By Chief Joel F. Shults, Ed.D.

Does free will exist? The question of free will is essential to the criminal justice system, without which no one could be held accountable for their behavior. Legal defenses that involve mental capacity address the accused’s ability to form intent, to understand the nature of their actions, and their ability to understand the charges and assist in their own defense. Insanity as commonly understood in conversation is defined very differently in the field of justice than in the field of medicine. A true understanding of organic brain injury and diagnosable mental failure can impact the judicial proceedings, but emotional responses must not.

Perhaps the greater influence of consideration of a defendant’s state of mind is in the sentencing process where counseling or restorative justice programs are an alternative to fines and jail time. If the courts and law enforcement must answer the ultimate question of what was in the mind of an offender, the criminal justice system as we know it could collapse. Judges and police officers are required to be disinterested and dispassionate. That doesn’t mean they have no feelings, but it does mean that facts and evidence determine outcomes.

For those who watch television shows featuring true crime and trials, commentators are often heard remarking on the facial expression and body language of defendants. Victims and jurors comment on a defendant’s remorse or lack thereof. Feelings cannot be removed from the human elements of the justice system, but empathy from a defendant or sympathy for one is not a legal factor in the rendering of a guilty verdict.

One of the ways that feelings have crept into the criminal justice system is in Restorative Justice (RJ) Programs. RJ is a victim-centered philosophy that seeks to humanize criminal activity by bringing offenders into accountability by facing their victims and acting positively to repair the damage they have done. Imagine parenting a child who rambunctiously breaks an heirloom and comes to tears of repentance only after understanding the importance of the item and the hurt feelings caused by the loss. If an understanding of consequences, reinforced by having to repair or forfeit allowance money for restitution, leads to an improvement in the child’s behavior then the tactic worked. If, on the other hand, the child learns that acting sorry will avoid harsher punishment, then the child has learned a lesson in the art of manipulation.

While victims deserve a voice in their cases, the rights of which are protected by law in most states, having a significant impact on the disposition of an offender necessarily creates other inequities in the system. What if assault victim A wants nothing to do with the process, while assault victim B wants to go face to face with a repentant offender? Assuming the criminal act was essentially the same under the law, should a “sorry” offender get less of the statutorily allowed sentence than the offender who has no chance to interact with the victim, or whose victim is unusually vindictive or perhaps racist if the offense is interracial?

Another mitigation of sentencing is participation in counseling. Counseling methodologies differ and may not be well supervised by the courts. Many programs are delivered by contract that can cost a defendant money that does not go toward the courts. These courses are not culturally value-free. A mother who consented to have her underage son attend a course in lieu of a conviction on record after being cited for underage alcohol possession discovered that the course involved explicitly Buddhist teaching which contradicted her family’s belief. A woman in New York attended a racial sensitivity training to avoid a sentence for an incident that was deemed racist by the prosecutor. While many applaud the application of hate crime legislation, the notion that one’s ideology, rather than behavior, can be penalized, is a slippery slope that can lead to “treatments” that give rise to the specter of re-education camps. If the criminal justice system shifts from controlling behavior to controlling thought, we have embarked on a path toward a frightening era.

Make no mistake, providing mental health services can prevent crime and prevent recidivism. Victims should not be relegated to mere bystanders. But treatments and programs must be based on research and must not replace accountability for the choices we make under the laws of the land.