Nobody Chooses Their Brain: Why Determinism Should Matter to Criminology

Simon Waddell

Simon Waddell

— 13 min read
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A few days ago, I was talking with a criminologist friend about free will. She offered what seemed like a straightforward challenge to determinism: imagine a man discovers his partner cheating. One person reacts violently. Another walks away. Same basic situation, two different reactions. Doesn't that show that people are free to choose?

It is a good challenge, and worth taking seriously. But I do not think it shows what it initially seems to show.

The fact that two people respond differently tells us that they are different people. It does not tell us that either person, with exactly the same brain, history, circumstances, and mental state, could have produced a different response at that exact moment.

That distinction may sound philosophical, but I think it has enormous implications for criminology.

Criminology spends much of its time studying precisely the biological, psychological, social and environmental factors that shape human behaviour. If those causes matter when we explain crime, how far should we follow that insight when we assign blame and decide what punishment is for?

What determinism actually means here

Determinism is not the claim that people do not make choices, weigh options, deliberate or exercise self-control.

Obviously, we do all of those things.

The claim I am interested in is narrower: a choice does not appear from nowhere. It emerges from a physical brain with a particular biology, history, environment and state at a particular moment.

Your genes matter. Your upbringing matters. Your temperament matters. So do your experiences, culture, relationships, stress level, mental health, intoxication, sleep and countless other influences.

None of these factors operates in isolation, and no two people have exactly the same combination of them.

Reasoning matters enormously too. It is one of the mechanisms through which these influences operate.

Our internal dialogue, our capacity to anticipate consequences, our ability to resist an impulse and our willingness to reconsider an action are all real and causally important.

But those capacities also have causes.

You did not choose the brain with which you perform that reasoning. You did not choose its baseline temperament, its developmental history, its capacity for impulse control or the experiences that shaped what you consider persuasive, frightening, rewarding, shameful or morally unacceptable.

So the question is not whether people make decisions.

They plainly do.

The question is: What causes a particular person to arrive at one decision rather than another?

Back to the cheating-partner example

Suppose one person discovers a partner cheating and becomes violent, while another person in an apparently similar situation walks away.

That does not require free will to explain the difference.

The two people are different causal systems. They may differ in temperament, impulse control, experiences with betrayal, attitudes toward violence, attachment history, alcohol consumption, neurological development, learned coping strategies or any number of other characteristics.

Different people should be expected to react differently.

The more difficult question is what happens if we stop comparing two different people.

Imagine instead that we could rewind the same person to precisely the same moment.

Everything is identical: the person's brain, memories, emotional state, environment, neurochemistry, history and circumstances.

What would cause that person to make a different decision the second time?

That is the deterministic question.

If absolutely everything about the person and the situation were identical, there does not appear to be some additional, unexplained ingredient that could suddenly produce a different result simply because the person was "free" to choose otherwise.

Randomness would not solve the problem either. If some genuinely random event altered the outcome, the person did not control that event.

Replacing causation with a coin toss does not create authorship.

This is where determinism begins to matter for criminology.

If behaviour emerges from a person's biology, psychology, environment, development, experiences and immediate circumstances, explaining those influences is not merely an interesting academic exercise.

It raises a much more uncomfortable question:

What does it mean to say that someone ultimately deserves to suffer for being the person those causes produced?

Even if determinism is wrong, we are far less self-authored than we feel

You do not actually have to accept strict determinism to take this problem seriously.

Consider how much of yourself you never chose.

You did not choose the country into which you were born.

You did not choose your parents.

You did not choose whether they were stable or chaotic, affectionate or abusive, wealthy or poor, present or absent.

You did not choose your genes.

You did not choose your early brain development.

You did not choose your baseline temperament, intelligence, susceptibility to addiction, tendency toward impulsivity, vulnerability to mental illness or the developmental period during which particular experiences happened to you.

You did not choose the culture that first taught you what was normal.

And you did not choose the experiences that shaped you before you were old enough to understand that you were being shaped.

By the time we begin talking seriously about someone's "choices," an enormous part of the person doing the choosing already exists.

That does not mean people cannot change.

Learning changes people. Therapy can change people. Relationships change people. Education changes people. Consequences change people. Prison changes people.

