The concept of fault is something I really struggled with in law school. Recently I saw an episode of Law and Order that perfectly highlighted my issue with the concept and really with our whole criminal justice system in general. In it, a straight-laced, previously law-abiding and overachieving high school principal developed a brain tumor that inhibited the impulse control centers in the frontal lobe of her brain. This led her to try to screw anything that moved, including the children she worked with. They arrested her for sexually assaulting a minor and she successfully used the “tumor made me do it” defense.
In the episode they showed CAT scans of her brain seeing pictures of children after the tumor was removed with a similar readout for a certified child molester for comparison. All the good people at the DA’s office came to the conclusion that because her brain now showed the patterns of a normal person, it wasn’t her abnormal brain that caused the crime but the abnormal tumor affecting her normal brain, and therefore she wasn’t at fault. Okay, I agree with the result, but am I the only one who finds it insane that we can forgive one brain malfunction but not another?
If one physical abnormality of the brain, e.g. a tumor, can relieve someone of culpability for a crime, then why shouldn’t another physical abnormality of the brain? People don’t molest children because they’re evil demon souls that need to be sent straight to hell. They molest children because they were born with abnormal brain structure/chemistry that makes them desire children sexually and affords them insufficient impulse control to avoid acting on that. Don’t get me wrong. Molesting children is horrible. I just don’t see how one physical pathology makes someone any more or less guilty than another.
Of course the punishment-minded moral zealots of society proper have a response: it’s a matter of free will. With child molesters they have free will to choose whether or not to selfishly satisfy their dark desires and choose to do so. With the principal in Law and Order, the tumor removed her free will. So I guess the brain tissues we’re born with are a matter of personal responsibility, rich with free will juices and other magic, but tumors, being a creation of the demon of cancer or some shit (who I guess must be actively invited into your brain?), are not?
The thing is, if a physical thing can remove free will, is free will not the product of something physical inside of us? If being drugged can remove free will, is free will, or rather the organ creating its illusion, not physical? And if free will is physical, that is, if it is the product of cause and effect between conglomerations of matter, how can it be free?
Free will, by definition, requires some sort of supernatural element—something beyond the energy and matter, space and time and physical laws that make up our Universe. Purely physical things are completely at the mercy of the rest of the physical world. A rock cannot choose to go right or left. It is acted upon by the rest of the Universe and flows with it, like dominoes tumbling in a row, one after the other. If we are purely physical creatures, there can be no such thing as free will. Certainly a human is more, or at least different from a rock. But just because it is more complex—so complex in fact that we have difficulty ferreting out the causes behind it—does not mean that it is not still a totally physical thing, completely at the mercy of the physical Universe.
Some articles and friends I’ve discussed this issue with have mentioned that the seemingly random behavior of atoms at the quantum level could provide the basis for free will. This is intriguing and gives me more pause than most of the “just because” answers you typically get, but it’s still unsatisfying. Never mind that I doubt the existence of randomness and consider its illusion the inability to grasp the complexity of a situation (i.e. there is no such thing as randomness, just unpredictability by humans), if subatomic randomness were inherent to our structure, how is true randomness any more free from the perspective of personal responsibility than total order and absolute cause and effect? If one time out of one trillion I would kill a man in a given situation, is my poor luck in hitting one of those rare occasions something more deserving punishment than my non-murderous existence? What if one in two? One in five? The point is it doesn’t matter. Chance is by definition not a matter of free will. The idea that we are affected by the world in ways we cannot control but yet responsible for our response to all those effects is absurd.
Free will is, in actuality, of course, a concept rooted in religious superstition and used by our justice system as an excuse for the punishments it doles out to people because they “deserve it.” Murder, rape, and all the rest. Horrible crimes by perfectly ordinary people. Deep down I think most people realize this but choose to ignore it. And why? Guilt. Guilt for the cruelty we visit upon the guilty. Because, as a practical matter, our justice system is horribly inhumane without it. Left without fault and desert-based notions of crime and punishment (what’s known as retributivist justice), we are left without punishment as a justification in itself. Without harming people for the sake of harming them, because they deserve it, we can only imprison or punish people because, as a practical matter, it’s necessary to protect society. That, my friends, would make a huge portion of our “justice” system monstrous. More to the point, it would make us monsters for tolerating it.
Don’t get me wrong. I’m not saying we should just abandon our laws because all crimes are understandable given the perpetrator’s physical makeup and life experiences, something over which, without free will, they had no control. What I’m saying is we should revisit the tenets of our retributivist justice system which focuses on revisiting the harm inflicted by the defendant back onto the defendant because we think somehow they had a meaningful choice and decided to do the evil thing and pollute their souls or whatever. Cruelty is never an appropriate response to cruelty. Cruelty is never an appropriate response to anything. Instead of focusing on the results of criminal pathology, why not focus on addressing the cause of the problem? Perhaps there is no way to treat child molesters and therefore they really do need to be locked up for life in order to protect our children, the potential harm to which easily justifies the harm visited upon the defendant by imprisonment. Fine. But shouldn’t we work to minimize the harm that nature has dealt us? Punishment for punishment’s sake makes no sense other than being a half-assed basis for our justice system. Justice is not vengeance. Or at least it shouldn’t be. In our current society, though, I have a hard time telling the difference. In the end, there is no justification for vengeance other than that it satisfies the rage in our monkey minds.