Last week I spent some time covering the execution by firing squad of Utah inmate Ronnie Lee Gardner, who was convicted of double murder in 1985 and spent 25 years on death row. After a flurry of last-minute appeals, Gardner was killed on Friday in a hail of .30-caliber rifle bullets fired by five marksmen aiming at a target pinned to his chest.
What got the most attention in the press, perhaps understandably, was the fact that Utah Attorney General Mark Shurtleff tweeted about the execution. Some sites described Shurtleff as “live-tweeting” Gardner’s death, though I would consider that a misrepresentation. Shurtleff tweeted twice about the execution: once to call it a “solemn day” and a second time to announce that he had given “the go ahead” to proceed with Gardner’s execution. (Little-noticed was the fact that his spokesman, Paul Murphy, was even more active on Twitter that day, calling it a “hat trick” because he had a meeting about polygamy, an AMBER alert and an execution.)
In any case, I thought it might be useful to round up my reporting on the case, part of which was picked up by The Wall Street Journal’s Law Blog. As has been pointed out to me, it’s routine for death row inmates to argue that their sentences should be commuted to life in prison because they have suffered some degree of physical, psychological or sexual trauma that caused them to act out: difficult childhood, drug use, brain damage, sexual assault, etc. Gardner, in fact, argued all four.
But there was something unusual about this case: At least four of the original jurors recanted their votes for the death penalty in the sentencing phase of Gardner’s trial, saying they would have preferred to vote for life in prison without parole instead. That option didn’t exist in Utah until 1992, so the jurors were forced to choose between death and the possibility that Gardner might be freed on parole. After considerable wrangling, the jurors settled on the death penalty. Now, four have expressed regrets. One even wrote that she felt “coerced into voting for death.”
I interviewed one of the jurors from her home in Midvale and obtained copies of the four affidavits from Gardner’s lawyers. I also penned an extensive follow-up looking more deeply into the case and its implications for the death penalty. You can find those articles here:
I think there’s one more point about this case that’s worth considering, and I offer it here as a supplement to my original reporting (it was cut for reasons of length and coherence). Researchers have made considerable strides in recent years in isolating and identifying the causes of violent behavior in humans. These causes vary widely, from the psychological to the neurochemical. Sometimes they’re genetic, other times they’re environmental. In fact, all of those factors almost always mix in some complex way that makes it difficult to render easy judgments or conclusions.
But the results can also be stunning. There’s the famous case, of course, of the 40-year-old schoolteacher who could not help himself from behaving inappropriately around women, including his stepdaughter. The behavior got worse and worse until finally doctors found a tumor impressing upon his frontal lobe, where the capacity for impulse control is located. When the tumor was removed, his urges ceased. When the tumor reappeared a year later, the urges returned. Doctors operated again, and again the man’s behavior changed.
There’s so much that you can read into this. But here’s the money quote, from the AP. It sets up a question that has become only more compelling, and more complex, today:
Daniel T. Tranel, a University of Iowa neurology researcher, said he has seen people with brain tumors lie, damage property, and in extremely rare cases, commit murder.
“The individual simply loses the ability to control impulses or anticipate the consequences of choices,” Tranel said.
Dr. Stuart C. Yudofsky, a psychiatrist at the Baylor College of Medicine who specializes in behavioral changes associated with brain disorders, also has seen the way brain tumors can bend a person’s behavior.
“This tells us something about being human, doesn’t it?” Yudofsky said. If one’s actions are governed by how well the brain is working, “does it mean we have less free will than we think?”
This is a debate that is very much alive at the moment in legal and philosophical circles. Nita Farahany, a professor of law and philosophy at Vanderbilt University and a member of the president’s bioethics commission, has done some of the seminal work in this area. I spoke with one of her peers in the field, Oliver Goodenough, a professor of law at Vermont University and fellow at Harvard’s Berkman Center who specializes in the application of neuroscience in the law. Here’s what he had to say in our interview (this is cut from the original draft of my Gardner follow-up):
Goodenough said it would likely be difficult to reshape American jurisprudence to reflect scientific advances, because the justice system is designed primarily to punish impulsive acts, not to correct them. The courts also don’t want gray areas: either you have control over your actions, or you don’t.
“That’s what happens for a great deal of that kind of crime, that it just seems right at the moment, and the inhibitive circuits are swamped or blanked out,” Goodenough said. “Now, some people’s circuits swamp a lot easier than other people’s circuits. But at least so far, at the responsibility determination phase, we say, ‘well if you had some control, then that was what you needed.’”
Goodenough added that lawyers and judges had slowly begun to incorporate research regarding the causes of violent behavior into the sentencing phase of trials, rather than the guilt determination phase. But such arguments may ultimately prove futile.
“It is a double-edged sword in that, other than in really extreme cases, you may not want to bring this up: ‘My client deserves consideration because he’s a walking time bomb,’” Goodenough said. “Is that a winning argument or a losing argument, particularly in front of a jury?”
So I’ll let this question percolate, and then perhaps revisit the topic at some later date, especially if I get the chance to do some more reporting: What if you, a perfectly sane, law-abiding citizen, suddenly committed some impulsive act of violence, or sexual impropriety? Or, in a moment of desperation, maybe you embezzled tens or hundreds of thousands of dollars from your employer? We all do things that, days or perhaps even hours later, seem impossible, or impossibly stupid.
What if a doctor then discovered a tumor that had impeded your ability to exert executive control over your impulses at the moment of your crime? What if the doctor could say with reasonable certainty that, as in the case of the 40-year-old schoolteacher, you would have been able to suppress or regulate these impulses if it had not been for the tumor? What if you could clearly feel your violent urges dissipate after surgery? Would you consider this unfair? Should you be punished like any other common criminal? Should your tumor be taken into account? Should we look for tumors — or genetic “defects,” or anomalous levels of serotonin — in every criminal? Does that help explain, or perhaps even excuse, their behavior?
Stephen Morse at the University of Pennsylvania answers this question, in part, by arguing that we ought to focus on “capacities,” not “causes.” If you had at least some ability to control your impulses at the time of your violent act, then you can and should be held responsible. If not, the legal system should treat you differently. But it doesn’t matter why you may have lacked the ability to control your impulses or, in the case of sociopaths, the capacity for empathy. All that matters is that those capacities were intact, or they were not.
I find that to be a compelling, though somewhat unsatisfying, answer. What do you think?