Incognito: The Secret Lives of the Brain

by David Eagleman

SENTENCING BASED ON MODIFIABILITY Personalization of the law can go in many directions; I’ll suggest one here. Let’s return to the case of your daughter writing with a crayon on the wall. In one scenario, she’s doing it mischievously; in the other, while she’s sleepwalking. Your intuition tells you that you would punish only for the awake case and not for the asleep case. But why? I propose that your intuition may incorporate an important insight about the purpose of punishment. In this case, what matters is not so much your intuition about blameworthiness (although she is clearly not blameworthy when she’s asleep), but instead about modifiability. The idea would be to punish only when the behavior is modifiable. She cannot modify her behavior in the case of sleepwalking, and therefore punishment would be cruel and fruitless.