Patricia Churchland on the effects of neurobiology on criminal law

Scientific American has a new article, “20 big questions about the future of humanity“, in which twenty well known scientists prognosticate about our collective fate. It’s not clear whether the questions were generated by the scientists themselves or by the magazine, but most of them, and the answers, don’t inspire me much. It’s not that I think the answers are bad, I just think that predictions of this sort—will sex become obsolete? will humans survive the next 500 years? when and where will we find extraterrestrial life?—are shots in the dark, and the answers not that enlightening. After all, the extraterrestrial question is simply a big fat unknown.

But one question and answer, called to my attention by reader John O., intrigued me for obvious reasons. The respondent is the well known philosopher Patricia Churchland. Here’s the question and her answer, and the bold bit in the answer is my own emphasis.

Will brain science change criminal law?

In all likelihood, the brain is a causal machine, in the sense that it goes from state to state as a function of antecedent conditions. The implications of this for criminal law are absolutely nil. For one thing, all mammals and birds have circuitry for self-control, which is modified through reinforcement learning (being rewarded for making good choices), especially in a social context. Criminal law is also about public safety and welfare. Even if we could identify circuitry unique to serial child rapists, for example, they could not just be allowed to go free, because they would be apt to repeat. Were we to conclude, regarding, say, Boston priest John Geoghan, who molested some 130 children, ‘It’s not his fault he has that brain, so let him go home,’ the result would undoubtedly be vigilante justice. And when rough justice takes the place of a criminal justice system rooted in years of making fair-minded law, things get very ugly very quickly.”
     —Patricia Churchland, professor of philosophy and neuroscience at the University of California, San Diego

This seems to me both wrongheaded and very superficial, especially when you consider that punishment is part of criminal law. But at least she’s a determinist and a naturalist.  We can argue (not this time!) about what this means for conceptions of free will, but I think it’s almost a given that a philosophy involving determinism (either hard determinism or compatibilism) will have implications for criminal law different from those coming from a philosophy of dualism.  

That’s certainly the case in practice, for the concept of whether someone could have done otherwise, versus whether he was “compelled” by uncontrollable circumstances in a criminal situation, has played a big role in our judicial system. If you’re considered mentally incompetent, for example, or have a brain tumor that makes you aggressive, or don’t “know right from wrong”, your punishment can vary drastically. If you’re considered mentally ill, you may be hospitalized; if you do know “right from wrong” (even if your circumstances allow you to know it but not act on that knowledge) you will be put in a pretty bad prison situation; and if there are extenuating circumstances that may have influenced your behavior (like an abused woman killing her abuser), your sentence may be light—or you may be even set free.

Under determinism, nobody has a choice of how to act, in other words, there are always “extenuating circumstances” in the form of environmental and genetic factors that caused you to transgress. The way the justice system deals with these factors will, of course, differ from person to person; but it’s vitally important to realize that no criminal had a free choice about what he did. (I’m using “he” here since most criminals are male.) And we can’t deny that lots of punishments are based not on deterrence, rehabilitation, or public safety, but on pure retribution: a vile sentiment that presupposes that someone could have done otherwise.

Even Sean Carroll, a compatibilist, realizes the implications of neuroscience on our justice system. As I quoted him the other day from his new book The Big Picture:

To the extent that neuroscience becomes better and better at predicting what we will do without reference to our personal volition, it will be less and less appropriate to treat people as freely acting agents. Predestination will become part of our real world.

Now I’m not sure I agree with Sean that predicting behavior has anything to do with treating people as “freely acting agents,” for we already know that they’re not freely acting agents. Prediction has to do with your strategy for “punishing” the offender (it affects recidivism and public safety); perhaps that’s what Sean means, but it’s not clear.

Further, Churchland goes badly wrong when she thinks that determinism is solely about understanding why someone does something, and then exculpating them when we do. That’s ludicrous. We need to prevent an offender from reoffending if they’re freed, which means rehabilitation; we need to protect the public even if we do understand why someone commits a crime (what if their neurons make them psychopathic?); and we need to deter others by example from committing crimes. (Deterrence is certainly compatible with determinism: seeing someone get punished affects your brain, often making you less likely to transgress.) I have no idea how Churchland draws a connection between understanding the correlates of behavior and letting people go free, and then—vigilante justice! We already know that “criminal law is about public safety and welfare,” and no determinist thinks otherwise. Determinists are not a group of people hell-bent on freeing criminals!

At any rate, the more we learn about brain function, the more we’ll be able to understand those factors that compel people to behave in a certain way when faced with the appearance of choice. And when we know that, we’ll be better able to treat them. But as we learn more about the brain, my hope is that we will be less and less willing to punish people on the assumption that they made the “wrong choice”,  avoid retribution, and begin to design a system of punishment that not only protects society and deters others, but, above all, fixes the problems, both social and neurological, that lead people to break the law.



  1. jaxkayaker
    Posted August 25, 2016 at 11:41 am | Permalink

    Physics and biology apparently dictated that that philosopher not think very carefully about her answer. Too bad that physics and biology couldn’t have dictated that someone else be interviewed.

  2. Pliny the in Between
    Posted August 25, 2016 at 11:52 am | Permalink

    While crimes of passion may get a break, I’m not convinced that determinism will result in reduced punishments. For example, some may begin to argue that determinism would suggest unacceptable recidivism rates for sexual crimes and pedophiles leading to extended incarceration. Those in favor of capital punishment may switch from deterrent arguments to ‘irretrievably broken’ arguments.

