Free Will in American Law: From Accidental Thievery to Battered Woman Syndrome

For my last class on naturalism and free will I composed some readings on Sam Harris’ mistreatment of the concept of free will in American law. I already deal with the legal aspects of “free will” in some detail in Sense and Goodness without God (III.4.5, pp. 109-14), and really any discussion of the subject here must begin there (where I cite and explain key Supreme Court rulings as well as standard concepts like the criteria of guilt and the insanity defense, things the public often gets wrong because they think TV legal dramas accurately portray them). I also cover the whole free will debate generally (in the whole of section III.4, pp. 97-118), and explain the reasons compatibilism provides a more fruitful understanding of free will than any alternative. (I have also blogged on free will several times before.)

But to supplement all that, I’m here reproducing one of those course readings I composed, where I address cases not mentioned in SaG (United States v. Grayson – 438 U.S. 41 (1978) and Morissette v. United States – 342 U.S. 246 (1952)) as well as a legal concept also not mentioned there, “Battered Woman Syndrome” (as a legal defense), which supplements my discussion of the insanity defense in SaG. All of this was compiled in response to Sam Harris’ (IMO awful) book Free Will. I have a lot of problems with that book. But here I’ll be addressing only one claim in it. (For those who are curious, much better books recently on free will, though still flawed, are Gazzaniga’s Who’s in Charge? and Kane’s A Contemporary Introduction to Free Will.)

The Claim

In Free Will Sam Harris says:

The U.S. Supreme Court has called free will a “universal and persistent” foundation for our system of law, distinct from “a deterministic view of human conduct that is inconsistent with the underlying precepts of our criminal justice system” (United States v. Grayson, 1978). Any intellectual developments that threatened free will would [therefore] seem to put the ethics of punishing people for their bad behavior in question. [Harris, p. 47]

Harris here and throughout assumes the American legal system adopts a “libertarian” understanding of free will (meaning: a will free from all causation, not a will that votes Libertarian). In fact, as I demonstrate in SaG, the American legal system adopts a compatibilist understanding of free will (meaning: a will that can be both causally determined and relevantly free). To understand how Harris has misread the legal evidence, we must examine the actual court decisions he is quoting and citing. We’ll find his quotation in this case is misleading in several respects.

United States v. Grayson

In Grayson the dispute adjudicated was as follows: a man (Grayson) was convicted and imprisoned for drug possession, escaped, was caught, and when tried for the crime of unlawful escape, lied on the stand. The judge gave him a harsh sentence, partly due to the fact that he lied during the trial. The defense challenged that sentence on various grounds, among those grounds being that Grayson had not been duly convicted of perjury. A lower court ruled for the defense. The Supreme Court then overturned that decision. The higher court concluded as follows (citations now omitted and emphasis added):

A sentencing judge, in fixing the sentence of a defendant within statutory limits, may consider the defendant’s false testimony observed by the judge during the trial.

  • (a) A defendant’s truthfulness or mendacity while testifying on his own behalf is probative of his attitudes toward society and prospects for rehabilitation, and is thus a relevant factor in the sentencing process.
  • (b) Taking into account a defendant’s false testimony does not constitute punishment for the crime of perjury for which the defendant has not been indicted, tried, or convicted by due process; rather, it is an attempt rationally to exercise judicial discretion by evaluating the defendant’s personality and prospects for rehabilitation. To the extent that a sentencing judge is precluded from relying on relevant information concerning “every aspect of a defendant’s life,” the effort to appraise character degenerates into a game of chance.
  • (c) Judicial consideration of the defendant’s conduct during trial does not impermissibly “chill” his constitutional right to testify in his own behalf, for the right guaranteed to a defendant is the right to testify truthfully in accordance with his oath. A sentencing judge, however, is not required automatically to enhance the sentence of a defendant who falsely testifies, but, rather, the judge is authorized, where he determines that the testimony is willfully and materially false, to assess the defendant’s rehabilitation prospects in light of that and all the other knowledge gained about the defendant. [Grayson, p. 41]

This is the context of the decision Harris quotes. In the course of providing the reasoning and basis for this ruling, the court said (here the quoted portion in Harris is presented in bold):

Only one Circuit has directly rejected the probative value of the defendant’s false testimony in his own defense. In Scott v. United States, 135 U.S. … (1969), the court argued that:

The peculiar pressures placed upon a defendant threatened with jail and the stigma of conviction make his willingness to deny the crime an unpromising test of his prospects for rehabilitation if guilty. It is indeed unlikely that many men who commit serious offenses would balk on principle from lying in their own defense. The guilty man may quite sincerely repent his crime, but yet, driven by the urge to remain free, may protest his innocence in a court of law.

… [This] rationale rests not only on the realism of the psychological pressures on a defendant in the dock—which we can grant—but also on a deterministic view of human conduct that is inconsistent with the underlying precepts of our criminal justice system. A “universal and persistent” foundation stone in our system of law, and particularly in our approach to punishment, sentencing, and incarceration, is the “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, 342 U. S. 250 (1952). See also Blocker v. United States etc.]. Given that long-accepted view of the “ability and duty of the normal individual to choose,” we must conclude that the defendant’s readiness to lie under oath—especially when, as here, the trial court finds the lie to be flagrant—may be deemed probative of his prospects for rehabilitation. [Grayson, p. 51]

Notice that the context does not support Harris. He picks the single word “deterministic” and assumes what the court meant was the philosophical doctrine of determinism (wherein all outcomes are determined by prior causes), when in fact, from the context, it is clear that what the court meant was a doctrine that denies the entire ability of human beings to make choices—a view philosophers in fact call fatalism. Yet Harris agrees that fatalism is false (see Harris, p. 33).

Accordingly, the Supreme Court in the Grayson case Harris quotes is actually defending a compatibilist view of free will, as against a fatalist view of human nature, not a determinist view of human nature (the court can be excused for not knowing such specifics of esoteric philosophical terminology; Harris can perhaps be less excused for not paying better attention to the context and nuance of what he is quoting). The very paragraph Harris quotes in fact defines free will as the “ability and duty of the normal individual to choose between good and evil,” and not as the power to overcome all causes operating on a choice.

