Mae DesTroismaisons
The Meaning of Freedom
April 28, 2014
Professor Randall Harp
Introduction: Defining “Me”
Who am I, and why am I me? It’s one of those questions you ask when you’re a little kid, but to this day, I still feel a certain childish wonder when I ponder it. It seems the more I learn, the more complex the question becomes. I now ask, rather, what is “me”?
In Biology, I learned that there are seemingly countless other organisms—bacteria, yeasts, fungi—which are the parts that make up the whole organism of “me”. I couldn’t live without some of them, and some of them couldn’t live without me. It made me wonder if maybe I too am, as the Fleet Foxes song goes, “a functioning cog in some great machinery serving something beyond me.” I learned about genetics, and how certain traits I possess, like my cowlick and possibly my temper, are innate due to the genes passed on to me from my parents. In Psychology, I learned about the id, ego, and superego. I learned about people who have multiple personalities, and now I wonder if there might be more than one “me”. In Sociology, I learned about the ways in which environments and experiences influence behavior and personality. The nature versus nurture debate seemed pointless, even more so when I learned about epigenetics. In Philosophy, I learned to question everything.
I am a combination of my biology and my life experience, but that sounds like and incomplete definition of the real me. The real me is the writer of my story, the ghost in my machine, the source of my actions. The real me is my character—who I am, and who I want to be. Sometimes, I do things that are so uncharacteristic of me that when I have to explain myself I say, “I don’t know why I did that. That just isn’t me.” It’s not to deny what I did, but to recognize that I did something surprising—something I would never be expected to do. Saying, “that just isn’t me,” doesn’t take back what I did, but it seems to somehow mitigate my responsibility.
For example, as a person who highly values faithfulness, I would never cheat on my boyfriend, Andy. But then (hypothetically speaking), one night I go to a concert and end up having a one-night stand with a random person. The next day, I am utterly confused as to why I did that, not to mention disgusted with myself. I mean, I suppose I know the reasons why I went home with another man—he was attractive and I was intoxicated—but I just don’t know why I would cheat on Andy, the love of my life. I had been drunk around other attractive men in the past and never cheated, and this guy was nothing special. The event was truly anomalous. I am obviously distressed, and when Andy asks me what’s wrong I confess and apologize, noting that, “it just isn’t me.” But if it wasn’t the “real” me that cheated, who was it? My evil alter ego? Some other part of my brain that isn’t “me”? Of course, the fact that cheating was out of character doesn’t absolve me of guilt, but it somehow makes me less blameworthy in Andy’s eyes, or perhaps just makes him more forgiving, because I had never done it before in the past and am unlikely to do it again in the future.
But what about more serious cases? Cheating on your significant other is serious, but you won’t go to jail for it (at least not in this country). If you were on trial for murder, you wouldn’t get off the hook if your defense was, “Come on, that was one time! Murder just isn’t me.” But, what if you committed a serious crime and you pled guilty, yet in all seriousness insisted that it wasn’t you, and to some extent it worked. I’m not talking about multiple personalities here, or even an insanity plea; I’m talking about an epileptic, brain surgery, and a whole lot of child porn.
The Case of Kevin’s Kiddie Porn: Free Will and Blameworthiness
The following story is a summary of a segment from "Blame," an episode of NPR’s Radiolab, which you can listen to here at the top of this post.
Kevin was driving home from work one day when he felt a familiar thump in his chest, then a burning sensation followed by feeling of thickness in his throat and tongue. All sound faded and he thought, “$%&*! It’s back.” He had seizure behind the wheel and went off the road (“Blame”).
Kevin has epilepsy, but had had a surgery performed about two years before the accident to remove the part of his brain that was thought to be causing his seizures. It seemed to have been successful until the crash, and then he starting seizing more and more often. This went on for a few years, until he and his wife decided they wanted to be done with it for good, and so scheduled him another brain surgery. They thought that it wouldn’t change his personality because he had undergone a similar surgery in the past and came out “still himself”. He had made sure of it, and here’s how:
Before his first brain surgery, the doctors told Kevin that if he lost anything due to the procedure, it would most likely be his great appreciation for music, and if that was the case, music would just sound like white noise to him. He wasn’t going to stand for that. “I didn’t want to lose that part of me,” he said, and so opted to go under the knife while still awake, and singing. If ever a part of his brain were touched that caused him to stop singing, that part would not be removed. After all was said (or should I say sung) and done, a golf ball-sized portion of Kevin’s brain had been taken out, “and the part of him he really loved was still there” (“Blame”).
After his second surgery, Kevin still seemed to be his normal self. His wife, Janet, and her brother even snuck a keyboard into his hospital room for him to play afterwards, just to be certain. Some time passed, and things seemed to be going smoothly—Kevin wasn’t having seizures anymore. However, by winter, Janet started noticing some changes in his personality. First, it was his appetite. He went from being a person who didn’t eat very much at all to someone who could really chow down. It was strange, but they figured it might just be a side effect of his medication. Then, it was his piano playing. He had always loved to play, but now he would play for eight or nine hours, straight. Finally, it was sex. Kevin became utterly insatiable, and seemed to want to get it on anytime, anywhere. Janet could tell that he wasn’t acting normal, but since they were trying to conceive, the timing made it confusing. His behavior wasn’t exactly out of character, but it was extreme. “All the things that were wonderful became chores,” Janet said (“Blame”).
