Georgia Criminal Appellate Law Blog Offering Insight and Commentary on Appellate Law and Criminal Trial Practice

Criminal Sentencing and the Problem of Free Will

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steamsaleCriminal calendars may be handled slightly differently in every jurisdiction. But they have one thing in common. At some point in every case, the lawyers will argue about why a person did that he did. And a judge or jury will evaluate this question and make a decision about what to do in light of that decision. In some instances, this evaluation will literally amount to life or death. In most, this decision will determine whether a person goes a away to a prison, is able to continue a course of education, or has her career choices forever limited by a label. But in each of those moments, not only the choice a person made but that person himself is judged. For that reason, how we think about free will is an important subject.

For those who are represented by thorough defense counsel, this judgment is made early and in the charging stage. The sooner you can bring a person’s full humanity to the attention of “the system” the more hope you can bring to that person. From the defense attorney’s perspective, the more complex that decision is, the better. It’s easy to pass judgment on a file and difficult to pass judgment on a person. So, you do everything you can to show to the system your client’s full humanity. Ken White wrote about this very thing:

If judges confronted the defendants’ individual humanity as they caged them one after another, they’d go quite mad.  It’s impossible and inadvisable.

The trick is to light a spark that catches the judge’s eye, that transforms your client even momentarily from an abstraction or a statistic or a stereotype into a human being with whom the judge feels a connection.  Judges are people, and people connect with each other through commonalities – family, hobbies, sports, music, and so forth.  At sentencing, a good advocate helps the judge to see the defendant as someone fundamentally like the judge, with whom the judge can relate.  It’s harder to send a man into a merciless hole when you relate to him.

Ken White was writing about the Stanford swimmer whose sentence struck many around the country as exceedingly light given his conduct.

What the system is asking itself when it passes judgment is not just how we judge the person’s action or the person himself. The best among our profession challenge the moral framework that the system uses to even pass those judgments. And that moral framework inevitably turns to free will.

Free will is a touchy subject. It is perhaps the third rail of jurisprudence, politics, and religion. For those who are interested in exploring this moral framework and the role free will has to play in it, I commend to you Sam Harris on this topic.

Harris posits that free will is an illusion and that it matters that we develop a more sophisticated understanding of it. And Harris argues that (1) we are not free to make choices independently; and (2) that our choices are not even the product of our conscious mind.

And where he goes with this argument is not where you might expect.

We live in a world of cause and effect. Even within our body, we are doing things well beyond our conscious control. We are making red blood cells, but we are not in control of whether we make them. And we did not choose who our parents or where we were born. And, for Harris, our choices emerge from “a wilderness of cause and effect” that we neither see nor fully appreciate. We carry genetic information from ancestors and a lifetime of experiences with us. And that material may well be dispositive of every decision, including whether to buy coffee or cocoa on our way to work. In short, Sam Harris argues that free will is an illusion.

The Consequence for Us and For How We View the World

For one, if our free will is an illusion, then we should chill out about a couple of things. We should be more humble about our good choices. To a certain extent, we should be no more prideful about our good choices than we are about our height. At the same time, if we have managed to choose well, we should feel fortunate about this fact in the way we feel fortunate about good health. And if we have chosen badly in the past, we should perhaps go a little easier on ourselves.

More importantly, Harris’s view of free will is important for how we view others. If other people’s choices are a manifestation of their genetics and life experience, then we should feel more compassionate and less of a sense of hatred toward those who have made exceptionally bad choices.

Let me Anticipate Your Argument

If free will is an illusion, then why have a criminal justice system? Why send any defendant to jail since there is not free will. This takes us to our next point.

Free will is an illusion, but choice still matters. Says Harris,

The fact that our choices depend on prior cause does not mean that choice doesn’t matter. To sit back and see what happens is also a choice that has its own consequences. So, the choices we make in life are as important as people think, but the next choice you make will come out of a wilderness of prior causes that you cannot see and did not bring into being.

And an understanding of free will can guide future choices in a more systematic and perhaps grander way. We can shift the the ground from which our choices arise. And I hope you will pardon me for putting in another block quote:

A creative change of inputs to the system — learning new skills, forming new relationships, adopting new habits of attention — may radically transform one’s life. Becoming sensitive to the background causes of one’s thoughts and feelings can, paradoxically, allow for greater creative control over one’s life.

This understanding reveals you to be a biochemical puppet, of course, but it also allows you to grab hold of one of your strings.

A very wise friend of mine who counseled some of my clients and testified on behalf of some of theme at sentencing, would tell them that the way to recover from an addiction had less to do with the choice to “use” in the moment and more to do with avoiding the moment. She drilled clients on what she called the “PPTs” or “persons, places, and things.” Change your landscape and eventually your “free will” acts differently.

Harris provides a helpful view of the world and a paradoxically liberating escape from free will.