Chapter 16: Biology, the Criminal Justice System, and Free Will

Welcome to Last Minute Lecture.

This free chapter overview is designed to help students review and understand key concepts.

These summaries supplement not replaced the original textbook and may not be redistributed or resold.

For complete coverage, always consult the official text.

Okay, let's really unpack this.

Imagine being told that our entire criminal justice system, you know, the way we think about crime and punishment, is fundamentally flawed by what science is telling us.

Maybe even needs to be abolished entirely.

Sounds pretty wild, right?

Well, that's the territory we're diving into today, exploring Robert M.

Sapolsky's chapter, Biology, the Criminal Justice System, and, oh, why not, free will, from his book Behave.

Our mission for you is to get into this tricky intersection of biology, responsibility,

and yeah, free will, and pull out the key insights.

A shortcut, really, to being well -informed without getting totally bogged down.

Exactly.

And what's so compelling is that this isn't just some abstract philosophical debate.

You know, Sapolsky, he's a neuroscientist.

He starts with this really provocative idea that kind of kick -started the field of neural law.

But he doesn't stop there.

He goes way beyond those surface -level legal tweaks and actually makes us question the very foundations of how we judge human actions.

It's pretty deep stuff.

Right.

So his initial idea, the one he actually pitched to a foundation looking for big ideas, was seriously, abolish the criminal justice system because of neuroscience.

And that really did spark a whole field, neural law, this mix of brain science and legal thinking.

He wasn't kidding.

And it's key to grasp where he's coming from.

He's not actually that interested in the usual hot topics like, should we use brain scans in court, or how good are lie detectors, or the exact IQ score for legal responsibility.

He kind of sidesteps those because he thinks they're just tinkering around the edges,

like putting a nice new coat of paint on a house that's unsound.

These things matter, sure, but they don't get to the core issue of, well, what does it even mean to be responsible?

And to make that point stick, he uses this really vivid and honestly pretty unsettling analogy, the 16th century witch justice system.

Think about the methods back then.

Just barbaric.

You had the flotation test, right?

Float.

You're a witch.

Sink.

Well, you're innocent, but hopefully they pull you out in time.

Or finding a devil's spot, some patch of skin that didn't feel pain.

Proof of witchness.

And the tear test.

If you didn't cry hearing the story of the crucifixion, which simple as that.

Yeah, brutal.

And then you get this Dutch doctor, Johan Weyer, in 1563.

He writes this book, and he's considered a reformer, right?

He still believes in witches, absolutely.

But he points out that, hey, maybe some elderly women just physically can't cry because, you know, their tear ducts have atrophied.

So his big reform was, let's just make sure we're not burning old ladies whose tear ducts are dried up.

Yeah.

Empathetic, maybe for the time, but it's still operated entirely within that fundamentally flawed framework.

Exactly.

And Sapolsky uses that to say, look, maybe our modern scientific reforms, like arguing about brain scans or IQ points, are kind of like Weyer's tear duct argument.

Well intentioned, maybe improving things slightly, but still missing the bigger underlying problem with the whole system's premise.

Wow.

That's a powerful way to frame it.

Makes you think how people might look back at us.

So OK, when we talk about biology and behavior, Sapolsky lays out three basic ways people tend to view free will.

First, you've got complete free will.

Second, zero free will.

It's all biology and environment.

And third, the most common view probably is somewhere in the middle.

Right.

And that first one, complete free will.

Honestly, almost nobody really believes that, not when you push it.

I mean, think about someone having a major epileptic seizure right there, flailing.

They hit someone purely by accident.

Centuries ago, maybe they'd have been prosecuted.

Seriously, even animals used to be put on trial.

But today,

everyone instantly would say, oh, that wasn't him.

That was the seizure.

It's his disease.

Yeah, absolutely.

That acceptance alone shows how far we've already shifted.

We universally accept that biology can, in some cases, just completely take the wheel.

