Free Will Skepticism in Law and Society: Challenging Retributive Justice 1108666280, 9781108666282
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FREE WILL SKEPTICISM IN LAW AND SOCIETY
“Free will skepticism” refers to a family of views that all take seriously the possibility that human beings lack the control in action – i.e., the free will – required for an agent to be truly deserving of blame and praise, punishment and reward. Critics fear that adopting this view would have harmful consequences for our interpersonal relationships, society, morality, meaning, and laws. Optimistic free will skeptics, on the other hand, respond by arguing that life without free will and so-called basic desert moral responsibility would not be harmful in these ways, and might even be beneficial. This collection addresses the practical implications of free will skepticism for law and society. It contains eleven original essays that provide alternatives to retributive punishment, explore what (if any) changes are needed for the criminal justice system, and ask whether we should be optimistic or pessimistic about the real-world implications of free will skepticism. is a lecturer in criminal law and criminology at the University of Aberdeen, where she is also a codirector of the Justice Without Retribution Network. is Susan Linn Sage Professor in the Sage School of Philosophy and Senior Associate Dean of the Arts and Humanities at Cornell University. He is the author of Living without Free Will (), Consciousness and the Prospects of Physicalism (), and Free Will, Agency, and Meaning in Life (). . is Professor of Philosophy at SUNY Corning and Honorary Professor of Philosophy at Macquarie University. He is also a codirector of the Justice Without Retribution Network at the University of Aberdeen School of Law. His books include Free Will and Consciousness () and Exploring the Illusion of Free Will and Moral Responsibility ().
FREE WILL SKEPTICISM IN LAW AND SOCIETY Challenging Retributive Justice ELIZABETH SHAW University of Aberdeen
DERK PEREBOOM Cornell University
GREGG D. CARUSO SUNY Corning
University Printing House, Cambridge , United Kingdom One Liberty Plaza, th Floor, New York, , USA Williamstown Road, Port Melbourne, , Australia –, rd Floor, Plot , Splendor Forum, Jasola District Centre, New Delhi – , India Anson Road, #–/, Singapore Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/ : ./ © Cambridge University Press This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published Printed and bound in Great Britain by Clays Ltd, Elcograf S.p.A. A catalogue record for this publication is available from the British Library. ---- Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
Contents
List of Contributors
page vii
Free Will Skepticism in Law and Society: An Overview
Gregg D. Caruso, Elizabeth Shaw, and Derk Pereboom
: .
Free Will Denial and Deontological Constraints Saul Smilansky
Free Will Skepticism and Its Implications: An Argument for Optimism
Gregg D. Caruso
Beyond the Retributive System Bruce N. Waller
Free Will Skepticism and Prevention of Crime Derk Pereboom
Deontology and Deterrence for Free Will Deniers
Benjamin Vilhauer
Free Will Skepticism, General Deterrence, and the “Use” Objection Kevin J. Murtagh
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Contents
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Fichte and Psychopathy: Criminal Justice Turned Upside Down
Michael Louis Corrado
Causality and Responsibility in Mentally Disordered Offenders
John Callender
The Implications of Free Will Skepticism for Establishing Criminal Liability
Elizabeth Shaw
Free Will Skepticism and Criminal Punishment: A Preliminary Ethical Analysis
Farah Focquaert
Index
Contributors
is a consultant psychiatrist and Honorary Senior Lecturer in Psychology at the University of Aberdeen. He is the author of Free Will and Responsibility: A Guide for Practitioners (). . is Professor of Philosophy at SUNY Corning and Honorary Professor of Philosophy at Macquarie University. He is also a codirector of the Justice Without Retribution Network at the University of Aberdeen. His books include Neuroexistentialism: Meaning, Morals, and Purpose in the Age of Neuroscience (coedited with Owen Flanagan, ). is Arch Allen Distinguished Professor of Law Emeritus at the University of North Carolina School of Law. He writes mainly about the philosophy of criminal law, but he has also written on law and economics, on tort law, and on comparative law. is Professor of Philosophical Anthropology at Ghent University. She is the author of numerous papers in leading scientific and philosophical journals. She is a coeditor of the forthcoming Routledge Handbook of the Philosophy and Science of Punishment. . is an Assistant Public Defender in Asheville, North Carolina, where he represents juveniles and indigent adults in criminal cases. His philosophical work has focused on punishment, sentencing theory, and free will. is Susan Linn Sage Professor in the Sage School of Philosophy and Senior Associate Dean of the Arts and Humanities at Cornell University. He is the author of books including Free Will, Agency, and Meaning in Life (). is a lecturer in criminal law and criminology at the University of Aberdeen. She is a codirector of the Justice Without Retribution Network. vii
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List of Contributors
is a professor in the Department of Philosophy at the University of Haifa, Israel. He is the author of Free Will and Illusion (), Moral Paradoxes (), and over eighty papers in philosophical journals and edited collections. is Professor of Philosophy and Chair of the Philosophy Department at City College, CUNY. He has published a variety of articles in edited volumes and journals, including The Philosophical Quarterly, Philosophical Studies, the Canadian Journal of Philosophy, and the American Philosophical Quarterly. . is Professor of Philosophy at Youngstown State University. His books include Against Moral Responsibility (), The Stubborn System of Moral Responsibility (), and The Injustice of Punishment ().
Free Will Skepticism in Law and Society: An Overview Gregg D. Caruso, Elizabeth Shaw, and Derk Pereboom
Free will skepticism refers to a family of views that all take seriously the possibility that human beings lack the control in action – i.e., the free will – required for moral responsibility in a particular but pervasive sense. This sense is typically set apart by the notion of basic desert and is defined in terms of the control in action needed for an agent to be truly deserving of blame and praise, punishment and reward (see, e.g., Pereboom , ; Levy ; Caruso and Morris ). For agents to be morally responsible for their actions in this sense is for the actions to be theirs in such a way that they would deserve to be blamed if they understood that it was morally wrong, and they would deserve to be praised if they understood that it was morally exemplary. The desert at issue here is basic in the sense that the agents would deserve to be blamed or praised just because they have performed the action, given an understanding of its moral status, and not, for example, by virtue of consequentialist or contractualist considerations (Pereboom : ). Accordingly, here we will understand free will as the control in action required for basic desert moral responsibility, and free will skepticism as doubt or denial that we have this sort of control. Some free will skeptics deny that we are morally responsible in this sense because they believe it is incoherent or impossible that we satisfy its control conditions (Strawson , , ). That is, it’s incoherent or impossible that we have the free will required to be morally responsible in this sense. Others maintain that, though not incoherent or impossible, our best philosophical and scientific theories about the word provide strong and compelling reasons for adopting the skeptical perspective. What all varieties of free will skepticism share, however, is the belief that the evidential standard for our having basic desert moral responsibility is not met, and as a result there is a strong presumption against the legitimacy of the practices associated with it – such as the reactive attitudes of resentment, indignation, backward-looking blame, and retributive punishment.
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Critics of free will skepticism argue that adopting such a view stands to have harmful consequences for our interpersonal relationships, society, morality, meaning, and the law. They contend, for instance, that relinquishing belief in free will and basic desert moral responsibility would undermine morality, leave us unable to adequately deal with criminal behavior, increase antisocial conduct, and destroy meaning in life. Optimistic free will skeptics respond by arguing that life without free will and basic desert moral responsibility would not be harmful in these ways, and may even be beneficial. Prospects of finding meaning in life or of sustaining good interpersonal relationships, for instance, would not be threatened. They further maintain that morality and moral judgments would remain intact. And although retributivism and severe punishment, such as the death penalty, would be ruled out, imposition of sanctions could serve purposes other than the punishment of the guilty; e.g., it can be justified by its role in incapacitation, rehabilitation, and deterring offenders. In this introduction we attempt to provide a brief sketch of the traditional free will debate, define the various positions, and frame the debate over the practical implications of free will skepticism. We focus especially on the implications of free will skepticism for the criminal law and the retributive justification of punishment. We conclude with a summary of the ten original chapters to follow.
. Free Will Skepticism and Its Implications Contemporary theories of free will might be divided into two general categories: those that endorse and those that are skeptical of the claim that human beings have free will. The former category includes libertarian and compatibilist accounts of free will, two general views that defend the claim that we have free will but disagree on its nature or its conditions. The second category comprises a family of skeptical views that doubt or deny human free will. The main dividing line between the two pro–free will positions, libertarianism and compatibilism, is best understood in terms of the traditional problem of free will and determinism. Determinism, as it is commonly understood, is the thesis that every event or action, including human action, is the inevitable result of antecedent circumstances in accordance with the laws of nature. The traditional problem of free will and determinism therefore comes in trying to reconcile our intuitive sense
This section includes some passages from Caruso ().
Free Will Skepticism in Law and Society: An Overview
of free will with the idea that our choices and actions may be causally determined by factors over which we have no ultimate control; that is, the past before we were born and the laws of nature. Libertarians and compatibilists react to this problem in different ways. Libertarians acknowledge that, if determinism is true, and all of our actions were causally determined by antecedent circumstances, we would lack free will and moral responsibility. Yet they further maintain that at least some of our choices and actions must be free in the sense that they are not causally determined. Libertarians therefore reject determinism and defend an indeterminist conception of free will in order to save what they maintain are necessary conditions for free will – the ability to do otherwise in exactly the same set of conditions and/or the idea that we remain, in some important sense, the ultimate source/originator of action. Compatibilists, on the other hand, set out to defend a conception of free will that can be reconciled with determinism. They hold that what is of utmost importance is not the absence of causal determination, but that our actions are voluntary, free from constraint and compulsion, and caused in the appropriate way. Different compatibilist accounts spell out requirements for free will differently but widely endorsed views single out responsiveness to reasons or connection of action to what one would reflectively endorse. Free will skepticism stands in contrast to these pro–free will positions, and the skeptical view is the focus of this collection. In the past, the leading form of skepticism was hard determinism: the view that determinism is true, and determinism is incompatible with free will either because it precludes the ability to do otherwise (leeway incompatibilism) or because it is inconsistent with one’s being the ultimate source of action (source incompatibilism) – hence, no free will. For hard determinists, libertarian free will is an impossibility because human actions are part of a fully deterministic world and compatibilism is operating in bad faith. Hard determinism had its classic statement in the time when Newtonian physics reigned supreme and was thought to be deterministic. The development of quantum mechanics diminished confidence in determinism, for the reason that it has indeterministic interpretations. This is not to say that determinism has been refuted or falsified by modern physics, because a number of leading interpretations of quantum mechanics are consistent with determinism (Lewis ). It is also important to keep in mind that even if we allow some indeterminacy to exist at the microlevel – the level studied by quantum mechanics – there would still likely remain determinism where it matters. As Ted Honderich argues: “At the
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ordinary level of choices and actions, and even ordinary electrochemical activity in our brains, causal laws govern what happens. It’s all cause and effect in what you might call real life” (Honderich : ; see also Honderich ). Nonetheless, most contemporary skeptics tend to defend positions that are best seen as distinct from, but successors to, traditional hard determinism. In recent years, for instance, several philosophers have defended free will skepticism on grounds that are agnostic about determinism; e.g., Galen Strawson (), Richard Double (), Saul Smilansky (), Derk Pereboom (, ), Neil Levy (), Bruce Waller (), and Gregg Caruso (). Most maintain that, while determinism is incompatible with free will and moral responsibility, so too is indeterminism, especially if it is limited to the sort posited by certain interpretations of quantum mechanics (Pereboom , ; Caruso ). Others argue that, regardless of the causal structure of the universe, we lack free will and moral responsibility because free will is incompatible with the pervasiveness of luck (Levy ; Caruso a). Others argue that free will and ultimate moral responsibility are incoherent concepts, since to be free in the sense required for ultimate moral responsibly we would have to be causa sui (or cause of oneself ) and this is impossible (Strawson , ). Here, for example, is Nietzsche on the causa sui:
Cf. Balaguer (). But even if some brain processes are indeterministic, it isn’t clear how that would give us free will. Although free will arguably requires indeterminacy, it also requires significant control in action, and Balaguer’s view has been criticized for its inability to supply that control (see, e.g., Pereboom ). We’ve included Bruce Waller and Saul Smilansky on this list but it’s important to note how their views differ from most other skeptics. Waller is a moral responsibility skeptic who wishes to “destroy moral responsibility, drive a stake in its heart, and bury it at the crossroads” (Waller : viii), yet he also defends a restorative account of free will that is naturalistic, nonmiraculous, and freed from the burden of trying to justify moral responsibility (see Waller ). This view differs from the majority of skeptics who define free will in terms of basic desert moral responsibility and maintain that the two must stand or fall together (see, e.g., Pereboom , ; Levy ; Caruso ; Strawson , ; Morris ; Shaw , ch.; Focquaert , ch.; Caruso and Morris ; Focquaert, Glenn, and Raine ). Saul Smilansky’s () fundamental dualism, on the other hand, maintains a skepticism about our purportedly commonplace belief in libertarian free will but he also maintains that compatibilism retains some truth. As Smilansky describes: “I agree with hard determinists that the absence of libertarian free will is a grave matter, which ought radically to change our understanding of ourselves, of morality, and of justice. But I also agree with the compatibilists that it makes sense to speak about ideas such as moral responsibility and desert, even without libertarian free will (and without recourse to a reductionist transformation of these notions along consequentialist lines). In a nutshell, . . . ‘forms of life’ based on the compatibilist distinctions about control are possible and morally required, but are also superficial and deeply problematic in ethical and personal terms” (Smilansky : ; see also Chapter [this volume]).
Free Will Skepticism in Law and Society: An Overview
The causa sui is the best self-contradiction that has been conceived so far; it is a sort of rape and perversion of logic. But the extravagant pride of man has managed to entangle itself profoundly and frightfully with just this nonsense. The desire for “freedom of the will” in the superlative metaphysical sense, which still holds sway, unfortunately, in the minds of the half-educated; the desire to bear the entire and ultimate responsibility for one’s actions oneself, and to absolve God, the world, ancestors, chance, and society involves nothing less than to be precisely this causa sui and, with more than Baron Munchhausen’s audacity, to pull oneself up into existence by the hair, out of the swamps of nothingness. (Nietzsche /: –)
What all these skeptical arguments have in common, and what they share with classical hard determinism, is the belief that what we do and the way we are is ultimately the result of factors beyond our control, and because of this we are not morally responsible for our actions in the basic desert sense. This is not to say that there are no other conceptions of moral responsibility that can be reconciled with determinism, chance, or luck (see, e.g., Pereboom ; Caruso a). Nor is it to deny that there may be good pragmatic reasons to maintain certain systems of punishment and reward. Rather, it is to contend that to hold people morally responsible for their actions in the basic desert sense is fundamentally unfair and unjust because we lack the control in action that this requires. In addition to these philosophical arguments, there have also been recent developments in the behavioral, cognitive, and neurosciences that have caused some to take free will skepticism seriously – though there is much controversy regarding these scientific arguments (see Mele ; Nahmias , ; Levy ; Pereboom and Caruso ). Chief among these developments have been findings in neuroscience that appear to indicate that unconscious brain activity causally initiates action prior to the conscious awareness of the intention to act and recent findings in psychology and social psychology on automaticity, situationism, and the adaptive unconscious. Viewed collectively, these developments appear to indicate that much of what we do takes place at an automatic and unaware level and that our commonsense belief that we consciously initiate and control action may be mistaken. They also indicate that the causes that
See, for example, Libet et al. (); Libet (, ); Soon et al. (); Wegner (); Wegner and Wheatley (); Bargh (, ); Bargh and Chartrand (); Bargh and Ferguson (); Wilson (); Nisbett and Wilson (); Doris (). The literature on Social Intuitionism (e.g., Haidt ) is also sometimes cited in this regard; see Sie () for a brief discussion of its possible relevance.
