Editor’s Note: This is the first article in a two-part series on the U.S. criminal justice system.
By Dr. Gary L. Deel, Ph.D., J.D., Faculty Director, School of Business, American Military University
I’ve written about the problems with the logic underpinning the U.S. criminal justice and penal systems. These issues run deep. Our criminal justice system — specifically the ways we punish people for the crimes they commit — is poorly thought out. So let’s look at a much more fundamental issue: Is punishment in any context morally and logically defensible?
Our Criminal Justice System Is Predicated on the Idea of Agency
Our current criminal justice system is predicated on the idea of agency, or the assumption that we are the conscious authors of our own thoughts and actions; that we each possess the free will to make different decisions if we so choose; and that as such we are therefore accountable for our choices. But some experts suggest that this logic — particularly as it pertains to free will — doesn’t square with our understanding of how thoughts and ideas arise in our minds.
Some thinkers insist that every thought you’ve ever had and every decision you’ve ever made has been the predetermined product of simple cause and effect in the universe. There are lots of causes, from genealogy to brain and body chemistry, to life experiences and others. And there are lots of effects, including thoughts, emotions, and decisions to take action in the physical world. But contrary to our own intuitive sense of agency, these arguments suggest that there doesn’t seem to be a place in these equations for real agency.
You’d be forgiven if this idea doesn’t sit well with you. When introduced to this idea people often think, “What do you mean I don’t author my own thoughts and decisions?! I do it all the time!” It’s an unsettling notion, and resistance to it is understandable because it means we have to admit that we don’t have free will and we’re not really in control the way we like to think we are. But advocates of this position assert that the discomfort that comes with the premise doesn’t make it any less true. And they insist that when you take a moment to think about it, any doubt that agency is an illusion quickly evaporates.
Imagine that we could make an exact copy of the universe — atom for atom, quark for quark — at the exact moment in time that you’re reading this sentence. Every single particle in our universe — including every particle that makes up our bodies and our brains — is copied in exactly the same state and exactly the same place.
If we could do this, then, according to the proponents of these ideas, our understanding of the basic physics of human neuroanatomy and neurology tells us that, after we “press play” on the new copy of our universe and set it running, it should — in principle — play out exactly the same way as the original in every respect. That is to say, the duplicate version of you that we copied into the new universe should think the exact same thoughts and make the exact same decisions that you will make, at least in the short term. Over time, it’s possible that the aggregate of random differences at the quantum level could lead to significant deviations in the trajectory of cause and effect.
But supporters of this idea argue that the parallel in the immediate term is a product of the fact that our thoughts are just the product of our brain chemistry — interactions among atoms that manifest themselves in ideas and concepts and a sense of consciousness that governs our behavior. They assert that there’s no evidence of “free will” to author anything. Under this view, there doesn’t appear to be any room for a soul or a spirit or any other intervening force that would change anything about the dynamics of natural cause and effect going on inside your head.
By analogy, you could imagine the atoms in your body and brain as the biggest set of dominoes anyone ever played with. We could set up a million dominoes. Or a billion. Or a trillion. But no matter how complex our domino arrangement is, this argument of a lack of free will is based on the premise that, if we set up our dominoes and then knock over the first one, we can predict exactly what will happen all the way down the line.
And any unpredictability in physical interactions that could result from the uncertainty or randomness at the quantum level that we discussed earlier only amounts to variation due to randomness, not agency or deliberate manipulation.
The Theory that Free Will Is an Illusion
Neuroscientist and author Dr. Sam Harris writes: “Free will is an illusion. Our wills are simply not of our own making. Thoughts and intentions emerge from background causes of which we are unaware and over which we exert no conscious control.” According to Harris, we are passengers, not drivers, in our own minds.
Still not onboard? Below is an exercise to help demonstrate Harris’s point regarding how not in control of your own thoughts you really are.
Meditation is used for a variety of purposes. One popular use is to help practitioners quiet their inner self-talk and focus their own attention; in essence, the aim is to tame and harness the mind. There are many different ways to practice meditation — with or without music, movement, religious context, singing chakras, and so forth. But a basic first step in meditation is to simply sit down somewhere comfortable in a quiet room and try to empty your mind and just focus on your own breathing. So let’s try that now.
Find somewhere comfortable to sit down. That could be in a chair, on a couch or bed, or even on the floor. Whatever works for you. The room should be quiet, so turn off all televisions, radios, or anything else that makes noise. Now close your eyes, and try to empty your mind of all thought. Then, simply focus your attention on your own breathing. Focus on the sound and the feeling of your breath, and ignore everything else. Do this for at least 60 seconds, and then resume reading this article below. Go.
Now unless you’re a mediation guru, your first meditation experience probably went something like this…
“OK. Focus on my breathing. Breathe in. Focus. Breathe out…”
“…did I forget to check the mail today?”
“Wait. No. Stop. OK…breathing. Focusing on breathing. Breathe…”
“…Mom’s birthday’s next week. Gotta get her a card. …why do we get birthday cards for people anymore? Seems like a waste of paper. But you can’t just send a text message…that’s tacky. What a weird tradition…”
“Wait! I did it again! OK…back to breathing. Focus! Breathing only. Nothing else. Breathe…”
“How in the world did flying squirrels learn how to fly?! No…breathing! Breathing… Breathing…”
“What if the air we breathe is poisonous to us, and it just takes 70 to 80 years of prolonged exposure before it’s lethal?”
The details of your inner self-talk might be a little different than the above, but if you try this honestly, you’ll likely see the point. This exercise is at the foundation of Harris’s assertion that we’re not really in control of the thoughts that arise in our heads from one moment to the next.
And Harris argues that when we try sincerely to control them, we are helpless to their comings and goings. Indeed, after years and years of meditative practice, some people can manage to slow some of this constant rambling. But even then, they’re still not steering the ship.
So what does all this have to do with criminal justice? In the second part of this article, we’ll look at how this idea that free will is an illusion could affect our notions of accountability — or culpability — for criminal behavior.
About the Author: Dr. Gary Deel is a Faculty Director with the School of Business at American Military University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Military University, the University of Central Florida, Colorado State University and others.