One day in July, Kevin and Janet were in the kitchen when Homeland Security showed up at the door. “Do you know why we’re here?” they asked him. He answered, “Yeah, I do. I was expecting you.” He showed them where his computer was, and they arrested him for the 52 videos and 125 images of child pornography that were on it. “I still don’t understand it,” Kevin told Radiolab hosts Jad Abumrad and Robert Krulwich, when asked why he did what he did. “Initially, it was your basic, you know, heterosexual Playboy-like, penthouse-like sites, and then windows would just start to open up. [Then,] there was gay sex, there was bondage, there was defecation sex, there was animal sex, xenosex—I went everywhere that there was a button to push” (“Blame”).
Kevin pled guilty in court but, “asked the judge to be lenient, arguing essentially that the person who did all those things, in some sense, wasn’t him.” So, Abumrad and Krulwich asked Kevin, “It was you who did it, or was it not?” He responded:
“It was me who did it, but it was me with a complete lack of neurological control…I know who I am. I did idiotic things that I couldn’t stop myself from doing. I didn’t want to do it. There would be nights where it would be four, five, six hours of going to the same site and downloading one or two files and then deleting them, going back a minute later and downloading the same files, deleting them. I would download those files a dozen times and delete them a dozen times because I didn’t want to be there, knew I shouldn’t be there, and couldn’t help myself from going back” (“Blame”).
Basically, Kevin’s argument in court was that he had no free will at the times he downloaded all that child pornography. You see, Kevin wanted to view child porn, but he didn’t want to want to view it. This appears to be how we differentiate between when the “real” self is in charge as opposed to when another part of the brain that is not the “real self” is controlling our behavior. When the things we want to do (our first-order desires) are controlled by what we want to want to do (our second-order desires), then it is “us” doing them. But when behavior is not driven by certain second-order desires, as in Kevin’s case, we lack free will and it is not really “us” acting.
In his essay, “Freedom of the Will and the Concept of a Person,” Harry G. Frankfurt describes first and second-order desires as follows: “Many animals appear to have the capacity for what I shall call ‘first-order desires’…which are simply desires to do or not to do one thing or another. No animal other than man, however, appears to have the capacity for reflective self-evaluation that is manifested in the formation of second-order desires” (7). According to Frankfurt, there is a certain type of second-order desire that is essential to personhood (what it takes for a mere human to be considered a “person”) called second-order volition. A second-order desire is what one has when one “wants simply to have a certain desire,” but a second-order volition is when one “wants a certain desire to be his will” (10). A “will” is simply an effective desire, or as Frankfurt puts it, “the desire (or desires) by which [someone] is motivated in some action he performs or…by which he will or would be motivated when or if he acts. An agent’s will, then, is identical with one or more of his first-order desires” (8).
In the case of Kevin’s kiddie porn, he had two conflicting first-order desires: to download child porn and to not download it. His second-order desire was to not do it, or more broadly, to be the kind of person that doesn’t download child porn. His second-order volition was to succeed in not downloading the porn, or to make the act of refraining from downloading the porn his effective desire, or his will. However, his will ended up being to download the porn, because that is, after all, what he did—his desire to download the porn was more powerful than his competing desire to not download it, and thus, downloading child porn became his effective desire, or his will. Kevin’s second-order volition and his will were at odds, and therefore, his will was not free, because an agent has free will only when their second-order volition is what determines their behavior (Frankfurt 13-20). Kevin’s case is very similar to Frankfurt’s unwilling addict example:
“It makes a difference to the unwilling addict, who is a person, which of his conflicting first-order desires wins out. Both desires [to take the drug and to refrain from taking it] are his, to be sure; and whether he finally takes the drug or finally succeeds in refraining from taking it, he acts to satisfy what is in a literal sense his own desire. In either case, he does something he himself wants to do, and he does it not because of some external influence whose aim happens to coincide with his own but because of his desire to do it. The unwilling addict identifies himself (emphasis added), however, through the formation of a second-order volition, with one rather than the other of his conflicting first-order desires. He makes one of them more truly his own (emphasis added) and, in so doing, he withdraws himself from the other. It is in virtue of this identification and withdrawal, accomplished through the formation of a second-order volition, that the unwilling addict may meaningfully make the analytically puzzling statements that the force moving him to take the drug is a force other than his own, and that it is not of his own free will but rather against his will that this force moves him to take it (emphasis added)” (13).
If Kevin lacked free will, can he really be blamed for his wrongdoings? He couldn’t help himself, after all. During the trial, he called one witness, his neurologist, Orren Devinsky. As soon as he found out about what Kevin had done, “[I] felt a terrible sense of responsibility,” Devinsky told the hosts of Radiolab (“Blame”). He argued in court that this wasn’t Kevin’s fault; it was because of the brain surgery, which caused him to develop a neurological disorder called Klüver-Bucy syndrome.
Klüver-Bucy syndrome was first seen in rhesus monkeys that had had the same part of their brains removed as Kevin. Male monkeys that had previously only been sexually active with females became ten times more sexually active with both males and females after the brain surgery (“Blame”). In light of this fact, Radiolab host Jad Abumrad noted, “It feels to me that there would be a brighter line before kids, you know?” “I think [there is a] line for ‘normal individuals’,” Devinsky responded, “but in a brain disorder case, those lines get blurred.” Basically, there are parts of our brain deep down that control primal urges like appetite and sexual desires, and that particular region of the brain is just, as Abumrad put it, “teeming with nasty thoughts.” In normal people, there is a sort of filter that keeps those thoughts in check, or that draws the line that usually comes way before kids. In Kevin’s case, that filter was removed. The defense claimed that Kevin was sick, and so couldn’t be blamed for his actions, for they were out of his control. The prosecution begged to differ, though.
