I await a non-tautological refutation of the proposition that free will is illusory, as well as a proof that we are more than the sum totals of our genes and life experiences that doesn’t depend on our perception of free will.

In your response to me here, you said:

I don’t believe you have enough information to say that people have “suffered much worse environments and genetic inheritances and yet done the right thing most of the time.” If they’ve “chosen” to do the right thing, it’s because something went right in either their upbringing or their genes compared to the guy who did wrong.

I’m sure you know that there are many families out there, some of whose members turn to violence, theft, drug dependency, welfare dependency, unwed parenthood, while others take the much more difficult (and initially humbler) path.

By definition, they have as close to the same genes as distinct humans get (with the exception of identical twins or triplets), and the sets of siblings also have – obviously – the same parents. Yes, once in a while parents single out on child for especially good or bad treatment. But on the whole, people with the same parents have the same upbringing.

What does that leave? The individual decisions to do right or to do wrong.

On the other hand, if you insist on focusing on the little differences in people’s life experiences, you discover that you will always find differences, so any difference in people’s behaviors can be “explained” by differences in life experiences. Of course, that defines such differences so broadly that they can never be disproven.

If we’re to at least have open minds for the possibility that people are not the sum totals of their genes and life experiences, we need to be recognize some range of genes and life experiences that we accept as similar. (Of course, we would also need to accept some ranges of behavior as similar, so that we accept, say, one armed robbery and two drug dealing convictions as close enough to, say, a preplanned rape and murder.)

Then we can hold genes and life experiences constant, and see whether or not we get substantially different behavior. I myself have seen that time after time.

As for “free will is ultimately an illusion”; let’s just say that if I weren’t quoting you verbatim, people would say I was trying to use a straw figure against you.

Cheers,

Jeff Deutsch

I’m not sure where you get that I say I have not seen people make good lives for themselves despite poverty, abuse, traumatic brain injury or the like). That doesn’t sound like something I would say. I would say that no two people have exactly the same genes and life experience, so that comparing two people’s behavior is comparing apples and rabbits.

I guess it’s time for the “why I am certain that free will is ultimately an illusion” post. Stay tuned.

You have some excellent points about empathy and experience. In your other post, you made a very good point about how it helps for a judge to understand people’s job prospects before deciding where they can or can’t work. I don’t know how much leeway the judge had in this particular case (a convicted felon on probation, when probation normally includes abstinence from alcohol anyway), but before telling someone – especially with a felony record – to leave his/her job it helps to understand how difficult it may be to get a new one.

That said, you know that you and I have our views on criminal responsibility. I firmly believe in individual responsibility (just as I suspect that at least on some level you do, too). For me, that includes a strong retributive element in punishment.

You have pointed out that deterrence is a legitimate element of punishment. Deterrence only makes sense when people, once suitably deterred, can make a choice not to do what we don’t want them to do. But when people have the power to make choices, they can choose to be evil as well as to be good.

(Just as the lawyer in your video says that he chooses to believe in the basic goodness of people. Whatever the merits or demerits of that belief – which seems to be yours as well – it does indeed require an act of choice.)

When people choose to behave evilly, they deserve to be punished. When, on the other hand, a judge decides to let someone off with a deferred adjudication or “just probation” – which from time to time can be a good idea – the judge has decided that the person deserves something other than the same punishment that hardened criminals get.

Let’s also keep in mind their victims. The extent to which we punish those who have harmed them shows the extent to which we feel those victims deserve vindication. As the saying goes, “mercy to the guilty is cruelty to the innocent”.

We don’t always feel that victims need much vindication, as with, say, a first offender for petty theft, who has given full restitution and expressed remorse. Then we may let the thief have a deferred adjudication in the hope he will reform without the millstone of a conviction record. Rape, burglary, robbery, assault and other victims, and survivors of murder victims, are a very different story.

But we cannot escape making judgments about what people deserve.

Of course we are imperfect human beings. For that matter, since you are a human being yourself, Mark, I am sure you cannot give your clients perfect defenses with guaranteed perfect outcomes. The day a god, or even a divine defense attorney, comes down to earth, your days as a viable lawyer are numbered. But we’re not holding our breaths, because until and unless that happens your clients are making do with the best alternative available, which in their eyes (and possibly mine if I were ever in Texas and accused of a crime) is you.

Punishment always has a moral dimension. That’s why, for example, punishments for crimes escalate so that a first offender gets moderate punishment but a hardened criminal gets much more. The hardened criminal has proven himself to be the type of person who is “willing to pay” a moderate price for committing crimes, so we keep raising the penalty, hoping to “price him out of the market”.

On the other hand, parking tickets, and many moving violations and other minor violations (I assume this also holds for Class C misdemeanors in Texas) have constant fines. For those things, we aren’t condemning anyone morally for having done them, we just want them to “pay the price” and of course the price is the same for them as for anyone else.

All this applies up to and including capital punishment, IMHO. That’s a subject we’ve discussed before. You don’t think the State has a right to kill prisoners because it might make mistakes. I respectfully suggest that any monster who deserves to die but is allowed to live is also a mistake. And possibly a lethal mistake if s/he ever kills in prison or escapes.

You have said that there are prisons in which prisoners neither kill nor escape. I presume you mean “Supermaxes,” reserved for the worst of the worst, where prisoners are kept in their individual cells for 23-24 hours a day and only allowed out for occasional showers and individual walks outside.

