Jan 18

Free Will—Thoughts and Considerations

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.

Points Considered—

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.


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    • Linda on January 20, 2014 at 18:00

    Here’s a switch as while you often refer to yourself as a pessimist, I would say in this case, I am the pessimist as I do not believe a mandate requiring the examination of hereditary and environmental influences in the courts will result in the U.S. emerging from the current system and permit the “judicial system to see the real world free of false assumptions regarding the state of mind of an accused.” As you stated in one of your points, we are humans prone to err and just as the accused may be influenced by their genes and environment, so is everyone else involved in the process: the jury, the lawyers, the judge.

    A friend’s son was arrested, along with others protesting against the Minute Men. Our friend’s son and his fellow protesters were offered a plea bargain. His friends felt they were wrongly accused but took the plea because it would cost them financially to continue the court case and they did not have the funds. Our friend’s son stood firm with the backing of his parents who were able to cover the costs. The case continued for over a year — maybe it was two — even with video tape evidence that contradicted the prosecutor’s claims and a news photographer’s testimony. In the end, our friend “won” the case but it contributed to his parents’ bankruptcy. In this case, the environmental and hereditary influences, the state of mind of those bringing the charges, the Orange County police, prosecutors, and judge influenced the process. The judge was changed and the charges were dropped, but who knows what would have happened if the initial judge remained on the case.

    For me, education is key for a better society, including a fairer judicial system.

      • Don Bay on January 23, 2014 at 10:25

      You know my position on free will: it is not only dangerous, it is fatally flawed. However, you are correct in pointing out that overall the treatment of an accused is at best chancy. As long as judges overlook police perjury, as long as the plea bargain is allowed, as long as lawyers are so wildly variable, as long as… well, you get the idea. The whole system is fraught with flaws, let’s face it. An accused (way too often, a minority) is virtually assured to get the short end of the stick regardless of what we would like to believe. Getting rid of free will and mandating a scientific approach is just the start on correcting the many problems afflicting America’s judicial system. The big question is: Do we have the political will?

    • lionel burt on January 23, 2014 at 04:20

    Hey Don,

    I disagree with your second attribution ” b) that we are the conscious source of most of our thoughts and actions.”

    I claim that one iIS the source ( albeit, most often not conscious ) of ALL of one’s thoughts. Once the words that make up the thoughts have been chosen ( consciously or otherwise ) that which follows, in terms of behavior, might be inevitable, but the choice of words used to begin with is not inevitable or predetermined. It is learned. Except iin the case of psychosis, language has an objective standard and, as such, can be quantified.

    As I have stated before, all emotions derive from language and language is learned. IF THAT IS NOT SO, PLEASE GIVE ME AN EXAMPLE OF AN EXCEPTION. When language is changed, the emotions change. In the sessions that I have conducted, a demonstration of this simple Cause and Effect relationship can be seen.

    It is simply impossible, for instance, to be “embarrassed” if you don’t have the word “embarrassed” and you don’t have a meaning for it. No one is born with a tendency to become embarrassed. It is an emotional response that is learned. So too with resentment, anger, greed, spite etc. and all the other emotions that lead to errant behavior.

    Unless someONE or someTHING is able to put words into our heads, then we, the skull owners, do it and, as such, are responsible for it.

    I look forward to your response.


      • Don Bay on January 23, 2014 at 10:01

      I suspect that you and I are in agreement that words count. However, I use words to make an emotional impact on the point I am making while you believe that all parties must agree on the specific definition of a word going in. There is a difference. I use words for their emotional impact in a given context; you want agreement that a given word has a specific meaning and only that meaning. That’s commendable but not realistic. My view as a lawyer is that I want the words I use to have an influence on the listener. You seem to drain all the emotional power from a word in your search for agreement that will be lasting. I see your search as tilting at windmills in light of human nature.

      If you read all my posts on free will, you know that scientific research has shown that we are not conscious of our actions at the time they are made. If I read you correctly, the words we use determine our actions. Somehow, that seems at odds with what science has to say.

      Though I agree that negotiators need to agree what particular words mean before they enter into presumably meaningful negotiations, I haven’t held Quality Talk up against solid scientific research. My sense is that though some QT principles may hold up to scientific standards, many if not all will not. That remains to be seen.

      For the record, I think free will is not only dangerous but fatally flawed. A number of readers have stated their opposition to my views, but I think that’s only because they haven’t yet thought it through. As long as their mind-set prevails, free will continues to blight all it touches.

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