2.5 Adversarial Legal Systems
2.5.0 Summary
2.5.1 Principle problems of modern legal thinking; free will; recognizing ‘criminals’ as psychiatric patients
2.5.2 Problems with ‘truth’ and adversarial thinking; treatment of disturbed persons and perpetrators
2.5.0 Summary
Modern legal systems are based on notions that contradict science and most of today’s legal thinking and decision making cannot be justified. People act according to emotions; we can only act according to insights when these are supported by emotions. Some ethics violations are normal; however, patterns of severe violations are to be considered a consequence of emotional disturbances or psychiatric disorders. Ethically, people have to help, be forgiving and generous. While it makes sense to institute some negative consequences for unethical behaviors in order to strengthen a sense of responsibility, vindictive, severe punishments cannot be justified and they hardly lead to a decrease in the rate of crimes.
The legal standards of ‘truth’ are also scientifically questionable. Juries and judges are not able to ascertain the ‘truth,’ the specifics and the causative factors in a crime. Adversarial thinking is not helpful in legal systems and societies as a whole. ‘Truths’ are not ‘black and white.’ Since every person and every situation is different, the term ‘justice’ is elusive and essentially meaningless.
Providing treatment for crime suspects and disturbed people is feasible and makes much more sense than to seek ‘justice.’
2.5.1 Principle problems of modern legal thinking; free will; recognizing ‘criminals’ as psychiatric patients
Western legal systems cannot be justified, they blatantly disregard scientific knowledge and ethics. Even if properly followed, they are neither just nor able to protect people from crimes and other unlawful treatment. People do not transgress against others because of freely chosen sinful intents but because they are, at the time and in the given circumstances, not able to behave differently. In other words, sometimes people are not able to follow ethical and/or cultural directives. People’s actions are principally governed by emotions – even if trying to live according to insights, people cannot behave in a rational way if the ‘bad’ behavior feels ‘right’ and the rational behavior less so – theoretical insights do not move people (this does not only apply to abuse-addiction behaviors such as over-eating or smoking). Common legal standards determine that perpetrators are culpable if and because they had insight that actions were “wrong”; such considerations and judgments are wrong and in no way meaningful.
People who repeatedly and severely transgress ethical and/or cultural-legal standards must be considered psychiatric patients. They are usually themselves victims of previousv abuse1. They may have been exposed to domestic and other violence (e.g. in gangs or military), leaving them in some ways emotionally disturbed. Even if assuming that there is free will, freedom to choose is necessarily very limited (see below) and it still is not constructive to consider violators’ behaviors freely and willfully chosen criminal acts. Ethically and scientifically, punishments and vindication cannot be justified. Spiritually and in accordance with Christian teachings, judging people and punishing them can hardly be considered a task of mankind; ethically, people must learn to forgive2. It is also wrong to demand compensation for major damages that accidentally resulted from a mishap.
Punitive legal systems are not only ethically wrong; they are not good deterrents. Why crime rates rise and fall is difficult to assess since many factors contribute.
Differentiating between “political dissident,” “criminal,” and “emotionally disturbed” makes little sense3. Persons of all three threaten the predominant and/or accepted standards of society and are perceived as potentially dangerous. They also may threaten human rights. In communist countries, dissidents were assumed to favor economic systems that essentially enslave the poor. It is well-documented that there are more mentally ill persons in jails and prisons than in mental hospitals.
That people are not able to follow rational thinking is obvious. Everybody sometimes makes mistakes, commits ethics violations and then regrets them or rationalizes, looking for some spurious reasons to justify them. Most people know when they live in many ways unhealthy as smokers know that smoking is ‘bad’ but, even though making changes is not painful or complicated, people have difficulties enacting theoretically desired changes, unless there is a powerful emotional reason, such as a pregnancy.
Rules that try to enforce ‘justice’ in the sense of ‘fairness’ are elusive. People often feel treated badly by others who feel justified in what they are doing, and people often do good things to others but then realize that nobody even noticed; thus people may feel treated unfairly and must be generous and forgiving within their social support systems and the anonymous societies they belong to. In addition, people cannot avoid biased feelings that are passed on to them by loved ones when they were children.
Even in cases of worst violations, perpetrators, like soldiers of legal armies, usually feel that they are ‘right,’ that it is justified to punish any members of enemy groups and/or that their victims were guilty by association. Institutions failed such perpetrators and on a personal level, we must make efforts to forgive them.
In recent decades, most states of the USA became very punitive and the incarceration rate grew ten fold with no apparent effect on crime rates: crime rates changed similarly in states with and without increase in incarcerations and/or use of death penalty. In contrast, Finland greatly decreased its incarceration rate and made prison environments much more humane with no adverse effect on its low crime rate4.
