What if we decided that the contradictory and divergent mess of attitudes and ideas towards crime that are distributed across class, race, and gender lines in contemporary American society derive from foundational sources that just cannot be redeemed or repaired on the way to some better future? If you had to boil it all down to the key strains of thought and practice that formed various contemporary ideas and institutions, I think you’d likely see five major components: British common law and “popular constitutionalism” as it emerged in the 17th Century; Anglo-American liberalism as it crystallized in the 19th Century; American forms of racial hierarchy and domination, particularly those tied to slavery and its legacies; the systematization of judicial systems associated with the modern nation-state in the late 19th Century through to the Cold War; post-1945 frameworks extending concepts of rights in tension to post-1945 frameworks of social control.
All of that makes for contradictions of all kinds—both those that are genuinely incoherent and unplanned in their manifestation and those that grease the wheels for forms of injustice (say, by speaking liberalism out loud while practicing racial discrimination systematically).
So you could say: let’s rationalize the whole thing! let’s have a single coherent vision of crime and justice that is built on top of a true, empirically verifiable understanding of human motivation and human action!
You could also say, “Let’s build a cheap and durable faster-than-light spaceship using pigshit and unicorn farts” and be on roughly similar ground when it comes to plausibility. Human systems have never been built that way and never will be. We don’t make our institutions, our ideas or our languages from rigorously worked out first conditions. When we perceive an underlying idea or philosophy behind existing practices, it’s always post-facto. (In fact, by the time you’re able to describe human practices in terms of a systematic sketch like “feudalism”, it’s usually because what you’re describing is in the past and because you’re someone desperately trying to sell a new system or approach via caricaturing some already-gone system that never was all that systematic in reality anyway.)
But as in that case and many others, change in human-built systems and cultures is sometimes influenced by the construction of a radically new premise or philosophy. Taylorism’s vision of “scientific management”, of how to make people more productive in industrial workplaces was in some sense hucksterism and never became as dominant or widespread as either its advocates or critics imagined, but it led to real changes in work processes and it led to changed ideas about industrial labor and bodily discipline—and it’s still visible inside more contemporary neoliberal practices of management and workplace organization.
So is there anything out there today that could raise its hand and say, “Here’s the way people really are, so use this body of theory and research as a comprehensive foundational basis for your future institutions involved with crime and justice”?
I think there is one body of thought that could, and the fact that it mostly doesn’t may be an indicator that its most prominent proponents don’t fully believe in the implications of the strongest claims associated with their work. What I have in mind here is newer social psychology and cognitive science associated with the research described by Daniel Kahneman in Thinking, Fast and Slow.
I’ll start by saying that in broad terms I find the basic outline of Kahneman’s thought convincing enough, and it seems to rest on a body of replicable, careful research, unlike some of the more speculative extensions of this work by evolutionary psychologists and cognitive scientists. The fundamental thrust of Thinking, Fast and Slow is that much human action that we attribute to conscious intent originates from “fast thinking” that is not conscious. In those cases, the stories that we tell about our intentions are post-facto inventions that we use to conform our sense of self with various external expectations of conscious and rational intention that in fact did not produce our actions.
Kahneman stresses that there are in fact actions and ideas that originate from “slow thinking” that are conscious, intentional and potentially subject to some form of governing, initiatory reason. Equally, he stresses that it is possible for people to shift some of the actions they take to slow thought where slow thought yields better social or systemic outcomes or for that matter better self-interested outcomes—but that only so far. In Kahneman’s research framework, the sovereign rational individual that is at the heart of classical liberalism not only doesn’t exist, it can’t exist. Our minds just don’t work like that.
That basic point of departure is yielding interesting and useful insights in fields like behavioral economics and social psychology. It’s also powering a lot of latter-day behavioralist hubris like “nudging” that rests on the not-entirely-openly-stated assumption that some people are mostly slow thinkers who are qualified to manipulate the fast-thinking masses towards ends that the slow thinkers have deemed to be in the best interests of the masses. Or it’s leading to confused, contradictory, half-baked arguments like Jonathan Haidt’s The Righteous Mind that go way beyond what the underlying research suggests while showing a deep incuriosity about some of the implications of the claims being made—say, for example, why modern political institutions are built from and on behalf of a cognitive disposition that he defines as aberrant.
I will restrain myself from further dismissals, though long-time readers know I can go on for a good while in that vein. Let’s do something different this time: let us suppose that the strongest possible version of Hahneman’s characterization of human consciousness is 100% on the money. Suppose then that we have to make institutions around crime, punishment and justice that are equally 100% premised on this characterization. Throw out everything in our current sociocultural mix that is premised on the idea that people can be held accountable for their actions normally, that people have a coherent form of consciousness and personhood that is self-determined and self-owning. What does a simplified, very strong framework built on the proposition that mostly we think fast and only rarely do we think slow mean if we used it as an exclusive determinant of the future of crime and punishment?
Propositionally, at least some of the basic idea is already reflected in Anglo-American criminal law. The law recognizes a difference between criminal actions that involve no intention, actions that do not involve fully conscious or reflective intention, and actions that are seen as fully reflective and conscious, and defines the latter as the worst kind of offense. E.g., manslaughter, third-degree murder, first-degree murder.
Our current criminal code also recognizes, in complicated and contradictory ways, both temporary and permanent impairments of the capacity to consciously reflect upon and decide to commit a crime. Young children, people with permanent intellectual disabilities, people who are judged to be suffering from some more transient mental illness, people who are under the influence of mind-altering drugs or substances, are at least sometimes considered to have reduced accountability (or no accountability) for crimes they commit.
