Book Review: The Punisher’s Brain. By Judge Morris B. Hoffman
Judge Hoffman is a trial judge for the Second Judicial District of the State of Colorado. He also is a law professor, a scholar of history, and a researcher in many fields including neuroscience.
The Punisher’s Brain is a masterful mix of history, social and biological evolutionary theory, and neuroscience. Judge Hoffman’s brilliant mind blends these concepts into a multi-factorial paradigm of why we punish criminally, as well as a multitude of insights into civil liability.
Some concepts are likely greeted as clichés among us. Do you have any idea why you should prefer (if possible) to try a case with devastating injuries to a jury of children? Because children tend to assess blame based on the severity of the harm rather than culpability of the actions causing the injuries.
Adults tend to assess blame based on a presence or absence of intent to cause the harm. The severity of the harm still plays a role (of course you knew that all along) as “a few people feel obligated to blame the blameless, especially when the harm is high.”
Judge Hoffman looks far behind and far back in a complex analysis of the interplay among intent and harm to reach fascinating conclusions about civil liability and criminal punishment.
Along the way, very fascinating historical perspectives are intertwined with recent neurobiological brain function evidence and a multitude of studies of human behavior and choices.
Interpretation of studies of human thought and behavior is key to Judge Hoffman’s analyses. One example: Most of us are familiar with the Trolley Problem. In short, study participants are asked to decide if they would or would not divert a runaway trolley to save five workmen at the expense of killing a single workman on the other track. Most people would. Various iterations of this are examined in detail.
But change the dilemma a bit to ask for personal involvement – would you throw a single person off a bridge to save five others? Only 25% say they would do that. These study analyses are part of a the whole for understanding the difference between first person punishment, second person and third person. And in our society, most punishment is relegated to third persons now – typically the judge.
How humankind progressed from first person (I hurt you if you hurt me) and second person (I kill you if you kill my kin) punishments to present day third person punishment is one major and recurring theme in Judge Hoffman’s analysis.
But there are extraordinarily strong forces working to temper punishment urges. It takes a lot to get a man to kill another man. Judge Hoffman provides a mesmerizing summary of civil war evaluations which showed thousands of men loaded their firearms multiple times without shooting, apparently to avoid killing someone else. Similar data for WWII firing accuracy exists. Modern military training must overcome this hurdle to have effective killers in the infantry. This apparent innate human trait also comes into play in our punishment and fault-finding efforts.
Another cliché – there is so much more to Judge Hoffman’s writings than this review can cover. From atonement to redemption to three strikes laws. The book is simultaneously an extensive resource guide and engaging read.