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Update time. The Holmes trial goes on, and the prosecution has tried to show that Holmes' meticulous actions token reasonably responsible intent--much as federal prosecutors did in the Hinckley case. Now the defense has its turn:

One would think since procedures and the standard of evidence is the same here as with Hinckley, the defense could leverage a judgment of reasonable doubt about Holmes' sanity despite dueling psychiatrists. I'm still sticking to my prediction that that finally won't matter, however, because deep down jurors will want to hold someone responsible.

Well, today the verdict in the Holmes trial came down--and as I predicted--guilty.

The arguments I see for the verdict have mostly to do with the fact that there is plenty of evidence that Holmes premeditated his act.

However, as the Hinckley verdict showed, premeditation clearly is not sufficient for proving the fact that one has substantial capacity to appreciate the wrongfulness of action. Hinckley very clearly premeditated his attempted assassination of Reagan (as he did for Carter, which he never actually undertook). But the Hinckley jury understood that the question is not one of premeditation at all. It is the nature of the intention behind the premeditation. Did the intention show--beyond reasonable doubt--that Hinckley had a reasonable appreciation of the fact that his action was wrong? The jury in the Hinckley case judged that there was in fact a reasonable doubt about that. He was mainly trying to imitate a subplot of a movie--Taxi Driver--in order to please Jodie Foster, who played a part in the film. That worry stood in the jury's mind as a ground for reasonable doubt about Hinckley's intent.

And Holmes? With tinted hair like the Joker's, at the premier of a film about the Joker versus Batman, Holmes imitates the Joker's vile and insane hatred of humanity by mass murder.

Two defendants who everyone seems to agree are deeply disturbed motivated by identification with film in such a way as to corrupt their basic sense of why murder is wrong.

By procedural law--and it was pretty much the same for both trials, in which the prosecution had to prove that there was no reasonable doubt about the nature of the intentions of the perpetrators--I can understand the Hinckley jury's verdict.

But I cannot understand the Holmes' jury's verdict. I think any reasonable person would have to say that there are reasonable doubts about whether Holmes at the time could have weighed his moral options by the legal definition of sanity posed in both cases.

Next the jury must weigh in on punishment. Here's my prediction again: enough of the jury will be privately bothered by their sullied verdict to try and wash their conscience clean by urging a life sentence. But, if they declare that Holmes should die--well, some other kind of dynamic is involved that Flickerers really should talk about.

This is an important case about the nature of intent and criminal punishment; I hope now that it's drawing to a conclusion that bloggers here will chime in on this one.

Chiming in...

By all accounts it seems Holmes was in control of his actions, that is, acting in accordance with a well-formed conscious intention, thus not floridly insane in the sense of not knowing what he was about. This sort of control suggests that he could have also "weighed his moral options" and perhaps did so, knowing full well that the killing of innocents is considered wrong.

But (speculating here, obviously) his moral calculus reached the conclusion that the killings, although wrong, were somehow justified by wrongs done to him. This is where mental illness perhaps comes into play: by creating a delusional world in his head (the world of the Joker) in which his victims deserved to die as payback for some perceived injustice, or simply as an assertion of moral nihilism. Of course one needs independent evidence of the mental illness to back up the hypothesis that it undid what would otherwise have been normal moral constraints, and it looks like that evidence was abundant. But the schizophrenia left all his voluntary behavior control capacities intact, available to serve motives produced by insanity.

If something like this story is correct, it should be exculpatory. But as Alan says in a previous comment "deep down jurors will want to hold someone responsible" for their own character and motives, even when mental illness plays such a big, undisputed role.

Al, can you clarify whether you think the particular insanity defense criteria at play in the Holmes case suggest the jury should have found him not guilty by reason of insanity (do you know if CO has a guilty but insane option)?

Given the variety of inconsistent insanity laws across states (and times) and given that such laws then influence whether the death penalty is on the table (and applied), it's surprising that (unless I missed it) this sort of inconsistency was not raised in the dissents in the recent Gossling case, including Stevens' that highlights inconsistent application of the death penalty as a reason to consider it unconstitutionally cruel.

Also, has anyone seen anything to suggest that Holmes' views of himself, his control, his responsibility, or morality were influenced by his background in neuroscience? I haven't seen anything, but I'd be surprised if he did not use neuroscience (or a mechanistic worldview) to "irrationally rationalize" some of his ideas and actions.

Tom and Eddy--thanks so much. This case is a very important litmus test of where we are now as a society in terms of grasping mental illness and responsibility.

First, an overview that answers some of Eddy's questions:

It would appear that GBI (guilty but insane) is off the table for Colorado.

The CO laws are a bit atavistic, relying on the M'Naughten test most salient in the Holmes' case, and added concern about old-fashioned "irresistible impulse". (I don't know if the latter was pressed in the case, but I haven't seen evidence it was.) But when you consider the fact that a form of pervasive delusion was the deciding factor in M'Naughten--he believed in paranoid fashion that the government was out to destroy him, leading him to try and "defend himself" against the Primer Minister--and that Holmes apparently believed he had to kill to add "life points" to his own life-span by taking others' lives--I'd have argued by case precedent that the issues were comparable in terms of distorted intent. If anything, given the standard of evidence as proof beyond reasonable doubt that Holmes was sane, the fact that M'Naughten was the loose standard and didn't convince the jurors that there was a reasonable doubt about his sanity signals to me that juror bias toward conviction was at work here instead of a rational procedural process by the letter of law.

But I guess that's where the Hinckley jury, doing its duty by the letter of the law, threw the country into the paroxysms of knee-jerk legislative reaction that has given us the mish-mash of insanity law we have.