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move us are often less transparent to ourselves than we might assume – diverging in many cases from the conscious reasons we provide to explain and/or justify our actions. These findings reveal that the higher mental processes that have traditionally served as quintessential examples of free will – such as goal pursuits, evaluation and judgment, reasoning and problem solving, interpersonal behavior, and action initiation and control – can and often do occur in the absence of conscious choice or guidance (Bargh and Ferguson : ). They also reveal just how wide open our internal psychological processes are to the influence of external stimuli and events in our immediate environment, without knowledge or awareness of such influence. For many, these findings represent a serious threat to our everyday folk understanding of ourselves as conscious, rational, responsible agents, since they indicate that the conscious mind exercises less control over our behavior than we have traditionally assumed. Even some compatibilists agree that, because of these behavioral, cognitive, and neuroscientific findings, “free will is at best an occasional phenomenon” (Baumeister : ). This is an important concession because it acknowledges that the threat of shrinking agency, as Thomas Nadelhoffer () calls it, is a serious one independent of any traditional concerns over determinism. That is, even if one believes free will and causal determinism can be reconciled, the deflationary view of consciousness that emerges from these empirical findings must still be confronted, including the fact that we often lack transparent awareness of our true motivational states. Such a deflationary view of consciousness is potentially agency undermining (see, e.g., Davies ; Sie and Wouters ; Nadelhoffer ; Caruso , , d; King and Carruthers ; Levy ) and must be dealt with independent of, and in addition to, the traditional compatibilist/incompatibilist debate. In addition to these specific concerns over conscious volition and the threat of shrinking agency, there is also the more general insight, more threatening to agent-causal libertarianism than compatibilism, that, as the brain sciences progress and we better understand the mechanisms that undergird human behavior, the more it becomes obvious that we lack what Tom Clark () calls “soul control.” There is no longer any reason to believe in a nonphysical self that controls action and is liberated from the deterministic laws of nature; a little uncaused causer capable of exercising countercausal free will. While most naturalistically inclined philosophers, including most compatibilists, have long given up on the idea of soul control, eliminating such thinking from our folk psychological attitudes may not be so easy and may come at a cost for some. There is some
Free Will Skepticism in Law and Society: An Overview
evidence, for example, that we are “natural-born” dualists (Bloom ) and that, at least in the United States, a majority of adults continue to believe in a nonphysical soul that governs behavior (Nadelhoffer ). To whatever extent, then, such dualistic thinking is present in our folk psychological attitudes about free will and moral responsibility, it is likely to come under pressure and require some revision as the brain sciences advance and this information reaches the general public. What, then, would be the consequence of accepting free will skepticism? What if we came to disbelieve in free will and basic desert moral responsibility? What would this mean for our interpersonal relationships, society, morality, meaning, and the law? What would it do to our standing as human beings? Would it cause nihilism and despair as some maintain? Or perhaps increase antisocial behavior as some recent studies have suggested (Vohs and Schooler ; Baumeister, Masicampo, and DeWall ; cf. Caruso, Chapter in this volume)? Or would it rather have a humanizing effect on our practices and policies, freeing us from the negative effects of free will belief? These questions are of profound pragmatic importance and are of interest independent of the metaphysical debate over free will. As public proclamations of skepticism continue to rise, and as the mass media continue to run headlines announcing: “Free will is an illusion” and “Scientists say free will probably doesn’t exist,” we need to ask what effects this will have on the general public and what the responsibility is of professionals. In recent years a small industry has actually grown up around precisely these questions. In the skeptical community a number of different positions have been developed and advanced, including Saul Smilansky’s illusionism (), Thomas Nadelhoffer’s disillusionism (), and the optimistic skepticism of Derk Pereboom (, a,b, ), Bruce Waller (), and Gregg D. Caruso (, , b; Pereboom and Caruso ). Saul Smilansky, for example, maintains that our commonplace beliefs in libertarian free will and desert entailing ultimate moral responsibility are illusions, but he also maintains that if people were to accept this truth there would be wide-reaching negative intrapersonal and interpersonal consequences. According to Smilansky, “Most people not only believe in actual
Predicting what revisions will be made is difficult. It’s possible that relinquishing the folk psychological idea of “soul control” will cause some to accept free will skepticism. But it’s also possible that some might adopt a free-will-either-way strategy, causing them to accept compatibilism on pragmatic grounds, fearing the alternative. The Chronicle Review (March , ) and Scientific American (April , ) respectively.
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possibilities and the ability to transcend circumstances, but have distinct and strong beliefs that libertarian free will is a condition for moral responsibility, which is in turn a condition for just reward and punishment” (Smilansky : –). It would be devastating, he warns, if we were to destroy such beliefs: “[T]he difficulties caused by the absence of ultimate-level grounding are likely to be great, generating acute psychological discomfort for many people and threatening morality—if, that is, we do not have illusion at our disposal” (Smilansky : ). To avoid any deleterious social and personal consequences, then, and to prevent the unraveling of our moral fabric, Smilansky recommends free will illusionism. According to illusionism, people should be allowed their positive illusion of libertarian free will and with it ultimate moral responsibility; we should not take these away from people, and those of us who have already been disenchanted ought to simply keep the truth to ourselves. In direct contrast to Smilansky’s illusionism, Thomas Nadelhoffer defends free will disillusionism: “[T]he view that to the extent that folk intuitions and beliefs about the nature of human cognition and moral responsibility are mistaken, philosophers and psychologists ought to do their part to educate the public – especially when their mistaken beliefs arguably fuel a number of unhealthy emotions and attitudes such as revenge, hatred, intolerance, lack of empathy, etc.” (Nadelhoffer : ). According to Nadelhoffer, “humanity must get beyond this maladaptive suit of emotions if we are to survive.” And he adds, “To the extent that future developments in the sciences of the mind can bring us one step closer to that goal—by giving us a newfound appreciation for the limits of human cognition and agency—I welcome them with open arms” (Nadelhoffer : ). A policy of disillusionism is also present in the optimistic skepticisms of Derk Pereboom, Bruce Waller, and Gregg Caruso. Derk Pereboom, for example, has defended the view that morality, meaning, and value remain intact even if we are not morally responsible in the basic desert sense, and furthermore, that adopting this perspective could provide significant benefits for our lives. In Living Without Free Will () and again in Free Will, Agency, and Meaning in Life (), Pereboom argues that life without free will and basic desert moral responsibility would not be as destructive as many people believe. Prospects of finding meaning in life or of sustaining good interpersonal relationships, for example, would not be threatened. And although retributivism and severe punishment, such as the death penalty, would be ruled out, preventive detention and rehabilitation programs would be justified (Pereboom , a, ). He also
Free Will Skepticism in Law and Society: An Overview
contends that relinquishing our belief in free will might well improve our well-being and our relationships to others since it would tend to eradicate an often destructive form of moral anger. Bruce Waller has also made a strong case for the benefits of a world without moral responsibility (see Waller , , a, b. He cites, for example, many instances in which moral responsibility practices are counterproductive from a practical and humanitarian standpoint – notably in how they stifle personal development, encourage punitive excess in criminal justice, and perpetuate social and economic inequalities. Waller suggests that, if we abandon moral responsibility, “we can look more clearly at the causes and more deeply into the systems that shape individuals and their behavior” (Waller : ), and this will allow us to adopt more humane and effective interpersonal attitudes and approaches to education, criminal justice, and social policy. He maintains that, in the absence of moral responsibility, “it is possible to look more deeply at the influences of social systems and situations” (Waller : ), to minimize the patent unfairness that luck deals out in life, and to “move beyond [the harmful effects of] blame and shame” (Waller : ). Who, then, is correct? What would the consequences of embracing free will skepticism be for society? And what about the criminal law? Would it need to be abandoned or drastically revised? These are just some of the questions this collection promises to explore.
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Free Will and the Criminal Law
One impact the free will debate has already had on criminal law theory is in relation to the causal theory of excuses. “Excuse” in this context is used in a broad sense to refer to situations where an agent is considered not to be blameworthy even though the behavior was prohibited and was not justified. In the literature on causal theory the term excuse is used to cover certain defenses that some writers do not regard as true excuses, including defenses that involve denying that the accused had mens rea or that her behavior constituted an action, or that the accused possessed the general capacities necessary to qualify as a moral agent (e.g., Moore ). According to causal theory, the criminal law presumes that agents generally have libertarian free will. But the law recognizes that, on some occasions,
The following writers endorse this view. On English law, see Ashworth stating that “there are a few defences in which elements of determinism play a significant role (involuntariness, duress, perhaps insanity)” (Ashworth : ). On North American law, see e.g., Kaye () and Morris ().
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factors outside the agents’ control are either causally sufficient to produce the agents’ behavior or exert such a heavy causal influence on their conduct that they are not blameworthy for that conduct. Examples often cited by the causal theorist include reflex actions and coercion. On such occasions, the causal theory contends that the law should not hold the agent criminally responsible and the accused does not deserve punishment. The opponents of causal theory – compatibilists about criminal law – vary in their positive accounts of criminal responsibility and excuse, but they all agree that causal determinism has nothing to do with liability to retributive punishment (see, e.g., Moore ; Vuoso ; Pillsbury ; Morse ; Horder ; Litton ). “Choice” theorists, for instance, argue that people are responsible for their choices even if those choices were the inevitable product of factors beyond their control (Moore ). Behavior is excused if it is not the result of an agent’s choice, or if the agent was not sane, or not mature enough to be blamed for the choice; or if the agent made the choice for acceptable reasons, e.g. to avoid a “substantial evil.” “Character” theorists claim that people are only responsible for actions that reflect their (predetermined) characters. On one version of this theory, actions do not reflect the agents’ character if they spring from a desire that the agents do not accept in the light of their value systems (Tadros ). According to some character theorists, agents may be excused if their actions do reflect their characters, but do not show their characters to have unacceptable flaws (Horder ). “Attitude” theorists claim that people are punished for actions that reflect certain attitudes of hostility or disrespect, regardless of whether the persons were predetermined by factors outside their control to have those attitudes. On this theory, people may be excused if their conduct does not in fact express an unacceptable attitude (because, for instance, it was involuntary) or if they are not the kind of agents from whom the criminal law demands an attitude of respect, e.g. an individual incapable of practical reasoning (Western ; see also Strawson ). On Scots law, see Gordon stating that, “Voluntary human actions are . . . regarded as themselves uncaused. This is a necessary inference from the doctrine of freewill; and without some form of that doctrine, however restricted, there can be no moral responsibility in the sense of praise or blame” (Gordon : –). He cites coerced and reflex “acts” as instances where behavior is regarded as a mere effect of prior causes and where the actor is not held legally responsible. However, in an earlier passage he argues that practices of praise, blame, reward, and punishment can still be justified even if determinism is true, since such practices can still be an effective means of improving behavior (Gordon : –). Perhaps the best way of reconciling the two passages is to interpret Gordon as arguing that without free will there can be no moral responsibility in the sense of praise and blame without pragmatic justification. On Australian law, see Hodgson ().
Free Will Skepticism in Law and Society: An Overview
While free will is relevant to the causal theory since, for instance, it maintains that the culpability of agents is mitigated by circumstances that constrain free will, the relevance of the free will debate to the criminal law goes much deeper than this. This is because the criminal law is founded on the idea that most normal, rational persons can be held morally responsible for their actions since they have freely chosen them – if this is mistaken, the entire foundation of the criminal law is defective. The US Supreme Court, for instance, has asserted: A “universal and persistent” foundation stone in our system of law, and particularly in our approach to punishment, sentencing, and incarceration, is the “belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”
Indeed, US courts have observed that, “[t]he whole presupposition of the criminal law is that most people, most of the time, have free will within broad limits.” Moreover, “the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems.” The US Supreme Court, in fact, has gone so far as to suggest that “a deterministic view of human conduct . . . is inconsistent with the underlying precepts of our criminal justice system.” While this last claim is controversial, since some legal scholars claim that the criminal law only requires compatibilist free will, one thing is clear: if free will skepticism is correct and agents are never morally responsible in the basic desert sense, the current American conception of the criminal law will need to be revised. Legal punishment consists in the state deliberately harming an individual in a way that is intended to constitute a fitting response to some offense and to give expression to the state’s disapproval of that offense (Boonin ; Zimmerman ). One prominent justification for legal punishment is retributivism. The retributivist justification for punishment maintains that punishment of wrongdoers is justified for the reason that they deserve pain, deprivation, or death just because they have knowingly done wrong; it is the basic desert attached to criminals’ immoral actions alone
United States v. Grayson, U.S. at (), quoting Morissette v. United States, U.S. , (). Smith v. Amontrout, F.d , (th Cir. ). Steward Machine Co. v. Davis, U.S. . (). United States v. Grayson, U.S. at (). See also Bethea v. United States, A.d , n. (D.C. ), which asserts: “the notion that a person’s conduct is a simple function of extrinsic forces and circumstances over which he has no control is an unacceptable contradiction of the concept of free will, which is the sin qua non of our criminal justice system.”
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that provides the justification for harming them in such ways. This means that the retributivist justification for punishment does not appeal to goods such as the safety of society or the moral improvement of those being punished. In the United States, a number of sentencing guidelines have adopted desert as their distributive principle, and it is increasingly given deference in the Purposes section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty” (Robinson : –). Legislation in England and Wales and draft sentencing guidelines in Scotland also list punishment as the first aim in a list of the purposes of criminal sentencing. Since the other purposes that appear in the list are forward-looking goals that punishment might seek to achieve (e.g. crime reduction), commentators have observed that singling out punishment as a separate aim of sentencing seems to appeal to the retributive idea that punishment can be an end in itself. It has also been suggested that placing punishment first in the list implies that it is the most important aim, even though the legislation and draft guidelines do not explicitly say that. Consider, for instance, the American Law Institute’s recent revision of the Purposes section of the Model Penal Code. The Model Penal Code is one of the most important developments in American law, and perhaps the
E.g., Pa. Code Sect. . (); see also (Tonry ). E.g., Cal. Penal Code Sect. (a)() (West ): “The legislature finds and declares that the purpose of imprisonment for crime is punishment.” E.g., Model Penal Code Sect. .() (Official Draft ). American Law Institute, Model Penal Code Sect. .() adopted May , . See, for example, the US cases Spaziano v. Florida, U.S. , (); Gregg v. Georgia, U.S. , - (); Cotton (). Spaziano v. Florida, U.S. at . Criminal Justice Act , s, (a); Scottish Sentencing Council (), Principles and Purposes of Sentencing. Draft Sentencing Guidelines, (i): www.scottishsentencingcouncil.org .uk/consultations/principles-and-purposes-of-sentencing/. Dingwall (). Dingwall (); see also Scottish Sentencing Council (: ), Principles and Purposes of Sentencing, Consultation Analysis: www.scottishsentencingcouncil.org.uk/consultations/ principles-and-purposes-of-sentencing/.
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most important influence on American criminal law. Conceived as a way to standardize and organize the often-fragmentary criminal codes enacted by the states, the Model Penal Code has influenced a large majority of states to change their laws. While the Model Penal Code is not law and has no binding effect, it has been the model for many states’ criminal codes and has been extremely influential on state and local lawmakers. The new Purposes provision of the Model Penal Code (revised in May ) now states: § .(). Purposes; Principles of Construction () The general purposes of the provisions on sentencing, applicable to all official actors in the sentencing system, are: (a) in decisions affecting the sentencing of individual offenders: (i) to render sentences in all cases within a range of severity proportionate to the gravity of offenses, the harms done to crime victims, and the blameworthiness of offenders; (ii) when reasonably feasible, to achieve offender rehabilitation, general deterrence, incapacitation of dangerous offenders, restoration of crime victims, preservation of families, and reintegration of offenders into the law-abiding community, provided these goals are pursued within the boundaries of proportionality in subsection (a)(i); (iii) to render sentences no more severe than necessary to achieve the applicable purposes in subsections (a)(i) and (a)(ii) . . .
