Perplexed–once more–by “emotions in criminal law,” Part 2: The “evaluative conception”

This is the second in an n-part series describing my evolving view of the significance of emotions in substantive criminal.

Actually shifting view would be a better way to put it.  I took a position at one point that I later concluded missed if not the point then a very important point, one that had caused me to lose confidence in the original position.

Now I find myself thinking that the successor position is also likely inadequate. Maybe the earlier position was right after all. Or perhaps some sort of dialectical synthesis will reveal itself to me if I think more about how the pieces of evidence before me actually fit together.

I’m really not sure!

Should I be worried that I don’t know whether either of the announced positions I took before is right, and thus what I actually believe anymore?

The point of this series of posts, in addition to inviting reflection & comment on an interesting part of the law, is to explore “changing one’s mind.”

One of my principal research interests is the ubiquity of defensive resistance to evidence that challenges people’s perceptions of risk and like facts on culturally contested issues–climate change, gun control, etc.

But more intriguing to me at this particular moment is that it seems just as unusual for scholars studying this very phenomeon–or pretty much any other intriguing aspect of human behavior or cognition–to change their minds about what explains it.

Why would this be so?  By hypothesis, those scholars are using empirical methods to make sense of complex phenomena, the workings of which don’t’ admit of direct observation and that must therefore be investigated indirectly, on the basis of the observations of other things we’d expect to see or not depending on the truth of different plausible theories of how those unobserved phenomena work.

Given the very nature this activity, one might expect shifts in position to be common-place. If  the phenomena in quesiton are complex and not open to direct observation; if multiple plausible theories compete to account for them; and if the evidence for deciding between those theories consists of observations that necessarily do nothing more than alter incrementally the balance of then-existing considerations in favor of one position or another, then why wouldn’t individual researchers’ positions display the character of successive estimates of a random variable subject to imperfect measurement?

Meanignful shifts might be expected to abate over time, as sound studies–valid measurements of the quantity of interest–start to coverge on some value, estimates of which are less and less affected by the marginal impact of additional studies.  But where something is complex, and measuring instruments imperfect, that sort of stability will often take quite a while to emerge.  Moreover, it is during the interval it takes for such a state to form that we should expect to see the greatest volume of active, intense research–and thus the most occassion for those carrying out such investigations to shift positions as they update their views based on new evidence.

Scholarly inquiry as a whole takes this form.  We view such shifts in prevailing understanding as signs of “progress,” a byproduct of the enlargement of knowledge associated with the of use science’s signature method of inquiry. (I really do mean to be talking only about “normal science,” or as I prefer “progressive research programs,” the operation of which is predominantly made up of successive incremental advances driven by investigation of competing solutions to unresolved questions or unexplained anomalies; so-called “paradigm shifts” are another matter altogether.)

So why shouldn’t we observe this same thing in the career of individual researchers’ own understandings of the complex phenomena they are studying? If scholars’ own research programs are progressing, and their knowledge of the phenonena they are studying enlarging as a result, then shouldn’t their own work be expected to furnish them periodically with reason not just for refinement and fine tuning of their previous understandings but with cause for announcing that they’ve discovered some decisive objection to an inference they drew earlier?

In Part 1, I reproduced an excerpt from Two Conceptions of Two Conceptions of Emotion in Criminal Law: An Essay Inspired by Bill Stuntz, in the Political Heart of Criminal Procedure 163  (David Skeel Michael Klarman & Carol Steiker eds., 2011).  In that exerpt, I sketched out the hard question that the treatment of emotion in criminal law puts: namely, “what is really going on”– when courts selectively treat impassioned behavior as a grounds for mitigating or aggravating the law’s appraisal of the moral quality of an offender’s, or victim‘s, conduct?

Here’s another snippet from that same essay, one in which I trace out an answer developed in Two Conceptions of Emotion in Criminal Law, 96 Colum. L. Rev. 269 (1996), an article I coauthored with Martha Nussbaum.  It’s a position that, for reasons I’ll discuss in “tomorrow’s” post, I decided, at the time this article was written, no longer seemed right to me. The “day after tomorrow” I’ll exlain why I now don’t think the reason I rejected that earlier paper seems right either.

But I’ll tell you now how I feel about this: kind of excited, actually.

* * *

I will call [one account of the discordant themes that pervade the criminal law’s discussion of emotions] the two conceptions thesis, or “TCT.” This label derives from [Kahan & Nussbaum (1996)]. But the basic position—this particular solution to the puzzle of emotions in criminal law—was in line with ones that other scholars, including Sam Pillsbury and Victoria Nourse were developing at roughly the same time, and that many others, including Cynthia Lee and Carol Steiker, have since refined and extended.

TCT posits that substantive criminal law features two competing views of what emotions are and why they matter. The first is the mechanistic conception, which sees emotions as thoughtless surges of affect or “impulses.” Emotions excuse or mitigate, on this account, because—and to the extent—that they deprive an individual of the power to control his or her actions.

