US neuroscientist Sam Harris claims in a new book that free will is such a misleading illusion that we need to rethink our criminal justice system on the basis of discoveries coming from the neurological wards and MRI scans of the human brain in action.
The physiologist Benjamin Libet famously demonstrated in the 1980s that activity in the brain’s motor regions can be detected some 300 milliseconds before a person feels that he has decided to move. Subjects were hooked up to an EEG machine and were asked to move their left or right hand at a time of their choosing. They watched a specially designed clock to notice what time it was when they were finally committed to moving left or right hand. Libet measured the electrical potentials of their brains and discovered that nearly half a second before they were aware of what they were going to do, he was aware of their intentions. Libet’s findings have been borne out more recently in direct recordings of the cortex from neurological patients. With contemporary brain scanning technology, other scientists in 2008 were able to predict with 60% accuracy whether subjects would press a button with their left or right hand up to 10 seconds before the subject became aware of having made that choice (long before the preparatory motor activity detected by Libet).
Clearly, findings of this kind are difficult to reconcile with the sense that one is the conscious source of one’s actions. The discovery that humans possess a determined will has profound implications for moral responsibility. Indeed, Harris is even critical of the idea that free will is “intuitive”: he says careful introspection can cast doubt on free will. In an earlier book on morality, Harris argues
Thoughts simply arise in the brain. What else could they do? The truth about us is even stranger than we may suppose: The illusion of free will is itself an illusion (The Moral Landscape)
But a belief in free will forms the foundation and underpinning of our enduring commitment to retributive justice. The US Supreme Court has called free will a “universal and persistent” foundation for our entire system of law.
Implications for the criminal justice system
Any scientific developments that threatened our notion of free will would seem to put the ethics of punishing people for their bad behaviour in question.In Free Will Harris debates these ideas and asks whether or not, given what brain science is telling us, criminal justice, in focusing on retribution, rests on an entirely false basis. An example he gives is a murderer who kills because of a brain tumour. This person is a victim not a criminal. The tumour is the cause of his crimes. People imagine that the normal brain is a different story. But in fact the study of any criminal brain, says Harris, is the equivalent of finding a tumour in it – the wrong genes being transcribed, the brain being dictated by events over which he has no control. Human choice, says Harris,
is as important as fanciers of free will believe. But the next choice you make will come out of the darkness of prior causes that you, the conscious witness of your experience, did not bring into being.
Clearly we need to lock up dangerous people. But there is no sense to the idea that the somehow deserve it. Retributive justice is like requiring us to hate, as well as shoot, a wild animal who escapes from the zoo. His short book opens with an account of an horrific crime which mesmerised America with its cruelty – the home invasion in Connecticut by two men in 2007. Two career criminals first brutally bludgeoned the father (the only survivor), then raped and murdered the mother, and finally killed the two young daughters when they set the house on fire. As one reviewer says,
Harris gives voice to most everyone’s worry when he writes that, without (contra-causal) free will, monsters like these men are “nothing more than poorly calibrated clockwork,” and therefore they aren’t really responsible for their actions. They’re just damaged goods.
Speaking on an WNYC interview, Harris explains that the brain precedes a motor plan before our consciousness of our planning of it, even while we think we’re still free to decide which way to go.
You can’t really take credit for your unconscious predelict. This reaches back into everything we think and do and decide. There is no place in which we can say, the buck stops here. The buck just never stops. Your wants themselves emerge out of a wilderness of causes which you yourself cannot inspect. The only tools at your disposal are those which you inherit from your past. There are certain things about morality and about the legal system which do shift when you take on board that there is no free will.
The evolutionary biologist Stephen Pinker reminds us that our sense of justice tells us that where someone commits a crime, the perpetrator’s culpability depends not just on the harm done but on their mental state, what any first year law student knows is the mens rea, the subjective state of intentionality prerequisite to establishing criminal liability. In his recent study of the decline of violence in human history, he gives the following example:
Suppose a woman kills her husband by putting rat poison in his tea. Our decision as to whether to send her to the electric chair very much depends on whether the container she spooned it out of was mislabelled DOMINO SUGAR or correctly labelled D-CON: KILLS RATS – that is, whether she knew she was poisoning him and wanted him dead, or it was all a tragic accident. A brute emotional reflex to the actus reus, the bad act (“She killed her husband! Shame!”) could trigger an urge for retribution regardless of her intention. (The Better Angels of our Nature: Ch8, Inner Demons, p 547)
This type of retributive impulse of course we all condemn as unpardonable in civilised society. But if we follow Harris’s argument to its logical conclusion, the correct label should no more condemn the murderer to retribution than the misleading one, for the proclivity to do harm is at large, and is in no wise governed by rational choices immediately preceding the actus reus. He is not making a case for exculpation on the basis of identifiable brain lesions or particular genetic mutations, which the psychologist Harold Schechter showed were notably absent from all the notorious subjects of his authoritative compendium The Serial Killer Files.
Are we really rational actors?
Where does this leave human rights? Harris’ prescription for rethinking criminal justice may lead to a compassionate outcome: the criminal cannot help himself, restrain him but don’t hate him; but let us remind ourselves of the first provision of the Universal Declaration of Human Rights, endorsed in 1948 by forty-eight countries:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
But if we cannot even be sure that our conscious minds can dictate the movement of our own limbs, how can we direct the whole macro-organism to behave in a civilised manner to the rest of the world, because some international agreement tells us to? By breaching the boundaries between scientific facts and human values, Sam Harris argues convincingly that most people are simply mistaken about the relationship between morality and the rest of human knowledge. Instead of bowing to secular but quasi-biblical commandments such as the UN Declaration, the Covenant on Civil and Political Rights and so on, we would do better to think about morality in terms of human and animal well-being, viewing the experiences of conscious creatures as peaks and valleys in what Harris calls a “moral landscape.” As the abstract of his exploration of morality proposes, there will be a time when science will no longer limit itself to merely describing what people do in the name of “morality”; in principle, science should be able to tell us what we ought to do to live the best lives possible.
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