Interestingly, in contrast to the 177 files of child porn found on his home computer, zero files were found on his work computer. This clearly was not an issue of impulse control, argued prosecutor Lee Vartan. If Kevin couldn’t help himself, then why was he only committing this heinous crime in the privacy of his own home? The defense’s rebuttal drew a comparison to Tourette syndrome, another neurological disorder. Oftentimes, people with Tourette’s don’t have tics when engaged in activities that require intense focus, like sports. Tics are more prevalent in people with Tourette’s when they are bored and alone. It is common for neurological disorders to not always be constant, and it is plausible that Kevin’s Klüver-Bucy was not active 24/7 (“Blame”).
The judge ruled that Kevin couldn’t be held “fully responsible,” and so he ended up doing two years in federal prison plus 25 months of house arrest instead of the maximum five-year prison sentence, because as the prosecution pointed out, Kevin (like the unwilling addict) may not have been able to help himself, but he could have reached out for help from others. Since he knew what he was doing was wrong and he didn’t want to do it, he could have confided in someone, sought the medical help he needed, and nipped the problem in the bud. After being diagnosed with Klüver-Bucy syndrome, Kevin was prescribed a medication to reduce libido and it was a quick and easy fix. “I have no libido at all, but I know who I am; I know what I am,” said Kevin, “I’m disturbed by that part of my life, but I’m trying to move on.” Had this medical intervention occurred earlier, the entire child porn situation could have been avoided (“Blame”).
Legally, Kevin was considered not entirely blameworthy, but what did his wife think? When asked if she thought their marriage would survive, Janet initially replied, “I don’t know.” “At that point,” she told the hosts of Radiolab, “I didn’t even know the level of pictures.” But when she heard Devinsky say that Kevin had a known brain disorder, she couldn’t blame him anymore. Once he was put on the libido medication, “It was like I got him back,” said Janet (“Blame”).
In the case of Kevin’s kiddie porn, we have once again observed the phenomenon of a person somehow becoming less blameworthy for their immoral behavior when it wasn’t "really them" acting, but some other part of the brain that is not “them.” This phenomenon gives birth to the very question that Abumrad asks: “How does the legal system assign blame when a person is sometimes themselves and in control and sometimes not?” (“Blame”).
Moral Responsibility, the Self, and the Emerging Field of Neurolaw
Neurolaw is an emerging field that takes brain science to the courtroom. Defendants like Kevin, who plead guilty but argue that they are not blameworthy due to neurological issues, are progressively using neuroscience as evidence to make their cases. Judges must then decide how much of the blame can put on the criminal, and how much can be attributed to the criminal’s brain. Kevin did a terrible thing by supporting an industry that harms children, but he did it because he doesn’t have a normal brain, and he didn’t choose not to have a normal brain. There was a biological mitigator, so he couldn’t be blamed for his crime, at least not as much as a person without a brain disorder would be blamed, because it wasn’t really “him”. The rationale for this seems clear-cut, but is it really so simple?
“Our best neurological technologies are still quite crude,” said neuroscientist David Eagleman, a guest on Radiolab. He compared our current neurotechnology to looking down at Earth from the space—you could make out the general shapes of continents, see some colors, and maybe even make out some geographical features like mountain ranges, but you wouldn’t be able to see tiny things like houses or people. In the near future, though, according to Eagleman, our neurotechnology will be more like Google Maps, and we will be able to zoom in on the smallest details of the brain. With that type of advanced technology, we will be able to better analyze criminal behavior, and attribute more and more blame to the brain rather than the person. We’ll be able to say things like, “Well it wasn’t really his fault he raped that woman, it was because his mom didn’t love him enough. His brain made him do it!” just like we can say that it was Kevin’s Klüver-Bucy syndrome that caused him to download all that child porn, and so it wasn’t really Kevin at all who did it (“Blame”).
Recall a statement in the first section of this essay: “I am a combination of my biology and my life experience, but that sounds like and incomplete definition of the real me… The real me is my character—who I am, and who I want to be.” But what is character other than a set of innate characteristics and learned behaviors? Character is nothing but a combination of biology and life experience! When asking the question, “Was it the person or their biology?” like in cases such as Kevin’s, there is no answer—the two are inseparable!
Eagleman explained this paradox to Radiolab hosts Jad Abumrad and Robert Krulwich, paraphrased as follows: Intuition tells us that there is “you” and then there is your brain, and your brain helps “you” choose, “you” being the bearer of the brain. But what controls the bearer of the brain? The brain! What is the “you” separate from your biology? What would it even mean to make a decision independently of your brain? (“Blame”).
Because all of our desires, impulses, decisions (as well as reasons for deciding), and actions are the results of events that happen in the brain, we can move all moral blameworthiness (and praiseworthiness) away from “us” and onto our brains. Eagleman thus comes to the conclusion that “blameworthiness is the wrong question for our legal system to ask” (“Blame”). In thinking about the future of neuroscience, the seemingly simple concepts of blameworthiness and the self are challenged. Will near-future advances in neurotechnology leave room for a “ghost in the machine,” or a conception of our “selves” as separate from our brains and bodies? If these neuroscientific advances do, in fact, show that criminals can’t be held morally responsible for their actions, how should we deal with the criminally dangerous? Hard incompatibilist Derk Pereboom argues that in a deterministic world in which there is no moral responsibility, it would be unfair to treat criminals as if they are blameworthy (114). Additionally, in a world without blame and praise, he believes that people could still possess a sense of self-worth and that it would still be reasonable to set goals and aspire to achieve them (117-118).