    • Randall Schenck
      Posted August 25, 2016 at 12:40 pm | Permalink

      I think it is the capital punishment argument that is most affected because it is the punishment of retribution most of all. To kill the perpetrator of a crime is pure retribution really. However, the pedophile is generally thought to be incurable. If this is so, hard determinism would still seek to keep this person in prison, maybe for life.

      • Posted August 25, 2016 at 1:17 pm | Permalink

        I agree 100% with Randy, and forgot to make that point in my text. The ONLY argument in favor of capital punishment is pure retribution, and there are powerful counterarguments, not the least of which is the possibility (indeed, as events have shown, the certainty) that innocent people who are executed cannot be made whole.

        • Pliny the in Between
          Posted August 25, 2016 at 1:48 pm | Permalink

          I disagree with the idea that retribution is the only argument for capital punishment. In a case like Manson for example I think it was less about retribution and more about a recognition that he was broken beyond redemption. Moving from dualism toward determinism will likely be associated with concurrent movement from the notion of ‘monstrous acts’ toward the concept of true monsters. My point is not an endorsement of a position on this – just that large scale acceptance of determinism may result in a push toward identification of a class of individual deemed irredeemable and dangerous. People who commit singular acts (or are convicted of such) may well receive better treatment in light better understanding of the brain and recognition of the imperfections of the criminal justice system. But people who systematically commit repeated acts may face harsher treatment.

          People should be prepared for these arguments.

          • Randall Schenck
            Posted August 25, 2016 at 3:21 pm | Permalink

            I am not a lawyer but if I understand your example you are saying the penalty might become capital punishment because the criminal is broken beyond help. However, I don’t think the law works that way. If you do something that gets you 10 years, get out do it again, and then the third time they say, oh well, now we just kill him. You only get a longer sentence.

            • Posted August 26, 2016 at 2:03 am | Permalink

              How about we start by getting rid of that medieval monstrosity, capital punishment? Or at least assume we have. Then continue the conversation.

          • darrelle
            Posted August 26, 2016 at 1:03 pm | Permalink

            I don’t think you’ve explained how “capital punishment is a valid sentence” falls out naturally from the premise “if the criminal is broken beyond redemption.”

            The only conclusion that seems obvious to me starting with that premise is that the criminal will have to be prevented from harming anyone else for the rest of their life. Further reasoning from that point would be how to achieve that and I can think of two ways right off the bat. 1) Execute the criminal and 2) imprison the criminal for life.

            There may be other possibilities but let’s stick with those two. That the criminal is beyond redemption doesn’t seem to me to be a factor in deciding between those two choices. Relevant factor for this choice are physical and economic feasibility, ethics, how others are affected (the executioners, witnesses, prison guards), the general affects on society that normalized execution by the government may (I’d say certainly does) have and more I’m sure. But not that the criminal is broken beyond redemption.

            If retribution is taken out of consideration I don’t see any good line of argument supporting the death penalty and several good arguments against it.

            • Gregory Kusnick
              Posted August 26, 2016 at 2:41 pm | Permalink

              The ethical argument against capital punishment hinges on the proposition that people are morally distinct from machines. The hard determinist position as articulated by Jerry undermines that proposition by explicitly equating criminals to malfunctioning machines. People discard broken iPhones every day without giving a moment’s consideration to what happens to Siri. So why should they care what happens to broken people?

              Now you can argue that this is a caricature of the hard determinist position, but be assured that it’s a caricature that proponents of capital punishment will embrace enthusiastically if they see an advantage in doing so.

              So in my view it’s not a question of whether capital punishment falls out naturally from hard determinism, but rather of which camp is likely to be more successful at spinning determinism to support their agenda. We have to consider the possibility that devaluing human autonomy may tilt the scales in the wrong direction.

        • Gregory Kusnick
          Posted August 25, 2016 at 3:03 pm | Permalink

          I agree with Pliny that “irredeemably broken” is an all-too-plausible justification for capital punishment, and one that seems likely to become even more tempting under an ideology that holds self-control to be impossible in principle.

          • Posted August 25, 2016 at 10:25 pm | Permalink

            Yes, we put irreparably broken computers in the trash, don’t we? This argument cuts two ways.

      • Anthony
        Posted August 25, 2016 at 4:46 pm | Permalink

        A capital punishment concept I don’t see discussed very often is (in my opinion) that it may not actually be the worst punishment to kill someone vs. a long boring and stressful existence, at least as the prison system that exists in most countries.

        Personally, I’ve lived a pretty cushy life, and If I suddenly faced life in some hellish prison with no chance of ever resuming the life I’ve known — regardless of my guilt or innocence — I’d certainly consider suicide, and I’d consider being forced to continue life as more punishing.

        Of course it helps to be atheist and be rather certain that all suffering would end with a return to pre-birth non-existence.

        • Ken Kukec
          Posted August 25, 2016 at 8:01 pm | Permalink

          If that’s the only justification for imposition of the death penalty, then the reasonable solution would seem to be to let the offender decide if life in prison is worth living by opting in or out of capital punishment. (I note that some offenders sentenced to death have waived their appellate and post-conviction-proceeding rights, thereby abandoning any opportunity to avoid the death penalty and expediting their execution.)

          • HaggisForBrains
            Posted August 26, 2016 at 3:10 am | Permalink

            I totally agree, Ken. The problem would then be that retributionists would probably insist that whichever course the condemned person chose, the opposite should be implemented.

            • Ken Kukec
              Posted August 26, 2016 at 8:57 am | Permalink

              “That’s some catch, that Catch-22.” — Yosarrian, to Doc Daneeka.

