October 02, 2002
Nuffield: Use Genetic Info In Criminal Sentencing

There is another big issue that the Nuffield Council on Bioethics tackles in their latest report: The use of genetic information about convicted offenders in court sentencing decisions. Here from the PDF report summary is the relevant excerpt:

We conclude that, with regard to the sentencing of convicted offenders, the criminal law should be receptive to whatever valid psychiatric and behavioural evidence is available. The taking into account of genetic factors would depend on the degree to which such evidence is convincing and relevant. Credible evidence of influence and a robust test for the genetic factor in question would be essential: the weight to be accorded to such information would be determined by the judge (paragraph 14.32). Currently, environmental, social and psychiatric assessments may be taken into account by judges in determining appropriate sentences. These must also be supported by valid, accurate and reliable evidence. It would be unwise to assume that genetics will not be able to assist in determining degrees of blame, even if the ‘all-or-nothing’ question of responsibility is not affected by genetic factors themselves. Such a role would not compromise basic assumptions as to responsibility.

Exchanges between genetics and the criminal law are at present not very productive given the uncertain nature of the evidence. This is likely to change. We recommend that the criminal justice system should be open to new insights from disciplines that it has not necessarily considered in the past. The regular exchange of ideas in this area between researchers in behavioural genetics, criminologists and lawyers could be an effective means of ensuring that legal concepts of responsibility are assessed against current evidence from the behavioural and medical sciences (paragraph 14.33).

I find their position on this issue surprising in light of their opposition to the use of genetic technology to boost the IQ of offspring. Some day the genetic factors that play a role in mental development will be understood. On one hand they argue that we aren't supposed to try to make any changes in our offspring. On the other hand we are supposed to treat criminals differently depending on which genes they have. I find this inconsistent.

Lets consider some reasons for and against the use of genetic information in criminal sentencing. First of all, genetic factors will be useful in predicting the odds of recidivism. Will a given convict violate the law again? It may never be possible to predict with absolute accuracy for every single convict whether the convict will continue with criminal behavior. But decisions are made all the time based on probabilities and most people find this to be a reasonable thing to do. Judges routinely give longer sentences to criminals who are expected to pose greater threats in the future. It has long been standard to use knowledge of motives and circumstances to try to guess who has committed an act they are unlikely to repeat (eg the murder of a lover found unexpectedly with a spouse or the accidental killing of someone in a fight where the other fighter falls into an object that kills them) and who has committed an act that demonstrates a tendency toward a repeated pattern of behavior (eg a mugger who kills in order to make it easier to get stolen goods or in order to prevent his victims from reporting him). Genetic information will just increase the accuracy of the probabilities used. But there are arguments that can be made for and against the use of this information and those arguments include:

  • Science can better predict who will be a recidivist. Longer jail terms for those with criminal genetic tendenices and shorter sentences for those without such tendencies may lower the crime rate without increasing the total prison population.
  • Sentencing someone to longer sentences have genetic tendencies toward violence means effectively condemning someone for crimes they haven't even committed yet.
  • If someone knows they don't have genetic variations that mark them as crime-prone then they may use this knowledge in their calculations of whether to commit a crime. They may be more likely to commit a crime because they know that if caught and convicted they will face a lighter sentence. Of course, this population group is more easily deterred in the first place. So the danger here might not be that great.
  • The more decisions are made based on guesses about recidivism the less the decisions will be based on punishment. The public at large believes criminals should be punished. If some people are let off lightly because they don't have criminal tendencies in their genes the public may see this as unfair.
Share |      Randall Parker, 2002 October 02 02:13 PM  Biotech Society


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