The Court does assume in this passage that a man in Grayson’s condition (i.e., a defendant legally considered to be in his right mind, etc.) can overcome one causal force operating on him: his fear of the consequences of telling the truth (namely, getting a sentence extension for his escape attempt, the consequence Grayson was attempting to avoid with his lies). But at no point does Harris ever demonstrate that anyone lacks that power. Quite obviously human beings have the power of overcoming such fears, and routinely do. No violation of causal determinism is necessary for that.

Indeed, the Court sensibly observed that if we allowed that no human beings can overcome the fear of what will happen from telling the truth, then no one could ever be expected to tell the truth or ever be held accountable for not telling to truth. Any social system that adhered to such a fatalistic notion of human nature would unravel into dysfunctional chaos. Harris would surely agree with the Court’s ruling; human behavior is not so robotic that it does not even involve human choice and (as a result) truthtelling in the face of negative consequences is impossible. Therefore, Harris cannot validly use this Court’s ruling as evidence of a concept of libertarian free will being employed in American law.

Instead, the Court’s ruling is regarding the “probative value” of Grayson’s lying with respect to his sentencing, in particular the way in which his lying informs the Court about his character (his “attitudes toward society”) and what that entails regarding his “prospects for rehabilitation.” Indeed, the Court specifically said that if a person’s character does not cause their behavior, then no Court (and by extension, no one at all) could ever evaluate the quality of anyone’s character by reference to their behavior. Behavior would then be completely disconnected from any predictable attributes of the person, and evaluating their character would become “a game of chance.” Again, it is such fatalistic absurdity that the Court is rejecting, and again Harris would be forced to agree with the Court on this.

To the contrary, the purpose of moral and legal judgment, this Court affirms, is to “appraise character” and “evaluate the defendant’s personality and prospects for rehabilitation,” and to do so anything the defendant does willfully (i.e. knowingly and intentionally) is evidence pertaining to the defendant’s character, personality, and prospects for rehabilitation. And it is evidence precisely because of causal determinism.

For if determinism were false, there would cease to be any reliable causal connection between what a defendant willfully does and his or her character, personality, and prospects for rehabilitation. Actions would no longer be evidence of intent. Thus, legal and moral judgment in matters of praise and blame require causal determinism, to ensure that what one does evinces what one thinks (about others, about society, about right and right, about telling the truth and telling lies, about behaving well or poorly, and so on).

Since we want to promote telling the truth and suppress lying, one who cannot overcome their fear of the consequences of telling the truth when under oath is rightly judged a person of unreliable character with poorer prospects of rehabilitation and a disrespect of the minimal requirements of living in a society. And that is exactly what this Court ruled. Note that that ruling at no point requires rejecting causal determinism. To the contrary, it embraces causal determinism.

Morissette v. United States

Note that where the Grayson decision defines free will (the very part Harris conspicuously doesn’t quote) it quotes a previous decision, that of Morissette v. United States from 1952. So we need to look at the full context of that remark. There, the matter being adjudicated was the claim, upheld by a lower court, that “intent” should be disregarded in deciding a defendant’s guilt when intent is not specifically mentioned in the statute. That ruling was overturned by the higher court, on grounds that directly lead to the quoted remark in the Grayson case.

In the Morissette case, a man (Morissette) was convicted of “stealing” scrap metal abandoned on federal land, but without the prosecution having proven intent. The defense argued that the prosecution should have been required to prove intent (in this case, that meant proving that Morissette knew he was stealing when he collected the scrap metal, rather than simply salvaging abandoned material). A lower court ruled for the prosecution. But the Supreme Court ruled for the defense. The summary of its decision was as follows (citations now omitted):

(1) A criminal intent is an essential element of an offense under 18 U.S.C. § 641 [the law Morissette was convicted of breaking], which provides that “whoever embezzles, steals, purloins, or knowingly converts” property of the United States is punishable by fine and imprisonment.

  • (a) Mere omission from § 641 of any mention of intent is not to be construed as eliminating that element from the crimes defined.
  • (b) The history and purposes of § 641 afford no ground for inferring any affirmative instruction from Congress to eliminate intent from the offense of “knowingly converting” or stealing government property.

(2) Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury for determination in the light of all relevant evidence, and the trial court may not withdraw or prejudge the issue by instructing the jury that the law raises a presumption of intent from a single act. [Morissette, p. 246]

The decision does discuss “statutory” offenses and “strict liability” where statutes specifically rule out considerations of intent, but where such specific statements are omitted, intent is always to be considered an essential component of guilt for any crime. In short, in such cases, if someone didn’t know that they were committing a crime, they cannot be held responsible for doing so, because there was no intent (there is no mens rea, to use the law school parlance). Thus, the purpose of most criminal statutes (and by extension, I would argue, most acts of moral judgment even outside the legal system) is to regulate bad intentions, not bad actions per se. It is thus intending to do harm that you are held accountable for, not merely doing harm (except in certain specific kinds of cases, which the Court also discusses).

The context in which free will comes to be defined is as follows (citations now omitted and emphasis added):

In those cases, this Court did construe mere omission from a criminal enactment of any mention of criminal intent as dispensing with it. If they be deemed precedents for principles of construction generally applicable to federal penal statutes, they [would] authorize this conviction. [However], such adoption of the literal reasoning announced in those cases would do this and more—it would sweep out of all federal crimes, except when expressly preserved, the ancient requirement of a culpable state of mind. We think a resume of [the] historical background [of those other kinds of laws] is convincing that an effect has been ascribed to them more comprehensive than was contemplated and one inconsistent with our philosophy of criminal law.

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. [Here in Footnote 4 is quoted a history of English law that declares, “Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.”]

A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory “But I didn’t mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. [Here in Footnote 5 is quoted a prior Supreme Court decision that declared, “Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence” and “. . . a prevalent modern philosophy of penology [is now] that the punishment should fit the offender and not merely the crime.”]

Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone’s sweeping statement that to constitute any crime there must first be a “vicious will.” [Citation in their Footnote 6] Common law commentators of the Nineteenth Century early pronounced the same principle, [citations in their Footnote 7] although a few exceptions not relevant to our present problem came to be recognized. [Those exceptions are mentioned in their Footnote 8]

Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil. [Here in Footnote 9 they quote a legal textbook making the pithy remark, “Even a dog distinguishes between being stumbled over and being kicked.”] As the state codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle, but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation. Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. [Example given in their Footnote 10]

The unanimity with which [courts] adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as “felonious intent,” “criminal intent,” “malice aforethought,” “guilty knowledge,” “fraudulent intent,” “willfulness,” “scienter,” to denote guilty knowledge, or “mens rea,” to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common law crimes. [Morissette, p. 250-52]

So here their definition of free will is very carefully and explicitly framed in terms such that denying the relevance of free will in establishing guilt “would sweep out of all federal crimes…the ancient requirement of a culpable state of mind.” They are therefore, yet again, arguing not against causal determinism as Harris assumes, but a fatalism in which intent is no longer the cause of criminal behavior nor what we seek to regulate with laws. Another conclusion Harris must surely agree with.

Here, “freely” choosing does not mean free of causal determinism, but free of exonerating circumstances (such as duress, necessity, involuntary action, ignorance, or insanity). As the court in fact goes on to say in a footnote:

Absence of intent also involves such considerations as lack of understanding because of insanity, subnormal mentality, or infancy, lack of volition due to some actual compulsion, or that inferred from doctrines of coverture [i.e. being in a state of legal guardianship]. Most extensive inroads upon the requirement of intention, however, are offenses of negligence, such as involuntary manslaughter or criminal negligence and the whole range of crimes arising from omission of duty. [n. 8]

Yet even in those latter cases, one must prove that the accused reasonably should have known the duty they are neglecting stands upon them. Thus intent remains even there. True exceptions, the same note says, are statutory offenses, such as statutory rape where the accused could have no reasonable knowledge of the age of a sexual partner yet is convicted anyway (one might question the moral legitimacy of that, but it wasn’t the issue decided by the Court in this case).

Accordingly, in this case the Supreme Court concluded the following regarding the prosecution’s claim that intent was not necessary for guilt:

The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common law crimes on judicial initiative.

[...And for that and various other reasons] we hold that mere omission from [a statute] of any mention of intent will not be construed as eliminating that element from the crimes denounced. [And accordingly...] the law under some circumstances recognizes good faith or blameless intent as a defense, partial defense, or as an element to be considered in mitigation of punishment. [Even] treason–the one crime deemed grave enough for definition in our Constitution itself–requires not only the duly witnessed overt act of aid and comfort to the enemy but also the mental element of disloyalty or adherence to the enemy. [Morissette, p. 263]

The conclusion is therefore quite clear. The Supreme Court rejected (and even deemed well-settled as almost universally rejected) such contra-causal/libertarian-free-will notions as retributive and retaliative justice (i.e. vengeance) as purposes of assigning guilt and instead upheld the distinctly compatibilist purposes for assigning guilt: the deterrence and reform of those of vicious will.

Key to this construction, in fact, is a compatibilist notion of free will: not only do deterrence and reform imply an assumption causal determinism (because in this scheme judging the guilty must be believed to have causal effects on people: to cause them to refrain from crime, or to cause them to change their ways), but more clearly than that, by explicitly linking the concepts of “free will” and “freedom of the will” to the requirement of establishing intent to prove guilt, the U.S. Supreme Court (and all its cited legal experts and precedents) is making clear that a will is free precisely when it results in a decision that can be causally construed as evidence of intent, and is not free precisely when it results in a decision that cannot be construed as evidence of intent.

This is why a claim of duress, for example, exonerates the guilty: even though someone who has a gun to their head can certainly choose to be killed rather than do what they are being commanded at gunpoint to do, courts universally recognize that such actions cannot be evidence of a defendant’s vicious will, since they can only be evidence of a defendant’s wish not to be killed by the one holding the gun—the vicious will in that case is that of the one holding the gun, and they are held accountable for what results. Their will is in that case being substituted for the defendant’s, therefore the defendant’s actions are not evidence of the defendant’s criminal intent, but the criminal intent of the one coercing them.

Similarly, insanity and other defenses that exonerate the guilty all have as their defining component a presumption that, if that condition did indeed obtain, then what the defendant did cannot be considered evidence that they have a vicious will (mens rea) and therefore cannot be used as grounds to punish them for having a vicious will [thus even diagnosed psychopathy never produces a valid insanity defense, and schizophrenia does only if, for example, the psychotic hallucinations it produces tricked someone into doing something bad without knowing it was wrong, a key point to understand in the next section].

The fact that the Supreme Court declares the punishing of a vicious will (and not the mere doing of harm) as the function of the law entails embracing a compatibilist notion of free will, whereby what makes a will free is not a will being free of causation, but a will being free of interference, such that what a person chooses to do can be held as evidence of what their true will was.

And I would argue this is likewise the function of most moral judgments generally. This is what we mean by accountability and responsibility, and this is the purpose of praise and blame: to cause people’s intentions to align with what is necessary for a civil and functional society, through the causal mechanisms of either deterrence, persuasion, restraint, or reform–and to communicate to others evidence of a person’s character.

Laws and morality, therefore, serve the dual function of identifying and evaluating people’s characters and intentions, and in turn regulating them (to whatever end is deemed the proper end of law and morality, which is a separate debate beyond the scope of the present point). And in law we use such terms as “free will” and “freedom of the will” and “free choice” and “freedom of choice” etc. as tools for determining when one’s will is and is not evidence of their character and intentions.

