Dr. Michael A. Davis

The Law is premised on notions of moral agency, free will and individual responsibility.

We punish acts that demonstrate willful intent and which violate societal notions of right and wrong.

Yet we have no theory of how consciousness arises, no theory that even remotely explains our sense of self.

Recent developments in neuroscience suggest our mental states are fully determined by brain activity, i.e. there is no free will.

Implications for the Law (and life) are enormous.

No answers will be provided today!But the questions we will be pondering are critically

important, not just to the Law, but to every facet of our lives.

1. What is Consciousness? 2. Do deterministic theories explain Consciousness?3. Does Free Will exist?4. Are we responsible for our own actions?5. Is punishment justified?6. What do we do with Juveniles?

Our immediate problem is that we are using the very tool we are trying to explain!

Consciousness operates in a linear, 4 Dimensional Model and reality appears to be multi-dimensional (String Theory).

Too esoteric? Do we need to explain it, or can we just assume it?

“It is not possible to formulate the laws of quantum mechanics in a fully consistent way without reference to the consciousness.’

Nobel Laureate Eugene Wigner “This [uncertainty principle] seems to deny the

existence of a physically real world independent of our observation of it.”

Rosenblum & Kuttner, Quantum Enigma

No accepted theory: we don’t know what it is, how it arises, or how it functions!

Enormous implications for education, law, existence

The Two Extremes:

Metaphysics: Cosmic consciousness or the “Mind of God”

Determinism: consciousness arises from chemical and electrical activity within the brain

Quantum?

“’Free Will’ is a philosophical term of art for a particular sort of capacity of rational agents to choose a course of action from among various alternatives…. Most philosophers suppose that the concept of free will is very closely connected to the concept of moral responsibility… But the significance of free will is not exhausted by its connection to moral responsibility. Free will also appears to be a condition of desert for one's accomplishments…; on the autonomy and dignity of persons; and on the value we accord to love and friendship.”

Standard Encyclopedia of Philosophy

“…you, your joys and your sorrows, your memories and your ambitions, your sense of personal identity and free will, are in fact no more than the behavior of a vast assembly of nerve cells and associated molecules.”

Francis Crick,Winner, Nobel Prize in Physiology or Medicine, 1962

“You are your synapses. They are who you are.”Neuroscientist Joseph LeDoux

http://youtu.be/QJA5NYoDeO4(7 minutes)

“To say that human behavior is determined is to claim that it is completely caused by previous events in the brain…. [T]hat, in a sense, our behavior is the result of a mathematical process.”

“If the [chemical] interactions in my brain, over which I have neither knowledge or control, determine what I will decide, then any decision I make is not free.”

Sternberg, My Brain Made Me Do It

Theory that we have free will even though our thoughts are determined by our brains.

Free will is defined as having choices, the ability to have acted differently if you so choose.

Intended as a mid-point between determinism and classic notions of free will.

The notion that complex systems can arise from a multitude of simple interactions, or the “sum is greater than its parts.” Thus, consciousness arises from the interactions of 100 billion neurons, each with 1000 neural connections.

Basis for move toward creation of artificial consciousness through super-computers.

Cray’s Titan Supercomputer has 17.59 quadrillion operations per second. (Only a little over 1% of the computing power of a human brain.)

Determinism does not account for the universal sense of “self,” an inner life, subjective experience, the ego, “me” (the “hard” problem of consciousness).

Nor can it explain moral reasoning, which lies outside of predictable, mathematical models.

Classic Example: Train loses brakes – allow four to die or chose to kill one?

Neurological correlates in the brain don’t explain consciousness: correlation is not causation.

Quantum Physics to the rescue!

Orchestrated Objective Reduction Collaboration by Sir Roger Penrose and

Dr. Stuart Hameroff Postulates that consciousness cannot be

described by theories of computation Believed to be a quantum entanglement

state arising in the microtubules http://youtu.be/yFbrnFzUc0U http://youtu.be/lFLR5vNKiSw

Thought or willful action?1. Readiness potential(spike in brain electrical activity) occurs 800 milliseconds prior to movement.2. Benjamin Libet showed conscious decision to move comes 350 milliseconds AFTER readiness potential occurs. 3. Conscious will does not cause our movements!4. Whose mind is it? The Mind of God? Determinism?

http://youtu.be/IQ4nwTTmcgs

Brain Scans Can Reveal Your Decisions 7 Seconds Before You “Decide”

“In a kind of spooky experiment, scientists at the Max Planck Institute for Human Cognitive and Brain Sciences reveal that our decisions are made seconds before we become aware of them.

