By the 1970s almost all federal circuit courts had adopted the ALI Test, and it was this one that was in place for the Hinckley trial. The hue and cry over Hinckley’s acquittal, however, reversed the ALI Test precedence when states either abolished it entirely or shifted the burden of proof to the defendant. The Insanity Defense Reform Act of 1984 clearly stated the limits of the insanity plea: “It is an affirmative defense to a prosecution under any federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.” In other words, the Reform Act eliminated the volitional aspect of the defense, required that the mental disease must be “severe,” and replaced “unable to appreciate” with “lacks substantial capacity” in order to clarify the boundaries between a total lack of understanding and partial comprehension. Many states also changed the plea “not guilty by reason of insanity” to “guilty but mentally ill.” Perhaps most telling, the American Medical Association cast its vote for the total abolition of the insanity defense. And so the paradox remains mired in legal muck because of the lack of a clear scientific understanding of where to draw the line between sanity and insanity, and between free will and determinism. 11
Free Will as a Useful Fiction: Is the Free Will/Determinism Problem an Insoluble One?
Since the time of the ancient Greeks through the present, some of the greatest minds in every generation have grappled with the problem of free will and determinism, and no one to date has proposed a solution that satisfies most people. It could be that this is a really hard problem—on par, say, with celestial mechanics—and our Newton has yet to produce the Principia of free will. Perhaps, and this is even more distressing, there is no solution to the problem. Like the question of God’s existence, the free will/determinism paradox may be an insoluble one. This may be a “mysterian” mystery, where our brains are sophisticated enough to conceive of the problem but not advanced enough to solve it.12
This is in lockstep with the fideist position in theology, where pragmatist philosophers like William James, Charles Peirce, and Miguel de Unamuno argue that it is acceptable to take a leap of faith on issues of extreme importance to human existence, when the evidence is inconclusive one way or the other, and you must choose. That is, just make a choice one way or the other even if uncertainty remains high as to which choice is the correct one. My friend and skeptical colleague Martin Gardner is a fideist and takes this approach to both the God question and the free will/determinism problem. He has chosen God and free will, not because there is better evidence for them, but because they are important issues, the evidence is inconclusive, and it works better for him to believe in God and free will. With the free will problem, Gardner says it “cannot be solved because we do not know exactly how to put the question.”13 Asking the question, Is there free will? is like asking, Why is there something rather than nothing? or What is time? After reviewing all the arguments for free will, Gardner concludes, “Like time, with which it is linked, free will is best left—indeed, I believe we cannot do otherwise—an impenetrable mystery. Ask not how it works because no one on earth can tell you.”14
If the problem is an insoluble one and thus it is acceptable to choose either free will or determinism, can one have both? The belief that free will can be derived out of a deterministic universe is called compatibilism, and it is shared by many, such as philosopher and neurobiologist Owen Flanagan, who argues that the free will/determinism problem is “ill-posed” and that even though “ours is a causal universe … no one yet knows the exact range of deterministic and indeterministic causation—assuming the universe contains some of each.” Flanagan’s solution is creative, if nothing else: “My proposal is this: Change the subject. Stop talking about free will and determinism and talk instead about whether and how we can make sense of the concepts of ‘deliberation,’ ‘choice,’ ‘reasoning,’ ‘agency,’ and ‘accountability.’”15
Compatibilist solutions such as these are really pseudosolutions or, more positively, pragmatic solutions. That is, pragmatically speaking, they are true if they work. Along those lines, here is one that works for me; maybe it will work for you: free will is a useful fiction. I feel “as if” I have free will, even though I know we live in a determined universe. This fiction is so useful that I act as if I have free will but you don’t. You do the same. Since the problem may be an insoluble one, why not act as if you do have free will, gaining the emotional gratification and social benefits that go along with it?
Insolubility and compatibilism are, at best, pseudosolutions, which, for the most part, satisfy no one. Can science help clear up this conundrum? I shall close this chapter with six scientific-based attempts to derive free will out of determinism: the uncertainty principle of quantum indeterminacy, fuzzy logic, neuroscience, genetics, evolutionary theory, and chaos and complexity theory.
Free Will and Indeterminism
One solution to the problem makes an appeal to quantum indeterminacy, a derivative of a field of physics called quantum mechanics. One of the pioneers of quantum mechanics, German physicist Werner Heisenberg, discovered that you cannot determine both the position and the speed of an electron moving about the nucleus of an atom. If you determine where the electron is located, you cannot know its speed. If you determine its speed, you cannot know its position. This became known as the Heisenberg uncertainty principle. Further, when you observe an atom, the “wave function collapses” (a mathematical description made by quantum mechanicists), thus bringing into reality its location. That is, the atom is in a state of uncertainty until it is observed. When observed, the wave function collapses and the state of the atom becomes certain. Finally, there is an additional level of uncertainty in that when atoms decay—as when, say, potassium atoms decay into argon atoms (a process so predictable that it serves as an atomic clock for dating geological events in the earth’s history)—it is not possible to know which particular atom will decay. The decay process is, quite literally, uncaused and unpredictable. It is truly indetermined.
