Implications for Justice, L...

Implications for Justice, Law, and Society

(1:35:49) the rationale for those rules rules is clear and ubiquitously understood well punishment for breaking the civilizes the same sort of thing without the Assumption at least of free will we cannot justify our moral judgments we can't say you are a bad person and need

(1:36:13) to be incarcerated or we can't say we're giving you this award for philanthropy because of the great things you did that you didn't have to do we we assume when a criminal does something bad they could have done otherwise and they should have done otherwise but they didn't and so

(1:36:28) they are morally culpable one of the fierce people have about Free Will skepticism is that it will lead to nihilism or despair people fear that we won't be able to address criminal behavior that we just going to let criminals Run free or that morality would be completely destroyed according

(1:36:51) to Free Will Skeptics if an individual commits a murder they've done something wrong we have no problem still maintaining a axiological judgment of goodness and Badness to be able to say certain actions are good and other actions are bad those kinds of moral judgments are not predicated on dessert

(1:37:09) are not predicated on Free Will what you would have to give up if you adopt Free Will skepticism is the belief that individuals justly deserve blame and praise and Punishment and reward in this very particular sense this backward looking sense there's no need to have a

(1:37:27) concept of basic dessert if you have a concept of good enough practical dessert I compare that to being a basic mammal a basic mammal had a mammal for a mother well unless there have been an Infinity of mammals that means that there aren't any mammals some mammals back in the old

(1:37:48) days didn't have mammals from others well were they really mammals well they weren't basic mammals adults with responsibility evolve grow are educated from beings that don't have basic dessert or basic responsibility small children don't have basic free will they grow into it I think these distinctions

(1:38:12) are relevant however for addressing the concerns about criminal incapacitation and Rehabilitation cuz an individual who is reasons responsive will be an individual you deal with differently than an individual who's not reasons [Music] responsive so for example on my model if

(1:38:34) a woman were to say leave a child in a car with the windows rolled up and the child were to die because of heat exposure one of the things we would have to determine at the trial was was this an accident was this a once off oversight on the part of the individual

(1:38:53) or was this a premeditated murder to be staged to look like an accident if the individual accidentally left their child in the car let's say last night they had a stomach flu and they were up all night and they were sick they got no sleep and this morning was a very important

(1:39:11) meeting that the individual couldn't miss and they dropped off their first older child at school but forgot the infant that fell asleep in the back car and they later discover that the infant had been in the car and had died due to heat exposure that individual may not be

(1:39:25) any future risk but we that's not the end of the story we have to figure out for example do they have a habitual character where they are negligent if they're an individual who habitually exhibits negligent Behavior well maybe they pose arrest to their other child

(1:39:40) maybe then the other child should be removed um and maybe incapacitation isn't warranted in this particular case if however this was a premeditated murder if there was an attent if there was is a man's rehea an intent to do harm and the individual was reasons responsive and meets the levels of of

(1:39:57) capacities that are required by the law and that compatibl is point to I think that indicates a different level of threat it doesn't in my view indicate a different level of dessert a different level of blameworthiness it doesn't establish moral responsibility in a

(1:40:14) basic dessert sense but what it does establish on my mind is that the individual should be dealt with differently than someone one who accidentally left their child in the [Music] car in response to the Free Will Skeptics I must say that um I am not as sanguin about it as some people like

(1:40:44) Dirk peroom and and uh Caruso um are and other uh Free Will Skeptics I'm not as sanguin as they are about how everything would be fine I think there would be problems because if we are interested in curtailing the evildoers of this world whether they be dictators or Wall Street people who

(1:41:12) cheat people or or whatever if we are ever going to be capable of curbing the evildoers of the world it is not going to be by telling them they are not ultimately responsible for being the way they are cuz if we tell them that they're going to say something like well yeah I

(1:41:34) know I'm I work down here in W Street and I cheat people all the time but that's the way I am I'm not responsible that's what they're going to say my real problem with free will skepticism is precisely that [Music] one if you take in seriously the fact that Free Will is not Contra causal the

(1:42:05) two major consequences would be that it makes no sense to talk about punishment and it also makes no sense to talk about honors or or Rewards or something like that except in so far as to change other people's behaviors right I think it would still be a good idea

