ON FREE WILL

Vol 12, Issue 12

SCOTT DRAPER

Personal Responsibility and the Criminal Justice System

You are sun-baking on the University Square grass, enjoying the warm breeze of a spring day. Suddenly, you notice a fully-grown grizzly bear a mere three feet away. It sinks its teeth into your ankle and tears off your foot.
​
Consider this change. Instead of a bear, a man with a machete strolls onto the grass. As you try to determine which snapchat filter will best convey the chilled life of studying law, he hacks off your foot.

​

What is the difference here? The outcome is the same, but something seems to have changed in relation to each attackers’ responsibility.

Bears are bears, you might say. They don’t know what they are doing, and can only be expected to act as an animal would. Humans are different. They are complex creatures, endowed with reason and awareness of the consequences of their actions. Humans who have made bad decisions had the freedom to make different ones. As such, they are blameworthy.

This appears to align with the intuitions of most people. But in a scientific sense, this view of free will is mistaken. We spend much of our time – of our lives – regretting actions of the past, blaming others and ourselves for various failings. We think it is justifiable to hate others for their harmful conduct, and think criminals need not only be detained for public safety, but are also deserving of punishment. What I wish to encourage, dear reader, is a view of personal responsibility which may challenge the basis of this intuition. The premise is this: the feeling that we are the conscious author of our thoughts and actions is an illusion.

The logic is as follows. The brain is a physical system, constrained by the laws of nature. All thoughts and actions which originate in the brain are therefore subject to a chain of cause and effect, extending endlessly into the past. The claim that someone should have “decided differently” is to suggest that they alter their own neurophysiology. But the man’s decision to chop off your foot was a part of this brain chemistry, itself a consequence of a lifetime of brain events, genetic and external influences. Where is the freedom here?

This may seem too easy, as if to exonerate all conduct because it is chemical. But in some sense, this is all you need. Here’s an experiment. Pick a number between 1 and 100. Concentrate on your mental processes as you choose.

Notice that this is the freest choice you will ever have – if free will is not here, it’s nowhere. Question: did you decide which numbers would appear in your mind? Obviously not; they just popped into your head. Were you free to choose something which never occurred to you? You couldn’t be.

Perhaps you converged on two numbers. You were thinking of 19, but then you remembered that 7 is your favourite number, so you picked that. You might think this is where free will makes its entrance. But ask yourself, did you author the thought that directed you to 7? That also just appeared in your mind. Why didn’t it, for example, have the opposite effect of making you want to choose a number different from your favourite? At bottom, you can’t explain it.

If you pay close attention, you will notice that you are not really controlling anything – you are simply witnessing the internal monologue of your own mind. The crux is this: if you are confused about my argument so far, you didn’t create that sense of confusion. Equally, if you understand, you are not responsible for understanding.
 
How can we view and respond to criminal behaviour in light of this? Criminals are, in some sense, victims of their own circumstances. They had the wrong parents, the wrong genes, the wrong brain, or some combination of factors. It appears strange to say, but ultimately one is unlucky to have the mind of a murderer.

This is not to say that autonomy is irrelevant or impossible. There is a difference between committing an act in alignment with your own intentions, and doing it with a gun to your head. But the difference is one which explains what kind of person you are – what you are likely to do in the future – not that you are responsible for being that person.

Neither am I claiming that all criminal actions are the result of mental illness. This defence simply recognises that conduct can be explained with reference to an isolated factor for which the person is not responsible. But in reality, we could say ‘this person would never have committed this act if not for the having their brain, their genes, their friends, a lifetime of particular external stimuli,’ etc. Our attribution of responsibility is a failure to trace back the thousands of individual factors leading to this decision, none for which the person in question could be held responsible. And a complete understanding of the person’s neurophysiology would be as exculpatory as discovering mental illness. In fact, our growing understanding of mental illness – from treating autism as a spectrum, to Forgotten Baby Syndrome – indicates this expansion of deterministic thought in medicine and law.

But despite the clear role of luck, the desire to live in a peaceful society requires that we protect human life and other interests. Criminals are public health concerns, and so it is justified that they are detained and removed from the public when their conduct signals an intent to commit further criminal acts.

This is not, of course, the position of our legal system. Public safety and deterrence are important factors, but punitive and retributive measures are regularly imposed on the basis of deserved punishment. Much of criminal, tort, and other law rests on an (arguably false) assumption that people could (and should) have acted differently in the past.

Compassionate law reform requires us to be more than empathetic. We must recognise that if we were in the shoes of another – thinking their thoughts, living their life – we would act exactly as they had. There is no room for the freedom we cling to which credits us with our own genius, or devastates us for our failings. Treating criminals as intelligent grizzly bears allows us to focus on pragmatic solutions to human violence, rather than seething over the evil we imagine people invent within themselves.

Scott Draper is a second-year JD student

More articles like this:

• ​Prosecute or Punish

The rest of this issue (:O)

• Riley Announces Presidential Run
• Choose Your Story
• So Long and Thanks for All the Fish
• The Oxford Mythology and MLS Assessment​
• You Can Commit to Justice in Your Career
• Chatting is Bullshit
• Lockheed Martin: Research and Warfare