Battered Woman Syndrome as a Legal Defense

Illustrating these points is the use of BWS as a defense at law. For a handy introduction to the idea, see “Criminal Prosecution of Battered Native Women for Failure to Protect” (a 2005 Joint Report of the Southwest Center for Law and Policy and Office on Violence Against Women, U.S. Department of Justice), because it provides a good working case for discussing boundaries, it covers various kinds of affirmative defense, including “duress,” and it illustrates the kind of reasoning we engage in when connecting freedom of the will to identifying injustice in the legal system. Another resource on this issue, which discusses the creation of a “Battered Woman’s Syndrome” defense in law and some of the legal battles and principles relating to its implementation, is Scott Baker, “Deaf Justice? Battered Women Unjustly Imprisoned Prior to the Enactment of Evidence Code Section 1107,” Golden Gate University Law Review 24.1 (1994), pp. 99-130 [full text here as a somewhat clunky PDF].

The term of course is outdated. Gender neutral versions of the concept (e.g., “Battered Person Syndrome”) have since begun entering the law, in some cases by statute, in others by judicial ruling; for recent and more thorough discussion, see the kindle book by Brenda Russell, Battered Woman Syndrome as a Legal Defense: History, Effectiveness and Implications (2010). But here I shall quote for analysis the relevant section of Baker (citations now omitted and some emphasis added):

“Learned helplessness” occurs when the battered woman cannot predict her own safety because regardless of her conduct she is faced with the batterer’s random and unpredictable abusive behavior. Although a battered woman does not necessarily learn to be helpless, she often discovers that she is unable to predict the effect her behavior will have. “Learned helplessness” causes a person to choose “behavioral responses which will have the highest predictability of an effect within the known, or familiar, situation; they avoid responses—like escape, for instance—that launch them into the unknown.” [p. 104]

Under the California Penal Code, the classification for a homicide committed in self-defense is a justifiable homicide, as opposed to an excusable homicide. Excuses for homicide include accident, misfortune, sufficient provocation, insanity, and provocation, and a genuine, but unreasonable, belief in the need for self-defense. Justification declares the allegedly criminal act legal, while excuse admits the act’s criminality but declares the allegedly criminal actor not to blame.

Two types of self-defense exist in California: perfect self-defense and imperfect self-defense. Perfect self-defense requires both subjective honesty and objective reasonableness, and completely exonerates the accused. Subjective honesty evaluates the defendant’s state of mind. Objective reasonableness questions whether a reasonable person would have believed and acted as the defendant did. Imperfect self-defense requires only subjective honesty and negates malice aforethought, reducing the homicide to voluntary manslaughter. Both perfect and imperfect self-defense require an honest belief that the killer is in imminent danger of death or great bodily injury from the victim.

BWS [i.e. Battered Woman’s Syndrome] expert testimony is useful in the defense of battered women accused of killing their abusive spouses because it can explain why a particular battered woman subjectively believed that her self-defense was necessary. Because BWS can illustrate why a particular battered woman had an honest belief of imminent danger, it should be used in the objective reasonableness test to show why a battered woman believed and acted as she did.

In [the] Aris [case], the defendant, a battered woman, appealed a second degree murder conviction because the trial court excluded BWS expert testimony which would have revealed that BWS affected her mental condition at the time of the killing. On the night of the killing, Brenda Aris’ abusive husband beat her and threatened that he did not think he would let her live until the next morning. When her husband fell asleep she went next door for some ice for her injuries. She found a gun and took it for protection. She thought that when she returned home she would again be beaten. Aris went to the bedroom, sat on the bed, and shot her sleeping husband five times in the back.

In Aris, the court held that expert BWS testimony about a defendant’s state of mind was not relevant to the objective reasonableness of the defendant’s actions in self-defense. The court found that the defendant presented no substantial evidence that a reasonable person under the same circumstances would have perceived an imminent danger and a need to kill in self-defense. The court believed no reasonable jury could conclude that a sleeping victim presents an imminent danger of great bodily harm, especially when the defendant left the bedroom and subsequently returned to shoot the victim. Nevertheless, the court also held that it was error not to permit an expert to testify about the defendant’s particular experiences as a battered woman and its effect on her perceptions of danger, its imminence, and what actions were necessary to protect herself. The court found that the error was harmless because Aris’ own testimony showed that there was nothing in the victim’s behavior indicating the existence of imminent danger.

Relying on the expert testimony of Dr. Lenore E. Walker, the court stated that a woman who has been battered and then threatened with more abuse is more likely to perceive the danger involved faster than one who has not been abused. The court found that a battered woman accurately senses when an abusive episode is not yet over. However, the court cautioned that the jury may misuse BWS evidence to establish the reasonableness requirement for perfect self-defense. Upon request by the prosecution, the judge should instruct the jury that self-defense testimony is relevant only to prove the honest belief requirement for both perfect and imperfect self-defense, not to prove the reasonableness requirement for perfect self-defense.

Two years after Aris was decided, another court held that failure to present evidence of BWS constituted ineffective assistance of counsel. In People v. Day … the prosecution used many of the stereotypes and commonly held misconceptions about battered women, such as the stereotype and misconception that battered women can easily leave their batterers. The prosecution used this basic misconception to challenge the defendant’s credibility before the jury by asking the question, “why did she not simply leave?” In fact, the defense counsel characterized the defendant’s relationship with her batterer as “mutual combat.” The misconception about battered women is that they all behave in the same way and if a woman dares to fight back she removes herself from the category of women for whom BWS is available as a defense.

On appeal, a psychologist and authority on BWS submitted an affidavit supporting appellant’s motion for a new trial. The affidavit dispelled many myths associated with BWS which were used by the prosecution to question defendant’s credibility during the trial. The affidavit established that battered women do employ active self-defense as a strategy. The court held that evidence explaining BWS informs the jury that how they think the average reasonable person would behave and how the jury thinks they personally would behave are not necessarily the same way that people who have been battered in fact behave.

The court understood that when deciding a case where a battered woman kills her batterer, the jury will ask “what would I do in that situation?” Most people who are unaware of BWS would naturally answer this question, “I would just leave.” BWS testimony helps explain why the battered woman does not leave and helps a jury understand the psychological effects battering has on a battered woman. BWS theory explains how a battered woman can accurately sense that danger still exists and why her subjectively honest belief is that she must act to save her life.

