I'm bothered by George Zimmerman's jury giving him a "not guilty" free pass after he killed Trayvon Martin. However, this morning I also was philosophically perplexed -- along with bothered -- after reading an AP story in our local newspaper about the jury instructions.
Despite a clamoring by some for a conviction against George Zimmerman, jurors acquitted the former neighborhood watch leader of all charges, leaving many to wonder how the justice system allowed him to walk away from the fatal shooting of Trayvon Martin.
Part of the answer is found in the 27-page jury instructions on two matters: justifiable use of deadly force and reasonable doubt. Jurors were told Zimmerman was allowed to use deadly force when he shot Martin — not only if he actually faced death or bodily harm, but also if he merely thought he did.
...but also if he merely thought he did. Wow.
This casts us into some deep neuroscientific/neurophilosphical waters. I'm not qualified to swim around here, but I've done quite a bit of wading, having read numerous books about how the brain works, including how old ideas about free will are being impacted by findings of modern science.
By and large the American legal system is still stuck in the scientific Dark Ages, so to speak. It is assumed that unless someone is certifiably mentally ill, that person basically is reponsible for his or her actions.
Yet the Zimmerman case illustrates a contradiction here.
The jury instructions regarding deadly force are founded on an assumption that a thought in one's mind -- I'm in serious danger! -- which causes the firing of a gun and the killing of a young man is reason enough for justifying deadly force.
What happened to the notion of free will? Free will means that I can do whatever I want, that circumstances don't determine my actions, that I am free to fire a gun, or not fire a gun, regardless of whatever transpires inside my mind or outside in the world.
Last year I wrote a post, "Sitting in a jury box, I deny free will." I included some passages from a book by Richard Oerton, a British lawyer who wrote "The Nonsense of Free Will."
The idea of free will is central to the criminal law, and the judges quite clearly believe that the offender might, by exercising his own free will, have refrained from committing the offense of which he has been convicted and any other offences on which their view of him is based.
...So don't we have something of a contradiction here? Why does a judge assume that someone who has proved dangerous in the past will go on being dangerous in the future? If he might, by exercising his free will, have avoided his past crimes, why might he not, by the same means, avoid any future ones, so abstaining from behavior which is not only destructive but self-destructive?
...If free will existed it would mean that, although our personality may be determined, this determined personality does not determine our behaviour because free will allows us always to transcend it.
...But if free will did exist, with anything like the implications just described, then it would invalidate pretty much the whole of psychology, psychiatry, criminology, sociology and any other science or system you can think of which concerns itself with human behaviour.
...Of course, offenders differ from one another in their mental states, doing so to an almost infinite degree, and these differences should be reflected in the way in which they are treated by the penal system, but there are causal explanations for the crimes of all of them, free will affects none of them, and retributive punishment is not something which any of them deserves or from which any would benefit.
Now, in Zimmerman's case he ended up being judged a non-offender. However, considerations of free will still entered into the legal deliberations. Confusedly.
The jury instructions allowed a "not guilty" verdict for either objective or subjective reasons. Solid objective evidence of Zimmerman facing death or great bodily harm was, of course, lacking. The only people who saw the encounter between Zimmerman and Martin were the two men.
Martin is dead. And Zimmerman never testified.
So we're left with shaky tesimony regarding his state of mind during his confrontation with Martin. Who knows what thoughts were in Zimmerman's mind? No one other than Zimmerman, and it is impossible to confirm his state of mind.
Further, it is well known that conscious thoughts aren't the main determinant of our actions. Many unconscious influences play a larger role. Neuroscience knows that the reasons we give for doing something never comprise the entire explanation of why did you do it?
So this jury instruction regarding deadly force is both perplexing and disturbing. It reminds me of how so many police officers have gotten away with murder (literally, in my opinion) after shooting a suspect who actually posed no threat to them.
Here in Oregon, the rule is that if a police officer believes he or she is at risk of death or bodily harm, using deadly force is justified -- even if a review of the objective facts shows that the person was unarmed and non-threatening.
We're in a confusing nowhere land here, caught between outmoded notions of free will and modern understanding of how the brain works.
My attitude is that the legal system needs to move away from an assumption that people are responsible for their actions -- at least in the traditional free will sense.
George Zimmerman shot Trayvon Martin for certain reasons. Those reasons didn't pop out of his unfettered free will. They were part of his genetic makeup, his upbringing, his life experiences, the circumstances of his encounter with Martin, and much else.
The jury instructions reflect this in the ...but also if he merely thought he did language. Doesn't matter where the thought "I'm in danger" came from. If it was in Zimmerman's mind, not guilty!
Which helps explain the outrage at the jury's verdict. Our justice system holds drunk drivers, drug users, thieves, embezzelers, and other sorts of criminals responsible for their actions -- no matter what thoughts were going through their heads at the time.
Yet the Zimmerman judge told the jury that the defendant could walk free if a certain thought was in his mind, no matter what the objective circumstances were. Meaning, even if Trayvon Martin wasn't a danger to Zimmerman, if Zimmerman thought Martin was... bingo, not guilty!
What about a drunk driver who hit a pedestrian, yet thought "I'm sober enough to drive." Why isn't that person not guilty? Or what about a thief who steals because he thinks "This is the only way I can provide for my family." Why isn't that person not guilty?
Our legal system needs to come to grips with the question of free will. In part George Zimmerman is free today because a jury felt that he killed Trayvon Martin for reasons that made sense to Zimmerman, even if they appeared indefensible from an objective perspective.
Yet countless other people are in prison because of the objective nature of their actions. Their thoughts about why they did what they did were irrelevant.
Viewed from the outside, most people (me included) feel that what Zimmerman did was wrong. However, the jury was allowed to consider the inside of Zimmerman's head as being highly relevant to his innocence.
Distrurbing. And perplexing.