Can Our Criminal Justice System Survive In a Deterministic Universe?

The robust controversy concerning free will and determinism remains a prominent feature in psychology and western philosophy.  What has emerged in recent years, however, is the growing suspicion that free will may be an illusion and that we are unaware of the deterministic processes that operate within us (Wegner, 2002). The reluctance to accept this view is rooted in our preference to perceive ourselves as agentic beings and in the fact that an ultimately deterministic universe would gradually erode our sense of personal and moral responsibility. Indeed, this poses a threat to the way in which we govern society and in particular, our criminal justice system. As it stands, this is a system that pre-supposes the freedom of will, however, it has not and does not relinquish faith in causal determinism.  It seems that the criminal justice system has adjusted accordingly in introducing deterministic defences, ranging from ‘not guilty by reason of insanity’ (NGRI), to the more recent ‘extreme emotional disturbance’ (EED) defence.  In addition, determinism does not and cannot undermine individuals’ capacity for rationality, with rationality being inter-related with the concept of free will.  Furthermore, the rapidly growing field of cognitive neuroscience does not pose such a major threat to the concept of free will, particularly in a court of law.  It appears, therefore, that the criminal justice system is built on compatibility and can maintain this compatibility in what is officially becoming a deterministic universe.  Having considered that this is an assignment for an undergraduate psychology course as opposed to a course in civil law, however, a justification that this psychological debate be discussed from a legal perspective is essential. 

 In their report on the role of psychology in the criminal justice system, the American Psychological Association (1978) highlights the ways in which psychologists are involved in virtually every facet.  For example, when a person is arrested, it may be by a police officer who was screened by a psychologist before being hired and trained by other psychologists in ways of handling such dangerous situations as an arrest.  The defendant may be then psychologically evaluated in determining whether he or she is capable to stand before trial before a jury that other psychologists are in the process of selecting.  The defendant may also be evaluated by a psychologist to establish whether he or she was insane at the time the crime was committed, and consequently may receive psychological and/or psychiatric treatment.  Furthermore, as law shows a long-standing concern for mental states, and given it’s preference for ‘hard’ evidence, it is of no surprise that cognitive neuroscience has recently gained tremendous legal popularity (Greene & Cohen, 2004).  The American psychological association (2004) asserts that there is a particular urgency to address ethical problems in dealing with the criminal justice system, since it has ‘such a profound impact on the fundamental liberties of the people within its grasp’.  As one of their 10 recommendations regarding the ethical practice of psychology in this area, the APA (1978) maintains that psychologists who work in the criminal justice system, as elsewhere, have an ethical obligation to educate themselves in the concepts and operations of the system in which they work: ‘A prerequisite to the development of competence in any setting is a thorough knowledge of the system in which the psychologist in operating’.  Having established that psychology is an integral component of the criminal justice system, an insight of a controversial psychological issue (namely that of free will) from a legal perspective, would seem justified.

Morse (2007) distinguishes between an internal and external critique in considering the relation of any variable to an institution, practice or set of doctrines.  In the case of free will, psychology and the law, an external argument, for example, uses free will to demonstrate that the concept of criminal responsibility is incoherent or unjustifiable and thus it should be abandoned (Morse, 2007).  An internal critique, on the other hand, accepts the coherence or the practice or doctrine and uses the other variable to explain or reform that practice or doctrine.  This article, therefore, makes an internal argument in that it accepts the coherence of criminal responsibility and claims that the criminal justice system can retain its foundation of compatibilism. Morse (2007) also suggests that compatibilism, provides a secure foundation for current practice and renders it immune to the potentially devastating challenge of the external critique.

As aforementioned, the new emphasis on ‘the illusion of conscious will’ (Wegner, 2002) has brought with it an abundance of theories and research concerning both biological and environmental determinism which may have implications on how we function as human beings and the way in which we govern society.  One recently proposed theory, for example, is that of Bargh and Chartrand (1999, as cited in Smith, 2006) who explains our emotional responses, thoughts and behaviours as being caused and determined by environmental triggers.  From the perspective of these theorists (1999), we automatically respond to external features of the environment in an environment perception based behaviour sequence with no role played by conscious choice in producing the behaviour.  If society were to abide by such deterministic theories, it would gradually erode our sense of moral responsibility.  Smith (2006) illustrates this point by providing the apt example of road rage.  According to Bargh & Chartrand (1999), we would be determined to become enraged by other drivers, and we would not be responsible for our actions.  Furthermore, if exposure to the driver lead us to physically assault, or even kill him or her, the determinism of Bargh & Chartrand’s (1999) theory would imply that the harmed or killed driver is to blame-not us.  Based on such theories, it appears that environmental determinism would pose a threat to our judicial system, which has always involved the presupposition of the freedom of will.

