Agency and the Criminal Justice System

Agency for me, but not for thee

An agent is the locus of decision-making. If determinism is true, and there is no free will, then no person is “deciding” anything. Agency would be an illusion.  Some people, in an effort to be kind, forgiving, and understanding will point to environmental conditions or brain science to explain or excuse poor behavior. Sam Harris and the comedian Whitney Cummings do this, according to their own testimony. Cummings, if she encounters someone behaving badly and engaging in road rage, for instance, will tell herself a little story having to do with brain science.  “Oh, their amygdala is being 1hyperactivated and certain hormones are flooding the person’s bloodstream.” So, she “forgives” the person, or at least adopts a pseudo-understanding attitude to the person by completely dehumanizing them. The moral implications are diabolical. The strongest prohibitions against harm that exist are those against people. This is why many science-inspired perspectives of people are problematic. There simply is no humanity, and certainly no ascription of humanity, without agency. If someone does not believe in agency, then he does not believe in people. Sam Harris and countless others will continually alternate between calling human beings “apes” or “machines.” Harris tends toward the machine metaphor. Machines are rule-following devices and are deterministic. This attitude, which applies to himself also, leads Harris to the most ridiculous contradictions, where he “chooses” which perspective he will adopt, agential or non-agential, depending on context, in violation of his own philosophy.

It is usually not helpful nor enlightening to describe people as apes. If there really is no difference between people and apes, on what basis could anyone object to marrying one? Some scientists point out that it is very superficial of us to think of primates as the closest living creature to us. This tendency is motivated by the fact that of all other animals, they look the most like us. In fact, it is dogs who are the closest non-human animal to human beings in the ways that matter most. They have evolved to understand human facial expressions and feelings and examine our faces for emotional information in exactly the same way that humans do. Dogs are also the only other creature that understand pointing. No primate can. To do that, dogs need an excellent “theory of mind;” meaning an intuitive understanding of human intention, among other things; a feeling for the human interior. If someone hides something from a dog, and the dog knows this, it will examine a person’s eyes to see if he gives away the hiding place by glancing at it. That demonstrates tremendous subtlety and intuitive “feel” for what might be going on internally for us. Scientists tend to forget about dogs precisely because they are so ordinary to us.

Courts of law and the legal system in general only make sense on the premise that free will and agency exist. Courts of law, in criminal cases, must decide questions of fact, who did what to whom, for instance, but also try to determine intent. Someone who kills someone else accidentally is regarded as much less culpable than a cold-blooded murderer. In fact, murder as a crime includes intent in its definition. Commentators have observed that there is always a tension between courtroom proceedings and the testimony of psychiatrists and psychologists. These last two “expert” witnesses are almost always appealing to causes and not reasons.[1] Physical events have causes; only people have reasons. Psychologists implicitly regard people as objects to be explained. The theory of behaviorism was the most extreme effort by psychologists to dehumanize people by completely eliminating notions of mind. They attempted to find laws of machine-like input and output, stimulus and response, which was a miserable failure, because, of course, the response will change depending on what is going on in someone’s mind.

In the 1960s, there was a strong movement among judges and social 2commentators to explain and excuse violent criminal behavior. A theory developed among some that living in relatively impoverished conditions was “violence” being visited upon people. This metaphorical use of the word was then used to say that if poor people were literally actually violent then this was a perfectly reasonable and even excusable reaction to the metaphorical “violence” that they had been experiencing. The syllogism might look something like this: I don’t like my apartment or general surrounds. Therefore, I will violently assault, rape, or even kill someone who has nothing to do with my living conditions. In fact, I am most likely to assault someone who shares my living conditions. When violence and anti-social behavior is excused as an understandable reaction to life circumstances – in other words – when it becomes socially acceptable – then this behavior is encouraged. And in fact, there was a proliferation of violence in the 1960s culminating with the peak homicide rate in the early 1990s. It is hard to prove cause and effect in social science, but this seems likely. A comparison could be made with the notion of “free love.” When this idea became fashionable and socially acceptable large numbers of people did in fact start behaving in a promiscuous fashion, and no one disputes this instance.

There is a correlation between violent crime and poverty, though not between white collar crime and poverty, obviously. It can be observed that the sorts of qualities a person has that might be expected to lead to poor job prospects are likely be correlated with criminal behavior; things related to discipline, capacity for hard work, impulse control, a desire for easy money, and attitude towards education are likely to be connected. However, suggesting that all poor people are inherently criminal in outlook and behavior is a slander on poor people. The honest poor is a perfectly real and respectable category of people. And then there is the fact that some poor people are criminals who take a predatory attitude toward their neighbors, and some poor people are the entirely innocent victims of these predators. In fact, by far the most troubling victims of violent criminals are the honest, law-abiding poor who share their neighborhoods. It is particularly galling for those living in gang-infested areas that the social commentators who want to excuse criminal behavior, as not being the criminals’ fault, are usually safely out of harm’s way, some even living in gated communities, and do not have to live with the consequences of their arguments and policies. If the legal system as a whole adopts a lenient and “understanding” attitude to crimes against people and property, denying agency to bad actors, and if behaving badly is excused and even supported as part of the general cultural environment, then it seems hard to see how these things would not contribute to these pathological trends.

