Culture and Context

Consideration of the relevance of cultural back- ground and experience to the process of sentencing raises several complex theoretical and practical ques- tions. In what sense can a cultural explanation justify a claim of (1) diminished capacity to make a moral distinction between legally right and wrong behav- ior, (2) lack of criminal intent or volition, or (3) other mitigating circumstances that should influence sen- tencing? The answer to each of these questions is somewhat different.

The capacity to make moral judgments depends not only on intact cognitive-emotional functioning but also on having acquired the implicit rules and hierarchy of values that govern local morality. In noncapital cases, it is easy to recognize cultural diver- gences in these values. For example, exposure to vio- lence may change the capacity for thinking through the consequences of one’s actions by causing a nar- rowing of attention or intense emotion that inter- feres with thinking about the consequences of one’s actions.

Volitional behavior emerges from a complex ma- trix of social, psychological, and biological processes, each of which can link past experience to current behavior. Cultural variations in childrearing and cul- tural concepts of the person may lead to differences in emotional experience, self-control, and explana- tions of action.17 Hence, any comprehensive ac- count of the origins of behavior must include cultural dimensions. This necessity is especially true of moti- vation, volition, intent, and control that are crucial in determining the degree of culpability for harmful actions and the appropriate social response. Both so- cial and psychological considerations suggest that there are many gradations of volition and control in behavior and that these may be crucial to deciding the level of intent.18 We need a detailed understand- ing of the role of culture in ordinary cognitive func- tioning and in psychopathology to understand when and where individuals may be partially exculpated

because their cultural background has affected their capacity to form a criminal intent or to control their behavior.