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Historically it was used by white juries to let off fellow racists who committed crimes against minorities, which is why the courts discourage it.
It was also used during prohibition, and courts do more than discourage it, you can be held in contempt for mentioning it.
How is it intended to be used then, just pretend it doesn't exist till final deliberations?
It still exists, so when is it intended for?
It exists only as a consequence of two other requirements of the jury process. 1) jurors cannot be held accountable for any decision they make as a jury and 2) any not guilty verdict delivered by a jury is absolute and final.
It is meant to be a final check and balance on the courts by the populace to prevent tyrannical abuse of power. Say locking up political opposition, as an example.
That's a common belief, but it's not correct. It isn't MEANT as anything. It's purely incidental. A jury not guilty finding is irreversible. And jurors have certain criminal and civil immunity in their roles as jurors. Both of those facts are important for the functioning of our legal system, but they create a loophole. This loophole was named "Jury nullification" and was mostly used for terrible things like letting racists off.
I'm not saying it's not possible to use it for good, but it's certainly not some intended function of the justice system that's being kept quiet by the powers that be.
Wasn't the guy who killed his sons rapist in plain sight of everyone let off due to jury nullification?
Gary Plauché killed his son's rapist in front of a TV crew's rolling camera, he was only charged with manslaughter and received 5 years probation and 300 hours of community service partly due to state prosecutors not believing they would be able to successfully convict him of murder due to the public's widespread support of his actions
Soo like the threat of jury nullification?
That sounds like a pretty easy constitutional violation lawsuit, though.
It's also been used by black juries to protest mass incarceration and civil rights. The so called "Bronx jury" phenomenon.
Of course this might not be explicit nullification but rather the experiences of minority juries and their skepticism of the police leading to genuine reasonable doubt.
I have to admit, this is the dilemma I see; no system - Democracy, Law, Businesses, achieve their goals if a huge number of its participants have ulterior motives. You can't put 8 people in a room, and give them a "system" where they will move a ball from one side to the other, if 7 of them don't want to move it.
So while I hate the racists appearing on juries, I'm still not sure I'd use that as a justification against the practice.
This one can have legal ramifications. Generally speaking, you can explicitly state that you are not willing to follow the law regarding the duty of jury members to make judgements of fact based on the facts presented. You should be able to defend your position, and you may be asked to do so privately.
If you were to potentially taint the jury pool by going on about nullification, that might open you up to contempt charges. I’m not saying that it should, but people interested in the subject should know that it’s a risk they run if they take that approach. Talking about nullification outside the context of a court falls under free speech, but I do think people have been cited for handing out nullification flyers outside of a court building.
I have a similar problem in that I do not believe free will exists, which shifts the idea of “guilt” from a moral to a medical dimension. I could not find anyone guilty of the crime of murder, for example, because there are a whole range of cause and effect cascades that brought the particular action about that had nothing to do with free will or choice. I do think it’s ethical to remove someone who has committed murder from society for as long as that tendency persists, but that’s a very different thing than finding someone guilty of the crime of murder, which requires mens rea - a state of mind that renders an individual as culpable for their actions. I would not find that the defendant had willfully carried out the act, any more than I’d find someone who had an epileptic seizure while driving and killed a pedestrian as guilty of murder. In order to do so, I’d require the prosecution to demonstrate a conclusive neurological argument proving the existence of free will.
I won't engage you in a discussion of free will, I refuse to do it, you can't make me.
What will really bake your noodle is you just did.
Thatsthejoke.jpg
What will really bake your noodle
I like that. Can I use that? (It would really bake my noodle.)
Sure, but be aware it's a popular line from The Matrix series specifically about predetermination!
Guilt and mens rea can be quite compatible with your admittedly strange idea of there being no free will (and yet trying to parse laws under a framework of people having free will), unless you believe that all acts are coercive (which is quite reductive).