But those changes are themselves part of the causal story.

This is what makes the idea of ultimate self-authorship difficult.

We may shape ourselves, but we shape ourselves using a brain, personality, set of preferences and capacity for self-reflection that we did not create from nothing.

What about compatibilism?

There is an important objection to everything I have argued so far.

Many philosophers do not believe that free will requires escaping causation at all.

This position is generally called compatibilism.

On a compatibilist account, a decision can be completely caused and still meaningfully free.

The basic intuition is easy to understand.

Suppose I give someone money because I want to buy them a birthday gift. Compare that with handing over my wallet because someone is pointing a gun at me.

Both actions have causes, but we ordinarily regard the first as much more freely chosen than the second.

More sophisticated versions of compatibilism go well beyond the simple absence of coercion. They may ask whether a person can recognize and respond to reasons, whether an action reflects the person's own values and desires, whether they possess ordinary capacities for self-control and deliberation, or whether the relevant decision-making processes are functioning appropriately.

Those distinctions are real.

They also matter enormously to criminal law and criminology.

But I am not convinced that they solve the particular problem I am interested in.

Consider a person whose behaviour changes dramatically following damage to the frontal areas of the brain. We may reasonably say that the injury diminished the person's ability to regulate behaviour.

Now move gradually away from the obvious case.

Consider someone whose impulse regulation is affected by a developmental condition.

Then consider someone whose capacity for emotional regulation and long-term planning was profoundly shaped by childhood trauma, chronic stress or deprivation.

Then consider someone whose temperament and capacity for self-control developed through an entirely ordinary combination of genes, upbringing, culture, experience and neurobiology.

At what point in that progression does the person's behaviour become, in some ultimate sense, authored by them?

There may be excellent practical reasons to distinguish among these cases.

A brain injury, psychotic episode, developmental impairment, coercion, intoxication and ordinary deliberation may tell us very different things about culpability, risk, treatment, deterrence, supervision and the likelihood of future behaviour.

But the underlying problem remains.

The person with the ordinary brain did not choose that brain either.

They did not choose their temperament before acquiring it.

They did not choose the childhood that shaped their emotional regulation.

They did not choose the genes that contributed to their executive functioning.

And they did not choose the experiences that helped form the values that later became the basis upon which they made "free" decisions.

This resembles what philosophers discuss as the sourcehood and manipulation problems.

Philosopher Derk Pereboom develops a famous four-case argument in which an agent's behaviour is produced through progressively less obvious forms of manipulation. The cases are designed to test whether responsibility fundamentally changes merely because the causal process that shaped a person becomes increasingly ordinary. Pereboom develops the argument as part of his broader challenge to traditional accounts of moral responsibility.

Galen Strawson approaches the problem differently.

His "Basic Argument" begins from the idea that what we choose depends partly on what kind of person we are. But if we are to be ultimately responsible for our choices, Strawson argues, we would also need to be ultimately responsible for the mental characteristics from which those choices arose. That produces a regress: creating those characteristics through an earlier choice would require an even earlier version of ourselves from which that earlier choice was made. Strawson concludes that ultimate moral responsibility cannot be established in this way.

Compatibilists have developed serious responses to arguments like these. The philosophical debate is not settled, and I do not intend to pretend otherwise.

My point is narrower.

Compatibilism can provide useful distinctions between ordinary deliberation and behaviour occurring under coercion, severe impairment or other unusual circumstances.

What it does not obviously provide is ultimate self-authorship.

And that distinction becomes important when we move from responsibility in a practical sense to the idea of retribution.

A justice system needs to know whether someone understood what they were doing.

It needs to know whether they can respond to reasons, whether they remain dangerous, what factors are contributing to that risk, and what forms of treatment, supervision, support, or environmental change are most likely to reduce future harm.

Those are practical and important questions.

But they are different from saying:

This person ultimately created the kind of mind that produced this decision, and therefore suffering is intrinsically owed to them.

That is the claim I find much harder to sustain.

A cautionary example: the "hungry judges" study

One widely discussed example of how factors outside conscious reasoning may influence decisions comes from a 2011 study by Shai Danziger, Jonathan Levav and Liora Avnaim-Pesso.