        • Posted August 26, 2016 at 11:30 am | Permalink

          The Inuit were not fond of punishment. Any small group can be wrecked when people are sanctioned, particularly with death.

          However, they also traditionally thought that there *was* a punishment worse than execution: exile. In the Arctic, one cannot reliably hunt alone and especially do one’s own clothing repairs (that’s traditionally a male/female split, to a first approximation). Exile thus resulted in slow, lingering deaths by starvation or exposure and was thus not “quick and overwith”, like execution. (For those who have seen _Atanarjuat: The Fast Runner_, you’ll have seen all of this implicit in the story.)

    • Posted August 25, 2016 at 3:17 pm | Permalink

      + 1

    • Ken Kukec
      Posted August 25, 2016 at 8:35 pm | Permalink

      Once a determination has been made that an offender is “irretrievably broken,” it does not ineluctably follow that capital punishment is the only recourse; you still need a justification for putting someone to death rather than imprisoning him or her for life. (And what do we do with “irretrievably broken” offenders who have not committed crimes that are ordinarily punishable by death? Is a series of minor offenses suggesting that an offender is beyond rehabilitation enough?)

      It turns out that it is much more expensive to execute an offender than imprison one for life. Plus, the death penalty has proved to have no deterrent effect on the general public. In addition, we have yet to develop a humane way to carry out executions. The history of lethal injection and electrocution is riddled with botched, needlessly painful executions.

      Most importantly, there remain cavernous questions regarding by whom, and by what standard (and at what stage of the proceedings), a finding of an offender’s “irretrievable brokenness” would be made. As currently constituted, our criminal justice system is entirely ill-equipped to make such a determination. And no ready solutions seem to present themselves. Can you propose a set of standards and factors the finder-of-fact (whoever that turns out to be) should apply to decide if someone is “irretrievably broken”?

      • Pliny the in Between
        Posted August 25, 2016 at 9:15 pm | Permalink

        I am not proposing this nor do I think any such thing is possible within our current criminal justice system. I’ve simply been trying articulate a belief that if our system is ever revamped with a modern appreciation of neuroscience (something I doubt I’ll ever live to see) it seems likely that some distinction between episodic crimes and violent crimes committed by individuals with deeply flawed programming will be proposed.

        • Ken Kukec
          Posted August 25, 2016 at 10:39 pm | Permalink

          I understand your position completely, PtiB. The point I hoped to make was that, even under the system you hypothesize, there would remain solid reasons to abjure the death penalty.

  3. Posted August 25, 2016 at 12:09 pm | Permalink

    Hi Jerry,

    And we can’t deny that lots of punishments are based not on deterrence, rehabilitation, or public safety, but on pure retribution …

    Hmm, not sure I fully agree with that. I’d suggest that “public commentary” about punishments usually involves all of those factors.

    Can you give actual examples of punishments that we would simply abolish, given an acceptance of determinism?

    I’d tend to agree with Churchland that most people in jail would still be in jail, and thus that the only difference would be one of commentary (“retribution” might be dropped from the list, leaving only deterrence, rehabilitation, and public safety).

    It’s right that Churchland is rebutting a rather simplistic possible reaction to determinism (“it wasn’t their fault so we shouldn’t punish them”), rather than rebutting a considered response to determinism, but I think she’s largely right that the de facto differences in punishment would not be that great.

    • Zado
      Posted August 25, 2016 at 1:38 pm | Permalink

      Agreed. As far as I can tell, the only punishment we’ve retained that satisfies our atavistic thirst for retribution is capital punishment, which seems to be steadily (if too slowly) going out the door anyway. We’ve done away with all the other “cruel and unusual” ones. Admittedly, cruel and unusual things happen in prisons, but that’s a related topic.

      She may have gone a little far in saying the implications of neurobiological determinism are “absolutely nil;” surely we’ll factor them in. But we already do, as PCC pointed out. I think she was simply responding to the non sequitur that always arises in this discussion, namely that explanation = exculpation and that the concept of moral responsibility depends on the concept of free will. It doesn’t, as I think we all appreciate. That’s all she was saying.

      • Posted August 25, 2016 at 1:45 pm | Permalink

        Agreed, Churchland was, in limited space, addressing a limited point.

        And on the capital punishment issue, it’s worth remarking that there’s a pragmatic argument for capital punishment in that, in nearly all times and all countries, it has been way cheaper and easier to execute someone than to keep them in jail for the rest of their natural life.

        America, with its excess of lawyers, is about the only exception to that rule.

        [By the way, I generally oppose capital punishment, but for the reason of possibly executing an innocent person.]

        • Gregory Kusnick
          Posted August 25, 2016 at 3:09 pm | Permalink

          If you’re concerned about executing innocent people, then you want executions to be difficult and expensive, with many iterations of review and justification, in order to minimize the possibility of error.

          My concern is that hard determinism may promote a view in which people feel that maybe the mistakes don’t matter so much, if we’re all blameless meat robots anyway.

      • Posted August 26, 2016 at 11:33 am | Permalink

        Given what our (and even more so, the US) prisons are like, I dare say they are retributive. Why else would you give people slop to eat and hard floors and so on? It is *less* so than capital punishment, perhaps, but …

        Consider the Scandinavian examples discussed earlier : the only sanction seems to be on guests and on leaving. Otherwise the prisoners seem to be able to have some degree of humanity in how they live, etc. (“looks like an Ikea!”, right?)

      • Posted August 27, 2016 at 7:19 am | Permalink

        Maybe she was, but the question wasn’t “respond to Sam Harris on brain science and legal punishment?” It was “Will brain science change criminal law?” So I think her answer should have included *some* mention that brain science will, e.g., help us see which behaviors are immune to deliberation, and thus to deterrence. As Jerry points out.

