Punishment Without Free Will
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By: Sean Yin
On the 20th of June 2001, 5 children were drowned in a bathtub, the offender their own mother.[1] The severity of such a crime drove the public into outrage and widespread confusion, with one lingering question resurfacing: how could a well-known loving mother[2] kill her own offspring in such apparent cold blood? The answer lies in years of reemerging depression, two psychiatric hospitalizations, a diagnosis of postpartum psychosis, and a husband who favoured the preachings of the bible to the sanity of his own wife. Following two trials, Mrs. Adreas Yates was deemed to possess irresistible impulse[3] under the M'Naghten rules,[4] and was decreed not guilty on the condition that she be admitted to a mental health treatment facility. After an in depth look at Mrs. Yates’ trial, one must conclude that this result was only reached because of the defence of irresistible impulse, which functions under the moral right that the defendant should not be held liable for criminal charges should they be unable to control themselves, even if they know the action to be wrong. In similar terms, if the defendant did not possess free will, they should not be held accountable for their actions.
A philosophical consideration of free will is interwoven with that of determinism. To fully explore the effects of criminal sentencing in a world where legislators and judges all accepted the philosophical theory of determinism, one must first discern the different types of this theory. Although the hardest argument for a lack of free will is observed within the descriptions of scientific determinism,[5] it is also the form of determinism that is most easily proven to be false. The development of quantum physics, notably Heisenberg's Uncertainty Principle,[7] demonstrates that the behavior of subatomic particles involves fundamental randomness and probability, rather than predictable causality, disproving the statement that everything within science could eventually be perfectly predicted. What is left is soft determinism, a muted belief of free will, and hard determinism, which argues against the idea of free will fully.[6]
Within the status quo of the current legal system, soft determinism is already present. Not only is this witnessed in criminal law (Yates), contractual clauses like force majeure[8] that acts as a prevention for unforeseeable events also demonstrates the legal understanding of not assigning blame to where a party is not in control.[9] The presence of such clauses therefore prove the legal acceptances of leniency against unpredictable cases and other deterministic events. This demonstrates that the law is accepting of the fact that humans do not always have free will, creating extenuating of circumstances[10] and diminished responsibility[11] to ensure a moral justness within the legal framework. Whilst it is true that some aspects of determinism are taken into account, the idea of hard determinism and the complete elimination of free will is certainly not. Within an in depth study by Professor Savchenko V.O. of Oxford and Karazin Kharkiv National Universities, he argues that free will should be recognised as a foundational legal right.[12] This aligns more closely with a compatibilist approach, where legal responsibility and autonomy remain meaningful regardless of whether human actions are causally determined.
Since scientific determinism has been proven to be not applicable and soft determinism has already been incorporated into the current legal system, I shall within this essay discuss the effects of specifically hard determinism on sentencing. As the impacts/effects of hard determinism are affected directly by the perceived definition of sentencing, I will use a specific standard of sentencing throughout this essay. Within the UK and all associated commonwealth countries, sentencing is defined with 5 main purposes. According to the purposes of sentencing under section 57 of the Sentencing Act 2020,[13] the purposes of sentencing are listed as following: 1) the punishment of offenders, 2) reduction of crime by deterrence, 3) reform and rehabilitation of the offender, 4) protection of the public, and 5) making reparation to the victim and community. Although sourced from the UK (and therefore not applicable to religious law and other minor courts), this definition applies across common and civil law states making it very centralized.
Within the framework of hard determinism there are a few key ideas of the legal system that remain, as well as new moral concerns in regard to the purposes listed above. Sam Harris, a hard determinist, states that our decisions result from factors we did not choose, like genes, childhood, etc, and because we did not choose these factors, he argues that we cannot be ultimately responsible for the actions that flow from them.[14] However, he also argues that because people still make decisions, respond to incentives, learn from consequences, and change their behaviour, rejecting free will does not mean embracing fatalism.[15] The difference is that these processes themselves have causes. Therefore, abandoning free will does not mean abandoning effort or responsibility in a practical sense. Using Harris’ definitions, one would argue that although criminals are products of factors they did not choose, they are still capable of changing who they are. What this means is that within this world where determinism is fully accepted, two out of the five purposes of sentencing are now rendered pointless.