The researchers examined more than 1,000 decisions made by Israeli parole boards. They reported that favourable decisions were considerably more common near the beginning of a decision session and declined as the session progressed, before increasing again following a break.

The result became famous, often simplified into the idea that "hungry judges" become harsher.

That interpretation requires caution.

The original study discussed mental depletion as a possible explanation, but it did not establish that blood glucose or hunger itself caused the pattern.

Andreas Glöckner later showed through simulation that at least part of the apparent effect could potentially arise from case scheduling and differences in how long favourable and unfavourable decisions take.

So this study should not be treated as proof that judges become punitive because they missed a snack.

But the controversy itself illustrates something useful.

A decision can feel deliberate and reasoned while still being influenced by variables that the decision-maker may not recognize.

That possibility matters far beyond parole boards.

Human beings constantly produce explanations for why we chose one thing rather than another. Those explanations may be sincere and meaningful without necessarily representing the complete causal history of the decision.

What physics can, and cannot, tell us

The question also reaches directly into physics. Physics may not settle every philosophical definition of free will, but it places serious constraints on the idea that a person could have acted differently while the complete physical state of the universe remained identical.

Under classical deterministic models, identical starting conditions governed by identical physical laws produce identical outcomes.

Modern physics complicates strict determinism. Quantum mechanics introduces probabilities and, depending on interpretation, may involve genuinely indeterministic events.

But indeterminacy is not free will.

If a genuinely random event influences a neural process and changes a decision, that event was still not authored or controlled by the person. Randomness may interrupt strict determinism, but it does not create agency, authorship, or meaningful control over which outcome occurs.

So, from the perspective I am defending here, physics leaves us with two broad possibilities: events are determined by prior physical conditions, or some events contain an element of indeterminacy. Neither possibility explains how a person becomes the ultimate author of the brain state from which a decision emerges.

The Libet experiments

Neuroscience has produced another famous line of evidence.

In experiments published in 1983, Benjamin Libet and colleagues asked participants to make simple voluntary movements while researchers recorded electrical activity in the brain.

The researchers observed a "readiness potential," a measurable buildup of neural activity, beginning several hundred milliseconds before participants reported becoming consciously aware of their intention to move.

The finding became enormously influential in discussions of free will.

It has also frequently been overstated.

Libet himself did not claim to have disproven free will. He suggested that conscious awareness might retain the ability to veto an action after unconscious preparation had begun, an idea sometimes described as "free won't."

Later researchers have also questioned what readiness potentials actually represent and how much a deliberately trivial finger or wrist movement can tell us about complex moral decisions.

Those objections matter.

A laboratory movement is not murder, theft, addiction, fraud or an act committed after years of abuse.

Still, the experiment raises an interesting question about our subjective experience of decision-making.

Processes contributing to an action may already be developing before we consciously experience ourselves as having "decided."

That does not prove that conscious reasoning is irrelevant.

It suggests instead that consciousness is embedded within a much larger biological process.

Determinism does not mean reasoning is pointless

At this point, determinism can start to sound fatalistic.

If our behaviour is caused, why bother trying to change anything?

But determinism and fatalism are not the same thing.

Your reasoning is one of the causes.

Reading an argument can change your mind.

A prison program can change someone's behaviour.

Medication can alter someone's ability to regulate attention or impulses.

A supportive relationship can change someone's expectations.

A frightening experience can change someone's future choices.

A law can deter behaviour.

Education can provide someone with capacities they previously lacked.

If causes produce behaviour, then changing causes is precisely how behaviour changes.

Telling someone "you should stop drinking" may itself become one small causal influence in a much larger chain. Treatment may be a considerably stronger one.

Nothing about determinism requires doing nothing.

In fact, it gives us a reason to care deeply about interventions, environments and institutions, because those things become part of the causal histories that produce future behaviour.

Why this should matter to criminology

This is the part that motivated this article.

Criminology already operates as though causes matter.

Researchers examine childhood adversity, family instability, education, peer networks, neighbourhood conditions, trauma, substance dependence, mental illness, poverty, social exclusion, developmental differences and countless other factors because criminal behaviour does not appear from nowhere.

It emerges from lives.

The empirical project of criminology is therefore, in large part, an attempt to understand why different people develop different probabilities of behaving in particular ways.

