Back to Basics II--Free Will and the Law

Whatever the metaphysical status of free will, it has indisputably been the case that questions about free will have been taken seriously by western canons of law.  The English case of M'Naghten (variously spelled) in the mid-19th century solidified the traditional emphasis on mens rea (the guilty mind as sole determination of guilt) in terms of case precedent.  The ultimate influence of that case was on the axiological nature of intent (and in FW literature, the chief heirs to this are the quality of will/psychologically structural  views).  In the early 20th century many case precedents involving "irresistible impulse" (think Darrow's defense of Leopold and Loeb) began to introduce specific free will concerns that had at least implicit incompatibilist grounds.  Those latter concerns, along with M'Naghten, were ensconced in the American Law Institute's (ALI) comprehensive recommendations about statutory law (~1960) with respect to claims about exculpation from insanity, which were quickly and widely adopted in federal and many state jurisdictions, and each of which were usually asserted as necessary conditions for being held responsible.  M'Naghten was enshrined in one question to be put to judges or juries:  (1) Did the accused (who is already determined to have committed the act) have the substantial capacity to appreciate the wrongfulness of the act?  Irresistible impulse was also enshrined in a second question:  (2) Did the accused have the substantial capacity to conform to the requirements of the law?   (Please note that how these questions are rationally assessed is a further function of standards of evidence, ranging from preponderance to clear and convincing to proof beyond reasonable doubt, and there were/are jurisdictional differences here.)

Then came the case of John Hinckley in 1981-2.  He shot President Reagan and mortally wounded his press secretary James Brady (as just assessed in 2014 by his eventual death ruled as homicide), and was found via the ALI standards to be not guilty.

It did not take the country very long to react to the ALI influence in Hinckley's case.

The Feds quickly dropped the (2) question entirely.  So did many states.  And the burden of proof in Fed cases and in many states was shifted to the defense, along with various changes about evidential standards.

Some, like my own state of Wisconsin, retain both components of ALI for insanity, assessed here by (complicated) preponderance standards, defense burden.

Interestingly, the four states of ID, MT, UT, and KS have since completely abolished the insanity defense as a separate trial defense.  In those states insanity may not exculpate (except under very narrow circumstances in some cases, though still not by separate trial), though it may weigh in matters of sentencing.  I should note that challenges to these laws have been rejected for review by the Supreme Court thus far, thus de facto Constitutional.

Here is a good overview of just what a mishmash of the present state of insanity law is among the states:

http://lawdigest.uslegal.com/criminal-laws/insanity-defense/7204

(Scroll down to the relative link Insanity Defense Among the States in the list for that factoid, though the page is a good overview of history and precedents.)

In many very significant jurisdictions, we have thus legally stepped away from the ALI (2) FW question.

That's very important in at least practical terms.  (2) as a question was, e.g., from Darrow's L&L case, plausibly significant for incompatibilism, though of course it could be parsed for many compatibilist accounts as well.  But the Feds and many states say in effect a mens rea account of FW as freedom from forms of psychological compulsion is not necessarily  relevant to matters of exculpation.

However,  the cited four states could be said to have embraced a purely classical compatibilist account of being free to do what one wants (no matter why one wants such and so), and thus assigning responsibility on that basis.  Of course there was no deliberate embrace of compatibilism by these states--only knee-jerk responses probably politically motivated,  or maybe a move toward moral pragmatism about actions and responsibility (somewhat more charitably and less cynically).

One could dismiss all of this as uninteresting except to X-Phi  or advocates of sociological determination of the stability of some such relevant concepts (think Kuhn) or as I suggest some more deliberative pragmatists.  But it does raise a central issue about FW and responsibility in ongoing practical terms.  Why should the nature of FW (even if nonexistent as hard incompatibilists assert) finally matter in moral and legal matters?  Does the current societal trend signal something about the providence of shared values over any putative metaphysical accounts of human FW?  Or can we say that society is simply becoming more irrational about what counts about holding people responsible and against some objective truth about FW/MR that's being overlooked or abandoned?

