Free Will? The role of remorse and rehabilitation within the justice system Michael Heap The Skeptic

This article originally appeared in The Skeptic, Volume 22, Issue 1, from 2011.

At the time of writing this piece there is a discussion about ‘free will’ taking place on ASKE’s email forum. This has been stimulated by an article Sue Blackmore wrote for the Guardian (March 2rd, 2009) headed, “Let’s drop the charade: It’s right we come to terms with the fact that free will, just like the sense of a higher power, is an illusion”.

In particular, Dr Blackmore is interested in the implications of abandoning the idea of free will for how we treat criminals:

“We can do it communally by realising that our legal system can punish wrongdoers not because they could have done otherwise and freely chose to be bad, but because some punishments are effective…

Instead of asking how much punishment someone deserves, we should ask what actions we can take to make this person behave better in the future, and others not follow this bad example.”

Actually, what Dr Blackmore appears to be advocating does happen in our criminal justice system. There is however something that should not be overlooked. Those who work in our courts, our prisons, the probation service, and (like me) our forensic mental health services, should remember that they serve the community (and the latter pay them to do so). Since we are a democracy, they should be mindful of the wishes, values, and expectations of the majority about how offenders are to be dealt with.

It is not a healthy situation when the activities of our criminal justice system and the philosophy behind them become too detached from what the public expects. For an example, witness the outrage when the perpetrator of a heinous crime appears to be given only a modest sentence.

I made this point last year when I was speaking at a meeting of professional colleagues that was devoted to the topic of ‘remorse’. The title of the meeting was “Is remorse necessary?” If you put that question to professionals who work with offenders, most of them will probably interpret it from the standpoint of “necessary to reduce risk of reoffending”. “Lack of remorse” is listed as a risk factor in instruments that attempt to assess a person’s likelihood of committing a violent crime in the future, but it is only one of many factors and of itself is probably only a weak predictor of violent recidivism.

But if free will is an illusion anyway, and if our behaviour is determined without it, what is the point of feeling remorse, guilt, self-recrimination, shame and so on when we cause needless suffering in others? Is it an unnecessary by-product of the way we are brought up?

In fact my main point at the meeting was that remorse is a desirable end in itself; something, if possible, to encourage any offender to experience for no other reason than it is a good thing that he or she does. This is what the public demand; it is offensive to most people when it is reported that a murderer or rapist, for example, “showed no sign of remorse” during his trial and sentencing.

People may argue that a certain individual cannot help being violent because “it is in his genes” or because of his chaotic upbringing or some malfunctioning of his frontal lobes and so on. In my own experience, now and again a prisoner or detained patient will appear to disclaim responsibility for some awful crime by saying that he was mentally ill at the time and didn’t know what he was doing, or that he was intoxicated by alcohol or drugs. We may tolerate some or all of this, and yet do we not feel gratified when such individuals still profess to feel remorse for their actions? It is certainly usual practice to try and do what we can to bring the person to this state of mind. And I suspect that being found out and punished by the community does assist this process.

Some people, whom we describe as ‘psychopathic’, appear incapable of feeling remorse. They have a weak conscience or, in Freudian terminology, superego. And neither they nor we are any the better for it. They include some very violent individuals but also non-offenders who are untrustworthy, self-centered, inconsiderate, irresponsible and so on. Like everyone else they believe they have free will but they are not particularly remorseful, despite our best efforts.

Remorse does appear to be necessary. Maybe the anticipation of remorse prior to a misdemeanour or the experience of remorse afterwards serves as punishment to deter antisocial behaviour and is thus valuable for the social group.

As for ‘free will’, it may be an illusion but it is a very useful one. Indeed, we might make a deal of trouble for ourselves if we stop believing in it. But do we have any choice as to whether we do or don’t?

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From the archives in 2011, Mike Heap examines why we feel remorse is so necessary to the rehabilitation of prisoners, especially if free will is an illusion
The post Free Will? The role of remorse and rehabilitation within the justice system appeared first on The Skeptic.

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