If we took Thinking, Fast and Slow as the new scripture underlying all criminal law or for that matter moral judgment, however, this consideration would have to apply to everyone. Most of the time, most of our actions, criminal or otherwise, would have to be regarded as arising from thinking fast. Kahneman and other researchers following his lead in particular identify actions that involve social relations and social hierarchy as largely stemming from fast thinking, most prominently forms of bias and discrimination. In the book, Kahneman doesn’t talk much about the cognitive causes of violent action, but it’s very clearly included in the framework (and is the subject of some research that follows this framework).
Thinking, Fast and Slow is far more concerned, however, with the ways in which we make judgments about the actions of others, whether we have directly witnessed those actions or whether we are presented with that evidence—most relevantly, in a criminal or civil trial. That’s where a new system entirely premised on this kind of research finding would have to be radically different than what we have at present. The complicated upshot is that on one hand, there is really nobody at present who consistently “thinks slow” about crime or moral transgression and there is no system which institutionalizes “thinking slow”. It is hard to fully process what that future system or practice might be like. Eyewitness testimony would have little value in that system. Adversarial legal representation is built around making juries and judges “think fast” in a way that produces falsehoods. You’d need a system that was elaborately double-blinded in ways that are improbable or impossible to imagine if human beings were still involved in making judgments.
And you’d need a system that redefined much of what we consider to be crime or moral transgression as not being deliberate choice of a conscious mind. Only “thinking slow” could continue to be treated that way. From the vantage of the present, it’s hard to see how that could be anything but dystopian if we still retained systems that tried to restrain or punish actions deemed to be criminal or transgressive. We could no longer imagine that a sovereign mind was being held responsible and might be rehabilitated or deterred through incarceration, fines, or civil judgments. We would have to instead imagine systemic forms of discipline and constraint arrayed against fast-thinking humans designed to prevent them from behaviors or practices deemed to be anti-social. We’d have to think about the inputs that shape fast-thinking: a system designed to deal with crime and moral transgression couldn’t help but pursue controlling the content of popular culture, household life and childhood education. The social specificity of “fast thinking” derives at least somewhat from the messages and ideas that surround people. If those systems of prevention failed, our main thought would have to be with improving those systems of discipline and constraint and systems of control, not with persuading people to act differently.
We might argue for training people to switch from fast thinking to slow thinking, and that would not be that different than cognitive behavior therapy as it is presently practiced. The question when it comes to justice and crime is whether we’d hold people individually responsible if they had in fact switched to slow thinking (or been reasonably given the opportunity to learn that). If so, you’d almost wonder whether it would be better off to continue to be judged as a fast-thinking animal who can only be constrained or disciplined.
None of this is unfamiliar or even hypothetical. Various forms of behavioralism have been influencing social policy since the mid-20th Century, including criminal justice and attempts to control the content of popular culture. There are reasons why that influence has been modest or limited.
On the deepest level, the problem with a Kahneman-esque framing may simply be: why is anything a crime or a moral transgression? It’s hard to see how you get to a statement about values from a strong cognitivism. This is to some extent one of the points of Jonathan Haidt’s Righteous Mind, in fact: that there are two major cognitive dispositions that produce competing political and social values. In the end, Haidt’s major values proposition is simply that if the one disposition (the liberal WEIRD disposition) wants to succeed politically, it has to learn to understand and respect the conservative cognitive disposition. What’s not clear from his perspective is why that matters, unless it’s just a kind of tautological argument about fitness in a competitive landscape—that all cognitive dispositions want to dominate because they want to reproduce because that’s just what any population does.
There isn’t any way from inside this new cognitivism to make value statements that stand on their own. Why is violence bad? Why bias bad? Why is theft or exploitation bad? Why should anything be a crime? If it’s the way thinking fast works, it’s the way it works: it must come from something adaptive, and if it persists, it must still be adaptive against the fitness landscape that human beings operate within. You can’t look at the actions we call criminal in 2021 and say straightfowardly that crime should be discouraged, retrained, disciplined or prevented from within this framework. Sometimes it’s extremely beneficial to the person committing the crimes. You can’t say common moral transgressions are consistently or inevitably bad for the transgressor. Crime does pay, especially if the criminal is already in a position of social and economic power. If it’s bad for victims and survivors, well, why should we care? When does that actually threaten anybody but them, and we’re not them, who cares?
It’s not really a surprise to me that scholars working from Kahneman’s basic premises do not argue for comprehensively replacing existing institutions to be consistent with those premises: it’s mostly tweaks and adjustments, even though they seem to call for something more dramatic. It seems to me that using it as a comprehensive logic of social and political institutions of any kind, whether it’s Skinner boxes or seeing most human action as the product of thinking fast, feels dystopic if you take it to its maximum implications.
The basic take-away here is that in the domain of crime and justice—and maybe any domain—building the better future that is possible is never going to be a matter of wholly swapping out the messy, contradictory foundations of our own social and cultural formations, our own institutions, in favor of some more consistent, coherent and allegedly empirical understanding of human nature or human behavior. It doesn’t work like that. You have to work with what you’ve got, even if you’re introducing novel elements and ideas here and there. You can’t think about “better” without a language of values that guides the road between now and then: equity, justice, safety, reason, freedom, beauty, peace, truth.