    • peepuk
      Posted August 25, 2016 at 3:45 pm | Permalink

      It’s not about abolishing punishments; it’s about humane treatment. We still have to incapacitate criminals to protect society, but there is no justification to treat them so badly.

      And there is the fact that the slow way judicial systems work (for good reasons) the “reinforcement learning”-model isn’t very effective.

      In my opinion punishment should be justified, humane and effective.

      • Posted August 25, 2016 at 4:11 pm | Permalink

        We still have to incapacitate criminals to protect society, but there is no justification to treat them so badly.

        Deterrence? Hypothetically, if one segregated criminals from society but otherwise gave them a high standard of living, it might not be that effective as a deterrent.

        • Ken Kukec
          Posted August 25, 2016 at 8:47 pm | Permalink

          Oh, I think the threat of such imprisonment would be sufficiently deterrent, so long as people had a reasonable prospect of maintaining a high standard of living outside prison.

          If they don’t, it would undoubtedly prove more economic to provide people such a prospect, rather than to force them to commit a heinous crime in order to obtain it.

          • Posted August 26, 2016 at 1:48 am | Permalink

            As you allude to, the degree of pleasantness of day-to-day life in jail does need to be substantially less than their likely life outside of jail, otherwise many won’t consider it a deterrent.

        • peepuk
          Posted August 26, 2016 at 3:57 am | Permalink

          Deterrent is fine as long as it is justified, humane and effective.

          F.I. capital punishment doesn’t qualify on all 3 points. There are great doubts about it its effectiveness and humanness, at least that’s what the experts say.

          The best deterrent is good policing.

  4. Petrushka
    Posted August 25, 2016 at 12:12 pm | Permalink

    I don’t think there’s any way to fix society so that people are no longer mean and selfish. Nor any way to fix society so people won’t break laws.

    Maybe reduce the frequency of violence, but not end it.

    Not to mention as actual hard crime is reduced, the busybodies start thinking about thought crimes and incorrect opinions.

  5. Sastra
    Posted August 25, 2016 at 12:14 pm | Permalink

    I think it’s almost a given that a philosophy involving determinism (either hard determinism or compatibilism) will have implications for criminal law different from those coming from a philosophy of dualism.

    I don’t know. Since dualists are perfectly capable of recognizing real-world standards like diminished capacity, extenuating circumstances, and the effect of genetics and environment on criminal behavior, I think the determinism/dualism issue won’t have much effect on the legal system in the long run. Not because a belief in supernatural essences doesn’t support the idea of punishment for punishment’s sake, but because the practical reasons against that sort of eye-for-an-eye justice are just so darn good.

    It’s easy to believe in a Ghost in the Machine AND accept a real world where criminals do crimes for reasons they did not control, and prevention and rehabilitation are better than punishment. It’s easy because supernaturalists LIVE on contradictions, they thrive in incoherency. They also live in a culture which contains ample argument and evidence that placing blame is complicated.

    So they’ll turn it all around and insist that their belief in God and free will is what makes them recognize that people are not all equally free to make the same choices and that’s why they’re against punitive retribution. They’ll make dualistic virtue out of it.

  6. Posted August 25, 2016 at 12:14 pm | Permalink

    Pointless discussion.
    If there is no free will then EVERYTHING we do is (if not determined) at least beyond our control. So `making decisions` as to how best to `determine` the future in an undeterminable universe is an exercise in futility.

    • Ken Kukec
      Posted August 25, 2016 at 9:10 pm | Permalink

      Thus Spake Zarathustra the Fatalist.

  7. Heather Hastie
    Posted August 25, 2016 at 12:33 pm | Permalink

    Ms Churchland does appear to have thought fairly shallowly about this issue. Surely as more and more people understand why people commit crimes, more of them will become more understanding and therefore less prone to vigilantism?

    I personally would hope that society changes so that factors that lead to criminal behaviour in adults are identified and there is early intervention. (There are multiple things about Catholicism and the way priests are selected and trained that I personally consider make it a breeding ground for sexual predators, especially paedophiles.)

    I also hope the justice system moves to one that’s more about rehabilitation.

    As for the death penalty, I’d like to see the reasoning of broken people flipped around. It may turn out that some people can’t be rehabilitated. In fact I think that’s likely. However, what about the damage done to those who have to decide on, and actually carry out, a judicial killing? That needs to be thought about as well and is a good reason imo for no death penalty.

    • Randall Schenck
      Posted August 25, 2016 at 1:08 pm | Permalink

      They are having a big battle over in Nebraska about the death penalty. The state legislature voted it down and they did away with it. Then the governor (a good Catholic) begin the drive to bring it back. So now they are attempting to get it on the ballot.

      Many things tell us they made the right decision to do away with it. They can’t get the drugs to do a proper killing any more. They are not available in this country and the places overseas that do provide them are questionable. The court says all the old ways, hanging, shooting, gas, electric are all inhumane. And last of all, capital punishment is far more expensive than just staying in prison.

      • Heather Hastie
        Posted August 25, 2016 at 1:33 pm | Permalink

        As well as all the good reasons for doing away with it you mention, there’s also the discovery of just how many convictions are unsafe. It doesn’t do you much good to be found not guilty if you’re already dead.

        • Randall Schenck
          Posted August 25, 2016 at 3:27 pm | Permalink

          Yes, and that was the big problem down in Texas where they really liked the death penalty. Many were found innocent after death. The legal system is very capitalistic, economically here. The rich get one form of justice and the average to poor get another. Very unlikely to see a rich person who got the death penalty.

