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Vol. 7, No. 2  ( October 1994)

The following excerpts are from Karen Reedstrom's interview with Bob Bidinotto, published in the October 1994 issue of Full Context soon after the publication of Criminal Justice? The Legal System Versus Individual Responsibility.

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Q: Tell us about your book. What's the title, and how did you get the idea for it?

Bidinotto: The title of the book is: Criminal Justice? The Legal System versus Individual Responsibility. For a long time I have been aching to do something on the criminal justice system that was considerably more detailed than the Reader's Digest pieces that I normally do, or my booklet Crime and Consequences, which was published by the Foundation for Economic Education as a brief overview and survey of what is wrong with the system. Dr. Hans Sennholz has had me as a guest at numerous Foundation seminars and evening round-table discussions. And I have contributed to the Foundation's monthly magazine, The Freeman, since I first entered college, so I have a very long-term association with both the Foundation and its magazine. During one of my talks at the Foundation Dr. Sennholz invited me to do a book on the subject of crime. I eagerly accepted, but I decided to prevail upon a number of experts in the field to contribute to a collection dealing with the various aspects of the criminal justice system. I myself contributed three essays which were originally published in Crime and Consequences. They provide a sort of sweeping overview of the criminal justice system. Dr. Sennholz and I both agreed to organize the other essays around my own contributions.

Q: So is the thesis of the book: the absence of individual responsibility and how to get it back into the system?

Bidinotto: The thesis is that the reason for the explosion of crime over the last thirty or forty years has a great deal to do with the decline with personal responsibility, both in the culture at large and in the criminal justice system. Those of us who accept a free market orientation in economics are well aware of the consequences of the breakdown of individual responsibility due to the welfare state. What has not always been clear is that the criminal justice system, too, has been the victim of this philosophical trend. If you wish to say in one word the nemesis of this book's theme it would be determinism in all of its forms: psychological determinism, sociological determinism, biological determinism. All of these excuses are raised for regarding criminals as not responsible for their criminal acts. So what this book is all about is how and why the criminal justice system has broken down due to the abandonment of a theory of individual responsibility and accountability, and what can be done to restore responsibility back into the system.

Q: Let's go over some of the sections of the book to give people an idea of what it's about so they'll run out and buy it. It's broken into three parts, and in Part One the first article is yours. Can you give us a brief overview?

Bidinotto: Everything that a person learns from his social environment, that socializes him and causes him to have respect for other people and himself and to control his behavior, and distinguish between mine and yours, all of these things were under a concerted assault in the era beginning around the 1960s. In a great many forms there has been an attack on individual sovereignty, individual responsibility, and on the individual right to property. During the 1960s we saw this whole Rousseauian counter-revolution against the traditional code of the West reach a kind of fruition in the culture. Everywhere you saw the idea of personal responsibility under attack, and the idea of subjectivity and collectivism elevated as a new kind of secular religion. So I would say the destruction of the family is only a part of that, but certainly anyone would experience that as another cause upon himself personally. Let me be clear about my use of the word "cause" here. It is bandied about now quite promiscuously. We are all subject to influences of many kinds, but an influence is not the same thing as a cause. What determinists have done has been to equate the two. What determinists argue is that people are no better than billiard balls, and that their response is pre-determined and automatic dependent on the stimulus. And this kind of thinking has been regarded as scientific in the humanities for many, many years. Intellectually that battle had been lost a long time ago, and I think what we saw in the 1960s was the final institutionalization of that view. One of the institutions that fell under the sway of this kind of thinking was the entire criminal justice apparatus.

Q: Do you think that one of the problems is that a lot of these social scientists have an agenda instead of using a proper scientific method?

Bidinotto: I think that certainly there are those among the liberal arts community who start out with a pre-conceived agenda. Also many social scientists (so called) can come to the conclusion of determinism simply because it has the cachet of science. It seems scientific. The physical sciences are characterized by a search for prior causes, something which causes a subsequent thing to occur.

Q: Are they looking for some easy formula to be able to say this person did something because of X, instead of saying he did this because of his own free choice and he's a bad guy?

Bidinotto: To many scientists free will seems somehow mystical. It doesn't compute for them. They are so used to thinking of causality in billiard ball terms that they can't get out of that box and look at volition as being a different sort of causal instance. David Kelley, one of the contributors to the volume, has spoken to this issue of free will and determinism eloquently in a series of lectures on the nature of free will. I drew upon his own thinking in my development of my judgments about what has happened to the criminal justice system. I think either of these two things can be at play in a given individual. But let's take the best example. I think it's important that when we attack a viewpoint that we don't like, that we focus on the best rather than the worst of our adversaries.

