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Crimcast is a virtual resource devoted to critical conversations about criminology and criminal justice issues. Our blogposts, twitter feeds, podcasts and other content provide an overview of trends, research, commentary and events of interest to criminal justice practitioners, academics and the general public. CrimCast is sponsored by The Center for Crime and Popular Culture, St. Francis College, Brooklyn, NY.

Free Will and Criminal Responsibility: Atiq's "The Role of Folk Beliefs…"

Nickie Phillips

Is free will an illusion? Sam Harris argues “yes” in his book Free Will (2012).

 “The popular conception of free will seems to rest on two assumptions: (1) that each of us could have behaved differently than we did in the past, and (2) that we are the conscious source of most of our thoughts and actions in the present. As we are about to see, however, both of these assumptions are false.”

Harris bases his conclusions on neuroscience findings indicating our brains make decisions before we are consciously aware. He states,

“Some moments before you are aware of what you will do next—a time in which you subjectively appear to have complete freedom to behave however you please—your brain has already determined what you will do. You then become conscious of this ‘decision’ and believe that you are in the process of making it.”

The consequences of such a reconsideration of free will are vast for the criminal justice system given that accountability for crime rests on the assumption of free will.

For a thorough review of the issues, read Emad Atiq’s article “The Role of Folk Beliefs About Free Will in Sentencing: A New Target for the Neuro-determinist Critics of Criminal Law:”  The abstract:

“Do recent results in neuroscience and psychology, that portray our choices as predetermined, threaten to undermine the assumptions about “free will” that drive criminal law? This Article answers in the affirmative, and offers a novel argument for the transformative import of modern science. It also explains why a revision in the law’ s assumptions is morally desirable. Problematic assumptions about free will have a role to play in criminal law not because they underlie substantive legal doctrine or retributive theory, but because everyday actors in the sentencing process are authorized to make irreducibly moral determinations outside of the ordinary doctrinal framework. Jurors, judges, and legislators are each required, at key points in the sentencing process, to make moral judgments that cannot be reached without reference to the person’ s own understanding of free will. As a result, sentencing actors give legal effect to widely-held folk beliefs about free will, beliefs that the evidence suggests are both scientifically suspect and morally distorting. The relevant beliefs make adjudicators less likely to attend to the underlying causes of crime, such as social deprivation – a tendency that biases adjudicators against relevant arguments for mitigation in sentencing. Modern science could have an important corrective effect in this context.”

Eddy Nahmias, writing for the New York Times, argues that neuroscience findings do not support the contention that free will is an illusion. For more, go here.

Go here for Daniel Meneker’s book review for Free Will.

For Jeffrey Rosen’s 2007 article “The Brain on the Stand” go here.