It is the inclusion of ()(a)(i) that colors the entire Model Penal Code and sets retributivism as the official dominant principle for sentencing. While ()(a)(ii) and ()(a)(iii) are not retributive in nature, they are secondary to the subsection setting the “blameworthiness of offenders” as the primary justification for criminal sentencing. Note, first, that retributivism is to guide sentencing “in all cases,” while rehabilitation, deterrence, incapacitation, and restorative justice are only to be pursued “when reasonably feasible.” Second, the provision clearly states that ()(a)(i) trumps ()(a)(ii) in that the forward-looking, nonretributive approaches cited in (a)(ii) are only to be pursued “within the boundaries of proportionality in subsection (a)(i).” This amounts to saying that limits to punishment grounded in retributivism cannot legitimately be overridden for forward-looking reasons. The revised Purposes section rests upon the theory of limited retributivism, setting a maximum and minimum for all sentencing based upon deontological and retributive principles, and allowing for forwardlooking, nonretributive options only “when reasonably feasible” and
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“within the boundaries of proportionality.” This conflicts with skepticism about free will for at least two reasons. First, if free will skeptics are correct, retributive legal punishment is unjustified since, if agents do not deserve blame just because they have knowingly done wrong, neither do they deserve punishment just because they have knowingly done wrong (Pereboom : ). This would remain true whether or not the criminal law assumes libertarian free will, since free will skepticism also denies that compatibilism preserves the kind of free will and moral responsibility needed to justify retributive legal punishment. Thus, upper and lower bounds on punishment cannot be grounded in retributivist theory. Commenting on the significance of what free will and moral responsibility skepticism entails, Neil Levy writes: Traditionally, incarceration is seen as justified, in part, by the desert of offenders: because they are guilty—morally, and not merely legally, guilty— we can impose significant sanctions on them; the more weighty the sanctions, the more such a justification is required. . .But if moral responsibility skeptics are right, agents are never deserving of the imposition of such sanctions. Thus moral responsibility skepticism has practical implications: it apparently entails that major elements of the criminal justice system are unjustified. (Levy : )
By setting desert as the official dominant principle for sentencing, the Model Penal Code, as well as numerous sentencing guidelines in the United States, England, Scotland, and elsewhere, has assumed that “most people, most of the time, have free will within broad limits.” If the proponents of free will skepticism are correct, this assumption is mistaken. Furthermore, even if one is not convinced by the arguments for free will skepticism, it remains unclear whether punishment can be justified on retributive grounds. This is because the burden of proof lies on those who want to inflict harm on others to provide good justification for such harm (Pereboom , ; Shaw ; Corrado ; Caruso c). This means that retributivists who want to justify legal punishment on the assumption that agents are free and morally responsible (and hence justly deserve to suffer for the wrongs they have done) must justify that assumption. And they must justify that assumption in a way that meets a high epistemic standard of proof since the harms caused in the case of legal punishment are often quite severe. It is not enough to simply point to the mere possibility that agents possess libertarian or compatibilist free will. Nor is it enough to say that the skeptical arguments against free will and basic desert moral responsibility fail to be conclusive. Rather, a positive and convincing case must be made that agents are in fact morally
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responsible in the basic desert sense, since it is the backward-looking desert of agents that retributivists take to justify the harm caused by legal punishment. If we accept, then, that we are justified in doubting or denying the existence of free will and basic desert moral responsibility, as skeptics contend, a major challenge remains: providing an ethically defensible and practically workable alternative to retributive legal punishment. It is exactly this challenge that several of the contributions to this volume attempt to tackle.
.
Overview of Chapters
The collection is divided into three main parts. Part I is concerned with the possibility and desirability of rejecting the notions of free will, basic desert moral responsibility, and retribution. Part II takes up the challenge just mentioned and asks: how can the use of state coercion be justified without retributivism? Part III discusses some of the needed changes to the criminal justice system if we adopted free will skepticism. Part I begins with Saul Smilansky’s (Chapter ) critique of the skeptics’ claim that relinquishing basic desert does not expose us to abuse of the sort referenced in traditional objections to utilitarianism, such as that it will justify punishment of the innocent. Smilansky offers seven reasons for doubting this claim – some philosophical, others more pragmatic. One of his central contentions is that free will skepticism (or free will denialism, as he prefers to call it) does not have the philosophical resources to effectively safeguard human rights and respect for persons in the context of punishment. We should be skeptical of the optimism of free will denialists concerning the stability of deontological constraints without free will and moral responsibility. Smilansky concludes that these considerations should lead us to adopt his fundamental dualism and illusionism. Contra Smilansky, Gregg D. Caruso argues in Chapter that we should instead be optimistic about the implications of free will skepticism. He considers the practical implications of free will skepticism and discusses recent empirical work that has just begun to investigate the matter. He argues that there are good philosophical and empirical reasons for thinking that belief in free will, rather than providing the pragmatic benefits many claim, actually has a dark side; i.e., it is too often used to justify punitive excess in criminal justice, to encourage treating people in severe and demeaning ways, and to excuse and perpetuate social and economic inequalities. The problem, he contends, is the belief in just deserts. After
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addressing recent empirical findings in social psychology that purport to show that diminishing one’s belief in free will increases antisocial behavior – findings he argues are overblown and questionable – he introduces contrary findings in moral and political psychology that reveal interesting and troubling correlations between people’s free will beliefs and their other moral, religious, and political beliefs. He concludes that we would be better off without the notions of free will and just deserts. In Chapter , Bruce Waller argues that the desire for retribution runs deep – its roots are in the same strike-back desire that motivates rats to attack each other when they are placed in a cage with an electrified grid and then shocked. Rats, however, “didn’t have anyone around to justify their strike-back behavior by constructing a system of moral responsibility and righteous retribution; unfortunately, humans do.” Waller notes that the primitive strike-back desire is philosophically packaged as righteous retribution, the essential basis of morality, justice, and human dignity, but this is because we are stuck within the retributive thought system. We need to move beyond the retributive system to something that works. And while we may need the strike-back retributive emotions, we also need ways of controlling and ultimately reducing them. When the strike-back feelings linger and fester, they not only block better ways of dealing with the problem of criminal behavior, they also exact an additional psychological toll on the crime victim. After examining some of the psychological and cultural factors that hold the retributive system in place – e.g., belief in a just world, belief in rugged individualism and self-making, and belief in moral responsibility – Waller argues that we need to drop the moral responsibility system altogether and move “beyond blame and shame.” The path beyond retributivism leads to the search for greater understanding of individual behavior and its causes. He concludes by examining what direction the criminal justice system might take in a world without moral responsibility. Part II of the collection begins with Derk Pereboom’s chapter on free will skepticism and criminal behavior. In it, he sets out the most recent version of his free will skeptical position on treatment of criminals, which combines detention for dangerous criminals by analogy with quarantine for carriers of dangerous diseases, justified on the basis of the self-defense right, the attendant special deterrent effect, and restricted general deterrence (Pereboom , , ). Saul Smilansky contends that Pereboom relinquishes a traditional safeguard against unjust treatment, the principle that only the guilty should be punished because only they basically deserve to be punished. Pereboom agrees that the safeguards his
Free Will Skepticism in Law and Society: An Overview
view provides are sufficiently robust, and are workable in societies generally committed to the well-being of its citizens. These safeguards include the fact that the right to self-defense, on which his quarantine analogy is founded, is not dependent on basic desert, while it permits harming in self-defense only those who are evidently an immediate threat. A further safeguard, the right to liberty, is also not dependent on basic desert. In addition, there is significant value to basing criminal law in views about human beings that can be defended, by contrast with concealing, for the sake of the public good, what one, after serious rational consideration, believes to be the truth. In Chapter , Benjamin Vilhauer develops a deontological social contract approach to punishment that draws on Kantian and Rawlsian notions of treating criminals as ends by respecting their rational consent to punishment. In developing his account, he responds to Saul Smilansky’s objection that free will deniers do not have the philosophical resources to effectively safeguard human rights and respect for persons in the context of punishment. Vilhauer agrees that utilitarian approaches to punishment are problematic for the reasons Smilansky states, but he disagrees with Smilansky that free will deniers are unable to offer a deontological justification for punishment that respects persons. Vilhauer’s deontological account draws on a broadly Rawlsian version of the Kantian idea of refraining from treating people as mere means to ends. He argues that a Rawlsian social contract theory that models rational consent is perfectly consistent with free will skepticism and is able to safeguard human rights and respect for persons – and this is because there is an important moral distinction between the action-based kind of desert typically at issue in the free will literature (which is inconsistent with free will skepticism) and personhoodbased desert (which is not). He concludes that free will deniers can justify punishment despite establishing deontological rights against the unfairness involved in maximally painful punishment, violations of due process, and framing. In Chapter , Kevin Murtagh defends the view that free will skeptics can endorse general deterrence as a justifiable aim of legal punishment. He does not claim that it is the justifiable aim, or the main aim, but rather that it is a justifiable aim among others. He takes as his target Derk Pereboom’s claim that general deterrence is not a justifiable aim of punishment since it suffers from the “use” objection, according to which general deterrence is wrong because it involves harming some, without their consent, in order to benefit others. Murtagh responds by arguing that the use objection myopically focuses on only one aspect of a system of general deterrent
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punishment, and that, when we take full account of the complexity of this sort of punishment within a reasonably just legal system, we can see that it need not involve an impermissible kind of use. He further argues that Pereboom’s positive account of how to respond to crime is insufficient for good social policy. He concludes by offering a sketch of an account that combines the measures that Pereboom advocates with others designed to promote general deterrence. Part III of the book, which focuses on changes to the criminal justice system, begins in with Michael L. Corrado’s chapter (Chapter ) on “criminal justice turned upside down.” He begins by noting that those who reject the notion of moral responsibility seem to fall into one or the other of two camps: those who prefer to abandon punishment in favor of preventive techniques – therapy and incapacitation – and those who seek to justify (nonretributive) punishment nevertheless. Corrado places his tent on the “fringes of this second camp.” This is because he thinks punishment is essentially retributive and cannot be justified, but that we must, if possible, avoid yielding to the preventive worldview. He argues that by borrowing from punishment its harsh methods we maintain the dignity of offenders when we subject them to these methods with the aim of leading them to abandon the defective motivational traits that resulted in the crimes. He calls his approach “correction” rather than “punishment,” because it lacks the retributive element that makes punishment punishment. Correction, for Corrado, is the application of harsh treatment to those who have committed crimes, but it cannot avail itself of the support of retribution, and therefore requires support of another kind. To that end, Corrado explores the theory proposed by J.G. Fichte, a theory of criminal justice without moral presuppositions, and tests the conclusions of that exploration against the problem presented by psychopaths in our society. In Chapter , John Callender examines three clinical cases so as to provide some real-life illustrations of severe offending and to promote discussion of the complex issues raised by the cases. These questions are: How well do legal definitions of insanity map on to the reality of mental illness? What would be a just outcome in these three cases? What does it mean to treat someone as a person rather than an object? Is it possible that treating people as responsible agents promotes injustice by ignoring the very real constraints faced by many people in conforming their behavior to the law? And does retributive punishment convert complex human tragedies into simple dichotomies of good and evil, guilty or innocent, sane or insane, and right or wrong? Through examining his three case studies, Callender
Free Will Skepticism in Law and Society: An Overview
argues that, while our retributive impulse may have served the purpose of regulating social behavior in our evolutionary past, it is one of a range of instinctive impulses that has outlived its usefulness. It is less easy to justify anger and revenge when we know that someone is laboring under severe disabilities in relation to the ability to do what is right. The first case, for example, provides an illustration of how many offenders are themselves victims of traumatization. The second case highlights how the concept of legal insanity is a construct that sometimes maps poorly on the reality of mental illness and the ways in which this can alter personality and behavior. In cases such as these, retributive punishment inflicts new harm on already damaged people. Finally, in the third case, we see how a therapeutic response aimed at reduction of future harm to the offender and to other people produced the most humane and effective outcome. In Chapter , Elizabeth Shaw examines the implications of free will skepticism for the process of establishing criminal liability in a trial. Currently, it is a general principle of UK and US law that before a person can be convicted of a crime the prosecution must prove three things. First, the accused must have performed the actus reus – the prohibited act. Second, the prosecution must prove mens rea – a mental state such as intention or recklessness. Third, the accused must lack a valid defense, such as self-defense. Shaw argues that these prerequisites for criminal liability should be retained and she offers a rationale for them that does not depend on the concepts of free will and retribution – one that appeals to considerations such as the value of liberty and moral communication. She concludes that, even if the notions of free will and retributive responsibility were abandoned, the mens rea and actus reus requirements and various defenses could still be retained. However, some of these legal rules, as well as the rationale behind them, would need to be revised. The collection concludes with Farah Focquaert’s chapter (Chapter ) on free will skepticism and criminal punishment. If, as she contends, it is extremely unlikely that we possess the kind of free will that legitimates desert-based punishment, then the rationally defensible route is to adopt a cautionary perspective that draws on non-desert-based criminal justice procedures that are fair and just to all parties involved. She proceeds to analyze the options available, which include the following: () we can acknowledge that we do not have a justification for desert-based moral responsibility but choose to disregard this knowledge at both trial (determining guilt versus nonguilt) and sentencing (punishment) phases; () we can acknowledge this and disregard it at trial but not sentencing phase; () we can acknowledge this and take it into account during both the trial and
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sentencing phase. Taking these options into account, she presents a nonexhaustive list of potential models to effectively address criminal behavior and critically assesses the most striking difficulties each of these models faces. She concludes that innovative criminal justice systems need, at the very least, to continue to identify causal responsibility, promote taking responsibility for one’s future behavior, and thoroughly respond to victims’ rights and needs. The attribution of moral guilt and the implementation of desert-based punishment face numerous objections. We need to start a debate on the desirability of a criminal justice model that focuses on causal responsibility and taking responsibility; a model, she contends, that aims to achieve victim recovery, restitution, and restoration by implementing forward-looking justice mechanisms. R E F E R EN C E S Ashworth, A. (). Justifying the grounds of mitigation. Criminal Justice Ethics, (), . Balaguer, M. (). Free Will as an Open Scientific Problem. Boston: MIT Press. Bargh, J. A. (). The automaticity of everyday life. In R. S. Wyer, Jr., ed., The Automaticity of Everyday Life: Advances in Social Cognition, Vol.. Mahwah, NJ: Erlbaum, pp. –. (). Free will is un-natural. In J. Baer, J. C. Kaufman, and R. F. Baumeister, eds., Are We Free? Psychology and Free Will. New York: Oxford University Press, pp. –. Bargh, J. A., and T. L. Chartrand. (). The unbearable automaticity of being. American Psychologist, (), –. Bargh, J. A., and M. J. Ferguson. (). Beyond behaviorism: On the automaticity of higher mental processes. Psychological Bulletin, (), –. Baumeister, R. F. (). Free will in scientific psychology. Perspectives of Psychological Science, (), –. Baumeister, R. F., E. J. Masicampo, and C. N. DeWall. (). Prosocial benefits of feeling free: Disbelief in free will increases aggression and reduces helpfulness. Personality and Social Psychology Bulletin, (), –. Bloom, P. (). Descartes’ Baby. New York: Basic Books. Boonin, D. (). The Problem of Punishment. New York: Cambridge University Press. Caruso, G. D. (). Free Will and Consciousness: A Determinist Account of the Illusion of Free Will. Lanham, MD: Lexington Books. Caruso, G. D. (). Introduction: Exploring the illusion of free will and moral responsibility. In G. D. Caruso, ed., Exploring the Illusion of Free Will and Moral Responsibility. Lanham, MD: Lexington Books, pp. –. (). If consciousness is necessary for free will, then people are less responsible than we think. Journal of Consciousness Studies, (–), –.
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On the Practical Implications of Free Will Skepticism Optimism vs. Pessimism
Free Will Denial and Deontological Constraints Saul Smilansky
In those days, they shall say no more, The fathers have eaten sour grapes, and the children’s teeth are set on edge. But every one shall die for his own iniquity.
