Determinism and Punishment
One summer evening, a friend and I tackled the question of free will and all that it entails. Do we have free will? If we do, how do we know do? If we do not, what are the implications for social and legal norms? My friend, who argued against the existence of free will, posited a scenario in which he was “molecule for molecule” a violent criminal, asking me if he could have chosen to act differently than the violent criminal.
The immediate reaction might be, “No.” How could he have? But this rhetorical device, used by Sam Harris to disprove the existence of free will, is not entirely helpful. It does not prove that we cannot freely choose; it merely shows that if you were “molecule for molecule” someone else you would make the same choice that they made, which is self-evident. It reveals nothing about what you could have done, nor anything about the choices available to you and your ability to choose.
But suppose my friend is correct and we do not have free will. This view coincides with the philosophical doctrine of determinism. Writing for the Stanford Encyclopedia of Philosophy, Carl Hoefer defines determinism as the philosophical belief that “given a specified way things are at a time t, the way things go thereafter is fixed as a matter of natural law.” In other words, a violent criminal such as Davis Bradley Waldroup, Jr. could not have acted differently.
Waldroup engaged in acts of undeniable brutality. An article in The New Statesman describes how he shot his wife’s friend eight times with a rifle before attacking his wife. Waldroup shot her, maimed her, bludgeoned her with a shovel and a machete, and attempted to rape her before she managed to escape. Yet Waldroup was only found guilty of voluntary manslaughter, kidnapping, and attempted murder, partly because his defense team successfully argued that Waldroup possessed a genetic predisposition to violence, preventing him from engaging in the judgment and reflection required for premeditated crimes (for a similar case see Meredith McFadden’s “‘It Wasn’t Me’: Neurological Causation and Punishment“).
Warranted outrage followed from the families of the victims when he was sentenced to a mere 32 years in prison. Waldroup’s wife said the sentence “was not justice.” Many would agree that the punishment was not equivalent to the severity of his wrongdoing; it was not the punishment he deserved. But if Waldroup did indeed possess a violence gene and thus, no free will in this situation, how can we even conceptualize what he deserves? Determinism renders the sentiment “He did not get what he deserved” meaningless and irrelevant. And that is not all.
The most fundamental structures in our daily lives are based on the belief that we are free to choose how to act. While we seek and discover external factors (be they biological or environmental) that influence a person’s decision or even the external factors that brought the individual to a moment of choosing, these explanations do not contradict our conception responsibility. Without the foundation of free will, even the relevance of morality becomes suspect. Either morality cannot exist because people cannot choose to do something right or wrong OR it is already determined that one person will act morally good or morally bad.
Adopting the view that free will does not exist would require a near-revolutionary reform of our justice system. As Luis E. Chiesa of Pace Law School notes, “It is because of this uniquely human capacity to choose to do otherwise that humans can and should be blamed for their crimes.” Our current system, for all of its failings and imperfections in practice, is based on a consort of factors: rehabilitation, deterrence, public protection, retribution, and proportionality of the punishment to the crime. A new justice system capable of accommodating determinism would need to be based not on retribution or what the lawbreakers deserve, but rather solely on concern for public safety, deterrence, and rehabilitation.
Some may wonder how rehabilitation could be retained under this reformed justice system. Is it possible to rehabilitate someone’s behavior if it is determined? It is a worthy criticism. Yet it is possible that some determinists could argue that just as an animal, whose behavior is determined by their nature, can be trained to act in a certain way, a human can be rehabilitated, or trained to behave in a less dangerous way.
Forms of incapacitation, such as incarceration, would exist merely as a means of protecting the public from violent criminals. Lawbreakers who are not violent, such as those who evade taxes, for example, would not need to go to prison as they pose no threat to the safety of the public. Instead, they would need to, if possible, rehabilitate their evasive ways so that they refrain from committing the act again. The only purpose of any other form of legal punishment would be to deter individuals from breaking the law.
Suppose Waldroup’s violent behavior was altered after one day of rehabilitating in prison and he would never again attempt to brutalize another human being. Should he be punished further than the one day in prison for his previous acts of murder and assault? Troubling as it may be, the determinist would say, “No.”
Why should he? His behavior has been changed, he no longer poses a threat. Like a dog who has learned not to pee inside, Waldroup has been trained to no longer behave in that unacceptable and dangerous way. And given that he did not freely choose to kill one woman and severely injure another, the purpose of punishing him is nullified. He deserves nothing because he controls none of his decisions.
Even the well-known determinist Sam Harris points out, “Without free will, sinners and criminals would be nothing more than poorly calibrated clockwork, and any conception of justice that emphasized punishing them (rather than deterring, rehabilitating, or merely containing them) would appear utterly incongruous.”
If free will is an illusion, although I am inclined to believe it is not, there is demonstrable value to living under that illusion. The idea that you and I have control over our actions affects the way we behave and structures the nature of our interactions and relationships. We expect and hope for certain behaviors to be exhibited by the people in our lives. We express disappointment in others when they have done worse than they should have because we believe they could have done better. Just as we express pride or happiness in others when they have done better than they should have because we believe they could have done worse. But blame and praise is utterly irrelevant if you believe others could not have done anything other than what they did.
Let me live under the illusion that I freely chose to write this op-ed and I will let you live under the illusion that you freely chose to read it. And we can both go back to agreeing that some people do not receive the punishment they deserve.