A person is caught stealing groceries from a supermarket. How should the justice system sanction such behavior?
In the modern system of criminal justice, the sentence imposed on such a perpetrator should prevent that person from repeating the crime, demonstrate to society that such behavior is undesirable hence punishable, penalize the person for the morally wrong deed, and try to rehabilitate the criminal. As analyzed by Becker (1968), deterrence relies on the postulate that the threat of criminal punishment alters the cost-benefit calculation of rational agents.
But what if it doesn’t?
A kleptomaniac, for example, steals because of some uncontrollable impulses. Punishing a kleptomaniac will seldom affect his future behavior as the urge of stealing goes beyond weighing costs and benefits. Besides, how does one justify punishing an individual for actions that go beyond his or her control? One rationale hinges on an assumption of asymmetric information, whereby an individual’s preferences are known only to him, so that the justice system cannot differentiate between kleptomaniacs and opportunistic thieves who claim they suffer from kleptomania. Thus, identical criminal acts perpetrated under identical and verifiable circumstances require identical punishment. The societal cost of deterring opportunistic behavior with criminal sanctions is the punishment of individuals who have no control over their actions.
An improvement could be achieved if kleptomania is reliably diagnosed. The criminal justice system is then able to apply sentences that take into account kleptomania as an additional verifiable circumstance. For example, a defendant who presents a verifiable proof of his sickness could receive medical treatment, while others are dealt with by the system of criminal punishment.
The advances of neuro-cognitive science and neuropsychiatry, MRT, and EEG generate a growing body of research linking brain dysfunctions and abnormalities in the neurobiological processes to violent and criminal behavior (e.g., Brower and Price 2000; Jemar et al. 2017). This evidence questions the rationale of criminal punishment for all perpetrators. If a person cannot foresee the consequences of his actions and does not desire the consequences to happen because of his brain abnormalities or injuries, the punishment loses its purpose. Better understanding of the causes of criminal behavior and the ability of new technologies to reliably verify illnesses will re-qualify many crimes. More and more criminal sentences will be replaced by medical treatments.
A similar argument could be made for the principles of distributive justice. The individual’s outcomes (for example income), depend on that individual's endowments and the exerted efforts. An individual has no control over his initial circumstances (i.e., the wealth of his parents), but is responsible for his choices (how many hours to work per day). Dworkin (1981), and Sen (1985) consider that a just society might want to equalize, through redistributive policies, the initial endowments, giving each individual equal opportunities to achieve their goals. Inequality in outcomes, resulting only from differences in choices individuals make, is socially acceptable.
If one believes people should not be prosecuted for the crimes they committed because of some genetic predisposition, a poor disabled person should be subsidized, because his income, to a large degree, is determined by circumstances outside of his control. While the criminal justice system seeks to verify the motives of crime, the challenge in designing socially-just policies is to determine what part of an observed outcome is determined by exogenous conditions and what part is a result of choices. The literature on inequality of opportunity contrasts the compensation principle that requires elimination of “unfair” inequalities due to circumstances, and the reward principle that is concerned with preservation of “fair” inequalities due to differences in efforts (Fleurbaey 1995). For example, income inequality related to gender or race should be eliminated, while incomes of hard working individuals could and should be higher than average.
Studies of twins and emergence of genome-wide association studies in behavioral genetics indicate that nearly all types of human behaviors are determined by genes. Genes are found to influence creativity (Liu et al.2018), social interactions and isolation (Day et al, 2018), alcoholism (McGue 1999), cognitive abilities, self-control, academic difficulties, truancy (Wertz et al, 2018), financial risk taking (Kuhnen and Chiao, 2009), etc. We expect innovations in molecular genetics to provide further evidence linking personal outcomes to genotypes. And the answer to a question whether a person is more responsible for being lazy than he is responsible for being male will become much more nuanced.
These developments will shift the discourse on inequality and, in a broader sense, on social protection from the moral to the technical domain. The larger the share of “explained”, verifiable behavior, the less individual outcomes could be attributed to the voluntary efforts. At the limit, all inequalities in outcomes become inequalities of opportunities.
Does that mean all incomes will be equalized and society will move to the communist principle of redistribution - “from each according to his ability, to each according to his needs” (Karl Marx 1875)? No, because while prices have the role of providing incentives in a world of asymmetric information, their role is not limited to that. For prices, in the words of Hayek (1945), “can act to coordinate the separate actions of different people in the same way as subjective values help the individual to coordinate the parts of his plan.” Redistribution is then concerned about trading inequality of incomes against the efficient allocation of resources. For instance, some sectors of the economy need workers with specific attributes, which despite being genetically determined, will always need to rely on lucrative contracts to attract the appropriate labor force. A vivid illustration is the fashion industry, which explicitly considers physical attributes in hiring decisions, while in Michigan for example, height and weight discrimination is explicitly illegal.
As we collectively better understand human decision-making and reliably observe the internal and external circumstances underlying choices, individuals will become less and less responsible for their acts and more and more viewed as victims of their preferences. Social norms and the moral stigma attached to some behaviors will certainly evolve accordingly.
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