When I Am Not Me and You Have Stopped Being You

Saving Grandma

By Joel Levin

The COVID-19 pandemic has reached and exposed forgotten corners of our society, some of those corners dark and unpleasant. One such corner involves the welfare and health of individuals in our prisons, both those awaiting trial and those found guilty. Our attention to their health needs is often diminished by the greater concern for the more deserving (a child versus a mass murderer, the rape victim rather than her or his rapist) and by an indifference, even hostility, to those who have violated society’s basic rules of civilized behavior. Why should we care about them or what happens to them?

The present crisis asks whether we should up our moral game, care about those who, arguably, themselves have not cared much about others. Particularly of concern are older inmates, those at greater risk because of their age and the ravishments age brings for systemic disease, organ failures, weakened immunity, and the other results of simply living longer. Should we help them? Selfishly, we may want to transfer their care elsewhere, and, by so doing, lessen their risk. Transferring their responsibility temporarily to family or charities, without more, thus saving the state the cost of treatment or quarantine, would hardly qualify someone for great moral approval. Alternatively, we may also think that being older, they present less danger to society and because less dangerous, they merit release. This is a perilous path to travel. We do not, outside fascist states and science-fiction films, incarcerate individuals merely because they are dangerous: from gang members to dissidents to child molesters who served their sentences. The presence or absence of danger seems off-limits as a reason to restrict or offer freedom. Moreover, what would we do with those who committed terrible crimes but were not captured until they were harmless and even benign geriatrics, those like Eichmann and Demjanjuk and Pol Pot? Surely their unlikelihood of repeating mass murder should not count decisively in their favor.

Arguments about deserving punishment are vast and complex. I want, in general, to put aside most of the compassionate release policy, a policy that has momentarily united governments from the U.S. to Iran. Instead, let us look at one particular issue. We impose sentences on you because you committed a crime and you should pay for that crime. That makes sense. But what if you weren’t you, or weren’t completely you, or were no longer you? Would that sentence and punishment be the same?

The question of who we are has puzzled and frustrated psychologists, physicians, philosophers, judges, clergy, in fact, all of us, perhaps for at least as long as recorded time. I want to address only a slightly easier question: who are we at a given moment? There are a number of candidates for this answer, each carrying its own baggage. 

We might think it is our physical body that counts: we are our bodies. But those bodies change with cell replacement (an ongoing and pervasive process), as well as larger changes like growth, puberty, disease, even organ replacement. Yet, even with new cells, limbs, and organs, we like to think we are we. Worse, if we cloned a new body and then developed a terminal illness, we would hardly be unconcerned with that illness, content that the clone would survive and be, molecule for meaningful molecule, still us. Instead, we would think we would die and be no more.

What about our mental states: our beliefs, attitudes, and opinions? How central are these? If I change my politics or religion, or give up my work (cease being a philosophy teacher) in favor of a different line of work (being a tennis pro), aren’t I still the same person? 

What about our social world: the network of friends and family and colleagues, certainly including one’s spouse? Surely they determine us. But is a recent divorce sufficient to avoid punishment for an older crime, or quitting a fraternity or changing a neighborhood sufficient to qualify as being a different person? Outside of totalitarian societies where loyalty to the hive is everything, no one thinks so.

Maybe it is just having the same brain. One brain, one person. The difficulties here are still considerable. Let me mention just two of many. First, your brain is not the same now as it was. It changes over time, overall losing neurons, but gaining some new ones (neurogenesis). Further, it alters because of brain plasticity, with encounters in the world changing your brain minute by minute, experience by experience, even thought by thought.

Second, you do not have only one brain. Consider, briefly, the consequences of a surgical treatment for severe epilepsy, the separating of the two brain hemispheres or lobes by cutting the nerves that connect them (a corpus callosotomy). Neurology journals report an odd result for many of the patients: they double in number. For example, one former patient pushed his wife away with one arm while embracing her with the other. Two brains, two attitudes. If his body were dying, his two brains could be transplanted into two brain-dead bodies. If the original patient had committed a crime, would that now require two prisoners, each body holding one of his prior lobes or hemispheres?

More, much more, needs to be said here, but, per COVID-19, let us consider a way out. Suppose we are not identical over time, but different, changed, new. Suppose, for example, we change just over 4% each year, being 100% different after 24 years. (You can do your own math here, including allowing a difference – acceleration or slowing – in the rate of change). Suppose someone was sentenced to 24 years in prison (not unusual for serious felonies in the U.S., although rare in Europe. After one year, the prisoner would be 23/24 of his original self. Thus, for 23 hours each day, we would be punishing the guilty person; but, for one hour, an innocent man would be incarcerated. By the end of year 4, we would have the wrong man four hours a day, and so on. After 12 years, we could safely offer the prisoner six months off, as that would reflect the moral and psychological reality of the particular inmate.

This is hardly meant to reflect scientific precision or to provide a mathematical formula for assigning blame or meting out punishment (or even rewards or compensation. The good along with the bad could be received by the wrong, no longer the same, person. Life long honor as a human rights advocate that once merited a Nobel Peace Prize for Aung San Suu Kyi should not survive her persecution of the Rohingya). We have no good formula for what we mean by a free, conscious, responsible human being or for exact measures for appropriate punishment. The failure to achieve the exact should not bar us from getting as close as we can. Age brings change: the body, thoughts, friends, views, experiences, hopes, desires, health, and wisdom we had once are, sometimes for better, sometimes for worse, no longer what define or characterize us later. It is only reasonable to recognize that reality as well as we can.

Certainly, most of the prisoners are not sentenced, like Eichmann or Demjanjuk or Pol Pot, as old people, but become old as they serve long sentences. The individuals behind bars become less themselves, a fraction of who they were, more disassociated from their past criminal predecessor. That alone would argue for early release. COVID-19 is just an added, perhaps deciding, additional reason. The lesson here was well-stated by one old murderer seeking parole, the Morgan Freeman character, Red Redding, in the film, The Shawshank Redemption:

“There’s not a day goes by I don’t regret. Not because I’m in here or because you think I should. I look back on the way I was then, a young stupid kid who committed that terrible crime. I want to talk to him. I want to try to talk some sense into him – tell him the way things are. But I can’t. That kid’s long gone and this old man is all that’s left.”

Perhaps we should listen to the man he has become.