Submitted by Mark Esposito, Guest Blogger
The bedrock of modern Western jurisprudence is the supposition that we are free to choose our actions from a range of choices. Some of these choices are socially acceptable and we deem them “legal.” Other choices made in specified contexts are socially unacceptable, and we deem these “illegal.” For those extremely unacceptable actions denominated as “crimes” we reserve progressive punishments to deter their occurrence. Gratuitous violence is one of the most important of these condemned actions, and we have striven for centuries to overcome this endemic feature of our nature. The basic assumption being that we can deter conduct that is the product of free will by imposing undesirable consequences on the actor. How have we done? I suppose the obvious answer is that despite a multitude of approaches ranging from severe punishment to compassionate rehabilitation, we haven’t yet mastered a way to banish senseless violence from our midst. Perhaps it is time to question that basic assumption that violence is purely volitional conduct.
The philosophical roots of free will stretch back at least to ancient times. Greco-Roman thinkers like Epicurus believed in causal determinism but allowed for an element of chance in the physical world by assuming that the atoms sometimes swerve in unpredictable ways, thus providing a physical basis for a belief in free will. Others like Cicero had doubts about the purity of free will observing:
“By ‘fate’, I mean what the Greeks call heimarmenê – an ordering and sequence of causes, since it is the connexion of cause to cause which out of itself produces anything. … Consequently nothing has happened which was not going to be, and likewise nothing is going to be of which nature does not contain causes working to bring that very thing about. This makes it intelligible that fate should be, not the ‘fate’ of superstition, but that of physics, an everlasting cause of things – why past things happened, why present things are now happening, and why future things will be.
Later, Christianity postulated free will as one of its basic tenets, arguing that grace is bestowed by acting in accordance with the Creator’s will and rejecting contrary temptations. In City of God, Augustine explained that, “For the first freedom of will which man received when he was created upright consisted in an ability not to sin, but also in an ability to sin; whereas this last freedom of will shall be superior, inasmuch as it shall not be able to sin. This, indeed, shall not be a natural ability, but the gift of God.” To depart voluntarily from God was then the foundation of sin.
For two centuries Western law has adopted this basis for meting out punishments as a means of modifying behaviors. Enter then the discipline of neuroscience and the strange case of Phineas P. Gage. Gage was a railroad worker living a peaceful life in late 19th Century New England. In 1848, Gage had the curious fate to suffer an iron crowbar being thrust squarely thorugh his left frontal lobe. He survived but changes to his demeanor and personality were so pronounced that his family and friends began to remark that “Gage was no longer Gage.” Damage to his prefrontal cortex had rendered a once courteous and diligent 25 year-old man unalterably and explicitly anti-social.
His physician John Harlow noted that:
He is fitful, irreverent, indulging at times in the grossest profanity (which was not previously his custom), manifesting but little deference for his fellows, impatient of restraint or advice when it conflicts with his desires, at times pertinaciously obstinate, yet capricious and vacillating, devising many plans of future operations, which are no sooner arranged than they are abandoned in turn for others appearing more feasible. A child in his intellectual capacity and manifestations, he has the animal passions of a strong man. Previous to his injury, although untrained in the schools, he possessed a well-balanced mind, and was looked upon by those who knew him as a shrewd, smart businessman, very energetic and persistent in executing all his plans of operation.
What are the implications then for free will in the context of obvious cases of impaired thinking like that suffered by Gage? The law has sought to address “crimes” committed by those without sufficient faculty to appreciate the moral character of their actions or those persons who act through irresistible impulse. The first attempts were the British M’Naghten rule which excused conduct, though volitionally done, which was the product of a diseased or impaired mind and which rendered the perpetrator so impaired as to extinguish his ability to divine right from wrong. The corollary irresistible impulse test sought to mitigate criminal responsibility for one who would have acted through the effects of mental disease or defect even though a constable was at his side at the time of the conduct. Both of these tests have proven unworkable and prison statistics continue to show that the psychologically impaired are statistically more likely to be incarcerated than “normal” persons.
The new challenge for the law is just how to handle the logical implication of Gage’s case. What if all human actions were not simply the product of free will but a resulting phenomena of a host of organic and genetic markers causing conduct that is inevitable? And what if these behaviors are not the product of diease or defect but of predictable stimuli or dysfunction not rising to the level of that required by M’Naghten? Sort of an organic determinism free from the control of human “will,” but flowing not from a diseased mind but a substantially normal one. Not really such a radical position. Albert Einstein considered the question and posed the classic regressive conundrum:
Honestly, I cannot understand what people mean when they talk about the freedom of the human will. I have a feeling, for instance, that I will something or other; but what relation this has with freedom I cannot understand at all. I feel that I will to light my pipe and I do it; but how can I connect this up with the idea of freedom? What is behind the act of willing to light the pipe? Another act of willing? Schopenhauer once said: Der Mensch kann was er will; er kann aber nicht wollen was er will (Man can do what he will but he cannot will what he wills).