(Jeremiah : –)
[I]t better that ten guilty persons escape, than that one innocent party suffer. (William Blackstone, Commentaries on the Laws of England)
Until quite recently, free will denialism (henceforth FWD) was very much a minority position, and quite marginalized within the philosophical free will debate; it was practically nonexistent in the public eye. This has changed radically in recent years. Free will denialists have become much more numerous, active, and important philosophically, and views espoused by philosophers and (more influentially) scientists, claiming that there is no free will, regularly appear in the media. Nearly all contemporary free will denialists have been optimistic with respect to the effects of the rejection of free will and moral responsibility. This optimism also seems to be part of the reason for the growing influence of the view, as denialists claim that getting rid of the old free will–related positions is not only philosophically required but will make the world better. On the assumption that we do not have robust libertarian free will, it had once seemed that compatibilism is the only viable alternative, for we could not live without the free will–related beliefs, reactions, and practices. This is what
By “free will denialism” I refer to the position that denies free will and moral responsibility, rejecting both libertarian and compatibilist ideas. Some use the terms hard determinism, hard incompatibilism, or free will skepticism for the view. I assume in this chapter that libertarian free will (LFW) does not exist, either because determinism is true, or because the sort of indeterminism that is true cannot generate LFW, or because, independently of determinism or indeterminism, the very notion of LFW is incoherent. I refer to “robust” LFW to exclude views such as those of Kane (), which famously lack the control element, and hence cannot give us much beyond what compatibilism can provide.
denialists deny, claiming that not only will the rejection of the belief in free will and moral responsibility not make matters dreadful but that we are indeed better off without them. The debate here is complex and multifaceted. I will address that part of the debate that concerns “retributive” criminal justice and punishment, and even within that limited concern much can be said. I focus here on one comforting claim of the denialists: the claim that, even if we give up belief in free will and moral responsibility in the context of punishment, we need not fear abuse of the sort that featured in traditional charges against utilitarianism, such as that it will punish the innocent (see, e.g., McCloskey , ; Sprigge ; Smilansky ). I assume for the sake of this discussion that being in the same basket with the utilitarians would be bad, and explore how well FWD can avoid this fate. I raise seven reasons for doubt – some are more strictly philosophical, others more pragmatic. Together they present a strong case for doubting the optimism of FWD. The denialists claim that FWD has the philosophical resources to effectively safeguard human rights and respect for persons in the context of punishment, even without belief in free will, moral responsibility, and desert. Deontological limitations on maximizing utility and the like can continue to flourish, even without belief in free will and moral responsibility. The two most developed denialist attempts to defend deontological constraints concerning punishment in a free will–denying environment are made by Derk Pereboom (, , ; Pereboom and Caruso ) and Benjamin Vilhauer (). They acknowledge that free will–related safeguards currently play an important role but believe that the deontological constraints can be maintained even without the grounding of free will and moral responsibility–based desert. For Pereboom, what saves the denialists from sharing the counterintuitive territory of utilitarian-like consequentialists is the deontological constraint against using persons “merely as a means,” and this does not depend upon free will. The right to defend from dangerous criminals is a right of self-defense, and the state acting on our behalf has a right to isolate a dangerous criminal. “Suppose someone poses a danger by threatening to commit murder. Even if he is not in general a morally responsible agent in the basic desert sense, the state would nevertheless seem to have as
I have argued against FWD in the context of punishment in various ways: see Smilansky (: –), developed by Lemos (); Smilansky (a, , b).
Free Will Denial and Deontological Constraints
much right to isolate him as it does to quarantine a carrier of a deadly communicable disease who is not responsible in this sense for being a carrier” (Pereboom : ). But this, Pereboom says, would not open the door to consequentialist abuse: “The concern about using people merely as a means has force in this context, and this together with the weight of the general right to liberty should restrict general detention to especially dangerous cases” (Pereboom : ). Punishing the innocent would be excluded because, not being offenders, they pose no threat to us, and similarly excluded would be punishing offenders more than is strictly necessary for defending ourselves from them. Vilhauer holds that there are “personhood-based desert claims, that is, desert claims which depend not on facts about our actions, but instead on the more abstract and general fact that we are persons” (Vilhauer : –). His goal is to “model rational consent based on personhood but not action-based desert” (Vilhauer : ). The idea of contractual consent, in the familiar deontological-Kantian way, will thus be able to justify punishment, while at the same time provide a constraint on using some for the means of punishing others, in a way that should allay our worries about utilitarian-like abuse. The way to do so, Vilhauer suggests, is to follow Rawls: “we can use original position deliberation to develop a justification of punishment which has a ready reply to the mere means objection, but which can nonetheless be endorsed by free will skeptics” (Vilhauer : ). REASONS FOR DOUBT
. History and Moral Progress I will begin with two broad reflections. First, humanity’s moral-historical progress has been in considerable measure related to the rise of beliefs in the crucial ethical importance of free will and moral responsibility, in their centrality for autonomy and individual empowerment, and in the rejection of ideas of blame and punishment that are not related to individual choice and responsibility (as in collective punishment and punishment of the innocent). The biblical quote given earlier signals one of the hallmarks of this progress, the thought that being a member of a family or a group is not legitimate grounds for harm befalling one; that only freely doing wrong can be just grounds for being harmed. Hence one has a sphere of security as it were surrounding one, and (in a decent moral order) can be sure that one will not be judicially harmed unless, by wronging others, one freely
chose to put oneself in a situation where one deserves to be harmed. History shows that such progress is fragile and can be reversed (cf. Smilansky ; Sommers ). The call for efficiency often suffices to sidetrack justice and decency. If our focus shifts away from concern over freedom and responsibility, and we are no longer concerned with giving people what they deserve (and hence making a big effort, and taking risks, not to punish the undeserving), then the fundamental deontological intuitions and constraints are in fact likely to lose most of their attractiveness and influence.
. Into the Unknown Secondly, it needs to be recognized that the denialist project is very much at the edge of human experience. There is great variety in the ways in which responsibility is understood in different societies; many societies have not and do not require free agency in order to justify punishment, and are not too concerned about punishing the innocent. However, we have no experience of a society that does not believe in ideas of moral responsibility and as a rule does not hold its adult members responsible (see Sommers ). So grave doubt and worry about the viability of the denialist project are clearly in order. This does not mean that the denialists might not be proven right in the end, but their project is hugely revisionist. The further idea that, coupled with this radical and fundamental public revisionism, this wild leap into the dark abyss, we shall nevertheless have the familiar, Kantian-like, deontological constraints staying more or less the same, seems highly implausible even before we enter the philosophical and pragmatic complexities. Even within the free will debate, which is notably prone to optimism (see Smilansky ), this seems extremely Pollyannish.
.
What Matters
The idea of “deontological constraints” as pertinent to the issues of free will and punishment with which we are concerned needs some unpacking. Consider the following paradigmatic quote, from H.L.A. Hart: Justice simply consists of principles to be observed in adjusting the competing claims of human beings (i) which treat all alike as persons by attaching special significance to human voluntary action and (ii) forbid the use of one human being for the benefit of others except in return for his voluntary actions against them. (Hart : )
Free Will Denial and Deontological Constraints
The picture drawn here concerns a number of distinct elements: (a) Justice is a central concern. (b) “Treating as a person” is inherently connected to voluntary action. (c) “Using persons for the benefit of others” (e.g. in punishment) is forbidden unless those persons have voluntarily made themselves liable to being so used through their voluntary actions. The sense of “voluntary” pertinent here is surely broader than the mere distinction between the voluntary and involuntary, and is a moralized view related to some sense of free will (otherwise talking here about liability as a basis for the justice of treatment would not make sense). The problem, for FWD, is that on that view little of all of this can remain. Since according to FWD no one has free will and moral responsibility in a way that can make them deserving of punishment, justice forbids such punishment. Morally, in the deep sense, everyone is innocent, no one can make themselves liable to punishment in the way in which Hart postulated, hence no one can be justly punished. Harming others, and indeed any unequal treatment in such contexts, may be morally justified, but is unjust. It might be argued that if there is no free will in any sense, the very notion of action-based desert ceases to make sense, and with it any sense of fairness or injustice based on it, so the defender of FWD does not need to be concerned (Levy ; Pereboom : ). But this argument is unconvincing. Desert is a way of justifying divergence from a moral baseline. If desert becomes impossible, this does not mean that the moral baseline has somehow disappeared, and “anything goes” (cf. Smilansky a, b). If the moral baseline is that everyone ought to be treated as innocent unless proven guilty (through his or her free actions), then, if no one can become guilty, the moral baseline of innocence remains. Not to respect it would be unjust. It is thus a mistake to believe that since FWD rules out control-based desert, there is no justice (or injustice) in a world without free will and moral responsibility. Similarly, the idea of respect for persons here is control related, and not personhood related as for Vilhauer. And the concern with “being used merely as a means” or some similar formulation is also firmly embedded in control-related ideas. The poverty of FWD, the limited conceptual and ethical resources available to it, begins to emerge. The main point, for both Pereboom and Vilhauer, is not being used merely as a means, e.g. in being punished to deter others. Yet when detached from ideas of free will, moral responsibility, and desert, the ethical weight of this idea becomes much more questionable. The deep
aversion to the punishment of the innocent, one of the most fundamental moral intuitions (seen already from the biblical quote as well as the one from Blackstone, earlier), provides deep grounding for the idea of not using as a mere means, as we saw with Hart, because it points us in the direction of looking for permission to punish based upon the blameworthy exercise of free agency. Agency has inherent moral weight. Using an innocent person (rather than the guilty) merely as a means, through punishment, is reasonably seen as an abomination, when agency is the focus, and some are innocent and some are guilty. But if there is no free agency, then morally everyone is innocent. This means, again, that any punishment will be unjust in the most natural and intuitive sense. But if it is to go on anyway, for consequentialist (Pereboom) or contractual (Vilhauer) reasons, then – since everyone is (equally!) innocent anyway – perhaps the correct thing to do is to minimize the number of innocents that are harmed, rather than to be concerned so much with “using merely as a means” or the like? Once the sanctity of moral innocence is violated (because some are to be punished although everyone is morally innocent), the overwhelming concern with who is to be punished, rather than with how many unjust harms of the innocent (including victims of crime) are to occur, seems to lose much of its moral weight. Once the difference between offenders and nonoffenders is not held to be reflective of moral guilt and innocence, focusing on it loses much of its moral motivation. It can no longer serve as a formidable basis for a deontological constraint, as it can when we are concerned with agency-related fault and desert as giving permission for using as a means, or the absence of such permission.
. Forward, Ahoy! Under paradigmatic views, just punishment is a sanction limited to those who have freely transgressed in the past; those who deserve punishment for their past deeds. We may have other, forward-looking considerations as well when establishing and running a system of punishment, but the backwardlooking, desert focus is inherently deontological in nature; it comes together with its own built-in constraint. Vilhauer seeks to generate such pastfocusing constraints artificially, through a contractual agreement mechanism. As we shall see, there are reasons to doubt whether this project is philosophically plausible and pragmatically efficacious. But Pereboom is in an even weaker position, for his focus is forward looking. The idea is to replace the old, free will–based desert basis for punishment, the concern with justice, which is seen as antiquated and vindictive, with a results-based
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way to deal with crime. There is an inherent tension here, between the negative conclusion (no one can deserve punishment, everyone is innocent, any punishment would be unjust) and the forward-looking focus on getting along, deterring crime, making the world better. Desert is its own constraint, but forward-looking considerations are of their very nature open, contingent, variable. Using as a means is justified, for Pereboom, because of the right for self-defense, and is limited by this (so that one would focus on offenders and may not harm them more than is necessary for self-defense). But who proves to be a threat, directly and indirectly, how best to defend ourselves from threats, or how much in the way of threats and harms is required for effective self-defense cannot be predicted, or limited, in advance. Pereboom seeks to add the deontological-like concerns about “not using as a means” to the “consequences,” the forward-looking results that we are trying to improve. We saw previously that the intuitive weight of the first sort of considerations becomes much more questionable without the grounding in the inherent moral weight of agency (at least of a compatibilist variety), guilt, innocence, and (lack of ) desert. The present point is that in any case such considerations are much less stable and dependable once the underlying outlook is essentially forward looking.
. The Lessons of Distributive Justice Another reason for grave doubts concerns the comparison between the importance of retributive or punishment-related justice and social or distributive justice. It is undeniable that, within the distributive sphere, free will–based desert is taken much less seriously than in the criminal justice punishment sphere. There is a debate on the reasons for this striking difference (see, e.g., Scheffler , ; Moriarty , ; Smilansky ) and whether it is justified, but this need not concern us now. My present claim is that the denial of free will, moral responsibility, and desert will change matters considerably, so that the retributive sphere will begin to resemble the distributive sphere. Denialists who emphasize social justice (e.g. Caruso ; Waller ) are already merging the spheres. If we indeed give up desert, as the free will denialists propose, then we will also be giving up the desert-based attitudes and safeguards that today make us take injustice (understood in common sense terms) so much more seriously in the punishment sphere than we do in the distributive one. In other words, the denialists wish to eat the cake and have it. But that is impossible: eating away free will–based desert will eat away the main factor that keeps the
common safeguards in place, and the punishment sphere will begin to share the weaknesses, qua concern about justice and principled deontological concerns, currently prevalent in the distributive sphere. Distributive justice is not taken very seriously when confronted by pragmatic considerations. We do not need to look hard in order to find the weakness of considerations of justice (of the sort that concerns us) in the distributive sphere. The difficulty lies at the center of the distributive sphere. For example, all advanced societies seem ready to acquiesce in not pursuing what is considered just taxation, in cases where doing so will lead to a decrease in revenues or otherwise reduce the economic pie. Even more strikingly, a major direct determinant of differing life opportunities and conditions among people even in advanced societies is parental assistance, during the parents’ lives and through inheritance. Some fare much better than others because of the assistance they receive from their parents, but of course one is not responsible for having the parents one has, rather than a different set of parents. The concern with inequity that was already dominant with the ancient Israelis over two millennia ago, as can be seen in the biblical quote, is largely lacking, in the distributive sphere, even in our most progressive societies. Strikingly, it seems appropriate that a child’s well-being depends on her parents’ deeds in the distributive sphere, while this would be outrageous in the retributive one. The distributive sphere shows that justice can be compromised and neglected all too quickly: it is always tempting to give more weight to making things better, to managing things more efficiently. This as well helps us to see that eliminating free will–based support from the concern over punishment would be a dangerous thing.
. Philosophical Truth and Moral Pragmatics Like most ethical projects, the denialist project has two aspects. On the one hand, it speaks about what it takes to be the philosophical truth: what can be morally maintained, once we give up belief in free will, moral responsibility, desert, and the concomitant beliefs, reactions, and practices. A second aspect is pragmatic, and concerns questions such as whether the denialist project can be broadly accepted, whether doing so will have good effects, or (our specific concern) how likely it is that certain familiar deontological constraints will be maintained in a denialist environment. These two aspects are clearly distinct. This can be illustrated by going back to Vilhauer’s ideas. To reach the final destination and accept his overall position, one needs to agree at many stages of argumentation, and not exit his train of thought at
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numerous stations. I, for one, would be philosophically inclined to depart at every station, and resist every one of his philosophical moves. I think that contractualism has many weaknesses as a normative theory, and it seems to me particularly weak in contexts such as punishment. Moreover, it is not at all clear that Rawlsian contractualism is the most plausible example of the genre. And even if this be granted, I am not persuaded by Vilhauer’s deontological interpretation of the Rawlsian Veil of Ignorance, and am inclined to favor interpretations that give more weight to our knowledge of probabilities. Here, once Rawls’ own excessive risk-aversion bias is excluded, many have argued that the Rawlsian thought experiment would lead to utilitarian-like gambles backed by a safety net, rather than a deontological-like “veto power” for the worse off. Each of these issues can be and has been a basis for a lengthy philosophical debate. But my present point is that such a debate is, in one important way, beside the point. Our primary concern, after all, is with whether the world can in fact remain “safe for deontology,” even if there is widespread loss of belief in every sense of free will and moral responsibility. And here there seems to me to be overwhelming place for skepticism. As Vilhauer acknowledges, Rawls himself did not think that his ideas were the correct way to address issues of criminal (as compared to distributive) justice. And if any version of contractualism is to be widely accepted by the public, in the context of setting up a system of punishment – instead of the desertbased commonplace assumptions – it is more likely to be one where most people have a greater chance for safety. Alas, that would clearly favor, in most contexts, weakening the deontological constraints in return for a reduction in the probability of being victimized by criminals (see also the following section). So even if Vilhauer’s views would gain widespread philosophical support nearing a consensus (a highly unlikely prospect), they would still not be able to provide the sort of real-life security for the deontological concerns and constraints provided by our familiar ideas about the importance of desert and the sanctity of innocence.