Here two distinctions are being made relevant: (1) it is not argued that just any causal factor that influences a battered woman’s decision to kill her batterer is exonerating (as if she were to be excused simply because she was causally determined to act), but rather that a certain sustained and systematic environment of abuse substantially alters a battered woman’s state of mind in such a way that it no longer reasons as ordinary minds would (hence the jury is to be instructed not to judge by the standard of what they would do in the circumstance, but by the standard of what a woman forced into that particular mental state can reasonably be expected to do in the circumstance) and (2) this is exonerating solely because it removes the causal conditions that would otherwise entail a “vicious will.”

In other words, a woman in such conditions is not acting with mens rea, but in reasonable fear of her life, “reasonable” in this case being measured by the standards of her altered mental state, an altered mental state only persons who have been victimized by sustained abuse will find themselves in. Accordingly, this is a defense limited to a specific set of causal circumstances. Why is this set of causes exonerating and not others? Because what exonerates a will from blame under the law is evidence that the otherwise-criminal act (actus reus) was not produced by a criminal intent (mens rea) but by an intent recognized as morally or legally or socially acceptable.

Therefore, the issue in cases like this is not that causal determinism exonerates agents from blame, but that decisions that do not evince a criminal mind exonerate agents from blame. Free will in this case is a will that exhibits a sound connection between the action and its intent, as opposed to a will that does not. For example, a coerced will is where the coerced’s will is being replaced by the coercer’s will; the action the coerced takes therefore does not indicate a criminal mind in the coerced, only in the coercer. Or an insane will, where, for example, the insane’s will is being replaced by an altered will that is making decisions based on a delusion that was not itself willfully chosen, such that within the context of that unavoidable delusion, the actor’s decision makes sense and is not criminal. As, for example, killing someone in a delusional state whereby you genuinely believed they were trying to kill you: such an act does not evince a vicious will and therefore is not found guilty. Causation is not the issue here. The link between a choice made and the chooser’s intent (and hence their character, personality, “attitude toward society,” and so on) is the issue. This is what makes American law intrinsically compatibilist in respect to free will.

In the case of BWS, we are in a circumstance similar to an insanity defense, whereby a battered woman delusionally believes her life is in more immanent danger than it objectively is (e.g. by believing that fleeing would ultimately result in her death and staying would ultimately result in her death, leaving no perceived alternative). Thus, BWS does not provide what California law calls a “perfect” self-defense (which requires objective reality to match subjective belief; objectively, a battered woman can just leave). But it does provide an “imperfect” self-defense, by establishing the act was not the product of criminal intent (or to be more precise, under American law, by establishing that the act cannot be proved beyond a reasonable doubt to be the product of criminal intent).

There are other aspects of BWS and its relation to free will (legally and morally), even beyond those discussed in the Joint Report. But in all cases it reduces to the same set of analyses. Overall, BWS is similar to being in a state of slavery as defined in United States v. Kozminski (the case I discussed in Sense and Goodness without God, pp. 111-13): chains and bars are not necessary, all that is necessary is the legitimate cognitive fear that escape is impossible or too dangerous to attempt (regardless of whether it objectively is). And altered mental states can create such a legitimate cognitive fear. Thus, we recognize that fact in law, and generally in moral judgment as well.

In this and many other ways we can see that American legal system predominately adopts a compatibilist understanding of free will, and even helps us understand just what a “free will” really and meaningfully is, both legally and morally. And it is not “being free of all possible causation.” Sam Harris, along with Christians obsessed with contra-causal free will, are simply wrong about that.

Comments

  1. Jeffrey Johnson says

    Certainly the compatibilist conception of free will is more fruitful than a libertarian conception. There is abundant evidence from human behavior to suggest the libertarian free will simply does not exist.

    It seems to me that the compatibilist conception of free will is really one of mental competence. Daniel Dennet provides support for this point of view in the free will section of his latest book, “Intuition Pumps”. A culpable state of mind is one that is competent to judge the consequences of actions, and the rightfulness and wrongfulness of those consequences. The effectiveness of punishment requires the competence to understand the relationship between deed and consequence so that deterrence is acheived.

    I don’t see how this requires any conception of free will whatsoever. It can be founded upon competent intelligence. Continuing to use the phrase “free will” is nothing more than cultural tradition, and a linguistic inheritence that actually comes from Cartesian dualism and contra-causal free will.

    It may seem that the compatibilist free will is more fruitful, which is probably just a matter of it being convenient not to have to reeducate the world on why the term “free will” isn’t conceptually consistent with the deterministic nature of the human brain and mind neurologically, and that human behaviors traditionally understood as “free will” can just as easily be explained in terms of mental faculties competent to make rational judgements. But compatibilist “free will” is just a pseudo-explanation for a group of macro-level behaviors of humans. This phrase has nothing to do with anything scientific.

    Compatibilist “free will” is not at all fruitful for scientific purposes. It is entirely useless at the level of cognitive science because it doesn’t actually describe any real mechanism. It is merely a conceptual label, a linguistic social convention, for naming a collection of behaviors we observe in normal healthy human intelligences. It has no more use to explain human cognitive abilities than “elan vital” has as an explanation for why collections of cells built from molecules are animated and alive.

    The compatibilist attachment to the phrase “free will” seems to have more to do with reasons of ideology, tradition, and social convention than it has to do with fidelity to accurate description of nature.

    • says

      There is abundant evidence from human behavior to suggest the libertarian free will simply does not exist.

      Indeed. IMO, it’s not even logically coherent (one of the points I demonstrate in Sense and Goodness without God).

      A culpable state of mind is one that is competent to judge the consequences of actions, and the rightfulness and wrongfulness of those consequences.

      Which is basically the underlying standard for the insanity defense in American law (and in other common laws, such as Germany, whose insanity defense is, translated, word-for-word almost identical to the relevant section of the U.S. Model Penal Code).

      I don’t see how this requires any conception of free will whatsoever. It can be founded upon competent intelligence. Continuing to use the phrase “free will” is nothing more than cultural tradition, and a linguistic inheritence that actually comes from Cartesian dualism and contra-causal free will.

