On memory and punishment: does a failing memory affect culpability?

Layeni Elizabeth Imoleayo, Bauchi State University


Combining the retributive and utilitarian concepts of punishment, St Thomas Aquinas believes that punishment is a kind of medicine for the cure of the criminal as it aims at reforming the offender and deterring him and others who may intend to act in the same way. And, culpability refers to the degree of one’s blameworthiness in the commission of a crime or offence.

Among the basic legal concepts of concern to the practitioner of law at all levels, we find those of defence, culpability, negligence, and obligation. However, for these concepts to be wielded, it requires the understanding of the concept of action; and since punishment is meted as a result of an action performed by a person, action is thus volition activated by our intentions and decision to bring about an effect. It is the relationship between an action and the moral rule or law of a community that determines the kind of judgment a person’s action receives. If an action is in conformity with the rule or law of the community, then it is a good action. If it is contradictory to the dictates of the rule of the community, it is bad and therefore wrong.

As regards memory, William Wallace in his book, ‘’The Elements of Philosophy: A Compendium for Philosophers and Theologians’’, defines it as a faculty that ‘’preserves functional meanings such as estimates of good or bad so that it can re-experience what has happened before and recognize this as something past’’.

Memory plays a crucial role in the administration of law generally – especially in the courtroom. Accurate fact-finding, an integral part of both the criminal and civil trials depend in crucial ways upon memory, as recorded in documents or other material evidence, and in the minds of witnesses. The questions of who and how much to punish and the substantive and affective content of how a crime is remembered by the defendant, the judge and jury, the victim and the broader society are all integral to a just and effective punishment.

Remembering fitly and truly is essential to all theories of punishment. Remembering an experience fitly requires that the memory be infused with an appropriate affective content, in the light of the memory’s substance. Remembering truly requires forming and preserving an accurate memory – one that comports with the facts as they occurred. Imagine that a defendant takes an adequate dose of propranolol in advance of his crime to prevent the shameful and painful memories of the horrific crime. It would follow that during the sentencing phrase the defendant remembers only his crime as a neutral event. We may also consider the case of a judge/juror who decides to take psycho-pharmacological agents that will enhance the memory encoded when they hear the details of the defendant’s crime. As a result, the judge experiences a powerful sense of indignation and revulsion for the crime and the defendant.

The rehabilitation principle of punishment aims to help the offender heal himself so that he will no longer wish to commit such crimes in the future. Appreciating the wrongfulness of his conduct – the gravity of his harm and the human costs of the victim and the community – are necessary for understanding why he should change his life. This requires true memory suffused with fitting shame and indignation. Without such memory, the punishment will seem either too harsh or too lenient and will not resonate with the moral sensibilities of the polity. Without such a fitting memory, the defendant is unable to grasp fully the horror of his own act which poses an obstacle to empathy and thus remorse.

Before proceeding to attempt the question of if failing memory affects culpability, another question begs; is memory then sufficient for ownership of an action and thus liability for reward or punishment? To be personally conscious is to be able to recall and take responsibility (i.e. reward and punishment) for one’s actions.

‘’For were someone else’ memory trace of doing something immoral copied into my brain so that I remember the person’s action, it would be silly to think that it was mine just because I remembered it.’’(Schechtman Marya, ‘’Personal Identity and the Past’’, Philosophy, Psychiatry and Psychology, 12 (2005) 9-2).

‘’If I am punished for the actions of a self whose thoughts and experiences I do not remember, what difference is there between that punishment and being created miserable?’’ (John Locke 1694, 51).

‘’In other words, I can remember only my own experiences, but it is not my memory of an experience that makes it mine; rather, I remember it only because it’s already mine.  So while memory can reveal my identity with some past experience, it does not make that experience me,’’ (Joseph Butler: 1736, 100).

Imagine that a surgeon is going to put your brain into my head; will the resulting person be you or me? It will be ridiculous and unfair that as long as I can remember the actions of the person whose brains I now have, it then means that I am responsible for that person’s actions. This is where the body comes in. For what matters in the end is connectedness and as long as there is bodily evidence, the person should be punished/rewarded, for persons are biologically individuated animals whose persistence through time consists of biological continuity, constituted by the biological processes that make up an organism’s life.

Consider then the case of a person who has lived his entire life as a philanthropist but then suffers from dementia and has no true memory of any kind of his past self. Nothing can jog his memory – that life of generosity has entirely disappeared from his mind. I suspect that most people might have qualms about not giving an award to someone for an act he really can’t remember, but that most people would find it acceptable. What matters is that he is still the same person who carried out the good act, not whether he can remember them or not.

A second person has severe dementia and amnesia which she began to suffer from after the crime. Her memory is limited to about 20 seconds, and she has no psychological connection with her past self of any kind.  She could not recall the time 10 years ago when she shot a police officer at point-blank range. However, brain and capacity for consciousness continue to exist as normal over time for herself and the man aforementioned.  Some people will believe that she is still liable to punishment, since she is the same person who committed the crime.  But many – perhaps the majority – would consider this unjust.

It would be trite at this stage to state that insanity differs from dementia and amnesia, although both are neurological disorders. While the former is a defence or excusing condition in law (as contained in section 28 of the Criminal Code), the latter isn’t. This may be due to the fact that both conditions vary. An insane person is unsound, disordered or diseased in mind, violently deranged, mad. An insane person is unable to determine between right and wrong and as a result will commit unlawful acts. However, a demented person experiences a progressive decline in cognitive function due to damage or disease in the brain beyond what might be expected from normal aging. The areas particularly affected include memory, attention, judgment, language and problem-solving. In the case of a demented person, brain and capacity for consciousness continue to exist as normal over time.

There is a difference between remembering a crime and understanding that a crime triggered one’s punishment. Having brain and capacity for consciousness would seem to show that she grasps the nature of a pending proceeding, that she is being punished for murder and that the state seeks retribution for her crime.  Taking into account the diverse frailties of humankind manifest in this particular defendant, it should appeal to the jurors’/judge’s sense of empathy that a proportionate response is a sentence less than death. In the words of Derek Parfit, ‘’When some convict is now less closely connected to himself at the time of his crime, he deserves less punishment. If the connections are very weak, he may deserve none.’’

At what point along the path of a defendant’s cognitive decline does punishment cease to serve its purpose – or become an injustice itself?  I’d say failing memory does affect culpability and should operate as a mitigating factor. A mitigating factor is not intended to excuse from guilt. Rather, it is intended to adduce compassion offering neither justification, nor excuse for the capital offense, seeking leniency on the grounds that some aspect of the defendant’s life experiences diminish his culpability such that he deserves a punishment less than death. For the purpose of punishment is to reform, to correct, to deter, amongst others, and not reducing the sentencing of a demented person who cannot really remember his crime would amount to punishment ceasing to serve its purpose and becoming an injustice itself. 

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