Retributive Justice and Our Free Will Illusion

Believing that People are Basically Good Leads to More Punitive Responses.

Todd Brewer / 7.8.21

The foundation of the American legal system isn’t (as some might claim) a Christian vision of morality. It’s the belief in free will. According to no less than the United States Supreme Court:

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.’[1]

All notions of deserved punishment are rooted in the idea that transgressors freely chose to commit their crime. If criminals could have done otherwise, then their crimes were elective and avoidable. Within this context, free will and retribution go hand-in-hand.

As one positive consequence, those whose voluntary abilities are diminished in the act of a crime are usually given lesser sentences: the mentally ill, the mentally impaired, or small children are not usually held accountable for their misdeeds in the same way an average adult might.

But who is this hypothesized “normal individual” the court speaks of? Age and mental fitness are (relatively) easy to determine, but is anyone really that normal — that free? Making judgments over guilt (Who did the crime?) is more straightforward than assigning culpability (Are they at fault in doing so?). This is the quandary philosopher Gregg Caruso investigates in his book, Rejecting Retributivism.

Whether it be the social sciences, philosophy, or neuroscience, the notion of a free will has become increasingly indefensible, or at best qualified to the point of meaninglessness. As Caruso points out, “the more we learn about criminal behavior, the more it becomes obvious that crime has more to do with places and circumstances than people” (p.33). Most prisoners have a lifetime resume that’s scattered with various traumas, poverty, or other social disadvantages. Our choices are heavily influenced, if not determined, by an infinite number of stimuli, systemic forces, and past experiences.

How free is your angry at-the-world neighbor, when he’s addicted to an app and has a supercomputer aimed directly at his brain? Or the diabetic whose nutritional tastes have been shaped by decades of marketing and problems with self-control?

Amid modern arguments against free will, Christian theology goes one step further: we are not free to choose because humans were not created to do so. In his Heidelberg Disputation of 1518, Martin Luther contended, “Free will, after the fall, exists in name only.” People do not operate as otherwise uninhibited moral agents who are capable of choosing between good and evil.

The will is not free, but bound to sin. From the very beginning with Adam and Eve, Luther argues, we were only ever meant to be responsive creatures — to live by faith alone. We are not in control of our fate, nor are we the masters of our domain. Like leaves fallen from a tree, we are blown by whatever winds might swirl around us. Our actions have a more powerful causation, often invisible but nevertheless real.

The ups and downs of life so often derive from what Caruso calls luck — the kind of luck that does not average out over time, but grows. A bad break at an inopportune time can reverberate for decades, and vice-versa. He cites the 2008 Malcolm Gladwell study showing that professional hockey players are disproportionately born in the months of January, February, and March. These players grew up slightly older than their teammates, and therefore were given more ice time and chances to improve their play. If you had the misfortune of graduating college during the 2008 financial collapse, you’re probably still playing catch-up a decade later. And you don’t need to have seen the Wire to recognize the relationship between crime and one’s zip code.

Autonomous control is largely an illusion. The will is impotent against the forces of happenstance that conspire to bless or curse, praise or blame. Before you know it, you’re a tabloid headline facing criminal charges for “deliberate violation of a duty.”

A belief in free will is not a neutral, carefully investigated doctrine one holds. In fact, not one, but multiple studies have shown that “a key factor promoting belief in free will is a fundamental desire to blame and hold others morally responsible for their wrongful behaviors” (p. 31). The simple observation of immoral behavior by someone else actually moves people toward a stronger belief in free will. The greater the desire to punish, the less charitable our interpretations of their actions — “they knew what they were doing,” or so we think. We regularly excuse or judge someone’s actions depending on the degree to which we believe them to be culpable.

Judgmentalism, in other words, correlates strongly with a belief in free will. Strange as it might sound, believing that people are basically good, perhaps with a few blemishes, can lead to more punitive responses. Where free will is espoused, legalism is sure to follow. If you think someone could have done otherwise, but didn’t, then they deserve punishment for their crimes. But if that very same action is explained by way of mitigating factors, then patience wins out.

A low anthropology causes one to search for the most charitable explanations — to look with the eyes of grace for causes and circumstances beyond appearances. This graceful gaze sees beyond the transgression itself, failing to linger on the hideousness of the offense, to a fellow sinner incapable of doing otherwise. It disentangles guilt from culpability — not to find some hidden quality that makes one worthy of love, but to reveal the universal defect from which misdeeds flow.

Far from an archaic doctrine with no relevance for modern times, the belief in the bound will is the birthplace of compassion. Understanding ourselves and others as equally powerless and out of control over our actions gives rise to sympathy. It is weakness that lies at the heart of another’s crimes, a feeble helplessness that mirrors our own.


Featured image via Salon.