Indoctrination and Social Influence as a Defense to Crime: Are We Responsible for Who We Are?

• Author: Robinson, Paul H.

TABLE OF CONTENTS ABSTRACT 739 TABLE OF CONTENTS 741 I. INTRODUCTION 742 II. DISTRIBUTIVE PRINCIPLES AND 745 AN INDOCTRINATION DEFENSE A. Retributivism: A Taste of Experimental 746 Philosophy B. Utilitarianism: The Disutility of 747 Perceived Injustice III. THE SPECIAL CHALLENGE OF JUDGING LIABILITY IN INDOCTRINATION CASES 749 IV. SOURCES OF SOCIAL INFLUENCE 752 A. Rhetorical Advantage 754 B. In-Group and Out-Group 754 C. Confidence 755 D. Authority Figures 756 V. COMMON SOURCES OF EFFECTIVE INDOCTRINATION 758 A. Political Indoctrination by Authoritarian States 758 B. Religious Radicalization 760 C. Military Indoctrination 762 D. Conclusion 763 VI. THE INDOCTRINATION CONTINUUM 764 A. Indoctrination Cases That Seem 769 Less Blameworthy B. Indoctrination Cases That 774 Seem More Blameworthy VII. AN ANALYTIC FRAMEWORK FOR ASSESSING LIABILITY IN INDOCTRINATION CASES 781 A. Indoctrinated? 781 B. Should Have Resisted the Indoctrination? 783 C. Indoctrination Caused Offense? 786 D. Should Have Reverted before Offense? 787 E. Despite Indoctrination, Should Have 789 Resisted the Offense? VIII. A PROPOSED STATUTORY FORMULATION 790 A. Indoctrination--(1)(a) 791 B. Causal Connection--(1)(b) 793 C. Reasonable Expectations-- (1)(c) 794 D. Application of the Defense 796 E. Logistics of the Defense 797 IX. INDOCTRINATION AS A 798 THIRD CATEGORY OF EXCUSE X. SUMMARY AND CONCLUSION 800 I. INTRODUCTION

Soon after the start of the Korean War, Richard Tenneson, a patriotic farm boy from Minnesota, volunteered for Army service in the hopes that he could do heroic things for his country. (1) Promptly taken hostage by Chinese Communist forces, Tenneson was quickly identified by his captors as potentially vulnerable to their well-developed "brainwashing" program. (2) Through several stages of psychological manipulation, using both abuse and reward, they effectively produced in Tenneson a true believer so dedicated to the pro-communist, anti-American cause that, upon cessation of hostilities, Tenneson refused repatriation to the United States. (3) He and other coercively indoctrinated (4) soldiers provided a propaganda bonanza for the Communist project, and much of their conduct constituted treason against the United States. (5)

Despite Americans' natural tendency to be outraged by treason in a time of war, enormous public support arose for the "brainwashed" POWs, who were widely viewed as victims of a manipulative regime, rather than as traitors to their country. (6) When the Army court-martialed the indoctrinated soldiers, the public protested so vigorously that Army prosecutors sometimes had to wear firearms to court and sneak in the back entrance. (7) When the brainwashing cases later fell within the jurisdiction of the Department of Justice, the Department simply declined to prosecute out of deference to public opinion, which it judged was likely to reflect that of a jury. (8)

The case illustrates a foundational problem for criminal law. While Tenneson might have gotten a duress defense or some excuse or mitigation for offenses committed during the abusive indoctrination process, he would not have been eligible for such a remedy after the indoctrination had been successfully completed because at this point he had fully internalized the beliefs and values of his indoctrinators. Tenneson's treasonous post-indoctrination conduct was not the result of duress, mental illness, emotional upset, or any other exculpating or mitigating condition. It was the product of a series of free choices by Tenneson that logically flowed from the set of beliefs and values that were indoctrinated in him by his captors. (9) If he had been tested by clinicians at the time of his treasons, they would have found no cognitive or control dysfunction to elicit the insanity defense, no internal or external compulsion to compel a finding of duress, nor any other psychological abnormality or state that might give rise to a mitigation or excuse under criminal law then or now.

