Tuesday, March 6, 2012

Free Will and Criminal Justice

Panderbear argued in Free Will Pander that if the laws of nature apply everywhere and at all times, free will cannot exist. Dispensing with free will has widespread implications, though they are more subtle than you might think. Let's focus on the implications for the criminal justice system.

Discarding free will does not imply individuals shouldn't be held accountable for their actions. No government can provide its citizens an acceptable measure of security from criminal acts if human behavior is unconstrained. However, the justification for individual accountability need not be built on notions of free will or morality. Creating laws and courts and meting out justice are amply justified by the far more pragmatic requirement for constraining behavior contrary to society's best interests.

The fallacy of free will is the ultimate source of unworthy emotional responses such as schadenfreude, the desire for revenge, and superfluous injection of morality into the process of crime and punishment. The latter unnecessarily draws subjectivity, not to mention a good deal of pandering, into a process that should strive to be an objective search for fact and a resolution in the best interests of society at large.

Rejecting free will leads to a more rational approach to crime and punishment by eliciting more appropriate questions. Instead of concentrating on how harshly to punish the convicted criminal, the emphasis should be the more productive question of how to prevent future bad acts by the same criminal or by others.

When the justification for abridging a convicted criminal's liberties is founded on prevention of future bad acts rather than revenge, only the minimal punishment or rehabilitation necessary to achieve that end is justified. For example, life imprisonment is just as effective as administering the death penalty, so it follows that capital punishment is never justified.

But, what about deterrence? Don't the death penalty and other harsh punishments deter crime? The effectiveness of capital punishment as a deterrent is unproven and much pandered, though no doubt fear of punishment in general substantially reduces the number of non-capital crimes. But, once again introducing free will brings an unnecessary complication. Namely, is it moral to execute one person, because it may deter bad acts by others? Panderbear thinks not, even while strongly supporting sure and swift justice for criminal behavior.

Incarceration Rates

The free will paradigm that places emphasis on revenge and punishment as an end in itself has lead America to incarcerate a higher percentage of its population than any other country. We have become a nation of gulags, many of them private enterprises where the incentive is to keep as many people in prison for as long as possible.

By any measure our current criminal justice system is an abject failure. The anachronistic notion of free will contributes mightily to that failure.

submit to reddit Share on Tumblr


  1. Stuart (Australia)April 10, 2012 at 4:07 AM

    I cannot agree with your "philosphy" causation view here:
    "The free will paradigm that places emphasis on revenge and punishment as an end in itself has lead America to incarcerate a higher percentage of its population than any other country."

    As you showed in your excellent Gulag column, other Western nations have tiny prison populations compared to the USA. But these nations largely have similar views on free will, punishment, and revenge to those
    you criticise and blame. In particular, the culturally VERY similar nations of Britain, Canada and Australia have prison populations of ~150 per 100,000 compared to ~750 for the USA. So I think your "philosophy" causation is not correct.

    Instead I think it would be much better for you to further examine and develop the unique US issues you raised in your Gulag and Apartheid columns. Keep up the good work!

    1. America is exceptional in a number of respects that contribute to a higher rate of incarceration. Two things that come to mind are the rise of the evangelical movement in the U.S. (and a vengeful God) which is not reflected in most other Western nations and American Exceptionalism which makes Americans more resistant to learning from the examples of other countries. One more factor is the myth of the rugged individualist and self-made man (another aspect of free will).

      That said, the biggest single factor and the proximate cause for the explosion of our prison population is the criminalization of marijuana possession and the uniquely severe sentences meted out in the U.S. These arose out of our philosophy of assigning free will without an equal and mitigating dose of compassion.

      Nevertheless, I take your point that other factors are no doubt involved and appreciate your excellent feedback. Please continue to keep Panderbear on his toes. :-)