Lead paint. It was a far better paint than anything we have today. It stuck. It held. It was damn fine paint. But when it did come off the walls, and was eaten by children because it tasted sweet, it caused brain damage, loss of impulse control and a slew of other problems. In 1978, lead paint was banned from household use. In the scheme of things, brain damage was deemed far worse than paint that lacked durability.
At Hercules and the Umpire, Judge Richard Kopf raises a troubling problem based on Rick Nevin’s theory that the elimination of lead paint in the environment was a causal force in the decline of crimes rates. The TL:dr explanation is that
Excessive lead exposure due to paint chips, car and truck fumes and otherwise can permanently drive down the IQ of a child and, at the same time, it can permanently reduce the child’s ability to control his impulses. Those twin harms tend to produce a criminal when the child grows up. Before lead reduction efforts by the government, crime rates rose, but after government lead reduction efforts, crime rates fell. That’s why you see reduction in crime rates for younger men, but no reduction, or even an increase, in crime rates for older men. Presumably, many of these older men have suffered the deleterious effect of excessive lead exposure when they were children, but the younger men have been spared.
This raised the question posed by Judge Kopf, and the one that is at issue here: Assuming Nevin is correct, what does a judge do with this?
In summary, Nevin’s theory, if believed, may warrant tougher sentences and tougher and longer supervision for older men who commit drug or gun crimes, offenses that are often associated with violence, if the offender has been exposed to lead as a child. While Nevin may not have intended this result, it is a logical consequence of his research.
Before you raise the obvious, Judge Kopf views drug crimes as inherently associated with violence (the crack whore anecdote) as opposed to financial. Let’s not argue this tangential aspect, with which I disagree with Judge Kopf. Let’s assume that he’s speaking to violent crime without any particular labels.
The upshot is that the judge contends that older men, who suffer from lead paint poisoning that reduced their IQ and impulse control, warrant “tougher sentences and tougher and longer supervision” because they have a greater propensity toward violence.
The opposite perspective is that people whose criminal conduct is not within their control, is the product of an environmental factor like lead paint that makes them incapable of behaving in a law-abiding manner, lack the moral culpability of someone who makes the active choice to do so. They aren’t evil, just sick. It’s not their fault.
This retort came in the first comment to Judge Kopf’s post, and the judge replied:
they may be morally less culpable, but they are more likely to reoffend too–public safety trumps fairness issue.
And that last phrase, public safety trumps fairness, gets to the heart of the matter. Political philosophers have debated this ad nauseum, as have sentencing theorists arguing whether retribution or utilitarian theory should prevail. The first person who leaves a comment quoting Benjamin Franklin gets banned for life. This is about legal realism. What does a judge do?
Lest we rush to assume Judge Kopf completely heartless, another commenter raised the problem with regard to soldiers who return from combat suffering from PTSD. Unlike lead paint eaters, they’re inherently sympathetic even if their conduct and likelihood of recidivism is assumed to be similar. So we treat them more gingerly because we like them. We treat lead paint eaters more harshly because we don’t care why they’re criminals.
To this, Judge Kopf responds:
Please realize that a low IQ and impulse control problems are deficiencies I see very often whether caused by lead or chance. By definition, I don’t sentence anyone unless they are blameworthy. Thus, while I appreciate your sentiment, and agree that we could do a much better job as a society extending a hand to the unfortunate, the stark reality is that the people we are talking about are criminals in every sense of that word.
While not entirely heartless, in that he would support society giving them a sip of water if they were parched, they remain one-dimensional, “criminals in every sense of that word,” characterized not by their humanity, not by the tragedy that gave rise to their inability to make the choices between right and wrong that others can make, but by their anti-social deeds alone.
What strikes me about this is how easily people become throwaways, not only unworthy of salvation but too much of a safety risk for society to endure. There is an internal contradiction that goes unmentioned along the spectrum of what the government can and should do when a low IQ/impulse control lead paint eater of a certain age comes before a judge for sentencing. It surprises me that Judge Kopf neglects this.
While society may lack the scientific capacity to fix what ails these people, we possess the ability during the long and boring days and years and decades in custody to give them some real help. They can be trained to perform jobs that will provide them with decent and comfortable lives, and remove them from situations where lack of impulse control will cause them to make bad choices that will lead them back to prison. We may hate them for what they did, but not for why they did it.
What Judge Kopf omits in his assessment is that as a judge, exercising the authority to put a man in a cage, he also has authority over the cage. It can be a cage that warehouses the man at best, and destroys whatever good remains in him at worst. Or it can be a cage designed to take a person who isn’t inherently evil but suffers from lead paint induced trauma and lead him to a better life. Better for him. Better for society, if safety is the overarching goal.
The dichotomy doesn’t have to be limited to protecting society from lead paint eaters or recognizing that they lack the moral culpability that forms the philosophical legitimacy for locking human beings up in the first place.
But the addition of more choices means bucking the Leviathan, and that’s a lot of work. If it was your father, it would be worth the effort. But when “we are talking about [ ] criminals in every sense of that word,” it’s just so much easier to throw them away and move on to more pleasant endeavors.