All you need to ask yourself is if the person wanted and intended to do that, whatever the nexus of causes led up to them wanting to do the act.
It seems very weird (and a bit lazy) to subscribe to a framework of there being no free will and yet not even trying to contextualise the safeguards of the legal system to fit that framework. Sure you may agree with putting people in jail to prevent net societal harm, but mens rea is one of the checks to ensure that they will cause societal harm to others, and without being able to settle such a question of fact you will instead never be able to put anybody, even if they need to be put behind bars, there.
I can get into more detail, but the line of thinking is not only compatible with neuroscience, it is as far as I am concerned a necessary conclusion from everything we know about neurobiology (and biology in general). I am a theoretical biologist myself and can get into detail, but Stanford neuroscientist Robert Sapolsky has written extensively on the subject, and the conclusions of that school of thought are fully compatible with the conclusions of philosophers of consciousness and the self such as Thomas Metzinger.
So no, I do not think that “the person wanted and intended to do that” is a statement that is compatible with what we know about how brains work. But let’s take a closer look at that. Let’s say you have a person who had his daughter kidnapped, and the kidnappers told him that they would execute his daughter unless he robbed a bank for them. The person believes them. He knows robbing the bank is wrong, he put a plan together to do so anyway, and he carried it out. He gets caught, and the kidnappers get caught as well. Assume for the sake of argument that these are undisputed facts. Would that person be guilty of armed robbery? Or would the prosecutor not even bother to bring charges, because the person was compelled to do so via what we’d call a forced move in chess? That’s just a philosophical illustration and still builds on the idea of choice, but it illustrates that even what we consider “choice” isn’t always a free choice and that the justice system accounts for that.
Let me illustrate what I’m actually talking about though. I’m going to make up some values to show what I mean. These are not the actual values, but the relationship holds. Let’s say that for any randomly chosen American, there’s a 1% chance that they will commit a murder in their lifetime. Now let’s start tweaking some of the dials. Our random person, P, grew up in a community where they experienced strong degrees of racism and violence. This physically alters brain structures like increasing the size and influence of the amygdala, which has influenced over fear and threat reactions. It reduces the size and influence of the prefrontal cortex, which is charged with deliberation and predicting consequences. As a result, person P now belongs to a population where they have a 5% probability of committing a murder, because their brain is going to be far more sensitive to threat perception and having a response less regulated by their PFC. Let’s throw in malnutrition, which also affects both brain development and (if the mother was also having such problems) epigenetic developmental factors, which again make changes to both the physical brain and to the genetic processing at the cellular level. Throw in drug addiction. A highly population disproportionate of people in jail for committing violent crimes also have a medical history of traumatic brain injury.
None of those factors were even theoretically able to be affected by the choices made by P, but they heavily biased the probability function. The relationships between all of these factors and a given action are highly characterized. We can look at causal factors from seconds before the physical event (pulling the trigger happened) seconds ago - there were a chain of neural activations in which a specific area of P’s brain caused the muscle contraction in the finger. We can look at what happened hours to days ago that biased those neurons to be triggerable by that level of stimulus. P did not make a conscious decision to have the threat-response associated neurons building to a state of high excitability - that came from the way the brain was wired up in the first place, which happened months to years ago.
What it boils down to is that there is no neuronal argument for free will that can identify a specific chain of causality that identifies and isolates free will as a phenomenon.
Far from being lazy, my position is based on a career in the study and teaching of biology and complex systems analysis, and I can come up with a lengthy bibliography including experimental and philosophical research to defend my position.
The takeaway is that we need to address these as issues that have causal explanations, rather than failures of individual morality. This has been a process that we’ve been performing throughout history, as concepts like demonic possession and trafficking with the devil turned out to be caused by psychological and neurobiological conditions, such as epilepsy. Eventually, should we make it long enough, I think that’s where we will end up.
This feels like a scientism method to arrive at compassionate justice reform and I have no problem with that.
