In order to be found guilty in our system one has to have a guilty mind. It is for this reason that young offenders, children, people with mental defects and the criminally insane are given lesser sentences or no sentences at all. They are deemed not as capable of understanding all our some of the consequences of their actions. It is also for this reason that people found guilty of manslaughter receive a lesser sentence than people guilty of first degree murder. And finally, it is for this reason that people of Native decent are to be treated more leniently by the courts. In the eyes of the law makers, the social environment is a mediating factor and must be taken into account when sentencing Native Canadians.
One problem with all this is roughly as follows. Rather than being able marshal the full weight of the sciences in its efforts to curb future criminal acts, our legal system is undermined by some of them. Indeed, the social sciences, in so far as they are, as any first year professors will tell you, deterministic, are like little factories producing ready made mitigating factors.
Now, when defense attorneys use one of these ready made mitigating factors, the response of many people is to jump up and to do what amounts to denying the validity of these areas of study. “His childhood had nothing to do with it. He knew exactly what he was doing and he chose to do wrong.” This response is neither legally sound nor rationally convincing. Worse still, it takes the focus away from the true source of the problem, i.e., the notion of culpability. There is no better demonstration of this than the XYY chromosome defense and the decision to have the courts treat Native Canadians more leniently.
Used in the 1970s the XYY argument is in its most basic form this. Males with an extra Y chromosome are inherently violent and thus are not criminally responsible for their actions. The defense failed, but only because the defense was based on bad science. In theory is could have worked. In our legal system, it is possible that someone could be found not guilty because they are inherently violent.
As for Native Canadians, the powers that be looked at the crime figures and saw that Native peoples commit an unusually large number of crimes and have a higher rate of recidivism. They, rightly, concluded that their social environment had something to do with it and in a highly controversial decision decreed that Judges must consider the social environment when sentencing Native peoples. Put differently, their reasoning was this. The social environment predisposes Native Canadians to commit a greater number of crimes, hence high crime rate, and because they are so predisposed Native offenders are not as culpable and therefore should be sentenced more leniently. This is, indeed, consistent with our current understanding of culpability, but needless to say it seems just, well, ass backwards. If someone is more likely to re-offend, or commit some other crime, than it only seems reasonable to give them a stiffer sentence and not a lighter one.