For example, James Q. Wilson is an eminent scholar who has written on a wide range of social issues. He's the co-author, with Richard Herrnstein, of one of the best scholarly works on the nature of crime, Crime and Human Nature. He comes to the conclusion, at the end of his book, that as we become more and more scientific in our understanding of what motivates human beings we are drawn more and more inevitably in the direction of determinism. In his book he is dragged to that viewpoint kicking and screaming. Nonetheless he's drawn there because he equates causality with this billiard ball model. It's a mistaken view of causality that's at work here which results in an equation of causality with determinism. It sounds scientific and the opposite, free will, sounds to them mystical and outside the loop. So I think that you can be a determinist on innocent grounds based on a misunderstanding of what volition is and what causality can encompass.

Q: Do you think that the prison reform movement, that started in the 19th century, as with Victor Hugo's Les Miserables, a story about Jean Valjean being sentenced to prison for stealing a loaf of bread, was an influence in this movement and that there's a certain benevolence in these people?

Bidinotto: There is a benevolence in a great many of them. Most ardent opponents of incarceration accept a viewpoint of forgiveness. Hugo put it as "to understand all is to forgive all." And they really believe that. They really believe that a full understanding of the causal antecedents for human behavior will lead to the conclusion that no one is fully responsible for what they do, hence we can't blame them or punish them for what they couldn't help. Now clearly that viewpoint is incompatible with the notion of punishing criminals.

Q: They were driven to it by poverty?

Bidinotto: That's right. They were driven either by economic or social circumstances beyond their control, or through internal psychological forces beyond their control, or through some sort of biological accidents beyond their control such as the possession of an XYY chromosome or brain damage.

Q: Is there any evidence for biological problems?

Bidinotto: The evidence for the biological causality is very flimsy and very slight; but even there it exceeds that which is available for the other two excuses, the psychological and the sociological. But one of the things I tried to do in this book was to collect essays which address a great many of those excuses.

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Q: Part Two in the book addresses the breakdown of the criminal justice system, and one of articles is about how the flight from accountability has caused the justice system to break down. How has that happened?

Bidinotto: Charles Murray talks about the influence of the welfare state in his own book, Losing Ground, but much more important has been the impact of deterministic ideas on the thinking of the people who might be susceptible to irresponsibility. The concerted attack on individuality and individual responsibility since the 1960s, eventually undermined the criminal justice system. If criminals aren't responsible for what they do then punishment is out and rehabilitation is in. Since society made them the way they are, then changing the social conditions can reform them. That was the idea, that was the theory. Now it has totally come apart at the seams. But it lives on in a variety of ways in the criminal justice system. In the 1960s the Supreme Court majority, lead by Chief Justice Earl Warren, was wedded to this rehabilitation notion and to the idea that criminals are made by society. As a result they very heavily tipped the scales of justice in a variety of rulings on behalf of the criminal suspect or defendant. I don't think there is a clearer illustration of the impact of their thinking than the so-called Miranda Ruling, which said that even a suspect who voluntarily confesses to his crime while in police custody—if he hasn't been read an entire litany of his rights and the police don't emphasize to him that he doesn't really have to talk to them—then he is presumed to be under the control and power of the police. He has no free will. He is a pawn of a coercive police interrogation and therefore anything he says including a voluntary confession to the crime has to be thrown out. The Miranda Decision led to the over turning of numerous convictions over the years. Very similar rulings were made against the admission of all kinds of evidence in court. If the police didn't follow a very precise procedural minuet any evidence they seized at the crime site would be thrown out. Facts were no longer facts. They would no longer be considered relevant in court solely because we had to protect the hapless defendant from the authoritarian police department. In countless decisions the Supreme Court and numerous appeals courts ruled along these lines to the point where the entire criminal justice system began to go out of balance.

[…]

Q: How can the philosophy of Objectivism help in understanding the crime crisis?

Bidinotto: I think anyone reading Part One of this book will immediately see the extraordinary relevance of the Objectivist view on free will, the Objectivist theory of volition and its applicability to resolving the tangled mess of deterministic approaches to crime control. The traditional views of both volition and retribution have been shot through with conventional and religious premises. Both my own essay and David Kelley's essay indicate how a theory of free will can be as a legitimate counter weight to the deterministically-based theories that have been accepted by virtually everyone in the criminal justice system for decades. A second area is my own essay on retribution in Part Three of the book. I argue against the traditional view of retribution, as essentially conventional, religious based, and revenge oriented. We have had a false alternative of religiously based retribution versus social utilitarianism as goals for the criminal justice system. Objectivism offers a profound insight as to how to establish a morally based criminal justice system, one that focuses on retribution but which also absorbs many practical crime fighting elements that the utilitarians have been worried about. So I think that in both of those areas, in understanding criminal psychology and its volitional nature, and in viewing justice as retribution based on individual rights, I think that Objectivism has an enormously important role. It offers a new philosophical alternative to a criminal justice system which has been virtually destroyed because of false philosophical ideas.

This excerpt represents about 1/4 of the interview with Robert Bidinotto. To read the transcript of the interview in its entirety, you may request a copy of the October 1994 issue of Full Context here.