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“I punish you because you harmed him!”

Friday, April 27, 2012
posted by Rita Handrich

Humans appear to be the only species who are willing to punish others who lie, cheat, steal or violate social norms even when they [the punisher] were personally unharmed or don’t stand to directly benefit from punishing the wrong-doer. The practice is called “third-party punishment”. Ironically, punishment itself is thought to have a foundational role in maintaining the level of cooperation in our modern societies. We obey rules and cooperate with each other to avoid punishment.

New research by neuroscientists [Buckholtz & Marois, 2012] indicates that we make decisions to punish bad behavior based on an evaluation of the actions and mental intentions of the criminal defendant. Rather than being impartial decision-makers who employ logic and rationality–much of our motivation for punishing seems to be driven by our own negative emotional reactions to the harm caused by the criminal behavior.

The researchers indicate that our amygdala (the part of the brain associated with emotional responses) causes us to combine our emotional responses to the actual behavior with the evidence we have about the situation itself. In other words, a juror has to integrate the information on their sense of the defendant’s mental state and the amount of harm done, with their own emotional reaction to the crime itself. So how do we keep the input from the amygdala (i.e., the strongly emotional input) from over-riding the evidence?

This is a constant tension in pre-trial research. We routinely see jurors that argue based on rationality and those who argue based on emotionality. We want to identify the most persuasive arguments for both positions and weave them into an ultimately effective trial narrative. But it’s about the brain. Our brains do things automatically. We are regularly reminded of this as we monitor the ever-increasing “my brain made me do it” defenses. Those defenses focus on ‘differences’ in the brain during the criminal act that (they believe) absolve the defendant of responsibility for their criminal behavior.

A recent fMRI-based Japanese study [Yamada, et al.], focused instead on what is occurring in the brain of the juror as they weigh ‘mitigating circumstances’ in a fact pattern that involves murder. Their results support the decision-making model proposed by Buckholtz & Marois in showing via the fMRI results, how various areas of the brain “light up” when sympathy enters into decision-making regarding punishment for the crime of murder.

In the Japanese study, the researchers identified several reactions in the brains of participants when given information on actual Japanese murders, mitigating circumstances for the defendants, and when asked to decide a punishment. Researchers watched as sympathy lit up different areas of the brain [e.g., the dorsomedial prefrontal cortex, precuneus and temporo-parietal junctions] than did decision-making regarding sentencing [e.g., the precuneus and anterior cingulate cortex].  The researchers report that mitigation appears to be based on negative emotional responses to murder, sympathy for mitigating circumstances, and the cognitive control to determine length of the punishment.

In plain English, decision-making was not a strictly rational process, but incorporates emotional judgments as well. We have known for years that Aristotle was simply wrong when he said, “The law is reason, free from passion.”. Or perhaps Aristotle was right about the “law” itself but not about how it is applied in serious disputes.

We are a people of both reason and passion. The law reflects reason and our interpretation of that law, combined with our life experiences and visceral reactions to the event, often reflects a complex combination of our reason and our passions. We know some groups of jurors have more sympathy for mitigating circumstances. We know some prefer a Dragnet approach to justice: “Just the facts, ma’am”.

In any group of twelve, you are likely to have those swayed by sympathy and those determined to apply the evidence to the law without regard for sympathy. What these two very different studies have to say to us is that all of us make decisions based on both evidence and emotion. Telling stories that speak to both ends of the continuum always serve us well, as your jury is bound to include both types.

Buckholtz, J., & Marois, R. (2012). The roots of modern justice: cognitive and neural foundations of social norms and their enforcement Nature Neuroscience DOI: 10.1038/nn.3087

Yamada M, Camerer CF, Fujie S, Kato M, Matsuda T, Takano H, Ito H, Suhara T, & Takahashi H (2012). Neural circuits in the brain that are activated when mitigating criminal sentences. Nature Communications, 3 PMID: 22453832


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