Freewill and Crime and Punishment

In my last post I explained my position that freewill does not exist. It is merely the illusion that appears when our imagination plays ‘what if?’. If I do believe this to be the case, and the idea that at any moment we could do something different from what it is we actually did is an illusion, can I justify our legal system? After all, when society punishes a person society is assuming that the person was able to make different decisions.

I agree that punishment only makes sense if freewill is real, but I also agree with having a legal system. If the law was about retribution then I could not justify it, but it is not just about retribution; we do not only lock people up and fine them because we want them to suffer for what they have done. We also want to protect society from those actions.

This is something I need to be very clear about: even if we do not have freewill our experiences are still paramount and valuable and worth protecting. So for repeat violent offenders a long prison sentence makes sense because the risk to other people’s experiences and lives is removed. We are not punishing a criminal; we are protecting the people around the criminal. But lesser crimes don’t call for the same action.

The other way of removing a risk from society is to rehabilitate the person that poses the risk. Shorter criminal sentences are not about lesser punishments, or at least they shouldn’t be. Shorter sentences should be opportunities to rehabilitate an offender. Even crimes that normally demand a longer sentence, like paedophilia, can be treated as rehabilitation cases: the chemical neutering of paedophiles would protect society from that behaviour. We could debate the exact nature of what that rehabilitation is. After all, The Clockwork Orange is a striking story of what could happen if we don’t know what we’re doing in terms of rehabilitation.

The big question: where does this take us the death penalty? When it comes to the death penalty we need a very high-level of confidence in the criminal’s guilt, but assuming that we can grant that, should the death penalty be allowed? There is only one circumstance where I could entertain the idea: we don’t have the intellectual resources to rehabilitate a specific individual and the cost of locking them up to protect society far outstrips the cost of killing them.

Rehabilitating people is a difficult and a lot of research is needed on the issue, and to sentence a person to death because ways to rehabilitate them simply haven’t been discovered yet seems cold and callus. If you are, for all intents and purposes, certain of their guilt and the options are death or keeping the criminal alive on the tax-payer’s money for no reason other than to keep them alive the answer still isn’t simple. But why we should spend money on keeping them alive when they pose a risk to everyone else’s wellbeing and experience is not clear. However, the death penalty tends to be the more expensive option compared to life in prison. And certainty of guilt is a ridiculous criterion anyway.

14 thoughts on “Freewill and Crime and Punishment”

  1. Hi Mr/Ms nameless (Is there anything I can call you?)
    I can’t find your “About” page. Do you have one? Anyway, I can’t find it so I’m going to have to leave my general comment on this post.
    I am a former Atheist and am interfacing with another person of my former persuasion at the moment. It’s been very stimulating I must say. Anyway, as a result of my interactions with this person, I am asking a question on my latest post that I would like other Atheists to look at. I’m not getting many answers so I thought I’d request some.

  2. Thanks for sharing your writings on free will. I have also read all of Dr. Harris’s books (I am a fan of his and also subscribe to his blog). The problem I have with all of these free will arguments is they all seem to be locked into just our conscious minds and our culture. When one is asked to “think of a city,” it is in the form of a common game (either a magic trick or a word game) and one is inclined to go along and just riffle through the first cities that come to mind and pick one. If one is asked “think of a city and it will be totally destroyed,” I believe the thought processes would be vastly different.

    I also think that intellectuals (I count myself as one) also devalue the “other” aspects of self. if the roar of a lion were to occur just behind me, I would be off and running before any conscious thought had occured. Similarly there many real subconscious routines I have learned (tying shoes, etc.). Physically, my body takes care of all kinds of routine maintenance to keep me alive (breathing, heart pumping, etc.), processes over which I have some degree of control (breathing being somewhat more obvious, but also heart rate and blood pressure interestingly).

    I tend to think of me as being all three: the physical autonomic “me,” the subconscious “me,” and the conscious “me.” The free will conundrums almost always center on our bodies doing something before our conscious minds get the memo. And then we say, “See, we do not have free will.” I think we need to know a lot more about the other two parts of us before we draw that conclusion. I would agree that we do not always have conscious free will, but I cannot rule out that the rest of me does because those parts get votes, too.


    1. My response would be to say that you also have no authority over the autonomic you (you can become aware of things like your heartbeat and move it into the conscious part of you, but then we have the same discussion about the conscious mind) or the subconscious you. So, although each part may get a vote, it remains a mechanistic process.
      And that’s the other thing I would challenge: the idea that you can derail or alter the purely mechanistic process of your brain suggests that there is some “I” that actually has that magic power. I don’t mean to use the word “magic” derisively, being able to alter the behaviour of physics would be magic.

  3. “When it comes to the death penalty we need a very high-level of confidence in the criminal’s guilt…”
    And where does this ‘high-level of confidence’ come from? There is no free will. The criminal investigators can’t decide to do a better job of determining guilt.

    At the same time, the word ‘guilty’ becomes meaningless. We’re all ‘guilty’ of following our predetermined course through the universe.

    1. That paragraph is priming for the idea that the death penalty is not really permitted.
      But, as you’ve decided freewill forbids intellectual endeavours, there’s not much point in having a conversation with you.

      1. No you didn’t.
        Whether or not the death penalty is actually used does NOT change my question.

        Where does this ‘high-level’ of confidence come from if there is no free will?

      2. Okay, fine. Absence of free will leaves us in a nihilistic universe where nothing matters. We cannot chose but to value our societies and progress intellectually.

      3. Actually, we can’t choose to value our societies or progress intellectually either.
        You didn’t choose to write this blog either.

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