Criminal Law and Sentencing: What Goes With Free Will?

Abstract

This Article notes that increasing numbers of scholars have argued that if we were to minimize our collective belief in the possibility of genuine free will and moral responsibility, we would as a result likely see a more humane, compassionate, enlightened, and generally progressive criminal justice and sentencing system. As it turns out, though, we must instead conclude that such optimism does not seem warranted. Beginning with Clarence Darrow’s closing argument in defense of Leopold and Loeb, and then discussing the work of contemporary legal scholars, scientists, and philosophers, as applied in various criminal law contexts, the Article concludes on a skeptical note. Even if a culture takes economic, structural, and institutional causes of crime with utmost seriousness, the more likely result of generally discounting free will and moral responsibility would involve criminal justice practices holding little appeal for most contemporary progressives and advocates of equality.