          • Heather Hastie
            Posted August 25, 2016 at 7:18 pm | Permalink

            That’s so sad and sickening, and not much of an example to be set by the Shining City on the Hill. I must admit though that even though we don’t have the death penalty there’s some stuff that’s not so great that happens in our justice system. Our government is currently experimenting with private prisons, for example, with disastrous results.

    • frednotfaith2
      Posted August 25, 2016 at 1:22 pm | Permalink

      Given the levels of intelligence in the USA, I seriously doubt there’ll ever be a time when even a simple majority of people understand why people commit crimes but clearly if too many people are committing acts of violence and/or theft and appear to be getting away with them because the legal system determines that “they couldn’t help themselves” there will be a serious public backlash against that. That’s political reality, as exemplified by George H. W. Bush’s very successful labeling of Michael Dukakis as soft on violent criminals in 1988 and was definitely one of the contributing factors to Bush’s landslide victory that year.
      If there are people who genuinely cannot be rehabilitated and have already been convicted of crimes that caused direct harm to others and if set free would commit them again, then they really should never be freed again.

      • Heather Hastie
        Posted August 25, 2016 at 1:29 pm | Permalink

        I agree there’s a case for some not to be freed, just not that they be executed.

    • Posted August 25, 2016 at 3:20 pm | Permalink

      I wish more people to become more understanding to crime victims.

      • Heather Hastie
        Posted August 25, 2016 at 7:25 pm | Permalink

        All victims of crime here are offered support of varying levels which is partly funded by the government and partly by donations.I wouldn’t want my comments to be interpreted as meaning that I have no sympathy for victims, because that’s simply not true. In fact cases where women are the victims is one of the causes I most strongly support and have written about.

  8. chris moffatt
    Posted August 25, 2016 at 12:38 pm | Permalink

    What does this idea do to civil law? Particularly contracts and torts? If we have no free will how can we ever enter into valid contracts – marriage for example. And if we have no free will how can we be liable for negligent actions resulting in harm to another party? It’s not just criminal law. We will need a whole new philosophy of society and life. This might take a while. Where is Socrates when we need him? The eventual upside is that if we have no free will we also have no need of religion since we can’t freely choose to accept or reject doGs of whatever size and colour. Just as some of us can’t help being atheists now.

  9. JonLynnHarvey
    Posted August 25, 2016 at 12:50 pm | Permalink

    IMO, the notion of diminished capacity (See Sastra’s post above) makes some sense under BOTH compatibilist determinism AND under dualist/libertarian free will.

    There are acts that people fully assent to with their whole sense of self- heart and mind- (even if the self is in some sense an illusory construct as both Dan Dennett and many Buddhists have argued), and acts which people felt they had a compulsion to do but did with reluctance.

    In an earlier comment a few days ago, I cited Richard III vs. MacBeth.

    Here’s a more interesting example. You will always need SOME kind of semantic device to explain the difference between the original “commons” version of “Tristan and Isolde” and the “nobles” version.

    In the former, T&I are genuinely authentically in love, and Isolde’s betrothal to King Mark is just a political marriage. T&I like and respect King Mark but realize they are truly in love as the king and Isolde are not. It the ancestor of the Lancelot and Guinevere story.

    Not all courts at Europe wanted to tell the tale this way, so the “nobles” version invented an aphrodisiac originally intended for Mark and Isolde but which gets accidentally ingested by T&I so they find themselves against their better judgment hopelessly swept up in the throes of uncontrollable passion.
    (This is the version used by Wagner’s opera, one of a couple of reasons it’s not my favorite of his. Storywise, I prefer the 2006 movie with James Franco & Sophie Myles which does the commons version, although the music isn’t as good 🙂 and Franco hates the movie.)

    Now if you are a determinist, you still need some kind of semantic device to explain the difference between these two scenarios, and so far, compatibilist free will seems to be the best available.


    It seems clear that humans do not have dualistic “souls” that can be detached from the body like a caboose from a train, as taught by Neo-Platonism, Vedanta Hinduism, and classical Christianity.

    However, I wonder if some sort of pan-psychism ( is a viable world view (and solution to the “hard problem” of consciousness), and if under it some sort of libertarian free will may be plausible.

    • Posted August 26, 2016 at 11:37 am | Permalink

      Pan-psychism doesn’t solve the problem, as it suffers from the same dilemma, unless one can some how show the “new stuff” plays by somehow completely different rules.

      As for “diminished capacity”, that’s true, but for example Canadian criminal law seems to presuppose “could have done otherwise”, which is *very* problematic.

  10. Gregory Kusnick
    Posted August 25, 2016 at 12:51 pm | Permalink

    By an interesting coincidence, I’ve just today become aware of a 2008 paper by Deena Skolnick Weisburg et al. on “The Seductive Allure of Neuroscience Explanations”. The gist of their findings is that people are more likely to accept bad explanations of behavior if you throw in some irrelevant neuroscience jargon.

    So the implication for Churchland’s question would seem to be: yes, brain science will affect criminal law, but not necessarily in a good way. At least part of the effect will be a misguided focus on neurosciencey non-explanations that distract people from the real sociological causes of crime.

  11. Kevin
    Posted August 25, 2016 at 12:55 pm | Permalink

    Engineering controls, in the broad social, economic, planned community aspects, will beat out deterministic neurobiology.

    Given someone’s neurological dispositions we cannot predict their actions. Provide them with a more stable society, i.e., like Star Trek utopia: equal health, equal education, and to a large degree, equal opportunity to choose the life one wants, then the remaining outliers will be the only ones left we have to look at carefully to achieve a society where criminal activity does not unbalance the society.

