Free-Will Foundational to Criminal Law

Discussion of the nature of Ultimate Reality and the path to Enlightenment.
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Animus
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Free-Will Foundational to Criminal Law

Post by Animus »

It is often said in conversations with friends that the criminal law (often in the USA or Canada) does not take a position in metaphysical libertarianism. I intend to show that metaphysical libertarianism, that is "free-will", is often an explicit doctrine of both the Canadian and US Criminal Justice Systems.

(Canadian Criminal Law)
R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687:

The treatment of criminal offenders as rational, autonomous and choosing agents is a fundamental organizing principle of our criminal law. Its importance is reflected not only in the requirement that an act must be voluntary, but also in the condition that a wrongful act must be intentional to ground a conviction. . . . Like voluntariness, the requirement of a guilty mind is rooted in respect for individual autonomy and free will and acknowledges the importance of those values to a free and democratic society. Criminal liability also depends on the capacity to choose — the ability to reason right from wrong. [Emphasis added; citation omitted; para. 45.]

The implicit assumption of metaphysical libertarianism in the Canadian Criminal Code, section 232(3)(b) ("What is provocation?"):

"whether the accused was deprived of the power of self-control by the provocation that he alleges he received,"

(R. v. Bouchard-Lebrun, 2011 SCC 58)
Sopinka J. wrote a strong dissent in Daviault. In his view, there was no reason to abandon the Leary rule, since the application of that rule did not relieve the Crown of the responsibility of proving “the existence of a mens rea or any of the other elements of the offence of sexual assault which are required by the principles of fundamental justice” (p. 115). He felt that the validity of the Leary rule was also reinforced by sound policy considerations, including society’s right “to punish those who of their own free will render themselves so intoxicated as to pose a threat to other members of the community” (p. 114).

This account of the conceptual foundations for human agency ties the Court very
closely to a tradition in criminal law theory that places free choice at the centre of
criminal culpability. The Perka decision drew consciously from the thinking of
George Fletcher, who argues that excuses should be founded on such a conception of
moral involuntariness.22 Fletcher’s explanation of excuses in criminal law makes free
choice the central test for criminal liability.23 Fletcher is himself building upon a
theoretical tradition that Dan Kahan and Martha Nussbaum have called
“voluntarism”.
(Emotions and the Veil of Voluntarism: The Loss of Judgment in Canadian Criminal Defences by J. Berger)

(In United States Criminal Law)
“[t]he whole presupposition of the criminal law is
that most people,
most of the time, have free will within broad limits.”
(Smith v. Armontrout, 865 F.2d 1502, 1506 (8th Cir. 1988).

“belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”
(Morissette v. United States, 342 U.S. 246, 250 (1952))

“the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems.”
(Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937))

“a deterministic view of human conduct” [is] “inconsistent with the underlying precepts
of our criminal justice system.”
(United States v. Grayson, 438 U.S. 41, 52 (1978))

A substantial body of scholarship has concerned itself with the importance of free will to the theory of the criminal law. Even given the importance of the subject, the quantity of attention is surprising because of the lack of fundamental disagreement among scholars, who overwhelmingly endorse the criminal law’s assumption of free will. (Only an ambitious few have been willing to argue that the law’s rejection of determinism is in any way problematic.) However, despite such intense academic interest, scholars have paid little attention to the empirical question of how courts and legislatures have actually handled the conflict between free will and determinism when it arises in the law, and none have made that practical concern the subject of focused inquiry.
Perhaps many have assumed, from the famous expressions of judicial enthusiasm for free will, that the system has handled the matter straightforwardly. It has not.
(A FOOLISH CONSISTENCY: KEEPING DETERMINISM OUT OF THE CRIMINAL LAW. MICHELE COTTON, 2005)

Professor Alan Stone has described the insanity defense as “the exception that ‘proves’ the rule of free will.”
(Blackstone observed that lunatics suffer from a “deficiency in will.” WILLIAM
BLACKSTONE, 4 COMMENTARIES *24 (1898 )

Judge Leventhal observes that “[t]he concept of lack of ‘free will’ is both the root of origin of the insanity defense and the line of its growth.”
(United States v. Brawner, 471 F.2d 969, 986 (D.C. Cir. 1972)

Accordingly, insanity
defense tests have often explicitly incorporated

concern for the exercise of free will in their

formulations.
Nonetheless, the insanity defense has been a

particularly active
site of deterministic invasions.
A pointed example is the infamous Durham test,

adopted in 1954 by the D.C.
Circuit Court of Appeals under the leadership of

Judge Bazelon. Under the Durham rule, “an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.” Instead of talking about a mental disease that somehow interferes with the defendant’s capacity to exercise free will, as most insanity defense tests did, Durham proposed that a mental disease could actually produce the defendant’s act. The Durham rule did not even presume that there was a capacity for free will that mental disease might interfere with; it only presumed that mental disease might be a determinant of criminal behavior.
(A FOOLISH CONSISTENCY: KEEPING DETERMINISM OUT OF THE CRIMINAL LAW. MICHELE COTTON, 2005)

Chief Justice Burger, Durham “assumed, without discussion, that mental disease can ‘produce’ or cause criminal acts.” "operated to reject the historic basis of criminal responsibility and to substitute something resembling the ‘determinist’ thesis that man’s conduct is simply a manifestation of irresistible psychological forces . . . .”
(Blocker v . United States, 288 F.2d 853, 862, 867-68 (D.C. Cir. 1 96 1 ) (Burger, J., concurring)

“all reference to man’s capacity to make choices in regulating conduct or any connection between the power to make choices and criminal responsibility was carefully eliminated” (Bazelon, J., Bazel on, J., The Awesome Decision, SATURDAY EVENING POST, Jan. 23, 1960, at 56).

