Neuroethics Final

Free Will

The ability to make a decision without being forced to make that decision

• Even if one did X, one could have done Y

Main issues with free will

1. whether the world is deterministic

2. The relationship between determinism and free will

   1. Incompatibilism: libertarianism, hard determinism

   2. Compatibilism: soft determinism

How does free will relate to responsibility?

Only when someone has acted with free will do they deserve punishment or blame

We don’t blame people for reflexes, actions performed while mentally ill, actions they were coerced to carry out

Determinism

Every event in the universe is such that it had to happen, given:

• A) The laws of physics

• B) The state of the universe at the beginning of time

Ways to capture the idea:

• Everything that happens is entirely a result of what came before it

• If we could back to any point in time (such that every thing is the way it was back then), it would replay in exactly the same way

Close-enough Determinism

Every macroscopic event in the universe is such that there was an extremely high probability of that event happening, given:

• The laws of (quantum) physics

• The state of the universe at the beginning of time

Laplace’s Demon

If there was an immense intelligence that could know all the forces acting on each being, it could calculate what their positions would be at any point in the future. Therefore, determinism is true.

Implications of determinism

If determinism is true, then every decision a person makes, he or she had to make that decision

• Brains operate solely by chemical and electrical signals, interactions ultimately governed by the laws of physics

• Human behavior is deterministic, just like everything else in the universe

  • (but: not everyone thinks this means humans aren’t free)

Positions on the relationship between free will and determinism

Incompatibilism:

• if determinism is true, then there is no free will (there can be free will only if determinism is false)

• how could an action be free if one had to do it

Compatibilism:

• even if determinism is true, there could still be free will

• free will only requires the ability to do otherwise, if one had decided to do

Two types of incompatibilism

Hard determinism:

• incompatibilism with determinism

• An action would be free only if one could have done otherwise, but this never happens

• There is no free will

  • Drawbacks: there will be no moral responsibility; it is unintuitive to think there is no such thing as free will

Libertarianism:

• Incompatibilism without determinism

• An action is free only if one could have done otherwise

• This in fact occurs (at least sometimes)

• There is free will

  • Drawback: hypothesizes that the laws of physics are sometimes violated

Compatibilism

Free will requires something less than “the ability to do otherwise”

• The ability to do otherwise, if one had decided to do

  • E.g., not locked in a jail cell, not mentally ill, not having one’s mind controlled

The law and compatibilism

The law determines responsibility using a compatibilist framework:

Excusing factors:

• Duress: one acts because of a threat

• Defect in reason: insanity, loss of ability to recognize right and wrong

Being excused for one’s actions requires the defendant to be “lacking a general capacity for rationality” (Goldstein et al 2002)

Being “determined” to commit a crime is not an excusing condition

Libertarianism and dualism

Dualism:

• The mind is something non-physical, over and above the brain and body

• Intervenes in the physical world, causing non-deterministic events

• Dualism is required for libertarianism

Materialism:

• The mind is just the brain

• Materialism can be reconciled only with hard determinism, or compatibilism

Theories of Punishment

Two theories of punishment:

Retributivist

• We punish the guilty because they deserve to be punished

  • They are bad people

• Backwards-looking

• Requires libertarianism or compatibilism

Consequentialist

• We punish people because (and only when) doing so will have good consequences

  • e.g., it serves a deterrent function

• Forwards-looking

• Works with libertarianism, compatibilism, and hard determinism

Retributivism and Free Will

No free will, no retributivism

• Someone deserves to be punished for X only if they are blameworthy fordoing X

• If there is no free will, then no one is ever blameworthy

• If there is no free will, then retributivist justice is always in error

Brain Overclaim Syndrome (BOS)

What Morse is targeting (2006, 2010):

• Brain overclaim syndrome:

  • “More legal implications are claimed for the brain science than can be justified”

  • Sufferers often commit...

    • The fundamental psycholegal error:

      • Thinking that an action can be excused because we can find a cause for it (e.g., causes like a brain tumor, a traumatic experience, determinism)

      • “...it is [only] diminished rationality that is the excusing condition” (Morse, 2005)

        • Diminished rationality as evidenced through behavior

Two kinds of critique of the law

Two ways in which one can criticize how the law determines

responsibility: (Morse 2005, 2010)

• External critique:

  • Here is no such thing as responsibility, since all human action is deterministic

• Internal critique:

  • There is such a thing as responsibility, but something is wrong with how responsibility is determined by our legal system

Why the external critique fails according to Morse

The external critique doesn’t address anything with which the law is concerned

• In our legal system:

  • Someone is not responsible for an act only if she has a defect in rationality (or is under duress)

  • There is no mention of whether the person “could have done otherwise”

    • (Something made impossible by determinism)

Roper vs. Simons (2005)

Committed a murder when 17 yrs. old, received the death penalty

• Defense argued adolescents should be exempt from the death penalty

  • They cannot control their actions the way adults do

• At the trial, neuroscientific evidence was presented showing adolescents to not have a fully developed prefrontal cortex

Evidence against adolescents receiving the death penalty (according to the APA)

1. Adolescents are prone to risk-taking and law-breaking

   1. “....are overrepresented statistically in virtually every category of reckless behavior” (APA, 2004), especially criminal acts

   2. “value impulsivity...and peer approval more than adults” (ibid.)