Hard incompatibilism is the philosophical view that if we live in a deterministic universe, that is, if everything (including our behaviors) that ever occurs can be traced back to causes that are outside of any person’s control—like the environment in which one was raised, one’s genetic makeup, the neurological events taking place in one’s brain, or even(tually) the Big Bang—then people do not have free will. Hard incompatibilists like Pereboom argue that if determinism is true, then people cannot be held morally blameworthy or praiseworthy for their actions because if people do not possess free will, then it follows that they cannot possess moral responsibility.
“Instead of treating people as if they deserve blame,” writes Pereboom, “the hard incompatibilist can turn to moral admonition and encouragement, which presuppose only that the offender has done wrong” (115). He proposes a quarantine theory in which the criminally dangerous could justifiably be isolated, much like people who are infected with severe and contagious diseases are isolated despite the fact that they are not morally responsible for contracting the disease and becoming a threat to others. Unlike our current retributivist criminal justice system, the quarantine method would not “treat criminals more harshly than is needed to neutralize the danger posed by them” and “would demand a degree of concern for the rehabilitation and well-being of the criminal…Just as society has a duty to seek to cure the diseased it quarantines, so it would have a duty to attempt to rehabilitate the criminals it detains” (116). The quarantine theory is concerned with keeping society safe rather than punishing wrongdoers.
But wouldn’t a world without moral responsibility diminish motivation and encourage immoral behavior? Petty crimes like shoplifting, for example, obviously couldn’t be deemed enough of a threat to society to justify quarantining shoplifters. So, Pereboom suggests that less dangerous crimes can be met with some form of monitoring that will reduce the chances that a person will habitually offend (116). If determinism is true and people are not responsible for their actions, then what is the point of striving for success? Pereboom addresses this concern as follows:
“One might think that hard incompatibilism would instill an attitude of resignation to whatever one’s behavioral dispositions together with environmental conditions hold in store. But this isn’t clearly right. Even if what we know about our behavioral dispositions and environment gives us reason to believe that our futures will turn out in a particular way, it can often be reasonable to hope that they will turn out differently. For this to be so, it may sometimes be important that we lack complete knowledge of these dispositions and environmental conditions” (emphasis added) (117).
Here, it appears as though Pereboom might be warning against the “Google Maps” version of neurotechnology that science is working toward. If the legal system is to forget about blame altogether and instead focus on the probability of future recidivism (with the safety and well-being of society as a whole being the main objective), it could open the doors to a Minority Report-esque world in which people can be quarantined for crimes they will likely commit in the future as a preventative safety measure. Pereboom contends that this would be wrong when he argues against the utilitarian deterrence theory: “[Though] not undercut by hard incompatibilism per se…[The utilitarian theory] would seem at times to demand punishing the innocent when doing so would maximize utility” (115). If we replace the word, “punish” with “quarantine,” it appears that Pereboom’s quarantine method would become similarly unjust in light of neuroscientific advances. Perhaps this is why he apparently warns against having “complete knowledge of [our] behavioral dispositions and environmental conditions” (117).
Though seemingly far-fetched, it is not impossible that this could happen in our lifetime. There is already an interview-style test based on enormous amounts of data that is used to predict whether or not sex offenders are likely to commit similar offenses in the future. The test’s predictive accuracy is about 70%, psychologist Amy Phoenix told the hosts of Radiolab (“Blame”). It is plausible that future neuroscientific techniques will be even more accurate in predicting future recidivism, but Jad Abumrad asks, “Throwing out blame, focusing instead on what someone might do—is that a world you would want to really live in?”
Pretend it’s the not so distant future. Say you commit a small crime; we’ll use the shoplifting example again. You get caught, you’re arrested, and in the process of convicting you the courts do a brain scan (or even an interview-style statistical test like the one described above) to determine whether or not you’re likely to shoplift again. The brain scan happens to show, however, that you’re actually quite likely to commit far more dangerous crimes than shoplifting in the future. The brain scan says you’re probably going to murder one or more people! You haven’t actuallydone it, but you clearly pose a “real and future threat” to the safety and well being of others. If all the justice system is worried about is what youmight do, then you could get quarantined indefinitely without even having committed a serious crime (“Blame”).
Concluding Concerns
In the impending age of neurolaw, will our criminal justice system uphold the standard of “innocent until proven guilty”? What if, upon finding out that you are likely to commit a dangerous crime, you struggle mightily to ensure that you don’t, like Tome Cruise’s character tries to in Minority Report? What if there actually is a “self” separate from our biology—some metaphysical entity inside of us (a soul, perhaps, or “ghost in the machine”)—that has free will and can overcome innate dispositions and environmental conditions that seem to dictate our behavior? Or are our phenomenological feelings of blame, praise, and free will simply illusions that we have developed because they have proven evolutionarily advantageous? If so, would it be better to keep on living as if these illusions are realities? As the old saying goes, only time will tell.
Works Cited
“Blame.” Walters, Pat. Radiolab Season 12, Episode 2. National Public Radio. WNYC, New York City. 12 Sept. 2013. Radio. <http://www.radiolab.org/story/317421-blame/>.
Frankfurt, Harry G. “Freedom of the Will and the Concept of a Person.”The Journal of Philosophy LXVIII. No. 1 (1971): 5-20. JSTOR. Web. 3 May 2014.
Minority Report. Dir. Steven Spielberg. Perf. Tom Cruise. Twentieth Century Fox Home Entertainment, 2006. DVD.
Pereboom, Derk. “Hard Incompatibilism.” Four Views on Free Will. Malden, MA: Blackwell Publishing, 2007. 85-125. Print.