    Another way to think about it is make society statistically capable of absorbing criminal behavior. Today, for example, I could say hello to someone strike up a random conversation about life on Proxima centaur, and little do I know I have just given the person I spoke to the motivation not to take their spouse’s life later that night. Society, as a whole, can make far too many of these opportunities to make it statistically improbable that someone would want to choose to do something wrong, rather than right.

    Determinism is the best thing that ever happened to us, why not us it to our advantage: control people so they have no choice but to do the right thing. It’s like being a prisoner, but a super happy prisoner to an engineered reality.

    • Posted August 25, 2016 at 1:40 pm | Permalink

      Determinism is the best thing that ever happened to us, why not us it to our advantage: control people so they have no choice but to do the right thing. It’s like being a prisoner, but a super happy prisoner to an engineered reality

      Maybe we could grow all embryos in test tubes and dope the ones destined for manual labour with alcohol.

      Or we could subject troublesome teens to negative conditioning while blasting them with Beethoven.

      • Kevin
        Posted August 25, 2016 at 1:57 pm | Permalink

        My ideal proposal would make genetics and behavior strictly off limits.

        I am talking about ‘seat-belt’ re-organization of society. Imagine Telsa v861.4: anyone can have one; drives you anywhere for free and never harms you or anyone. Want to go to Stanford or Harvard? Stanford 93 or Harvard 109 is just around the corner…free. Change all the externals and see what you get.

        No eyedrops during the Ninth will be needed.

    • Posted August 25, 2016 at 3:22 pm | Permalink

      Explored in sci-fi movie “Minority report”. (Didn’t look great, of course.)

    • Ken Kukec
      Posted August 25, 2016 at 9:01 pm | Permalink

      … why not us[e] it to our advantage: control people so they have no choice but to do the right thing. It’s like being a prisoner, but a super happy prisoner to an engineered reality.

      What could possibly go wrong here? Oh, I dunno, maybe see every dystopian novel ever written, every dystopian movie ever made. 🙂

  12. Posted August 25, 2016 at 2:02 pm | Permalink

    I was listening to Harris talking about a similar issue and he suggested that if there were a test for, say, ‘Bernie Madhoff syndrome’, we could develop a treatment for it and parents who refused to administer it would be regarded as negligent.

    The problem with so many determinists is that they leap from ‘behaviour is determined’ to ‘we have the right, if not a duty, to determine it for you’.

    The neurodiversity movement has been pushing for acceptance, not treatment, of a wider range of cognitive types.

    Psychopaths aren’t all destined to become crooks: many will become surgeons, airline pilots, firefighters, etc.

    Psychiatry has been abused in the past to label and ‘treat’ people who are dissident, or hold offensive or inconvenient beliefs, in the West as much as the totalitarian East.

    Determinism shouldn’t licence intervention on people who have committed no crime and who have asked for no ‘help’

    • Gregory Kusnick
      Posted August 25, 2016 at 3:16 pm | Permalink

      Nor should it license psychiatric intervention in the case of people convicted of acts of conscientious civil disobedience.

  13. Ken Kukec
    Posted August 25, 2016 at 2:18 pm | Permalink

    “The implications of this for criminal law are absolutely nil.”

    Really, Ms. Churchland, “absolutely nil”? Hard to believe a thinking adult could write that.

    The acceptance of determinism certainly would not mandate the wholesale abrogation of all criminal law and its enforcement (which, to give Churchland’s answer a more charitable reading than it facially merits, is perhaps all she meant).

    But our current criminal justice system is based on a “blameworthiness” model that essential assumes contra-causal free will. How could rejection of that model in favor of a one based in determinism not have major implications when it comes to determining who should be held criminally culpable and — even more so — in fixing appropriate sentences for those so adjudged?

    Some of the factors now considered — the need to temporarily incapacitate the offender, the deterrence of others similarly situated, rehabilitation, etc. — may well remain relevant under a deterministic model. But others, such as the level of the accused’s willfulness, premeditation — indeed, the very notion of a “blameworthy” mental state itself — would not. The implications are far from “nil.”

    • Posted August 25, 2016 at 4:07 pm | Permalink

      But our current criminal justice system is based on a “blameworthiness” model that essential assumes contra-causal free will.

      I don’t agree with the second half of that. Yes, the system assume blameworthiness, but that doesn’t assume contra-causal free-will. It can equally be based on a pragmatic notion of whether it is susceptible to deterrence.

      But others, such as the level of the accused’s willfulness, premeditation — indeed, the very notion of a “blameworthy” mental state itself — would not.

      I don’t agree. Premeditation and blameworthy mental states are all equally relevant within the “susceptiblity to deterrence” model.

      • Ken Kukec
        Posted August 25, 2016 at 5:17 pm | Permalink

        Our current “blameworthiness” system most assuredly does presuppose libertarian free will; it assigns blame based primarily upon an offender’s mental state (known as the “mens rea“) at the time the crime is committed, on the understanding that one can contra-causally control one’s mental state.

        This is why there are different degrees of culpability (sometimes distinguishing between a misdemeanor and felony offense) assigned offenders depending upon whether they acted intentionally, or knowingly, or recklessly, or negligently, or with no mens rea at all (in the case of so-called “strict liability” offenses). These gradations in mens rea can, and usually do, lead to vastly different outcomes at sentencing, running the potential gamut from imposition of a petty fine or probationary sentence up to the death penalty (in jurisdictions that still employ it).