Last observation on all this.  The four states aside--which in part still reserve some very small place for mens rea considerations with regard to the M'Naghten-style question--there seems to be some prevailing general sympathy for exoneration or at least mercy in the case of severely disturbed motivating psychological states that produces criminal actions, if we can ascertain that those psychological states failed to appreciate or prevent the depravity of the actions in some way (though the public reaction to theater-mass-killer James Holmes--who appears to be a classic psychotic--certainly doesn't encourage my point).  As far as libertarians are concerned, such sympathy is good news insofar as it relies on proper normative reasons as guidance for non-determined but responsible actions.  As far as (semi-)compatibilists are concerned, this is good news for normatively descriptivist accounts as well, whether of hierarchical, or reasons-responsive, or quality of will type in determining responsibility.  It's probably no news to hard incompatibilists and skeptics, who must attack questions of normativity in their own ways.  But I'll later argue that all this is actually bad news--reinforced by a specific argument about free will zombies--for the metaphysics of FW.  My ultimate point is that values and only values can be the final reliable arbiter in all this, and absent some overarching, dominating objectivism of what all those values must be, moral pragmatism is the precipitate falling out of all these compounded factors.  And I'll even advocate that against the deep sort of  Levy/Waller/Strawson-style skepticism about morality and responsibility.

So, here are some questions:

(1) Are there any good reasons to abolish or severely restrict the insanity plea as exculpatory as some states have?  (E.g., there are after all cases of murderers  found not guilty by reason of temporary insanity who were released as little as a year after treatment.)

(2) Since the tradition of mens rea essentially requires the court to read the state of minds of defendants before/during the commission of their crimes in second phase trials, is it just to make responsibility only a function of something like the voluntary prong of ALI (2) as a necessary condition?  (Remember:  Hinckley inflicted great and lasting harms on James Brady and the Brady family yet was declared not guilty for that--and thus treated but not punished for what he did, and he is clearly on a path for release:  even as a would-be presidential assassin  he presently spends roughly half his time in treatment and has been released to his own recognizance otherwise--with (no doubt) the Secret Service shadowing everything he does (which raises other issues about exculpation).)

(3) Can all significant ALI (2) concerns about the freedom from compulsion and/or to choose the good be folded into ALI (1)/M'Naghten issues about quality of mind or rational control over appreciation of wrongfulness?

(4) Though philosophers have engaged one another in vigorous academic debates about responsibility, are there ways to better affect public policy about how legal responsibility should be determined, and to encourage consistency among the various jurisdictions about how it is assessed in cases of individuals who commit criminal acts as mentally diseased or defective?

Thanks for listening once again.

Comments

[Bruce Waller]

Alan, Excellent post on a very important topic; this is one of those areas where philosophers should certainly have greater impact; sadly, at this point I don't think the Supreme Court is paying much attention to either philosophers or psychologists on these questions (though some of the law journals are, so maybe it will eventually get through). The Hinckley case strikes me as the Nichols/Knobe (2007) experiment writ large: in the abstract, most people in the country could doubt that someone who is insane is morally responsible; but when given a concrete case (in this case a sensational case) they wanted to hold Hinckley responsible no matter what.

I'm not sure the states that abolished the insanity defense were adopting a classical compatibilist view (though that seems to me to be the view favored by Michael S. Moore, in his defense of retributivism with almost no exceptions); I suspect that instead they are adopting a strong -- and probably rather simplistic version of -- source libertarian view (at least some of them) that insists on the power of free will to overcome almost any impediment (including significant mental problems); that at least seems to be the view of Scalia (God's Justice and Ours, 2002) and D.C. Judge David Bazelon. In any case, very interesting question, and I wish I had the leisure for a longer response. But perhaps i should save my ammunition and energy to defend the deep skepticism about MR that you plan to assault.

[V. Alan White]

Thanks so much once again Bruce, and especially for tying in references some of which I was unaware. Even if you are the deepest of MR skeptics, I am grateful for your generous responses to my posts, and you deserve that no matter what!

