Into the Intro: The Punisher’s Brain


Go Into the Intro of The Punisher's Brain

Why do we punish, and why do we forgive? Take an exclusive look inside The Punisher's Brain to understand how our modern systems of punishment are linked to our evolutionary history.


Evolution built us to punish cheaters. Without that punishment instinct, we would never have been able to live in small groups, and would never have realized all the significant benefits that small-group living conferred, including mutual defense, cooperative hunting, property, divisions of labor, and economies of scale. In fact, to a large extent our notions of right and wrong, of empathy and compassion, of fairness and justice, all come from the tensions of group living, and thus indirectly owe their very existence to punishment. It may sound strange that one key to civilization is our willingness to punish each other, but every parent knows it’s true.

Every parent also feels the irresistible pull not to punish too much, and in fact maybe not to punish at all – to forgive – and this, too, is a remnant of evolution. Our punishment instinct is not so much a sword ready to fall as it is a finely tuned balance, sometimes susceptible to the gentlest of breezes.

But there’s at least one substantial weight on this otherwise delicate balance: the idea that we generally do not punish accidents. Cheaters cheat intentionally, and the intentional wrongdoers, not the careless ones, get most of our punishment attention. We all blame the contract killer more than the inattentive driver who kills a pedestrian.We therefore care as much or more about the wrongdoer’s state of mind – evil or just careless? – than we do about the actual harm his wrong has caused.

Several years ago I presided over a first-degree murder trial in which a young Czech emigre was charged with stabbing his Brazilian au pair girlfriend. The crime took place in the au pair’s bedroom, in the basement of her employer-family’s house. The young man stabbed her seventy-four times. He confessed to the murder but denied it was premeditated. Despite his denial, the premeditation evidence was pretty strong. He not only entered the bedroom through a window, armed with a knife and carrying some duct tape, but he also admitted to police that a few days before the killing he tried to dig a small grave in a remote field but gave up because the ground was frozen.

Judgments about whether a criminal defendant acted intentionally, unintentionally, or with some state of mind somewhere in between can have enormous consequences.

On the other hand, he testified that he regularly went through the window for late-night visits with her, and that he went there that night not to kill her but only to see if she would change her mind about breaking up. He claimed he had the knife and duct tape because he was moving. As for the grave, he testified that he started to dig the hole in the field to “bury her memory,” and that all he intended to bury there were a few items of personal property that reminded him of her. When he went to see her that final time, and she told him she was set on leaving him, he “snapped.”

But he didn’t say the word “snapped.” What he said was, “A darkness came across my eyes.” He even said it a second time in cross-examination. It seemed oddly and rather beautifully phrased, and vaguely familiar. Neither of the lawyers asked him about it. Long after the jury convicted him of first-degree murder and I sentenced him to the mandatory life in prison without the possibility of parole, it hit me. “Darkness covered his eyes,” and variations of that phrase, are used over and over by Homer to describe many of the battle deaths in The Iliad.

Was this a bad literary joke played by a deranged killer, a coincidence fueled by awkwardness in a second language, an unconscious conflation from a literature class, or some deeply insightful way of expressing this terrible act? Was he describing his own loss of consciousness, a blackout of memory, a kind of disassociation of his moral bearings, or the unbearable blackness of his actions? I have no idea.

But I do know that the task facing the jury in that case – to decide not so much what happened, because that was clear, but rather what was in the defendant’s mind at the time of the killing – was the same daunting task that often faces judges and juries in virtually all legal systems. This is one of the Big Secrets of the criminal law. Whether a defendant actually committed the charged act is seldom the subject of serious dispute, even in those few criminal cases (roughly 5 percent in the United States) that go to trial. Sure, there are some crimes, and even some categories of crimes – like sex assault with no forensic evidence – that are whodunits or whether-anyone-dunits. But much more commonly there is no doubt at all that the defendant killed the victim or robbed the liquor store or stole the car; the only issue for the jury to decide is what in the world was going through the defendant’s mind at the time of the crime.

These judgments about whether a criminal defendant acted intentionally, unintentionally, or with some state of mind somewhere in between can have enormous consequences. A young mother leaves her infant in the bathtub to go downstairs to charge her cell phone, and the baby drowns. If a jury determines the mother was just a clueless nitwit, in my state she is guilty of a crime called negligent child abuse resulting in death and could be punished anywhere from getting released on probation to spending sixteen years in prison. But if the jury finds she “knew” she should not leave but did so anyway, this crime is tantamount to first-degree murder and carries a mandatory sentence of life in prison without the possibility of parole.

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