OK, so if complete free will is basically off the table, most people land on that third option somewhere in between, sometimes called mitigated free will or in philosophy, maybe libertarian dualism.

Yeah, that's the idea that there's a sort of non -physical mind or spirit, our free will part that interacts with our physical biological body, but can sometimes be constrained or overridden by it.

Like there's us and then there's our biology.

Gotcha.

And the classic legal example of trying to navigate this is the M 'Knighton rule from way back in 1842.

Came from a case where Daniel M 'Knighton, who had paranoid psychosis, tried to kill the British PM but shot his secretary instead.

The rule basically says you're not responsible if, due to a disease of the mind, you literally couldn't understand what you were doing or that it was wrong.

We saw echoes of this much more recently and controversially with John Hinckley Jr.

Right.

Now, this is where Sapolsky brings in that brilliant metaphor for mitigated free will,

the homunculus.

He paints this picture of a little person, like a tiny CEO sitting in a control room in your brain.

This little guy isn't biological, not made of neurons or anything science can measure.

He's made of, I don't know, pure willpower or something.

He gets all the biological data feeds, the hormones, the neurotransmitters, but he makes the final call.

He's outside the cause and effect rules of the universe and he only loses control, Sapolsky says, in really extreme cases like that or massive brain damage.

Then the system crashes and the homunculus has to reboot.

It's a fantastic image and it's not just clever, it's his critique.

He's arguing that any claim of free will, even a little bit, implicitly relies on this unscientific, almost magical little person pulling the strings and science, he thinks, keeps shrinking the room that homunculus has to operate in.

So that really is the core issue for people who believe in that middle ground, isn't it?

Where exactly do you draw the lines?

When is the homunculus driving and when is biology legitimately taking over?

Precisely, and society argues about these lines constantly.

You see it clearly with age, for example.

The Supreme Court has made big rulings, Roper V.

Simmons, Graham Miller, saying you can't execute or give life without parole for crimes committed as a juvenile.

And the science backs it up, right?

The adolescent frontal cortex, the part for judgment and impulse control, it's just not fully wired yet.

It's like you wouldn't hold a piglet to the same standard as a full -grown pig, biologically speaking.

Exactly.

And then there's brain damage.

Most people would agree, okay, if someone's frontal cortex is completely destroyed, responsibility is clearly diminished.

But then the arguments start.

How much damage is enough?

99%.

80%.

Where's the cutoff?

Even skeptics like Stephen Morse agree that damage to those higher deliberative centers matters.

What about the social angle?

I know Michael Gazzaniga, another big neuroscientist, he kind of says, okay, free will is an illusion, but you're still responsible because responsibility is something that emerges between people in society.

Right.

He puts responsibility in the social contract, not just inside one person's head.

But Sapolsky pushes back on that too, saying, well, wait a minute, isn't our social world also created by all our determined biological brains interacting?

So it's hard to separate them neatly if you really buy the biology.

Interesting point.

Another line people try to draw is based on how fast a decision is made,

like slow, careful, deliberative choices.

Maybe that's the homunculus, but those split second impulsive actions, maybe that's pure biology taking over.

This actually came up when the American Psychological Association seemed to argue both ways on teen maturity, saying they're too immature for harsh criminal sentences, but mature enough to decide about abortion.

Oh yeah, I remember that.

And Lauren Steinberg, who studies adolescent brains, he explained it by saying, look, the frontal lobe's immaturity mostly affects impulse control, those fast reactions.

It doesn't impact slower reason deliberation nearly as much.

So maybe the homunculus is just slower or takes breaks during impulsive moments.

It gets complicated trying to make it fit.

And then there's this other distinction, causation versus compulsion, which sounds kind of fuzzy.

It is pretty nebulous.

I mean, technically all behavior is caused by something,

but compulsion suggests this overwhelming biological force that just swamps rational thought.

Think about schizophrenia.

If someone has delusions, like an imaginary friend suggesting they mug someone, the law might still hold them responsible.