      All language is cultural tradition. We can’t pave the earth with leather. So we wear shoes. We use the language people know. And the language of free will is cognitively intimately tangled up with an abundance of other phrases and ideas (liberty, freedom to choose, compulsion, voluntary action, and so on) so there is no getting rid of it.

      Moreover, the same debates would then devolve around any new term you developed (Harris would have written the same book with the title being that new word, making all the same mistakes and all the same confusions between deliberate and subconscious choice-making and the same conflations of the causal effect of education and guns-to-the-head), so changing the language would have no net effect in the long run.

      It’s better to just educate people on the concepts and not worry what words they use to reference them.

      It may seem that the compatibilist free will is more fruitful, which is probably just a matter of it being convenient not to have to reeducate the world on why the term “free will” isn’t conceptually consistent with the deterministic nature of the human brain and mind neurologically, and that human behaviors traditionally understood as “free will” can just as easily be explained in terms of mental faculties competent to make rational judgements. But compatibilist “free will” is just a pseudo-explanation for a group of macro-level behaviors of humans. This phrase has nothing to do with anything scientific.

      That’s a tautology. It’s a term of philosophy, not science. Insofar as scientists want to build hypotheses about free will for determining empirical tests of mental competency and the limits of human volition and so on, they have to decide which model to adopt from philosophy and test. There is no scientific use for any model except the compatibilist. (Incompatibilism gets wrong what volition means, and libertarian will gets wrong what the physical facts are.)

      Compatibilist “free will” is not at all fruitful for scientific purposes. It is entirely useless at the level of cognitive science because it doesn’t actually describe any real mechanism.

      That’s false. It’s an extremely fruitful scientific model for distinguishing when a person has a free choice and when they don’t, one that can unify disparate conditions such as duress (whose exonerating nature libertarian free will cannot explain) and insanity (whose exonerating nature incompatibilism cannot explain, without eliminating legal responsibility entirely).

      Compatibilism is the model whereby free and unfree choices can be empirically distinguished and physically explained with neuroscience. Incompatibilism denies there is a difference (which is false) and libertarian will attempts to explain the difference with pseudoscience (which is no better than astrology).

      On the scientific utility of compatibilism read:

      Gerben Meynen, “Free Will and Psychiatric Assessments of Criminal Responsibility: A Parallel with Informed Consent,” Medicine, Health Care and Philosophy 13 (2010), pp. 313–20.

      Jeff Huffman and Theodore Stern, “Capacity Decisions in the General Hospital: When Can You Refuse to Follow a Person’s Wishes?,” The Primary Care Companion to the Journal of Clinical Psychiatry 5.4 (2003), pp. 177–81.

      Eddy Nahmias, “Why ‘Willusionism’ Leads to ‘Bad Results’: Comments on Baumeister, Crescioni, and Alquist,” Neuroethics 4.1 (April 2011, Volume 4, Issue 1): 17-24.

      Baumeister-Crescioni-Alquist, “Further Thoughts on Counterfactuals, Compatibilism, Conceptual Mismatches, and Choices: Response to Commentaries,” Neuroethics 4.1 (April 2011): 31-34.

      Nahmias, Morris, Nadelhoffer and Turner, “Is Incompatibilism Intuitive?” Philosophy and Phenomenological Research 73.1 (2006): 28-53.

  2. Cassandra V. Greer says

    In regards to the idea that a battered woman can simply leave her abuser, statistically the time she is most likely to be killed is when she leaves. Life can be dangerous. Sandi Greer

    • says

      Which if we could establish that scientifically would bring the defense even into the sphere of “objective reasonableness.” I have long thought that should be the case, that “immanent threat” should be understood broadly and not narrowly. If you reasonably believe any effort at protecting your rights against a looming threat of death will get you killed, such as fleeing or even calling the cops, and that belief can be shown reasonable from abundant records of past cases turning out badly, you should have a legal defense against killing the threat. Perhaps there is an argument against that. But I think it should at least be seriously debated.

  3. Jason Goertzen says

    I tend to agree that you’ve shown Harris’ choice of example was poor, but most of your critique involved articulating points Harris would probably agree with, since his whole point was that we have to divorce our justice system from the notion of “retribution” or “punishing” people for their “evil will,” since their intentions aren’t things they choose.

    I find the determinism vs. libertarianism vs. compatibilism debate to be a bit odd. It strikes me as being as if:
    - chemists were going around insisting that it is meaningless to speak about “biology,” when clearly it is just complex chemistry
    - religious folks (mostly) insisting that biology *isn’t* just chemistry, but that something different and ethereal is at work
    - while a third group was admitting that biology was just chemistry, but that it was very important to keep calling it biology nonetheless.

    Compatibilism seems, to me, to be determinism that uses “free will” language as a shorthand. I don’t see cases of compatibilist descriptions being “truer” or more precise–only easier and more natural-sounding.

  4. MrHolbyta says

    While your case that American jurisprudence is based in a compatibilist understanding of free will is sound, that does not necessarily mean that free will is objectively compatibilist, just that American jurisprudence operates on that model. I wonder how one, as a materialist, can escape fatalism.

    If we reject dualism & locate the mind in the brain, it seems to me that we are left with an electrochemical computer. Choices boil down to the stimulations of nerves with sensory input which then go to various decision-making centers (e.g. the amygdala and/or the prefrontal cortex) where a decision is made and the result converted into motor function. (Of course, there are decisions which either arise without directly triggering sensory input and/or without motor output. I merely describe the most common process.) All of these neurological interactions are driven by the laws of physics, chemistry, & biology. If the universe were arranged identically, with all particles in the exact same spot what would allow for a different outcome from the electrochemical computer which makes all our decisions, apart from quantum uncertainty (which I presume does not factor into your compatiblism)?

    If we are left with fatalism, I would still argue that laws and sanctions are every bit as just and necessary as if compatiblism is the correct model. They provide data which are encoded in our brains about our environment and, if we have experienced sanctions previously, past experience on which to draw viz. our current decision; i.e. they are factors which can modify how the electrochemical computer processes the facts to reach a decision by creating varying neurological circuits.

