National Commentary

How U.S. Justice Has Strayed

nfbenton-mugAttorneys for convicted Boston Marathon bomber Dzhokhar Tsnarnaev, at 21 years of age hoping to avoid the death penalty, have had no shortage of character witnesses – friends, relatives, teachers – to call to the witness stand attesting to Tsnarnaev’s history of good behavior, even including kindness and eagerness to “do the right thing.”

The attorneys’ case was always based on the premise that Tsnarnaev’s older brother, who was killed by police in the aftermath of the bombing, imposed his will upon him to the point of convincing him to carry out the horrific act.

But the notion of one person imposing his will upon another has no role in American law, which is why it is impossible to get court rulings recognizing the existence of brainwashing in the case of cults, for example, or even the now-well-recognized existence of co-dependency in abusive marital relationships, or the so-called Stockholm syndrome, where victims internalize and emulate the cruel behaviors of their oppressors.

This was demonstrated most famously in the case of Patty Hearst, who was kidnapped and brainwashed by members of the Symbionese Liberation Army in 1974 to adopt the name of Tania and join the group in a bank robbery. The courts found her guilty and sentenced to a long prison term that was eventually commuted by President Jimmy Carter. The court simply would not acknowledge the notion of brainwashing.

Essentially, the laws have not changed since then. Under the law, the individual is responsible for his or her actions, and that’s it. This is clearly wrong, but the failure of the law to evolve as science learns more about how coercive influences work is due to the overwhelming decay of the notion of rehabilitation in the American justice system since the 1970s. American justice is almost entirely based on retribution, or revenge, now, and not rehabilitation.

Commentator Fareed Zakaria spoke to this on his GPS show on CNN last weekend. Since the 1970s, “police and prosecutors have been given far too much power and the accused too few protections and too little dignity,” Zakaria said, citing the testimony of former media baron Conrad Black, a foreigner who spent three years in a Florida jail on charges of fraud.

Black cited conditions of young, mostly black men trapped in America’s criminal justice system (causal in terms of a lot of the police abuse and social unrest of the last six months). “In tens of millions of undervalued human lives,” he wrote, “The United States pays a heavy price for an ethos afflicted by wantonness, waste and official human indifference.”

Today, with five percent of the world’s population, the United States has 25 percent of the world’s prisoners. “The zeal to lock people up has spawned a vast prison industrial complex that now lobbies aggressively for its own special interests, which of course means more arrests, lockups and thus more prisons,” Zakaria said, as the rights of the accused, which historically defined the Anglo-American justice system, are being more and more ignored in favor of the powers of the prosecutor.

The death penalty, once justified for its role as a social deterrent (though not in my opinion), is now, as exemplified in the Tsarnaev case, seen as social revenge.

If the rights of the accused, and rehabilitation instead of retribution, were to be restored in the U.S. justice system, then deeper appreciation of the recently discovered science of how coercion works would be required as a consequence. While crimes would still have to be punished, rehabilitation efforts with the aim of returning people to productive roles in society, would need to focus on the many ways that coercion, even brainwashing, are operative factors.

As Time senior editor Jeffrey Kluger wrote, Tsnarnaev’s tears in court this week at the appearance of his aunt showed he’s not the monster the prosecution portrays. Sociopathic monsters do exist, but in most cases, “the human brain is wired with so-called mirror neurons, brain cells that draw us together by causing us to experience similar things at the same moment.” That is, what we know as empathy.

It’s a fundamental human trait always worth redeeming.