Free will and the criminal justice system

I have recently argued that free will as we tend to think of it doesn’t exist. So where does this leave our relationship with the concept free will? It is an assumption in most normative ethical theories, and particularly the criminal justice system, that not only does free will exist, but that it really matters. It is intuitively true that a crime commited intentionally is worse than something that happens by accident, and that the punishment should be greater.

However, if actions are a direct result of a complex series of chemical and electrical interactions in the brain, which is in turn shaped by a combination of genetics, development and environment, it seems there is no independant moral agent against which to act. It is arbitrary, and arguably cruel, to inflict punishment on someone that is not meaningfully responsible for a crime, whether or not they committed it.

If I take something that does not belong to me, the statement ‘pixie359 committed a crime’ is true. However, we can see that this does not mean there is an independant being, pixie359, that can make moral decisions and direct actions – I am the culmination of a set of interactions over which I have no control. The statement ‘pixie359’s brain did it’ is more meaningfully true, but of course my brain cannot be meaningfully held responsible for a mechanistic set of responses to specific stimuli. It becomes clear that if our actions are the product of mechanistic responses to external stimuli, the term ‘responsibility’ loses some meaning.

I think this problem fundamentally undermines the punishment model of ethics and criminal justice. Whether a particular person commited a crime is largely inconsequential when the universe is such that their action was unavoidable – the problem then is with the universe and all the factors in it that made the crime occur. To punish a particular individual for the sake of punishment is an arbitrary decision.

We should consider the purpose of a criminal justice system. In one formulation, it is intended to punish those that commit crimes. I have argued that this is not appropriate based on our current understanding of free will and responsibility, however emotively appealing it is. In other formulations, systems are intended to rehabilitate criminals, prevent them endangering society, and deterring other criminals from similar actions.

I would argue that the primary aim of the justice system should be to protect, serve and ultimately improve the society that the system serves. This should be the organising principle for every public organisation or system, for broadly utilitarian reasons. This leads to the adoption of those practices that can be best shown to improve the outcomes for the individual and society in favour of those that fit best with a particular set of principles.

Given the improvement of society and not punishment of criminals as a primary aim, what should a criminal justice system look like? If we are losing the idea of direct personal responsibility, do we need to lose all forms of punishment?

There is a clear and justifiable role for punishment for several reasons – what it should not be is aend in itself. It arguably plays a key role in both rehabilitation and deterrence (for at least some forms of crime, although less so for emotive or need driven crimes), but more than that, it is what society wants. The fact that people are programmed to desire retribution means that to remove punishment entirely would directly cause suffering. Therefore, while punishment continues to be a consideration when dealing with crime, it is no longer a justification in itself – it must serve the purpose of improving outcomes.

One implication of a shift toward an outcome based system would be a change in sentencing procedure – there would be no hard rules for the appropriate sentences for particular crimes, and the length of a sentence could not be meaningfully determined at the beginning of that sentence. Where someone is detained, the primary considerations should be a) the prevention of crime in the period they are detained, and b) the prevention of crime after they are released. This means that the criteria for detaining and releasing people is primarily based on the threat they pose, rather than a punishment for any misdeeds. This would need ongoing assessment, and people released when it is considered they no longer pose a significant threat.

Secondly, the understanding that any crime is committed as the result of a complex set of circumstances, rather than an independent decision by a separate moral agent, requires that the justice system is allowed to act more widely than simply against the individual that commits a crime. Where a crime is committed directly because of an unfulfilled need, that need should be addressed as the primary problem. This could include a number of processes and powers, potentially right up to compelling parliament to address particular concerns.

Finally, if we do not consider punishment a goal in itself, the need for jail use can be decreased. Detention would be reserved for circumstances where there would be a demonstrable benefit. Where a crime is committed in circumstances that strongly suggest the person committing it does not pose a threat generally, punishment is not appropriate, and so can be spared jail time. There are a significant number of cases where education, community involvement or opportunities for employment will have better outcomes than incarceration, both for society and the criminal. This results not only in improved outcomes for the party that commits the crime, but also the wider society, gaining at least some involved and productive citizens.

Although I don’t understand the relevant politics well enough to see all the implications and barriers, I think that a move toward outcome based justice can only be of benefit. It removes the ethical concerns raised by the complexity of causal relationships in the lead up to crimes, and the arbitrary punishment of the person that commits a crime. It allows punishment, which is widely seen as a good, however irrationally, as long as that punishment is appropriate to the severity of the crime and the circumstances around it, and is justified by the outcomes it achieves. It would also decrease the amount of crime in total, as those practices that best reduce crime are favoured over those that best fit an imposed morality.

While I started out looking at the justice system from the perspective of a lack of free will and determinism, I believe that the system outlined above doesn’t rely on that basis. You can believe that there is free will, and still agree that the organising principle of the justice system should be the improvement of outcomes for the individuals and society, rather than punishing people that contravene a set of laws. This will be a better system because it values the outcomes above the process, where the outcomes are the quality of life of individuals and the levels of crime in our societies.

Sorry for writing all this nonsense, but I genuinely believe I had no choice.

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  1. January 26th, 2012
  2. February 14th, 2012

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