The Meaning of Freedom
April 28, 2014
Professor Randall Harp
Introduction: Defining “Me”
Who am I, and why am I me? It’s one of those questions you ask when you’re a little kid, but to this day, I still feel a certain childish wonder when I ponder it. It seems the more I learn, the more complex the question becomes. I now ask, rather, what is “me”?
In Biology, I learned that there are seemingly countless other organisms—bacteria, yeasts, fungi—which are the parts that make up the whole organism of “me”. I couldn’t live without some of them, and some of them couldn’t live without me. It made me wonder if maybe I too am, as the Fleet Foxes song goes, “a functioning cog in some great machinery serving something beyond me.” I learned about genetics, and how certain traits I possess, like my cowlick and possibly my temper, are innate due to the genes passed on to me from my parents. In Psychology, I learned about the id, ego, and superego. I learned about people who have multiple personalities, and now I wonder if there might be more than one “me”. In Sociology, I learned about the ways in which environments and experiences influence behavior and personality. The nature versus nurture debate seemed pointless, even more so when I learned about epigenetics. In Philosophy, I learned to question everything.
I am a combination of my biology and my life experience, but that sounds like and incomplete definition of the real me. The real me is the writer of my story, the ghost in my machine, the source of my actions. The real me is my character—who I am, and who I want to be. Sometimes, I do things that are so uncharacteristic of me that when I have to explain myself I say, “I don’t know why I did that. That just isn’t me.” It’s not to deny what I did, but to recognize that I did something surprising—something I would never be expected to do. Saying, “that just isn’t me,” doesn’t take back what I did, but it seems to somehow mitigate my responsibility.
For example, as a person who highly values faithfulness, I would never cheat on my boyfriend, Andy. But then (hypothetically speaking), one night I go to a concert and end up having a one-night stand with a random person. The next day, I am utterly confused as to why I did that, not to mention disgusted with myself. I mean, I suppose I know the reasons why I went home with another man—he was attractive and I was intoxicated—but I just don’t know why I would cheat on Andy, the love of my life. I had been drunk around other attractive men in the past and never cheated, and this guy was nothing special. The event was truly anomalous. I am obviously distressed, and when Andy asks me what’s wrong I confess and apologize, noting that, “it just isn’t me.” But if it wasn’t the “real” me that cheated, who was it? My evil alter ego? Some other part of my brain that isn’t “me”? Of course, the fact that cheating was out of character doesn’t absolve me of guilt, but it somehow makes me less blameworthy in Andy’s eyes, or perhaps just makes him more forgiving, because I had never done it before in the past and am unlikely to do it again in the future.
But what about more serious cases? Cheating on your significant other is serious, but you won’t go to jail for it (at least not in this country). If you were on trial for murder, you wouldn’t get off the hook if your defense was, “Come on, that was one time! Murder just isn’t me.” But, what if you committed a serious crime and you pled guilty, yet in all seriousness insisted that it wasn’t you, and to some extent it worked. I’m not talking about multiple personalities here, or even an insanity plea; I’m talking about an epileptic, brain surgery, and a whole lot of child porn.
The Case of Kevin’s Kiddie Porn: Free Will and Blameworthiness
The following story is a summary of a segment from "Blame," an episode of NPR’s Radiolab, which you can listen to here at the top of this post.
Kevin was driving home from work one day when he felt a familiar thump in his chest, then a burning sensation followed by feeling of thickness in his throat and tongue. All sound faded and he thought, “$%&*! It’s back.” He had seizure behind the wheel and went off the road (“Blame”).
Kevin has epilepsy, but had had a surgery performed about two years before the accident to remove the part of his brain that was thought to be causing his seizures. It seemed to have been successful until the crash, and then he starting seizing more and more often. This went on for a few years, until he and his wife decided they wanted to be done with it for good, and so scheduled him another brain surgery. They thought that it wouldn’t change his personality because he had undergone a similar surgery in the past and came out “still himself”. He had made sure of it, and here’s how:
Before his first brain surgery, the doctors told Kevin that if he lost anything due to the procedure, it would most likely be his great appreciation for music, and if that was the case, music would just sound like white noise to him. He wasn’t going to stand for that. “I didn’t want to lose that part of me,” he said, and so opted to go under the knife while still awake, and singing. If ever a part of his brain were touched that caused him to stop singing, that part would not be removed. After all was said (or should I say sung) and done, a golf ball-sized portion of Kevin’s brain had been taken out, “and the part of him he really loved was still there” (“Blame”).
After his second surgery, Kevin still seemed to be his normal self. His wife, Janet, and her brother even snuck a keyboard into his hospital room for him to play afterwards, just to be certain. Some time passed, and things seemed to be going smoothly—Kevin wasn’t having seizures anymore. However, by winter, Janet started noticing some changes in his personality. First, it was his appetite. He went from being a person who didn’t eat very much at all to someone who could really chow down. It was strange, but they figured it might just be a side effect of his medication. Then, it was his piano playing. He had always loved to play, but now he would play for eight or nine hours, straight. Finally, it was sex. Kevin became utterly insatiable, and seemed to want to get it on anytime, anywhere. Janet could tell that he wasn’t acting normal, but since they were trying to conceive, the timing made it confusing. His behavior wasn’t exactly out of character, but it was extreme. “All the things that were wonderful became chores,” Janet said (“Blame”).
