NOV 18

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24: NOV 18

Assigned

• Sapolsky, Chapter 16: Biology, the Criminal Justice System, and (Oh, Why Not?) Free Will (580-613) (Part One 580-600)

Sapolsky, Chapter 16: Biology, the Criminal Justice System, and (Oh, Why Not?) Free Will

• Discusses professional interaction between biologists and legal scholars that may have started “neurolaw”.

• Radical claim: Current criminal justice system needs to be replaced. (Not talking about policing, right?)

• Things outside his focus: science in courtroom, min IQ for death sentence, cognitive bias in jurors, cognitive privacy.

• 583: historic example of scientific evidence disrupting criteria for guilt in witches trials, mid-16th century. Older women might not be able to cry.

• Three Perspectives

• no one now disputes that we sometimes are not free (epilepsy example). Yet medieval europe tried animals for guilt. (Sounds weirder than it is. Just imagine it's about the act, not criminal intent.) Ok, it's still pretty weird... Inference: We don’t have complete conscious control of our actions.

• Drawing Lines in the Sand 586

• S endorses a broad compatibilism. Free will is compatible with determinism.
• Then he develops the broader view, from Greene, “mitigated free will,” (roughly libertarian dualism) but ultimately, Sapolsky will try to show that this view doesn’t hold up, in part because it depends up arbitrary use of a “homonculus” to explain things.

• 1842: M’Naghten. Rule at 587. Mentally ill murderer. Many objected to his not being found guilty. John Hinckley.

• "Mitigated free will" homunculus view: we all more or less think this way and then the problem of responsibility comes down to figuring out what to expect from the homunculus. Note his humorous/sarcastic description of it. What is it capable of or should have been capable of. This is our "folk psychology" of free will.

• Age, Maturity of Groups, Maturity of Individuals

• 2005 case Roper v. Simmons. Age limit of 18 on executions and life terms. Follows debates on this. 590.
• 2010 and 2012 cases on rehab for juvies. age related bounds on free will (in the justice system).

• ”grossly impaired rationality”. [Note: The law is mostly interested in "rationality" not free will.]

• Some views Sapolsky finds hard to accept:

• Gazzaniga’s view: FW is an illusion, but we should still punish. Responsibility is a social level concern.
• Deliberate actions are "free" - doesn't make sense of brain processes.

• Time course of decision making.

• disputes about the maturity of adolescents: APA has spoken both ways in court: not mature enough for criminal resp., but mature enough to make an abortion decision. Might be contradictory unless you think that the immaturity affects impulse control more.

• Causation and Compulsion -- not everything that causes us to act is a compulsion, but for some, it is.

• Works through example of schizophrenic hearing voices. Not all cases would be compulsion. "If your friend suggests that you mug someone, the law expects you to resist, even if it's an imaginary friend in your head." On the other hand, some say that act might be “caused” by this voice. “Thus, in this view even a sensible homunculus can lose it and agree to virtually anything, just to get the hellhounds and trombones to stop.” 593

• Starting a behavior vs. halting it. ("free won't")

• Libet experiment, 1980s, EEG disclosure of “readiness potential” — activity measured before conscious awareness of will. .5 second delay might just be artifact of experiment design. Time it takes to interpret the clock. Libet says maybe the lag time is the time you have to veto the action your body is preparing you for (“free won’t”)

• Sapolsky’s view is that these debates reflect a consensus about the interaction of biology and free will, whatever that is.

• ”You must be smart” vs. “You must have worked so hard”

• research of Carol Dweck, 90s, saying that a kid worked hard to get a result increases motivation.

• 596: we tend to assign aptitude to biology and effort and resisting impulse to free will. Sapolsky seems very skeptical that we can justify assigning character (impulse control anyway) to non-biological factors (fairy dust). Read at 598.

• some evidence that pedophilia is not freely chosen or easily resisted.

• chart showing how we divide things between biology and “homuncular grit”. — Long list of ways out biology influence the items on the right. (Note that this applies to Kevin in the Radio Lab episode, “Blame”.)

• Conclusions: “worked hard/must be smart” are equally grounded in our physical nature.

• We'll break here for today

• But does anything useful actually come of this?

• Grounds for skepticism about using neuroscience in the courtroom: Stephen Morse. Neurolaw sceptic, ok with M’naugton, but thinks cases are rare. Reviews valid criticisms he makes: 1. Juries might overvalue neuroscience images, 2. Descriptive vs. Normative.

• Morse supports a strong distinction between causation and compulsion. Causation is not itself an excuse. But Sapolsky argues that this still involves walling off a “homunculus” and that’s not plausible.

• Acknowledges an apparent problem. Neuroscience typically can’t predict individual behavior very much. Fictional exchange with prosecutor. 600

• Explaining lots and Predicting Little

• But is the lack of predictive power a problem in the argument? S. works through some cases in which probability of prediction decreases, but no less likely that it could be a case of compulsion. 601

• 602: Important methodological point: There's no less biology in the leg fracture vs. the other disorders, but level of biological explanation is different. Leg fractures are less connected to culture. Behavior is multifactorial and heavily cultural. (Oh god, another Henrich digression. Free will has a history.) Example: how much does biology predict depression? Factors are diverse biological mechanisms, including cultural factors. (But, point is, someone can be disable by depression, just like the leg fracture.)

• Marvin Minsky, “Free will: internal forces I do not understand”. Sapolsky adds “yet”.

• Neat charts showing historic trend to connect social behavior and biology in research journals. 604-605.