Sound far-fetched and too esoteric? Consider then the studies of Benjamin Libet who “showed that brain activity associated with deliberate decisions can be detected shortly before we are conscious of making the decision. In these studies, participants reported when they first felt the intention to make a spontaneous movement by noting the position of a dot moving on computer screen. They apparently first became aware of their intentions about 200 milliseconds before action execution, which is later than the onset of the so-called readiness potential (or “bereitschaftspotential”) recorded from the scalp prior to movement.” While the studies are controversial they point up a fascinating possibility — that human conduct originates organically from a host of chemical and electrical sources independent of any notion of mind/brain divergence. The mind then is the brain and functions according to incalculable threads of physical causation which we can neither differentiate nor completely understand.
The prefrontal cortex is not the only area of inquiry into brain physiology as neuroscience attempts to understand and explain human aggressiveness. “It has long been known that ablation of the monkey temporal lobe, including the amygdala, results in blunted emotional responses. In humans, brain-imaging and lesion studies have suggested a role of the amygdala in theory of mind, aggression, and the ability to register fear and sadness in faces. According to the violence inhibition model, both sad and fearful facial cues act as important inhibitors if we are violent towards others. In support of this model, recent investigations have shown that individuals with a history of aggressive behaviour have poorer recognition of facial expressions, which might be due to amygdala dysfunction. Others have recently demonstrated how the low expression of X-linked monoamine oxidase A (MAOA)—which is an important enzyme in the catabolism of monoamines, most notably serotonin (5-HT), and has been associated with an increased propensity towards reactive violence in abused children—is associated with volume changes and hyperactivity in the amygdala.”
These studies bring up an interesting derivative question: Are all murderers equal in terms of brain function? The answer is decidely “no.” “Professor Adrian Raine and colleagues reanalysed positron emission tomography data to tease apart functional differences between premeditated psychopaths and impulsive affective murderers. Compared to controls, the impulsive murderers had reduced activation in the bilateral PFC, while activity in the limbic structures was enhanced. Conversely, the predatory psychopaths had relatively normal prefrontal functioning, but increased right subcortical activity, which included the amygdala and hippocampus. These results suggest that predatory psychopaths are able to regulate their impulses, in contrast to impulsive murderers, who lack the prefrontal “inhibitory” machinery that stop them from committing violent transgressions.” For Raine then, free will should be viewed along a “dimension rather than a dichotomy”
An even more intriguing question revolves around whether we can predict anti-social behavior from an analysis of brain dysfunction. If so, would this not dispel notions of pure free will as the moral governor of our actions? “A systematic review of studies examining mental illness in 23,000 prisoners showed that these prisoners were several times more likely to have some form of psychosis or major depression, and ten times more likely to exhibit Anti-social personality Disorder (APD) than the general population. The authors suggest that, worldwide, several million prisoners have serious mental illness. Several studies also show levels of head injury to be higher in violent and death-row criminals, while birth complications, which can often result in neurological damage (e.g., hypoxic-ischemic encephalopathy) and parental mental illness, are higher in anti-social populations. More often than not, people with APD and violent behaviour have a history of childhood maltreatment or trauma; having such a history has been linked to anomalous development of regions associated with anti-social behaviour, including the PFC, hippocampus, amygdala, corpus callosum, and hypothalamic–pituitary–adrenal axis. Early damage to the orbitofrontal cortex in particular appears to result in poor acquisition of moral and social rules, thus showing the importance of the interaction between environment and brain development.”
All of these studies raise serious ethical questions for the justice system. Is the basic premise of pure free will suspect as a producing cause of aberrant conduct? Can we say with certainty that actions are in any meaningful sense volitional if they are the product of immutable laws of science which manifests themselves in a predictable, albeit undesirable, results? Are we punishing for poor conduct choices by individuals or for organic brain function over which the individual has only limited control?
Valid questions that may need answering and soon. In 1995, “Stephen Mobley, 25 with a long and violent criminal record, admitted shooting a pizza store manager in the back of the head during a failed robbery four years before. His lawyers argued he should be spared the death penalty because of a defect in his genetic make-up. Mobley’s family tree is littered with incidents of criminal and violent behaviour. His mitigation focused on a direct chain of antisocial behaviour that could be traced from his great- grandfather.
