Free WIll, Determinism, and the Criminal Justice System


“The assumption of an absolute determinism is the essential foundation of every scientific inquiry.”
~ Max Planck
“We must believe in free will, we have no choice.”
~ Isaac Bashevis Singer

Everyone wants to hold criminals responsible for their actions.  This “responsibility” has its foundation in the belief that we all have the free will to choose right from wrong.  What if free will is just an illusion, how would that impact the criminal justice system?   Free will creates the moral structure that provides the foundation for our criminal justice system.  Without it, most punishments in place today must be eliminated completely.  Its no secret that I’m a firm believer in free will, but I’m also a firm believer in arguing against it when it helps my clients.  That’s what we lawyers do (call me a hypocrite if you like, I can take it).  Now, let’s delve into the issues and practical effects of eliminating free will.

We only punish those who are morally responsible for their action.  If a driver accidentally runs over a pedestrian–there will be no criminal charges in the death of the pedestrian.  This is what we call an “accident”.  However, if a husband runs over his wife after an argument, that same pedestrian death now constitutes murder.  It was the driver’s “intent” that made one pedestrian death a crime, and the other not. But, what if we examine the husband’s brain, and an MRI discovers a frontal lobe defect that could explain his deviant behavior?  Is he still guilty of murder?  If such a defect “caused” the husband’s actions, our criminal justice system has laws in place that would label the husband “Not Guilty By Reason of Insanity”.  That being said, what happens if “causation” runs deeper than a mere frontal lobe problem?

Neuroscientists get excited when their brain scans detect an abnormality, but today we’re going to look beyond this modern day phrenology.  Some scientists now claim that human behavior may not, in fact, have its origins in the brain.  Yes, there’s a battle brewing between physics and biologists.  On the one side, we have the white coats feeling lumps on our skulls, or seeing brain electrical activity on a computer screen; all of which is fairly impressive.  But the physicists are telling us that causation predates the brain.  Basically, everything (including brain activity) is the result of the collision of molecules that behave according to the laws of physics (we call this determinism).  If every event is determined by a previous event, there is no room for squishy concepts of “free will” and “morality”.   Free will, then, amounts to one of many illusions inflicted upon us by our tricky brains.  As a criminal defense attorney, I am anxious to see whether or not folks who believe we have no free will are willing to dismiss all charges against my clients who may have (God forbid) raped their wife or killed their dog (sometimes pets evoke more emotion than spouses, I’m just saying).

To understand how determinism eliminates free will, and sets my prisoners free, let’s take a look at Professor Patrick Grim’s explanation:

“   1. Everything in the universe happens because of earlier events in accordance with causal law.

  1. My choices and decisions are events in the universe.
  2. They therefore happen as they do because of earlier events—events even before my birth—in accordance with causal law.
  3. I therefore have no free choice. I cannot act freely and cannot be held ethically responsible for my actions.”  — Patrick Grim, Philosophy of Mind (The Great Courses) [Grim also explains that quantum mechanics allows for a certain randomness that defeats the causation in #1, but this quantum randomness still doesn’t prove free will exists]

Now, if a person truly subscribes to the notion that free will is an illusion, Florida’s criminal laws are equipped to handle such–but–the end result in all cases is that the charges would be dismissed.  In other words, determinism doesn’t demand a change to criminal laws, we’ll just have lots of dropped cases and empty prisons.  We currently dismiss cases when a doctor can show the court that a defendant’s mental state gave him no choice but to commit the charged offense (Florida Rules of Criminal Procedure (Rule 3.211-3.216)).  The issue of “choice” and free will even plays a role in non-criminal proceedings, like the Florida law known as the Jimmy Ryce Act.  This act requires convicted sexual predators to be involuntarily committed (imprisoned) to a hospital immediately following their prison term–for an indefinite period of time–should the person be deemed likely to commit further acts of violence without treatment.  Several years ago, I had a client go to prison for three years on a sex offense (it’s rare that my clients go to prison, I’m just saying…bragging too).  As he was waiting at the prison front door for his mother to pick him up—the Jimmy Ryce folks took him involuntarily for another four years to their locked down “hospital” that is, for all intents and purposes, another prison.  Again, the person has already completed his sentence for a violent sex offense, yet is still incarcerated in a mental facility to prevent further criminal acts (if it sounds a bit like Minority Report, it is, but replace the “pre-cogs” with psychiatrists).   The issue of free will and involuntary commitment was addressed in a case out of Washington, In re Detention of Campbell, 139 Wn.2d 341, 986 P.2d 771 (Wash. 1999),  where dissenting Justice Sanders reasoned as follows:

In the dark heart of the sex predator statute is the legislative denial of free will and individual responsibility. This is true because a ‘sexually violent predator’ is legislatively defined as one ‘who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence….’ RCW 71.09.020(1). Necessarily one who simply commits a violent sexual act through volitional choice is outside the statute. Such an individual is what the criminal law is made for. But in theory the person who does this because his “mental abnormality” or “personality disorder” “makes” him do it is not a person acting by his free will and, consequently, not one who can be held accountable for his choices.