• If you still believe in mitigated free will:

• case of Dramer and Springer and the spiritual explanation for epilepsy. Biblical version with Jesus.
• Sapolsky imagines an Inquisitor (witch burner). Must be puzzled occasionally by fact pattern. Mom has epilepsy.
• growth of knowledge argument 607-608. read list. Most likely option is that our kids will look at us as idiots about moral responsibility and culpability.

• 608: practical outcomes. Not about letting violent criminals free. On the biological view, punishment can’t be an end in itself (restoring balance). Retributive punishment is an end in itself.

• Brain imaging suggests culpability judgements activate the cool and cognitive dlPFC, but punishment judements activate more emotional vmPFC. “A frothy limbic state”. Makes sense that punishment is costly. But we need to overcome our attachment to punishment. It is involved in a lot of unjustified suffering.

• Recaps the transition we've made with epilepsy 610.

• Car free will. A kind of reductio argument.

Small Group Discussion on Will Power and "Homuncular grit"

• Evaluate Sapolsky's chart on p. 597 showing how we divide "biological stuff" from "homuncular grit". How far do you go in accepting his criticism of the distinction. (read below chart). Are there reasons for thinking we have a “homunculus” that isn’t biological? Does this lead you to reevaluate your agreement with the prosecutor in Kevin's case?
• What is the "source" (what are the sources) of "will power"? When you "find" willpower or marshal your personal resources to meet a challenge, is there a "who" who is deciding that or is there just a competition in your head based on all kinds of things, including perceive rewards and perceived risks? Do you need a homunculus to have will power?

Two Positions that might follow from your small group discussion

• 1. There is “homuncular grit” and it’s not biological.

• Supports this view: Moral responsibility can be desert based since it is almost always your “moral failure” when you break the law. (Except for a small range of “mitigating circumstances”). You can be guilty and deserve punishment.

• 2. It’s biology all the way down. (Meaning, you and your development.)

• Supports this view: Accountability and Standards view.

• Society must enforce standards (through laws and regulations), but this mostly involves penalties and interventions. Speeding tickets and the loss of liberty are effective ways of encouraging compliance. Society is also entitled to self-protection.
• Moral responsibility just means “you have an obligation to meet the standards”. No need for desert-based judgement or punishment. Penalties and interventions are enough. You can be judged to have failed to meet the standard and face consequences. If penalties don’t work or the social threat is great (e.g. murder), you might lose your liberty.

Philosophical Approaches to Free Will

• Sapolsky made short work of the problem of free will with his “biology or homunculus” approach.

• Two ways to ground MR:

• 1. Traditional Metaphysical Philosophical Discussion about Determinism and Free Will

• Examples of argument threads: If we do not have "metaphysically real" FW, then we cannot be held responsible. If the world is deterministic, then we do not have FW and cannot be MR. Because we are MR, we must have FW.

• 2. (Some) Contemporary Naturalist (Cultural Evolutionist) Approaches to MR and FW regard these as cultural ideas which express both our "agency" (ability to act in the world) and expectations of each other as "normally competent agents."

• To understand the Traditional Metaphysical approach, you need some terminology:

• Hard Determinism - The view that determinism is true and that renders traditional concepts of free will meaningless. Hard to justify retributive punishment. Basic intuition: If everything is determined, we can't make choices. Biggest liability: Sets the bar for free will very high.

• Compatibilism - Compatibilists also believe that determinism is true, but they believe that free will is compatible with determinism. Basic intuition: Free will is a way of describing our sense of agency. People do this in different ways in different cultures. Agency is real, free will is one way of understanding it. Basic Intuition: Free will is part of our "folk psychology" and does really practical work for us in culture. Biggest liability: Is this a "free will worth having"? It seems thin to some to call free will a cultural artefact. But then Love, Faith, Cooperation, Trust, Friendship are real?

• Many people find it hard to be compatibilists since it involves accepting that ever state of the universe is determined. (Point to resources for thinking through this. Dennett, Freedom Evolves.) "I'm determined to improve the future!" Free will means having more real possibilities in your life. Maybe people who fail their responsibilities are like "broken things". (Could be a problem of mixing mental modules.)

• Libertarianism - The view that under some circumstances we are the original cause of our actions. (If you think your “will power” defines a category of cases, then this is the “mitigated free will” view that Sapolsky attacks.
• Basic intuition: If you think our intuitions about free will are also part of the structure of the world (we are “first causes” of our action), then the libertarian has a plausible approach. Biggest liability: Hard to find evidence for this view.

• Is Free Will a culturally defined concept for understanding our agency?

• Free will as a cultural concept. Evidence from Henrich and others. Part of a cultural package that weakened kin bonds that might not have been seen as "choosable". Promotes idea of choosing a creed or code of conduct. Question then is: Does this conception of free will still serve us well, especially in light of new knowledge about human (mis)behavior?

• Ordinary language analysis -- We know what we mean by free will, whether it exists in libertarian form or not! Maybe it's a cultural artefact. Maybe we use mental modules related to Theory of Mind and governing "animate" objects.

• To warm up your intuitions that FW is a cultural concept, consider how adept we are in understanding these sentences: "ordinary language analysis"
• I may choose to take up painting as a hobby.
• I cannot choose to become a concert violinists at this point in my life.
• I can choose whether or not I get ready for class.
• I have no choice, I have to turn you in to the police.
• I can't choose not to love you, but I can't see you any more.
• I've decided I don't love you any more. (aww...)

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