I’d like to congratulate the lawyers who prosecute, and the judges who sentence them, for the “choices” that they’ve made that put them at the top and my clients at the bottom. . . . and, for that matter, anyone else who is smugly self-righteous about his lot in life.

Not all of these will apply to all of you; take those that do.

Congratulations for choosing to be born white. I know that was a tough decision for you, as was choosing not to be born destitute.

Congratulations for choosing not to have a mother who drank heavily when she was pregnant with you, or one who smoked or who used hard drugs.

Congratulations for not being exposed to too much lead in your childhood.

Congratulations for choosing one or more nurturing parents who didn’t abuse you or neglect you.

Congratulations also for choosing not to be bipolar, psychotic, or otherwise mentally ill. . . or addicted to illegal drugs. Good choice.

Congratulations for choosing not to suffer a traumatic brain injury.

Keep up the good work. I know you’ll get what you deserve.


0 responses to “Congratulations!”

  1. Thanks. It’s comforting to know that life is only about luck and circumstances, and nothing else.

    “…anyone else who is smugly self-righteous about his lot in life.” Congrats then, sir.

  2. SC, au contraire, my friend. I marvel continually at the tremendous luck that has brought me to this point, and am nothing but grateful. One little change in circumstance 38 years ago, and I could be in prison, or destitute, or a prosecutor or otherwise miserable.

    I’m just the luckiest sumbitch I know. But that could end tomorrow, so I’m appreciating it while I can. Taking credit for the circumstances that result in one’s success is the ultimate in vanity.

    But, hey, kudos to you for being born white and male in America! That must have been a tough choice to make.

  3. Being born white in America was no tougher for me than it was for you, eh? Surely you have represented hundreds, if not thousands, of white Americans who have been born into circumstances substantially similar to your own. Do you really think that the only reason they are in your office is because their mom smoked, or they were neglected? There are millions of people who have suffered various harms and indignities, and they don’t all become criminals.

    You are lucky, as are most of us. But to pretend for the sake of a blogument that your own choices and mistakes didn’t get you where you are today is asinine.

  4. You’re seem to be insistent on missing the point. I don’t pretend that being born a white male (though not in America), or anything else that formed my personality, was a choice. You pretend that there’s something fundamental you can take credit for.

    Since my personality was formed by a) my genes; and b) my environment (including the “choices” I had made before, which in turn were directed by nature and nurture), I can’t take credit for those “choices”.

    When I “made the right choice” it’s because I was fortunate enough to have had the right material to work with. If I have good judgment I’m fortunate. If I have compassion I’m fortunate. If I can control my impulses I’m fortunate. If I respond appropriately to perceived threats I’m fortunate.

    In chaos theory they talk about “sensitivity to initial conditions”. Our destinies are very sensitive to initial conditions — two people can appear to have exactly the same background, and one event or one gene can trigger a cascade that lands one in prison while the other pokes along happily through life.

    We generally don’t have the instruments or the understanding to pinpoint these relevant initial conditions, but the principle is visible in something we can understand: two soldiers in Iraq; both the same in all relevant ways. Both of them are the same distance from the IED than the other when it goes off; a different part of the brain of each is injured. They come home, and one resumes his normal life; the other exhibits a drastically changed personality and winds up in jail.

  5. “When I “made the right choice” it’s because I was fortunate enough to have had the right material to work with.” I am sure that is true, but I am also sure that there are millions of people who lack the right material and yet still end up doing the right thing, and making the right choices.

    I am not intending to miss the point Mark–I am simply offering up the notion that chaos theory is the easy way out.

  6. Great rant. I go into that rant, almost word for word, every time I accidentally get trapped in a conversation with a libertarian. Happily, though, my job doesn’t require me to interact with libertarians on daily basis.

  7. How can you be sure? The two soldiers would both appear to have the same material to work with, but because one’s brain was damaged in a slightly different way than the other’s in the same blast (and only because of that), they make different “choices”.

    How can you have any confidence that there is anything other than genetics and environment (neither of which we ultimately choose) directing those choices?

  8. “How can you have any confidence that there is anything other than genetics and environment (neither of which we ultimately choose) directing those choices?”

    If we aren’t responsible for directing our choices–at the very least in part–then no one can be held accountable for anything. That is not only an untenable societal position, but a foolish notion as well.

  9. The idea that there is any input into our choices other than nature (which we don’t choose) and nurture (which we don’t choose) is unsupported and unscientific. We believe it because it appears to us that it is so, and because we’re afraid of the consequences should it be otherwise. That’s what I would call “foolish”.