His lawyers tried to adduce expert evidence to show that a gene mutation had been passed along this line and was ultimately responsible for the disastrous events on 17 February 1991 at the pizza parlour in County Hall, Georgia. As long ago as 1969, genetic evidence was first admitted in a New York court. Lawyers then put forward a genetic-defect defence concerning the XYY chromosome syndrome. They argued that the extra Y chromosome indicated greater “maleness” or aggression. However, it failed to gain widespread judicial acceptance.
Mobley’s lawyers introduced evidence of a recent Dutch study, which associated this sort of family aggression with chemical imbalance caused by a mutating gene. Nevertheless, the Georgia Supreme Court held this evidence to be inadmissible on the basis that the theory of ‘genetic connection is not at a level of scientific acceptance that would justify its admission.'”
Now 16 years later science is grappling with proofs that might impress a court with the idea that certain human predispositions exist which bear directly on anti-social conduct. If neuroscience can answer this proposition affrimatively, the larger question will be how will we deal with this knowledge and how then will we deal with the perpetrators.
Sources: The Independent; Plos Biology; Wired; Neurophilosophy; and SamHarris.org
~Mark Esposito, Guest Blogger
Roco & kederosa:
What does any of this have to do with the academic topic? We were discussing legal issues relating to biology, learning, conditioning, heredity and competence/responsibility. I fail to see how injecting right wing economic theory advances the discussion at all. Do you have something relevant to contribute? If not, then RedState is that way >>>>>>>>>>>>>>>
kderosa:
you might like to read what fascism is, in the words of Il Duce himself. I think you will find it enlightening.
Especially when you understand his use of the word liberal. Which at the time he wrote this meant human freedom and included capitalism as part of the definition.
http://www.worldfuturefund.org/wffmaster/Reading/Germany/mussolini.htm
I think you will see how right you actually are.
“The difference between [socialism and fascism] is superficial and purely formal, but it is significant psychologically: it brings the authoritarian nature of a planned economy crudely into the open.
The main characteristic of socialism (and of communism) is public ownership of the means of production, and, therefore, the abolition of private property. The right to property is the right of use and disposal. Under fascism, men retain the semblance or pretense of private property, but the government holds total power over its use and disposal.
The dictionary definition of fascism is: “a governmental system with strong centralized power, permitting no opposition or criticism, controlling all affairs of the nation (industrial, commercial, etc.), emphasizing an aggressive nationalism . . .”
The American College Dictionary,
New York: Random House, 1957.”
On a lighter( more serious?) note, I am reminded by the words my Mama taught me growing up in the Mississippi Delta. My guess is she “borrowed” them from an intellectual pink nosed rabbit known as Thumper, in the1942 animated Walt Disney movie Bambi:
“IF YOU DON’T HAVE SOMETHIN’ NICE TO SAY…DON’T SAY NOTHIN’ AT ALL.”
Click this cite and for 30 seconds go back in time with me to a simpler time:
http://youtu.be/nGt9jAkWie4
Frank,
Thanks!
_________
kderosa,
See, it’s statements like this – “good deployment of the lefty-fascist troll technique of trying to censor disagreement with your cherished views” – that show why no one should ever take you seriously.
First of all, fascism is a far right form of governance with syncretic roots. You cannot by definition be for left spectrum forms of governance and be a fascist – it is impossible. Any freshman political science student knows that. You don’t get to make up the meanings of words to suit your need without running the risk of being laughed at and ridiculed. Especially when you want to make up poli sci terms at a legal blog, nitwit.
Second, no one is trying to censor you here. We’re just not buying your bullshit and smacking it down accordingly. If you have a problem with that? That would be your problem. You are free to spout any kind of nonsense you want. We are equally free to club you over the head with it. It was your poor choice to try to ply your propagandist trade here, the consequence of that choice leaves you with these two options: deal with it or run away, however, whining about it only makes you look that much more like a wuss sockpuppet.
http://youtu.be/KSTqXme9RCk
Sometimes humans resort to their primal instincts to resolve a conflict between their fellow members of the human race. I thought this video clip relates well to this thread. Superior strength vs. superior intellect. What an interesting creature man is.
Frank, your comment triggered an almost forgotten memory. Back in the 1960s, Yale researcher Jerome Brunner showed subjects badly out of focus images and asked them to state what the images were pictures of. Another group was asked to only state what the images were after they were brought into focus enough to be absolutely certain they recognized what it was. The slides were then brought into focus gradually, using a calibrated slide projector. What was discovered is the persons who were asked to pre-name the objects held on to the preconceived notion at a much greater rate than the control group who were asked to NOT pre-judge. Some subjects did not even name the object correctly until it was almost in full perfect focus. The objects in the pictures were simple and of everyday things like a horse, a fire hydrant and the like.
