“No wise man punishes any one because he has sinned, but that he may sin no more: for what is past cannot be recalled, but what is to come may be checked.”
— Plato
A Better Justice System without Free Will
There is no essential element in humans that is above the reign of physics. There is no decider in your brain, an uncaused causer, a soul that is free from earthly influence. If you disagree, that’s okay, and I won’t spend too much time on it here, but the main purpose of this post is to explain how the justice system can benefit from believing there is no free will. First, I will briefly state why I think humans are no special object in the universe, and why they cannot escape causality.
Free will not worth wanting
When you really dig into it, most people do not think we have the complete authorship of our lives that we really want. There are only three options: we have free will, we don’t, or there’s a mix. It seems to me full free will would escape all earthly causality, that no input from the environment or effects of genes or biology would seriously effect a change in behavior. We don’t choose the kind of person we are, in any real sense. Personality traits are, of course, alterable, but there are limits to these changes. But what determines your ability to change traits? Again, nothing that you authored, and it is something we can measure and predict to a degree. We don’t even author our thoughts, they pop into our minds and we must respond to them. Your thoughts are like a slideshow playing on a screen and then you react to them. Isn’t it arrogant to think that we escaped the fate of every other object in the universe? That we are in fact aloof from causality? The captain cannot perceive the water moving the ship underneath from the wheelhouse. All of physics so far points to nothing escaping causality, except in cases where things could be random, but random does not make freedom. This is a pretty weak argument for free will, but this article is about how the law can benefit from not believing in free will so, let’s shift gears.
Unable to Act Otherwise
The law has started to consider special cases for people suffering from PTSD, PMS, and children. So, it is willing to accept that bad behaviors can stem from physically altering a brain state. So, to the justice system people with brain conditions are less culpable because they have less of a choice in the matter. I argue that this is not the way to think about punishment, but first, let’s look at someone who tragically never had a choice in the matter.
The Green River Killer, Gary Ridgway, killed around 50 females in the state of Washington during the 1980s and 1990s. Upon his arrest and subsequent interrogation something profoundly mundane was found. Ridgway would typically take in prostitutes and kill them for sexual pleasure. Ridgway also killed a close friend, Carol Ann Christensen. If you listen to the tapes, he sounds sincere when admitting that he really cared for this close friend and past significant other. The interviewer knew that Ridgway usually planned beforehand to kill during sex after he stated he became angry at them for some slight sexual inconvenience; so, he was quite puzzled by why Ridgway would have engaged in sex with someone he cared for but knew he would kill. When asked why he needed to kill, he responded with, “yes I did need to kill…because of that.” He failed to cite some reason to killing just as you would fail to cite a reason for making a sandwich, “Uhm, I was just hungry, I guess?”
There’s no way you are freer from your biology, environment, or genes than this murderer. The existing rule on whether legally someone is culpable for their crimes is the M’Naghten rule. It states that if someone can determine the difference between right and wrong, they are culpable for their actions. This is inadequate.
Robert Sapolsky in his Stanford YouTube lectures points out a fascinating study where this inadequacy is very apparent. There is a study where people with frontal cortex damage are explained of a game where a person holds out two hands, one with 5 M&M’s in it and one with 1 M&M in it. If the person reaches for the 5 M&M’s, the hand is drawn away and they get no reward. If they reach for the 1 M&M you give them 5 M&M’s. So, what does the person with frontal damage do? They will explain to you that they need to reach for the 5 M&M’s and then, without control, reach for the 1 M&M. This is why the M’Naghten rule does not work.
Prigs in Powdered Wigs
A consequential justice system would take into consideration what punishment would keep others from committing that crime, and what punishment would prevent the offender from committing the crime again. It is easy to attack this plan in saying if we just kill the offenders, then there will be no offenders to commit crimes. However, I would say only a degraded society would kill to prevent crimes, to say that that a criminal is worthless in the face of preventing crime. That’s Minority Report and that was not a great movie. There is some serious debate required in talking about this, because if we could find that a certain punishment is sufficient in preventing others from committing the act and enough to prevent the offender from committing it again, what punishment is left for your right to retribution? What higher right could you ask for as a victim than to be ensured the offender be brought back into society, functional, and others deterred from committing that crime? It would be criminal to demand any more punishment, because that would be for the worse for the offender’s recidivism, and in America, this is certainly what happens, someone is punished sufficiently enough to undermine their life, and therefore their ability to do differently in the future. What is the price we put on a person’s ability to change? Why do we sell it so cheaply in America? Accepting that free will does not exist allows us to recognize everyone’s action in a detached manner, like machines malfunctioning. It is hard to imagine the justice system in a worse place for viewing criminals like broken machinery, because then we would be looking for the replacement parts instead of condemning them to a life of regret and criminality in prison.
If the justice system wants to punish people to the degree in which they are culpable, the Green River Killer probably would have not seen a courtroom. Which is obviously wrong. In the grand sense Ridgeway is not morally guilty, he acted just as one would have acted given his brain and environment. But for obvious reasons he cannot walk free. If we had a way of curing Ridgeway of his homicidal tendencies, would he owe anything to his victim’s families in terms of punishment? If we cured him and he would never act in that manner again, what basis could you seriously demand he be killed or imprisoned, the man you would be punishing would not be a killer. He would emerge from this treatment shocked he committed these heinous murders and he would probably apologize profusely. Who are you to demand the punishment of an innocent person? Again, we should punish to prevent the agent and society from committing the action, not to get revenge.
John Stuart Mill argued that you should be allowed to live any life you want to as long as it does not infringe on other’s rights. So, if someone has a particular brain state, a psychosis or damage, that has contributed to their homicidally, then should we revoke their right to have that particular brain state? Perhaps they should have a choice if they are of sound mind to choose, they can choose a life of prison or be cured. Perhaps we should choose for them if they are not? I do not recommend mandating ultimatums of altering genes or biology or imprisonment BEFORE crimes have been committed because future environment is a huge curveball factor in determining behavior.
Conclusion
As science progresses we won’t find suddenly that we have more free will than we thought. As science gets better at predicting our behaviors based on brain states and environment, we won’t wake up one day and see a paper published titled: “Free Will Discovered”. Continually it will be deflated more and more until we will have no basis for it, and the justice system is going to have to change with this. We must destroy the idea that people are morally culpable and blameworthy for their actions, for their sake and so we do not become prigs.
Originally published at brandondot.wordpress.com on September 8, 2018.
