Featured image: Brendan Dassey is interrogated until he yields the confession an interrogator is looking for. Was it freely given? We turn to the philosophy of free will and moral responsibility for help. (Netflix)
To be considered morally responsible for events occurring (e.g. helping a blind man cross the street) we have to display agency, the capacity to act above natural forces, in the lead-up to those events (e.g. by deciding it was the right thing to do). Agency, as an ability to make things happen, is required to form free will, which renders us liable to moral assessments. These assessments can be applied to acts positive, negative, and neutral in nature.
For one convicted offender, Brendan Dassey, the accusations are wholly negative, for it is alleged that he played a significant part in a horrific murder. Dassey’s journey from teenaged boy to killer is documented in infamous Netflix series Making a Murder, wherein the topics of free will and moral responsibility are brought to life in a compelling, legalised context.
How? The primary piece of evidence held against Dassey is his own confession. However, it is widely believed that this confession was drawn from Dassey under duress.
Is it possible to tell whether Dassey displayed agency in his confession? These were his words! He said them!
Let’s consult philosophy, usually the destroyer of knowledge, for answers.
Making a Murderer (spoiler alert)
Making a Murderer's popularity reveals our appetite for murder, having brought true-crime narratives into the mainstream.
Making a Murderer is a true-crime documentary, first released by Netflix in 2015, which chronicles the prosecutions subsequent to the murder of Teresa Halbach. It is a captivating, conversation-dominating binge-watch full of twists and turns. Watchers tend to come away with a sense of indignancy, coupled with perplexion, at the outcomes and at what actually happened to Halbach in Manitowoc County, Wisconsin, on October 31, 2005. I want to be sensitive and reflect the facts as fairly I can; as is too frequently the case, the victim is already a sideshow.
Netflix generates a narrative that implicates the local police department in corruption and throws a cynical light over the state’s legal system, which ends up convicting two men, Steven Avery and his nephew Brendan Dassey, somewhat contentiously for murder in 2007. They were 43 and 16 years old at the time of Halbach’s murder.
Halbach, a photographer, had visited the family scrapyard to take pictures of a car on the day of her disappearance. She was last seen by Avery, who had a history of criminal behaviour; his blood was also found in her car, which was discovered at the property; and her car keys were located (albeit suspiciously late) in his room. Logically, from these premises, Avery becomes a clear suspect.
However, there is reason to doubt the version of events put forward by the prosecution, justifying much of Netflix’s cynical narrative, which has foundations grounded in a multitude of controversial facts. For example, Avery, at the time of his arrest, had filed a lawsuit against Manitowoc County, its former sheriff, and its former district attorney for wrongful conviction and imprisonment for rape and attempted murder in 1985—allegations which were disproven by DNA evidence, leading to his exoneration and release in 2003. Without Avery’s arrest, the lawsuit would cost the police $36 million. Hence there was reason to believe the police had a vested interest in framing Avery. While Avery spent 18 years incarcerated in prison the actual attacker, Gregory Allen, was free to attack other women for nearly a decade.
Meanwhile, Dassey was convicted for his activity—first-degree intentional homicide, rape, and mutilation of a corpse—after a series of confessions in 2006. His criminal story is philosophically more interesting and is our focus here.
About Brendan Dassey
Brendan Dassey, in prison, pictured with his mother, Barbara Tadych (right), and his stepfather, Scott Tadych (left). Dassey has a 'truly childlike faith' that the right thing will eventually be done.
Unlike the events leading to Halbach’s murder in 2005, Dassey’s limits as a free-thinking agent are no mystery. He is tried and sentenced as an adult for a serious crime but his demographics fit the description of someone with a low mental age whose decisions can be heavily influenced by a trained adult: borderline IQ deficiency, enrolment onto special-education classes, quiet, slow, scared, clearly finds it difficult to navigate social situations in speech. Just watch the interrogation.
Ultimately, however, Dassey was charged on the basis of his own uttered words. Here is something he said:
Dassey was read his Miranda rights prior to his confession and signed everything he needed to. These words came out largely unprovoked.
But, suspiciously, no DNA evidence corroborates the story, which involves blood and mutilation and logically contradicts itself. It starts off as a stabbing and morphs as extra details are elicited during the interrogation—he saw Halbach, he didn’t see Halbach, Halbach’s hair is cut, she’s punched and cut, there are gunshots . . . He later retracts it all, having never seemed to appreciate the gravity of the situation he was in and later claiming that he was ‘guessing’ like he does for homework.