You don't understand. Obviously everyone is a product of their environment. But after all of that, if the person wanted and intended to do something because of all of these different dispositions and upbringings and backgrounds, then they have mens rea.
Like I said before, it's purely a finding of fact. Does it mean that there shouldn't be mitigating circumstances? No, there might well be reasons to argue that they were only doing so out of desperation. Nonetheless, they had mens rea.
Recognising that there are all these complicated factors but not taking the time to at least make sense of them is the worst kind of determinism. Sure, there's no free will in your conception. There still needs to be laws and concepts like mens rea still need defining to allow for the protection of "innocents" under the law.
No, I do understand. What I am saying is that the concept of “wanted” does not apply in a framework that’s grounded in modern neuroscience and biology. There’s teleological behaviors, yes, but there no will involved.
Let’s break it down to something simpler. A protozoan (a single cellular animal) will swim towards food and away from poison. It has receptors on its cell surface that, when activated by a series of molecules indicating an increasing gradient of food, there is a cascade from activated cell surface molecules to internal chemical cascades that has a direct causal link that’s as deterministic as what your accelerator does to your car. Cell surface molecules undergo a conformational change which causes the phosphorylation of molecules inside the cell, which ultimately drive the motors that make the protozoan swim in that direction. It’s deterministic.
We no longer think of people with leprosy as being cursed by god because of their sins. This is the same thing.
You're wilfully applying a very stunted concept of "wanted" to a legal system that deals in fact. I'm not saying you don't understand whatever it is you claim to be supporting. What I'm saying you do not understand is the concept of "wanting" and "mens rea" (as it applies in law, but also as it applies under your framework - you've chosen instead to just pretend it's no longer relevant instead of redefining it under your framework - like I said, the laziest kind of science.) And there's really no point in me repeating what I've said before.
Maybe what I'll leave you with is a possible definition of "want" under your system, which is one step further in thought than it seems you've ever gone: an action is wanted if the action would have been taken with no immediate or overt external (needs to be defined) motivation. This means if they were abused as a kid and later this translated into abusing other people, they still wanted to abuse them.
(As a note, I'm not saying this is the correct definition, but this is what is needed for people to start discussing what should and shouldn't be in this definition.)
Saying "nobody can want to do anything because determinism" is an incredibly lazy determinism because it's starting with the axiom and then not bothering to come up with a proper framework to explain everything else in the world. If you continue to protest it not being lazy there's really nothing else we have to talk about.
I will welcome any input that has a basis in biology, physics, or neuroscience. I think you’re taking the position that the conclusions you see as implied by a statement of physical and physiological fact as backed from every field from neuroimaging to developmental biology leaves us in a position that’s philosophically incompatible with the world as envisioned by the way we’ve currently constructed the law. Honestly, I would consider that to be the intellectually lazy position as it’s a rote defense of the status quo without making an attempt to address the actual argument.
The law already recognizes that there are circumstances that are outside the control of the individual, and that our concept of justice demands that those conditions are exculpatory. I’m arguing that our present day understanding means that we need to increase the scope of that interpretation, and that criminal problems should be reimagined as medical problems with evidence-based treatment regimes.
I think that prison, especially in its current state, is cruel and unusual punishment.
I also believe that a person having a criminal record that follows them for the rest of their life is cruel and unusual.
I also think removing a persons voting rights is cruel and unusual.
So, I’d have a hard time finding anyone guilty.
I don't think people have free will either. It doesn't follow though that someone couldn't be found guilty of murder. A rock doesn't have free will, but you could say it "wants" to roll down a hill. We all "want" to do things even though those desires are the result of countless variables like genetics, upbringing, nutrition, weather.
In an ideal world the criminal justice system would be designed solely to mitigate future harm caused by criminals, and to reform them to the degree that's possible. I don't think punishment or vengeance should be part of the legal system. Still, we have murder charges because someone murdered someone. And we've got to do something about it, because otherwise the conditions that led to the first murder could lead to more.