In the early morning of the 23rd of July, 2007, two men with the names of Steven Hayes and Joshua Komisarjevsky held hostage a family of 5, robbed them of all their monetary worth, raped the wife and children, then burnt down the house causing everyone but the husband to die.[16] Although these crimes were hideously inhumane at best, under the full embrace of determinism the actions of these men were caused by factors they did could not control. That is to say, should anyone else be placed into their position (same genes, upbringing, body, mind, etc) they would have done the exact same thing. Because there was technically no free will in the process of committing said crime, the point of retribution is now gone, as it would be highly immoral to sentence purely to punish something that these men could not control. Within the same example, deterrence would also be eliminated as a purpose of sentencing. In the current world as is, deterrence from sentencing is already quite ineffective.[17] In the world where free will does not exist and these crimes would have happened regardless, deterrence goes from ineffective to being completely pointless.
The purpose of sentencing has now been reduced to rehabilitation, protection, and reparation. With the establishment that hard determinism does not actually affect the effects of rehabilitation, and that within status quo rehabilitation does reduce recidivism rates,[18] rehabilitation would still remain one of the main purposes of criminal sentencing within a deterministic society. Similarly, the need for protection and reparation would remain the same to ensure safety of the general population and provide reassurances and support for the victim. Whilst rehabilitation will not experience any change, the latter two does propose a moral dilemma. Is it moral to punish an individual for a crime they were destined to commit? The short answer on an individualized scale is no. It is not just or moral to lock up or kill an individual for a crime they committed as a result of their birth. However, upon inspecting a much grander scale of the current world it can be concluded that for the purpose of protection of others, detainment is something that must take place. If we remove the idea of humanity as a whole and simply look at the world from a nature's point of view, the act of killing or restraining a predator is something that has existed since the start of biology. Most would agree that it is immoral to lock up an animal, even ones like an alligator whose natural instinct is to hunt and kill anything that moves, however the alternative is the risk that said alligator might kill humans. Just because biologically speaking the alligator did not do anything wrong does not mean society should let it do as it wishes. This concludes that following a consequentialism view[19] for the purpose of protection, an immoral action should and would be taken for the safety of the wider public.
Whilst one can argue that containment might be necessary for protection, the point of reparations does not hold here. Should it be immoral to immure a man who was destined to do a wrong, it would not only be more immoral to then demand the reparations from the man, but it also be highly counterintuitive in achieving successful rehabilitation. In history, the effect of demanding reparations from a party that was not directly responsible for the initial conflict has never ended well. When the Weimar Republic was given 6.6 billion pounds in reparations for a war they were not responsible for, economists like John Keynes (correctly) argued that it would cripple Germany from the inside, as public outrage was sparked for being given crippling debt for something the citizens and new government were not responsible for.[20] Within the context of a deterministic society, very similar effects might be observed; a perpetrator without free will being made to pay would simply be seen as a mark of injustice. On the other hand, it is also immoral to provide the victim with no compensation or monetary aid for suffering at the hands of crime, free will or not. Therefore, the most realistic solution would be government aid for necessary compensation rather than taking from the perpetrator.
After the purpose of criminal sentencing has been examined, what is the actual effect determinism leaves? For an accurate answer to this question all five purposes must first be weighed to determine how significant a role they play in both worlds.
Punitive: The idea of retribution exists on an emotional level rather than a practical one; it is done to provide closure and maintain the idea of “justice.” Whilst it is labeled as a reason for criminal sentencing, it is out of the five, the single most tailored for the appeasement of the general public, as well as the victim. What little practical merits it serves lies more in deterrence factors.
Deterrence: A reason that seems to hold more weight than it does, as in reality a high number of crimes are conducted for a necessity, meaning that they are committed despite the risk, and would have done it regardless.[21]
Rehabilitative: Holding practical capabilities within both worlds, and is weighed exactly the same within both contexts.
Protective: A necessary purpose present in both worlds, prioritizing citizen safety and hence holding the highest societal practical value.
Reparative: Assuming the ideal world where the government provides reparative aid instead of the perpetrator in a deterministic society, a criminal would still need to be captured and tried before governmental aid, hence it would not actually affect the need for sentencing.
As seen, within the proposed deterministic world, the incentive for sentencing would not actually be very different given how little practical value the first two actually holds in criminal sentencing. Rehabilitative and protective sentencing would also not change the fate of the perpetrator themselves.