Even if preventing murders of fellow prisoners and civilians were the only reasons for capital punishment – which they certainly are not – I respectfully suggest that sending every prisoner, or even every violent prisoner, to a Supermax would be unfair and unduly punitive to the large majority. I also respectfully suggest that it would be prohibitively expensive to erect enough completely secure prisons and to hire enough specially-trained corrections officers. (If you’re not concerned about how much money it would take from other government programs because you feel the government has too much power anyway, think of how much more freedom good people could enjoy without having to pay such ruinous taxes.)

Imperfect humans operate lethal machinery (including organizations) all the time, with our blessing. Among other things, this means waging war, knowing that a certain (hopefully small) number of innocent civilians will be killed, sickened, starved, maimed and/or made homeless. That is unfortunate…but often the far lesser of many evils.

I might also add that emphasizing individual responsibility honors – not to mention encourages – those who, despite such horrid environments as you cite (eg, poverty, child physical, sexual and other abuse, head injuries, Fetal Alcohol Syndrome, etc), manage to make good lives for themselves.

You say that you have not seen such examples. I respectfully suggest that you could use some different kinds of experience of your own. In your line of work, you mainly meet criminals. I don’t imagine you meet too many people who just go about their lives, maybe humble, maybe unhappy at times, but still contributing to society and not to crimes that force decent people to live in fear.

I think that for carrying such burdens and still managing to live decent lives they deserve at least some honors for having made the difficult choices they did. It’s precisely when you have empathy that you understand how much more easily they could have turned to dealing/taking drugs, robbing people, abusing their children, etc.

I do imagine you know of some people who, with every advantage life had to offer, and whose greatest travail might have been living through birth, have chosen to do evil.

So, in a nutshell, yes crime is to a great extent a matter of choice, and punishment always has a moral element. We can see that in criminals, their victims and those who have chosen more difficult but decent lives.

Cheers,

Jeff Deutsch

When the person wielding the state’s power is in her mid 20’s with no kids and a private school education along the way, the risk that she won’t understand the stakes is very high.

I’m not cutting her down as it took my having kids to understand what it would be like to lose one.

Understanding would change the outcome because if she understood the stakes, or the kids’ futures, she might require my client to get services or make choices to get her kids back rather than simply taking her rights away and leaving these kids without a mother they know well and leaving my client with no rights to her kids and no ability to have more.

See, this is precisely why Harris County needs a public defender’s office.

I’m really a nice guy, but I’m sure I probably come off as an unmitigated ass hat from time to time.

Tarian, I like to think that you almost believe my BS because my BS is Truth that’s still just out of your reach. Empathy is never misplaced. My ability to feel for the mother of the murdered child doesn’t hurt my ability to tell part of my client’s story through her; in fact, it helps! I wish I were omniscient like you so that I could know what justice is.

Ron, no need to call Tarian’s writing pompous. If it were, it’d be ungentlemanly to point it out. Like the rest of us, he’s doing the best he can.

Clay, I had a law school classmate who thought that the DA represented complainants. I think she went on to work for a civil firm . . . same thing.

David, are you saying that the other participants in your case should treat your client with the dignity due a human being, and treat his case with the seriousness due it?

SC, I think that David is saying that . . .

Brendan, I think there are different levels of “sheltered.” Getting shot at regularly is pretty low down on the “sheltered” hierarchy (at least for Americans); expecting to spend 25 years with the same employer and then leave with a pension is pretty high. Most of America lives somewhere in between.

But Mark is right. You simply can not describe someone who’s life experience takes them from Daddy’s house in River Oaks, to a Daddy financed college, to a Daddy financed law school, straight into a secure government job where they make more than the median American household income; and from there to a house in Bellare or West U., a membership in the City Club or the Downtown Pachyderms, and an eye towards political office as anything other than “sheltered”. I’m not saying such people don’t work hard or aren’t dedicated, just that their life experience is somewhat limited, no matter how tough they want to pretend to be. I would think this would be obvious.

AHCL’s remark about prosecutors (and defense attorneys as well) being “the least sheltered members of any community they reside in, just by the mere fact that they are the ones who truly see the underbelly of their society” is akin to saying that everyone who watched Saving Private Ryan should be awarded a Combat Infantryman Badge. Sure prosecutors see horrible things, I have a friend who prosecuted child abuse cases and he dealt with stuff right out Hell itself; but at the end of the day he could close down the computer, walk out the door, and drive home to his house in the suburbs. There is a world of difference between “seeing” something and actually “been there, done that, got the T-shirt”. I am reminded of something my late father-in-law said to fat, drunk, and obnoxious Rockets fan the night they became NBA Champions. This guy was yelling “We Won the Championship! We won the Championship!”, finally my dad-in-law got sick of it and said “No, THE ROCKETS won the Championship. YOU just sat on your fat behind watching it on TV. So sit down, shut up, and finish your beer.” Since Dad-in-law had been a Golden Gloves champion, that is exactly what the drunk guy did.

I haven’t had extensive dealings with the Prosecutor’s Office, so I don’t know if “sheltered” is the norm or not. Most of the (few) people I have met from there I met through military connections. Obviously they had “been there, done that, got the T-shirt”. Wether this gave them more empathy or not, I do not know, (though I doubt it).

I do think that having had a life outside of the American upper middle class coccon made them better, more well rounded, and certianly less self-important people. It would be logical to assume that this made them better able to seek justice, and better at their jobs as well.