        True, a system based on a deterministic model might also find some marginal utility, when imposing punishment, in considering an offender’s mental state, solely as a means of deterring others with a like mental state from acting under similar circumstances. But any overlap in the actual outcomes that would be dictated by a “blameworthiness” model and a deterministic model would be wholly fortuitous.

        • Posted August 26, 2016 at 1:52 am | Permalink

          … it assigns blame based primarily upon an offender’s mental state (known as the “mens rea“) at the time the crime is committed, …


          … on the understanding that one can contra-causally control one’s mental state.

          Not agreed. As I said, mental state is equally relevant in the “deterrence” theory of punishment.

          • Ken Kukec
            Posted August 26, 2016 at 9:31 am | Permalink

            You’re hypothesizing a system that does not now exist, Coel.

            It may well be that, under the “deterrence” model you’ve posed, determining a defendant’s “mental state” would still play a key role at a defendant’s sentencing(although I seriously doubt it would be key in precisely the same way, and to precisely the same extent, as it is under the extant “blameworthiness” model). But that’s certainly not the system we have now.

            Now, sentencing judges (and juries, when a criminal case goes to trial) make very specific findings regarding a defendant’s mental state at the time the offense was committed — indeed, they are often required to make such findings by statute or sentencing guideline. But these findings have little to do with any effort to dissuade others from committing similar crimes; they have everything to do with determining how worthy of blame the individual defendant — precisely because he acted with a proscribed state of mind (some older cases even speak of an “evil” state of mind) — so that a condign punishment can be imposed.

            • Gregory Kusnick
              Posted August 26, 2016 at 10:45 am | Permalink

              Ken, I think you’re missing Coel’s point, which is that mens rea is still relevant in determining what kind of crime (if any) has been committed. Negligent homicide is a different crime than premeditated murder, and self-defense isn’t a crime at all. But making those distinctions works just as well if the mental states in question are determined by physical causes; no presumption of libertarianism is needed.

              • Ken Kukec
                Posted August 26, 2016 at 1:49 pm | Permalink

                I caught Coel’s point, and I agree with him that mens rea would still have a role to play under a deterministic model. My point is that it wouldn’t have the same — or nearly as crucial a — role to play. Thus, the implications for a change to a deterministic model are (pace what Patricia Churchland and Coel seem to think) hardly “nil.”

                I think a change in models would have a major impact, particularly on criminal sentencing.

  14. gluonspring
    Posted August 25, 2016 at 2:47 pm | Permalink

    “retribution: a vile sentiment that presupposes that someone could have done otherwise.”

    Even supposing someone could have done otherwise, I fail to see the point of retribution *as a goal* (distinct from deterrence).

    It does seem that humans are wired to feel some kind of satisfaction when “bad guys” suffer, but that strikes me as more of simplifying flaw in our minds than something rational. Tit-for-tat is an adaptive response for social organisms faced with defectors, of course, but like so many biological heuristics our lust to see people punished is a crude and over general one.

    • Posted August 25, 2016 at 3:48 pm | Permalink

      I still prefer retribution to the wish to let criminals who have hurt others get away with their crimes. Has anyone here grown up in a society that is not Christian or post-Christian? I wonder whether this is rooted in the Christian “grace”.

  15. Posted August 25, 2016 at 3:24 pm | Permalink

    By the time “deterministic” individuals have committed one or more terrible crimes for which society incarcerates them or attempts to kill them, it is much too late to re-engineer the mechanisms of “justice”. Some people grow up in economic and social conditions we can hardly imagine, and are permanently damaged by it. Some people never should have children because they are abusive and/or don’t physically/emotionally take care of their children. I have known some of these damaged children. If one out of 20 or 30 grow up to live a “normal life”, that’s an unbelievable success rate. Deterministic elements that cause some people to do terrible things were inflicted on them by the very people who should have loved them. Not all people can live “the good life”. They’ve been too badly damaged.

    So, it is necessary to try to ensure that all children are physically and emotionally cared for, properly nurtured and loved by their families and society. That wouldn’t totally prevent all criminal activities leading to incarceration and societal retribution, but it could greatly reduce the crime rate and, therefore, the need for large prison systems.

    An aside: our justice system needs to get rid of the “pot” laws and other such laws that put people in jail who are not dangerous and have committed minor infractions. Get rid of thos stupid infractions. “Three-strikes-and-you’re-out” laws also should not be used for minor infractions. Let’s save the serious jail time for serious offenders. And, let’s not run a system that is a college for criminals to learn new skills.

  16. Posted August 25, 2016 at 3:40 pm | Permalink

    I agree fully with Ms. Churchland, including the “relatively nill” formula. So I am ready to share the epithets directed at her in the above discussion, though I find her arguments better than those epithets, and the contrary arguments.

    Let me abandon for a moment my libertarian views and try to see how determinism will work in a democratic society. Scientists tell the public that the behavior of criminals is predetermined, therefore the poor ones had no choice and we shouldn’t be too harsh on them. (For mysterious reasons, law-abiding citizens are apparently still regarded as possessing free will, with all unpleasant implications of this.) Then, scientists tell the public that, although behavior is predetermined, and they are sure in this (insert philosophical arguments), they are absolutely unable to predict which individual will commit a crime, and what crime, and most likely will never be able to predict it.

    If you are a doctor and tell the patient that there is little use to try to treat his disease because its course is strictly predetermined, but you are absolutely unable to tell what this course will be, the patient will not be happy.

    Even if determinism is universally accepted among philosophers and scientists, I think it is best to let the illusion of free will dominate the legal world, the way weathermen still speak of “sunrise” and “sunset”.