One day in July, Kevin and Janet were in the kitchen when Homeland Security showed up at the door. “Do you know why we’re here?” they asked him. He answered, “Yeah, I do. I was expecting you.” He showed them where his computer was, and they arrested him for the 52 videos and 125 images of child pornography that were on it. “I still don’t understand it,” Kevin told Radiolab hosts Jad Abumrad and Robert Krulwich, when asked why he did what he did. “Initially, it was your basic, you know, heterosexual Playboy-like, penthouse-like sites, and then windows would just start to open up. [Then,] there was gay sex, there was bondage, there was defecation sex, there was animal sex, xenosex—I went everywhere that there was a button to push” (“Blame”).
Kevin pled guilty in court but, “asked the judge to be lenient, arguing essentially that the person who did all those things, in some sense, wasn’t him.” So, Abumrad and Krulwich asked Kevin, “It was you who did it, or was it not?” He responded:
“It was me who did it, but it was me with a complete lack of neurological control…I know who I am. I did idiotic things that I couldn’t stop myself from doing. I didn’t want to do it. There would be nights where it would be four, five, six hours of going to the same site and downloading one or two files and then deleting them, going back a minute later and downloading the same files, deleting them. I would download those files a dozen times and delete them a dozen times because I didn’t want to be there, knew I shouldn’t be there, and couldn’t help myself from going back” (“Blame”).
Basically, Kevin’s argument in court was that he had no free will at the times he downloaded all that child pornography. You see, Kevin wanted to view child porn, but he didn’t want to want to view it. This appears to be how we differentiate between when the “real” self is in charge as opposed to when another part of the brain that is not the “real self” is controlling our behavior. When the things we want to do (our first-order desires) are controlled by what we want to want to do (our second-order desires), then it is “us” doing them. But when behavior is not driven by certain second-order desires, as in Kevin’s case, we lack free will and it is not really “us” acting.
In his essay, “Freedom of the Will and the Concept of a Person,” Harry G. Frankfurt describes first and second-order desires as follows: “Many animals appear to have the capacity for what I shall call ‘first-order desires’…which are simply desires to do or not to do one thing or another. No animal other than man, however, appears to have the capacity for reflective self-evaluation that is manifested in the formation of second-order desires” (7). According to Frankfurt, there is a certain type of second-order desire that is essential to personhood (what it takes for a mere human to be considered a “person”) called second-order volition. A second-order desire is what one has when one “wants simply to have a certain desire,” but a second-order volition is when one “wants a certain desire to be his will” (10). A “will” is simply an effective desire, or as Frankfurt puts it, “the desire (or desires) by which [someone] is motivated in some action he performs or…by which he will or would be motivated when or if he acts. An agent’s will, then, is identical with one or more of his first-order desires” (8).
In the case of Kevin’s kiddie porn, he had two conflicting first-order desires: to download child porn and to not download it. His second-order desire was to not do it, or more broadly, to be the kind of person that doesn’t download child porn. His second-order volition was to succeed in not downloading the porn, or to make the act of refraining from downloading the porn his effective desire, or his will. However, his will ended up being to download the porn, because that is, after all, what he did—his desire to download the porn was more powerful than his competing desire to not download it, and thus, downloading child porn became his effective desire, or his will. Kevin’s second-order volition and his will were at odds, and therefore, his will was not free, because an agent has free will only when their second-order volition is what determines their behavior (Frankfurt 13-20). Kevin’s case is very similar to Frankfurt’s unwilling addict example:
“It makes a difference to the unwilling addict, who is a person, which of his conflicting first-order desires wins out. Both desires [to take the drug and to refrain from taking it] are his, to be sure; and whether he finally takes the drug or finally succeeds in refraining from taking it, he acts to satisfy what is in a literal sense his own desire. In either case, he does something he himself wants to do, and he does it not because of some external influence whose aim happens to coincide with his own but because of his desire to do it. The unwilling addict identifies himself (emphasis added), however, through the formation of a second-order volition, with one rather than the other of his conflicting first-order desires. He makes one of them more truly his own (emphasis added) and, in so doing, he withdraws himself from the other. It is in virtue of this identification and withdrawal, accomplished through the formation of a second-order volition, that the unwilling addict may meaningfully make the analytically puzzling statements that the force moving him to take the drug is a force other than his own, and that it is not of his own free will but rather against his will that this force moves him to take it (emphasis added)” (13).
If Kevin lacked free will, can he really be blamed for his wrongdoings? He couldn’t help himself, after all. During the trial, he called one witness, his neurologist, Orren Devinsky. As soon as he found out about what Kevin had done, “[I] felt a terrible sense of responsibility,” Devinsky told the hosts of Radiolab (“Blame”). He argued in court that this wasn’t Kevin’s fault; it was because of the brain surgery, which caused him to develop a neurological disorder called Klüver-Bucy syndrome.
Klüver-Bucy syndrome was first seen in rhesus monkeys that had had the same part of their brains removed as Kevin. Male monkeys that had previously only been sexually active with females became ten times more sexually active with both males and females after the brain surgery (“Blame”). In light of this fact, Radiolab host Jad Abumrad noted, “It feels to me that there would be a brighter line before kids, you know?” “I think [there is a] line for ‘normal individuals’,” Devinsky responded, “but in a brain disorder case, those lines get blurred.” Basically, there are parts of our brain deep down that control primal urges like appetite and sexual desires, and that particular region of the brain is just, as Abumrad put it, “teeming with nasty thoughts.” In normal people, there is a sort of filter that keeps those thoughts in check, or that draws the line that usually comes way before kids. In Kevin’s case, that filter was removed. The defense claimed that Kevin was sick, and so couldn’t be blamed for his actions, for they were out of his control. The prosecution begged to differ, though.