In the study, participants could freely decide if they wanted to press a button with their right or left hand.

The only condition was that they had to remember when they made the decision to either use their right hand or left hand.

The ResultsBy monitoring the micro patterns of activity in the frontopolar

cortex, the researchers could predict which hand the participant would choose 7 SECONDS before the participant was aware of the decision.”

http://youtu.be/UKfgXB3jSAQ

Based on what you have just learned, what do you think? 1. Determinism seems to fall short of explaining the hard question.2. Unconscious factors have great deal of support in Psychiatry and Sociology.3. Libet is controversial. Has he been confirmed?4. No other theory satisfies!

What are implications for moral agency, individual responsibility, law and punishment?

“Free will does not exist in our minds alone – it is also a social institution. The assumption that something like free agency exists, and the fact that we treat each other as autonomous agents, are concepts fundamental to our legal system and the rules governing our societies – rules built on the notions of responsibility, accountability, and guilt.”

Metzinger, The Ego Tunnel

Crime is “an intentional act in violation of the criminal law… committed without defense or excuse, and penalized by the state as felony or misdemeanor.”

Paul W. Tappan

Crime is whatever society says it is.

Actus Reus – voluntary act or the failure to do what one is required to do

Mens Rea – intent or the guilty mind

Attendant Circumstances – the joining of the act and intent

Intellectual/cognitive maturity at 16.Pre-frontal cortex completed in girls around 22 and males at 25 or 26, if normal.Psychosocial maturity reaches similar levels of intellectual maturity at 26 and later.Mark Hansen, What’s the Matter with Kids Today, American Bar Association Journal

Research demonstrates adolescents are different from adults (duh!); but we are talking about up to age 26 or older for some:Impulse controlThrill seekingFuture orientationReward sensitivitySusceptibility to peer influenceThey know right from wrong but can’t control themselves.

“Today, the peak age (the age group with the highest age-specific arrest rate) is younger than twenty-five for all crimes reported in the F.B.I.'s UCR program except gambling, and rates begin to decline in the teenage years for more than half of the UCR crimes. In fact, even the median age (50 percent of all arrests occurring among younger persons) is younger than thirty for most crimes.”

Read more: Age and Crime - Age-crime Patterns For The U.s. - Crimes, Decline, Physical, Adolescence, Peak, and Social http://law.jrank.org/pages/473/Age-Crime-Age-crime-patterns-U-S.html#ixzz1YWoD8VSE

R0per v. Simmons, 2005 – death penalty for juveniles under 18 violates cruel and unusual punishment prohibition of 8th Amendment.“When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity…. Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished ….by reason of youth and immaturity.”

Graham v. Florida, 2010 – outlawed life-without-parole sentences in non-homicide cases for juveniles under 18 based upon 8th Amendment.“What the state must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”Both rulings, especially Graham, relied on latest neuroscience and notion that juveniles are more malleable and capable of reform than adults.

http://youtu.be/J4_9JT08MOs

What if Determinists are right!If no Free Will then no culpability.Does this leave only prevention and rehabilitation as justifications for the penal system?Isn’t the legal system choosing among competing scientific and philosophical notions?Shouldn’t we have to define consciousness first?Can society handle the “truth?”Can you?

The Ego Tunnel, Thomas Metzinger My Brain Made Me Do It, Eliezer J. Sternberg Shadows of the Mind, Roger Penrose Juveniles at Risk: A Plea for Preventive Justice,

Christopher Slobogin and Mark R. Fondacaro Conscious Will and Responsibility: A Tribute to

Benjamin Libet, Walter Sinnott-Armstrong and Lynn Nadel

How to Create a Mind, Ray Kurzwell Out of Our Heads, Alva Noe Quantum Enigma, Bruce Rosenblum and Fred Kuttner Infinite Mind, Valerie Hunt

You can reach me at michael.davis@yc.edu or 928-254-0775