. The Dangers of Statistics A central danger here is statistical (or probabilistic), and concerns the question of how fussy we are about “innocence.” Utilitarianism has traditionally come in for criticism along these lines of disrespecting innocence, as we have already noted. But most such criticism has focused on extreme examples such as scapegoating. As I showed long ago (Smilansky , : – with relevance to free will; cf. an excellent development of my
argument in criticism of the hard determinists quarantine model by Lemos ), the real danger here concerns a moderate lowering of standards for prosecution and conviction. On utilitarian grounds, it typically makes little sense to intentionally target an innocent person, and even less to devise a system for doing so. This is too risky, and likely to be counterproductive. But the risks we take of punishing the innocent versus letting criminals go, in standards of evidence for example, depend, for utilitarians or their kin, on the circumstances and potential risks and benefits. Our current practices put a premium on avoiding the risk of punishing the innocent, even when we are well aware that we thereby permit more criminals to continue to harm innocent victims. Obviously any system will need to create a balance here, but the point is that those concerned with maximizing expected utility rather than with desert are likely to put in place a system that will increase the risk of the punishment of the innocent, since innocence, as such, is of no ethical concern for the utilitarian. For denialists such as Pereboom, the moral-philosophical resources are much weaker than those of the free will rivals, and in exactly the places that matter. The pragmatic temptations to make the system of punishment efficient can be resisted much more forcefully if we take seriously the distinction between the morally guilty and the morally innocent. Since denialists reject free will, moral responsibility, and desert, and do not give them inherent moral weight, they are in a much weaker position to resist practices that are socially efficient but statistically increase the chances that the innocent (in the sense of nonoffenders) will be wrongly prosecuted or convicted. As we saw, Pereboom focuses on self-defense, but this very focus favors a largely consequentialist system that statistically weakens the safeguards against the punishment of the innocent. Once the deep ethical distinction between the innocent and guilty evaporates, the right to selfdefense Pereboom favors points us toward a system that will look more like that of the utilitarians, with an increased statistical risk of punishing nonoffenders, and the injunction against using as a means will be much less effective here. So it is not enough to say that we should not intentionally use people merely as a means. The question is whether we have resources to follow Blackstone and resist temptations to set up systems that, statistically and as a by-product, will punish people whom we, today, consider innocent. But, to repeat, if (following Pereboom) we punish for forward-looking consequentialist reasons not concerned with desert, and if everyone is, morally speaking, equally innocent, then the statistically dangerous (and deontologically odious) system becomes hard to resist. Pereboom’s hopes and good intentions are simply not supported by the
Free Will Denial and Deontological Constraints
resources of his view on free will and, once again, the loss involved in the rejection of free will and moral responsibility looms large.
. Conclusion The temptations of not taking agency and control seriously are always present. There are overwhelming indications of the prevalence of this temptation even in the sphere of punishment, both historically and interculturally. These desires often come from morally dubious sources, from power hunger or racism. But similar temptations often also come from a good place: the desire to improve social conditions; to “make the streets safe,” decrease fear, save on insurance and policing expenses, and the like. Against this great sea of temptations, sentiments, and interests, has stood – like the mythological Dutch boy with his finger in the dyke – a simple idea that is intimately related to belief in free will, moral responsibility, and desert. This is the idea that it is a gross injustice when the innocent are punished; indeed, that it is such an abomination that other concerns and interests, including the public good, need to be compromised. Free will– related belief in desert and its importance has played a central role in this belief and the associated sentiments. One of humanity’s great achievements has been the overcoming of these temptations; the civilized feel that the punishment of the innocent is anathema. Optimistic FWD wishes us to try and make do without this bulwark. Kantian-like constraints can be simply assumed, or reestablished through a Rawls-like contractualism. These are clearly “nonstandard” views (Smilansky a) in terms of the free will debate, yet they are claimed to yield the same conservative, safe deontological provisions of the paradigmatic free will and moral-responsibility position. But this, we have seen, is quite weak. We saw seven reasons for skepticism about optimistic FWD, concerning the stability of deontological constraints in a world without free will and moral responsibility. The effort to establish the deontological constraints has been a huge historical struggle, one of the greatest moral achievements of humankind, and it has been achieved through the emphasis on agency and individual fault. Moreover, we have no real idea how a society that does not hold its mature members responsible will look. Once we examine the nature of the relevant deontological constraints and the motivation behind them, they seem to be inherently attached to notions of free agency and (nonuniversal) innocence. The ideas denialists like Pereboom and Vilhauer are concerned with become undermotivated without the free will–related desert background.
Looking at distributive justice, where agency is not taken very seriously in many important contexts (e.g., inheritance dominates), gives us further reason to worry. There is a big question mark as to whether the arguments of FWD are philosophically compelling, e.g., whether Rawlsian contractualism as interpreted by Vilhauer is philosophically compelling. But once we see that FWD has a further mountain to climb, the pragmatic one, and the pragmatic weakness of what FWD has to offer, the optimism of this position about the consequences of adopting FWD becomes even less persuasive. Finally, these points are strengthened once we realize that a major challenge concerns a statistics-based lowering of standards, rather than scapegoating or similar worries. This makes it all the more difficult for FWD to safeguard the deontological constraints in a way that thick beliefs about guilt, innocence, and responsibility-based desert typically can. The “no need to worry” claims of the denialists, and in particular their trust in the possibility of actually maintaining deontological constraints without belief in free will, moral responsibility, and desert, appear as implausibly overoptimistic. What should we believe in and do instead? Our conclusions should lead to a reevaluation of the compatibilist interpretation of moral life as a richer, more plausible, and safer interpretation than monistic hard determinism or denialism. This needs to be combined with a partly denialist acknowledgment of the deep injustice and tragedy involved in grave punishment, in light of the absence of libertarian free will. Such a complex view, which I have defended before as fundamental dualism or compatibility dualism (see Smilansky : ch. ; , , b, ), aims to combine the limited but true insights of both hard determinism (or FWD) and compatibilism. Beyond that, I have argued (Smilansky : part II; , in press) for illusionism on free will. This is the idea – in striking contrast to the optimism of free will denialists – that we have to be greatly concerned about any prospect of a significant change of belief, toward denying ideas of free will, moral responsibility, and the concomitant beliefs, reactions, and practices. There is no robust libertarian free will, and compatibilism is only partly successful. Yet the continuation of widespread libertarian belief, and overconfidence about compatibilism where libertarian beliefs falter, seem to be, all considered, a good thing. FWD is in substantial measure mistaken and, in any case, dangerous.
I am grateful for the invitation to participate in the original conference and in this volume. I am very grateful to Gregg Caruso, Arnon Keren, Iddo Landau, Ariel Meirav, and Daniel Statman for helpful comments on drafts of my chapter.
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Free Will Skepticism and Its Implications: An Argument for Optimism Gregg D. Caruso
Free will skepticism maintains that what we do and the way we are is ultimately the result of factors beyond our control and because of this we are never morally responsible for our actions in the basic desert sense – the sense that would make us truly deserving of blame and praise, punishment and reward. In recent years, a number of contemporary philosophers have advanced and defended versions of free will skepticism or skepticism about moral responsibility, including Derk Pereboom (, ), Galen Strawson (/, ), Neil Levy (), Bruce Waller (, ), and myself (Caruso ). Critics, however, often complain that adopting the skeptical perspective would have dire consequences for our interpersonal relationships, society, morality, meaning, and the law. They fear, for instance, that relinquishing belief in free will and basic desert moral responsibility would leave us unable to adequately deal with criminal behavior, increase antisocial conduct, and undermine meaning in life. In response, free will skeptics argue that life without free will and basic desert moral responsibility would not be as destructive as many people believe. According to optimistic skeptics, prospects of finding meaning in life or of sustaining good interpersonal relationships, for instance, would not be threatened (see Pereboom , ; Waller ; Caruso b; Pereboom and Caruso ). And although retributivism and severe punishment, such as the death penalty, would be ruled out, incapacitation and rehabilitation programs would still be justified (see, e.g., Pereboom , ; Vilhauer , ; Levy ; Corrado ; Caruso , a, a; and Pereboom and Caruso ). Who then is correct? What would the actual consequences of embracing free will skepticism be? In this chapter I will argue that belief in free will and basic desert moral responsibility, rather than being a good thing, actually has a dark side and that we would be better off without it.
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My position is therefore one of optimistic skepticism and disillusionism. I maintain that belief in free will, rather than providing the pragmatic benefits many claim, is too often used to justify treating people in severe and demeaning ways. The problem, I maintain, is the belief that individuals justly deserve what they get. The idea of just deserts – which is central to the moral responsibility system (see Waller , ) – is a pernicious one. For one, it often encourages punitive excess in criminal justice, including extreme forms of retributive punishment such as the death penalty. It is also used to perpetuate social and economic inequalities. The simple fact is that what we do and the way we are is ultimately the result of factors beyond our control – whether those be determinism, chance, or luck (see Pereboom , ; Levy ; Caruso , , b). We are not, as the moral responsibility system would like us to believe, purely or ultimately self-made men and women. In the following, I will take free will to mean the control in action required for an agent to be morally responsible in the basic desert sense – the sense needed to justify certain kinds of desert-based judgments, attitudes, or treatments, such as resentment, indignation, moral anger, backward-looking blame, and retributive punishment (see Pereboom , ; Caruso and Morris ) – and I will focus on the putative pragmatic benefits of believing in free will and basic desert moral responsibility, rather than arguing for free will skepticism directly. This is because, regardless of the philosophical debate over free will, a profound pragmatic question remains: would the consequences of giving up the belief in free will cause nihilism and despair as some maintain, or would it rather have a humanizing effect on our practices and policies, freeing us from the negative effects of free will belief? If it turns out that belief in free will, rather than being a good thing, actually has a dark side, then this would help remove one of the major obstacles in the way of accepting free will skepticism – e.g., concerns over its negative consequences. It would also support disillusionism over illusionism as the proper course of action for free will skeptics. In Section ., I begin by discussing two common concerns people have with relinquishing the belief in free will and argue that both are unfounded. In Section ., I then make the case for the dark side of free
See the opening chapter of this volume for a comprehensive summary of optimistic skepticism and disillusionism and how they differ from, say, the illusionism of Saul Smilansky (, ). Other skeptics who are optimistic about the implications of life without free will and/or basic desert moral responsibility include Pereboom (, a, b, ), Waller (, , b), Levy (), and Milam (). For a defense of disillusionism, see Nadelhoffer ().
Skepticism and Its Implications: An Argument for Optimism
will by discussing recent findings in moral and political psychology that reveal interesting, and potentially troubling, correlations between people’s free will beliefs and their other moral, religious, and political beliefs. I conclude in section . by outlining my nonretributive alternative for addressing criminal behavior, the public health-quarantine model. My comments will be aimed at showing that, contra critics, we should be optimistic about the practical implications of adopting the skeptical perspective and abandoning belief in free will and basic desert moral responsibility.
. Addressing Pragmatic Concerns with Free Will Skepticism Let me begin with the concern that giving up free will belief will increase antisocial behavior. This concern has been fueled largely by two widely reported-on studies in social psychology (Vohs and Schooler ; Baumeister et al. ). Kathleen Vohs and Jonathan Schooler () found, for example, that participants who were exposed to anti–free will primes were more likely to cheat than participants exposed to pro–free will or neutral primes. In one study, they asked college students to solve math problems on a computer. The volunteers were told that, owing to a computer glitch, the answers would pop up on the screen after the problem if they did not hit the space bar. They were asked to do so but told that no one would know either way. In addition, some of the participants in the study were first asked to read passages by well-respected scientists to the effect that we do not have free will. In particular, they read one of two passages from The Astonishing Hypothesis, a book written by Francis Crick (), the Nobel Prize–winning scientist. The participants read statements claiming that rational, high-minded people – including most scientists, according to Crick – now recognize that free will is an illusion. Vohs and Schooler found that students exposed to the anti–free will primes were more likely to cheat than those in the control group. Additional findings by Baumeister et al. () found that participants who are exposed to anti–free will primes behave more aggressively than participants exposed to pro–free will or neutral primes.
These two studies are often cited as empirical support for the claim that stronger free will beliefs are negatively associated with increased antisocial behavior. Additional studies have purported to find that stronger free will beliefs are positively associated with helpfulness, gratitude, job performance, and making amends for one’s transgressions (see Baumeister et al. ; MacKenzie, Vohs, and Baumeister ; Stillman et al. ; Stillman and Baumeister ). I will focus here primarily on the former claim, but much of what I will argue also applies to these later studies.
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While these findings appear to support concerns over the antisocial consequences of relinquishing free will belief, I advise caution in drawing any universal or sweeping conclusions from them. There are powerful criticisms of the methodology of these studies, which place into doubt the supposed connection between disbelief in free will and any long-term increase in antisocial behavior. First of all, the passages used to prime disbelief in free will appear to be priming the wrong thing. Several critics have noted that instead of priming belief in hard determinism or hard incompatibilism (see Pereboom , ; Pereboom and Caruso ), the Crick excerpt subjects read is actually priming a scientific reductionist view of the mind, one that is proclaimed to demonstrate that free will is an illusion. Free will skepticism, however, need not entail such a reductionist view and the priming passages may be giving participants the mistaken impression that scientists have concluded that their beliefs, desires, and choice are causally inefficacious – a claim not embraced by most philosophical skeptics. Furthermore, subsequent studies have had a difficult time replicating these findings and they have been involved in the so-called replication scandal in social psychology (see Zwaan ; Carey and Roston ; Open Science Collaboration ). The New York Times, for example, ran a story focusing on the failure to replicate the findings of Vohs and Schooler since it was the most cited of the studies included the Reproducibility Project (Carey and Roston ; Open Science Collaboration ). And even before the Reproducibility Project was unable to replicate the findings, Rolf Zwaan () at the University of Rotterdam had similar difficulties. In the original Vohs and Schooler study, subjects in the anti–free will condition reported weaker free will beliefs than subjects in the control condition. In contrast, Zwaan found no differences between
This criticism has been made by Eddy Nahmias on the Garden of Forking Paths Blog (http://gfp .typepad.com/the_garden_of_forking_pat///on-the-benefits.html) and others. It’s important to be careful not to misrepresent or caricature the claims of the skeptic. Free will skeptics do not deny that we make choices or engage in acts of deliberation and reasoning. Rather, they hold that these acts themselves are the result of factors ultimately beyond the control of the agent (see, e.g., Pereboom , ). It’s important therefore that Vohs and Schooler prime the correct belief and not the mistaken impression that scientific findings have obviated the possibility of local control (Clark ). As Thomas Clark has noted, “if people come to believe they don’t have ultimate control, and if they have something like the authors’ (mis) conception of what not having it entails, then indeed they might become demoralized. This could explain the results of the study. But it’s important to see what’s demoralizing isn’t the empirically and logically well-supported conclusion that we don’t have contra-causal, libertarian free will, that we are not ultimately self-created, but the inference that if we are not free in this way then we aren’t causally efficacious agents” (Clark ).