In regard to the fate of the criminal themselves, there will only be two realistic changes. First is the monetary expectations explained above, and the second is the usage of capital punishment. If punitive measures and deterrence incentives of sentencing are removed, the need for capital punishment is no longer present, as its main purpose is often to invoke fear for the sake of punishment, humiliation, and deterrence. Throughout history this has included beheadings in France[22] and Britain,[23] and also present in modern day Singapore, where there is specifically a capital punishment on drugs to disincentivize this crime.[24]
With all analysis taken into account I conclude that as determinism does not play a major role on the incentives of sentencing, this discipline does not play a major role on sentencing itself.
References
[1] Phillip J. Resnick, The Andrea Yates Case: Insanity on Trial, 55 Clev. St. L. Rev. 147 (2007)
[2] Deborah W. Denno, Who is Andrea Yates? A Short Story About Insanity, 10 Duke J. Gender L. & Pol'y 1 (2003) Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/104
[5] Ahlquist, Dale. “Scientific Determinism.” Society of Gilbert Keith Chesterton, 30 Apr. 2012, www.chesterton.org/scientific-determinism/.
[6] Biscontini, Tyler. “Determinism | EBSCO.” EBSCO Information Services, Inc. | Www.ebsco.com, 2025, www.ebsco.com/research-starters/religion-and-philosophy/determinism.
[7] “What Is the Uncertainty Principle and Why Is It Important?” Caltech Science Exchange, 2024, scienceexchange.caltech.edu/topics/quantum-science-explained/uncertainty-principle.
[8] HARGRAVE, Marshall. “Force Majeure Can Help a Contractor Avoid Catastrophe Liability.” Investopedia, 23 July 2022, www.investopedia.com/terms/f/forcemajeure.asp.
[9] “RTI Ltd (Respondent) v MUR Shipping BV (Appellant) - UK Supreme Court.” Supremecourt.uk, 21 Feb. 2025, www.supremecourt.uk/cases/uksc-2022-0172.
[10] “Extenuating Circumstances.” LII / Legal Information Institute, www.law.cornell.edu/wex/extenuating_circumstances.
[12] Savchenko, Viktor. “View of LEGAL JUSTIFICATION of FREE WILL as an ABSOLUTE RIGHT.” Iir.edu.ua, 2026, apir.iir.edu.ua/index.php/apmv/article/view/3842/3497 www.legislation.gov.uk/ukpga/2020/17/section/57/enacted.
[14] Harris, Sam. Free Will. New York, Free Press, 2012.
[16] “Go to GoGuardian App.” Ct.gov, 2025, portal.ct.gov/despp/press-releases/2007/update-on-cheshire-homicide?language=en_US.
[17] Dölling, D., Entorf, H., Hermann, D. et al. Is Deterrence Effective? Results of a Meta-Analysis of Punishment. Eur J Crim Policy Res 15, 201–224 (2009). https://doi.org/10.1007/s10610-008-9097-0
[18] Lipsey, M. W., & Cullen, F. T. (2007). The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews. Annual Review of Law and Social Science, 3, 297–320.
[19] Sinnott-Armstrong, Walter. “Consequentialism.” Stanford Encyclopedia of Philosophy, 4 Oct. 2023, plato.stanford.edu/entries/consequentialism/.
[20] Augustyn, Adam. “Treaty of Versailles | Definition, Summary, Terms, & Facts.” Encyclopedia Britannica, 25 Feb. 2025, www.britannica.com/event/Treaty-of-Versailles-1919.
[21] Nickerson, Charlotte. “Merton’s Strain Theory of Deviance and Anomie in Sociology.” Simply Psychology, 11 Oct. 2023, www.simplypsychology.org/mertons-strain-theory-deviance.html.
[22] Romeo, Jess. “The Decapitation Experiments of Jean César Legallois.” JSTOR Daily, 29 Oct. 2020, daily.jstor.org/the-decapitation-experiments-of-jean-cesar-legallois/.
[23] “The Execution of Charles I.” Historic Royal Palaces, www.hrp.org.uk/banqueting-house/history-and-stories/the-execution-of-charles-i/.
[24] “Findings from Recent Studies on the Death Penalty in Singapore.” Ministry of Home Affairs, 2022, www.mha.gov.sg/media-room/newsroom/findings-from-recent-studies-on-the-death-penalty-in-singapore/.
9.1.2026
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