I agree that the courts have been all over the map on key matters of legal responsibility. The tradition of mens rea has been I think deliberately treated by the SCOTUS most recently with respect for very wide interpretation of how it applies--or still legally fails to apply--at all jurisdictional levels, though I know that has also led to inconsistent law from state-to-state as well. Some legal theorists (Morse and Bonnie, e.g.; no philosophers as far as I know) weighed in with amicus briefs challenging the elimination of the insanity plea in the 4 states on due process grounds that invoke mens rea, but to no avail so far.

While the attempt of ALI during the 50s to codify and unify concepts relating to mens rea ultimately led to the debacle of insanity law that prevails now, I think legislative neglect of trial procedures are at least as much to blame for the fallout of the Hinckley case as anything else. The prosecution in that case had to prove beyond reasonable doubt that the answers to both ALI questions were yes (he was sane)--and given the prima facie evidence, that was nearly impossible. Perhaps Congress should have foreseen that applying the same criminal action procedures to responsibility phase trials would result in more not guilty verdicts than the reverse, and maybe they should have thought harder about the fact that the only issue challenged in responsibility phase trials is the presumption of mens rea against the defendant--and thus the burden of proof should be on the defendant. Might have made a huge difference in the Hinckley case.

I think ALI did a fairly good job of crunching together rationality and FW concerns but recognizing that it would be possible for compulsion to be compatible with rational moral judgment--by OCD, akratic neurological fixation, or whatever. Jeffrey Dahmer is one interesting case: found guilty in a responsibility trial but by a jury that split on the ALI (2) question (preponderance of the jury was required).

I think we need another ALI-type extended and intense examination of the legal conditions of responsibility but informed with current neuroscience and philosophical interpretation. It's been over 50 years since that first attempt--time for another.

[Thomas Nadelhoffer]

Alan,

Great post. For others interested in this issue, the legal scholarship about free will and the law has been dominated by retributivists and compatibilists like Stephen Morse and Michael Moore for the past twenty years. Both have written extensively about these and related issues while defending the view that the insanity defense ought to be limited to the rational prong. Michael Corrado, on the other hand, has written in defense of the volitional prong. Here are a few other really interesting law review articles that address these issues as well:

Michele Cotton, "A FOOLISH CONSISTENCY: KEEPING DETERMINISM OUT OF THE CRIMINAL LAW" 15 B.U. Pub. Int. L.J. 1.

Matthew Jones, "OVERCOMING THE MYTH OF FREE WILL IN CRIMINAL LAW: THE TRUE IMPACT OF THE GENETIC REVOLUTION, "52 Duke L.J. 1031.

Anders Kaye, "THE SECRET POLITICS OF THE COMPATIBILIST CRIMINAL LAW," 55 U. Kan. L. Rev. 365.

Melinda Carrido, "REVISITING THE INSANITY DEFENSE: A CASE FOR RESURRECTING THE VOLITIONAL PRONG OF THE INSANITY DEFENSE IN LIGHT OF NEUROSCIENTIFIC ADVANCES," Southwestern Law Review;2012, Vol. 41 Issue 2, p.309.

The pieces by Cotton and Kaye are especially illuminating.

There was also a special issue of Behavioral Sciences and the Law a few years ago (2007) that focused on the issue of free will and the law that is worth checking out.

Back when I was doing research for the post-doc, I stockpiled a ton of the articles from Lexis-Nexus on free will and the law. If anyone's interested, let me know and I can share the folder via Dropbox.

That's it for now. I will try to post something more substantive later. I just wanted to thank Alan for highlighting this issue and pass along some suggested readings for interested parties!

[V. Alan White]

Thomas--thanks so much for these terrific references--between you and Bruce I have a lot of reading to do! I for one would like access to that Dropbox folder. (My summer reading is piling up at an alarming rate!)

This particular segment of my 101 course is a real eye-opener for students, who get an overview that approximates my OP. FW is made a focus of statutory law in the mid-20th century, only to be smacked down after Hinckley--despite the fact that the ALI (2) voluntary prong, though argued in the case, probably was not the deciding factor for the jury.