But if they're hearing thundering choruses and baying hellhounds commanding them to do it, that looks a lot more like compulsion, like the biological storm is just too strong.

Okay.

Okay.

And we can't talk about this without mentioning that famous libette experiment, right?

The one with the wrist flick.

Ah, yes.

Benjamin libette back in the eighties, he had people watch a clock and decide whenever they felt the urge to just flick their wrist and note the exact time they felt that urge, that conscious decision.

But he was also measuring their brain activity.

And he found this electrical signal, the readiness potential building up in the brain about half a second before the person

feeling the conscious intention to move.

Four, half a second.

Wow.

So the brain was already gearing up to act before the person consciously felt like they decided to act.

That's the implication.

Yeah.

It really messes with our intuitive feeling that our conscious decision is what initiates the action.

Yeah.

Now, interestingly, libette himself later suggested, maybe we don't have free will to start an action, but we might have free won't, like a conscious power to veto the action the brain already started preparing.

Free won't.

Still trying to carve out a space for conscious control there.

So, okay, it seems like this mitigated free will idea trying to balance biology and the homunculus keeps having to redraw its lines as science learns more.

But Sapolsky argues there's an even deeper line people draw, maybe the most fundamental one for believers in mitigated free will.

And that's the distinction between aptitude and effort.

Right.

And this connects directly to Carol Dweck's really influential work on motivation in kids.

You know her stuff.

Yeah, the growth mindset idea.

Exactly.

She found if you praise kids for being smart,

praising their innate ability, their aptitude, they actually tend to shy away from challenges later.

They don't want to risk looking not smart.

But if you praise them for working hard for their effort, they become more resilient, enjoy challenges more, right?

Because effort is something they feel they can control.

Yeah.

Praising smarts makes effort seem kind of unnecessary or even a sign you're not naturally smart.

Precisely.

And Sapolsky says this common distinction reflects that deep -seated belief.

Aptitude, talent, impulses, that stuff feels biological.

But effort, struggling,

resisting temptation, pushing through that feels like our free will, our homunculus, making a choice.

You can see that in how we talk about people.

Like the story of Wilma Rudolph.

Born premature, had polio, wore a leg brace, and then becomes the fastest woman in the world.

We call that inspiring.

We admire the effort, the willpower.

Whereas someone who's just effortlessly brilliant or athletic from day one, we might say that's impressive, acknowledging the natural gift, the biology.

We separate the two.

But Sapolsky really goes after this distinction.

He calls it folk psychology.

He brings up the incredibly difficult example of Jerry Sandusky, the convicted child molester, and an analysis by James Cantor, an expert on pedophilia.

Cantor said something like, one cannot choose to not be a pedophile of the orientation, but one can choose to not be a child molester of the action.

Sapolsky sees this as perfectly illustrating that folk psychology split.

The urge, pedophilia is biological, but resisting it, not molesting, is free will, effort.

But Sapolsky argues that the capacity to resist an urge, the effort part, is just as profoundly biological as the urge itself.

Think about all the things that affect self -control or effort, your blood sugar levels right now, whether you got enough sleep, stress hormone levels, childhood trauma, genes related to dopamine or serotonin, even weirdly subconscious cues like smelling the sweat of someone who's scared.

Wow, okay, so even the effort part is tangled up in biology.

Deeply tangled, he argues.

It's not some separate willpower muscle operating independently.

It does feel like biology's reach just keeps expanding into areas we used to reserve for, well, us.

But I know there are critics, people like Stephen Morse, who you mentioned.

He talks about brain overclaim syndrome, right?

He does.

Morse is a law professor and a prominent skeptic about rushing neuroscience into the courtroom.

He basically says, yeah, neuroscience is fascinating, it gives us prettier pictures, but is it really telling us much more about predicting behavior or assigning responsibility than, say, psychology or genetics already did?

He calls it determinism du jour.

Determinism of the day, okay.

And, you know, Morse makes some good points.

Juries can definitely be swayed by impressive looking brain scans, even if they don't fully understand them.

