NOV 19

25: NOV 19.

Assigned

• Sapolsky, Chapter 16: Biology, the Criminal Justice System, and (Oh, Why Not?) Free Will (580-613) (Part One 580-598)

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”. Conferences, Innocence Project (350 exonerated, 20 from death row). Sapolsky focusing on narrow range of topics, exclusions p. 582.( science in courtroom, min IQ for death sentence, cognitive bias in jurors, cognitive privacy)

• Cites his liberal credentials, but claims he’s not taking a liberal stance.

• 583: Historic example of scientific evidence disrupting criteria for guilt in witches trials, mid-16th century. Older women might not be able to cry. Liberals, is S’s view, focus on making small adjustments (not prosecuting older women with failing tear ducts), but he’s going big:

• Radical claim: Current criminal justice system needs to be replaced. (Must be said, this is also a liberal reform.)

• Three Perspectives on Free Will

• 1. Complete free will; 2. No free will; 3. Somewhere in between.

• No one now disputes that we sometimes are not free (epilepsy example). Problem is how to think about it. Sometimes it’s not “him” but “his disease”. Sapolsky will be critical of the idea that you can make this separation.

• 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..
• But most people talk like “libertarian dualists”, what he calls “mitigated free will”. 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. Again, many objected. Law passed restricting insanity defense in federal crimes.

• "Mitigated free will" homunculus view: (read at 588. Funny, but that is how many people think.) 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).

• Brain damage to rationality as a criterion
• Morse: critic of neuroscience in courtroom, but allows for ”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. (This view makes more sense than Sapolsky sees.)
• 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

• You might defend mitigated FW by distinguishing causation from 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.
• 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.

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

• 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”.)

• Like Eagleton in our podcast, Sapolsky is saying that all of these efforts to defend “mitigated free will” fails because both sides of these distinction are part of the same physical world. There is no humunculus.

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?

Some philosophers' arguments and thought experiments on moral responsibility

• Are you a moral responsibility skeptic? A couple of interesting philosophical arguments and thought experiments will help you decide:

• From Peter Strawson, summarized here in Waller, Against Responsibility:

• If one is to be truly responsible for how one acts, one must be truly responsible for how one is, morally speaking. To be truly responsible for how one is, one must have chosen to be the way one is. But one cannot really be said to choose (in a conscious, reasoned fashion) the way one is unless one already has some principles of choice (preferences, values, ideals etc.) in the light of which one chooses how to be. But then, to be truly responsible for one’s having those principles of choice, one must have chosen them, in a reasoned conscious fashion. But that requires that one have principles of choice. And thus the regress. (pg. 29, Waller)
• Strawson's argument suggests the "impossibility" of moral responsibility.

• Mele’s Intentional Self-Modification Argument

• Mele seems to accept the idea that in order to be responsible for how one acts, one must be responsible for how one is at the time of action. But he takes exception to Strawson’s claim that in order to be responsible for how one is, one must have chosen to be that way. He thinks there are cases of intentional self-modification that allow an agent to be responsible for what they do, without involving an infinite regress of choices. He makes his case by first developing the following thought experiment:
• The Case of Betty: Betty is a six-year-old girl who is afraid of the basement in her house. She knows that no harm has come to anyone, including herself, who has entered the basement. But she is still afraid. Nevertheless, she recognizes that her fear is “babyish” and takes steps to overcome come it. She starts to make periodic visits to the basement, staying slightly longer each time until she no longer feels afraid. After following this method for a few months, she loses her irrational fear.
• Mele's Intentional self-modification argument suggests that we can be held responsible for our actions because we have powers of self-modification.
• But! Now imagine Benji, also afraid of the basement. He doesn't try to conquer his fear or tries and fails. How would you know if Benji deserves to be blamed for his failure?
• Maybe Betty is a "chronic cognizer" and Benji is a "cognitive miser". Are these traits they for which they have "moral desert"? Some people are not persuaded by Mele's argument. How far can "self-modification" go to make up for doubts about moral responsibility?

Two Positions about punishment that might follow from your small group discussion

• 1. There is “homuncular grit” and it’s not biological. We all possess it in equal amounts and therefore we can hold everyone equally responsible for their conduct.

• Supports a retributive view: Moral Responsibility and Deserved Punishment. 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.

• Implications for CJ system: Punishment is about inflicting deserved pain proportional to the offense (retributive punishment goes with desert-based MR). The pain of prison may or may not be part of the punishment.

• 2. It’s biology all the way down. (Meaning, you and your development, and the adv/disad of privilege.) We all possess different amounts of “grit” and motivation. Unlike the humucular grit view, we are not all equally competent agents, even after excluding the mentally ill. We all have different biological traits that are relevant to determining our compliance with expectations.

• This position may better support an Accountability and Penalties View. Society must enforce standards (through laws and regulations), but this mostly involves penalties and interventions. Penalties are less about desert-based punishment than deterring rule breaking. Speeding tickets and the threat of loss of liberty are effective ways of encouraging compliance. Society is also entitled to self-protection. This needn't involve blaming people for their rule breaking, only holding them accountable. Because people may fail their responsibilities for a variety of traits and causes that are morally arbitrary to them (less impulse control, abusive childhood experiences, etc.), we should not focus on "desert" but on understanding, prevention, and self-protection.

• On non-retributive views, 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, repeat offenses), you might lose your liberty. (It may also follow from this view that we must treat you well in confinement.)

• Implications for CJ system: Non-retributive methods may include prison, but we ought to seek the least confining approach to deterring and rehabilitating. Prisons shouldn’t be unsafe and unhealthy places.