(1:42:23) let's say to put people in jail in order to restrain them from from doing arm to other people it would still make sense to go to to make people go through Rehabilitation programs for instance and on the other side of the spectrum it would still make sense to to give medals

(1:42:37) to people let say if infat it turns out that that incentivizes certain kinds of behaviors that we want to incentivize but the whole notion of taking credit or blame uh for one's actions will go out the window and it's I don't think that would be a bad idea I think morality can

(1:42:53) exist on the position of No Free Will it's the moral responsibility that doesn't exist so there there two different terms that people often conflate if we think of Free Will as the control and action required for dessert involving moral responsibility then what disappears

(1:43:14) is Desert we can learn about what's right and what's wrong but we can't backward blame when when people do wrong so this is the distinction between causal ethics and or causal morality and just desert moral responsibility which we don't have when one blames one's

(1:43:33) spouse say for Behaving Badly one's concern might not be to give the spouse what he deserves but rather to begin a process of reconciliation in the relationship I need to make the relationship better so we have to understand that there's a distinction between just desert moral responsibility

(1:43:53) and Morality In general the practice of holding people morally responsible has these forward-looking aspects which don't involve the notion of dessert so if dessert goes by the wayside because we don't have free will these forward-looking aspects can nevertheless remain really from Christianity on in

(1:44:18) sort of in in theological terms and then in secular terms from Kant on uh we have a particular understanding of morality moral philosophy and morality mean a particular thing and basically they mean essentially the study of right and wrong and therefore the study of moral

(1:44:33) responsibility but there are different ways of looking about of thinking about morality and ethics the ancient Greek and Romans didn't think about it that way the word ethics come from the Greek word atos which simply means character and so it was related to the kind of

(1:44:46) life you want to live for the Ancients ethics was the study of how to live your life it didn't have have anything to do with moral responsibility as understood today it had nothing to do with you know right or wrong or things like that it had to do with the question of well how

(1:44:59) are you going to be happy as a human being how what kind of life is worth living the ud demonic life the life worth living so if you take ethics and morality to be concerned with the good human life those are the kinds of behaviors that make human being flourish we don't need to believe that

(1:45:18) humans stand outside the stream of causality in order to care about the difference between suffering misery on the one hand and happiness and flourishing on the other if someone has trouble controlling their impulses maybe punishment will deter them maybe it'll help them gain

(1:45:36) more constraint and they need that external influence to help them more but some people who just have really like brain damage or very severe psychiatric illness can't even control their behavior even with the negative um sort of or with punishers and in that sense

(1:45:51) how we deal with retribution is a bigger [Music] question the Supreme Court has indicated in the US versus Grayson case that Free Will is a presumption of the law that it's a foundational Cornerstone and that the claim that individuals are morally accountable and therefore justifiably

(1:46:16) punishable for crimes is predicated on a notion of free will this is core to a certain conception of the law which is called retributive [Music] punishment I think the most challenging issue for the acceptance of the No Free Will view in the area of Criminal Justice is the strength and prevalence

(1:46:49) of people's retributive intuitions so here's a good example of a retributive policy that I think ends up being counterproductive in the UK they had a movement called the ban the book movement in prison they wanted to prevent individuals from sending books to prisoners and the justification was a

(1:47:11) kind of retributive one that these are criminals they deserve to suffer for their actions they don't deserve luxuries like books or education provided by the state and so let's deprive them of certain luxuries let them be punished let them stew in their guilt luckily this went to the high

(1:47:31) court in the UK and and the high court Struck it down on the grounds that well isn't this counterproductive to Rehabilitation we want individuals to come out of prison better than they went in and by preventing them from access to programs that would make them better

(1:47:48) that would give them skills that would provide them with an education we are essentially creating a cycle of recidivism where we put individuals in cages we treat them in humanely for a period of time we deprive them of mental health services and drug treatment and

(1:48:04) then we release them and we expect that they be model citizens we know that this is not working we have enough empirical data to know that this is not [Music] effective so what do we do about dangerous criminals so in the view I propose it's legitimate or sometimes

(1:48:25) legitimate to preventatively detain dangerous criminals not on the basis of the deterrence justification but on the basis of the right to self-defense society's right to defend itself so let's say I get on a plane and I'm traveling across the world and I contract Ebola I've done nothing morally