And a lot of neuroscience is descriptive, it shows correlations, but proving direct causation for complex behavior is really hard.

But what's interesting is even when experiments do seem to show causation, like using TMS, transcranial magnetic stimulation, to temporarily zap a brain area and change someone's moral judgments,

Morse still tends to fall back on that distinction between causation and compulsion.

There it is again.

Right.

And Sapolsky argues that distinction, again, implicitly needs that little homunculus somewhere, deciding whether the cause rises to the level of compulsion or not.

But Sapolsky does agree with Morse on one really important point, doesn't he?

About prediction.

Yes, absolutely.

He readily admits that while neuroscience can explain a lot about the many, many biological factors influencing behavior, it's currently pretty bad at predicting specific actions for specific individuals.

He gives examples, right?

Like if you break your leg, it's nearly 100 % predictable you'll have trouble walking.

If you have the specific gene mutation for Huntington's disease, it's very likely you'll get the disorder.

High predictability.

But for complex stuff, if you have major damage to your frontal cortex, maybe there's a 75 % chance you'll show significant behavioral changes.

But predicting who becomes an abusive adult based on risk factors, or who gets PTSD after trauma, or even who has an IQ over 140,

the predictability drops way below 50%.

So it's not that there's less biology involved in those complex behaviors.

No, not at all.

Sapolsky stresses this.

It's not less biology.

It's a different kind of biology.

It's multifactorial.

A broken bone is relatively straightforward cause and effect, but behavior.

It's this incredibly complex web neurotransmitters, hormones, genes, epigenetics, environment, upbringing, culture, hormones you are exposed to in the womb,

countless interacting factors.

We're only just starting to map parts of that web.

Marvin Minsky, the AI pioneer, this great definition of free will,

internal forces I do not understand.

And we're constantly discovering more of those internal forces.

Most of the research linking, say, oxytocin to social trust or showing how TMS can alter decisions.

That's all really recent, mostly in the last decade or two.

The science is still very young.

Okay.

So pulling this all together,

if we accept that science is steadily revealing more of these internal forces chipping away at the space for the homunculus, how does Sapolsky think future generations might look back at us, at our current legal system?

Well, he brings back that epilepsy analogy.

Think about the journey from the Malleus Maleficorum in the 1400s, burning people because seizures meant intimacy with the devil, to today where we instantly say it's not her, it's her disease.

That's a huge psychological distance we've traveled.

And Sapolsky argues, the domain we attribute to free will has been shrinking steadily for centuries as we learn more.

We learned about the frontal cortex and impulse control.

We learned schizophrenia is a biochemical disorder, not demonic possession.

We learned about dyslexia, about PTSD, about epigenetics.

He basically suggests that people a few centuries from now might look back at our current system of blame and punishment with the same kind of incredulity that we feel when we look back at 15th century witch trials.

They might see it as just as primitive based on a faulty understanding of behavior.

That leads to his idea of archaeological humility, right?

Like how archaeologists leave parts of a site undug because they know future tools and knowledge will be better.

Maybe the legal system should have some of that humility, especially about irreversible punishments.

Exactly.

Recognizing the limits of our current understanding.

So given all this,

what does he suggest we actually do now he proposes three steps, kind of a roadmap.

Okay.

Step one is the easy one, pragmatically speaking,

protect society from dangerous individuals.

If someone is a danger, you have to restrain them, take them out of circulation.

It's like taking a car with faulty brakes off the road.

Purely practical.

Neuroscience, he says, following thinkers like Green and Cohen changes nothing about this basic need for safety.

Okay, that makes sense.

Quarantine, not necessarily punishment.

What's step two?

Step two is the nearly impossible one,

psychologically.

Abolish punishment as an end in itself.

Retribution.

The idea that people deserve to suffer for wrongdoing.

This, he says, changes everything.

Because let's be honest, there's often a kind of satisfaction, maybe even pleasure, in seeing punishment meted out.