    The undesirability of a principle has nothing to do with its falsity. Yes, it’d be easier to make a society if everyone had freedom of choice, but that doesn’t make it so.

  10. What an insult to everyone who falls into one of those unfortunate categories but who has managed to overcome adverse circumstances!

    Not a single item from that laundry list ever made anyone commit a criminal offense. Some of them might affect the circumstances or decision-making of the individual, but none absolutely controls the choices they make.

    Mark, it is your deterministic arguments that are unsupported and unscientific. People make conscious decisions every day, many of which seem totally contrary to their nature and/or nurture. Moreover, we all perceive that we make these decisions, too. The fact that we do so does not render us all insane. It merely means that we are aware of the choices we make. Those choices, undoubtedly, are influenced and limited by many outside factors. Outside of our free will, there is really nothing we control.

    Of course, it should come as no surprise that you “choose” to believe in determinism. It conveniently absolves you and your clients of responsibility, doesn’t it? But it’s really nothing more than a construct, just like the construct that you base your worldview on: Institutions threatening the liberty of the individual. That makes your role that of the hero, and certainly more palatable than that of a person who assists people in avoiding the consequences of harming others.

    So, having read that bitter screed, including the line “and, for that matter, anyone else who is smugly self-righteous about his lot in life.”
    I have to join sctexas in saying, congratulations to you, sir!

    Oh, and BTW, Mark, you say you are “nothing but grateful” for your tremendous luck. Grateful to whom, and why? If our lots are all predetermined, then what’s the point? What’s the point of taking sarcastic potshots at prosecutors and judges? Under your model, they’re just doing what they’re fated to, right? In fact, under your model, what’s the point of anything?

  11. It’s good to hear from another middle-class white prosecutor!

    It shouldn’t be an insult to anyone who falls into one of those categories — like I say, “not all of these will apply to you”.

    It’d make me feel good to be able to say, “I’m here because of my choices.” But, despite my psychic stake in believing that free will is not illusory, I don’t.

    Why not? It’s not because I don’t want to believe in free will; I have the same reasons as you or SC for wanting desperately to believe that we are more than nature plus nurture. It’s because I’ve read enough neuroscience to see that physiology controls every aspect of our personalities.

    Evidence for the illusory nature of free will includes: neuroscience’s continued dig into the human brain reveals greater and greater physiological limitations on our choices; science reveals that personality is physiological; Libet’s experiment reveals that we become aware of our “choice” to perform an action after we have begun performing it; a single gene affects a person’s response to emotionally charged stimuli; variations in genes promote abnormal responses to fear inducing behaviors; bilateral injury to the amygdala can make people unable to judge whether they should approach strangers; a defective MAO-A gene combined with childhood abuse increases the chance of violence and sociopathy in males by as much as 85%; a “minor” traumatic brain injury can change a person’s entire personality.

    Does this get my clients off? No, even without free will, a justice system (i.e. part of our collective environment) that deters, rehabilitates, and incapacitates is appropriate. The only thing off the table is retribution. So go on trying to put my clients in prison; society may need to deter them, to deter others, to rehabilitate them, or to incapacitate them. I’ll keep feeding my kids.

    You could only believe that the person who isn’t punished by the criminal justice system “avoids the consequences of harming others” if you believed that there was no justice elsewhere. I don’t believe that you really believe that. If there is Justice it’ll be served despite our best efforts. Contrary to popular belief, though, our laws are not Heaven’s laws and our prosecutors are not God’s ministers.

    God / the Gods / the Universe / the Eternal Is / Allah / Yahweh / Fortune — does it matter what ineffable force I’m grateful to? The point is to recognize my blessings, and not to vainly take credit.

    I’ve issued this challenge before: provide a single piece of evidence other than “it appears so” that free will is not illusory (“what’s the point?” is an “I want it to be so” argument; “I want it to be so” isn’t evidence).

    Human behavior is non-linear. Playing the game changes the rules; if you were grateful for your good fortune and realized how much factors beyond our control drive our actions, you might treat someone a little better; I would have triggered a cascade of compassion that improved lots of other people’s lives. Given my background, I can do no other. What’s the point? No point; we’re all just along for the ride.

    If you don’t buy it, and continue holding yourself superior to less fortunate than you, that’s okay with me too. I think it’ll all come out even in the end.