(1:48:47) wrong I don't deserve to be punished I don't don't deserve retribution it's not justified to take my Liberty away on retributive grounds I've done nothing morally wrong but society would generally agree that we are Justified and quarantining this individual on the

(1:49:03) grounds of Public Safety the justification for quarantine would be a justification grounded in the right of self-defense and protection of harm to others so similarly even if criminals not responsible for being dangerous don't deserve blame and punishment for being dangerous nonetheless on analogy

(1:49:22) of the carrier of the dangerous disease it might be at least in certain cases legitimate for society to preventively detain them on the basis of the right to self-defense the primary focus of the Criminal Justice System should be Rehabilitation and reintegration and we

(1:49:41) do have to take into consideration the well-being of those that we incarcerate we have a moral duty to rehabilitate and we have a moral duty to to then reintegrate those individuals back into society we have no justification for dehumanizing them we have no justification for treating them more

(1:50:00) cruy than is necessary to protect Public Safety punishment has to be on the basis of sequestration from society deterrence of others and Reformation of the person who committed the ACT what you can't have in the new Justice System is retributive punishment you need a sort

(1:50:17) of empirical based system and basically it's scientifically based justice system I call for in which you determine what forms of treatment people need to get people reformed if they can be reformed and to get them back into society because I think most people agree that

(1:50:32) if a criminal can be restored to society and be a productive member of society they should be Norway for example has adopted a model where the primary focus of the criminal justice system is reintegration and Rehabilitation and they have a principle that I adopt that

(1:50:47) I think is important and I include it in my public health quarantine model it's the principle of normaly you want the conditions in prison to resemble as best as possible the conditions which individuals are going to go back to this will make the seamless move from

(1:51:01) incarceration back into civilization far more [Music] seamless we're just starting to get to a place where we're integrating Neuroscience into the courtroom I've been asked a few times to be an expert witness talking about cognitive Neuroscience um in different cases but

(1:51:26) it's you know there are pluses and minuses with it you can use the neuroscientific data in ways that are not appropriate you could use it to your advantage I mean everybody is going to have differences in their brain and it doesn't necessarily mean it's an excuse

(1:51:40) for let's say murder if you tell me somebody is a mass murderer I don't have to look at their brain there's something abnormal there and that is then a question of the justice system of how much they're going to um punish that person but then you have these really amazing cases where

(1:51:59) there was a case study that was written up of a a man who developed pedophilia this person who had up to that point behave perfectly normal normally normal citizen you know a family etc etc started downloading uh child pornography and then he was going to get put away cuz he was living with

(1:52:17) his young stepdaughter and sent away to jail and then he started getting any severe headaches and they did a a scan and they found that he had a huge tumor in his prefrontal cortex essentially one of the areas of the brain that is in charge of decision- making high level

(1:52:30) decision making and the suppression of urges and things like that once that was found out the person was operated the urges disappeared and of course he was not convicted because we found out the underlying cause interestingly a few years later he felt the urg is coming

(1:52:46) back and he this time he went straight to his neurosurgeon and neurosurgeon found out that the the the tumor was coming back they just eliminated it immediately and it was fine so you know how responsible was this man for his actions right so when it's something blatantly obvious like

(1:53:04) that then yes I think that's important to bring that information to a courtroom but when you're getting to the more subtleties of the brain and the mind um it gets trickier and so I think you know you have to be careful I think it could be very helpful in the courtroom but it

(1:53:17) could cause problems as well in that particular case the court system readily agreed that there was no sense in which we could punish the person for the behavior because in a very important sense he was not responsible for that behavior well that goes for all behaviors not just for

(1:53:35) the ones that are induced by tumors Free Will is not all or nothing it can't be and that's another reason why I'm very suspicious of some of these extra Factor theories if you have a immaterial ego that can intervene in the physical order it does it or it doesn't is there any

(1:53:59) degree where's the degree come in and I think free will if you put it into the physical world the world we live in with all the influences on us even if they're not completely determining our parents our upbringing you know our genes our brain and so on uh everything and how it

(1:54:19) erates there's tremendous limits and that's where I I would kind of concede to the parab booms and the others who are free will Skeptics and and uh and say Yes uh I think we are way too retributive in our society and I would cut back that too even on my uh

