Can We Have Justice Without Free Will?

Our criminal justice system is based on the assumption of free will. If we believe someone has freely chosen to commit criminal acts, they must pay the price. In contrast, if we deem them mentally incapacitated at the time of the crime, we no longer hold them culpable.

Although belief in free will is still widespread among the general public, many scientists and philosophers are convinced that free will does not exist. Science has shown us the deterministic nature of the universe, with every effect having a preceding cause. If this is true, then it means you don’t make a free choice to act or not in a given moment. Rather, every choice you ever make is already predetermined by past events.

If there is no such thing as free will, then this should have important ramifications for the criminal justice system. How can we hold people accountable for their actions if they have no ability to choose freely? For this reason, some philosophers argue that it’s important to maintain the charade of free will for the sake of social stability.

In fact, studies have shown that when people are asked to read a convincing passage arguing against the existence of free will, their attitudes toward justice and morality change. For instance, they recommend more lenient sentences for convicted criminals than do those whose belief in free will hasn’t been swayed. They also express more positive attitudes towards cheating, racism, and aggression, presumably because they assume that without free will people won’t be able to hold back their darkest urges.

Some philosophers argue that this evidence shows the criminal justice system would collapse if people stopped believing in free will. And yet, until now no one has tested the idea that real judges would change the way they pass sentence if they no longer believed in free will. This is the gap in the research that University of Cologne (Germany) psychologist Oliver Genschow and colleagues attempted to fill in a study recently published in the journal Social Psychological and Personality Science.

For the purposes of this study, Genschow and colleagues recruited 87 experienced judges (roughly equal numbers of men and women) to serve as research participants. Half of the judges read a passage from Francis Crick’s book The Astonishing Hypothesis, in which the noted scientist argues that free will is an illusion. The other half read a different passage from the same book, in which free will was never mentioned. This procedure has become the standard method for influencing people’s free-will beliefs in laboratory studies.

Next, the judges were asked to read 10 vignettes of someone who had committed a crime. After each one, the judges were instructed to recommend a specific prison sentence, in years and months, for each offender. Finally, the judges responded to a survey intended to assess their degree of belief in free will.

This three-part process is essentially the same as prior research testing the effect of disbelief in free will on laypersons’ attitudes toward justice and morality. As we’ve already seen, laypeople recommend more lenient sentences after their free-will beliefs have been manipulated. But would professional judges also be susceptible to this kind of attitude manipulation?

The answer to this question is both yes and no. Yes, in that the attitude manipulation worked. That is, those who’d read the passage arguing that free will is an illusion reported reduced belief in free will compared to those who’d read the neutral passage.

However, when the researchers compared the recommended sentences produced by the two groups of judges, they found no differences. In other words, even judges with a reduced belief in free will passed sentences of similar length to those whose belief in free will hadn’t been influenced. From this study at least, it appears as though fears that a general disbelief in free will would lead to a breakdown of the criminal justice system are unfounded.

The nagging question left unanswered in this study is why the degree of belief in free will had no influence on the judges’ recommended sentence lengths. Since the participants weren’t directly asked about this, the researchers can only speculate on the reason. However, it’s also important to note that one of the authors of this paper is himself a professional judge, and this speculation is corroborated by his own experience.

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The researchers maintain that laypeople have no idea what standard prison sentence lengths are. How many years do you get for armed robbery or auto theft anyway? As a result, typical participants make a wild guess based on their feelings about justice, morality, and free will. Thus, they’re easily swayed by the attitude manipulation.

In contrast, experienced judges know what the standard lengths of prison sentences are for various crimes. For this reason, they all made similar sentencing judgments whether they believed in free will or not. In other words, they decided based on precedent rather than on personal belief—a hallmark of an equitable justice system.

The authors also point out the criminal justice system in Germany, as it is in the United States and other developed countries, is not nearly as dependent on the concept of free will as people generally believe. Specifically, decisions in the criminal justice system are based on two components: retribution and deterrence.

Retribution is the idea that a transgressor must pay a price to be forgiven. In criminal justice, the convict pays back society by time in jail, fines paid, community service, and so on. But even in interpersonal relationships, studies consistently show that victims need their transgressors to pay a price before they can fully forgive them. Likewise, deterrence is the idea that public punishment of a convicted criminal will deter others from engaging in similar criminal acts.

Neither retribution nor deterrence necessarily rely on the concept of free will. We know that people tend to view a transgression, whether criminal or interpersonal, as an imbalance that must be righted with a payment. Likewise, deterrence can work through fear rather than rational choice.

If you want to accept the scientific worldview, there’s no escaping the conclusion that free will is an illusion. But despite the dire admonitions of the fearmongers, we don’t need to delude the public. Rather, so long as we have a system of justice that aligns with what we know about human behavior, it simply doesn’t matter whether you believe in free will or not.