I entirely agree with the idea that there are persons that society needs to defend itself from. It’s the same as a physical body needing to defend itself against disease. But if we take an evidence-based approach, our way of addressing the problems would shift. If we know that maternal malnutrition and severe social stresses causes hypertrophy of the amygdala of the fetus, we could cut the crime rate by fixing that part of the problem. The concentration would be on prevention first and treatment second. The treatment would probably include things like psychotherapy or medication.
Again, I think that the example of a person who has their first epileptic seizure while driving. They will lose their ability to control the vehicle, and muscle spasms may cause them to floor the accelerator. If that person were to then plow onto the sidewalk and kill a child, we would not consider that to be a murder. We wouldn’t think it was a deliberate, and we wouldn’t treat them by exorcism because they’re possessed by a demon. We also wouldn’t treat them by locking them alone in a room for five years and then let them go. We would put them on medication, we would teach them coping mechanisms and give them training and therapy for mitigation, and we would pull their driver’s license until we could determine that their medical condition no longer was likely to produce a similar harmful event.
We know that punishment based models do not work. The US has a stunningly high incarceration rate and a level of barbarism in prisons that’s pretty unique among developed countries, but nevertheless has higher recidivism and crime rates than, say, the Scandinavian countries.
Come on now. On a very practical level, you can choose to reply to this message, or not, and that has nothing to do with "a whole range of cause and effect cascades that brought the particular action." Saying you can't make that choice is pure sophism that is tantamount to an excuse. So what's your choice going to be?
It is an argument with a strong foundation in neuroimaging, neurobiology, developmental biology, and the experimental philosophy of the basis of the ego and ego-identity.
Did I have a choice to reply to your message? Let’s put on our statistician’s hat and take a look at that. Let’s build a probability function R that we’ll use to predict the probability of a reply. Lets define the probability of replying using some basic measure of number of replies based on number of users.
First, I am a cis male in what is still a largely patriarchal society. I’m more likely to speak up because I’m allocated a higher social value and feel I have the right and authority to speak in group settings, even if I have a contrary opinion. I am less likely (holding other factors constant) to just go along. Similarly, I’m the eldest child in my family, which has similar kinds of effects and compounds the male thing.
Second, I am an academic type whose position and career has been driven by research and presentation of results. That creates both a physical alteration in my brain that combines both a dopamine-driven preferential pathway for arguing (because I get the neurochemical rewards for doing so) and also has a survivorship bias - people without certain dispositions tend to drop out of academia or never try in the first place. This will also increase R over baseline.
I’m entering a week that will be applying minor social stressors, priming my amygdala and limbic system to respond with either confrontation or withdrawal. I just delivered a major project but now need to catch up on other work, which has a similar effect. My prefrontal cortex, which is responsible for pushback on that kind of thing, is primed by my active intellectual engagement in this area, and its role in future-projection is moderated by both knowing that I know about this area and that I have a bit of breathing room regarding my actual work.
I have a crappy lemmy client, which reduces my R because of the level of effort associated with the response, but not so much as if it needed to be done using the web client on an iPhone.
If we were having this discussion in a bar, my tendency to reply would be driven positively by the effects of disinhibition by alcohol. It would be further increased if there were others at our table for whom I felt some level of attraction and wanted to create an impression.
I was born with a brain that is predisposed to systemic and synthetic thinking, and raised in an environment that encouraged it. My mother was an educator who worked with young children, and thus had an educational and experiential background that created reward mechanisms for reading and learning. At the same time it was confrontational, which conditions fight/flight/freeze from the physical requiring of the limbic system.