Therefore evidence is necessary to distinguish between those who volitionally act of their free will and those who don’t. On its face future acts of violence based on free choice are not only outside the statute but would seem unpredictable in principle. On the other hand one would expect those acting out their nonvolitional destiny by reason of a ‘mental abnormality’ or ‘personality disorder’ which causes violent sexual conduct would show themselves through the application of diagnostic criteria proved in the scientific arena to be reliable and accurate through repetition and replication.” [emphasis added]

As you can see from the appellate opinion above, our criminal laws are founded on the notion that if a person is not acting by his free will, the law cannot hold him “accountable for his choices”. There are plenty of other examples of Florida criminal laws that would benefit my clients, should everyone agree that free will is an illusion.  For example, confessions cannot not be entered into evidence unless they are made of the defendant’s “own free will”.  The term “free will” is contained right there in the definition of numerous legal concepts.  Other criminal law concepts would lose their meaning as well, like “premeditation”.  Is it realistic to speak of premeditation if freewill doesn’t exist?  Is a robot on an assembly line in China premeditating the building of an iPhone?   The mere fact that a robot takes several distinct steps to complete a task doesn’t render its actions ‘premeditated’.  Such concepts should be purged from our criminal justice system if we’re all just biological robots.

In spite of my skepticism, I must confess that I enjoy using deterministic arguments to help my clients.   We criminal defense attorneys have been making deterministic arguments for centuries.  Here’s a classic from Clarence Darrow, as he argued that the jury not put his client Loeb and Leopold to death:

“Is Dicky Loeb to blame because … of the infinite forces that conspired to form him, the infinite forces that were at work producing him ages before he was born … Science has been at work, humanity has been at work, scholarship has been at work, and intelligent people now know that every human being is the product of the endless heredity back of him and the infinite environment around him.  He is made as he is and he is the sport of all that goes before him and is applied to him, and under the same stress and storm, you would act one way and I act another, and poor Dicky Loeb another.” –Clarence Darrow (closing argument, defendant’s Richard Loeb and Nathan Leopold)

If determinism is true, there is no free will.  If there is no free will, there is no morality, and this eliminates one of the great questions posed by the late (great) Christopher Hitchens; “One of the great questions of philosophy is, do we innately have morality, or do we get it from celestial dictation?”  For the determinist, the answer is neither.  There are no true morals, because there is no free will.

I was in court recently with a good friend of mine who is a determinist, insisting free will is an illusion.  I love this guy because he’s always up for some good mental gymnastics, and he began our discussion by commenting on how silly it is that the world as we know it amounts to nothing more than a happy accident.   We’re just moist robots programmed to behave according to the dictates of an infinite series of prior causes (How can there be an infinity of physical things? That’s a story for another day).

Sure, there are lots of deterministic things going on in science, but the evidence has yet to prove that we have no free will.  Yet, I’m not sure I can prove it exists either, I’m just saying.  But,  I can dig into my Samsung flat screen and find the electrical impulses that help me watch the NFC playoffs as I write this.  The thing is, those electrical impulses don’t explain the football game anymore than the neuroscientists are proving the NFL playoffs don’t exist because they’ve discovered the bio-electrical impulses in  my brain that correspond to football.  Maybe there’s something else out there, that is not subject to repeatable experimentation (remember, scientists declared that rocks falling from the sky could not be true because they had no way of explaining it–we now know meteorites are fairly common events even if we can’t experiment on the phenomena).  There are plenty of “defeaters” out there to determinism, but much of this scientific research is swept under the rug because it doesn’t fit into current understandings of how the world works (decades of research into near death experiences is but one example, if folks have the courage to go where this data leads).

Should science convince the world that free will is an illusion–we must move past notions of “punishment” and “sentencing”.   This is not just intellectual musings;  concepts of free will impact the criminal courts on a daily basis.  Still, there are a few well known folks that refuse to face the implications of their beliefs.  Einstein was just such a person: “I am compelled to act as if free will existed, because if I wish to live in a civilized society I must act responsibly . . . I know that philosophically a murderer is not responsible for his crime, but I prefer not to take tea with him.”  Look, most of us are only seeking the truth (except, when I’m defending someone who is guilty, of course), so if the truth is that there is no free will, let’s stop pretending.  The bottom line here is best expressed by Professor Shaun Nichols in his lectures entitled Free Will and Determinism: “if science convinces us that free will is an illusion, we seem to face a moral conclusion that is difficult to accept: that all criminals should be excused for their crimes.”  (The Great Courses).   Will scientists shut down the criminal justice system?  Please.  The same scientists that claim free will doesn’t exist will be the first ones to scream bloody murder should one of my clients wrong them in any way.