Social Control Algorithm’s, Determinism, Freewill, and Psychometric Analysis in the Criminal Justice System

“Man is born free, but everywhere in chains” Rousseau.

“A rock falling through the air might think to itself that it could go right or it could go left, but it chooses to keep going straight” Schopenhauer

”What we call reality is in fact nothing more than a culturally sanctioned and linguistically reinforced hallucination.” Terence McKenna

”Measurement in psychology and physics are in no sense different. Physicists can measure when they can find the operations by which they may meet the necessary criteria; psychologists have but to do the same. They need not worry about the mysterious differences between the meaning of measurement in the two sciences.” (Reese, 1943, p. 49)

Introduction

We have spent the best part of our known history categorizing the world around us. Biologists, have named the plants and animals around us. Linguists, have come up with an international phonetic alphabet. In math, one of the only universal languages, we have invented numbers, and systems in which we use numbers, in more and more complicated ways, to describe the world around us. Of course, we could list categories forever, but the point is that the total amount of created knowledge is phenomenal, beyond counting. And we, especially these days, assign significant importance to what we know. Yet, if we accept that we haven’t categorized everything we wonder how much value is still yet to be categorized.

At the end of the 19th century, Francis Galton stated “until the phenomena of any branch of knowledge have been submitted to measurement and number, it cannot assume the status and dignity of science” (Galton, 1879). American psychologist James Mckeen Cattell stated that, “Psychology cannot attain the certainty and exactness of the physical sciences If psychology and other qualitative, social science disciplines desire scientific legitimacy, it seems that practitioners must limit their inquiries to quantifiable, objective phenomenon and fact. Today, the desire for illusory objectivity has filtered into many areas of society, including democratic institutions.

Developing an accurate measurement of emotions would unlock this vast potential, enabling qualitative data to contribute enormously to all aspects of society. In fact, with a measurable system, the future health of democratic systems would improve, through correctly identifying and valuating intangible assets.

Psychological measurement is not easy because unlike the outer, physical world, the inner world is not so easy to measure objectively. A piece of art can illicit as many responses as there are viewers of the art. Psychometrics is the scientific field concerned with the measurement of psychological functions such as happiness, intelligence, perceived emotional pain, etc. Psychometrics find application in areas such as hiring in the business world, student assessment in education, personality profiling and determination of mental health in psychiatry and psychological assessment, and sanity in criminal cases in law. By developing a way to improve the objectivity of psychometric measurements, we have also identified new application areas where an objective scale of emotional pain and suffering can have important impacts. Such a scale can be used to implement a more objective financial compensation methodology in court cases and insurance claims. It can also be used to determine if goods or services reach minimum customer satisfaction levels, or the effectiveness of advertising in the feelings it evokes in its audience.

In judicial courts around the globe, countless judgments are made each day. Lawyers, judges and juries not only decide who is right and wrong, but also how much to compensate for mental and emotional anguish caused by another party. Currently, this is all done subjectively, on a case-by-case basis. Certainly legal precedent comes into play as well, but none of the legal precedents have ever been subjected to an attempt to create an objective scale of compensation. Because these damages are impossible to quantify by any convention measurement, it is an area where the jury has substantial discretion that is not consistent with an otherwise highly structured and systematic legal system. Subsequently, compensation is a currently still a very subjective process. This brings about inefficiency as even when litigants and defendants agree to settle a case, they may still be embroiled in years of litigation trying to put a price on the price of anguish caused. Many of these legal challenges arise from the subjectivity of human emotions and experiences, and our inability to establish independent and objective metrics to measure exactly how we feel, combined with the enormous variety of individual experiences and subjective realities.

Consider a common class of such court cases, marital divorce. For couples, emotional turmoil often takes years to build up before they reach the crisis level of legal intervention. Conflicts arise when partners no longer hear each other, that is, they are not sensitive to each other’s emotional suffering. A conflict can only occur when each partner feels their own emotional pain more than their partners. Who’s subjective reality is more valid? Is there such a thing as an objective reality that can nullify any individual claim of subjective priority? Notwithstanding academic concerns that question the very existence of such feelings, noneconomic damages caused by emotional pain remain a form of relief that is woven into the fabric of law. Despite the intangible quality of mental anguish and psychometrics, people going through a bitter separation consider them very real and concrete.