In the USA, examples of politically powerful dissidents include racist fascists and people who assume everybody has the right to take the law into their own hands, to shoot thieves even if there is no threat to anybody’s life. Christian fundamentalists are also dissident in that they oppose Western democracies’ principle of separation of church and state, and they want to deny human rights to many groups, however dissident groups may consider a more progressive majority to be dissenters.
2.5.2 Problems with ‘truth’ and adversarial thinking; treatment of disturbed persons and perpetrators
Scientifically, the legal standards of “truth” make little sense. Complete “truth” is not attainable: science and the human mind can only devise models that approximate reality. People’s perceptions and memories are not reliable. Virtually all scientific methods of ‘proof’ have small rates of false positive or negative results.
The terms “justice,” “equality,” and “equal rights” are similarly vague, misleading, and, scientifically, essentially meaningless. Individuals are genetically different, boys are different from girls, and temperaments and talents vary considerably. Some suffered pre- and perinatal problems. Individuals develop in different microenvironments, subcultures, and social macro-environments; and individuals differ with respect to statistical luck (coincidental opportunities, illnesses, accidents, etc.). Women generally suffer more physical pain, depression and anxiety than men. In comparable situations, women tend to feel, think and behave quite differently than men of similar background. In similar circumstances, men tend to commit more criminal and violent acts. Equal opportunities and equal treatment of different people does not constitute “justice” since different people respond differently to same situations, leading to very different results. The term “injustice” has limited meaning if referring to situations where established rules are, in specific situations and/or towards specific people, purposely and blatantly transgressed.
The adversarial legal system of the USA is also amiss because ethical matters are never black and white. Even if laws seem clear, there are many situations in which ethics demands a pragmatic interpretation. From the perspective of an accused there may have been objective and subjective reasons that seemed to justify his/her actions.
Juries are in no way competent to guess the “truth.” Since severe punishments require “proof beyond any reasonable doubt,” many violent crimes must remain unsolved, that is, many people are victimized with no legal consequences. However, people with inadequate legal representation, particularly minorities, mentally disturbed and mentally retarded persons, have been imprisoned and executed without adequate due process.
Adversarial thinking negatively affects human relationships and institutions. Adversarial thinking is natural, but humans also have a propensity to be empathetic and to resolve conflicts peacefully. In communities of social animals as well as among humans, higher-ranking individuals are in a natural position to mediate and arbitrate. If cultures foster adversarial decision-making, antagonism often leads to inhumane treatment of adversaries within the society. Political conflicts are aggravated and may escalate into wars.
It would be meaningful to assess any disturbed person’s need for help, particularly in case of persons who are suspected of crimes; it does not make sense to let a psychopathic individual commit many violent assaults until convicted beyond any reasonable doubt. Particularly in an early stage of development, these patients are quite accessible to corrective psychological and psychosocial therapies, while incarcerations and harsh treatment often aggravate a young person’s propensity to violence. If long-term residential treatment is needed, a dangerous person is not likely to escape if treated caringly, effectively and humanely.
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1 Dian Fossey and Jane Goodall showed multiple examples of how, in the great apes, mothering styles were passed from mother to daughter, and we are not surprised that adults often repeat good or bad behavior patterns they experienced as children. However, many abuse victims do not become perpetrators: multiple factors contribute to such a development, including genetic factors, desensitization, e.g. by media and by military training, and complex psychopathological developments that may include the development of sexual sadism.
Research shows that major perpetrators of crimes have a genetic predisposition and chaotic childhood experiences including abuse or exposure to major abuse. One component alone does not lead to a psychopathic development.
2 The Lord’s prayer includes “as we forgive those who sin [or trespass] against us;” Jesus appealed that we love our enemy [Luke 6:27ff; Sermon on the Mount, Matthew chapters 5-7]. Other religions similarly stress that we must forgive rather than retaliate or punish. Compair also “The Crime of Punishment” by Karl A. Menninger, first published 1966, Penguin Books 1977.
3 Regarding the criminalization of mental illness, compare “Severely Mentally Ill and the Criminal Justice System” by John Junginger, PhD, university of Maryland, Baltimore, presented/distributed by Audio-Digest Psychiatry, vol. 32, issue 8 (2003). In “Mental Health System Needs ‘Radical Change'” Clinical Psychiatry News vol.31, issue 12 (2003), p.1, Mary Ellen Schneider states: “Human Rights Watch recently released a study showing that there are three times as many mentally ill people in prisons as in mental health hospitals.”
4 “Decarcerate?” by Jim Holt, The New York Times Magazine, 8/15/2004, p20-21