Dassey’s plight has moved many people to attack the judicial system that was so willing to ensnare someone: in this case, from a family with a sour relationship with the police. His confession was legally transformed from an instantiation of words into something so substantial his guilt was almost inevitable. And just like that his life was taken away.
However, the epistemic reality of legal situations is such that we never really know the truth of events with certainty. Best guesses are made, eventually by a jury, based on the arguments and evidence provided, of which confessions can be very fruitful. Criminal-justice systems value admissions of guilt: defendants who confess are given lesser sentences than those who do not. And without confessions justice couldn’t have been delivered on countless occasions.
But on this occasion the extraction of information may have been too flawed to provide anyone with real justice.
The second series of Making a Murderer focuses on Dassey's right to a new trial. Depicted is Dassey's defence lawyer Laura Nirider arguing to three judges from the USA's federal court of appeals, 'the Seventh Circuit', that there was a miscarriage of justice. Nirider wins, with a 2-1 decision, but later, after an appeal is lodged by the prosecutors, seven judges reinstate the state's conviction, with a 4-3 decision, ruling that the police obtained Dassey's confession properly and that the case won't be heard before the U.S. Supreme Court. Terribly small margins lie before massive consequences.
The thing about the Dassey case which makes it more philosophically fascinating than others is that it involves free will. It’s not clear which composition of words he genuinely meant to say and which compositions of words he genuinely didn’t mean to say. We need to know which is which to decide whether he should be held accountable to the confession used against him in court.
Many traditional theories of free will go along the following line: an agent is free in their decision-making if they can choose an alternative option. So if Dassey could have said otherwise, he was free to not say what he said. But this approach meets all kinds of difficulties in the domain of free will and moral responsibility. Primarily, what does it mean to have said otherwise? This is what did happen. We are only given a hypothetical basis of free will.
In one famous theory, that of Harry Frankfurt, we don’t consider someone’s freedom a matter of alternative possibilities; rather, what matters is that they are the source of their thoughts. Frankfurt, with his famous thought experiments, first published in 1969, reported to show that someone is morally responsible for what they do, even if their actions are being controlled. So there is a fantastic level of relevance of this to Dassey’s case.
To illustrate Frankfurt’s point, imagine I have a gun. I am contemplating shooting you because you beat me at a game. Every time I consider not shooting you an evil scientist nips this thought in the bud with some crafty device. (The evil scientist has exquisite knowledge of the laws of nature and can make very accurate predictions.) I consider shooting you once more but the evil scientist intervenes again. This continues until I decide that your victory was so unjust I actually pull the trigger. And here’s the take-home point: even though the evil scientist ensured a certain outcome, I was the one who sourced the thoughts to reach my conclusion before enacting it. I am, therefore, morally responsible for shooting you.
Now apply this thought experiment to Dassey’s interrogation, where Dassey is giving information about the murder of Halbach (thinking about pulling the trigger) and the interrogator (evil scientist) is trying to make him confess. If Dassey confesses, even under significant pressure, he may not be free in a conventional sense but he is responsible for his own words. Free will is merely matter of conforming to one’s own desires; and Dassey’s confession was some desire of his.
The problem with this approach, though, is that it would assume Dassey was an agent who wielded desire-conforming control of his reasoning powers . . .
Dassey: A Frankfurtian agent?
Was Dassey's confession intentional or was his freedom compromised? Only he, as the source, can know; we can only guess externally. Nonetheless, judges ruled that he was a free agent during key moments of his confession. We live in a world where people all too easily believe in the existence of their freedom. Yet in society we are inconsistent in how we grant it to young people. We are born dependent: prematurely, with big heads, unable to walk or feed ourselves. Parents and guardians are given legitimate governance over our choices: they feed, clothe, indoctrinate, and pierce us and determine where we go to school; and, for a long time, they are made morally responsible for 'our' misdemeanours. Then do we suddenly become free at 16 years old? See here for an interesting discussion of children put on trial for murder as adults.
To advocate a Frankfurtian notion of free will we have to believe that Dassey was the source of his words. Is this true?
When Dassey’s case was taken to the higher echelons of the US legal system the debate was centred on this very point, which was the first thing that inspired me to write this article, since the Seventh Circuit judges determined that the confession was obtained properly: i.e. that the information Dassey gave was a matter of his own free will. As Judge David Hamilton said:
With these words Hamilton tacitly attaches himself to a Frankfurtian theory of free will, by which Dassey was the source of his confession.