Sociology aspires to be a science. As such it will focus on causes, not reasons. Reasons are mind-dependent and related to agents. Causes are mindless physical processes that have nothing to do with agents. So, science tends towards dehumanization. It is necessary to step outside science and adopt a fully human perspective which uses scientific information if and when it seems useful. The upside of the scientific approach to the cynical is that it no longer renders agents responsible for their actions – it is a get-out-of-jail-free card. The downside is that it removes any possibility of changing one’s life for the better. Describing criminal behavior as the inevitable 3response to environmental conditions is dehumanizing and even anti-human. The criminal justice system cannot work or be remotely meaningful without attributing agency to people. It is necessary to remember that science is not proving that we have no agency. It is simply incapable of recognizing agency and so ignores it. Some anti-agency determinists like Sam Harris and Daniel Dennett admit that they do not officially believe in individual responsibility but suggest that we need the threat of criminal prosecution and prisons as a deterrent to bad behavior. Criminal responsibility does not exist, they think, but we should pretend it does because it has beneficial effects. This attitude is grossly immoral, since the inability to do otherwise is always a defense and thus to prosecute such people would be to persecute the innocent. Guilt only exists if agency exists. So, Harris is proposing that we scapegoat innocent people for reasons of expediency. Most damning of all, he assumes that we have a free choice about whether we will have prisons or not, whether we will prosecute people or not, when determinism says it is not up to Harris or anyone else to decide such things. There are no “decisions” per se without agency. If Harris is right, then everything is simply a “sequence of events” and human beings are functionally indistinguishable from their surrounding environments. What we do is the result of physical causes like other physical phenomena. The concept of “deterrence” is completely illegitimate from this point of view since it implies the existence of minds and reasons. So, unfortunately, for Harris, references to deterrence make no sense under his view. But the real nail in the coffin for Harris’ view is that we need not worry ourselves with the morality or immorality, the usefulness or non-usefulness of prisons and prosecution, since choice does not exist and whatever will be will be. Not only does fatalism absolve the criminal, it lets the intellectual off the hook also.

[1] Nassim Nicholas Taleb excludes psychology as an area of expertise in the same way that there are no expert astrologists, or predictors of the future.

19 thoughts on “Agency and the Criminal Justice System

  1. Whitney Cummings cannot forgive a motorist gripped by road rage, she can only observe that she is herself in the grip by a mood that she calls forgiveness, or perhaps forgivingness. As you say in your last paragraph, Harris doesn’t think, but only observes what he cannot help but think are thoughts coming into his head. As your epigram says, determinists always betray an unprincipled exception for themselves. When they get angry with me for my pig-headed refusal to see the force of their argument, they believe they have a reason to get angry.

    With that said, I quite often slip into a state of psychological detachment where I observe myself thinking and doing things that surprise me. Several episodes in my return to the Church were like that. I observed myself picking up books and walking through doors, all the while surprised to see myself doing this.

  2. If people have free will and agency, it follows they can and should be punished as if they had free will and agency.
    If people DON’T have free will and agency, it doesn’t matter in a cosmic sense. Society should therefore do what promotes its stability (although without agency, should becomes pretty tenuous). Treating and punishing people as if they had free will and agency pretty convincingly results in greater social stability and lower rates of crime. It would seem then that regardless of how much agency people have, we should treat them as if they had it.

    • Hi, Jehu: I address in the article why this position is untenable and immoral. It is logically nonsense since none of us have any choice about any of this. The “should” is not just tenuous – it is nonsensical.

    • If people don’t have free will and agency, society cannot do otherwise than it is going to do. The word “should” no longer makes sense, since ought implies can. Maybe it will go on making noises about “free will,” maybe it won’t. All we can do is wait and see.

  3. “Most damning of all, he assumes that we have a free choice about whether we will have prisons or not, whether we will prosecute people or not, when determinism says it is not up to Harris or anyone else to decide such things. ”

    Perhaps he believes that, while his position is predetermined like everyone else’s, it is unique in that it also happens to be true. He might say “yes, I’m just another cog in the great machine, but I’m a cog which helps the machine rather than hindering it.” He’s just a mechanical cause, but a mechanical cause which just happens to bring greater aggregate happiness (or whatever), like a $100 bill that someone just happens to stumble across.

    I have no clue whether he’s actually given it that much thought but this would be the charitable interpretation imo. It would also serve as a general means for determinists to justify “personal beliefs.”

