Free will's enormous cost: why retribution, grounded in free will, is an invalid and impractical penal goal.

• Author: Moyer, Matthew D.

"[O]ur criminal law is so rooted in theological ideas of free will and moral responsibility and juridical ideas of retribution ... that we by no means make what we should of our discoveries." (1)

"Prison is for the people we're scared of not the people we're mad at." (2)

INTRODUCTION

In August 2008, fifty-two-year-old Daniel Mosley purchased four ounces of methamphetamine from his drug dealer in Norman, Oklahoma. (3) He was pulling out of the dealer's driveway when he was apprehended and arrested by local police. (4) Mosley cooperated with law enforcement, admitting that he had purchased meth and that he had previously been arrested for meth-related offenses. (5) In the past, Mosley suffered from drug and alcohol addiction, leading to convictions ranging from DUI to possession of marijuana and methamphetamine. (6) After being released on bond, Mosley voluntarily checked himself into an inpatient drug treatment center, admitting that he was addicted to drugs and alcohol. (7) He was convicted under Oklahoma law for buying the meth. (8)

In a presentence report, Mosley's parole officer noted his successful completion of the drug treatment program and the drug-free lifestyle he had since avowed. The officer determined that Mosley was not a threat to the public, and recommended a one-year community sentence. (9) The judge stated that she wanted to show mercy, but her hands were tied. (10) Under Oklahoma's habitual drug offender statute, Mosley's prior convictions mandated that he receive life without the possibility of parole for his conviction. (11) Due to a nonviolent crime, a man deemed a nonthreat by his parole officer was sentenced to die in prison.

Mosley's sentence is not exceptional, (12) and neither are the circumstances that led him to a life of addiction and drug abuse. He grew up in a house of drug and alcohol addicts, leaving home at the age of seventeen to escape physical abuse from family members. (13) In treatment, Mosley acknowledged that his upbringing likely led to his own abuse of drugs. (14) Examining Mosley's story, it is hard to view him as completely free in his actions. To start, environmental factors increased his chances of becoming an addict in the first place. (15) Second, once he was addicted, the force of addiction undoubtedly compelled Mosley to buy drugs to satisfy his addiction. (16) It is odd, to say the least, that a man so diligently seeking to reform himself could be sentenced to life without parole for feeding an addiction that was all but thrust upon him by the cards he was dealt.

In the context of addiction, it is easy to understand that the addict might lack free will, as his brain is fundamentally altered by the drugs he takes. (17) Addiction is an obvious case of lessened or lacking freedom, and is easily understood: drugs act on the brain and change its chemistry, altering the drug user's behavior. But this Note takes the position that addiction is merely one example of the nonfreedom that pervades the human experience. External, environmental factors, working on and with the brain, are sufficient to determine activity. Brains are made of matter, which operates in a deterministic way, in accord with the laws of biology, chemistry, and physics. Therefore, consciousness and decisionmaking arising from that material brain must be similarly determined. In the addiction context, the forces sufficient to determine activity are early environmental exposure to drug use, genetic predisposition, initial recreational use, and so forth. With everyday decisions, like what to eat for breakfast, (18) there are similarly forces external to conscious control that, when taken together, are sufficient for the brain to make the choice one way or the other.

The pervasive penological goal of retribution runs afoul of this determinism. It stands for the idea that people deserve punishment when they tear the moral fabric of society by breaking laws. It presupposes free will, because to deserve punishment, one has to have a free choice to break the law in the first place. Part I of this Note describes retribution's role as a major penological goal. Part II argues that since free will is a necessary assumption for retribution, free will's nonexistence renders the penological goal illogical. Part III examines two major drug laws whose passage and enforcement were predicated, in large part, upon retributive morality. It discusses an appeals court case in which the merits of a common-law defense of free will to drug possession were considered and ultimately rejected. Part IV discusses the enormous cost imposed upon society by the retributive passage and enforcement of drug laws. Finally, Part V of this Note briefly surveys the utilitarian-based goals of rehabilitation, deterrence, and incapacitation, offering them as superior alternatives due to their focus on benefitting society.