BTW, for many significant and infamous cases, Douglas Linder (Law--UMKC) has a terrific site for all sorts of resources:

http://www.umkc.edu/famoustrials/

I refer my students to this site for the Hinckley case as well as that of OJ Simpson's murder trial (which I use as an example of a 1st-phase trial, along with his civil trial to contrast evidential standards of PBRD against preponderance in arriving at decisions that seem contradictory, but aren't).

[Thomas Nadelhoffer]

Alan,

Thanks for the link! I am teaching a 400-level seminar in the fall for our pre-law program entitled, Psychopathology and the Law. So, the "famous trials" site will be great. Charles Ewing has two books that cover famous trials as well: (a) Insanity: Murder, Madness, and the Law (OUP 2008), and (b) Minds on Trial: Great Cases in Law and Psychology (OUP 2006). I was planning to use one of these for one of the texts for my course. But perhaps I can get away with just using the webpage you suggested!

That said, here are my responses to your questions:

(1) Are there any good reasons to abolish or severely restrict the insanity plea as exculpatory as some states have? No! But if we are going to keep the insanity defense, we need to (a) extend it to include both the rational prong and the volitional prong, and (b) we need to do a much better job educating the public when it comes to mental illness and criminality. There are so many misconceptions among laypersons (i.e., potential jurors) that need to be corrected that psychologists, philosophers, and legal theorists who work in this area need to do a better job with public outreach!

(2) Since the tradition of mens rea essentially requires the court to read the state of minds of defendants before/during the commission of their crimes in second phase trials, is it just to make responsibility only a function of something like the voluntary prong of ALI (2) as a necessary condition? It seems to me that the issue of brute voluntariness than plays a role in the guilt phase of criminal trials focuses on the actus reus where the key issue is whether the defendant is causally responsible for having committed the prohibited act in question. Here the issue is whether an act was committed at all. There is a difference between having accidentally x-ed and having been unable to resist the urge to x. But I get your point that in some sense the voluntary prong is built into the actus reus requirement in some sense. I nevertheless think the two come apart.

(3) Can all significant ALI (2) concerns about the freedom from compulsion and/or to choose the good be folded into ALI (1)/M'Naghten issues about quality of mind or rational control over appreciation of wrongfulness? No! Although both Morse and Moore have been arguing for this view for twenty years, it doesn't seem right to me. At a minimum, it seems I can imagine counter-examples (or possible worlds) where the two come apart--that is, where failures to satisfy the volitional prong are not reducible to failures to satisfy the rational prong. This goes both ways. I can also imagine failures to satisfy the rational prong that have nothing to do with volitional impairment. So, while the two may overlap, they are not coextensive.

(4) Though philosophers have engaged one another in vigorous academic debates about responsibility, are there ways to better affect public policy about how legal responsibility should be determined, and to encourage consistency among the various jurisdictions about how it is assessed in cases of individuals who commit criminal acts as mentally diseased or defective?
As my earlier comment made clear, I think we both can and should be doing more. Unfortunately, it's unclear what we need to do on this front to fulfill our obligations. Writing op-eds is not enough. We need to go after grants to fund projects that are focused on public outreach, lobbying, etc. The problem is finding sources of funding. While MacArthur might fund this type of project, Templeton is less likely to be interested. Either way, this is something philosopher need to spend more time trying to address! So, thanks for highlighting the issues here!

[Neil Levy]

I see responses to the insanity defence as illustrating the extent to which holding responsible is a fixed point in folk thinking. People are willing to change their views of the facts in order to blame someone who is causally responsible for a harm (think of Van Inwagen, who says he would become a compatibilist if he was convinced that determinism was true). A nice illustration is the Breivik case. Breivik was initially assessed as insane by psychiatrists, which entailed that he couldn't be tried under Norwegian law. But since he obviously had to be tried, he couldn't be insane: the Norwegian public demanded and got a reassessment of his sanity. The big lesson here is that our retributivist impulses shape our assessment of facts and theories. It ain't just the folk (or rather, we are all folk).