Perhaps a new and dependable system could save them the pain and suffering of a long court battle? Today’s lawyers play “the game” by the understanding that qualitative losses of value cannot be enforced in the court room easily, or at all. Some of these lawyers will leverage the defendants’ personal qualitative value to advance this position and enhance their ability to unfairly advance to a personal financial gain. Some of these items can be the value of time em-broiled in a lengthy court battle, emotional damages to the people in their social circle, negative stress that affects health and well-being and many others. It is even more unfortunate that the Law Society and Ministry of Justice allows this unethical behavior and destruction of value. This “death by 1000 cuts” has a massive effect it has on the social capital of the country. “Trusted” officers of the court are there to provide lubrication to expedite efficiency and advocate for fairness, despite the inability to measure value accurately.

This unequal balance has led to multiple controversial outcomes. Thus, the subject of damages for noneconomic injuries has a lengthy and controversial history (O’Connell & Bailey, 1972). Although there is some debate about whether to stop the guessing and remove plaintiffs’ ability to recover noneconomic damages (Calfee & Rubin, 1992;Geistfeld, 1995; Jaffe, 1953; Morris, 1959; Plant, 1958), an agreement that psychological injury is real, and measurable, is now almost universal. But, because these damages are not easily quantifiable, it is an area where the jury has substantial discretion. Subsequently, compensation is a very subjective process within the objective framework, leading to unpredictable outcomes. Many of these legal challenges are derived from our inability to objectively measure feelings, combined with the enormous variety of individual experiences and subjective realities. Emotions are centered in subjective experiences that people represent, in part, with hundreds, if not thousands, of semantic terms. We aim to clarify this area with clear, evidencesupported, equations. Claims about the distribution of reported emotional states and the boundaries between affective categories – that is, the geometric organization of the semantic space of emotion – have sparked intense debate.

We argue that the best way to quantify feelings lies in a health utility measurement, an approach developed in health economics for valuing health outcomes in public health and medicine. It holds considerable promise for bringing greater rationality and consistency to assessments of injury-related noneconomic loss. The health utility is a comprehensive empirical investigation on a significant scale that gathers consensus on the subjective value of an injury.

The essential need for an enhanced psychometric in the legal system is understated by the fact that the top 5 most common personality types according to the 16 Personalities Institute are ISFJ: 13.8%, ESFJ: 12.3%, ISTJ: 11.6%, ISFP: 8.8%, ESTJ: 8.7%. These personality types are typically found in institutions where procedures are key administration, accounting, and legal. These personalities have a reputation for inflexibility, but it’s not because these types of executives are arbitrarily stubborn, but because they truly believe that these values are what make society work. This personality type is predominantly female — it has only 29% male representation. It is possible, that without oversight, governance that is imbalanced in its representation of the public sentiment can become unknowingly dangerous for democracy.

In the reality of the procedural cogs and wheels of Milgram’s agency theory. Ordinary people are likely to follow orders given by an authority figure. Obedience to authority is ingrained in us all from the way we are brought up. People tend to obey orders from other people if they recognize their authority as morally right and/or legally based.

To be fair, no other personality type would excel in the valuable procedural roles of our societies. So, it is up to us creators, to support legal procedures and prioritize a new

metric that can quantify the qualitative and bring balance back into democracy and the legal system.

This article aims to defend the thesis according to which it is possible to quantify the psychological damage of a person. To do so, it proposes a hypothetical case in order to analyze a borderline situation. In this situation, it will be necessary to take into account two scenarios: (i) the legal scenario of litigation and (ii) the social implications for the person concerned. Once the case has been reconstructed, it is intended to point out a way of analysis based on what is known in sociology as social capital; then, a psychometric analysis model of the damage will be proposed and the implications in socioeconomic terms will be explained. Finally, based on the reading of the hypothetical case, a discussion that helps to understand the paradox between determinism and freedom will be presented.

