The following article is from Free Inquiry magazine, Volume
Even if one supposes that capital punishment is morally justifiable, there
are many good reasons to oppose it. These include the fact that those wrongly
found guilty are sometimes sentenced to death, and, in all likelihood, some of
these have been, and will be, executed. Death sentences have historically
reflected racial bias, in that they are more likely to be imposed if a
murderer’s victim is white as opposed to nonwhite. Being subject to capital
punishment often hinges on the quality of one’s legal counsel, which itself
depends on one’s economic status, so the poor are more likely to be executed
than the rich. And, of course, there are significant regional differences in
prosecutorial policies that make convicted killers more likely to die for their
crimes in the South than in the North.
Since the Supreme Court declared capital punishment “cruel and unusual” on
the basis of the Eighth Amendment in 1972, states have sought to draft
death-penalty statutes that would avoid blatant disparities in application.
Although many of these statutes have passed constitutional muster, significant
arbitrariness in sentencing still exists, and the innocent still face the risk
of execution. In response to the well-documented incidence of wrongful capital
convictions, Illinois instituted a moratorium on capital punishment, and other
states are taking a hard look at how to ensure the accuracy of verdicts. In
Massachusetts, for example, the governor convened an expert panel to draft a
death-penalty law requiring use of the latest forensic science to prevent any
miscarriage of justice.
The strategy for opponents of the death penalty is, it seems, to expose a
procedural defect in its application, while death-penalty proponents simply
respond by remedying the defect. Noticeably left unaddressed by this strategy is
the more basic issue of the moral justification for capital punishment. Put
bluntly, do certifiably guilty killers deserve to die? Little debate has
occurred on this point, which suggests that the prevailing opinion is that yes,
It’s not surprising that we might be strongly predisposed to think that
killers deserve execution, given our natural tendency to retaliate against those
that harm us or our loved ones. Our capacity to feel retributive rage in the
face of such harm evolved for good reason, for it predisposes us to deter
aggressors and to eliminate threats to ourselves, our family, and our tribe.
Those without at least some predilection for righteous anger and a thirst for
revenge simply wouldn’t have made the evolutionary cut. So the felt justice of
capital punishment, especially if you’re closely related to the victim, isn’t
hard to explain.
But this still begs the question of the moral propriety of acting on our
retributive impulses, even in the measured, judicially restrained compass of a
courtroom. The desire to inflict suffering and death on those who knowingly take
the life of someone we love may be natural, but that alone doesn’t make acting
on it just. After all, there are many naturally arising impulses that we don’t
condone consummating, as evidenced by widespread secular and religious
injunctions against such things as murder, theft, adultery, and dishonesty.
Deciding whether executions are morally permissible should involve a considered
judgment that takes into account not just gut feelings, but the reasons that
might justify acting on them.1
It’s clear that retaliation to the death is no longer necessary to protect
ourselves from murderers, and the deterrent effect of executions is very much
open to question. Execution, after all, models the very crime being punished.
It’s not surprising, therefore, that most countries in the world have banned
capital punishment, seeing no practical need for it.
But the most fundamental justification for supposing that killers deserve to
die, and that executions are morally permissible, still remains. It is that
killers have free will, the capacity to have chosen otherwise in the exact
situation in which the murders took place. Such freedom means that choices and
actions are, in some basic, metaphysical sense, the human agent’s alone.
Whatever the causal antecedents of character, motive, and behavior, we are not
simply the working out of such factors. At the moment of choice, we originate
something independent of natural causality, something that makes us ultimately
responsible and thus deeply deserving of praise or punishment. Susan Smith, whom
the prosecution argued killed her two young sons to advance a love affair, was
not fully caused to act precisely as she did but instead let her car roll into a
South Carolina lake of her own free will, her children strapped inside.
