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From what I understand, psychology plays a large role in our criminal justice systems- especially in the United States. Psychologists evaluate police officers who go on to arrest people who are evaluated by psychologists. This makes sense, because we wouldn’t want to call an officer to our home if he has a brain tumor that gives him murderous tendencies. We may also have more sympathy towards a murderer if we learn of some sort of irregularity in their mind.

These are some of the arguments Sam Harris brings up in his book Free Will, and while many claim he is wrong, there’s not much else they can say. Deniers of free will propagate corrective chastisement for “criminals” rather than punishment. I would assume most neuroscientists and psychologists agree with Harris.

For example, in recent years there has been a shift in opinion towards people who are addicted to drugs, because many psychologists have recognized that addiction is a disease and drug addicts do not have free will. So instead of throwing addicts into cages, it’s been proposed that they get treatment and help. It actually makes a lot of sense if you think about it. Something caused a heroin addict to use heroin (prescription pills, peer pressure, etc) which had an evil effect, so now we need another cause (treatment) to help them obtain a good effect.

^^^That is just an example of how legislation has changed to account for an absence of free will. My question is not about drug rehabilitation because I don’t believe drugs should be illegal.

What justice and legislative system reforms have been proposed that account for the complete absence of free will?

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    This question is based on assumptions which are not made explicit as they are not referenced. Please help us to help you and edit your question to provide more information on what you have read on this subject, what made you are ask this question, and any problems you are having understanding your research. If you need help, you can view our How to Ask page. Thanks – Chris Rogers Sep 19 '18 at 14:05
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    Is this the appropriate site for this question? Would't be better philosophy.se / politics.se? – Luis Masuelli Sep 19 '18 at 15:58
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    Just a thought: if there is absolutely no free will, then anything we do to punish people is already predestined. However, I realize you're talking about less free will, and not a COMPLETE absence of free will. – barrycarter Sep 20 '18 at 16:27
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    @Joshua If the entire universe is predetermined, there is really no cause and effect. Things just happen in whatever predestined way they were going to happen anyway. – barrycarter Sep 21 '18 at 2:49
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    You said "nothing will happen unless we cause it". But that doesn't make sense. If there is no free will, we can't cause anything to happen. We have no choice. Any action we take is already predetermined. I don't know whether my actions will change the world, but I have no choice in the matter. – barrycarter Sep 21 '18 at 5:07
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Since Harris apparently failed to make his own point on the law implications of his viewpoint on free will, I'll have to quote that from one of his main critics, Dennett:

Harris, like the other scientists who have recently mounted a campaign to convince the world that free will is an illusion, has a laudable motive: to launder the ancient stain of Sin and Guilt out of our culture, and abolish the cruel and all too usual punishments that we zestfully mete out to the Guilty. As they point out, our zealous search for “justice” is often little more than our instinctual yearning for retaliation dressed up to look respectable. The result, especially in the United States, is a barbaric system of imprisonment – to say nothing of capital punishment – that should make all citizens ashamed. By all means, let’s join hands and reform the legal system, reduce its excesses and restore a measure of dignity – and freedom! – to those whom the state must punish. But the idea that all punishment is, in the end, unjustifiable and should be abolished because nobody is ever really responsible, because nobody has “real” free will is not only not supported by science or philosophical argument; it is blind to the chilling lessons of the not so distant past. Do we want to medicalize all violators of the laws, giving them indefinitely large amounts of involuntary “therapy” in “asylums” (the poor dears, they aren’t responsible, but for the good of the society we have to institutionalize them)? I hope not. But then we need to recognize the powerful (consequentialist) arguments for maintaining a system of punishment (and reward). Punishment can be fair, punishment can be justified, and in fact, our societies could not manage without it.