(1:54:39) libertarian view because if you if you say libertarian view is something that has to be within the natural order and not something you know that comes from out side then you've got to be aware people's upbringings are so different I get this argument a lot where people

(1:54:58) will say well you you know Jerry say that this comes from determinism but I as a Humane person even if I believe in fre well could would say that we do the same thing the difference I think is that determinism leads almost automatically to that view that this is

(1:55:13) what you need to do the criminal justice system you don't need to count on somebody to have certain views that align with yours in order to to do that you just have to have them accept the fact that criminals are human beings that have behaved because of their

(1:55:28) environment and their genes so to me determinism makes it much more urgent to reform the justice system than simply somebody of Good Will thinking you know how can we be more human about things what is it that most people feel that they possess in regards to decision- making abilities if the

(1:55:51) universe is deterministic we couldn't have done otherwise where the clash between the Free Will skeptic and the compatibilist happens is how appropriate is the definition of free will that the compatibilist is using and how appropriate is definition that the Free Will skeptic is using the Free Will

(1:56:11) skeptic says the compatibl definitions aren't appropriate for the Free Will debate so the incompatibles do have a point because if a strict determinist like myself insists on using the phrase Free Will isn't it ambiguous isn't the average person going to think well

(1:56:28) you've opened the door to something libertarian and so it's ambiguous and it's a slippery slope so stop using the words free [Music] will it may be that the term Free Will has just outlived its its usefulness it's so embattled there's so many different arguments which just terminate

(1:56:52) in semantic uh wrangles yes it is in a sense uh confusing I mean if you talk to you know General folks who believe in in what philosophers will call uh Contra cause of free will and you tell them no really things are actually work as the compatibly say uh yes people will be

(1:57:10) confused and people would think that well now we you just destroyed Free Will and in a sense you're half you destroyed the free part [Music] I would put in its place something like moral competence which admits of degrees and is morally important and is compatible with everything we know with

(1:57:34) science and then discard the debates about other senses of Free Will which are like the old debate about how many angels can dance on the head of a pin I prefer to use the word ution uh uh but R Evolution refers to the notion that there is some kind of conscious

(1:57:56) deliberation involved part of the web of cause and effect that is uh uh leading to your decisions is internal and what we mean by this is your decision it's precisely that that part of that decision making process happens inside you mostly in your brain and that's the only sense in which we're

(1:58:15) saying that uh it is your decision as opposed to somebody else's decision as opposed to my television's decision or whatever if we should read in the New York Times that scientists have proven you know that determinism is true I'd have to do some heavy thinking if that

(1:58:35) headline ever appeared in the New York Times and I knew I had to give up you know my libertarian view I said i' I'd I'd do it I'd feel uh oh I don't know I I would feel that something had been lost in the world it would be taking something away from us I believe that I

(1:58:57) at least and I think many many other people want to believe uh but uh you have you have to go it has to be consistent with science I feel strongly about that I believe it's quite possible to live consistently as a Free Will skeptic now that doesn't mean in my everyday

(1:59:23) interactions with people I don't sometimes feel certain types of reactive attitudes but I could also see that those reactive attitudes Within Myself feelings of resignation and moral anger which emerge kind of naturally when someone you love is harmed those come naturally to individuals but I could

(1:59:41) also realize on a comma more reflective moment that those reactions lack any justificatory power and I definitely can disavow them of any power in policy arguments I could see that my personal strikeback emotions which might come naturally for many especially in the

(1:59:59) west that those do not have the power to justify retributive policy when it comes to criminal justice or legal reform so I believe that it is possible for individuals to successfully live without the belief in Free Will and it's possible for individuals to guide their

(2:00:17) actions in ways where they don't feel the kind of moral anger that's quite often corrosive to our interpersonal relationships and to our social [Music] policies two words alone cannot capture the depth of The Human Experience although the idea of Free Will may have

(2:00:43) been historically useful ideas from philosophy and modern science refute its traditional conceptions and while the majority of modern philosophers continue to use the term their Free Will lacks what many typically think true Freedom requires since we can never act outside

(2:00:58) of physical laws how can we develop a consistent and Humane approach to dealing with human behavior one of Humanity's greatest challenges is to incorporate this knowledge into our understanding of morality responsibility and criminal justice [Music] e [Music]