The problem, from the law’s perspective, was that most offenders could claim they suffered from psychopathy and use it as the basis for an insanity defense as a result of the APA classification. The risk is evidenced by a later death penalty case before the Supreme Court in which a psychiatrist testified, to Judge Burger’s dismay, “that 91% ‘of your criminal element’ would test as sociopathic or antisocial.”
(A FOOLISH CONSISTENCY: KEEPING DETERMINISM OUT OF THE CRIMINAL LAW. MICHELE COTTON, 2005)
>> Eddings v. Oklahoma, 455 U.S. 104 (1981)

Judge Burger added
“characterization of [the defendant] as a ‘sociopath’ may connote little more than that he is egocentric, concerned only with his own desires and unremorseful, has a propensity for criminal conduct, and is unlikely to respond well to conventional psychiatric treatment . . . .”
(Eddings, 455 U.S. at 126 n.8)

The law assumes that criminal behavior reflects a viciousness and callousness that demands condemnation and punishment, not understanding and treatment. As one court observed, “Trite as it may sound to some, the law must distinguish between mental disease and character deformity.”
(A FOOLISH CONSISTENCY: KEEPING DETERMINISM OUT OF THE CRIMINAL LAW. MICHELE COTTON, 2005)
(State v . Sikora, 210 A.2d 193, 202 (N.J. 19 6 5 ))

In response to psychiatry’s reclassification of psychopathy, the D.C. Circuit Court of Appeals did something quite remarkable. It adopted a legal definition of mental disease, as “any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.”
(A FOOLISH CONSISTENCY: KEEPING DETERMINISM OUT OF THE CRIMINAL LAW. MICHELE COTTON, 2005
>> McDonald v. U.S., 312 F.2d 847, 851 (D.C. Cir. 1962)

The acknowledged purpose of this move was to prevent individuals with psychopathy from having access to the insanity defense.
(A FOOLISH CONSISTENCY: KEEPING DETERMINISM OUT OF THE CRIMINAL LAW. MICHELE COTTON, 2005
>> United States v . Brawner, 471 F.2d 969, 993 -94 (D.C. Cir. 1972) (“an expert’s classification that reflects only a conception defining all criminality as reflective of mental illness”)

Read more at these links:

Perka v. The Queen, [1984] 2 S.C.R. 232
http://scc.lexum.org/en/1984/1984scr2-2 ... 2-232.html

R. v. Bouchard-Lebrun, 2011 SCC 58
http://scc.lexum.org/en/2011/2011scc58/2011scc58.html

Criminal Code (R.S.C., 1985, c. C-46)
http://laws-lois.justice.gc.ca/eng/acts ... e-108.html
Last edited by Animus on Tue Jan 24, 2012 10:55 am, edited 1 time in total.
Animus
Posts: 1351
Joined: Thu Nov 27, 2008 4:31 pm

Re: Free-Will Foundational to Criminal Law

Post by Animus »

Emotions and the Veil of Voluntarism:The Loss of Judgment in Canadian Criminal Defences by Benjamin L. Berger
http://lawjournal.mcgill.ca/documents/1 ... Berger.pdf

The Relevance of Fetal Alcohol Spectrum Disorder in Canadian Criminal Law From Investigation to Sentencing Kent Roach* and Andrea Bailey**
http://www.faseout.ca/eng/pdf/FASD_Pape ... Bailey.pdf

OVERCOMING THE MYTH OF FREE WILL IN CRIMINAL LAW: THE TRUE IMPACT OF THE GENETIC REVOLUTION Matthew Jones
http://scholarship.law.duke.edu/cgi/vie ... ei-redir=1
Animus
Posts: 1351
Joined: Thu Nov 27, 2008 4:31 pm

Re: Free-Will Foundational to Criminal Law

Post by Animus »

United States v. Grayson - 438 U.S. 41 (1978)
http://supreme.justia.com/cases/federal ... /case.html

A FOOLISH CONSISTENCY: KEEPING DETERMINISM OUT OF THE CRIMINAL LAW. MICHELE COTTON, 2005
http://www.bu.edu/law/central/jd/organi ... rticle.pdf
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Blair
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Re: Free-Will Foundational to Criminal Law

Post by Blair »

Animus wrote: that is "free-will", is often an explicit doctrine of both the Canadian and US Criminal Justice Systems.
It's the foundation of the justice system in every country. It's the foundation of every single aspect of human history, society and culture.

If judges are caused to believe in free-will, how can they see anything in the context of causality?
Glostik91
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Location: Iowa

Re: Free-Will Foundational to Criminal Law

Post by Glostik91 »

thanks for the read animus.

I never thought about how the government interprets 'free will' and determinism in the court of law. I'm not surprised though. In a society that requires the leaders to appeal to the ignorant masses, 'free will' is a given.
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