In Brief—A review of the factors that influenced the author’s thought process in arguing that the concept of free will is damaging to the American judicial system. Failure to mandate introduction in evidence of the influence of an accused’s genetic inheritance and environment locks the system into turning a blind eye on the world as it really exists.
Some readers have misinterpreted the law and my views regarding free will. Rather than respond individually to the comments they have submitted, this piece will attempt to clear up any misconceptions that might exist.
What follows might oversimplify the points I have made in my earlier pieces. For a more complete understanding, I invite readers to review Free Will—R.I.P., Parts 1 and 2 in the Archives for October of 2013 and Free Will Revisited that can be found this month (January 2014).
It helps to know that I have a deep interest in science, that I am a voracious reader and that I have a lawyer’s experience in courtrooms and how the American judicial system works, fails to work and undermines the concept of justice. Reader misconceptions have shown that I erred in assuming that readers think as I do. They do not. It is impossible. Nobody’s fault, it just is.
That said, these points are intended to show my thought process and are definitely not written in order of importance.
Before listing my thoughts, please repeat out loud three times the following: “I MUST NEVER ASSUME THAT OTHERS THINK AS I DO.”
- Free Will is a delusion arising out of religion. God is said to have endowed humans with the ability to discern right from wrong. Right is rewarded. Wrong is punished.
- Free will is a harmful delusion in both religion and the law because it overlooks the inability of some individuals to conform their behavior to the dictates of society.
- Free Will is is based on two assumptions: a) that we could have behaved differently and b) that we are the conscious source of most of our thoughts and actions. This definition comes from Sam Harris’s treatise titled Free Will and is intended to state the way free will is commonly understood. It is not my position nor is it Harris’s.
- Scientific research has established the primacy of genetics and the environment and their influence on humans as well as in laboratory animals.
- As of now, genes are unchangeable but can sometimes be influenced in utero by environmental factors. Environmental influences are many and changeable.
- Human examples abound showing the negative effects of genetic and environmental factors. Societal racial inequality results in heavily skewed criminal prosecution of minorities.
- Brain pathologies are often found in criminals indicating that their thinking does not correspond with those possessing arguably ”normal” brain activity.
- Free will has been absorbed into the judicial process. Right and wrong are present and usually determinative.
- Laws are varied. Some laws are well-written, clear and commonsensical; some are vague, over-broad or unreasonable; some are politically motivated to demonstrate a tough-on-crime philosophy; some are just plain silly. Enforcing them uniformly is impossible and even undesirable. They are written to conform to societal norms or temporary passions. Some reflect current thinking while most do not.
- Lawyers and judges are human with all that implies. Some are well-educated, thoughtful and competent; some are overworked or inattentive; some are lazy; some are qualified for the task; some are rigid and punitive; some are biased or prejudiced. Like hired guns, some lawyers are better than others.
- As with the national physical infrastructure, the judicial system is inadequate to handle the load imposed on it by the political system.
- Evidence in mitigation of a crime is sometimes introduced by conscientious lawyers. Often, ignorance, a crowded docket or overwork by the lawyer or judge prevent the introduction of mitigating evidence. Laws often exist that prevent the introduction of mitigating evidence. Where this exists, the accused is judged either to have committed the crime or is exonerated, overwhelmingly the former. Well over 95% of all criminal proceedings are resolved by plea bargains which means that even the unjustly accused can avoid delay and a trial. Plea bargains are usually coercive.
- Both pro-prosecution and pro-defense psychiatrists are available and used in select occasions. Overwhelmingly, considerably more money is available for the prosecution than for the defense. A pro-prosecution psychiatrist will always say that the accused was sane and knew right from wrong. The pro-defense psychiatrist will testify that the accused did not have the capacity to discern right from wrong. The cost of a prosecution psychiatrist is paid for by the taxpayers while the cost of a defense psychiatrist is usually paid for by the defense.
- Assuming that the crime has been committed, that there has been a fair trial and the accused is found guilty, the individual will serve time in a detention facility such as jail, prison or mental hospital. There are occasional exceptions, but these are infrequent.
- Much-needed modernization of the criminal justice system would be enhanced by a mandate that genetics and environment be routinely introduced in any criminal proceeding, whether a plea bargain or a trial. Such evidence would not necessarily result in lesser verdicts but would definitely result in greater justice because it reflects the real world.
- The establishment of mandates would raise issues of practicality, politics and economics. Such issues will be weighed in whether society wishes to modernize or to retain the old, traditional system.
- Given that the concept of free will is deeply entrenched in the law, and tough-on-crime philosophies are politically popular, mandating a recognition of the weight of scientific evidence regarding the primacy of genetics and environment in humans is remote but morally compelling.
- Simple morality and common sense on mandating the use of the latest scientific evidence of genes and environment will allow America to emerge from the uncivilized dark ages of the current system. It will allow the judicial system to see the real world free of false assumptions regarding the state of mind of an accused.
These are the types of thoughts that were brought to bear in the pieces I have written on free will. Some did not seem germane to what I wrote, but my experience as a defense lawyer influenced the content of the pieces.
My thinking on the subject of free will has arisen over the past thirty years and is rooted in logic as well as the advances in scientific evidence. Regardless, it is clear from the comments my pieces have received that there are substantial misconceptions of the law and judicial system. I can assure you that if anything I have given a conservative picture of the system. Like it or not, the facts given reflect reality. I hope that you will understand a bit more now from the points I have considered.