    Anyway, I agree with determinists that there are factors underlying crime and we must address these factors to prevent a proportion of crimes, but nobody seems concerned with the problem how to convince criminals to stop committing crimes, only with how to convince the public to be lenient to criminals.

  17. Randall Schenck
    Posted August 25, 2016 at 4:08 pm | Permalink

    I suspect you are confusing something that isn’t there. You seem to be saying that having or believing in free will allows people to predict crime from a person whereas determinism takes prediction away.

    Lets just take the typical gang member as an example. We can pretty well predict he will do some crimes and that does not change whether you a determinist or go for free will. In fact you are more likely to go back and do things to change outcomes and reduce crime if you believe in determinism.

    • Randall Schenck
      Posted August 25, 2016 at 4:09 pm | Permalink

      Sorry, that was suppose to be in reply to #16

      • Posted August 26, 2016 at 1:12 am | Permalink

        You are right, but what I meant was that the public will have much higher expectations for such predictions with a deterministic theory. Even now, many people ask why some patients with mental disorders who look dangerous are not locked up before they commit a crime (and this has actually been done in some countries).

  18. Ken Kukec
    Posted August 25, 2016 at 6:39 pm | Permalink

    … pure retribution: a vile sentiment that presupposes that someone could have done otherwise.

    There is an entirely respectable school of penological theory that holds that an offender ought to receive his or her “just deserts,” and only his or her “just deserts” — that he or she ought to receive punishment precisely commensurate with (and only commiserate with) his or her culpability for the crime committed. That is to say, that the offender being sentenced ought not to be used as a tool for the criminal justice system’s efforts at social engineering, whether these efforts turn on estimates of the offender’s future dangerous (which sentencing judges are notoriously no better at predicting than are members of the general public) or attempts to send a deterrent message to the community or other third-parties not before the court (and over whom the offender has no control), or similar concerns.

    I’m not sure where the distinction between a “just deserts” approach and a “pure retribution” approach lies. I am reasonably sure, however, that both a “just deserts” approach and our current system of criminal justice would be rendered obsolete by an acceptance of determinism.

  19. keith cook +/-
    Posted August 25, 2016 at 6:48 pm | Permalink

    I find this line of inquiry ‘ambulance at the bottom of the cliff stuff’ useful for after the fact but none the less coming at it from the consequence’s when there should be more done at the motivational end.
    If we are to use behavioral science, neuroscience’s to predict, then maybe we can avoid a lot of criminal activities by identifying who is at risk at an early age and help prevent the slide, or at the very least, minimize criminal leanings.
    In the longitudinal Dunedin Studies they have shown that it is possible to see which children are not going to have an easy ride in life, we could in theory ‘head them off at the pass’ They can even ‘see’ those who would be most likely to suffer from schizophrenia.
    The broken person idea is interesting (how we can say this with a straight face I don’t know, it could be argued how much broken than society itself) anyhow, I have seen interviews with terribly violent people who later in life, after 40 yrs, reject the criminal urge and start leading a more civil and moral life.
    The outlay in dollar terms could and should be put in the front end and less at the back end of justice and i predict that this would be the case anyway, better educated etc, less acute criminal behaviours, it is all the same in a wider view, the cost of justice.
    If it can be done to weed out all the petty criminal behaviors and move individuals away from this trajectory as in, engage more of the pre-frontal lobe at the right point in decision making, well and good.
    It was shown that young teens will grow out of it normally, but some are more at risk, these are the ones that need help.
    Then and only then logically, can we start using the rules of deterministic behavior knowing we have done the hard yards and are justified to apply these rules on those with a more persuasive genetic and wayward environment, that is, to those who default to criminal acts as a life choice.

  20. Mike
    Posted August 26, 2016 at 7:06 am | Permalink

    “avoid retribution, and begin to design a system of punishment that not only protects society and deters others, but, above all, fixes the problems, both social and neurological, that lead people to break the law.”
    That’s a laudable hope , but I think that as long as Religios Organisations or their followers in Government have any say in the formulation of Laws, its futile to think there would be any change to the system of revenge we now have, especially in Capital Cases.

  21. Posted August 26, 2016 at 11:45 am | Permalink

    I’m a great fan of the Churchlands’ work (both of them). But here Pat’s just out to lunch, I’m afraid. The way I think about this is to ask: suppose we learned (somehow) that we really were could-have-done-otherwise capable, self-originating/self-forming individuals the way Kane wants. I dare say then people *would* say things like “you didn’t use your completely free choice to make the good one here, so we’ll take action because of that.” (Punishment does not follow, nor does this work in every case, but taking action because someone did not use their supposed faculty seems plausible.

    So why is the reverse not?

  22. Posted August 27, 2016 at 11:02 pm | Permalink

    My first introduction to determinism was in 1975 when I took an introductory psychology course from B. R. Bugelski ( Bugelski explained that if someone did harm to one of his family members, he wouldn’t blame them because he recognized that behavior is determined by heredity and environment, but that it would still mean that the offender should face serious consequences from the criminal justice system to deter the offender from repeat offenses and to deter others from criminal behavior.

    In the textbook for the course (authored by Bugelski), behavior was described as determined, but not predetermined. I didn’t understand the distinction at the time. I’m not sure I do now. But I imagine that it means that there is a random element to environmental events that shape our behavior. I’m not sure what is random beyond radioactive decay and effects of radioactive decay on environmental occurrences, but I guess that randomness can have enough of an impact so that the future of our lives cannot be said to be already written.

  23. Posted August 30, 2016 at 4:57 pm | Permalink

    Reblogged this on The Logical Place.

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