This discussion of punishment versus medicalization may seem irrelevant to Harris’s book, and an unfair criticism, since he himself barely alludes to it, and offers no analysis of its possible justification, but that is a problem for him. He blandly concedes we will – and should – go on holding some people responsible but then neglects to say what that involves. Punishment and reward? If not, what does he mean? If so, how does he propose to regulate and justify it? I submit that if he had attempted to address these questions he would have ended up with something like this: Those eligible for punishment and reward are those with the general abilities to respond to reasons (warnings, threats, promises) rationally. Real differences in these abilities are empirically discernible, explicable, and morally relevant. Such abilities can arise and persist in a deterministic world, and they are the basis for a justifiable policy of reward and punishment, which brings society many benefits – indeed makes society possible. (Those who lack one or an-other of the abilities that constitute this moral competence are often said, by everyday folk, to lack free will, and this fact is the heart of compatibilism.)

If you think that the fact that incompatibilist free will is an illusion demonstrates that no punishment can ever be truly deserved, think again. It may help to consider all these issues in the context of a simpler phenomenon: sports. In basketball there is the distinction between ordinary fouls and flagrant fouls, and in soccer there is the distinction between yellow cards and red cards, to list just two examples. Are these distinctions fair? Justified? Should Harris be encouraged to argue that there is no real difference between the dirty player and the rest (and besides, the dirty player isn’t responsible for being a dirty player; just look at his upbringing!)? Everybody who plays games must recognize that games without strictly enforced rules are not worth playing, and the rules that work best do not make allowances for differences in heritage, training, or innate skill. So it is in society generally: we are all considered equal under the law, presumed to be responsible until and unless we prove to have some definite defect or infirmity that robs us of our free will, as ordinarily understood.

And what Dennett talks about with indefinite treatement is more real than you might know; various US states have such statues of indefinte civil confinement on the books; typically for sex offenders. And the detention of these hardly differs from [life] [im]prison[ment].

So basically if were to posit that law would dispense with any notion of responsibility (and thus perhaps even with criminal law altogether), a generalized "civil" containment model as hinted by Dennett is not too unreasonable of an inference.

And Harris (or Dennett) is hardly the first guy to talk of this:

Derk Pereboom has argued for a position called hard incompatibilism, which asserts that we are simply not the sort of creatures who can be morally responsible for our actions. [...] But if criminals cannot be held morally responsible for their actions, then there is a serious problem with [the current justice] practices. Since criminals do not deserve to be punished, it would appear as though punishing them would be unjustified. I explain that in order to have properly justified crime control practices, we need to either form a different conception of moral responsibility, or we need to change our current crime control practices. In other words, we need to be revisionists about either moral responsibility or about punishment. Manuel Vargas has argued that we ought to do the former, and Pereboom has argued that we ought to do the latter. Vargas suggests that we reconceptualize moral responsibility, but maintain our responsibility-characteristic practices for pragmatic reasons. Pereboom, on the other hand, suggests that we stop holding people morally responsible altogether and instead revise our system of criminal law to account for this change. [...]

Pereboom's own suggestion for a system of crime control [is] the incapacitation approach. This model suggests that we justify incapacitating criminals by invoking the right to protect ourselves as an analogy to quarantine.


A slightly more elaborate/concrete proposal, by a biologist (Cashmore, 2010):

Progress in understanding the chemical basis of behavior will make it increasingly untenable to retain a belief in the concept of free will. To retain any degree of reality, the criminal justice system will need to adjust accordingly. However, to retain a degree of orderliness in society it will still be necessary to incarcerate individuals found guilty of certain criminal acts. This is rationalized in various ways including the following: To a), protect society; b), protect the offending individuals from society; c), provide such individuals with appropriate psychiatric help; d), act as a deterrent (the act of incarceration and the presence of a criminal code forming part of the environment); and e), alleviate the pain of the victim. The proposal is a pragmatic one, based on the belief that the welfare of society at large is more important than the welfare of the individual offender.