From this fact, some philosophers and scientists argue that perhaps these random and indeterministic atomic events associated with quantum mechanics might trigger the random firing of neurons in the brain, leading to indeterminant mental states. Perhaps, they suggest, this is where free will arises. This argument was critiqued by one of the leading quantum physicists, Nobel laureate Murray Gell-Mann, who derisively called it quantum flapdoodle.16 Quantum effects cancel each other out at the macro level in which everyday events (like human thought) occur. Is it really possible—we might ask rhetorically in an analogy with the uncertainty principle—that the orbit of Mars, like the orbit of an electron, is scattered randomly about the sun until someone observes it, at which point the wave function collapses and the planet appears in one spot? Obviously not, any more than we might think that the moon ceases to exist until it is observed (someone once actually proposed that the moon does not exist until observed). Quantum effects wash out at large scales.
Yet even if it could be established that quantum uncertainties lead to random neuronal firings, that does not produce free will; it just adds another deterministic causal factor, one that is random rather than nonrandom. This last point was well made by the philosopher Daniel Dennett in his book Elbow Room: The Varieties of Free Will Worth Wanting, in which he also argued that if there is too much free will—if people are completely free of all determining or influencing forces—there could be no room for modification of immoral behaviors.17 Truly free agents could thumb their noses at all attempts to curb their freely chosen actions. Social chaos would be the result. We need a proper balance between determinism and free will, and indeterminism is not freedom.
Free Will, Fuzzy Logic, and Hinckley’s Guilt
A universally accepted set of criteria to determine moral (and thus legal) responsi
bility for a crime has proved to be elusive because of a deep and fundamental difference between science and the law. The law requires unambiguous categories in order to reach a judgment of guilty or not guilty based on the defendant’s sanity or insanity. Here again we see the type of Platonic thinking that troubled us over the problem of evil. As with good and evil, “sane” and “insane” are reified things, typologies meant for classification of unchanging entities. Science offers us a solution because it recognizes that there are many shades between such categories, such that a fuzzy logic solution, as we saw in solving the problem of evil, once again proves to be a useful heuristic. Asking if John Hinckley was sane or insane is the binary logic of Aristotle’s A or not-A. Instead, let us inquire about the quantitative level of Hinckley’s sanity or insanity. We can see in Hinckley’s background that the shift from sanity to insanity was a fuzzy one, say, .9 sane and .1 insane in his youth, to .8 sane and .2 insane in his teens, to .7 sane and .3 insane during his two years of college, to .6 sane and .4 insane during his year in Hollywood, to .5 sane and .5 insane during the following year of aimless drifting, to .4 sane and .6 insane as he pursued Foster at Yale, to .3 sane and .7 insane as he contemplated assassinating Carter or killing himself, to .2 sane and .8 insane when he hatched the idea to assassinate Reagan, to .1 sane and .9 insane when he penned his final letter to Foster and headed for the Hilton Hotel with his gun in hand and his moral sense fully disengaged. The three photographs of John Hinckley in figure 18 show the slow and gradual (and fuzzy) deterioration of his mind over time, and along with it his capacity for moral reasoning.
A and not-A. Sane and insane. Such psychological states are variable over time and dependent on the context. Hinckley’s long-term obsession with Foster became a form of insanity, but his assassination attempt on Reagan was not. He knew exactly what he was doing. He carefully planned it out and he understood that it was morally wrong because he knew doing it would draw enormous public and media attention. The whole point of the assassination attempt was to get Foster’s attention, and recall that he said, “It worked. You know, actually, I accomplished everything I was going for there. I did it for her sake.” Was Hinckley insane in his obsession over Foster? Was Hinckley insane when he shot Reagan? Approached scientifically, these are separate questions. Hinckley’s obsession grew into a form of insanity. Yet he knew what he was doing even as he pulled the trigger, so we should hold him morally accountable for his crime against Reagan. In other words, Hinckley’s obsession over Foster yields a verdict of not guilty by reason of insanity, and treatment by mental health professionals is an appropriate response. Hinckley’s assassination attempt of Reagan, however, generates a straight guilty verdict, and he should have been punished accordingly with a stiff sentence in a maximum-security prison. The long road that took Hinckley from college dropout in 1976 to the Hilton Hotel in 1981 was gradual enough that he could have reversed his course. As he told Newsweek magazine later that year, “The line dividing life and art can be invisible. After seeing enough hypnotizing movies and reading enough magical books, a fantasy life develops which can either be harmless or quite dangerous.” That may be the most insightful thing Hinckley ever said. It is not the fantasy life that is the problem. After all, fiction writers are paid to pour out their fantasies. What matters is whether those fantasies are converted into dangerous behaviors.