Likewise, Gary Lee Sampson, sentenced in 2003 under federal law in Massachusetts
to die for multiple murders, chose to kill, and that choice was in some
fundamental sense strictly his own doing.2
The difficulty is that this age-old belief about human choice seems less and
less plausible the more we learn about ourselves. Recent work in genetics,
neuroscience, and behavioral psychology is rapidly fleshing out the causal story
of how the brain—the physical seat of consciousness, character, desire, and
rationality—is entirely shaped by biological and environmental influences and
interactions. Behavior, and decision making in particular, can be understood as
functions of the brain-body control system, which needs no nonmaterial, causally
uninfluenced supervisor of neural processes—no soul or “ghost in the machine”—to
deliberate effectively and make choices. Where, then, is the buck-stopping,
freely willing agent that could have done otherwise as a situation unfolds?
Neuroscience is telling us, as Tom Wolfe so unkindly put it in the title of a
1996 Forbes Magazine essay, that “Sorry, but your soul just died.”
The death of the supernatural soul, and along with it contra-causal free
will—what philosophers call variously libertarian, Cartesian, or interventionist
free will—is a central concern of a number of recent books by philosophers and
cognitive scientists. Steven Pinker, in chapter 10 (“The Fear of Determinism”)
of The Blank Slate, argues that we should make our peace with determinism, drop
the belief in the ghost in the machine, and justify punishment on grounds of
deterrence only.3 Derk Pereboom, a philosopher at the University of
Vermont, writes in his book, Living Without Free Will, that giving up the belief
in free will “would not have disastrous consequences, and indeed it promises
significant benefits for human life.”4 In Freedom Evolves, Tufts
philosopher Daniel Dennett admonishes us to be content with the sorts of freedom
that are compatible with being fully determined creatures,5 and, in
perhaps the most forthright dismantling of free will yet written for laypersons,
Duke professor Owen Flanagan argues in The Problem of the Soul that the
viability of our naturally evolved moral intuitions doesn’t depend on being
The common message of these books and the burgeoning scientific research on
human nature is that there is no evidence to show that human agents escape being
caused in each and every respect. Regarding the death penalty, this means that
those who kill don’t do so because they somehow rise above causal influences.
Killers, like ordinary folk, are fully a function of a complex set of
biological, familial, and social processes, and were any of us dealt exactly
same genetic and environmental hand as, for instance, Susan Smith or Gary Lee
Sampson, there’s no reason to suppose we would have acted any differently. Put
more positively, had either Smith or Sampson been dealt a different hand, then
it’s quite likely they would never have killed.
Much homicide is directly or indirectly attributable to factors that
compromise a person’s character and self-control, such as childhood abuse and
brain damage that impairs prefrontal cortical functioning, genetic
predispositions to psychopathy and other personality disorders, substance abuse,
and exposure to environments in which violence is a standard method of resolving
disputes. But, of course, the deterministic story behind murder need not involve
obvious brain abnormalities or diagnosable syndromes—it sometimes lies in the
rational, deliberate plans of contract killers or the frenzy of lynch mobs. But
either way, whether killing is calculated or impulsive, the product of a
diseased or normal brain, on a scientific understanding, contra-causal free will
plays no role.
This means that murderers—even the most cold-blooded, sadistic “monsters”
such as John Wayne Gacy—have not chosen their characters, their motives, or
their behavior from some unconditioned vantage point that makes them self-caused
originators of their crimes. They are, it is true, the most proximate cause of
behavior that must be condemned and contained, but they are neither ultimately
responsible for their misdeeds nor metaphysically deserving of death, as much as
we might wish it. It seems that retributive justifications for executions wither
under the gaze of science, in which case, the basic morality of capital
punishment is called into question. Once we drop the notion of libertarian free
will, those who insist that murderers deserve to die must show precisely on what
alternative basis retribution might be justified.