  12. Tarian,

    That you disagree with Mark does not make his argument unsupported and unscientific. You write:

    “People make conscious decisions every day, many of which seem totally contrary to their nature and/or nurture. Moreover, we all perceive that we make these decisions, too. The fact that we do so does not render us all insane. It merely means that we are aware of the choices we make.”

    But nothing here contradicts a deterministic worldview. Perception or awareness of decision-making does not render those decisions authentically freely made. The rest of your argument is one from consequences and does not address the empirical truth or falsity of the claim. Indeed, I doubt very much that Mark “chose” to believe in determinism (if he in fact does) any more than you have “chosen” not to. We do not choose our beliefs; they choose us. I cannot will myself to believe something I don’t–and I’m fairly certain you cannot either. In any event, an shatter-proof illusion is as good as the real thing, so there is very much a point even for those with a deterministic worldview.

    Finally, forget determinism. What is important is to understand, regardless of the existence of free will, the extent to which external influences affect who we–each and every one of us–are, what we become, and what we do, and to keep this in mind when we judge others and seek to hold them to account.

    And, indeed, because external influences can have such a large impact on how people behave, we must also keep in mind our own potential responsibility for what others do. If we have responsibility for creating the circumstances that influence other people to act in anti-social ways, we are responsible for those acts too. Thus, for example, even something like the policy choices that we make and advocate for in the political realm (e.g., opposition to universal health care) become the external influences that act on individual people (untreated mental illnesses) that can in turn cause death and destruction for others. We have to accept responsibility for that.

  13. Mark, that response was disappointing for a lot of reasons, not the least of which were the ad hominem attacks that (1) I am ungrateful for my good fortune, (2) that I hold myself superior to those less fortunate, neither of which are true. That’s beneath you even after a bad day in misdemeanor court. I also fail to see how being a white, middle class prosecutor disqualifies me from having a valid opinion on free will.

    Neither neuroscience nor any of the other sources and experiements you cited have done anything to disprove the existence of free will. They have correctly identified factors that can INFLUENCE free will, but that is a far cry from proving it doesn’t exist. It sounds like you’ve been reading too much of Green and Cohen on this subject. For a decent analysis (and rebuttal) of their article, check out

    Pardon me for being less than impressed with the gauntlet you’ve thrown down. When you eliminate how we perceive reality from the argument, then you pretty much shove us into la-la land. “It appears to be” that we have free will. It also “appears to be” that there are subatomic particles and a force known as “gravity.” No one has ever seen these things, but scientists have detected the former in labortories and we feel the latter every day. And yet, your argument against free will is akin to me postulating that instead of subatomic particles and gravity, we are witnessing the actions of invisible fairies who pull our feet toward the floor.

    So here’s my counter-challenge: Prove to me that there are no invisible fairies, Mark. Bring me one single piece of evidence that they do not exist, aside from the fact that no one has ever seen one and that it “appears to be” that they don’t exist.

    The arguments against free will are scarcely any stronger. You’ve set up a circular, self-supporting hypothesis that cannot be disproven. No, I can’t bring you any evidence that free will exists other than the choices I perceive myself to be making — some of which are quite poor — every day.

    And, while asking “what’s the point?” does not prove free will exists, it is totally legitimate to ask “So, then what?” if we assume what you choose to believe is true. You say that we have a need for a criminal justice system, and yet, in your world, how could such a system ever be fair? If there is no such thing as free will or personal responsibility, then, perhaps, to extend PJ’s argument to its nonsensical result, we should ALL be in prison.

    Nice try on the divine/karmic justice dodge, but that sounds like yet another self-comforting construct; “Yes, it’s true I got this guilty murderer off, but there will be justice for him in the end.” Has that worked as a coping mechanism? I agree there will be justice somewhere, someday, much more perfect than the flawed product we dispense down here. But that doesn’t relieve us of responsibility for what we do in this world.

    And, to answer your rhetorical question, YES it matters to whom you’re grateful. Determinism is fatalistic, nihilistic, and a host of other unpleasant “isms” as well. Gratitude has no place and makes no sense in that universe. Thank God we don’t really live there.

  14. It doesn’t matter whether there are invisible fairies moving subatomic particles around; if we were able to look deeper into the atom and see that it was so; as long as their behavior was consistent with that of the particles we observed, it wouldn’t shake the foundations of science; in fact, instead of “particles” or “waves” or “wavicles” we could call subatomic particles “fairies” and nothing would change. In fact, that might be a good explanation for observed randomness.