One might ask: How does this proposal differ from the present system? Whereas in some ways, not significantly; in other ways it differs fundamentally. The primary difference would be the elimination of the illogical concept that individuals are in control of their behavior in a manner that is something other than a reflection of their genetic makeup and their environmental history. Furthermore, psychiatrists and other experts on human behavior should be eliminated from the initial judicial proceedings—the role of the jury would be to simply determine whether or not the defendant was guilty of committing the crime; the mental state of the defendant would play no part in this decision. However, if a defendant were found guilty, then a court-appointed panel of experts would play a role in advising on matters of punishment and treatment. This is a system that would hopefully minimize the retributive aspect of criminal law; concerns about this aspect of law, which have probably been around since laws were first introduced, include those expressed by Wootton (33), Menninger (36), and, more recently, Greene and Cohen (37). Also I note that I am not the first to propose that psychiatrists should be excluded from the initial court proceedings; Glueck (38) and Menninger (36), for example, who both had substantially more expertise than I have in this field, long ago made similar suggestions.

According to this view, juries should only establish external facts, leaving the inner working of the defendant entirely to the punishment/treatment phase, which is to be handled by experts.

It's interesting to note in connection to these proposals that a 2012 controlled experiment published in the high-impact Science journal, found that when US judges are presented with a "biomechanism" for psychopathy (in this case a combined genetic and neurological explanation: low MAOA activity and atypical amygdala function) they tend to give a somewhat shorter prison sentence (from 13.93 years to 12.83 years). Note that his was not a forgone conclusion (that the sentence would be shorter), as the likelihood of recidivism is presumably higher under a biological determinant, and this has to be taken into account by US judges upon sentencing (this is elaborated in the introduction of the paper). Nevertheless, the judges saw on average the biomechanism as more mitigating than aggravating.

  • Wondering if the downvote because the question is on wrong site or because the answer is bad. – rus9384 Sep 19 '18 at 18:41
  • @rus9384: if you think the question is good, why don't you upvote it? I assume it is you who downvoted my answer. I didn't upvote the question because it showed a fair bit of jumping to conclusions / insufficient research. – Fizz Sep 19 '18 at 18:46
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    I'm not sure the question is on appropriate site. And yes, your reason also is good enough. That's a ridiculous claim to accuse me being a downvoter when I myself am merely interested in the reason for the downvote. Unfortunately, some downvoters do not comment why they did. That sucks. But I didn't downvote. Not sure I can judge this. – rus9384 Sep 19 '18 at 18:57
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    So what are the suggested reforms? – Communisty Sep 20 '18 at 7:44
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    @agc: because there aren't any implementations. These are just philosophers arguing. Also, Joshua edited the question to add the stuff about adicts after I answered it as it was originally posed, which was about crimes in the very general. – Fizz Sep 20 '18 at 22:13
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If criminals lack free will, that's tantamount to considering them as deterministic computers running either:

  1. self-modifying code

  2. certain unchangeable programs the behavior of which depends on the data input and stored.

  3. fixed programs that never learn.

Assuming all three of these exist, it might be difficult to tell them apart. It might be that punitive prisons as we know them have evolved as a one-size fits all means of modifying the code where possible, or replacing the crimey old data with lawful new data, or preventing those fixed programs from outputting crime in the world.

But if we allow that criminals lack free will, perhaps that lack applies to society as a whole, and its governments too, in which case governments can hardly be blamed when they naturally do wrong. How well punitive prisons adapt to changing conditions is another story, but perhaps prisons too have no choice.

So if the present system already meets the operational and functional specs of the proposed reforms, then reform would mostly be superfluous. The only change needed would be re-labeling, or translation.


(Note: I am not a skeptic of free-will or prison reform.)

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    You are not wrong, but you haven't actually answered the question: "What justice and legislative system reforms have been proposed?" – Philipp Sep 21 '18 at 14:04
  • This is an interesting answer. I do believe that governments are predetermined and lack free will, and when they get out of control like a rabid dog, we need to put them down. I think your answer is very close to what I’m looking for, except maybe you could add some more details to what neuroscientists and psychologists have proposed we do to solve our prison problems. – Cannabijoy Sep 21 '18 at 14:11
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You first need to understand the basis of "punishment" or "corrective chastisement" in the justice system. We generally divide the reasons into several categories:

  1. Incapacitation. This means that the offender can no longer commit offenses as the response prevents them. For example, we might imprison the offender to prevent murders and thefts on the general population.