Even here we can apply the findings of science to a fuzzy logic analysis. Hinckley’s unrequited love for Foster was the driving force behind his violence. We know that the fervor of unreciprocated love can become one of the most dangerous of all the passions, overriding reason and rationality. But there are degrees of passions, fractional reactions, and fuzzy responses. Research shows, for example, that 95 percent of all men and women have experienced unrequited love at least once by the age of twenty-five (on either the sending or the receiving end).18 Most people whose love goes unwanted by another feel rejected, suffer a temporary dip in self-confidence and self-esteem, but quickly move on to find someone who returns their passionate overtures. A few (mostly men, but some women, too) undertake a vigilant campaign to win the heart of their chosen beloved, and occasionally they succeed. Their efforts are assertive, but not aggressive. But when some do not succeed (and by now it is almost entirely men), and they continue the pursuit despite their target’s efforts to reject them, charges of stalking and harassment can be filed and convictions won. This terminates almost all remaining attempts. Almost all. Hinckley’s response to Foster’s indifference, however, was at the extreme end of the fuzzy scale. But he is still on the scale. His response is still a fractional one within the whole number of human response variability. Between .1 and .9 is still not o or 1, and so a scientific approach upholds moral culpability. Even if freedom is diminished, it is not extinguished. Thus we have one solution—fuzzy freedom—to the paradox of moral determinism.
Figure 18. The Fuzzy Deterioration of John Hinckley
Instead of asking whether John Hinckley was sane or insane in a binary choice, a fuzzy logic analysis allows us to assess his state of mind in shades of gray between sanity and insanity, and how it changed over time. One can see the changes in his face in these three photographs. (Courtesy of Associated Press)
Free Will and Neuroscience
How does the mind work? According to evolutionary psychologists, the mind is like a Swiss Army knife, equipped with specialized tools that evolved in our Paleolithic past to solve specific problems of survival, such as face recognition, language acquisition, mate selection, and cheating detection. In this model the brain is represented as a host of modules, or bundles of neurons, some located in a single spot (as in Broca’s area for language), others sprawled out over the cortex. Large modules coordinate inputs from smaller modules, which themselves collate neural events from still smaller neural bundles. This reduction continues all the way down to the single neuron level, where highly selective neurons, sometimes described as “grandmother” neurons, fire only when subjects see someone they know. Caltech neuroscientists Christof Koch and Gabriel Kreiman, in conjunction with UCLA neurosurgeon Itzhak Fried, have even found a single neuron that fires when the subject is shown a photograph of Bill Clinton.19 The Monica Lewinsky neuron must be closely connected.
What do these modules tell us about how the mind works? For one, experiences that appear to be external may, in fact, be internal. Five centuries ago, for example, demons haunted our world, with incubi and succubi tormenting their victims as they lay asleep in their beds. Two centuries ago spirits haunted our world, with ghosts and ghouls harassing their sufferers all hours of the night. Last century aliens haunted our world, with grays and greens abducting captives out of their beds and whisking them away for probing and prodding. Today people are having out-of-body experiences, floating above their beds, out of their bedrooms, and even off the planet into space. What is going on here? Are these elusive creatures and mysterious phenomena in our world or in our minds?20 New evidence indicates that they are, in fact, a product of the brain.
Neuroscientist Michael Persinger, in his laboratory at Laurentian University in Sudbury, Canada, for example, can induce all of these experiences in subjects by subjecting their temporal lobes to patterns of magnetic fields. Persinger places on a subject’s head a motorcycle helmet specially modified with electromagnets. The subject sits in an easy chair in a soundproof room with eyes covered. The electrical activity generated by the electromagnets produces a magnetic field that stimulates “microseizures” in the temporal lobes of the brain, which, in turn, produce a number of what can best be described as “spiritual” and “supernatural” experiences—the sense of a presence in the room, an out-of-body experience, bizarre distortion of body parts, and even religious feelings. Persinger calls these experiences “temporal lobe transients,” or increases and instabilities in neuronal firing patterns in the temporal lobe. Having now studied over 600 subjects in the past decade, Persinger speculates that such transient events may account for psychologic
al states routinely reported as happening outside the mind. These events, he suggests, may be triggered by the stress of a near death experience (caused by an accident or traumatic surgery), high altitudes, fasting, a sudden decrease in oxygen, dramatic changes in blood sugar levels, and other stressful events.21 I participated as a subject in Persinger’s experiment and had a mild out-of-body experience.
Similarly, in 2002, Swiss neuroscientist Olaf Blanke and his colleagues discovered that they could bring about out-of-body experiences through electrical stimulation of the right angular gyrus in the temporal lobe of a forty-three-year-old woman suffering from severe epileptic seizures. In initial mild stimulations she reported “sinking into the bed” or “falling from a height.” More intense stimulation led her to “see myself lying in bed, from above, but I only see my legs and lower trunk.” Another stimulation induced “an instantaneous feeling of ‘lightness’ and ‘floating’ about two meters above the bed, close to the ceiling.”22
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