 Norrie (1983) thus asserts that unless it can be shown that determinism is compatible with free will, the entire rationale of the criminal law as a form of social control stands exposed to criticism.  But the criminal justice system does in fact represent a form of compatibility.  Although the presupposition of free will is a functional requirement of this trade, the law has in fact acknowledged causal determination, including environmental determinism, for decades.  Being judged to have lost control that is perceived as a major feature of normality (‘being of sound mind’) either temporarily or permanently, is a legally acceptable defence in cases of criminal offences (Gross, 2009).  This was initiated by The McNaughton Rules (named after Daniel McNaughton 1843, who, having suffered delusions for years, shot and killed Edward Drummond, private secretary to the then Prime minister) which produced the familiar verdict ‘Not guilty by reason of insanity’.  This was largely replaced, however, by the defence of diminished responsibility (for murder) as the McNaughton rules were considered to present far too narrow a concept of insanity (Gross, 2009).  Since this was introduced in 1957, the ‘deterministic’ defences in the criminal justice system have evolved considerably, to include the ‘heat of passion’ defence (namely, provocation) and the extreme emotional disturbance defence, which allows the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less blameworthy for having committed them.  It is worth noting that the extreme emotional disturbance defence was formulated by the Model Penal Code in 1980, in response to some problems that were being perceived with both provocation and diminished responsibility.  This is significant as it shows that even though the judicial system has always assumed free will, it does not relinquish faith in causal determinism and is adjusting accordingly. 

It is worth elaborating on the defence of extreme emotional disturbance (EED), as it is a prime example of how the criminal justice system is adapting in a deterministic universe.  Galperin, Kirschner, and Litwack (2004) analyzed cases of all defendants pleading the partial, mitigating defense of EED to charges of intentional murder or attemped intentional murder in New York County over a 10-year period (1988-1997).  The cases were analyzed to determine what factors distinguished the cases that resulted in a verdict or accepted plea of manslaughter or attempted manslaughter from those cases in which the defendant was found guilty, or ultimately pleaded guilty to, the ultimate charge of murder or attempted murder.  The authors found that jurors, judges, and prosecutors were much more likely to accept a defence of EED when the defendant’s homicidal behaviour was motivated significantly by an understandable fear that he or a loved one would be physically harmed by the victim than when the defendant acted out of anger without fear of physical harm (Galperin et al., 2004).  Similarly, Finkel (1995, as cited in Galperin et al., 2004) found that when mock jurors were confronted with a wide array of scenarios related to the defence of EED or both, jurors were more likely to impose lighter sentences on defendants who killed because of fear, rather than anger.  It is evident that an EED claim was not accepted simply due to the defendant acting under strong emotions (such as anger), rather the reasonableness of the emotions were evaluated according to the circumstances (Kirschner et al., 2004).  These findings are reassuring in that they defy the threat that determinism will exonerate all wrong-doers in society.  In reference to Bargh and Chartrand’s (1999, as cited in Smith)  theory of environmental determinism previously mentioned, the evolution of the EED defence is again somewhat of a reassurance.  As pointed out by Smith (2006) , it was feared that such theories of environmental determinism, which claim rage as being determined by the environment, would exonerate offending behaviour.  Again, these data suggests that juries would evaluate the reasonableness of the emotions according to the circumstances.

Morse (2007) on the other hand, admits that there is a problem of free will, but it is not present in forensic psychology as the law’s general criteria for responsibility or excuse does not refer to free will or its absence. The emphasis is placed, rather, on a person’s capability of exercising a general capacity of rationality and a lack of that capacity being the primary excusing condition.  Despite the prevalent belief amongst practising lawyers and forensic psychologists that lack of free will is what justifies application of mental health laws generally and in specific cases, Morse (2007) insists that they are wrong, that lack of free will is not a mental health law criterion.  A ‘hard’ determinist’s interpretation in relation to a mentally ill offender would be that the offending behaviour was caused by the mental disorder.  However, Morse (2007) maintains that, in the legal realm, the causal criterion does not imply that the offending behaviour is simply a mechanical product of the mental disorder.  Essentially, it means that the mental disorder undermined the agent’s capacity for rationality in that particular context or, much less frequently, that it placed the agent in a perceived hard choice situation. Although Morse (2007) emphasises the ‘non-problem of free will’ in the courts and in forensic psychology, he is an obvious advocate of compatibilism, maintaining that our positive doctrines of responsibility are fully consistent with determinism. For example, it is indisputable that human beings have different capacities for rationality in both general and specific situations.  This is precisely why a small child would not be condemned in the same sense as an adult if they committed the same crime.  The argument continues is stating that even if determinism is true, differences in rational capacity and its effects are real.  Morse (2007) contends that all forensic psychologists should avoid all mention of free will in their reports, testimony and scholarship as it is the capacity for rationality that is the general responsibility criterion and free will ‘never clarify any legal issue or help resolve any legal case’ (pp. 220).  However, it appears that the link between rationality and free will was noted by Searle (2001, as cited in Baumeister, 2008) who stated that theories of rationality almost inevitably presuppose some degree of free will.  This point is not intended to contradict Morse’s argument of the ‘non-problem’ of free will in forensic psychology. Rather, it lends weight to the argument of compatibility.  If rationality and determinism are so compatible in the criminal justice system, free will and determinism must also be compatible to some degree.