    The scientific evidence doesn’t suggest the existence of gravity fairies, but if there were shown to be such things, acting consistently on all matter in accordance with our observations of the universe, that might well be a fair explanation for the scientific evidence.

    You’ll concede that while there are things outside of ourselves that we can detect, show others, measure, and agree upon, free will is different. You can say that it appears to you that you could have, under the same circumstances, not typed those words (in other words, that you chose freely to type them); I can only take your word for it. I suspect that you’ll have a hard time, though, explaining how your “choices” can appear on an EEG before you are conscious of having made them.

    I don’t have the wisdom to know who deserves prison; I don’t think you do either. You appear to think that I need to comfort myself or blame someone else for my decisions. I, on the other hand, think that you should probably be praying every day that the pain you cause to other people be forgiven. I guess that’s a good argument for me being a defender and you not.

    The critique of Greene and Cohen is unpersuasive. It remains true that a blow to the head can change a person from a law-abiding, productive citizen to a vicious criminal, a different person with a new personality, because of something entirely out of his control. Boom, like that. It’s hard to get around this: if, short of legal insanity, one person’s antisocial behavior can be the direct and inexorable result of an invisible injury, how can we have any confidence that we can know what anyone deserves?

    I am, however, interested in this key snippet:

    But note, in particular, Greene and Cohen’s peculiar emphasis on the combination of genes and environment. Biology, of courses, tells us there are additional factors which are neither genetic nor environmental. . . .

    I was unaware that biology told us of factors other than the genetic and environmental; I’m fascinated to know what that’s about. Biological proof of free will?

  15. That snippet caught my eye, too. I’m not sure what they’re referring to, but I doubt it’s biological proof of free will.

    I’ve said a few prayers for defendants, but I’ve never asked forgiveness for doing anything to them. They are to blame for any pain they suffer because they brought it upon themselves. This is not some alien concept I reserve only for other, lesser beings, either. When we choose to break the law, we face consequences. I just got a speeding ticket that will probably cost me $100+ and six irreplaceable hours of my life spent on defensive driving. No one is to blame for that except me because I CHOSE to speed. I don’t LIKE the consequence, but I brought it upon myself. And neither the policeman who issued the ticket nor the muni court prosecutor need to ask any forgiveness for the money they have taken out of my kids’ college funds.

    I will readily concede that there are many, many factors — nature, nurture, and possibly others — that affect what we do and can push someone toward committing a criminal act they would not otherwise have committed. To prosecutors, these are known as MITIGATING EVIDENCE. While we’re not imparted with any special wisdom, we make the best decision we can make based on the information we have at hand. While cosmically it will never be perfect, within the flawed confines of our criminal justice system, we do a good job of approximating and administering what people “deserve.”

    I do not concede that there is any difference in what we can detect, observe, show others, etc. and free will. We detect it through our consciousness, as surely as we detect being alive. Cogito ergo sum. We demonstrate it to others by the choices we make and it is readily apparent when one observes the inconsistencies and randomness of other people’s actions. Otherwise they would respond the same way every time, right? And the EEG refence is pure nonsense. EEGs cannot detect the content of thoughts, choices, and anyone who knows anything about them will recognize just how limited they are. There are many, many things going on in a human brain, even seizures, that will never show up on an EEG. The fact that we might be able to communicate our awareness of a choice only after we have already made that choice contributes nothing to the debate.

    I don’t think that you need to comfort yourself, but I do think that you are an intelligent person, seeking fulfillment and purpose in your own life, and you have your own way of looking at things. I don’t know which came first: Your profession or your outlook, but they fit each other.

    Nor am I suggesting that you need to ask forgiveness for anything, Mark. You’re doing a job, a job you are well suited for, and one that quite often has noble aspects to it. But there is no reason to overly-romanticize that job by consistently putting the government in the role of the bad guy, unjustly oppressing the helpless defendant. Such a construct is unrealistic, disregards overwhelming statistics, takes isolated miscarriages of justice and treats them as the norm, and should be recognized for what it is: A paradigm designed to make often unsavory work more appealing.

    I respect what you do as a criminal defense attorney. Perhaps prosecutors deserve some respect from you, too.

  16. This 4th of July, I spent Independence Day (in Austin) with a mostly 20- and 30- something crowd of members of the Riverbend Church, one of the richest in central Texas and probably the richest in Travis County. I tried not to engage any of the Young Republicans’ conversations about the importance of government holding poor people accountable and not giving them handouts, while checking out the foreign cars their parents gave them for graduating college (or high school) on salaries paid by corporations — the law’s clearest example of avoiding accountability. I always admire Warren Buffett’s frankness about his decision to spring out of the right womb, and his support of policies at the expense of his own interest.

