1000 words; 4 minutes to read.

Many of the debates in criminal justice eventually come down to the question of how we understand wrongful behaviour.

For most of human history, we have seen wrongdoing as lying in the individual who does the wrong.  That some people are ‘evil’ is a very old idea.  That view remains the foundation of criminal law, which is largely about establishing an individual’s responsibility for a criminal action.  The criminal law is binary – a person is either guilty or not guilty (although it has been proposed that adopting the idea of ‘degrees’ of guilt’ would be a beneficial change).  In sentencing, judges give particular attention to whether a person is ‘morally blameworthy’, which essentially means the degree of responsibility that a person is seen to have for what he or she has done.

What about circumstances?

This basic idea runs into problems when circumstances come into play that change the way we see someone’s responsibility for her or his actions.  Thus the idea that a person can be held ‘not criminally responsible’ (NCR) for an action because that person was not capable of understanding the nature or consequences of the action.  Such cases are often very controversial.

The situation is getting more complicated because in the last couple of hundred years we have come to understand much more the degree to which human action is so strongly influenced by circumstances rather than will.  People are very apt to change their behaviour, often to a very dramatic extent, if they find themselves in a setting where the behaviour is condoned, let alone one where it is considered desirable.

People are strongly influenced by the group

At the extreme, that is how ordinary people can become part of a mob that wreaks destruction, or even turn into war criminals who massacre innocent people – because others around them are doing the same.  More mundanely, it lies behind the willingness of ordinary people to countenance behaviour in many settings that they know is wrong.  This need to be part of the group is very basic to humans, and explains why neither criminals nor police will almost never ‘rat’ on members of their own group, no matter what they have done.  It explains why so many people feel it is OK to under report their income for tax purposes, or to take home supplies from the workplace.  It explains why things we now hold to be quite wrong, from slavery to domestic violence to beating children to discriminating on the basis of skin colour, were for so long regarded by many as normal and acceptable practices.

In some cases the law is consistent with these practices, so they are not even illegal – as for example slavery or domestic violence for most of history. In other cases the law may prohibit such practices, but they remain widespread and mostly unpunished because many people consider them acceptable.

Crime is related to social conditions

Those holding this more sociological view of human behaviour argue that the same analysis should apply to crime, that many crimes result from situations in which people experience poverty, deprivation, maltreatment or deprivation of various kinds.  And all the evidence does find that there is more crime in settings that have worse conditions.  Thus the argument that the real solution to crime lie in strategies such as better employment and wages, better housing, programs for youth, and measures to reduce racism and discrimination.  A growing body of research evidence shows clear links, though the degree and nature of causality is hard to establish, between social conditions and crime.

We also know that many crimes are the result of people with addictions of various kinds, and while at one time addiction was not seen as any kind of excuse for criminal behaviour – indeed, it was (and often still is) seen as a moral failing in its own right – we increasingly recognize that simply punishing people with addictions does not address the problem in any meaningful way.  This argument is evident today in the discussion around how to respond to the epidemic of opioids, with some favouring criminalization and others advocating a public health response. The same argument takes place around many other actions that are often regarded as criminal, and around some specific groups of people, such as those subject to racism.  An earlier post on this blog by philosopher Gregg Caruso suggested that almost all crime should be seen as a public health problem, but that is far from being the case at present.

What should courts do?

Canadian courts have struggled to deal with this question and to figure out how to take into account the evidence around it.  We increasingly recognize the role of mental health in criminal justice – that people with serious mental illnesses cannot necessarily be held to the same standard.  But it could be argued that committing a serious crime is in itself a sign of a serious mental health problem, in which case the question of guilt becomes less clear.  Canadian law also recognizes and seeks to take account of the effects of colonization and discrimination on Indigenous people, though this remains very much a work in progress, or perhaps one hardly even begun.

Accepting a view of crime as largely rooted in social circumstances does not negate individual responsibility.  Most people who grow up or live in very difficult circumstances do not commit crimes.   Most people convicted of crime are never charged with another one.  One of the strongest findings in criminology is that criminal behaviour declines as people age, and that seems to be much more about individual development than it is about social conditions.  Social circumstances matter greatly, but so do people as individuals.

These arguments are likely to remain important in the foreseeable future.  The shift away from holding individuals totally responsible is occurring very slowly, and there is no telling how far it will proceed, how long it will take, or what forms it will find.  But everyone concerned with criminal law should be thinking about these questions.