Skepticism and Its Implications: An Argument for Optimism
the anti–free will condition and the control condition. He was also unable to replicate the effect on cheating – i.e., he found no difference in cheating behavior between the anti–free will condition and the control condition. One possible explanation is that the original experiment was done with only subjects, whereas Zwaan used subjects. Another possible explanation has to do with the nature of the anti–free will prime Vohs and Schooler used. Eddy Nahmias, in describing his difficulties in trying to replicate the findings, writes: “the effects don’t always replicate and they only seem to work with the over-the-top primes that suggest all kinds of threats to agency.” He goes on to say, “no one has shown that telling people they lack just what philosophical (not scientific!) skeptics say they lack and nothing more has any bad effects on behavior or sense of meaning.” Additional support for Nahmias’s claim can be found in studies conducted by Nadelhoffer and Wright () and Crone and Levy (). Crone and Levy (), for instance, conducted four studies originally concerned with identifying possible mediators and/or moderators of the reported positive association between free will beliefs and various desirable moral characteristics (e.g., greater helpfulness, less dishonesty). In their attempt to further study these correlations, however, they unexpectedly found no association between free will beliefs and moral behavior. They go on to conclude that there is currently no reason to think free will believers are nicer people or that diminishing free will beliefs will increase antisocial behavior. Nadelhoffer and Wright () point to additional problems with the kinds of vignette-based primes used in the literature on prosocial/ antisocial effects of belief in free will. In their studies, they used three different primes specially designed to manipulate people’s beliefs about free will. In each case, they found that the primes failed to move participant’s beliefs. They write: In this respect, our work should serve as a cautionary tale for philosophers, psychologists, and pundits who want to discuss the potential ramifications of the supposed death of free will. For while it’s certainly possible for people to change their minds about free will, it’s not clear that researchers have figured out effective, reliable, and stable methods for bringing these epistemic changes about (even temporarily). (Nadelhoffer and Wright : )
Eddy Nahmias made these comments on the blog Flickers of Freedom on //: http:// philosophycommons.typepad.com/flickers_of_freedom///free-will-skepticism-just-world-beliefand-punitiveness/comments/page//#comments.
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After their initial primes failed to have the effects they intended, they decided to try the prime used by Vohs and Schooler since, in their words, “As far as anti–free will primes go, this is bludgeon” (Nadelhoffer and Wright : ). Here people did show a decrease in free will beliefs, but (as pointed out earlier) the problem with this prime is that “[i]t not only challenges free will but it also challenges dualism, the soul, selfawareness, and even choice itself” (Nadelhoffer and Wright : ). Setting aside these replication and priming concerns for a moment, there is a third concern and it has to do with the relevance of these findings to disbelief in free will. Assuming for the moment that the findings are real and can be replicated, there are alternative explanations for the cheating behavior that have nothing to do with belief in free will, per se. It is equally plausible that the cheating behavior is being driven by the more general fact that participants are being told that one of their cherished beliefs has been shown to be an illusion by science. On this alternative, the cheating behavior would have less to do with disbelief in free will and more to do with ego depletion more generally. That is, perhaps people are simply more likely to cheat after reading passages from scientific authorities challenging (or even mocking) their cherished beliefs because it depletes their self-control, which in turn weakens the ability to trump the self-interested baseline desire to cheat. It would be rather easy, in fact, to test this alternative. One could, for example, challenge participants (say) pro-American beliefs by having them read extended quotes from a famous authority (say, Noam Chomsky) that challenge or mock the beliefs, then checking to see whether this increases their propensity to cheat. If it does, this would support the alternative explanation presented earlier since it would suggest that the results in the Vohs and Schooler studies are not being driven by anything unique about belief in free will. Until this alternative is tested and ruled out, Vohs and Schooler’s findings remain in doubt. Lastly, these antisocial consequences come immediately following the prime, are limited in scope, and appear only to be temporary. This is very important to keep in mind since, even if we were to set aside the previous two concerns, these studies establish, at best, that participants were temporarily morally compromised after being exposed to anti–free will primes. They say absolutely nothing about the long-term effects of free will skepticism. Once people properly understand what the denial of free will
I am grateful to Thomas Nadelhoffer and Eddy Nahmias for bring this objection to my attention on the now-defunct blog The Garden of Forking Paths (January and February ).
Skepticism and Its Implications: An Argument for Optimism
entails (and what it does not entail), and once they have sufficiently come to terms with it, there is no reason to think (at least not from these studies) that we would find an overall increase in antisocial behavior. An illustrative analogy here would be the unfounded concerns voiced in the past about disbelief in God. It was long argued (and, perhaps, is still argued in certain quarters of the United States) that if people were to come to disbelieve in God, the moral fiber of society would disintegrate and we would see a marked increase in antisocial behavior. The reality, however, has turned out to be quite the opposite. Several studies have shown, for example, that murder and violent crime rates are actually higher in highly religious countries than in more secular countries (Fox and Levin ; Fajnzylber et al. ; Paul ; Jensen ; Zuckerman ). Within the United States, we see the same pattern. Census data, for example, reveal that states with the highest murder rates tend to be the most religious. And these findings are not limited to murder rates, as rates of all violent crime tend to be higher in “religious” states (Ellison et al. ; Death Penalty Information Center ; Zuckerman ). And if one looks beyond crime statistics, one finds similar trends with divorce rates, domestic violence, and intolerance – e.g., studies reveal that atheists and agnostics have lower divorce rates than religious Americans (Barna Research Group Survey , ), conservative Christian women in Canada experienced higher rates of domestic violence than nonaffiliated women (Brinkerhoff et al. ), and nonbelievers are in general less prejudiced, anti-Semitic, racist, dogmatic, ethnocentric, closed-minded, and authoritarian (Altemeyer ; Zuckerman ). Given how wrong people were about the putative harms of disbelief in God, a healthy dose of skepticism would likewise be warranted here. Let me now turn to a second concern people have with free will skepticism. Many fear that, by rejecting retributivism and the concept of just deserts, we will lose the ability to protect human dignity and to ensure punishment is proportional. If we give up on retributive punishment entirely, critics question what reason do we have to see to it that punishment is proportional to the harm caused and the type of agent? The worry is that, without basic desert moral responsibility, there will be no limits on the harsh treatment meted out to criminals (and perhaps even innocent people). If especially cruel punishment works, then without the restraints imposed by considerations of just deserts there will be no limits on the harshness of punishment. It’s the constraint of just deserts, critics contend, that keeps punishment proportional and allows us to respect the
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dignity and worth of all persons – since it is often argued that even severe punishment, administered because one is a morally responsible autonomous person who justly deserves punishment due to his or her own choices, preserves one’s status as a person and a member of the human community of responsible agents (see, e.g., Morris ; Lewis ; Oldenquist ). While concerns over proportionality are important ones, the worry that relinquishing the concept of just deserts will lead to harsh and inhumane treatment of persons is overblown. Free will skeptics have two general ways of responding to this objection. The first is to develop an alternative to retributive punishment that is consistent with free will skepticism and capable of respecting human dignity. The second is to examine the question empirically and ask whether belief in just deserts and retributive justice ensures punishment is proportional any better than the alternatives. I will explore the first option in Section ., where I will argue that the public health-quarantine model is not only an ethically defensible and practically workable alternative to retributive punishment, it is more humane than retributivism and preferable to other nonretributive alternatives. For the moment, then, I will focus on the real-life effects of relinquishing belief in free will and basic desert moral responsibility. The empirical question, I maintain, is an important one, since, if critics are wrong about the protective power of basic desert moral responsibility and the constraints it places on proportional punishment, this concern too loses much of its force. Empirically speaking, then, does belief in just deserts and retributive justice ensure punishment is proportional? Bruce Waller has done an excellent job examining this question empirically and he sets up the cultural expectations as follows: Belief in individual moral responsibility is deep and broad in both the United States and England; in fact, the belief seems to be more deeply entrenched in those cultures than anywhere else—certainly deeper there than in Europe. That powerful belief in moral responsibility is not an isolated belief, existing independently of other cultural factors; rather, it is held in place—and in turn, helps anchor—a neo-liberal cultural system of beliefs and values. At the opposite end of the scale are social democratic corporatist cultures like Sweden that have taken significant steps beyond the narrow focus on individual moral responsibility. With that picture in view, consider the basic protections which philosophers have claimed that the moral responsibility system affords: first, protection against extreme punitive measures; second, protection of the dignity and rights of those who are held morally responsible and subject to punishment; and third, a special
Skepticism and Its Implications: An Argument for Optimism
protection of the innocent against unjust punishment. According to the claim that strong belief in individual moral responsibility protects against abuses, we would expect the United States and Great Britain (the neoliberal cultures with the strongest commitment to individual moral responsibility) to score best in providing such protections; and we would predict that Norway, Sweden, and Denmark (the social democratic corporatist cultures, with much more qualified belief in individual moral responsibility) would be the worst abusers. (Waller a: ; see also b)
When we actually make the comparison, however, we find the exact opposite. That is, in point of fact, the stronger the belief in moral responsibility (as in the United States) the harsher the punishment, the greater the skepticism of moral responsibility (as in Norway) the weaker the inclination toward punishment. One can see this by examining only a few key statistics. The United States makes up only % of the world’s population, yet houses % of the world’s prisoners – that’s one of the highest rates of incarceration known to mankind. The Unites States imprisons more than prisoners for every , of population. Compare that to the social democratic countries with a much weaker commitment to individual moral responsibility, such as Sweden and Finland, where the imprisonment rate hovers around per ,. In , nearly million US residents were incarcerated, on supervised parole, or on probation. Furthermore, the United States not only imprisons at a much higher rate, it also imprisons in notoriously harsh conditions. For example: In , the European Court of Human Rights refused to allow the extradition of six men charged in the U.S. with terrorism, on the grounds that their confinement in U.S. supermax prisons would constitute torture and violate basic human rights; along similar lines, Amnesty International () has concluded that conditions in Arizona’s maximum security prisons are a violation of international standards for humane treatment, while a recent study by the New York Bar Association () found that conditions in supermax prisons violated the U.S. Constitutional prohibition against cruel and unusual punishment and also violated international treaty regulations forbidding torture. (Waller a: )
American supermax prisons are often cruel places, using a number of harsh forms of punishment, including extended solitary confinement. Prisoners are isolated in windowless, soundproof cubicles for to hours each day, sometimes for decades. Under such conditions, prisoners experience severe suffering, often resulting in serious psychological problems. Supreme court Justice Anthony Kennedy, for instance, recently stated
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that, “solitary confinement literally drives men mad.” Looked at empirically, then, it’s nigh impossible to defend the claim that commitment to just deserts and retributivism ensures proportional and humane punishment. In fact, the opposite seems to be the case – the problem of disproportionate punishment seems to grow more out of a desire for retribution and the belief that people justly deserve what they get than from free will skepticism. I therefore concur with Waller when he concludes, “it is difficult to escape the conclusion that commitment to moral responsibility exacerbates rather than prevents excessively harsh punitive policies” (Waller a: ). Recent empirical work in social psychology further indicates that how we assign responsibility is correlated with prior judgments of what counts as being morally bad, which are in turn dependent upon other, larger, social and cultural factors. This is also problematic for those who claim that preserving belief in moral responsibility will keep punishment proportional in any objective sense. Take, for example, psychologist Mark Alicke’s culpable control model of blame. It proposes that our desire to blame someone intrudes on our assessments of that person’s ability to control his or her thoughts or behavior. As Valerie Hardcastle describes: Deciding that someone is responsible for an act, which is taken to be the conclusion of a judgment, is actually part of our psychological process of assessing blame. If we start with a spontaneous negative reaction, then that can lead to our hypothesizing that the source of the action is blameworthy as well as to an active desire to blame that source. This desire, in turn, skews our interpretations of the available evidence such that it supports our blame hypothesis. We highlight evidence that indicates negligence, recklessness, impure motives, or a faulty character, and we ignore evidence that suggests otherwise. In other words, instead of dispassionately judging whether someone is responsible, we validate our spontaneous reaction of blameworthiness. (Hardcastle : )
In fact, data suggest that we often exaggerate a person’s actual or potential control over an event to justify our blame judgment and we will even change the threshold of how much control is required for a blame judgment (Alicke et al. ; see also Neimeth and Sosis ; Efran ; Sosis ; Berg and Vidmar ; Lerner et al. ; Lerner and Miller ; Schlenker ; Snyder et al. ; Alicke , ; Lagnado and Channon ; Clark et al. ; Everett et al., ).
He made this statement before the House Appropriations Subcommittee on Financial Services and Federal Government, as reported on in the Huffington Post on //: www.huffington post.com////anthony-kennedy-solitary-confinement_n_.html.
Skepticism and Its Implications: An Argument for Optimism
A recent set of studies by Cory Clark and her colleagues (Shariff et al. ), for example, found that a key factor promoting belief in free will is a fundamental desire to blame and hold others morally responsible for their wrongful behaviors. Across five studies they found evidence that greater belief in free will is due to heightened punitive motivations. In one study, for instance, an ostensibly real classroom cheating incident led to increased free will beliefs, presumably due to heightened punitive motivations. In a second study, they found that the prevalence of immoral behavior, as measured by crime and homicide rates, predicted free will belief on a country level. These findings suggest that our desire to blame and hold others morally responsible comes first and drives our belief in free will, rather than the other way around. Other researchers have found that our judgment on whether an action was done on purpose or not is influenced by our moral evaluation of the outcome of certain actions – i.e., whether we morally like or dislike it (Nadelhoffer ). Additional findings have found an asymmetric understanding of the moral nature of our own actions and those of others, such that we judge our own actions and motivations as more moral than those of the average person (Epley and Dunning ). As Maureen Sie describes: In cases of other people acting in morally wrong ways we tend to explain those wrongdoings in terms of the agent’s lack of virtue or morally bad character traits. We focus on those elements that allow us to blame agents for their moral wrongdoings. On the other hand, in cases where we ourselves act in morally reprehensible ways we tend to focus on exceptional elements of our situation, emphasizing the lack of room to do otherwise. (Sie : )
These empirical findings help support the claim that our moral responsibility practices are often driven, possibly primarily driven, by our desire to blame, punish, and strike back at moral transgressors, rather than, and often in lieu of, our more rational and objective judgments about free will, control, and moral responsibility.
. Unjust Deserts: The Dark Side of Free Will Let me now turn to the other side of the coin and argue that disbelief in free will, rather than bringing about negative consequence, could actually bring about good, freeing us from a number of harmful tendencies, beliefs, and practices. While most of the empirical work done thus far has focused
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on the potential upside of believing in free will, there is now a growing body of evidence suggesting that disbelief in free will may have certain positive effects (see, e.g., Pizarro et al. ; Monterosso et al. ; Aspinwall et al. ; Carey and Paulhus ; Nadelhoffer and Tocchetto ; Shariff et al. ; Earp et al. ). Recent findings in moral and political psychology, for example, suggest that there may be a potential downside to believing in free will and moral responsibility since there are potentially troubling correlations between people’s free will beliefs and their other moral, religious, and political beliefs. Recent empirical work by Jasmine Carey and Del Paulhus (), for example, has found that free will beliefs correlate with increased religiosity, punitiveness, and political conservative beliefs and attitudes such as just world belief (JWB) and right wing authoritarianism (RWA). They found these correlations by administering their Free Will and Determinism Scale known as FAD-Plus (Paulhus and Carey ) – a -item scale used to measure people’s beliefs and attitudes about free will and related concepts – along with measures of religiosity, political conservativism, JWBs, and RWA. It’s important here to highlight just how worrisome some of these correlations are. Take, for example, a few of the sample items used to validate belief in a just world. ■ Just World Belief Scale (Lerner ): ○ “By and large, people deserve what they get.” ○ “Although evil men may hold political power for a while, in the general course of history good wins out.” ○ “People who meet with misfortune have often brought it on themselves.” And here are sample items from the RWA scale: ■ The Right Wing Authoritarianism Scale (Altemeyer ): ○ “The established authorities generally turn out to be right about things, while the radicals and protestors are usually just ‘loud mouths’ showing off their ignorance.” ○ “Our country desperately needs a mighty leader who will do what has to be done to destroy the radical new ways of sinfulness that are ruining us.” ○ “It is always better to trust the judgment of the proper authorities in government and religion than to listen to the noisy rabblerousers in our society who are trying to create doubt in people’s minds.”