1. RETRIBUTION AS A GOAL OF PUNISHMENT

   There are several justifications behind punishing people for criminal acts. The first is retribution, "punishment's traditional moral purpose." (19) Retribution presupposes that criminal action "inherently merits punishment." (20) It stands for the proposition that the punishment must match the crime. (21) While most adherents to a retribution-based model of justice do not take the "eye for an eye" mantra literally, many still believe that murdering another warrants a death sentence for the convict, for example. Unlike the other penological justifications of rehabilitation, deterrence, and incapacitation, retribution is not aimed at any practical social good. (22) It stands for the proposition that those in violation of moral laws necessarily deserve punishment, as they chose to shatter the moral fabric of society. To make the claim that one's choices determine her blameworthiness, one must assume that free will exists. (23) If free will is an illusion, it would make no sense to consider a person blameworthy for acts not freely chosen. This Note argues that since there is no free will, people cannot logically deserve punishment on account of their choices. As such, retribution should not be used as a justification for punishment. In its place, legislatures and judges should apply rehabilitation, deterrence, and incapacitation as penological goals to use punishment as a means to an end: social benefit. (24)

2. ATTACKING FREE WILL, A NECESSARY CONDITION FOR RETRIBUTION

   On one hand, as human beings, we have an abiding sense that we are free to act in whatever way we please. We are convinced that we are the unbound, unfixed sources of our own decisions. (25) On the other hand, we know that the universe operates deterministically, governed by the laws of physics, biology, chemistry, and so forth. (26) So how could it be that human beings, composed of matter (much like everything else) are free from the deterministic laws of science, and able to function as the undetermined sources of our volitions? If the neurons in our brain, interacting among themselves and with the rest of the body, create consciousness, it hardly seems that we can be free. (27) After all, neurons are just cells, made of matter, transmitting signals according to discernable (though not fully understood) scientific laws. (28)

   Due to principles of cause and effect, our whole mental existence may be the effect for which the action of our neural machinery is the cause. And causes determine effect. (29) On the other hand, if there is something nonphysical about our conscious selves, such as a soul, then that could be the uncaused, unfixed source of the decisionmaking process. Resultantly, whether or not free will exists turns on what the source of consciousness is. Free will, or libertarianism, necessarily involves belief in something apart from the physical. (30) Determinism involves the belief that matter, governed by science-based laws of cause and effect, creates our consciousness. (31) If this is true, then consciousness and decisionmaking are fixed by the physical, biological, and chemical processes that underlie them.

   1. The Libertarian Position

      Libertarians adhere to the belief that free will exists. Together with the strong, intuitive experience of freedom, the historical roots of free will provide an explanation for its unshakable place in modern thought. Early beliefs in free will trace back to Hellenistic philosophers. The influential philosopher Plato (428-347 BCE) believed that human beings have a soul and that freedom was a faculty of the soul. The "rational part of the soul ... govern [s] the lower, passionate parts of the soul." (32) Plato's conception of the passionate aspects of the soul implies their nonfreedom: passions are things that just happen to us. (33) The rational soul, in its freedom, rules over those passions. (34) Another of the most influential proponents of the existence of free will was the Christian philosopher and theologian Augustine (354-430 CE). (35) He believed that the will was a "distinct power of the soul." (36) It conferred upon people the "innate ability to act or to feel ... free[] from external coercion." (37)

      Rene Descartes (1596-1650 CE) also had an enormous influence (38) on people's view of the self and free will. (39) Writing several centuries after the Hellenistic philosophers and Augustine, Descartes was presented with challenges by newly developed laws of science. (40) Consider gravity, a rudimentary law of physics. If a pen is dropped several feet above a table, with nothing obstructing its path, it will invariably fall. (41) The release of the pen is causally sufficient for its fall to the table. The law of gravity and the manifold laws of science suggest that the physical world is deterministic, with rules external to physical objects fixing their behavior. Why would consciousness be an exception, since human beings are part of the physical realm? Descartes's answer was to divide the universe into two realms: the mental and the physical. (42) He...