    I’m sorry if you cover this in SaG. I have only known of you for a month or so and have not had the opportunity to read it, yet.

    • says

      I wonder how one, as a materialist, can escape fatalism.

      It can be empirically disproved readily. See my discussion of the difference between determinism and fatalism in Sense and Goodness without God (e.g. III.4.6, pp. 115-18), although it’s also discussed at the CFN site I linked to (here).

      Even Harris presents a decent empirical refutation (Free Will, pp. 33-34).

      Although this of course assumes we are using the word in the same way (see Wikipedia, which also illustrates the difference between fatalism and determinism).

      Your own specific example I actually address directly in my book, even elaborating on it, and that might clarify things (SaG III.4.3, pp. 102-03).

  5. sawells says

    Richard, would it be fair to say that the meaning of “free will” that’s useful for legal and moral reasoning is something like this: we do something of our own free will if we choose one of multiple options in the light of a reasonably accurate mental prediction of the consequences of the choice?

    I think that this captures the legal requirement for mens rea, and lets us deal with the cases of insanity, where a person’s mental prediction of consequences is not accurate because their mental causal model of the world is flawed, and the case of unpremeditated acts, where no prediction is made.

    It seems to me that what makes people cling to contracausal free will – for me, a physical absurdity – is the fear of future-blindness: we need free will because otherwise we could march deterministically into foreseeable doom like a clockwork toy walking off a table. But it’s exactly the component of futurity that the simulation capabilities of our minds provide – we can make our decisions based on a prediction of what will happen as a result. I think that’s the capability which people intuit as “free will”.

    I read something by Dennett, a few years ago, on the difference between determinism and inevitability, and I think this is consistent with those ideas.

    • says

      Richard, would it be fair to say that the meaning of “free will” that’s useful for legal and moral reasoning is something like this: we do something of our own free will if we choose one of multiple options in the light of a reasonably accurate mental prediction of the consequences of the choice?

      No. At least, not that exact wording, which might carry the wrong entailments. We can act on inaccurate predictions but still be acting freely (as when a criminal predicts robbing a bank will make him rich, rather than shot dead on the street).

      A choice to be free simply has to be what you knowingly choose (not what someone else does, and not what you don’t know you are doing), thus pointing a gun to your head violates your free will by substituting someone else’s will for yours (likewise electrode mind control, and so on), while at the same time acting in self defense against a hallucinated attacker violates free will because you don’t really know what you are doing (you reasonably believe you are doing x when in fact you are doing y).

      The trick is defining what “you” is (the physical cognitive architecture that constitutes “you,” such that subtracting anything further would begin destroying you, in a way that subtracting limbs does not, for example).

      A bank robber knows what he is doing (robbing a bank) and that it is wrong (and no one is meaningfully forcing him to do it, etc.), so his inaccurate predictions of what the outcome will be do not affect the fact that he is freely choosing to do wrong (and therefore is in fact guilty of doing wrong).

      This is why “intent” (hence “vicious will” vs. “meritorious will”) is a key component of guilt in law.

      I read something by Dennett, a few years ago, on the difference between determinism and inevitability, and I think this is consistent with those ideas.

      Possibly that was Elbow Room, still to this day the best book on free will.

    • sawells says

      @5.1: I think the “accurate prediction” doesn’t need to go further than the robber knowing that he’s aiming to leave the bank with money that is not his :) so broadly we agree – when you say “knowingly choose”, I think the “knowingly” part is what I was trying to express. Thanks for the clarification.

      Checking on wikipedia I think the one I read was “Freedom evolves”, which Dennett describes as another installment of the same project that Elbow Room belongs to.

  6. Cassandra V. Greer says

    I am now retired, but I was a therapist in real life. I cannot name the studies off the top of my head, but have done some work on domestic violence, and this is indeed the case.

  7. says

    For me, the whole issue of free will in law, whether libertarian (which is indeed incoherent), or compatibilist, is a complete red herring. Your phrase “the Supreme Court declares the punishing of a vicious will (and not the mere doing of harm) as the function of the law,” summarizes the problem nicely.

    The obsession with establishing blame, or viscous will, is given primary importance – necessary for the dishing out of punishments, but rationally this can not be the principal function of the legal system, as I demonstrate in a recent essay, Crime and Punishment.

    What would maximize society’s expected benefit would be to try to answer two other questions: What constitutes an improper act? and, How can we prevent improper acts in the future? To be properly addressed, these questions must be addressed scientifically.

    Regarding the second of these, past behaviour is relevant only as a predictor of future behaviour. Bare acts, prior influences, states of mind, states of information, among other things, all contribute to the calculation of future risk and the optimal rectifying treatment. It is the causal relationships between these data and those future risks that science must be brought to scrutinize. Thus, the importance of the past is limited to what it informs us about the future. The concepts of culpability, free will, and punishment, in that they focus on the past rather than the future, seem to me to mask the central importance of these relationships.

    • says

      What constitutes an improper act? and, How can we prevent improper acts in the future?

      Note that this confuses division of labor. The first question is for legislatures, not courts. The second question is for law enforcement and prevention agencies, not courts. For courts is the task of determining when an improper act has occurred…as instructed by the legislature regarding what constitutes an improper act.

      It is incorrect to imagine these as competing questions. We have simply divided the labor among them and have each one asked by a separate governmental system. (There is a fourth as well: the prison system should be concerned with safety and rehabilitation, and yet in the U.S. so far does poorly at the former and dismally at the latter.)

      But yes, this should all be done as scientifically as possible. That’s argued throughout Sense and Goodness without God.

      The concepts of culpability, free will, and punishment, in that they focus on the past rather than the future, seem to me to mask the central importance of these relationships.

      Then you are staring too much at the court system and not noticing law enforcement, legislatures, and incarceration systems.

      Punishment relates to the future in its causal effect called deterrence. Culpability relates to the future in a similar causal effect (which is why we have in our constitution a prohibition on ex post facto law: in making future decisions, we need to know now which decisions are and are not culpable). Free will relates to the future in all the ways prevention systems, for example, take into account the nature and extent of human free will and how to manage it.