Skepticism and Its Implications: An Argument for Optimism
These items express troublesome and perhaps even potentially dangerous ideas, as I will try to explain in a moment. Carey and Paulhus also found a relationship between beliefs about free will and punishment – in particular, they found that believing more strongly in free will was correlated with increased punitiveness. They found that free will believers were more likely to call for harsher criminal punishment in a number of hypothetical scenarios. This is unsurprising since, as Thomas Nadelhoffer and Daniela Goya Tocchetto point out: “It makes a priori sense that people who believe more strongly in free will would be more interested in giving wrongdoers their just deserts” (Nadelhoffer and Tocchetto : ). In addition to the findings of Carey and Paulhus, Nadelhoffer and Tocchetto () have also found some troubling correlations. Using a slightly different scale – The Free Will Inventory (FWI), a -item tool for measuring (a) the strength of people’s beliefs about free will, determinism, and dualism, and (b) the relationship between these beliefs and related beliefs, such as punishment and responsibility (Nadelhoffer et al. ) – Nadelhoffer and Tocchetto found, once again, a correlation between free will beliefs and JWB and RWA. They also found a number of correlations between religiosity, conservativism, and political ideology – e.g., RWA was strongly correlated with political conservativism, religiosity, social dominance orientation (SDO), JWB, and economic system justification (ESJ). And here, the ESJ scale measures the tendency to perceive socioeconomic and political arrangements as inherently fair and legitimate – even at the expense of individual or group interests, and the SDO scale measures “the degree of adherence to conservative legitimizing myths that attempt to rationalize the interests of dominant group members” (Nadelhoffer and Tocchetto : ). These findings support the claim that where belief in free will is strongest we tend to see increased punitiveness. In fact, empirical work has confirmed that weakening free will beliefs, either in general or by offering evidence of an individual’s diminished decisional capacity, leads to less punitiveness (Pizarro, Uhlmann, and Salovey ; Monterosso, Royzman, and Schwartz ; Aspinwall et al. ; Shariff et al. ). These findings also support the claim that a conservative worldview, which is associated with free will belief, is generally correlated with an acceptance of economic inequality and a belief that the world is just and people deserve what they get. One should not be surprised by these correlations since the link between conservative social attitudes and free will belief has long been known (see, e.g., Altemeyer ; Weiner ; Jost ; Baumeister ). Robert Altemeyer (), for example, has shown that
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conservatives tend to be more blaming and punitive toward lawbreakers. And John Jost () has found that conservatives and liberals tend to make different trait attributions for lawbreakers – conservatives draw attributions about sinful character, whereas liberals point to situational causes. Hence, the personal responsibility ethic emphasized by conservatives is firmly rooted in (and perhaps even necessitates) belief in free will. To make clear the potential danger of belief in free will and moral responsibility, let me return to the aforementioned JWB scale. As Nadelhoffer and Tocchetto describe: The origin of the just world conception can be traced back to the original empirical findings of Lerner and Simmons (); namely, that persons have a tendency to blame the victim of misfortunes for their own fate. Based on these empirical findings, Lerner () formulated the Just World Hypothesis, whereby individuals have a need to believe that they live in a world where people generally get what they deserve. In order to measure the degree to which persons are willing to believe that everyone deserves what happens to them, Lerner () developed the JWB scale. Scores on the scale have been found to correlate with the presence of frail religious beliefs (Sorrentino and Hardy ), and internal (as opposed to an external) locus of control, and with the likelihood of derogating innocent victims (Rubin and Peplau ). In addition, people who score high on JWB are more likely to trust current institutions and authorities, and to blame the poor and praise the rich for their respective fates (Jost et al. ). (Nadelhoffer and Tocchetto : )
For sake of time, I will focus the remainder of my comments on JWB. I must unfortunately leave aside the RWA scale – but it should be noted that RWA, just like JWB, is associated with a number of troubling tendencies. So what’s so dangerous about JWB? Well, belief in a just world (which, again, has been shown to be correlated with belief in free will) is a blamethe-victim approach. It promotes the idea that people deserve what they get and people who meet with misfortunate have often brought it on themselves. Adrian Furnham gives a succinct statement of the basic belief in a just world: “The [JWB] asserts that, quite justly, good things tend to happen to good people and bad things to bad people despite the fact that
RWA is typically defined in the literature in terms of submission to established and legitimate authorities, sanctioned general aggressiveness toward various persons, and adherence to the generally endorsed social conventions (Nadelhoffer and Tocchetto : ). Furthermore, “It is also closely related to a large set of ego-justifying tendencies that provide support for social ideologies such as intolerance of ambiguity, dogmatism, terror management, uncertainty avoidance, and need for cognitive closure” (Nadelhoffer and Tocchetto : ).
Skepticism and Its Implications: An Argument for Optimism
this is patently not the case” (Furnham : ). Lerner and Miller also acknowledge the falsehood of this belief, though they point out that it may serve a valuable function in motivating behavior and avoiding a sense of helplessness. This makes the belief difficult to shake: Since the belief that the world is just serves such an important adaptive function for the individual, people are very reluctant to give up this belief, and they can be greatly troubled if they encounter evidence that suggests that the world is not really just or orderly after all. (Lerner and Miller : )
Because of this, and despite its patent falsehood, belief in a just world continues to exercise a powerful (and often unconscious) influence on our attitudes about free will and moral responsibility (see Waller ). Yet despite whatever benefits this false belief may provide, they are bought at a high price. As Waller notes, “ironically, the costs of belief in a just world are paid in fundamental injustice” (Waller : ). We can see evidence of JWB in the unfortunate tendency, among both ordinary folk and the legal system, to blame rape victims for their circumstances. When we cannot easily and effectively help innocent victims, our belief in a just world is severely threatened, and the most convenient and common way of preserving that belief is to change the status of the victim from innocent to guilty. As Bruce Waller describes: The case of rape victims is the most obvious and extensively studied example of this phenomenon. Rape is a brutal, demeaning, and traumaproducing crime; in a just world, no innocent person would be subjected to such a horrific fate. Thus there is a powerful tendency to see rape victims as really not quite so innocent: they dress provocatively; they were “loose” women; they did something to put themselves in that situation (they were careless about where they walked, or they drank too much); they “led him on” or were “asking for it” (thus in some parts of the world, rape victims are subject to death by stoning). Harsh cross-examination of those who claim to be rape victims are notoriously common; those harsh cross-examinations are common because they are often effective; and they are often effective because juries—eager to preserve their belief in a just world—are already inclined to see the victim of this terrible ordeal as other than innocent. (Waller : )
This is just one unfortunate example of the pernicious nature of belief in a just world. Other examples include blaming those in poverty for their own circumstances, viewing criminals as deserving what they get, labeling those on welfare as lazy and “mooches,” and blaming educational inequity on the parents and children themselves – since, of course, if the
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world is just, then people must have brought these circumstances upon themselves. This blaming of victims (in defense of belief in a just world) has been established by numerous studies, including studies showing that the stronger the belief in a just world the greater the likelihood of blaming victims for their unfortunate fates (Wagstaff ; Furnham and Gunter ; Harper and Manasse ; Dalbert and Yamauchi ; Montada ). We all know, however, at least in our more rationally self-reflective moments, that the world is not just and the lottery of life is not always fair. We need to admit that luck plays a big role in what we do and the way we are (see Levy ; Strawson : ch.; Caruso b). It’s my proposal that we do away with the pernicious belief in free will – and with it the myth of just deserts. If what I have argued here is correct, the concepts of free will and basic desert moral responsibility are intimately connected with a number of other potentially harmful beliefs – e.g., JWB and RWA. It’s time that we leave these antiquated notions behind, lose our moral anger, stop blaming the victim, and turn our attention to the difficult task of addressing the causes that lead to criminality, poverty, wealth inequality, and educational inequity (see, e.g., Caruso a). Let me conclude this section by discussing one last set of studies that reveal the potential benefits of diminished belief in free will. Shariff et al. () hypothesized that, if free will beliefs support attributions of moral responsibility, then reducing these beliefs should make people less retributive in their attitudes about punishment. In a series of four studies they tested this prediction and found reason to be optimistic about free will skepticism. In study they found that people with weaker free will beliefs endorsed less retributive attitudes regarding punishment of criminals, yet their consequentialist attitudes were unaffected. Study therefore supports the hypothesis that free will beliefs positively predict punitive attitudes, and in particular retributive attitudes, yet it also suggests that “the motivation to punish in order to benefit society (consequentialist punishment) may remain intact, even while the need for blame and desire for retribution are forgone” (Shariff et al. : ). Shariff et al. describe the potential benefits of these findings as follows: [A] societal shift away from endorsing free will could occur without disrupting the functional role of punishment. Society could fulfill its practical need for law and order, leaving the social benefits of punishment intact while avoiding the unnecessary human suffering and economic costs of punishment often associated with retributivism (Green & Cohen, ; Tonry, ). (Shariff et al. : ).
Skepticism and Its Implications: An Argument for Optimism
There is no reason to think chaos would ensue if we relinquished our commitment to retributive justice. As this study indicates, other justifications for punishment remain intact and unaffected by diminished belief in free will. Study found that experimentally diminishing free will belief through anti–free will arguments diminished retributive punishment, suggesting a causal relationship (Shariff et al. : ). Studies and further found that exposure to neuroscience implying a mechanistic basis for human action – either reading popular-science articles or taking an introductory neuroscience class in college – similarly produced a reduction in retributivism. Interestingly, studies and made no mention of free will; they let participants draw their own implications from the mechanistic descriptions. These results suggest that shifts in people’s philosophical worldview about free will beliefs, “even through simply learning about the brain, can affect people’s attitudes about moral responsibility, with potential broad social consequences” (Shariff et al. : ). The findings of these studies are promising, at least for the line of argument I’ve been pushing here, since they show that reducing belief in free will leads people to see others’ bad behavior as less morally reprehensible, resulting in less retributive punishment. This is a good thing since it diminishes a harmful kind of moral anger (Pereboom ) and an inclination toward excessive punishment. I am also encouraged by these findings that changing attitudes about free will and basic desert moral responsibility – which are probably inevitable as we learn more about neuroscience and the brain – can help usher in an important evolution in legal thinking away from retributivism and toward practices and policies that are more humane, effective, and just.
. The Public Health-Quarantine Model Let me conclude by addressing one final concern. One of the most frequently voiced criticisms of free will skepticism is that it is unable to
As studies and revealed, people naturally become less retributive after having been exposed to neuroscientific and mechanistic descriptions of human behavior. And as Shariff et al. note, “What is clear is that the belief in free will is intertwined with moral, legal, and interpersonal processes. As the mechanistic worldview espoused by many scientists and particularly psychologists, gain attention (e.g., Gazzinga, ; Nichols, ; Monterosso and Schwartz, ), the impact of these trends – good, bad, or both – calls for understanding” (Shariff et al. : ). This remains true whether or not the mechanistic worldview espoused by these thinkers is correct or a real philosophical threat to free will.
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adequately deal with criminal behavior and that responses it would permit as justified are insufficient for acceptable social policy. This concern is fueled by two factors. This first is that one of the most prominent justifications for punishing criminals, retributivism, is incompatible with free will skepticism. The second concern is that alternative justifications that are not ruled out by the skeptical view per se face significant independent moral objections (Pereboom : ). Yet despite these concerns, I maintain that free will skepticism leaves intact other ways to respond to criminal behavior – in particular incapacitation, rehabilitation, and the alteration of relevant social conditions – and that these methods are both morally justifiable and sufficient for good social policy. The position I defend is similar to Derk Pereboom’s (, ), taking as its starting point his quarantine analogy, but it sets out to develop the quarantine model within a broader justificatory framework drawn from public health ethics. The resulting model – which I call the public healthquarantine model – provides a framework for justifying quarantine and incapacitation that is more humane than retributivism and preferable to other nonretributive alternatives. The public health-quarantine model is based on an analogy with quarantine and draws on a comparison between treatment of dangerous criminals and treatment of carriers of dangerous diseases. It takes as its starting point Derk Pereboom’s famous account (, , ). In its simplest form, it can be stated as follows: () free will skepticism maintains that criminals are not morally responsible for their actions in the basic desert sense; () plainly, many carriers of dangerous diseases are not responsible in this or in any other sense for having contracted these diseases; () yet, we generally agree that it is sometimes permissible to quarantine them, and the justification for doing so is the right to selfprotection and the prevention of harm to others; () for similar reasons, even if dangerous criminals are not morally responsible for their crimes in the basic desert sense (perhaps because no one is ever in this way morally responsible) it could be as legitimate to preventatively detain them as to quarantine the nonresponsible carrier of a serious communicable disease. The first thing to note about the theory is that, although one might justify quarantine (in the case of disease) and incapacitation (in the case of dangerous criminals) on purely utilitarian or consequentialist grounds, both Pereboom and I want to resist this strategy. Instead, our view
For a full defense of the public health-quarantine model, see Caruso (, a, a), Pereboom (, ), and Pereboom and Caruso ().