    “If Harris is right, then everything is simply a “sequence of events” and human beings are functionally indistinguishable from their surrounding environments. ”

    I guess to him, consciousness is a convenient illusion, but for what end the illusion exists I have no idea. Would a “philosophical zombie” without that illusion be at an evolutionary disadvantage? Obviously not, since it would *act* exactly the same. From a materialist perspective, there’s no reason for consciousness to exist if it doesn’t have a tangible impact. This is where I think Harris’ worldview breaks down, badly.

    • Without agency, we are in no position to assess truth or falsity. You are forced by mechanical means to whatever you think, not by reasons. If he happens to think it true, that is of no significance whatsoever. If determinism is true, which it could logically be, then further discussion is otiose. There is no person/agent discussing anything; just a stalk of grass blowing in the wind.

      He has written a whole book on the topic of free will and doesn’t seem to care that his position is logically incoherent. I have listened to many podcasts where he discusses the topic and am very familiar with his position – one with Daniel Dennett who was no better.

      I can’t stand the zombie argument. It doesn’t work on me since I reject its premise – namely that we could act just the way we do without consciousness. I”d love the zombie theorist to prove that we could!

      • When determinists try to carve out an exception for themselves to claim that their views are “correct,” they are of course saying that their neurons fired “correctly,” that the chemicals in their brains interacted “correctly,” and so forth. So then, my neurons fired “incorrectly,” I suppose. But, in their mechanistic/materialistic universe, what meaning could “correct” possibly have? In their universe, I unavoidably have the views that I have, and they unavoidably have the views they have. So what can any discussion with them possibly mean? One inevitability pitted against another inevitability.

      • “He has written a whole book on the topic of free will and doesn’t seem to care that his position is logically incoherent.”

        That’s really saddening honestly, even for someone who’s views I disagree with. My best professors always stressed assuming the most charitable interpretation when something you read doesn’t add up at first. But I guess that assumes a general culture of intellectual rigor, which we might not have.

        “I can’t stand the zombie argument. It doesn’t work on me since I reject its premise – namely that we could act just the way we do without consciousness. I’d love the zombie theorist to prove that we could!”

        As someone who believes that consciousness is in fact ‘real,’ and has actual consequences, I 100% agree with you. But from a determinist perspective, where consciousness can’t be anything more than an illusion, then the “zombie” not only could, but would *need* to act exactly the same! After all, adding a mere illusion of free will to the zombie couldn’t actually cause the physical neurons and synapses to fire differently. So, why add the illusion at all?

      • The principle of charity is a good one. But I have listened to many hours of podcasts by Sam Harris and I am very clear what his position is on this topic. He repeats it all the time. Such people have to put up with contradictions because their metaphysical commitments (materialism) force them to do so. They don’t get called on it more often because there are plenty of other famous people in the same boat, like Daniel Dennett who are stuck in the same situation. They, in fact, are dominant, and I am a voice in the wilderness, even though in this instance, I am right and they are wrong – unless you are going to countenance the idea of a true contradiction and just give up being even minimally rational and coherent.

        I agree that the determinist is also pretty committed to the zombie theory. Consciousness itself cannot be causally effective for them.

      • “But, in their mechanistic/materialistic universe, what meaning could “correct” possibly have? In their universe, I unavoidably have the views that I have, and they unavoidably have the views they have. So what can any discussion with them possibly mean?”

        Well, to play Devil’s Advocate, even a mechanistic and unavoidable universe could still contain the bare concept of “truth.” A science textbook has absolutely no agency or control over the information it spouts forth, but that doesn’t mean the information can’t be correct. Even if all the inputs to the science textbook were themselves machines, the words themselves would still tell facts or lies.

        Harris’ universe is teleologically unsound in this regard as he can offer no reason why “truth” is a good thing or should be pursued by us mere machines. Maybe this is nitpicking, but I would say that fault is due to his materialism, not his determinism. The former is not implied by the latter, e.g. Calvinism.

      • Truth could exist but we would have no ability to assess whether something was true or not. All our beliefs would be a matter of mechanistic compulsion, not the products of genuine ratiocination. Determinism could be true, but it cannot be argued for because arguing for it assumes that persuasion on the basis of reasons not causes is possible. I have two articles on Free Will which I will link to.

        https://orthosphere.wordpress.com/2016/03/19/the-illogicality-of-determinism/

        https://voegelinview.com/the-illogicality-of-determinism-further-considerations/

  4. With respect to our best animal friends, our intestines are much closer, physiologically and anatomically to the canine than to the apes. That is why, like our dogs, we are predominantly carniverous, unlike the mainly vegan apes. I have come to think this has nothing to do with the dubious ‘phenomenon’ of evolution-God just created us this way. Man and his dog are made for each other. Great essay.

  5. Pingback: Agency and the Criminal Justice System | Reaction Times

  6. Dennett is not “anti-agency”; eg there is a whole chapter in his book Freedom Evolves called “The Evolution of Moral Agency”. He is anti-agency-as-a-magical-nonphysical-noncausal-whatever.

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