Statement Of The Problem

In his novel The Trial, Franz Kafka presents us with a particular situation. The character Joseph K… has been arrested for no reason. Two men, presumed to be guardians of the law, have entered his boarding house and have notified him that he is under arrest. Perplexed by the news, K… thinks it is all a bad joke played on him by some of his friends at the bank where he works. How-ever, as the events unfold, the guards confirm his arrest warrant without explaining the reasons. Seeing the persistence of the guards, of course, K… asks them what crime he is accused of. Why am I under arrest, he asks. But they have no knowledge of the charges against him. They reply that the authority that governs them is in charge of handling the information about your case and that they simply obey their orders without the right to ask. Indignant, the character reproaches them for their ignorance in the face of an event of such proportions. How is it possible that they do not know what I am accused of and yet they arrest me in my own room,” he says. So he tries to leave the room. The two men remind him that he is under arrest for now and that he cannot leave until the inspector arrives. They tell him that if he wants something to eat, he must give them his grocery money and wait for one of them to bring his order. K… refuses. He returns to his room in a rage and locks himself in until the inspector in charge of his arrest arrives. When the inspector arrives, K… assumes that he will find in him a reasonable person to talk to. Maybe it’s all a misunderstanding, a simple mistake, he thinks. Maybe they are looking for a criminal and have mistaken him for himself. Maybe his reaction a moment ago was exaggerated and disproportionate to the situation. Suddenly, however, he hears someone shouting his name on the other side of the door. It is the same man who came to wake him up and notify him that he was in custody. This man informs him that the inspector has arrived and that he should dress appropriately to meet him. As he goes out to meet the inspector in the next room, as he crosses the threshold of the door, K… observes around him some people leaning out of the window to watch his arrest. In addition, he recognizes three of the men waiting in the room, near the figure of the inspector: they are employees of the Bank where he works. At that moment he under-stands that it is all a show, that the inspector has made his arrest a

public event, even in such a private place as his residence, and that he wants all his acquaintances to know what is happening, as if he wanted to embarrass him in front of everyone. Otherwise, the conversation with the inspector is not encouraging either. K… tries to reach for his identity papers for them to check them, to confirm his personal data, so that they can see if it is a mistake. However, the inspector does not accept his documents and tells him that they, as officers of the law, do not have the obligation or authorization to verify the information, that this is the responsibility of the competent authority. Besides, ”The authorities that we represent -says the inspector- are not the ones that look for the people’s crimes, but the ones that, as the law says, are attracted, that is to say, they are put in play by the crime and then they must send us, the guardians. That is the law and there can be no mistake in it” (2016: 16). Again, K… is puzzled by the inspector’s words. Then, to further increase his bewilderment, the inspector reminds K… that he is detained but that he must continue with his daily life, that is, he must continue to perform his duties at the Bank, so, if he wants, he can return there, to his work. That is why, the inspector specified, he had brought as witnesses the other three employees of the Bank, who, from now on, are at his entire disposal. After a few more words, K… leaves the house and goes to work. At the Bank, he senses that everyone knows what has happened, thinks that everyone is making fun of his situation, and believes that it was all a joke. However, a couple of days later, she receives a call from the inspector. He reminds her of the terms of her visit and notifies her of the date of her first interrogation. The anguish, evidently, could not be more acute. The date of the interrogation is set for the following Sunday, but K… hangs up the phone before knowing the time of the hearing. On the day of the interrogation, however, he sets off in search of the address. After passing through streets and doors, he finally arrives at the courtroom, where an audience divided in two and a judge are waiting for him to begin the proceedings. The judge looks at the time on the clock and tells him that he is more than an hour late. The important thing, says K…, is that I have arrived. The right side of the audience applauds. The judge looks through a couple of folders on his desk. There he keeps all the information regarding the defendant. Opening one of the files, while silencing the audience present, the judge says to K…, as if in the form of a question: ”So you are the painter with the broad brush? K…, without understanding, answers in the negative. Then he thinks that nothing of what is happening makes sense.

The story continues with some of K…’s reproaches in the face of the confusion and the unjustified accusation against him. The text is rich in details and exposes throughout its development an inconclusive and paradoxical process in the face of the character’s situation. However, at this point, we would like to ask ourselves: if the law has mistaken an innocent person for a criminal, is there a way to retribute for the harm that has been done to him? Moreover, what kind of harm has been committed against K…? Of course, the accusation constitutes slander, damage to the good name. But what does this mean in concrete terms? Moreover, how can we measure the damage? Or how can we offer objective data in the face of such an insult?

End of Excerpt

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