repeated a crime is more likely to repeat than someone who has only committed a crime once. On this view, those who engage in certain kinds of crimes, such as child molesters and rapists, are more likely to repeat because it is “in” their system. Unfortunately, both folk perception and legal analysis of future dangerousness are based on weak evidence, unfounded assumptions, or both.
Consider sexual offenders. Their crime is intentional, frequently repeated, and aimed at innocent victims. Given that many sexual offenders repeat their offenses, it has the appearance of inevitability, of a process that is highly determined. Because many sexual offenders were abused as children, some experts conclude that we should blame their parents. Other experts believe that particular situations either promote or support sexual offenders, including the church and medical exam rooms. And yet other experts, including the psychiatrist Boris Schiffer, reveal brain differences among pedophiles, including especially the areas involved in reward and self-control. Together, these observations suggest that the combination of a deviant nature and toxic nurture have led to a more deterministic universe. In this universe, sexual offenses are inevitable or so highly probable that we should lock up offenders and post their crimes in every county’s registry, and if possible, as replacements for flamingo lawn art.
If this assessment of sexual offenders is right, how should we think about responsibility, blame, and punishment. If sexual offenders can’t help themselves, how should we assign blame? How should we assign an appropriate level and form of punishment, if punishment is even appropriate? Studies of recidivism among sexual offenders generate rates as low as 15% and as high as 80%. These studies also reveal that recidivism rates differ for incest perpetrators, rapists, and child molesters. These numbers tell us that even child molesters don’t always repeat their crimes. They also tell us that sexual offences should not be lumped, but split apart into their underlying causes and triggers. Like the high odds favoring a horse with a distinguished lineage and top rated jockey, there are high odds favoring repeated sexual molestation in an individual who was sexually abused as a child and enters the clergy. Does this mean that we should all bet on this one horse or forget the race altogether? Does this mean that we should lock up the priest before he has an opportunity to enter his parish? No and No. Neither horse racing nor sexual molestation are that easily determined. Future success and future dangerousness are probabilistic. They represent our best guesses. When the law determines that someone is at high risk of committing a future offense, it doesn’t really care whether the individual is perfectly healthy or brain damaged. It cares about risk. In terms of blame and punishment, however, the law cares about the perpetrator’s brain. The law cares about a person’s capacity to act rationally and independently. It is this capacity that allows us to assign responsibility. It is this capacity that drives many theories of blame and punishment, including the Australian legal scholar Michael Moore’s massive treatise Placing Blame. These are reasons why scientific understanding of future dangerousness is important for law and society.
Armed with these ideas about future dangerousness, we can return to the list of potential evildoers that I mentioned in the prologue. This list included individuals who caused relatively minor harms such as Reverend Lawrence Murphy and Charles Manson, as well as those who committed much more major harms such as Idi Amin and Mao Zedong. Whether we consider these individuals and their acts as evil is orthogonal to the fact that each one posed a great risk to society. Each of these individuals would have been judged as high risk for causing future danger. Only some of these individuals should have been punished if punishment is guided by our understanding of responsibility and blame. Only those individuals who can take responsibility for their actions and change should be punished. On this view, all of the dictators were rightly blamed and punished. And so too were Jane Toppan, Bernard Madoff, and Charles Granger. In contrast, although Lawrence Murphy should have been locked up as opposed to exiled to a cottage, both Murphy and Charles Manson are more difficult to assess in terms of responsibility, and thus, the appropriateness of punishment. No one would want them walking the streets today, free to rape innocent children or create a cult of murderers. But for the law to evolve, we need better tools to evaluate the biological underpinnings of diminished capacity. These measures, still in the early stages of development, will help refine our understanding of risk, guide our clinical interventions, and contribute to the construction of a safer society.
As we move forward, we must also recognize the rapidly changing landscape, and the future dangerousness of globalization, especially its capacity to breed evildoers. Like authority, conformity,
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