Our criminal justice system is based on the idea that people in a society act out of free will and therefore are responsible for the choices they make. With that widely accepted assumption and with a basis in both religion and law, society is then free to exercise vengeance and retribution in punishing offenders.
We can dole out the worst punishments possible, we can subject offenders to inhumane conditions, and justify it because of our belief that human beings are capable of making evil choices in their lives and therefore have given up their rights to be treated with dignity and humanity. Hence, we maintain a penal system that puts people to death, or warehouses them for up to 60 years or longer. We tolerate super-isolation in super-maximum security prisons where offenders are allowed no meaningful human contact for months or years at a time.
But what if we changed our view of free will? What if we explored with open minds the possibility that as human beings, we have only a very limited free will. Further, what if science could show that everyone is a product of the intense interaction among their genes, their formative experiences, and their physical environment; and that the combination of those three characteristics can and do affect a person’s conscious and unconscious behavioral choices?
With evolving medical research into brain scanning and brain mapping, science is able to definitively show that environmental factors can cause some genes to turn off for a time, and then turn back on. The switching on and off of the genes causes a physical change in the brain itself. For instance, violent felons often have reduced neurological activity in their prefrontal cortex compared to non-violent felons and non-felons, according to the research.
Similarly, widely published studies show a direct correlation between delayed adolescent brain development (specifically, the prefrontal cortex) and inhibited judgment. A teenager’s prefrontal cortex, the area of the brain that controls impulses and decision-making, is not fully developed until his early 20’s. While most teenagers emerge into adulthood without having exhibited out-of-control behavior, some teenagers do exhibit such uncontrollable behavior, often resulting in violence. An examination of the lives of violent adolescent offenders nearly without exception shows evidence of prolonged physical and/or sexual abuse, neglect, trauma, or the witnessing of violence against a trusted authority figure or parent; or, injury to the prefrontal lobe. If the childhood environment also included other common stressors (family drug or alcohol addictions, poverty, absent parents, etc.) or if the child did not bond with his mother or became unbonded, then all the necessary components are in place for antisocial behavior. Free will is constrained and overpowered by factors out of his control. The fuse has been lit, and it is just a matter of time before the adolescent explodes in a violent rage.
In the case of an adult turned violent offender, he may also have the requisite childhood and adolescent stressors. This is particularly true of so-called adults, ages 20-25. When violence surfaces in an older adult’s life, accompanied by dramatic personality changes, the likely cause is damage to the prefrontal cortex. Documented cases have shown that such damage by illness or trauma can cause profound changes in character. Formerly docile, law-abiding citizens transform into foul-mouthed, irresponsible, antisocial individuals prone to uncontrollable rage and violence.
When we are the product of factors that are out of our control, our ability to exercise free will is severely hampered. Our choices become reactionary. Rather than assume that people are making conscious decisions to be good, or conversely, to be evil, scientific evidence supports the idea that our behavior reflects unconscious decisions that are the product of our genes, our environment, and our experiences.
So with this basic assumption that our free will is at best limited, does that mean that people, especially criminals, should not be held responsible for their actions? No, it does not. The idea of limited free will shouldn’t have a bearing on culpability, but only on how we treat offenders. If we accept the idea that criminals have less, or limited, free will in choosing their behavior, and if we then logically understand that we, too, could find ourselves the victims of neurological damage and thus, altered behavioral characteristics, then we are better able to choose a compassionate, restorative treatment path for those offenders physically and mentally able to benefit from it.
A good starting point would be with our juvenile justice system. The first step has to be in defining, on a federal level and in accordance with the United Nation’s treaty, the Convention on the Rights of a Child. The treaty explicitly says for all legal and criminal proceedings, a juvenile is defined as a child under the age of 18. In the United States, the age varies by state with children as young as 9 being tried as adults.
The concept of free will assumes that we are all on the same playing field and by conscious decision-making, we are able to choose goodness or to choose evil. But it is time to consider the abundant scientific research coupled with sociological data and to recognize that the playing field is not equal for all. For some, it is an Ivy League polo grounds, but for too many others, it is a gravel filled parking lot.
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