What I think deserves more attention is what happens when we follow that insight all the way through to punishment.

There is an important distinction here:

Explaining behaviour is not the same as excusing it.

Suppose someone commits serious violence.

Understanding the causal history of that violence does not undo the injury.

It does not make the person harmless.

And it does not require society to permit a dangerous person to continue hurting people.

Public safety can justify restraint.

It can justify supervision.

In some circumstances, it can justify incapacitation for a very long time.

Determinism does not require pretending that dangerous behaviour is not dangerous.

What becomes harder to justify is something more specific:

the deliberate infliction of suffering because suffering itself is thought to be deserved.

If someone's capacity for self-control, emotional regulation, values, temperament and eventual decision were all produced by a brain and history that person did not ultimately choose, what exactly makes additional suffering morally valuable in itself?

That does not mean consequences disappear.

It changes what consequences are for.

From retribution to prevention

Once punishment is no longer justified primarily as moral payback, the central question changes.

Instead of asking:

How much suffering does this person deserve?

we begin asking:

What response best reduces future harm?

Sometimes the answer may still involve imprisonment.

A person who represents a serious continuing danger may need to be separated from the public.

But the justification is different.

The goal is protection, not vengeance.

That distinction also changes how we should think about conditions of confinement.

If a person must lose their liberty, it does not follow that every additional deprivation serves a legitimate purpose.

Unsafe transportation, needless humiliation, inadequate healthcare, unnecessary isolation, degrading living conditions and avoidable physical suffering do not become justified merely because the person committed a crime.

The sentence can be the loss of liberty without making suffering itself the objective.

The person eventually walking out

There is another practical reason criminology should care about this.

Most incarcerated people eventually return to the community.

That fact makes correctional conditions a public-safety question.

If someone enters prison with poor emotional regulation, addiction, unstable housing, little employment experience and weak social support, a correctional system has choices about what happens next.

Those choices become new causes.

The institution can increase isolation or social connection.

It can reinforce aggression or teach emotional regulation.

It can provide treatment or leave addiction largely untreated.

It can prepare someone for employment or allow employability to deteriorate.

It can preserve family relationships or make them harder to maintain.

It can release someone with a plan or release them into homelessness and instability.

All of those interventions become part of the causal chain leading to whatever happens after release.

A deterministic perspective therefore does not make criminal justice passive.

It makes intervention more important.

If behaviour has causes, then the rational goal of correctional policy should be to influence the causes of future behaviour in ways that reduce harm.

Responsibility without hatred

There is also a more human implication.

Rejecting ultimate moral desert does not require abandoning ordinary responsibility.

We can still tell someone that what they did was wrong.

We can require them to repair harm where possible.

We can expect participation in treatment.

We can impose boundaries.

We can supervise people.

We can protect victims.

We can condemn behaviour without pretending that the person responsible somehow created themselves from nothing.

There is a difference between saying:

"You caused harm, and society must respond."

and:

"You are ultimately deserving of suffering because you freely created the person who chose to cause that harm."

The first claim remains entirely compatible with a causal understanding of human behaviour.

The second is much harder for me to understand.

Why the question remains worth asking

I do not expect this article to settle a philosophical debate that has existed for centuries.

There are serious philosophers who defend compatibilism. There are philosophers who defend libertarian accounts of free will. There are philosophers who reject both. Neuroscience has not settled the issue, and physics has not handed criminology a simple answer.

But I do think criminologists should ask the question.

Criminology already takes seriously the proposition that behaviour has causes.

If childhood development matters, if trauma matters, if neurobiology matters, if poverty matters, if peer networks matter, if substance dependence matters, if mental illness matters and if environments matter, then perhaps we should be more cautious about treating the individual standing at the end of that enormous causal history as though they created themselves.

For me, the most important question is not whether people make choices.

Of course they do.

It is whether they could have made a different choice while literally everything that produced that choice remained exactly the same.

I do not see where that ability comes from.

And even if the strongest version of determinism ultimately turns out to be wrong, one fact remains extraordinarily difficult to escape:

Nobody chooses their brain.

That should matter when we decide what people deserve.

And it should matter even more when the state decides how much they should suffer.

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