The Implication of the Absence of Free Will on Criminal Justice – Part II
Editor’s Note: This is the second article in a two-part series on the U.S. criminal justice system. Read the first article.
By Dr. Gary L. Deel, Ph.D., J.D., Faculty Director, School of Business, American Military University
In the first part of this article series, I explained why some experts assert that free will is an illusion and what we like to think of as agency over our own thoughts and actions is really just a false perception of control. In reality, these experts assert that we are passengers in our own minds, riding from one thought to the next as the natural order of cause and effect plays out in our heads.
How is this relevant to criminal justice? In his book, “Free Will,” Dr. Sam Harris writes about the story of Charles Whitman, who in 1966 climbed to the top of the clock tower at the University of Texas at Austin and began a shooting spree that left 14 people dead. Most people of course would find this kind of homicidal rampage abhorrent. Emotions are strong on the subject of how people who do such things ought to be punished.
However, after the shooting, Whitman actually took his own life. And he left behind a suicide note. In that note, he insisted that he was not a violent person and didn’t want to hurt anybody. He just had an inexplicable and uncontrollable urge to commit these homicides, to which he ultimately succumbed. He asked that his body be autopsied to determine the cause of his apparent psychopathy.
An autopsy was conducted, and what the medical examiners found was an enormous tumor pressing on Whitman’s amygdala, the part of the brain responsible for emotional and behavioral control. So Whitman likely had as much control over his behavior as a blind person has over his ability to see. In light of this evidence, Whitman suddenly looks less like the devil incarnate and more like the victim of a tragic circumstance over which he had no knowledge or control.
If Free Will Is an Illusion, then the Choice to Kill Is No More an Authored Thought Than Any Other Thought We Have
This is not to say that all criminal behavior is the product of brain tumors. But again, some experts suggest that thought and behavior are the products of simple cause and effect in brain chemistry and wiring. Consider the hypothetical example of a murderer with a healthy brain. Such a person might not have the excuse of a brain tumor to lean on, but under the theory that free will is an illusion, the choice to kill is no more an authored thought than any other thought we have. And as such, we therefore really couldn’t claim authorship of any of them.
So the absence of free will in these contexts would compel one to question precisely how much we could hold anyone “accountable” for their actions, criminal or otherwise. Indeed, the criminal justice system recognizes this today in the form of the insanity defense. The insanity defense is an affirmative defense to charges of criminal culpability on the grounds that the accused is not responsible for his or her actions for reasons of episodic or persistent psychiatric disease at the time of the crime.
But the bar to meet for the insanity defense is a high one. It usually requires evaluation and testimony from several psychiatric health experts. Even then it may not be a complete bar to culpability. Suffice to say, the argument that free will is an illusion has yet to be taken seriously in a court of law.
A Lack of Free Will Would Mean No One Is Truly Accountable for What They Think and Do
But should it be? And what would that mean for the criminal justice system? These are really tough questions to wrestle with. On one hand, it could be argued that a lack of free will would mean no one is truly accountable for the things they think and do. So if a rapist commits a rape, that is a terrible thing. But it would be construed as the product of one or more terrible circumstances, be they brain tumors, hormonal imbalances, abusive childhood experiences, a lack of strong moral influence, the absence of role models, and others. One thing it wouldn’t be construed as is the manifestation of agency. Again, under the reasoning of this idea there’s no room in our understanding of the universe for free will.
On the other hand, even if free will is an illusion, we shouldn’t abandon the ideas of accountability and punishment for criminal behavior completely. Why? Because the recognition that 1) society views criminal conduct as bad and 2) it is punished with undesirable circumstances could be — and probably is — a catalyst to psychological states that are less likely to lead to criminal behavior.
So let’s take our rapist example again. Suppose that the mind of the would-be rapist is considering and perhaps even trying to rationalize raping someone. But the recognition that 1) society shuns rapists, and 2) rapists go to prison, triggers the release of hormones in the amygdala that creates the feeling of fear in the mind of the rapist — a fear sufficient to tip the scales and prevent the mental conclusion that a rape should occur.
It is also obviously critical that we hold people accountable for their actions generally, so that where compensation for victims is an available remedy, such victims have a means of recovery.
In Terms of Moral Conviction, We Feel a Natural Compulsion to Punish Bad Behavior
This would obviously be a tough balancing act because, in terms of moral conviction, we feel a natural compulsion to punish bad behavior. Yet, if we were to accept the notion that free will is an illusion —and I’m not necessarily implying with this discussion that we should — we would then probably need to be more sensitive to the uncontrollable psychological variables that motivate all behavior. And even still, the existence of punishment may in fact serve as a force that pushes many of those variables in a positive direction, away from states of mind that might be conducive to bad behavior.
Unfortunately, I don’t have a prescription with which to solve this problem, aside from suggesting that more people spend time thinking about and talking about these issues. Pondering them may not be comfortable, but it’s important that we resist the temptation to ignore or avoid important conversations like this.
Exchanges among thoughtful and open minds are how we move the needle forward to a more moral and just criminal justice system. We owe it to all our fellow citizens who are on the receiving ends of judgment and sentencing to do everything in our power to get it right.
About the Author: Dr. Gary Deel is a Faculty Director with the School of Business at American Military University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Military University, the University of Central Florida, Colorado State University and others.
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