2. They are less future-oriented, less likely to consider consequences

   1. They are not competent decision makers until after adolescence (Halpern-Felsher & Caufman 2001)

3. Their brains are underdeveloped

   1. Their prefrontal cortex is not yet fully formed

APA conclusions:

• The goal of capital punishment is retribution and/or deterrence

• These goals are not accomplished with adolescents, who are both less blameworthy, and less likely to be deterred

The Prefrontal Cortex (PFC)

The PFC is involved in what is known as ‘executive function’ (Miyake 2000)

• Direction and maintenance of attention

• Working memory

• Learning (building of stimulus-reward relationships)

• Action inhibition

PFC in Adolescents

Underdeveloped prefrontal cortex

1. MRI shows myelination of the prefrontal cortex to be not complete (Lenroot et al. 2007)

   1. Myelination improves efficiency of transmission of signals

2. Areas associated with cognitive control show less activation relative to adults (Durston et al 2006)

A reward system that outstrips its consequence system (Ernst & Spear 2009)

1. Increased activation of nucleus accumbens

Morse on Roper vs. Simmons

The irrelevance of neuroscience to the law

• The law determines whether a person is responsible or not according to whether her behavior is rational or not

  • It simply isn’t concerned with what their brains are like

The irrelevance of neuroscience to Roper vs. Simmons

• We already knew that adolescents lacked a full capacity for rationality, and this is sufficient for determining them to be less culpable

• At best, the neuroscience provides “some further evidence of the validity of the behavioral differences

• Diagnosis: brain overclaim syndrome (or neuroessentialism)

Why do people find neuroscientific data to be compelling?

Because they are dualist (and also libertarian) (Greene & Cohen 2010)

• When determining guilt, people always want to know: was it he who did it, or something else?

  • E.g., his upbringing, mental illness, genes

  • Even psychologists who are professed materialists fall into this way of thinking (e.g., Steinberg & Scott 2003)

• If there looks to be a neurological cause, this provides reason for thinking it wasn’t the (non-physical) person that was responsible

  • This is why people find the adolescent/neuroscience evidence compelling

Are people disposed to be dualist or materialist?

People are predisposed to (substance) dualism

• A majority of people, especially in non-Western and less developed countries, are dualist (substance dualist)

• Some current psychological theories propose explanations for this disposition (Bloom 2004)

• We can imagine our body being destroyed, but we cannot imagine ourself no longer existing

Neuroscientific data from a dualist perspective

The orbitofrontal cortex (OFC) is associated with social behavior and action inhibition

• Lesions to OFC produce antisocial and impulsive behavior

  • Like in the case of Phineas Gage

• Adolescents’ OFC is not yet fully functional

  • Are they working with “substandard equipment”?

Kinds of punishment in our legal system

The kinds of punishment our legal system employs:

• Both retributivist and consequentialist

  • E.g., the aim of the death penalty is both to deter and to “serve justice”

• Thus, the law seems to assume that sometimes people deserve to be punished (so requires libertarianism or compatibilism)

Why would the law be threatened by neuroscientific evidence?

The law determines responsibility using a compatibilist framework

• Using “capacity for rational behavior” as a benchmark

• The law gauges one’s rationality by looking at their behavior

• The neuroscientific evidence looks irrelevant to determining rationality

It is threatened because the law and people might care about different things

• If neuroscience can change the criteria by which people assign responsibility, the law will have to do the same

Why do the law and people care about different things?

Reason one: The average person has dualist instincts that seem to bein tension with the way the law assigns responsibility (see last section)

Reason two: The average person thinks that people deserve to be punished only if there is such a thing as libertarian free will

Summary of the law and compatibilism

What we’ve seen so far:

• (In)compatibilism, the law, and the average person

  • The letter of the law is compatibilist

  • But the average person is incompatibilist

  • So far, this hasn’t really resulted in any divergence between who the average person takes to be responsible, and whom the law takes to be responsible

• Important point:

  • Our present legal system can be maintained only if it continues to get the right result

Future of retributivism

Neuroscience will drain retributivism from the law

• Advances in neuroimaging will reveal decision-making and action to be deterministic physical processes

  • Since people are incompatibilist, people will switch from libertarianism to hard determinism

• The legal system will become consequentialist

  • Retributivism will no longer be justified

  • Punishment will be based only on its ability to deter and rehabilitate

External critique from neuroscience

Greene & Cohen’s argument (summary):

• The law appears compatibilist (as Morse claims)

• However, it is retributivist, perforce assuming libertarianism, because people are incompatibilist

• Neuroscience will convince people that libertarianism is false

• The legal system will become consequentialist

What type of punishment is denying memory dampeners to war criminals?

• Consequentialist?

  • No! 

• Expressivist?

  • No! 

  • We are not expressing a clear message relative to other types of punishment

• Kantian?

  • Yes!

  • Respect for agency demands memory of the agency

  • We can only punish rational agents, which explains why we can’t punish those with PTSD

What is an option for unrepentant war criminals?

Still withhold dampeners, but induce moral injury (basically, make them feel bad about what they did)

Why is it cruel to withhold memory dampeners from those with PTSD?

Because, under a Kantian framework, you can only punish rational agents.

Also, a punishment is cruel either because of its effects or its intent

• Withholding memory dampeners to those with PTSD is disproportionate in its effects

• When withholding memory dampeners to those with PTSD, disregard is implied (intent)

Moral injury

Non-medical feelings of shame and separation from the moral community as a result of a morally wrong act

Szasz’ categories for mental illness

“Mental Illness is a myth—it falls into the same category as witches and deities”

2 kinds of “mental illness”

• Brain Lesions (which should be treated medically)

• “Problems of Living,” which are psychosocial/legal/ethical norm-violations, and nonmedical

Szasz and free will

He is compatibilist

Can have moral responsibility, even though he is a materialist. Need a physical cause to be an excusing factor, not mental illness.

Szasz's policy proposals

• We should regard problems of living as nonmedical (and stop forcing medical treatment upon people)

  • No involuntary commitment

  • No tranquilizers

  • No insanity pleas

  • Freely-sought talk therapy about goals and values

  • Acknowledge that human relations suck sometimes!