On Free Will and Justice

The age old question of whether we truly have free will is a question that has many implications for criminal justice. If we are to fall into the deep hole that no one has free will, then what then of consequences? Every lawyer will just defend their client as having acted because of the collective past experiences of their life.

If free will does exist, how much can we ascribe to free will and voluntary decision making compared to decision making influenced by our environments or past? Can someone in a psychotic break be responsible for believing in delusions and sabotaging relationships? Can we see that those growing up in poverty are more likely to struggle financially because of their circumstances?

Regardless of what the neuroscience says about free will, the lack of existence of free will or the presence of free will both have an influence on criminal justice. They bring into question who can be held responsible if at all for their behaviors.

There is, however, an interesting result of how one thinks about consequences based on where one stands on this spectrum. For those who ascribe circumstantial evidence that excuses an individual, these people are probably more likely to think big picture. A person’s actions are moulded by others. It takes a village to raise a child so why not a village held responsible when a child does something abhorrent? What about all the other people in their life that could have intervened but did not?

This perspective can be more empathetic and understanding in certain cases, but it is also difficult to balance. On the extreme end, the consequences can be dire. If a lot of people are responsible, what are their consequences? It would be difficult to ascribe responsibility in an almost arbitrary manner. There would be many arguments going at once regarding who should face consequence and how. It would enlarge the bureaucracy and also prevent a fast and speedy trial as they are bogged down by the extraneous details.

It would, also, be considered deeply unfavorable by the general population and pose threats to privacy. Who is to say a neighbor is somehow responsible for a murder in the next house over when they did not know anything about it? They would need to invade privacy to “keep watch” like a guard to prevent negative consequences happening to them.

On the other hand, if one is very anti-deterministic, it might make one very harsh and leaning towards punishment. Why give anyone any leeway for their behavior when they should have known better? Doing wrong when one doesn’t need to says everything about the character of the offender. They would need to be locked up for possessing lesser than ideal character and continually tracked until the deficit is fixed. This perspective also has racist undertones as different races were once considered morally inferior. To feed into a punitive system would create a cycle of arrests and serve punishments that don’t deter crime but are given out as a consequence of not being “good” enough.

Of course, one can imagine a non-punitive system that is predated on free will, but it would still look away at systemic injustices and the big picture that influence one’s behavior. Would anyone dare say that a hungry man is not understandable to steal if they have no other way to eat? Even if the consequences are lenient, it misses out on the larger issues. The bigger question is: why is this person going hungry in the first place?

It is clear to me that taking the extremes of either side lead to short-sided thinking. It would be better to balance opinions on a case-by-case basis and not resort to extremes to solve the issue. The middle, however, is always murky and some people fall further to the right or to the left of the spectrum. Which is a better worldview largely depends on how people understand crime. Is crime largely motivated by past experiences or due to a character flaw? It is the position of the author that it is better to lean more towards past experiences as a large motivator for crime rather than a character deficit as the adage, better to let five guilty people go free than to imprison one innocent, is a similar logic to how I see it. It’s better to be lenient but fair with consequences and not ruin a life if the crime is largely redeemable. This means that the person shows remorse and genuine desire to own up their crimes. Those who show no remorse and no desire to atone are those who I believe it is better to be less lenient on as they pose an ever present danger of reoffending.