    As for thinking they hit a triple, George W. Bush was born on third base and thinks he scored a touchdown.

  17. Mark,

    I know I’m late to the party here, but I can’t help but think that your deterministic view of your clients conflicts with your well known Libertarian views. How can you claim to believe in, much less seek to prioritize, individual liberty when you believe that individuals have no free choice?

    If one’s fate is determined not by hard work and making the right choices, but by random acts of genetics or chance, then there is no Liberty. If what you say is true, then it does not logically follow that the State should allow individuals to reap the benefits from, (or suffer the consequences of) their own individual choices…because there are no individual choices…it all comes down to if Mommie had a drink at a party in her third trimester, or if Daddy was emotionally distant, or if you got hit on the head with a baseball during a little league game.

    Under those circumstances, one has no right to private property, because no property has ever, could ever, be “earned” through ones own efforts; because those efforts were the result of choices, and we have no choices. Everything one has in life is simply the result of random genetic draw, or how close one’s chlidhood home was to the nearest source of lead, asbestos, or the trial lawyers big scary chemical di’jiour, then justice and fairness would demand nothing less than the implementation of “from each according to their ability, to each according to their needs”.

    If you truly believe in “the illusory nature of free will” then there is no reason for soceity to respect ANY of the choices made by individuals in their lives…or even any reason for society to respect any individuals. Once you move past the tradtional ideas of free will you wind up sliding down a slippery slope that has Calvin’s Geneva at the end of it.

    This goes a long way to explaining why so many trial lawyers are Socialists of one stripe or another….but I don’t see you (or Jen) fitting in well in Calvin’s Geneva; so I sense a philosophical contradiction here.

  18. My parents were extremely unresponsive…right around the time when I asked for a higher allowance.

  19. Brendan,

    Good question and astute observation. It may well be contradictory.

    Or maybe not.

    And maybe Karl Marx was right. *sigh*

    I accept the libertarian non-aggression principle in this pure form:

    Aggression cannot legitimately be used against non-aggressors.

    It’s logical and symmetrical: A lovely principle, but totally unworkable in the real world, where people are programmed to hold onto their shiny things, to say nothing of their food and shelter.

    I think that calling theft “aggression” is wordplay — sophistry, intended to overcome the problem that the NAP, strictly read, is impractical because it forbids punishing non-violent theft with violence or the threat of violence. What kind of society would we have if the bank teller could walk off with your huge balance without fear of any consequences? It’d be a kleptocracy — the sneakiest thief would rule.

    Calling theft aggression makes the NAP work, but at the cost of opening the door to lots of other transgressions. Call theft aggression, and you might as well call

    Human freedom (as we perceive it) might be broken down into freedom of action, freedom of choice, and freedom of preference. That is, we might be free to act on our choices, free to choose our preferences, or free to prefer one thing over another. (The professional navelgazers talk about the first two; I believe I coined the third.)

    In the preference – choice – action chain, I don’t believe freedom of choice has any real meaning: we’re going to “choose” whatever it is that we, for whatever reason, prefer; we can’t do otherwise. We are not free to “choose” something that we don’t prefer. Can’t do it. Not possible. You might prefer A to B until you realize that you can teach Bennett a lesson by choosing B, but this changes your preference. You always “choose” what you prefer. (Our brains create our preferences from the tensions between long-term and short-term desirability. Criminals generally follow preferences that are antisocially tilted toward short-term desirabilities.)

    It’s possible for the government to restrict our freedom of preference — to control our preferences — by deterring us, that is by increasing the possible long-term consequences of any action, and by rehabilitating us, that is by giving the long-term consequences more weight in our brains.

    It’s possible for government to restrict our freedom of action — to control our preferences — by incapacitating us.

    Incapacitation, deterrence, and rehabilitation all require the use or threatened use of force. In other words, aggression. I object to the government using aggression except to prevent aggression. It may happen whether I object to it, but I have to object nonetheless.

    Why? My rationalization is that human happiness is maximized (a good) when people feel maximum freedom and that people feel maximum freedom when the government interferes as little as possible, but the truth is probably that I simply have no choice.

    Now, if you’ll excuse me, I have to go back to preparing to get my butt kicked in trial by another of my faithful readers.

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