Level of Intent or Control

In many cases, it is not whether the act was committed that is in question, or the level of intent or control, but what its meaning and significance is to the defendant. Culture frames problems and presents us with the categories and concepts through which we organize and understand our own actions. For example, the Japanese mother who tries to kill her child and herself may be following the cultural template of otaku—joint suicide—in which, because of cultural values, the lives of mother and child are linked.19 The intent then is not murder as a separate act but the completion of a suicide in which the child is included as an extension of the self. Understanding this has implications for judgments of culpability and the extent to which a person may commit other acts of violence in the future.

Supplying the cultural context of behavior changes its meaning and renders the individual’s reasoning more transparent. In effect, it allows the judge to reconstruct imaginatively the affective logic of the defendant’s cultural world.20,21 The increased empa- thy that results may allow a better sense of the ratio- nale for the person’s behavior; such understanding could increase or decrease the assessment of his or her culpability. What weight should be given to personal and social suffering in assessing the level of responsi- bility of a given person? Here, there is a wide range of positions. Some argue that people who have been victimized themselves cannot be held entirely re- sponsible for their subsequent actions. To the extent that we recognize victimization as modifying the per- son’s capacity for insight, intent, and voluntary con- trol of behavior, we might want to mitigate the sen- tence. However, exposure to a traumatizing or disadvantaged social environment or developmental history per se cannot be sufficient reason for altering a sentence. There must be evidence that these hard- ships have directly affected the individual’s ability to form and express criminal intent and control and to act.