And I agree Tom that if the overriding intent for all of Holmes' very controlled and planned actions is this delusion about murder as points won to extend life (this sounds like "a video game defense", put in the mouth of a prosecutor), then Holmes seems to be as plausibly not guilty as was M'Naughten and Hinckley.

But then again, as many, many recent Supreme Court 5-4 rulings attest, maybe the values and biases the collective brings to the law (many times it seems based on outrage that opposing values are even in play) is more important than some so-called objective reasonable standard of adjudication.

Thanks Alan, I wasn't aware of the specifics of Holmes' delusion - that's really out there.

Along the lines of "tumors all the way down": regarding the causal provenance of one's capacities and motives, the fact that Holmes ended up schizophrenic with murderous delusions is the same luck of the draw as me ending up a more or less law-abiding, sane citizen. Neither of us can claim any deep self-authorship that makes either of us morally responsible for who we are. And if we're not MR for ourselves, I don't see that we can be MR for our choices and actions.

But given that I ended up with a more or less reality-based set of cognitions and a normal set of motives, I can justly be held responsible for any wrong-doing since that policy will help keep me and others like me in line. So the sane/insane distinction and the work it does in criminal justice are left intact even for MR/FW skeptics. But the retributive justification for punishment gets dropped since that's a function of being MR.

Since Holmes has been judged sane, and since the prevailing view is that sane agents are MR for themselves and their wrong-doing, he faces punishment that's mostly intended as pay back for the suffering he caused. A sad business, but completely understandable in terms of evolutionarily-installed reactive attitudes.

Tom--thanks so much.

I've said here many times--Neil's work, and especially Hard Luck, finally forced me to embrace a form of FW/MR pragmatism. We have to frame our discussions of what these terms mean with respect to pragmatic norms that fall out of abstract considerations about the logical implications of the confrontation of compatibilism versus incompatibilism. (Again, my Zombies paper still in development helped me see this.) If the two are merged together in a possible-world scenario involving zombies functionally identical to demonstrated libertarian choosers, then ultimately incompatibilism loses by a pragmatic principle of fairness (given zombies=libertarians functionally) to compatibilistic moral standards of responsibility, thus explicitly excluding retribution as rationally favored. But my point is that the zombie conclusion is only about *moral* compatibilism as pragmatically favored, and I am thus neutral about FW compatibilism or incompatibilism because of my zombie dialectic, placing the FW question as it were in brackets.

And again many thanks for your comment.

Alan, I'm glad to know that your view "thus explicitly [excludes] retribution as rationally favored." Sometime you should put it in layperson's language for more general distribution.

A recent editorial in the NY Times ("A death penalty advocate's sad argument", link below) includes this:

"The purpose of the death penalty, he [Dale Cox, DA in Caddo Parish, Louisiana] has said repeatedly, is not to deter crime but to exact revenge. 'Retribution is a valid societal interest,' he told The New York Times.

"He has denied that the death penalty is racist or arbitrary, even though Caddo Parish, like most places in the country, applies it disproportionately in cases involving black defendants.

"His concern about the method of execution is whether it inflicts enough pain. In a recent case of a man sentenced to death for suffocating his 1-year-old son, Mr. Cox was upset that lethal injection would be used. The convict, he said, 'deserves as much physical suffering as it is humanly possible to endure before he dies.'"

What's disappointing about the editorial is that although it suggests by these quotes that retribution is atavistic, it doesn't explicitly call for it to be abandoned as a justification for punishments like the death penalty. But it does describe how Cox, originally against capital punishment, was brutalized by the depravity he witnessed as a prosecutor, turning him into an enthusiastic supporter of it. We can thus understand why he's become the "angry, unrepentant face of vengeance behind America's ever-narrowing campaign of state-sponsored killing."

It ends by calling for the end of the death penalty because it dehumanizes us. True enough, but it would have been even better to point out the equally dehumanizing effects of holding onto retribution - the deserved infliction of suffering - as a reason to punish.

About Holmes's background in neruoscience, he was a very accomplished undergraduate major in neuroscience, with a close to 4.0 GPA, and a student in the University Honors Program at UC Riverside. (One of our many famous and noteworthy alumni...)

Interesting post, Al. Do you think your pragmatism is a theory of punishment or a theory of moral responsibility? When I think of the matter of punishment, even in minor form (blame), I am one with the free will skeptic. But when I think of applying this to moral responsibility, I part company. Maybe my slogan should be "blameworthiness without blame." Joe

Very good question Joe!

First, so many controversies specifically pitting compatibilism against incompatibilism seem to end in Fischer's stalemates--and I think that itself is a significant fact. So this was one motivation to look for some philosophical methodology as a way out of these: pragmatism just appears to be a way out that is both theoretically appealing and provides answers.

Second, skeptical luck arguments take a lot out of the sails of any durable idea of FW that can support anything like buck-stopping responsibility, so that moves me to consider what, if anything, attention to responsibility might yield in terms of reasonable norms of practice. So pragmatism raises its head methodologically another way.

Third, punishment (for me) is entailed by what reasonable practices of holding people MR are. So, punishment is generally a pragmatic function of how best to hold people MR.

So, I take pragmatism to be warranted as a way out of unending theoretical conflict about FW, and also the best way to manage questions of MR, with punishment falling out of that.

One thing I have to admit: most of my career I was extremely antagonistic to pragmatism, and mostly because I was enamored of deflationary views of truth. No more. Reading Brandom's work and thinking about revisionism ala Vargas along with Neil's Hard Luck just in the last few years moved me to embrace MR pragmatism (as opposed to outright MR skepticism, though I am drawn toward FW skepticism for sure).

Hope that makes sense, and thanks again for asking.

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