Brunner was also the researcher who did the famous “Red Spade” experiment. An abbreviated version of the experiment is shown in the video below. Over-learned information is hard to shake, even when you know what is coming–that is a function of conditioning.
Buddha Is Laughing: I so enjoy your comments! Now, am I influenced by your intellect, your logic, your ability to debate, my trained/learned & natural instincts as a criminal defense attorney, or is my view really tainted because of geography and culture (Buddha with roots in Louisiana and mine in Mississippi)? Do I have really have a “free will” to relate to his view or side with the opposing vantage point? Isn’t it natural to relate to an expressed point of you that you already hold? Don’t we all like authors and books that naturally affirm/confirm a view we already hold? Life is wonderful isn’t it? Go get ’em Buddha!
As Matt Damon (as Will) said in Good Will Hunting during the bar scene: ” But if you have a problem with that…’cause we can step outside and figure it out.”
OS, good deployment of the lefty-fascist troll technique of trying to censor disagreement with your cherished views, which, as any right-minded lefty-fascist troll knows, should never be challenged.
Apologies in advance if this is too off topic, I guess to me it relates, and I wanted to share more of Dr. Robert Sapolsky. If you wish to skip the intro go to the 5″ mark. Enjoy!
Buddha, data is not the plural of anecdote. So, your anecdotes about your schooling experience while charming, don’t inform the discussion much.
The data on the low educational achievement of inner city children who attend your beloved public schools (run and controlled by your beloved Democrats), in contrast is very informative. Why do you hate blacks so much to force them into such an awful education system?
If there’s a war against school funding, as you claim, they must be doing an awful job of it, since school funding levels have been increasing and outpacing inflation for decades. Also, at today’s funding levels, the correlation between educational outcomes and spending is about zero.
But as long as you feel good about yourself and your policy choices, that’s all that matters. Whether those policy choices actually result in improved outcomes, not so much.
Frank M., we have had a couple of chronic teabag type trolls who seem to delight in hijacking even the most serious discussion with irrelevant topics about their views of government and economics. We find they are often wrong, never uncertain, and always annoying.
Now there is a topic for discussion about conditioning, free will and personality disorders. Heh!
eniobob : Good to hear from you as well. I am not a “regular” as you and the others know. mespo727272 asked me to review and jump in his contribution to the weekend guest bloggers. I didn’t know it was going to require such a time commitment!
As always, I really enjoy the discussion until it resorts to unkind or unchartiable personal comments. It’s human nature of course. Are the insults the result of a “free will” by one capable of “choice” (assuming we all are exposed to the same choices in life and have the same intellect to identify them) by intentional strokes on a keyboard or are the reactions by one who is the product of his life’s experiences and therefore somewhat influenced and/or
limited to his/her learned experience in reaction thereto?
In law school we were asked to examine ‘WHAT THE LAW IS VS. WHAT THE LAW OUGHT TO BE”. The answer remains ellusive.
I’m just an ole/old beat-up weatherworn warrior in the so-called “court of justice”. I fight ’em one case at a time. Enjoyed the conversation. Frank
kderosa,
You seem to have mistaken me for someone who didn’t go to public schools. Some of the best schools I attended were public schools and some of the worst schools I attended were private schools. Conversely, some of the best schools I attended were private schools and some of the worst schools I attended were public schools. Quality in education is the key and public schools can offer just as quality an education as a private school . . . provided some pol hasn’t de-funded them because the wealthy owners of the local private schools has bribed – excuse me – campaign contributed to them to do so.
As to your claim of false equivalence? I’ll just point to the perpetual GOP (you remember them – the party of money and “intelligent” design) war on school funding and then laugh at you.
As to your ideas concerning equity? I don’t take anything a proven propagandist says seriously. Neither should anyone else not aligned with your agenda.
Then, you must not be afan of our current lavishly-funded public education system, since it does such an awful job creating those opportunites, presumably through improved educational outcomes, you seem to like.
Not being able to afford an education is different than someone (the upper class) actively depriving or preventing one from obtaining an education, thereby oppressing them. A false equivalance.
Our current public education system has done more to deprive the poor of a real education than these supposed upper class deprivers ever did. The current system provides an awful education to the poor, has increased the price of obtaining an education, has crowded-out other providers, and traps poor students’ in failed schools.
If that’s your idea of “equity,” I’ll think I ‘ll pass.
frankmascagniiii:
Hey Frank !,
And I too feel you :=)
Mike Spindell : I’ve really enjoyed your comments and observations. Thank you. As I respond to my clients who ask “Do you feel me?”, I say ” I feel ya.”
