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Sunday, January 13, 2013


From the very beginning of this blog, in fact the generating idea behind its creation, I wanted to explore the phenomenon that I noticed all during my career as a criminal defense lawyer . . . the propensity for my clients to act contrary to their own self interest. 

At the start, I explained that I was talking about the many irritating actions my clients and those of my colleagues (as related in innumerable war stories, accompanied by shrugs, curses and laughter) committed to ruin their lives.  I asked: Why . . .

. . . do they drop the dope on the street right in front of the oncoming Black and White? 
. . . do they drop the rest in the back seat after they are arrested?
. . . do they waive their Miranda rights and cop to the cops, brag to the jailhouse snitches, admit to their homies, and then indignantly deny all to us?
. . . do they keep the murder weapon so it can be found in a search, or sell it to someone who they warn: “There’s a murder on it”?
. . . do they wear a ski mask, gloves, Raiders jacket, but leave their wallets at the scene of the crime?
. . . keep credit cards and wallets of the victims in the trunk of the stolen car in which they have just had an accident?
. . . do they turn down the terrific plea bargain we’ve labored so hard to wangle? 
. . . do they insist on the “story” or defense which is guaranteed to lose, even when a better version or defense is readily available, fits with the same facts, and would provide a greater chance or even a certainty of victory?
. . . do they insist on testifying when it is the worst strategy? 
. . . do they testify that they have “never even seen drugs” after we successfully suppressed impeachment on 6 prior possession convictions?

I pointed out that civil lawyers have similar complaints about their clients who ruin their good cases, turning down the best settlement and end up getting screwed in court.

I observed that the phenomenon was not attributed to stupidity, noting that many supposedly intelligent, rational people were guilty: Bill Clinton and Dick Nixon being famous examples. 

In later posts, the news provided many other examples.  Tiger Woods, Governor Mark Sanford, and many other men who have been caught in sexual scandals that have followed the Clinton model of self-immolation.  

Sexual appetite doesn’t account for every instance.  I related Alan Greenspan’s reaction to the financial shenanigans revealed in 2008. He claimed to be shocked that financiers, bankers, and other conservative participants in the “free market” had acted so recklessly, against their rational best interests, and that the free market controls failed to prevent the disaster.

The recent presidential campaign provided many examples of behavior that insured bad results for the candidate.  How many “what was he (she) thinking?” moments were there in the primary and general elections.  Although the election proved the disastrous consequences of such stances, Republicans blinked and continued to act the same way as in Congress, insuring, in the opinion of many, that they would continue their party’s slide into ridicule and minority status.

In my posts I have tried to explain the conduct.  In the Sanford post, above, I referred to a news article in which psychologists called him an example of the “Type T” personality, the thrill -seeking, risk-taking person who is common in politics (and crime).  The intoxicating mix of adrenaline, testosterone and dopamine is irresistible to many of these (usually) men.  

Parenthetically, most of the news items, and opinions of these shrinks is that the phenomenon is most common in males — similar to serial killers, who are almost all male.  However, women are certainly not immune from risky self-destructive, impulsive behavior: look up Mary Kay Letourneu, and think of Diane Lane’s Oscar winning performance in “Unfaithful.” 

Now, I find that there is a name for it: AKRASIA, defined as the status of acting against one’s own self-interest.  It is a Greek word, of course, apparently first noted by Plato, in a dialogue in which his mentor Socrates tried to account for it. Later, Aristotle tried his hand, too.  

The name the Greeks gave it makes it sound like a disease.  You can understand why — they were all about REASON being the answer to all problems.  Like Spock, they deemed “illogic” to be bad.  They attributed akrasia to the appetites — giving in to desire, passion, that is, the impulses of the body overcoming the rational judgments of the mind.     

A related idea, called “hyperbolic discounting,” which sounds like something John Nash's twisted mind might have devised, describes the human tendency to take the first path even though reason suggests waiting for a future opportunity. Economic mathematicians have devised models and equations to predict what percent of people will jump now, and how many will wait.  

Moralists have also coped with the problem, ascribing it to a failure of will power.  This view sees it as a weakness, exemplified by addictive behavior — alcohol, smoking, drugs, sex, gambling — actions people continue despite knowing the self-destructive consequences.  

This view seems to ignore human nature, relying far too much on assumptions about reason and morality.  In my earliest post on the subject, I noted that my experience was that the tendency to act contrary to one’s own best interests is NORMAL, not perverse.  It is our expectations that are skewed.  We have been educated (by the Greeks and their students, who became our teachers) to accept that the rational, moral way is normative.  We punish deviation and are shocked by its appearance.  

The reality seems to be that we are hard-wired to take illogical, risky chances, even after we “know right from wrong”, and even after we have calculated the consequences of doing so.  

Just as the addict is trapped by chemicals in his brain, so too are the “Type T’s”.  I would argue that we all have “Type T” and addictive tendencies.  In my first post of this blog, I asked the reader to remember their first temptations to transgress:

“ . . . Think about it. Remember when you first looked down to your speedometer and saw “80.” You took your foot from the accelerator, your heart raced, you looked quickly in your mirrors. Seeing no CHP cruiser, what did you do? Breathe a sigh, get back to 65 or 55? Or smile slyly and speed up again? . . . you did wrong and got away with it. . . . 

“Remember when you were in school and you were warned that if you violated the rules you would be punished? But you did it anyway -- at least once: you didn’t do your homework one day and nothing happened. You told a joke at the back of the class, chewed gum, passed a note, listened to the radio, smoked ( a cigarette or a joint) in the bathroom, ditched a class, cheated on a test, brought a gun to school (well, probably none of you did that). Sometimes you were punished for things that others instigated or joined in.

“Remember the thrill of the feeling of dizziness at the fear of being caught?

“It actually began earlier. Your sibling got you into trouble or vice versa. Admit it, you got away with it more often than your parent knew. What did you think the next time you heard a parent say: “You better not stay up after 11, or else!”

“All these experiences affected your view of justice and success. 

But most of us didn’t like that terror we felt when our hearts raced, or we felt the dizziness of being sent to the principal’s office. We usually avoided the feeling when we sensed its onset. This is what the psychiatrist we have appointed for our clients call “Impulse control.” It is what our clients lack. They feel the thrill and want it again.

I think it is significant that criminal misbehavior is most extreme during adolescence. 

It is “normal” for teenagers to rebel against adult authority, test the limits, take unreasonable risks, act impulsively, feel alternately depressed and elated for no reason apparent to adults. They act impulsively, often self-destructively, do things that are “stupid” and not in their self-interest while acting inconsiderately and selfishly. They avoid responsibility and deny obvious facts. And they are adamantly assertive of their perception that life and all rules are “unfair.”  Adolescence would not be worthy of the name without these “experiments.” 

Yet, it continues into “normal” adulthood.  Some still drink and drive, others have unsafe sex, almost everyone buy impulsively --- consider EBay, or the Home Shopping Network.  It is not unusual but common for humans to act irrationally, against their better judgments.  

It is only a matter of degree to go from the “norm” to the excessive: the athlete who endangers career and the millions that he dreamed of and worked for all his life --- in order to get high with the homies; the woman who risks love, family, security --- for a fling with a delivery boy or student; the brilliant policy wonk who loses the presidency over an impulse to use the Oval Office as a bedroom.  

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