In that sense, the lack of relief offered by the criminal law seems out of step with the public's understanding of Tenneson's blameworthiness. Anyone who read the news reports of a patriotic farm boy turned traitorous propagandist intuited a serious character shift in Tenneson that seemed to belie the idea that the beliefs and values that drove him to treason were not his own. (10) Instead, they appeared so out of touch with his former understanding of the world that they could only have been coercively implanted in him through a program of psychological manipulation.

But if Tenneson did now hold those pro-communist, anti-American beliefs and values, how could the criminal law conclude that he ought not be held liable for what he had freely chosen to do in promotion of them? Should the criminal law no longer assume that we are responsible for who we are? Is it not enough for criminal liability to show that the person freely chose to commit the offense? Must the law also inquire into how it was that the offender came to have the beliefs and values that contributed to commission of the offense? That, of course, would be a tectonic shift in the criminal law's principles of liability and exculpation. For decades, the criminal law has established blameworthiness based on a snapshot view of the offender in the moment of his criminal act, and not on the myriad characteristics that might have inspired him to behave in such a way. (11) An offender's history might have evidentiary relevance--for example, past victimizations might support and explain an offender's claim of extreme fearfulness--but the focus would remain predominantly upon the individual's state of mind at the time of committing the offense.

One might be tempted to simply ignore the conflict between the widely shared community judgment that cases like Tenneson's deserve exculpation and the criminal law's failure to recognize any sort of coercive indoctrination defense, especially if one is a good crime-control utilitarian. The general deterrence message communicated by a severe sentence might be undermined by a policy that allows for the variable characteristics of the offender to be taken into account at the sentencing stage. For this reason, the criminal law of the past half-century has been happy to regularly promote general deterrence and incapacitation of the dangerous, even though those distributive principles regularly conflict with pure, desert-based (12) blameworthiness proportionality. (13) Denying a mitigation or excuse for an offense caused by coercive indoctrination is simply one more example of how justice, at least as perceived by the community, may be sacrificed as necessary to help fight crime.

But more recent social science research has suggested that criminal law rules that conflict with shared community judgments of justice can undermine the law's crime-control effectiveness. (14) The studies suggest that a criminal law whose rules regularly conflict with community views will lose moral credibility with the community and as a result will increasingly provoke resistance and subversion. (15) In contrast, a criminal law whose rules embody community justice judgments will build moral credibility and promote deference, acquiescence, compliance, and the internalization of the criminal law's norms. (16) As more and more diverse cases of indoctrination occur around the globe, establishing a legal framework to treat these cases in a way that aligns with the community's notions of justice becomes all the more important. (17)

In order to actualize the community's intuitions, one might be tempted to simply create a special rule for Tenneson's unusual circumstances. There are not many offenders who commit their offense as the result of being a POW subjected to a well-tuned indoctrination program. But the problem with this approach is that there are a host of more common situations--situations involving neither captivity nor a planned indoctrination program--that can be just as compelling in their effect in altering a person's beliefs and values as was the Chinese indoctrination of Tenneson.

What is the criminal law to do with such cases of informal or ad hoc indoctrination? And what if the offender in some way volunteered for, or perhaps just went along with, the chain of events that led to the indoctrination, maybe with a limited understanding of where the path was leading? That is, even if one were to recognize a defense or mitigation for offenses arising from indoctrination, is there any practical way by which the criminal law could draw a line that would put a workable limit on which indoctrinated offenders might qualify for mitigation or excuse?

That is the challenge taken up by this Article. Part II reviews the alternative distributive principles of retributivism and utilitarianism to show that both would support recognizing some kind of indoctrination defense albeit for different reasons. Part III illustrates the special problems that indoctrination cases present: it is not just the extreme case of the brainwashed POW but a variety of other sorts of cases that can be just as compelling. Indeed, as Part IV demonstrates, there exists a host of sources of social influence that can create indoctrination effects of one kind or another. Part V provides some of the common examples of situations in which such social influence mechanisms are commonly used to great effect. Part VI describes a study conducted with law school students in which the subjects were asked to rank indoctrination cases along a continuum of blameworthiness. It then analyzes the students' responses, explaining the factors that influenced their decisions in order to determine what made some indoctrinated offenders more or less blameworthy than others. From the results of the study and the discussions during it, a five-part analytic framework that seemed to best capture the judgments of the subjects is constructed in Part VII, and, in Part VIII...