    • Jeffrey Johnson says

      In Richard’s reply:

      The second question is for law enforcement and prevention agencies, not courts .For courts is the task of determining when an improper act has occurred…as instructed by the legislature regarding what constitutes an improper act.

      I think an oversight here is that courts also dole out sentences, which is an essential component of the question “How can we prevent improper acts in the future?”, namely the component of deterrence and rehabilitation. To comprehensively address the inhumane aspects of our current legal system, the courts, law enforcement, and the corrections system need to be working in conjunction with a common understanding of what constitutes humane punishment and effective rehabilitation.

    • says

      Yes. Essential component. But not sole or even primary component.

      And yes, they definitely need to work together, and could do a lot better than they do (at least in the U.S.; I have less experience with the systems in lower crime nations).

  8. says

    The first question is for legislatures, not courts.

    In common-law systems, legal precedent is often set by previous cases. The cases you cite above, themselves citing past cases in arriving at their decisions, support this. I disagree that classifying the propriety of acts is outside the scope of the courts. In any case, this question has two sides: deciding in principle what is improper, and deciding in specific cases exactly what has been done.

    The second question is for law enforcement and prevention agencies, not courts.

    It seems like your last paragraph (comment 7.1) refutes this.

    My argument is that in a rational system preventing improper acts must be the function of the courts. More precisely, their function, along with that of legislatures and law enforcement agencies, should be to minimize the cost of improper acts.

    Some preventative mechanisms are, of course, already implemented by the courts, but ineffectively, and to a significant extent as by-products of systems that typically want to focus more on punishing past acts, rather than guiding future behaviour. Hence, the interest in free will.

    Sure, there are issues associated with free will (e.g. did the person have a gun to their head at the time of the act) that rightly impact on decision of the course of action by the court (and, in fact, on decision as to whether or not the thing done was improper), but the concept of free will is not necessary for such algorithms, and keeps the focus irrationally on punishment: whether or not we can justify taking revenge.

    • says

      In common-law systems, legal precedent is often set by previous cases.

      Except even that can be overridden by legislatures. And all such courts are trying to do is interpret legislation in the first place (even when they are trying to determine propriety, as you say). The only possible exception would be common law, but even that has been legislatively enacted in the establishing of courts.

      The point being, legislatures deal with questions of what’s wrong, and the courts do their best to enact that. Thus, free will and similar concepts will operate there differently at the legislative level than they do in court decisions. And you will find the question of what’s wrong and why will be much more directly and commonly addressed in legislatures. And thus we can’t claim that because courts do it less, that it isn’t being done enough. Or even indeed that the courts should do it more. That would abrogate the rule of the people. We should prefer to decide our own laws through the electing and petitioning of legislators (and allegiance to our constitutions).

      In the same fashion, preventing crime is primarily the duty of law enforcement and civil management, and is far more discussed and dealt with there than in the courts. The courts only do their best to be a part of that by enacting the will of the people, represented in legislation. But again, if you want to ask how much it’s being done, your field of vision must be wider than just “the courts,” as a great deal (indeed most) prevention occurs at the level of law enforcement and civil management (for example, tree planting campaigns have been proven to reduce crime and are therefore now on the agendas of many city governments…if you only look at what the courts are doing, you won’t notice this).

      …preventing improper acts must be the function of the courts

      This forgets civil courts which have the function as well of correcting injustices and adjudicating contracts (e.g. lawsuits, family courts).

      In the simplest sense the function of courts is to interpret the law. If we have, through our laws, instructed the courts to take on specific tasks in relation to preventing crime, they do so, but that is not their primary function. Their primary function is to take care of what happens when prevention fails. And even then, only with regard to how to redress the situation. The actual task of reforming violators, for example, is taken up by the penitentiary system (or should be; we have a big blind spot on that in the U.S.). The actual task of preventing violators is taken up by law enforcement and civil management (having a free education system is a huge part of that, for example…again, if you only look at what the courts are doing, you won’t notice this).

      You also seem to think punishing past acts is pointless, when in fact it is essential to deterrence. Basic Game Theory: if past acts aren’t punished, future acts cannot be regulated (other than fascistically, which is not an option for anyone who believes in liberty). It is precisely because people can freely react to deterrence that deterrence uses free will to regulate crime. It is thus mistaken to think free will plays no part in that.

  9. says

    I think we more or less agree. I’m not saying punishment is pointless – incapacitation and deterrence are important parts of lowering the cost of wrong-doers.

    Correct me if I’m wrong though (sincerely), but if the language is cast in terms of something that needs to be justified by establishing the free will of the wrong-doer (which is by the way confused by a majority with something ‘magical’), then the culture is heavily biased toward proving evil intent, and toward making the wrong-doer ‘repay a dept to society,’ which is typically impossible. The current attitudes toward punishment seem to me to have very little to do with making the criminal repay anything, other than metaphorically. Rationally, repayment is at best only part of the goal – and metaphorical payments don’t go far.

    Everything that is successful about punishment would be just as successful if the ‘criminal’ was an AI whose software was entirely written by me (assuming I could write such code). Thus the need to establish free will loses force. Only the need to know how a treatment will affect AI’s future behaviour remains.

    I think that not just the language, but also the underlying philosophy of many legal systems is fundamentally flawed, though I have stepped far from my field of scholarship in making that statement.

    • says

      The courts are tasked with proving evil intent. Civil society is tasked with preventing it.

      I agree U.S. punishment systems are inconsistent and badly executed, but that’s not the courts’ fault. That’s the fault of legislators and executives badly designing and leading our incarceration and tort systems. And the solution is there.

  10. EDTA says

    Very interesting post. I don’t follow Sam Harris, but I appreciate refreshing my understanding of the legal system.

    Just one thing – your mention of germany in the comments (1.1) leaves me confused. I always thought germany and other european countries had a tradition of civil law, not common law. Am I misinformed about this?

    • says

      Sorry. I didn’t mean to imply the technical term of common law as in pre-legislated law. It’s part of Germany’s penal code. Which I would wager was legislated.

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