None of these influences are conscious. For my conscious self, I think I am choosing to reply. But even that image of “self” is questionable based on current research. If you were to have stuck me into a neuroimaging machine, you could see that my brain decided to reply somewhere around 1s before I thought I decided to reply. The delta between making a decision and realizing you made a decision ranges from about 700ms to a few minutes, depending on context and complexity, but it has been demonstrated that much of what we consider reasoning is a backwards projection based on decisions that were made by neural processes not under conscious control.
So if you do want to argue that it was my “choice” to reply, you would need to identify the neurological/physiological basis of some kind of phenomena that do not follow from these kinds of causal relationships. Without retreating into a non-materialistic dimension (eg, god told me to respond the same way he told Rep. Mike Johnson that he had been chosen to be the Moses of America and become the speaker of the house), I think that’s a pretty tough climb.
Okay friend. There are three kinds of logic that end up in the same helpless, stuck place. 1) "God is in control of everything. Each and every thing!" So you can be a murderer, a liar, a thief, etc. All because God is in control of everything! 2) "Everything happens randomly. There is no rhyme or reason to the Universe." So you can be a murderer, a liar, a thief, etc. All because nothing matters! 3) "Everything is predetermined, there is no free will." So you can be a murderer, a liar, a thief, etc. All because of fatalistic determinism!
You should look at if your position is any different from the other two in terms of practical results, because from my perspective, when you get right down to it, each of these seem like really potential serial-killer-levels of moral basis. Free pass! You can rape. You can kill. All because of some sophistic philosophy. If you arrive at that position, you made a wrong turn at Albuquerque, one way or another.
Whether the correlation coefficient can explain statistics of your choices (true), or your language, culture, and upbringing have a big impact (also true), or any other seemingly relevant facts are true, you still ultimately have choices in this life. Or at the very least appear to have them. You aren't a log adrift on an uncaring ocean. Take responsibility for your actions, friend.
Every argument against determinism comes from the perspective that the conclusions of the argument are intolerable. This is not a slight to you. This is the argument put forth by people like Daniel Dennett. I think the field is primed for someone who can back up the argument using the physical sciences, but so far there’s not a lot there.
Let’s do a thought experiment that I call the Reverse Ship of Theseus. The Ship of Theseus is a philosophical demonstration of the origin of identity - if Theseus’ ship were to have, in the course of his voyages, every board, mast, sail, and nail replaced - one by one - does he return in the same ship he left with? In the Reverse version, we replace every neuron in your head (and if you take a more holistic view, every cell in your body) with one from Charles Manson. Every state of every neuron and all of those interconnections are replicated. All of the hormones, neurotransmitters, excitatory and inhibitory chemical reactions are perfectly replicated. Every bit of Manson’s history, from before he was born or even conceived, through his childhood and adulthood, is deterministically encoded in your cells.
At what point do you become Charles Manson? Christian philosopher CS Lewis famously wrote
“You do not have a soul. You are a soul. You have a body.”
In a materialist worldview, of course, that’s nonsense. The thing to which I’m referring when I say “me” is an emergent phenomenon of a host of physical properties and dynamics on a scale that is, still today, incomprehensible. There’s no “self.” The self is a convenient psychological illusion that allows me to say “This is my hand,” or “That self over there, approaching me with a machete, is a danger to my self.” Even here, we’re not talking a radical point of view. This is where a lot of Buddhist schools have come to similar conclusions, for instance.
I am not a murderer. Is it because I choose not to murder, or is it because I did not receive a traumatic brain injury on top of having an abusive childhood in a violent environment where murder was something I encountered regularly, and would even be considered a rite of passage and garner social approval?
I can think that I choose not to murder because I am compassionate and empathic. But those attributes, were you to swap my brain for Manson’s, would turn Manson into a largely well-behaved pro-social academic with an aptitude for mathematics and a desire to create safe spaces for people.
I do agree with you, though, that you cannot rescue the free will concept by retreating into areas like complexity theory (which I do know a bit about) or quantum theory and physical indeterminacy (which is not my field).
Why have a jury if there are expected to vote one way and not the other? Sounds flawed