  2. Retribution. This is the state punishing offenders so that the victims don't.

  3. Deterrence. If people know that they will be punished, they may not commit the crime in the first place.

  4. Rehabilitation. This is where the offender receives training or other resources to help the offender stop engaging in criminal behavior.

  5. Reparation. This is where the offender compensates the victims.

I have put these in rough order of effectiveness of typical punishments, like imprisonment. Imprisonment separates the offender from the general populace, thereby preventing crimes for the period of the prison term. Imprisonment serves as a punishment, so victims don't feel the need to engage in their own retribution. Imprisonment has limited deterrence effect, as most criminals do not expect to get caught. Imprisonment offers rehabilitation services, but they have limited effectiveness. Imprisonment offers no reparation to the victims.

Now, let's compare to outpatient treatment. This doesn't incapacitate the offender, who can continue to commit offenses. It doesn't substitute for retribution by the victims. It's not a deterrent. It doesn't offer reparations. It may be slightly more effective at rehabilitation.

Imprisonment is therefore better at three of the categories and essentially the same at reparations. It's only at rehabilitation that it is possibly superior at all. And the evidence on that is mixed.

The problem is that rehabilitation only works with the assistance of the offender, and most offenders do not want to stop offending. This is especially true of drug addicts. If unwilling people go to Narcotics Anonymous, they're more likely to use it to acquire or sell drugs than to quit. If we assume that they have no free will, this only gets worse. Because rehabilitation and deterrence assume free will.

Incapacitation does not require free will. It works even if the offender resists.

Retribution assumes that the victims have free will but doesn't care about the offenders.

Reparations typically fail because most offenders lack the resources to compensate their victims. For example, most drug addicts engage in activities like theft in order to make money to buy drugs. And of course, they spend that money immediately.

From this perspective, it should be clear that the current system, based on imprisonment, already works with a lack of free will on the part of offenders. It works by incapacitating the offender for a period of time. And realize, incapacitation is not punitive. We don't incapacitate offenders to punish them but to directly prevent them from offending. The method of incapacitation may also punish, but the primary purpose is still incapacitation under most theories of jurisprudence.

We can do a similar comparison with capital punishment. It is slightly more effective at the first three categories and useless at the last two. It is also more expensive. So we reserve it for particularly serious crimes (and still may use it inefficiently). And except for deterrence, its effectiveness is not reliant on free will.

Specifically looking at drug addiction, realize that we have no good solutions. Rehabilitation programs are mostly ineffective, as most addicts don't want to quit. Imprisonment is rather expensive for something that is itself mostly harmful to the offender. But it may prevent the adoption of other behaviors that are more harmful. Legalization combined with free rehabilitation paid out of taxes on the legalized product may be cheaper to the rest of society. But it still leaves problems with people who can't get legal work to pay for their drug habits, as junkies do not make the best employees.

TL;DR: the current system is one that does not require free will from offenders to be effective. Meanwhile, the proposed alternatives rely on offenders' support (i.e. free will). This seems largely because people get overly hung up on punishment and don't consider effectiveness.

  • Thanks I like this answer. So are you saying most of our current justice system doesn’t require free will, and actually attempts to function in a deterministic manner anyway? Locking murderers up will have the effect of stopping the murders, it will have the effect of satisfying the victim’s family, and it hopefully has the effect of deterrence- which will cause people to second-guess if they should follow through with the murder. Am I interpreting this correctly? Also, I agree drugs should be legalized. Whatever effect it was meant to have- it has failed tremendously. – Cannabijoy Sep 21 '18 at 5:27
  • You are not wrong, but you haven't actually answered the question: "What justice and legislative system reforms have been proposed?" – Philipp Sep 21 '18 at 14:04
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I can not prove a negative, but I could not find any evidence that the arguments made by Sam Harris prompted any politician anywhere in the world to propose any grand-scale justice system reform.

One reason is that there is little political pressure to do such a reform.