Tony C. :I was just trying to site a simple example that appears everyday in every courtroom in the country to address the competing interests of “intentional acts” (of a free will) vs, so-called “intentional acts” of a citizen with a mental disease or defect or medical/psychologicial/psychiatric condition (known or not/diagnosed of not). Most citizens, judges, prosecutors, probation officers, juries agree with you. As a criminal defense lawyer, I know they get lost in the case calling of the docket of the day.
Most clients in this country are appointed a public defender in a criminal case. The minority hire private counsel. A smaller minority can afford a mental health expert to assist in their defense. I’m just commenting on the harsh reality of the world I live in.
gbk,
“So what are you saying? That the hoi polloi can’t perceive options that “may” pass before them? ”
I’m talking about biology and free will – the subject of this thread. You’re the one who brought up class issues. As I pointed out, ability is not class specific.
“Recognizing new (and possibly unsettling) information is free and requires little beyond the ability to think.”
Yes, it requires the ability to integrate that new information without becoming emotionally reactive to it. Something it appears you may be incapable of.
“Hubris knows no bounds I guess! ”
Apparently neither does knee-jerk reactionary attempts to distort.
“I agree with this full paragraph. Thanks for acknowledging, “those people who may not be able to afford private schools . . .” I’m so grateful.”
If that’s your attempt at sarcasm, try again. If you have feelings of inferiority or class envy? I suggest you take them up with somebody who gives a damn, Mr. Assumption. I didn’t come from a wealthy family either but I don’t wear it like a chip on my shoulder. Apparently your status in life causes you some discomfort though.
“Cheap shot, I’m disappointed.”
Quite frankly, after this last childish post of yours, I don’t care if you’re disappointed or not. That you cannot differentiate between “choice” as a mechanistic process and “free will” is not that surprising though considering you seemingly want to reduce the ability to identify choice and free will to a class issue and you couldn’t differentiate between choice and social mores. Free will – as I stated – is more than just the ability to make choices. It is limited by the ability to perceive choices as well. One cannot make a choice one is unaware of. That’s basic logic. If you cannot process that? Take it up with your amygdala.
“You are confusing this particular discussion with others as I never said a thing about “leaders,” though I could, but I don’t kick dead horses nor do I stand in the intersection of empires.”
Nor do you think rationally it would appear as the only confusion exhibited here is by you.
I can’t wait to hear what your amygdala has to say about it.
@Frank M: “Is DUI and intentional crime? You intended to drink, you intended to get in a vehicle and drive, and so you are accountable for your intentional actions? What if you are an alcoholic and you do not possess the “blocker genes” that non-alocholics have?”
I think DUI is an intentional crime, alcoholic or not. The driver knows it is against the law, knows they are about to drink, and (in my mind) is responsible for ensuring that their actions do not lead to them breaking the law.
The alcoholic was definitely sober at some point, nobody is born drunk. Then while sober, he chose to take actions he could reasonably have anticipated would put strangers into lethal danger. He endangered others by impairing his cognition without adequate safeguards.
To me, at least, the result should be the same: Restrictions on his freedom to prevent him from endangering the public any further. Whether he is mentally incompetent or just has a criminal disregard for others is really a subsidiary issue, either way he should not be permitted freedom because he is a danger to the public.
“However, when you mention religious fundamentalist then the subject of “free will” within the theological setting becomes murky.”
Blouise,
Great comment with which I totally agree.
“Is DUI and intentional crime? You intended to drink, you intended to get in a vehicle and drive, and so you are accountable for your intentional actions? What if you are an alcoholic and you do not possess the “blocker genes” that non-alocholics have?”
Frank M,
You know the damned trouble with all of this is that our professions dealing
with alcoholic behavior are quite prone, even in the scientific part of the “addictive” community, to what I would call the “politics of addiction.” As a former psychological professional, who has dealt extensively with addicts, I’m quite torn in whether a predetermination towards addiction should be exculpatory. My being torn comes from my experience that many addicts, use the tendency and background as an excuse for their continuing maladaptive behavior and lack of ability to put it aside. While the rate of substantial addiction recovery hovers between a pitifully low 15 to 20%, the pundits in the field from which they earn their income argue the issue of pre-determination whichever way benefits their own needs. Your poignant comment sums up the DUI/DWI dichotomy perfectly:
“Unfortunately, neither taxpayers nor politicans support these projects. Until then, they’ll be prosecuted, convicted, sent to the pen with little or no mental health treatment. So whether their acts were intentional or not, product of a free-will or not, the system is designed almost the same. It’s sad to practice law and see the really mentally ill get prosecuted.”