Retributive emotions are most strongly evoked in the penalty phase of a
murder trial, in which the prosecution seeks to prove that the crime involved
aggravating factors, such as deliberate, excessive suffering inflicted on the
victim. Prosecutors incite the jury’s desire for death by emphasizing the
gratuitous cruelty of the crime, while disparaging any causal story that might
account for the murderer’s motives and behavior. The murderer is portrayed as a
self-created monster: rational, fully capable of controlling his or her
behavior, but willfully malevolent—all of which heightens our tendency to focus
retributive blame on the freely willing agent that could have done otherwise,
but chose not to.
Oppositely, the defense tries to prove the existence of mitigating factors,
which often involves demonstrating some sort of mental illness or defect or
showing clearly the causal story (often, but not always, a story of abuse or
neglect) behind the offender’s deeply flawed character and actions. Establishing
such causes has the effect of undercutting the prosecution’s portrait of a
self-created monster, therefore lessening the strength of the retributive
impulse felt by jurors. So the penalty phase of a murder trial is really the
playing out of these two opposing tendencies—the desire to punish and the
capacity to understand. The outcome—life in prison or death—is determined by the
extent to which the offender is perceived to possess a free will that trumps
causal explanations of his or her behavior. But whatever the outcome, the fact
remains that on a scientific view of ourselves, causal explanations always
trump—and indeed entirely invalidate— contra-causal free will.
Some might suppose that dispensing with free will amounts to universal
exculpation— that to understand is necessarily to excuse. But, even in the light
of science, our moral standards of right and wrong remain intact; we still find
murder abhorrent, and we must still protect ourselves from dangerous
individuals. Likewise, we can still distinguish the sane from the insane, the
immature from the mature, those who act voluntarily from those who act under
duress; and so the concept of a responsible agent—an agent that it makes sense
to hold responsible in order to shape moral behavior—still has footing, even
though all agents are fully determined in their actions.
Writing in the 2000 Southern California Law Review, University of
Pennsylvania law professor Stephen Morse says “[W]estern theories of morality
and the law . . . hold some people responsible and excuse others, and when we do
excuse, it is not because there has been a little local determinism at work. For
example, we do not hold young children fully responsible because they are not
fully rational, not because they are determined creatures and adults are not.
Determinism and causation do not loosen their grip on us as we age.”7
But according to Morse, once we’ve accepted that behavior is fully caused, a
primary goal of holding agents responsible and accountable is what he calls
“guiding goodness”—that is, encouraging good conduct.8
The retaliatory impulse may have served us well in our prescientific past,
but understanding (as our ancestors did not) that persons are not self-made
means that pursuing retribution to the death, while ignoring the actual causes
of homicide in culture and biology, is itself an immoral abdication of the
responsibilities conferred on us by our new knowledge. If we take science
seriously, we must look outside individuals (at the culture) and inside them (at
the biology) to understand, and eventually control, the factors that shaped them
and led them to kill.
Such a causality-driven, prevention-focused approach to homicide and other
serious crime would revolutionize our conception of criminal justice, moving
from the imposition of “just deserts” to the enlightened pursuit of a less
violent society.9 Such work might well begin with reform of the penal
system itself, which arguably does far more harm than good in its unnecessarily
harsh, often inhumane treatment of offenders, who return to their neighborhoods
more dangerous and hardened than ever. Involuntary detention to serve purposes
of deterrence, incapacitation, and rehabilitation will of course still be
necessary, but whether it need involve a punitive component is very much in
question. Indeed, there are many criminal-justice reform movements already
underway, some of which seek to change the basic mission of courts from
after-the-fact administration of punishment to solving the social problems that
produce crime in the first place.10 A better appreciation of the
determinants of deviance should help to build support for such reforms.
But all this assumes that we should take science, not traditional dualism
about the soul and free will, as criteria when deciding momentous questions
about human nature, criminal justice, and the justifications for punishment. The
argument about the proper basis of knowledge (science vs. folk wisdom) and
therefore human nature (natural vs. supernatural) lies at the heart of the
culture wars: Where should we place our cognitive allegiance, and what sort of
creatures are we?