[V. Alan White]

Thomas and Neil--

From the bottom of my heart thanks so much for chiming in, and I beg your patience for a fuller reply. Between Tuesday night and Wednesday afternoon I teach half my load, so I am snowed under. I am also literally snowed under, so I have to take care of that too!

[Tamler Sommers]

Alan, if you don't know it, there's a great book by Norval Morris called Madness and the Criminal Law that argues for abolishing the notion of insanity as an excuse. And on interesting grounds too, not what one might expect. Norval isn't a hard core retributivist--he thinks that desert has a wide spectrum and that justice requires only that a punishment stay within its wide boundaries. The details of his case against ALI are complicated and a little hazy but the basic idea is that insane/sane line is a largely arbitrary distinction that doesn't map on to questions of free choice.

The book has a unique structure as well, with three academic-style chapters and two mini novellas (with Eric Blair (aka Orwell) as narrator describing cases in Burma). Well worth a read.

[Tamler Sommers]

P.S. To clarify, the novellas aren't really written by Orwell or Blair. They're fictional "lost journal entries" written by Morris.

[V. Alan White]

Thomas--

Your response to my questions was detailed, thoughtful, and deeply appreciated.

To your (1). I think ALI realized that it was e.g. conceptually possible that someone accused of a crime might be someone susceptible to theft OCD. That is, they could satisfy the criteria of being ALI (1) responsible by having the substantial capacity to self-acknowledge the wrongfulness of stealing yet fail to satisfy (2) because of the compulsion to steal and even in circumstances where they may have also understood that they may be caught. That would constitute reasons to separate the conditions of (1) and (2) as empirically determinable as well as a part of the presentation of evidence in 2nd phase trials. I leave to the literature to weigh in here, which I am not familiar with.

To your (2). The absence of actus reas is I take it the difference between something like an accident legally versus some involvement of mens rea. My understanding of the law is that this is essentially defined in the case of an involuntary/negligent action, which is the least culpable state of mind. Here the issue of choice is minimized because the failure to constitute proper intention to conform to the expectations of law is an omission of choice, but given the power of choice. This seems to involve a reciprocal presumption that the government makes on us given that of the Constitutional presumption of innocence--namely that we are capable of mens rea. Given both presumptions, negligence of proper intent is a default absence of proper mens rea given that such omissions are themselves somehow avoidable. I am not a legal expert. That is my reading of the concepts of law given the procedures I understand.

As to (3)--I completely agree.

As to (4)--the contributions of truly great philosophers--Frankfurt, Wolf, Fischer, Watson, Levy, Strawson, Waller, Vargas, etc. need a greater voice than is conveyed by academic media, and maybe Templeton-style economics are the best voices for what are most prominent as countably audible academia. Money drives everything these days, and it seems the best we can do is to get into that game, and help move the game somehow beyond merely economically-driven values that most often play into the hands of those that self-interestedly profit.

[V. Alan White]

Neil--

You have that gift for seeing the big-picture in any given case that distinguishes you from most of us trapped in enthralling minutia. The public's perception of the magnitude of criminal-action harm in cases like Hinckley and Holmes has definitely trumped more delicate issues of responsibility. And the fallout of that of course has had huge political implications for legislation about relevant cases. That has produced the mayhem of insanity law among the various jurisdictions, including states that have both NGBI and GBI (guilty but insane) laws on the books, ultimately producing the thus-far Constitutional laws abolishing insanity pleas altogether, which seem to me at least to undermine the centrality of mens rea as a necessary condition for being held responsible. And I know from your recent book you might have a problem with that--even though you acknowledge no sufficient conditions for responsibility from Hard Luck.

[V. Alan White]

Tamler, thanks once again for another reference I need to peruse. I agree that mapping questions about free will and rationality are very iffy and especially in cases where an account of free will is metaphysically "heavy"--like indeterministic accounts that seem to count dual-ability more centrally than issues of degrees of rational control over such an ability. Seems possible to me to argue that less-than-reasonable people might still qualify as moral agents under such a view. Quality of will accounts and the like that approach free will from a more value-laden perspective might be more attractive as laying out psychological criteria for sorting out responsible versus non-responsible parties.