The second account is the evaluative conception of emotion. This view treats emotions and related sensibilities as a species of moral judgment that express an actor’s evaluation of contingencies that threaten or promote ends the actor cares about. As such, emotions, on this view, can be evaluated, not just as strong or weak, but as good or bad, right or wrong, reasonable or unreasonable, depending on whether we at the values they express are ones we think are appropriate or not for someone in the actor’s situation.

Each conception of emotion has an impressive pedigree in philosophy and psychology, and both are on display in the Oklahoma Court of Criminal Appeals decisions I started with. The mechanistic figures in those portions of the opinions emphasizing the “intensity of mental shock,” and resulting “loss of control,” “unseating of reason,” and “unbalancing of mind” that attend the discovery of adultery; the evaluative in those that distinguish between the “man of good character” and “refined sensibilities,” whose aggrievement warrants our solicitude, from the “rounder and libertine,” whose resentment of a man whose disregard for “the sanctity of the home” and “the virtue of women” he himself shares does not.

On their surface, the doctrines of criminal law are pervaded by mechanistic idioms and metaphors. But at their core, TCT asserts, they are evaluative. All of the doctrines contain one or another normative element that invites (or at least enables) decisionmakers to confine their liability-discharging or punishment-mitigating consequence to offenders whose emotional evaluations decisionmakers morally approve of. If they find that element to be satisfied, they needn’t find that the offenders’ passion embodied any particular quantum of volition-destroying force; if they find that this particular quality to be absent, they needn’t afford the slightest dispensation no matter how overwhelming or irresistible the offender’s (or victim’s, in the case of “intervening causation”) was.

The anger of the man who kills his wife or her paramour, for example, is right for someone in his situation, because adultery is “the gravest possible offence which a wife can commit against her husband” and “the highest invasion of [a man’s] property” by another man. Having “no such right to control the woman as a husband has to control his wife,” in contrast, the resentment of the man who kills the lover of his mistress reveals a morally incorrect overvaluation of his own prerogatives. Only the “heat of passion” of the former, then, will be deemed to have been “adequately provoked” for purposes of the involuntary manslaughter doctrine.

The fear of the woman who aids the armed robber to protect her child appropriately loves her children more than she loves strangers, whereas one who acquiesces in the abuse of her own child to avoid harm to herself excessively prefers her own well-being to her children’s. The threat to the former, then, but not the latter is sufficient to “overcome the will of a person of reasonable firmness”—not because their wills were any more or less compromised but because reasonable women appropriately value their children’s well-being over that of anyone else’s, including their own.

What’s “true” about the man who stands his ground and kills is his character: like a “true beam,” it is straight, not warped. Because he appropriately values his “rights,” “liberty,” and “sacredness of . . . person” more than the life of a “wrongful” aggressor who tries to drive him from a public place where he has a “right to be,” he “reasonably” perceives flight to be as destructive of his “self-preservation” as death. The true woman, quite evidently, does not make the mistake of thinking her right to stay put ahead of the life of her abusive husband, even if the alternative is to remain “a life of the worst kind of torture and . . . degradation.”

The law refuses to accept any expert definition of “mental disease” for purposes of insanity. “[F]or all his insight into the dynamics of behavior, [the medical expert] has not solved the riddle of blame. The question remains an ethical one, the answer to which lies beyond scientific truth.” However implausible, then, it might be to think the explosive shock of infidelity invariably reverberates with greater intensity in the mind of a “man of refined sensibilities, having high conceptions of the sanctity of the home and the virtue of women,” than in that of a “moral degenerate, in the habit of consorting with prostitutes and dissolute women,” it is perfectly compatible with the law to characterize the former alone as sick.

The TCT solution to the puzzle of emotions in criminal law has three principal strengths. The first is its explanatory power. The evaluations that decisionmakers make of the values expressed in impassioned offenders’ emotions are informed by social norms. It is thus no surprise to see decisionmakers who are using the evaluative conception of emotion selectively exonerating (in whole or in part) offenders’ whose emotional valuations conform to prevailing expectations of what goods and states of affairs individuals occupying particular social roles are expected to value.

These norms, of course, are not fixed. They shift over time, and at any given moment might well be in a state of flux and contestation. . . . TCT thus explains . . . why the law’s appraisal of impassioned offenders shifts over time and why at any given moment can be the focus of intense political conflict.***

A second, related strength of TCT is its critical power. . . . TCT proponents have often successfully exposed the conservative bias of [commentators], who piously denounce as “political” any shift or proposed reform in the law’s treatment of impassioned offenders while displaying a comically blind eye to the necessarily political content of the evaluations that inform traditional doctrines and their applications. . . .

The third and final attraction of TCT is its prescriptive power. Critical commentary begs the question: what should the law be? Accounts that treat the mechanistic veneer of the doctrine seriously don’t help; at best they produce muddle, and at worst they make us unwitting apologists for the norms that just below the surface inform traditional doctrine and doctrinal applications. If the core of the law is evaluative, then those who want to make the law as good as it can be should be self-consciously evaluative, TCT proponents (myself included!) argued. We should face up to the necessity and appropriateness of making the law a reflection of the best moral and political understanding we can fashion of the values that good people ought to have.

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