Interestingly, in contrast to the 177 files of child porn found on his home computer, zero files were found on his work computer. This clearly was not an issue of impulse control, argued prosecutor Lee Vartan. If Kevin couldn’t help himself, then why was he only committing this heinous crime in the privacy of his own home? The defense’s rebuttal drew a comparison to Tourette syndrome, another neurological disorder. Oftentimes, people with Tourette’s don’t have tics when engaged in activities that require intense focus, like sports. Tics are more prevalent in people with Tourette’s when they are bored and alone. It is common for neurological disorders to not always be constant, and it is plausible that Kevin’s Klüver-Bucy was not active 24/7 (“Blame”).
The judge ruled that Kevin couldn’t be held “fully responsible,” and so he ended up doing two years in federal prison plus 25 months of house arrest instead of the maximum five-year prison sentence, because as the prosecution pointed out, Kevin (like the unwilling addict) may not have been able to help himself, but he could have reached out for help from others. Since he knew what he was doing was wrong and he didn’t want to do it, he could have confided in someone, sought the medical help he needed, and nipped the problem in the bud. After being diagnosed with Klüver-Bucy syndrome, Kevin was prescribed a medication to reduce libido and it was a quick and easy fix. “I have no libido at all, but I know who I am; I know what I am,” said Kevin, “I’m disturbed by that part of my life, but I’m trying to move on.” Had this medical intervention occurred earlier, the entire child porn situation could have been avoided (“Blame”).
Legally, Kevin was considered not entirely blameworthy, but what did his wife think? When asked if she thought their marriage would survive, Janet initially replied, “I don’t know.” “At that point,” she told the hosts of Radiolab, “I didn’t even know the level of pictures.” But when she heard Devinsky say that Kevin had a known brain disorder, she couldn’t blame him anymore. Once he was put on the libido medication, “It was like I got him back,” said Janet (“Blame”).
In the case of Kevin’s kiddie porn, we have once again observed the phenomenon of a person somehow becoming less blameworthy for their immoral behavior when it wasn’t "really them" acting, but some other part of the brain that is not “them.” This phenomenon gives birth to the very question that Abumrad asks: “How does the legal system assign blame when a person is sometimes themselves and in control and sometimes not?” (“Blame”).
Moral Responsibility, the Self, and the Emerging Field of Neurolaw
Neurolaw is an emerging field that takes brain science to the courtroom. Defendants like Kevin, who plead guilty but argue that they are not blameworthy due to neurological issues, are progressively using neuroscience as evidence to make their cases. Judges must then decide how much of the blame can put on the criminal, and how much can be attributed to the criminal’s brain. Kevin did a terrible thing by supporting an industry that harms children, but he did it because he doesn’t have a normal brain, and he didn’t choose not to have a normal brain. There was a biological mitigator, so he couldn’t be blamed for his crime, at least not as much as a person without a brain disorder would be blamed, because it wasn’t really “him”. The rationale for this seems clear-cut, but is it really so simple?
“Our best neurological technologies are still quite crude,” said neuroscientist David Eagleman, a guest on Radiolab. He compared our current neurotechnology to looking down at Earth from the space—you could make out the general shapes of continents, see some colors, and maybe even make out some geographical features like mountain ranges, but you wouldn’t be able to see tiny things like houses or people. In the near future, though, according to Eagleman, our neurotechnology will be more like Google Maps, and we will be able to zoom in on the smallest details of the brain. With that type of advanced technology, we will be able to better analyze criminal behavior, and attribute more and more blame to the brain rather than the person. We’ll be able to say things like, “Well it wasn’t really his fault he raped that woman, it was because his mom didn’t love him enough. His brain made him do it!” just like we can say that it was Kevin’s Klüver-Bucy syndrome that caused him to download all that child porn, and so it wasn’t really Kevin at all who did it (“Blame”).
Recall a statement in the first section of this essay: “I am a combination of my biology and my life experience, but that sounds like and incomplete definition of the real me… The real me is my character—who I am, and who I want to be.” But what is character other than a set of innate characteristics and learned behaviors? Character is nothing but a combination of biology and life experience! When asking the question, “Was it the person or their biology?” like in cases such as Kevin’s, there is no answer—the two are inseparable!
Eagleman explained this paradox to Radiolab hosts Jad Abumrad and Robert Krulwich, paraphrased as follows: Intuition tells us that there is “you” and then there is your brain, and your brain helps “you” choose, “you” being the bearer of the brain. But what controls the bearer of the brain? The brain! What is the “you” separate from your biology? What would it even mean to make a decision independently of your brain? (“Blame”).
Because all of our desires, impulses, decisions (as well as reasons for deciding), and actions are the results of events that happen in the brain, we can move all moral blameworthiness (and praiseworthiness) away from “us” and onto our brains. Eagleman thus comes to the conclusion that “blameworthiness is the wrong question for our legal system to ask” (“Blame”). In thinking about the future of neuroscience, the seemingly simple concepts of blameworthiness and the self are challenged. Will near-future advances in neurotechnology leave room for a “ghost in the machine,” or a conception of our “selves” as separate from our brains and bodies? If these neuroscientific advances do, in fact, show that criminals can’t be held morally responsible for their actions, how should we deal with the criminally dangerous? Hard incompatibilist Derk Pereboom argues that in a deterministic world in which there is no moral responsibility, it would be unfair to treat criminals as if they are blameworthy (114). Additionally, in a world without blame and praise, he believes that people could still possess a sense of self-worth and that it would still be reasonable to set goals and aspire to achieve them (117-118).
