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Keep religion out of the courtroom

13/04/2013

It makes no sense for a court to be asking an expert witness whether the defendant was acting under his own volition.

Science can’t really show anyone is ever capable of free choice.
There’s no scientific reason to believe (or disbelieve) that the whole universe isn’t a totally deterministic phenomenon governed down almost to quantum level by cause and effect – with some randomness slipping in between the grains of reality.
Whether human ‘choice’ is ever capable of acting as a first cause isn’t a scientific question – it’s a philosophical or religious one.

By breaking the bonds of cause and effect volition transcends the jurisdiction of science.
If it even exists.

Some of us believe that everything we think, say and do is entirely our own responsibility. Yet it can be demonstrated that people sometimes retrofit volition to a situation over which they had no control. And the advertising industry seems to think its worth spending trillions every year trying to mess with our motives.

Though the jury is still out on freedom of action, both individually and collectively people generally act as if they think they really do have options when they make a decision and seem to usually believe that others too are capable of exercising free choice unless externally constrained.

Communities come to arbitrary consensuses as to what degree of free choice and culpability might be assigned to members of different ages, genders, classes, races or psychological categories, as well as what constitutes ‘external restraint’.
The jester was able to get away with behavior that might have cost a nobleman his head.
Someone ‘possessed by demons’ might be excused the foulest outbursts against a pillar of society.
But such social conventions are no more objective or scientific than those that try to govern sexual morality.
They are merely collectively agreed norms that vary widely across cultures and history.

The courts are not the determiners of scientific or philosophical truth. They are expressions of the collectively agreed norms of our community.

By calling on scientific experts to determine criminal culpability judges are not only shirking a responsibility they took up when they put horsehair on their heads, they are feeding the hubris of those who would take the witness stand and presume to categorically answer one of the most fundamental questions of what it means to be a sentient being.

What does it mean to find someone not responsible for their own actions?
It means that responsibility lies with those who did not give a helpless person and any other victims the means to avoid the calamity of serious crime.
It lies with us.

If we find ourselves guilty, the one in the dock is often given an indeterminate sentence that will be longer than if we had found him guilty.
As well as losing his bodily freedom he will see his intellectual, emotional and spiritual horizons disappear behind walls of forced medication and psychotherapy.
And some will think he got off on a legal technicality.

Once you start issuing ‘get out of jail free’ cards to people labelled crazy you’ve got yourself a real crisis of legal deterrence.
Before you know it you’ve got to start locking up crazies not for what they’ve done, but for what they might do.
For what the experts say they might do.

But you know what?
Violence due to mental illness is actually pretty rare.
Much more rare than violence against people with mental illness.
And the tools the experts use are kinda clumsy. But they do keep them sharp.
Sharp enough to implicate eight to ten people who won’t be violent for every one that will be.
But still blunt enough to exonerate about one in five who will go on to commit serious violence.

Sensitivity and specificity like that might be good enough for scientists.
But didn’t William Blackstone demand better of the courts?
Why have we reversed Blackstone’s ratio for the mentally ill?

Like it or not, the courts are there to rule on matters of community consensus.
They shouldn’t be able to pass the buck to an unaccountable technocratic elite as they once did to a theocratic one.

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From → hurts, rant

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