Brain scans, like those by Morris Hoffman, actually show dopamine release, a pleasure signal, when people punish rule breakers, even at a cost to themselves.

It seems to be a deep -seated, maybe atavistic drive.

Sapolsky suggests we need to consciously work against that drive, find our satisfaction elsewhere.

Wow.

Abolish retribution.

That's huge.

And the third step.

The third is a massive practical challenge.

Deterrence.

Because the threat of punishment does deter some behavior, that's undeniable.

So the question becomes, how do you maintain deterrence if you remove the belief that punishment is morally deserved or virtuous?

Maybe, he suggests, the simple loss of liberty, the quarantine aspect, has to be deterrent enough.

We manage to stop feeling virtuous about punishing epileptics.

Maybe we can evolve past feeling virtuous about punishing other behaviors rooted in biology we don't yet fully understand.

It's a radical rethinking.

I can see why some people react strongly, saying this view is dehumanizing, reducing people to just machines, broken or otherwise.

He addresses that directly.

Sapolsky argues the thinking of people with damaging behaviors as, essentially, broken machines in need of fixing or containing if fixing is impossible, is actually a hell of a lot more humane than demonizing and sermonizing them as sinners.

It shifts the focus from moral condemnation to understanding cause and finding solutions.

Okay, that's a powerful counter.

But then he takes it one step further, doesn't he, to what he calls the really hard part.

Well, yes.

This is where it gets really, really uncomfortable for most of us.

If we're going to say there's no real free will behind our worst actions, because they're the product of biology and environment.

Then logically, consistently, you have to say the same thing about our best actions.

Your talents, your creativity, your moments of compassion, your willpower to do good things, your self -discipline.

Those are also the products of your unique biological luck, your upbringing, your genetics, your environment, not something you freely chose out of nothing.

He tells this little story about praising a friend for picking out an amazing pineapple at the store.

And then he catches himself thinking, wait, why is she good at picking pineapples?

It's her genetics giving her good olfactory receptors, her cultural upbringing, teaching her what cues signal ripeness,

her socioeconomic status, allowing her to shop at a place with good produce.

It's all a chain of fortunate circumstances, not some pure act of pineapple choosing free will.

That is incredibly hard to internalize, to not take credit for the good stuff.

It really is.

Sapolsky admits it's virtually impossible to live your daily life feeling like there's no free will.

We're kind of built to feel like agents making choices.

So what's the takeaway then?

How do we live with this?

Maybe, he suggests, the goal isn't to completely eliminate these intuitive homuncular myths about ourselves and our own agency.

Maybe we keep those benign myths for our everyday lives.

But we try to reserve our most rational, scientific, deterministic thinking for the moments when it truly matters most.

When we are sitting in judgment of others, especially when we're inclined to judge them harshly.

Use the science to foster compassion, not just for ourselves, but particularly for others.

That's a really profound thought to end on.

Use the science for compassion, especially when judging.

Well, that brings us to the end of another, I think, pretty mind -bending deep dive.

We've really journeyed into this complex world where biology, justice, and free will collide all through the lens of Robert Sapolsky's work.

Yeah, we've seen how he argues that just tweaking the current system might not be enough.

How that idea of mitigated free will keeps bumping up against this homunculus problem as science advances.

And how ultimately even our best moments, just like our worst, seem deeply rooted in our biology.

And we touched on those huge implications for the legal system.

The need for safety, yes, but maybe moving beyond retribution, that punishment for punishment's sake.

Seeing it, perhaps, as an old instinct we need to manage, like we did with how we view epilepsy.

And wrapping up with that really challenging idea, if you can't take full credit, freely chosen credit,

for your mistakes,

can you really take it for your triumphs?

It definitely gives you something to chew on as we all try to figure out this world filled with internal forces we do not understand, at least not yet.

Thank you so much for joining us on this exploration.

We really hope this deep dive gave you some new, maybe challenging perspectives to consider.

And a warm thank you from the Last Minute Lecture Team.