Many have resisted, and will continue to resist, the epistemic authority of
science, since it requires us to abandon those beloved conceptions of freedom,
dignity, moral agency, and responsibility in which persons are understood to be
causally privileged over the rest of nature. (Hence the widespread rejection of
behaviorist B. F. Skinner’s rather tactless deconstruction of free will in the
1960s and 70s.) In their place, science proposes naturalized, pragmatic
conceptions of freedom and responsibility that embed persons, even in their
highest capacities, fully within the causal networks it reveals. Such
conceptions not only undercut our status as godlike first causes, but as the
example of capital punishment shows, they support the proposition that it may be
morally better to forgo some personal gratifications in favor of solutions to
social problems that take into account the full causal story behind behavior.
It is no wonder, then, that few are rushing to embrace a naturalistic view of
ourselves, given the inconvenient implications for our self-image and social
policy. But in the long run, the moral wisdom and practical benefits of siding
with science, not tradition, may yet win converts, and support for capital
punishment might decline. At the end of his book, The Death Penalty: An American
History, University of California at Los Angeles law professor Stuart Banner
contemplates this possibility:
The death penalty is so popular that abolition will be impossible without a
significant shift in public opinion. Such shifts have occurred several times in
the past 250 years, however, and may occur again. In the past they have been
caused by changing attitudes about the extent to which crime is a consequence of
the criminal’s free will, changes that seemed to flow from better understanding
of human behavior. We can expect similar developments in the future. . . . [T]he
balance of Americans’ beliefs about free will is not likely to remain static
forever. When it changes, so too will opinion on capital punishment.11
©2004 Thomas W. Clark, Center for Naturalism
1. Philosopher Janet Radcliffe Richards writes that “. . . if we understand
that there are good evolutionary reasons for our wanting people to suffer when
they have done direct or indirect harm to us, then we can account for our strong
feelings about the appropriateness of retribution without presuming they are a
guide to moral truth. . . . We may be able to recognize our retributivist
feelings as a deep and important aspect of our character—and take them seriously
to that extent—without endorsing them as a guide to truth, and start rethinking
our attitudes toward punishment on that basis” (Human Nature after Darwin [New
York: Routledge, 2000], p. 210).
2. A juror commented after the trial that “If I could say anything to
[Sampson], the only thing I would say is, ‘Why?’ When it comes down to it, you
really have a choice. He didn’t have to do what he did. That’s what he picked to
do.” Boston Globe, “Juror says Sampson inspired little sympathy during trial,”
by Peter DeMarco, December 31, 2003, page B3.
3. Steven Pinker, The Blank Slate (New York: Viking Press, 2002), pp.
4. Derk Pereboom, Living Without Free Will (Cambridge: Cambridge University
Press, 2001), p. 212.
5. Daniel Dennett, Freedom Evolves (New York: Viking Press, 2003), p. 225.
6. Owen Flanagan, The Problem of the Soul (New York: Basic Books, 2002), p.
7. Stephen Morse, “Rationality and Responsibility,” Southern California Law
Review 74(2000):259. At
8. Stephen Morse, “Reason, Results, and Criminal Responsibility,” University
of Illinois Law Review 2 (2004): 363–444. Earlier draft (“Guiding Goodness”) online at www.law.uchicago.edu/academics/gg.draft
morse.pdf. Morse holds, as I do not, that there is a further categorically
deontological aspect of our responsibility practices that’s independent of
guiding goodness, but our disagreement is beyond the scope of this paper.
9. Joshua Greene and Jonathan Cohen, “For the Law, Neuroscience Changes
Nothing and Everything,” Philosophical Transactions of the Royal Society of
London (Science B), 359 (2004): 1775–1785, online at
It argues against retributive punishment on precisely the grounds I adduce here:
the nonexistence of contra-causal free will.
10. See for instance “Problem-Solving Courts” by the Center for Court
11. Stuart Banner, The Death Penalty: An American History (Cambridge, Mass.:
Harvard University Press, 2002).
Thomas W. Clark is director of the Center for Naturalism and can be reached