand, I feel like one of these people should be punished a lot more than the other . . . that’s the part of your mind that was designed to teach people and modify their future behavior by showing them something about the consequences of their behavior.” He adds, “Those two parts of your brain are in a fight with each other, and that friction between two different mental systems is what generates all the heat and controversy.”


Cases like that of the unlucky driver create a conflict in our brains between two different ways of assessing guilt: by intent or by harm done. But our justice system has, at least in principle, decided which of these ways will operate in our criminal courts.

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The defining concept of criminal guilt is “mens rea” — the guilty mind. The idea of mens rea emerged from 12th- and 13th-century developments in Catholic canon law that redefined criminal guilt to align it more closely with notions of sin: Your will is what makes you guilty. Criminals are distinguished by their freely willed intent to commit (or at least risk bringing about) a culpable act.

This vision shaped European and then American legal systems for centuries. But in the early 1900s, American social scientists proposed an alternative view. They saw crime as a matter of social, not individual, responsibility. They had studied the ways in which environmental factors, including poverty, could lead people to commit crimes, and they advocated for criminal justice reforms that aimed to rehabilitate those criminals.

This progressive vision found a second wave in the 1960s. The 1967 report “The Challenge of Crime in a Free Society” called on the government to fight crime by fighting poverty. But when crime rates rose in the mid-’60s, many politicians turned their focus back to fighting criminals. Candidates Richard Nixon and George Wallace promised to restore law and order. The 1968 Republican Party platform affirmed, “We must re-establish the principle . . . that criminals are responsible for their crimes.”

The following decades witnessed an aggressive government crackdown on crime. The goal shifted from rehabilitation to retribution. Following the overdose death of basketball star Len Bias in 1986, Congress passed the 1986 and 1988 Anti-Drug Abuse Acts, introducing stringent new policies like mandatory minimum sentences — part of the reason why almost half a million people are currently behind bars on drug-related charges.


Today, the drugs that concern legislators most are opioids. In April 2018, Massachusetts created new mandatory minimums for trafficking synthetic opioids like fentanyl, and the US Senate discussed a bill that would impose heavier penalties for trafficking or distributing fentanyl. These laws were designed to target dealers who, legislators believe, freely choose to distribute drugs and therefore deserve to suffer for their actions.

The belief in criminals’ immorality is taken to justify the extreme punishments that we seek to inflict on them. Psychologist Steven Pinker critiqued this view in his book “The Better Angels of Our Nature”: “The world has far too much morality. . . The human moral sense can excuse any atrocity in the minds of those who commit it.” We feel authorized to make someone suffer because we believe he has freely violated our moral codes.

Today, however, neuroscience shows at a biological level what early 20th-century scientists showed at a social level: Our behavior has influences we cannot control. What we identify as free will, a person’s decisions and choices, always operates under a set of environmental and genetic constraints. In some cases — like the mass shooting committed in 1966 by Charles Whitman, who was later found to have a brain tumor — there’s an identifiable disorder. But in other cases, these constraints are part of typical development. New research shows how the brains of 18- to 25-year-olds — traditionally treated as adults by the law — are still developing the crucial decision-making and impulse control mechanisms that would otherwise restrain criminal behavior, leading scientists to advocate for mitigated sentences for this age group.


But the real importance of this research goes beyond any particular person or group. It has to do with the way we rationalize punishment. When it comes to explaining a crime, the first thing we ask, write psychologist Joshua Greene and neuroscientist Jonathan Cohen, is whether it was freely chosen. We ask questions like, “Was it him, or was it his circumstances? Was it him, or was it his brain? But what most people do not understand. . . is that there is no ‘him’ independent of these other things.”

If we did understand that fact, Greene writes, we would continue implementing laws and punishments — but for a different reason. We punish people because doing so effectively reduces the occurrences of the criminal act, not because it inflicts deserved suffering on an evil soul. “Whenever the causes of someone’s bad behavior are made sufficiently vivid,” Greene writes, “we no longer see that person as truly deserving of punishment.”

Neuroscientist David Eagleman agrees that “Was it his fault, or his biology’s fault?” is the wrong question to be asking. In his 2017 Atlantic article “The Brain on Trial,” he explains, “The choices we make are inseparably yoked to our neural circuitry, and therefore we have no meaningful way to tease the two apart.” In other words, there’s no reliable way to separate free will from luck. Therefore, Eagleman says, we should stop focusing on blame altogether. Blame is “a backward-looking concept that demands the impossible task of untangling the hopelessly complex web of genetics and environment that constructs the trajectory of a human life.” We need to look forward instead, he argues, to study how an individual is likely to behave from now on and how we can structure social incentives so as to deter destructive behavior in the future.

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Some institutions, like the Young Adult Court in San Francisco, are already moving in this direction. They recognize a need to deter, sanction, and reform. But they reject the impulse to judge the defendant’s morality or free will. These programs show promising results, and they might be welcomed by the many lawmakers who are skeptical that more mandatory minimum sentences will effectively reduce the supply and demand of opioids.

Neuroscience, social science, and psychology reveal how hard it can be to find where responsibility lies. It can be impossible to parse exactly how “free” a person was to make a certain choice or avoid a certain outcome — and thinking they have parsed it can license dangerously vengeful attitudes. Instead, we can put aside the question of free will and blame altogether and focus on producing the best future outcomes for defendants and for society.

Sometimes the best outcome will mean taking action based on luck and holding people responsible for unintended harm. But responsibility needn’t only mean just punishment. Instead, says Cushman, we can think of accidents as “teachable moments.” “When a person causes harm accidentally, there is an important lesson to be learned,” the Harvard psychologist says. “Whatever else we do, we want to find that silver lining in an unfortunate situation and make sure the lesson is learned.” But in our everyday lives, we use not just penalties, but also conversation and expression of emotion to teach people how their careless behavior needs to change. “Maybe there are ways for courts. . . to teach [defendants] an important lesson without ‘punishment’ per se.” Restorative justice practices, which prioritize dialogue and mediation, have yielded positive results.

It’s impossible to erase all traces of luck from our justice system. But Cushman’s approach shows why we don’t necessarily need to — not if we adopt some new approaches that allow luck to help us learn.

Maria Devlin McNair, a St. Louis-based writer and recent Harvard PhD, is a producer of the podcast Ministry of Ideas, available on iTunes, Google Play, and