Another is that the idea that convicted criminals should be reformed instead of harmed is already recognized in political theory. The political theory behind legal punishment is that punishment serves 5 different purposes:

  1. Incapacitation: Prevent the criminals from committing other crimes by removing them from society and/or take a way the resources to commit further crimes.
  2. Rehabilitation: Reform the criminals, so they no longer want to commit crimes.
  3. Deterrence: Convince other potential criminals that the crimes they consider committing are not worth the risk of punishment.
  4. Retribution: Give the victims and the public the satisfaction that justice was served.
  5. Restitution: Repair the damage the criminal caused (for example, by having them pay a fine to the victim)

None of these assume that criminals have free will. 1-3 assume that there is a deterministic cause->effect relationship between imprisoning criminals and reduced crime rates. 4 and 5 is about satisfying a psychological and material need of the victim and the society as a whole.

Different justice system around the world put different priority on these purposes.

  • Some countries focus on retribution and deterrence, so they try to make prison sentences as uncomfortable as their human rights standards permit.
  • Some focus on incapacitation, which means they sentence people to very long prison sentences and even restrict the rights of convicts after they served their sentence.
  • Some focus on restitution, which means they avoid prison sentences and instead sentence criminals to pay reparations to the victims, pay fines to the government or perform work for the benefit of society.
  • Some focus on rehabilitation, which means prisons focus on educational programs and therapy.
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    I think your assessment that criminal law today has nothing to do with a notion of free will is far from being universally accepted "The criminal law is based on the capacity of the individual to make free choices and the assumption that virtually all of our behavior virtually all of the time is a result of free choice. This may or may not be a description of reality. But the criminal law as we know it cannot function without the hallmarks of responsibility, blame, and punishment as the working premises for most behavior." – Fizz Sep 22 '18 at 1:34
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    That's quoted in antoniocasella.eu/dnlaw/Mammarella_2016.pdf from PETER W. Low, BLACK LETTER OUTLINES: CRIMINAL LAW 199 (3d ed. 2007), which looks like a pretty standard textbook. – Fizz Sep 22 '18 at 1:36
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    Almost all the people who argue for some kind of "neuro" revolution of criminal law take most issue with retribution... and the latter features prominently in US system (to which that textbook is dedicated.) – Fizz Sep 22 '18 at 1:38
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    And from the same paper "the Supreme Court has noted, "a deterministic view of human conduct . .. is inconsistent with the underlying precepts of our criminal justice system."" United States v. Grayson, 438 U.S. 41, 52 (1978). – Fizz Sep 22 '18 at 1:44
  • @Fizz Why didn’t you add any of this to your answer? It’s very interesting. – Cannabijoy Sep 22 '18 at 10:43
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There is a fairly new field of study called neurolaw and it seeks to answer this question. Most neuroscientists have known for decades that it is impossible for our will to be free.

From Wikipedia:

Decisions became increasingly based on the M’Naghten Rules, which asserted that unless one was able to prove that a mental illness kept him or her from knowing that the act was wrong, or knowing the disposition of the criminal act, one would not be able to be tried as mentally handicapped. Contemporary research conducted on the prefrontal cortex has criticized this standpoint because it considers impaired volition as a factor.

Many courts are now considering "irresistible impulse" as legitimate grounds for mental illness. One of the factors neuroscience has added to the insanity defense is the claim that the brain “made someone do it.”

In these cases, the argument is based on an understanding that decisions are made before the person is able to consciously realize what is happening. More research on control and inhibition mechanisms will allow further modifications to the insanity defense.

While neuroscience and psychology can help determine appropriate measures to correct behavior, the fact that most people overwhelmingly believe in free will poses some dangerous consequences. Advertisers and propagandist already know that free will does not exist, and they actively use that to their advantage.

Several governments and militaries have also been interested in neuroscience for decades. While MK Ultra may have failed to produce results (according to them, and probably because they got caught), modern techniques are definitely worrisome.

So it appears to be an ongoing debate, and while most people probably think it’s all nonsense because they’re certain they control their destiny- those who know the scientific facts are already exploiting that.

I would argue that there was one other historical figure who talked about this frequently. He spoke of “age-enduring chastisement” that is best left to God, the importance of never judging others, the radical idea of forgiving others unconditionally, and one of his last recorded words were:

”Then said Jesus, Father, forgive them; for they know not what they do.” -Luke 23:34

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