The fear that psychology’s somewhat new emphasis on biological determinism may threaten our criminal justice system is voiced by Pinker (2008) who maintains that advances in biology would seem to admit more and more people into blamelessness.  If psychology as a science continues in its claim that there is no ghost in the machine, than something in a criminal’s hardware must set him apart from the majority of people, those who would not kill or hurt in the same circumstances (Pinker, 2008). This is reflected in the occasional tendency of cognitive neuroscientists being approached by criminal defence lawyers, hoping that an unruly pixel on a brain scan might exonerate their client.  If this trend continues, biological determinism may excuse murders from criminal punishment, just as we excuse the insane and small children. This fear is reiterated by Cashmore (2010), who maintains that it will become increasingly difficult to entertain the fallacy of free will, now that we have made a significant advance in our understanding of the molecular basis of human behaviour, and Greene and Cohen (2004), who warn that our emerging understanding of the physical causes of human (mis) behaviour will have a transformative effect on the law.

             Indeed, it is predicted that the criminal justice system will become more and more susceptible to the onslaught of biological determinism.  Greene and Cohen (2004) maintain however, that neuroscience changes nothing.  This leads back to Morse’s (2007) point that the law assumes people have a general capacity for rational choice.  Another paper of Stephen Morse (2004) ‘New neuroscience, old problems’ argues that the law does not care if people have ‘free will’ in any deep metaphysical sense.  It is based on an assumption that people in general are minimally rational.  As long as this appears to be the case, it can continue in regarding people as free (compatibilism) while holding ordinary people responsible for their offending behaviours and making exceptions for those who fail to comply with the requirements of general rationality.  Thus the revelations of Libet’s (as cited in Gross, 2009) and others experiments that elucidates the ‘when’. ‘where’ and ‘how’ of the mechanisms that govern human behaviour will not change the law’s approach to human behaviour unless it shows that the offender in question failed to meet the law’s very minimal requirements for rationality. 

Cashmore (2010) maintains that as the concept of free will is increasingly seen as an illusion, the fallacy of a basic premise of the criminal justice system will become more apparent.  The author proposes that now is an opportune time for society to re-evaluate our thinking concerning the policies of the criminal justice system. Yet, as discussed, it seems that the policies of the criminal justice system have been and are being re-evaluated in order to allow for deterministic defences, while maintaining a pre-supposition of the freedom of will.  In other words, the criminal justice system epitomises compatibilism.  Philosophically and psychologically speaking, the criminal justice system is somewhat microcosmic of the universe.  Both are vast, complex systems revolving around the behaviours, emotions, relations and general lives of individuals.  The fact that the criminal justice system has been thus far successful in adapting to determinism lends weight to the argument that free will is coherent in a deterministic world.








American Psychological Association (1978).  Report of the Task Force on the Role of Psychology in the Criminal Justice System. American Psychologist, 1099-1113

Baumeister, R.F. (2008).  Free Will, Consciousness, and Cultural Animals.  In Baer, J., Kaufman, J.C. & Baumeister R.F. (Eds) Are We Free? Psychology and Free Will (pp. 65-84) New York: Oxford University Press.

Cashmore, A. R., (2010) The Lucretian swerve: The biological basis of human behaviour and the criminal justice system. Proceedings of the National Academy of Sciences of the United States of America.107(10) 4499-4514.

Galperin, G.J., Kirschner, S.M. & Litwack, T.R. (2004) The Defence of Extreme Emotional Disturbance: A Qualitative Analysis of Cases in New York County. Psychology, Public Policy, and Law, 10(1/2), 102-133

Greene, J. & Cohen, J. (2004). For the law, neuroscience changes nothing and everything. One contribution of 16 to a Theme Issue ‘Law and the brain’. Philosophical transactions. Biological sciences. 359(1451) 1775-1784.

Gross, R. (2009). Themes, Issues and Debates in Psychology. London: Hodder & Stoughton.

Morse, S.J. (2004). New neuroscience, old problems.  In Neuroscience and the law: brain, mind, and the scales of justice (ed. B. Garland), pp. 157-198.  New York: Dana Press.

Morse, S.J. (2007) The Non-Problem of Free Will in Forensic Psychiatry and Psychology.  Behavioural Sciences & the Law (25) 203-220.

Norrie (1983) Hein Online: Law Journal Library. Freewill, Determinism and Criminal Justice.  Retrieved March 24th, 2010 from

Pinker, S. (2008) The Fear Of Determinism.  In Baer, J., Kaufman, J.C. & Baumeister R.F. (Eds) Are We Free? Psychology and Free Will (pp. 311-324) New York: Oxford University Press.

Smith, A.F (2006) Automaticity: The Free Will Determinism Debate Continued.  In Slife, B. (Eds) Taking Sides: Clashing Views in Psychological Issues.  Iowa, USA: McGraw Hill Contemporary Learning Series.

Wegner, D. (2002). The Illusion of Conscious Will. Cambridge, Mass.: MIT Press.


~ by mireng on March 31, 2010.

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