Hard incompatibilism is the philosophical view that if we live in a deterministic universe, that is, if everything (including our behaviors) that ever occurs can be traced back to causes that are outside of any person’s control—like the environment in which one was raised, one’s genetic makeup, the neurological events taking place in one’s brain, or even(tually) the Big Bang—then people do not have free will. Hard incompatibilists like Pereboom argue that if determinism is true, then people cannot be held morally blameworthy or praiseworthy for their actions because if people do not possess free will, then it follows that they cannot possess moral responsibility.
“Instead of treating people as if they deserve blame,” writes Pereboom, “the hard incompatibilist can turn to moral admonition and encouragement, which presuppose only that the offender has done wrong” (115). He proposes a quarantine theory in which the criminally dangerous could justifiably be isolated, much like people who are infected with severe and contagious diseases are isolated despite the fact that they are not morally responsible for contracting the disease and becoming a threat to others. Unlike our current retributivist criminal justice system, the quarantine method would not “treat criminals more harshly than is needed to neutralize the danger posed by them” and “would demand a degree of concern for the rehabilitation and well-being of the criminal…Just as society has a duty to seek to cure the diseased it quarantines, so it would have a duty to attempt to rehabilitate the criminals it detains” (116). The quarantine theory is concerned with keeping society safe rather than punishing wrongdoers.
But wouldn’t a world without moral responsibility diminish motivation and encourage immoral behavior? Petty crimes like shoplifting, for example, obviously couldn’t be deemed enough of a threat to society to justify quarantining shoplifters. So, Pereboom suggests that less dangerous crimes can be met with some form of monitoring that will reduce the chances that a person will habitually offend (116). If determinism is true and people are not responsible for their actions, then what is the point of striving for success? Pereboom addresses this concern as follows:
“One might think that hard incompatibilism would instill an attitude of resignation to whatever one’s behavioral dispositions together with environmental conditions hold in store. But this isn’t clearly right. Even if what we know about our behavioral dispositions and environment gives us reason to believe that our futures will turn out in a particular way, it can often be reasonable to hope that they will turn out differently. For this to be so, it may sometimes be important that we lack complete knowledge of these dispositions and environmental conditions” (emphasis added) (117).
Here, it appears as though Pereboom might be warning against the “Google Maps” version of neurotechnology that science is working toward. If the legal system is to forget about blame altogether and instead focus on the probability of future recidivism (with the safety and well-being of society as a whole being the main objective), it could open the doors to a Minority Report-esque world in which people can be quarantined for crimes they will likely commit in the future as a preventative safety measure. Pereboom contends that this would be wrong when he argues against the utilitarian deterrence theory: “[Though] not undercut by hard incompatibilism per se…[The utilitarian theory] would seem at times to demand punishing the innocent when doing so would maximize utility” (115). If we replace the word, “punish” with “quarantine,” it appears that Pereboom’s quarantine method would become similarly unjust in light of neuroscientific advances. Perhaps this is why he apparently warns against having “complete knowledge of [our] behavioral dispositions and environmental conditions” (117).
Though seemingly far-fetched, it is not impossible that this could happen in our lifetime. There is already an interview-style test based on enormous amounts of data that is used to predict whether or not sex offenders are likely to commit similar offenses in the future. The test’s predictive accuracy is about 70%, psychologist Amy Phoenix told the hosts of Radiolab (“Blame”). It is plausible that future neuroscientific techniques will be even more accurate in predicting future recidivism, but Jad Abumrad asks, “Throwing out blame, focusing instead on what someone might do—is that a world you would want to really live in?”
Pretend it’s the not so distant future. Say you commit a small crime; we’ll use the shoplifting example again. You get caught, you’re arrested, and in the process of convicting you the courts do a brain scan (or even an interview-style statistical test like the one described above) to determine whether or not you’re likely to shoplift again. The brain scan happens to show, however, that you’re actually quite likely to commit far more dangerous crimes than shoplifting in the future. The brain scan says you’re probably going to murder one or more people! You haven’t actuallydone it, but you clearly pose a “real and future threat” to the safety and well being of others. If all the justice system is worried about is what youmight do, then you could get quarantined indefinitely without even having committed a serious crime (“Blame”).
Concluding Concerns
In the impending age of neurolaw, will our criminal justice system uphold the standard of “innocent until proven guilty”? What if, upon finding out that you are likely to commit a dangerous crime, you struggle mightily to ensure that you don’t, like Tome Cruise’s character tries to in Minority Report? What if there actually is a “self” separate from our biology—some metaphysical entity inside of us (a soul, perhaps, or “ghost in the machine”)—that has free will and can overcome innate dispositions and environmental conditions that seem to dictate our behavior? Or are our phenomenological feelings of blame, praise, and free will simply illusions that we have developed because they have proven evolutionarily advantageous? If so, would it be better to keep on living as if these illusions are realities? As the old saying goes, only time will tell.
Works Cited
“Blame.” Walters, Pat. Radiolab Season 12, Episode 2. National Public Radio. WNYC, New York City. 12 Sept. 2013. Radio. <http://www.radiolab.org/story/317421-blame/>.
Frankfurt, Harry G. “Freedom of the Will and the Concept of a Person.”The Journal of Philosophy LXVIII. No. 1 (1971): 5-20. JSTOR. Web. 3 May 2014.
Minority Report. Dir. Steven Spielberg. Perf. Tom Cruise. Twentieth Century Fox Home Entertainment, 2006. DVD.
Pereboom, Derk. “Hard Incompatibilism.” Four Views on Free Will. Malden, MA: Blackwell Publishing, 2007. 85-125. Print.