The confession may have been ruled voluntary and come from Dassey’s physical body but what reasons do we really have to believe that it reflected a set of reasons, intentions, choices, motives, or anything else we can ascribe with responsibility of those words and not some verbal manifestation of a simple imagination? In most scenarios it’s not unreasonable to hold someone to account for the words they said aloud; but, in this scenario, the ‘agent’—the source—was a teenager with limited cognition, who chats about wrestling prior to his full confession, who appears lost during the interrogation, and who says he got most of his ideas from a book. Dassey’s own verbal output was frustratingly incoherent—some parts of what he said were true and some parts weren’t—so we should be sceptical about taking them as sufficient. The confession doesn’t ground itself in a reasonable explanation of Dassey’s motivations, only a convenient alignment of possibilities from a messy web of words uttered by a overwhelmed, plain and docile character.
Classically, in the speak of free-will philosophers such as Frankfurt, agency is constituted in a set of beliefs and desires—bundles of expressions belonging to the agent, specifically, which are reflected on by the agent’s conscious assessment of the situation. Thus Dassey’s agency during the interrogation was assumed to be present in his conscious reflections of the situation when he expressed what he believed happened. This ability to reflect on things is what morally distinguishes us from ‘lower’ animals, which only possess first-order desires (hunger, fear, etc.). We, on the other hand, hold desires with respect to those desires, second-order volitions, which allow us to think ‘above’ causes in conscious reflection (e.g. we choose not to eat, for whatever reason, despite being hungry). Hence if Dassey consciously moved to align his will with the suggestion that he was a murderer, he was free in his confession.
But, in line with Galen Strawson’s ‘Basic Argument’, nothing can truly be causa sui (a cause of itself). This may apply to our decision-making, too. So if during the interrogation Dassey consciously held a thought about him hypothetically murdering Halbach it is not necessarily true that this thought was sourced in him as an agent of his beliefs and desires, for they could have been placed there or entered his volition imagined and confused. The judges and jury, therefore, should have asked which part of Dassey caused those beliefs and desires? And what caused those causes and the causes beneath those causes . . . ad infinitum? For what was his motivation here? More justification of one was needed, in my opinion.
It may be intuitive and may have been tacitly assumed by experienced and intelligent judges but, for me, this Frankfurtian assumption of events during that confession is stumped by very basic questions about sourcehood. To support a Frankfurtian theory of free will, like Judge David Hamilton seemed to, is to enter an infinite regression of explaining causes back to the individual—in Dassey’s case, from his confession all the way back to a convoluted mesh of his conscious and subconscious thought-fragments. But since Dassey clearly doesn’t operate many levels above first-order desires his words may have come out for little or no reason at all.
Moreover, as someone who is easily daunted and, therefore, quite vulnerable, there is reason to believe he spoke involuntarily . . .
The Manipulation Problem
Len Kachinsky, Dassey's own lawyer, who had already sent his client to the police alone for questioning, hires Michael O'Kelly to clear up inconsistences in Dassey's prior statements. In S1E4 we learn that neither Dassey nor his mother knew what 'inconsistencies' means. He also spells 'Teresa' as 'Taresha'.
In recent times the strategy of Dassey’s attorneys has been centred on the belief that Dassey was manipulated into giving his confession rather than it arising spontaneously. And while manipulation wouldn’t necessarily be a problem in the Frankfurtian view adopted by the courts, the possibility raises some serious philosophical concerns about confessions.
Let’s first analyse the claim that the interrogating officers were manipulative. There is plenty of evidence to support this claim: Dassey was, to be frank, dumb and slow; his statement was unreliable in its inconsistency; the officers interrogating Dassey deployed a strategy which is associated with a relatively high incidence of false confessions amongst juveniles, the Reid Technique; these officers repeated false claims such as, ‘We know’; Dassey’s legal representative wasn’t even present during the confession to protect him—nor was any other adult—nor did said representative believe Dassey or act in his family’s interests; in fact, he employed a private investigator to iron out ‘inconsistencies’ for him; and this investigator was quite forceful, encouraging complicity, potentially with illegal promises of leniency, and threatening, ‘Tell the truth’ or risk ‘spending the rest of your life in prison’.
With this potentially manipulative behaviour we have to ask: did the interrogators undermine Dassey’s free will? This is the important philosophical point which may contradict the Frankfurtian theory of free will. Dassey’s mother claimed they ‘got to his head’, which implies they imposed their wills on Dassey, thus undermining his will and stripping him of the status of being a source of his confession.
One philosophical argument to support this is supplied by Robert Kane, who offers the ‘Manipulation Problem’. According to Kane, free-will-removing interpersonal control can occur in two ways:
- Constraining control: Someone uses force or a threat of force against another. After watching the interrogations back, though, this seems unlikely. The words and their body language of the interrogators weren't forceful per se: metaphorical guns weren't held against Dassey's head because he was not subject to physical force, mental exhaustion, or anything like that.
- Non-constraining control: Someone manipulates another. While it may appear that the other person is making the final decision, the manipulator is cunningly subverting the other's will, say, by adapting the information they provide. For example, I may think I developed my taste in films of my own accord but, because Netflix limits the selection I choose from, they can be said to manipulate my choices beneath my awareness. This kind of control will do work here.
Non-constraining control is relevant to Dassey’s case because it accounts for the kind of will-bending which avoids detection and leaves the judges and the jury in want of more explicit evidence from the defence.
Entertaining the possibility that some manipulation did occur, we can quickly conceive how certain soundbites acted as breadcrumbs with which Dassey connected the dots using his own words to incriminate himself. Every time he deviated from what they hoped he would say they encouraged him to join their trail again such that they could solicit the information they wanted.
‘Be honest’, ‘Use your memory, not what Steven told you’, ‘Honesty is the only the thing that will set you free’, you’ll get a ‘better deal’, ‘We already know what happened that day’, ‘I’m a father that has a kid your age’, ‘I promise I will not leave you high and dry’—these lines redivert Dassey back to their expectations. Dassey, therefore, didn’t have to be aware of what was going on—actually, the interrogators seemed to saturate his mind so early on that he appeared to vacantly nod along to anything. Is this really what a source of agency looks like?
One last Frankfurtian notion that could be introduced to support the idea of Dassey’s agency, despite his apparent vague unawareness of events transpiring around him, is that Dassey only needed to be ‘satisfied’ with the answers he gave; things like beliefs and desires would not be required, for there is an absence of motivation. But this approach to free will seems to lower the bar required for autonomy so low that little distinction is left in the individual’s decision-making. Take someone with depression, someone addicted to a substance, or someone, like Dassey, who was intellectually stunted: what does their absence of motivation to act in certain ways in their volitions really say about them? That is to say, if Dassey held no specific beliefs and desires about his confession, how is it more believable that he endorsed a particular, incriminating answer more than him simply being a small, confused cog turning in a complex world churning with myriads of causes?
There are no winners
Agency means freedom from causation. Did Brendan Dassey (or does anyone) have claim to that? (Alex Eben Meyer)
We consulted philosophy not for the truth—which would have been daringly audacious, given philosophy’s track record—but for accounts of Brendan Dassey agency. The prosecution and the courts relied on some notion of Frankfurtian free will to claim that Dassey’s confession was voluntary and denied that manipulation was at play. Such philosophy was implied in summary statements by judges. It was key to the arguments of agency made by the prosecution in front of the jury to render Dassey responsible for the words that came out of his mouth.
I state no opinion on whether Dassey committed the crimes or not; however, I do think there are reasons to doubt the integrity of criminal justice: how can someone be charged on assumptions of such a poor definition of agency. Further, it is not enough of a justification of Dassey’s voluntariness to state that Dassey, a 16-year-old with poor verbal comprehension, understood his rights and subsequently uttered a valid version of events. The story constructed in court was built on poor assumptions of Dassey’s volition and undermined by its own plot holes and a lack of corroborating evidence.
Laura Nirider, Dassey’s attorney in recent years, remarked:
While we may be enthused by certain theories and form opinions on what happened to Halbach that day and thereafter, we cannot justify them as true knowledge of what actually happened. As per solipsism and the problem of other minds, as per qualia in metaphysics, we may not know other minds to exist, let alone refine these minds’ mental states to reveal what Dassey meant; we are limited to our own perceptions. But murder and mutilation—these we do know happened to the woman without a Netflix show and a Wikipedia page, Teresa Halbach.
To compound sadness the criminal-justice system crystallised a dodgy version of events in a botched attempt at justice. There was no closure. But just because the truth is likely never to be known, we shouldn’t let ‘justice’ contain systemic disdain for it.