Skepticism and Its Implications: An Argument for Optimism
maintains that incapacitation of the seriously dangerous is justified on the ground of the right to self-defense and defense of others. That we have this right has broad appeal, much broader than utilitarianism or consequentialism has. In addition, this makes the view more resilient to a number of objections and provides a more resilient proposal for justifying criminal sanctions than other nonretributive options. One advantage it has, say, over consequentialist deterrence theories is that it has more restrictions placed on it with regard to using people merely as a means (see Pereboom ). For instance, as it is illegitimate to treat carriers of a disease more harmfully than is necessary to neutralize the danger they pose, treating those with violent criminal tendencies more harshly than is required to protect society will be illegitimate as well. In fact, in all our writings on the subject, we have always maintained the principle of least infringement, which holds that the least restrictive measures should be taken to protect public health and safety. This ensures that criminal sanctions will be proportionate to the danger posed by an individual, and any sanctions that exceed this upper bound will be unjustified. Second, the quarantine model places several constraints on the treatment of criminals. First, as less dangerous diseases justify only preventative measures less restrictive than quarantine, so less dangerous criminal tendencies justify only more moderate restraints. We do not, for instance, quarantine people for the common cold even though it has the potential to cause some harm. Rather, we restrict the use of quarantine to a narrowly prescribed set of cases. Analogously, on our model the use of incapacitation should be limited to only those cases where offenders are a serious threat to public safety and no less restrictive measures were available. Secondly, the incapacitation account that results from this analogy demands a degree of concern for the rehabilitation and well-being of the criminal that would alter much of current practice. Just as fairness recommends that we seek to cure the diseased we quarantine, so fairness would counsel that we attempt to rehabilitate the criminals we detain. Rehabilitation and reintegration would therefore replace punishment as the focus of the criminal justice system. Lastly, if criminals cannot be rehabilitated and our safety requires their indefinite confinement, this account provides no justification for making their lives more miserable than would be required to guard against the danger they pose. In addition to these restrictions on harsh and unnecessary treatment, the public health-quarantine model also advocates for a broader approach to criminal behavior that moves beyond the narrow focus on sanctions. It places the quarantine analogy within the broader justificatory framework
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of public health ethics. Public health ethics not only justifies quarantining carriers of infectious diseases on the grounds that it is necessary to protect public health, it also requires that we take active steps to prevent such outbreaks from occurring in the first place. Quarantine is only needed when the public health system fails in its primary function. Since no system is perfect, quarantine will likely be needed for the foreseeable future, but it should not be the primary means of dealing with public health. The analogous claim holds for incapacitation. Taking a public health approach to criminal behavior would allow us to justify the incapacitation of dangerous criminals when needed, but it would also make prevention a primary function of the criminal justice system. So instead of myopically focusing on punishment, the public health-quarantine model shifts the focus to identifying and addressing the systemic causes of crime, such as poverty, low social economic status, systematic disadvantage, mental illness, homelessness, educational inequity, exposure to abuse and violence, poor environmental health, addiction, and the like (see Caruso a). In my recent Public Health and Safety: The Social Determinants of Health and Criminal Behavior (Caruso a), I argue that the social determinants of health (SDH) and the social determinants of criminal behavior (SDCB) are broadly similar, and that we should adopt a broad public health approach for identifying and taking action on these shared social determinants. I focus on how social inequities and systemic injustices affect health outcomes and criminal behavior, how poverty affects brain development, how offenders often have preexisting medical conditions (especially mental health issues), how homelessness and education affect health and safety outcomes, how environmental health is important to both public health and safety, how involvement in the criminal justice system itself can lead to or worsen health and cognitive problems, and how a public health approach can be successfully applied within the criminal justice system. I argue that, just as it is important to identify and take action on the SDH if we want to improve health outcomes, it is equally important to identify and address the SDCB. And I conclude by offering eight broad public policy proposals for implementing a public health approach aimed at addressing the SDH and SDCB (see Caruso a for details). Furthermore, the public health framework I adopt sees social justice as a foundational cornerstone to public health and safety. In public health ethics, a failure on the part of public health institutions to ensure the social conditions necessary to achieve a sufficient level of health is
Skepticism and Its Implications: An Argument for Optimism
considered a grave injustice. An important task of public health ethics, then, is to identify which inequalities in health are the most egregious and thus which should be given the highest priority in public health policy and practice. The public health approach to criminal behavior likewise maintains that a core moral function of the criminal justice system is to identify and remedy social and economic inequalities responsible for crime. Just as public health is negatively affected by poverty, racism, and systematic inequality, so too is public safety. This broader approach to criminal justice therefore places issues of social justice at the forefront. It sees racism, sexism, poverty, and systemic disadvantage as serious threats to public safety and it prioritizes the reduction of such inequalities. While there are different ways of understanding social justice and different philosophical accounts of what a theory of justice aims to achieve, I favor a capability approach, according to which the development of capabilities – what each individual is able to do or be – is essential to human well-being (e.g., Sen , ; Power and Faden ; Nussbaum ). For capability theorists, human well-being is the proper end of a theory of justice. And on the particular capability approach I favor, social justice is grounded in six key features of human well-being: health, reasoning, self-determination, attachment, personal security, and respect (see Powers and Faden ; Caruso a). Following Powers and Faden (), I maintain that each of these six dimensions is an essential feature of well-being such that “a life substantially lacking in any one is a life seriously deficient in what it is reasonable for anyone to want, whatever else they want” (Powers and Faden : ). The job of justice is therefore to achieve a sufficiency of these six essential dimensions of human wellbeing, since each is a separate indicator of a decent life. The key idea of capability approaches is that social arrangements should aim to expand people’s capabilities – their freedom to promote or achieve functionings that are important to them. Functionings are defined as the valuable activities and states that make up human well-being, such as having a healthy body, being safe, or having a job. While they are related to goods and income, they are instead described in terms of what a person is able to do or be as a result. For example, when a person’s need for food (a commodity) is met, that person enjoys the functioning of being well nourished. Examples of functionings include being mobile, being healthy, being adequately nourished, and being educated. The genuine opportunity
Note that this is a pared-down list from the ones offered by Martha Nussbaum and other capability theorists (see Nussbaum ).
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to achieve a particular functioning is called a capability. Capabilities are “the alternative combination of functionings that are feasible for [a person] to achieve” – they are “the substantive freedom” a person has “to lead the kind of life he or she has reason to value” (Sen : ). As Tabandeh, Gardoni, and Murphy describe: Genuine opportunities and actual achievements are influenced by what individuals have and what they can do with what they have. What they can do with what they have is a function of the structure of social, legal, economic, and political institutions and of the characteristics of the builtenvironment (i.e., infrastructure). For example, consider the functioning of being mobile. The number of times an individual travels per week can be an indicator of mobility achievement. When explaining a given individual’s achievement or lack of achievement, a capability approach takes into consideration the conditions that must be in place for an individual to be mobile. For instance, the possession of certain resources, like a bike, may influence mobility. However, possessing a bike may not be sufficient to guarantee mobility. If the individual has physical disabilities, then the bike will be of no help to travel. Similarly, if there are no paved roads or if societal culture imposes a norm that women are not allowed to ride a bike, then it will become difficult or even impossible to travel by means of a bike. As this example makes clear, different factors will influence the number of times the individual travels. (Tabandeh et al. )
Thinking in terms of capabilities raises a wider range of issues than simply looking at the amount of resources or commodities people have, because people have different needs. In the example given earlier, just providing bicycles to people will not be enough to increase the functioning of being mobile if you are disabled or prohibited from riding because of sexist social norms. A capabilities approach to social justice therefore requires that we consider and address a larger set of social issues. Bringing everything together, my public health-quarantine model characterizes the moral foundation of public health as social justice, not just the advancement of good health outcomes. That is, while promoting social goods (like health) is one area of concern, public health ethics as I conceive it is embedded within a broader commitment to secure a sufficient level of health and safety for all and to narrow unjust inequalities (see Powers and Faden ). More specifically, I see the capability approach to social justice as the proper moral foundation of public health ethics. This means that the broader commitment of public health should be the achievement of those capabilities needed to secure a sufficient level of human wellbeing – including, but not limited to, health, reasoning, self-determination, attachment, personal security, and respect. By placing social justice at the
Skepticism and Its Implications: An Argument for Optimism
foundation of the public health approach, the realms of criminal justice and social justice are brought closer together. I see this as a virtue of the theory since it is hard to see how we can adequately deal with criminal justice without simultaneously addressing issues of social justice. Retributivists tend to disagree since they approach criminal justice as an issue of individual responsibility and desert, not as an issue of prevention and public safety. I believe it is a mistake to hold that the criteria of individual accountability can be settled apart from considerations of social justice and the SDCB. Making social justice foundational, as my public healthquarantine model does, places on us a collective responsibility – which is forward looking and perfectly consistent with free will skepticism – to redress unjust inequalities and to advance collective aims and priorities such as public health and safety. The capability approach and the public health approach therefore fit nicely together. Both maintain that poor health and safety are often the byproducts of social inequities, and both attempt to identify and address these social inequities in order to achieve a sufficient level of health and safety. Summarizing the public health-quarantine model, then, the core idea is that the right to self-defense and defense of others justifies incapacitating the criminally dangerous with the minimum harm required for adequate protection. The resulting account would not justify the sort of criminal punishment whose legitimacy is most dubious, such as death or confinement in the most common kinds of prisons in our society. The model also specifies attention to the well-being of criminals, which would change much of current policy. Furthermore, the public health component of the theory prioritizes prevention and social justice and aims at identifying and taking action on the SDH and criminal behavior. This combined approach to dealing with criminal behavior, I maintain, is sufficient for dealing with dangerous criminals, leads to a more humane and effective social policy, and is actually preferable to the harsh and often excessive forms of punishment that typically come with retributivism.
. Conclusion I have here examined some of the practical implications of free will skepticism and argued that we should be optimistic about the prospects of life without free will. Defenders of free will, along with illusionists like
For responses to various objections to the model, see Pereboom and Caruso (), Caruso (a), and Pereboom (c, ).
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Saul Smilansky (, ; Ch. [this volume]), maintain that belief in free will is essential for the proper functioning of society, morality, and the law. Optimistic skeptics and disillusionists, on the other hand, disagree. Making the case for optimism, I argued that belief in free will and basic desert moral responsibility, rather than being a good thing, actually has a dark side and that we would be better off without it. In Section ., I briefly examined two common concerns people have with relinquishing the belief in free will – that it will lead to an increase in antisocial behavior and that it will lead to cruel and inhumane forms of punishment. I argued that these concern are misguided and overblown. In Section ., I then discussed recent empirical findings in moral and political psychology that reveal interesting, and potentially troubling, correlations between people’s free will beliefs and their other moral, religious, and political views – i.e., belief in free will is associated with increased belief in a just world, RWA, religiosity, punitiveness, and moralistic standards for judging self and other. We found that these associations, especially belief in a just world and the punitive desire to blame and punish others, often lead to negative and counterproductive practices, policies, and tendencies. I concluded in Section . by addressing one final concern regarding free will skepticism: whether it can successfully deal with criminal behavior. I argued that the public health-quarantine model is not only consistent with free will skepticism, it offers an ethically defensible and practically workable alternative, one that is more holistic and humane than retributive punishment. While these considerations do not prove belief in free will is mistaken, they do indicate that the putative pragmatic benefits of believing in free will and basic desert moral responsibility are bogus. R E F E R EN C E S Alicke, M. D. (). Evidential and extra-evidential evaluations of social conduct. Journal of Social Behavior and Personality, , –. Alicke, M. D. (). Blaming badly. Journal of Cognition and Culture, , –. Alicke, M. D., J. Buckingham, E. Zell, and T. Davis. (). Culpable control and counterfactual reasoning in the psychology of blame. Personality and Social Psychology Bulletin, , –. Altemeyer, R. A. (). Right-Wing Authoritarianism. Manitoba: University of Manitoba Press. (). The Authoritarian Specter. Cambridge, MA: Harvard University Press. (). Why do religious fundamentalists tend to be prejudiced? International Journal for the Psychology of Religion, ,–.
Skepticism and Its Implications: An Argument for Optimism
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(c). Free will skepticism and criminal punishment. In T. Nadelhoffer, ed., The Future of Punishment. New York: Oxford University Press, pp. –. Pereboom, D. (). Free Will, Agency, and Meaning in Life. Oxford: Oxford University Press. Pereboom. D. (). A defense of free will skepticism: Replies to commentaries by Victor Tadros, Saul Smilansky, Michael McKenna, and Alfred R. Mele on Free Will, Agency, and Meaning in Life. Criminal Law and Philosophy, (), –. Pereboom, D., and G. D. Caruso. (). Hard-incompatibilist existentialism: Neuroscience, punishment, and meaning in life. In G. D. Caruso and O. Flanagan, ed., Neuroexistentialism: Meaning, Morals, and Purpose in the Age of Neuroscience. New York: Oxford University Press, pp. –. Pizarro, D., E. Ulhmann, and P. Salovey. (). Asymmetry in judgments of moral blame and praise: The of perceived metadesires. Psychological Science, , –. Powers, M. and R. Faden (). Social Justice: The Moral Foundations of Public Health and Health Policy. New York: Oxford University Press. Rubin, Z., and L. A. Peplau. (). Who believes in a just world? Journal of Social Issues, , –. Schlenker, B. R. (). Impression Management: The Self-Concept, Social Identity, and Interpersonal Relations. Monterey, CA: Brooks/Cole. Sen, A. (). Commodities and Capabilities. Amsterdam: North-Holland. (). Development as Freedom. New York: Oxford University Press. Shariff, A. F., J. D. Greene, J. C. Karremans, et al. (). Free will and punishment: A mechanistic view of human nature reduces retribution. Psychological Science, June , –. Sie, M. (). Free will, an illusion? An answer from a pragmatic sentimentalist point of view. In G. D. Caruso, ed., Exploring the Illusion of Free Will and Moral Responsibility. Lanham, MD: Lexington Books, pp. –. Smilansky, S. (). Free Will and Illusion. New York: Oxford University Press. Smilansky, S. (). Free will as a case of “crazy ethics.” In G. D. Caruso, ed., Exploring the Illusion of Free Will and Moral Responsibility. Lanham, MD: Lexington Books, pp. –. Snyder, C. R., R. L. Higgins, and R. J. Stuckey. (). Excuses: Masquerades in Search of Grace. Clinton Corners, NY: Eliot Werner Publications. Sorrentino, R. M., and J. Hardy. (). Religiousness and derogation of an innocent victim. Journal of Personality, , –. Sosis, R. H. (). Internal-external control and the perception of responsibility of another for an accident. Journal of Personality and Social Psychology, , –. Stillman, T. F., and R. F. Baumeister. (). Guilt, free, and wise: Belief in free will facilitates Learning from self-conscious emotions. Journal of Experimental Social Psychology, , –. Stillman, T. F., R. F. Baumeister, K. D. Vohs, N. M. Lambert, F. D. Fincham, and L. E. Brewer. (). Personal philosophy and personnel achievement:
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Beyond the Retributive System Bruce N. Waller
The desire for retribution runs deep, beyond recorded history, and even beyond human history. Its roots are in the same strike-back desire that motivates rats to attack each other when they are placed in a cage with an electrified grid and then shocked (Virgin and Sapolsky ). Fortunately, rats don’t have anyone around to justify their strike-back behavior by constructing a system of moral responsibility and righteous retribution; unfortunately, humans do. For Peter French, retribution is the foundation of morality: Personal and vicarious moral anger can be and ought to be placated by hostile responsive action taken against its cause. Wrongful actions require hostile retribution. That . . . is actually one of the primary foundations of morality. It is a foundation that is settled in passions, attitudes, emotions, and sentiments, not in reason. (French : )
Robert Solomon agrees, adding the familiar claim that retribution enhances human dignity: Sometimes vengeance is wholly called for, even obligatory, and revenge is both legitimate and justified . . . To seek vengeance for a grievous wrong, to revenge oneself against evil—that seems to lie at the very foundation of our sense of justice, indeed, of our very sense of ourselves, our dignity, and our sense of right and wrong. (Solomon : )
Thus the primitive strike-back desire is philosophically packaged as righteous retribution, the essential basis for morality, justice, and human dignity. Whether human or rat or chimpanzee, when we suffer harm we feel a powerful desire to strike back. The basic desire is not a strike-back desire against the source of harm, but a desire to “pass the pain along” (as biologist David Barash describes it) and cause someone else to suffer: the cause of the harm if that individual is handy and vulnerable, but harming someone else
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works almost as well. As Michael Potegal notes: “From the perspective of a theoretical distinction between provoker and target, redirected aggression is not a special case; in most cases aggression just happens to be directed at the object that provoked it” (Potegal : ). The powerful and feared alpha chimpanzee threatens and perhaps attacks a weaker group member; rather than retaliating against the dangerous alpha male, the harmed chimpanzee attacks a still weaker group member (Kawamura ). Barash and Lipton describe the common and depressing scenario: Animals – and by all accounts, people, too – who lose a social confrontation experience what is called “subordination stress.” Their blood pressure and adrenal hormones go up, while neurotransmitters that influence the sense of well-being go down. But if these same animals have the opportunity to “take it out” on another individual, their stress hormones and neurotransmitters return to normal levels. In short, living things can reduce their own pain-induced stress by passing that pain to another. (Barash and Lipton : )
The only blacksmith in a Russian agricultural village committed a brutal murder, and the enraged village demanded vengeance. In the agricultural village the blacksmith was indispensable; however, there was a surplus of tailors, so one of the tailors was hanged instead (Barash and Lipton : ). Seen from a comfortable distance, this strikes us as profoundly unfair: a brutal murder outrages the community, so an innocent tailor must hang. But the same phenomenon happens every day in our supposedly more sophisticated world. The jury hears a vivid description of a brutal murder, and convicts whoever happens to be available in the prisoner’s dock. Consider the notorious case of the Central Park jogger: an attractive and successful young woman was sexually assaulted and nearly killed while out for a run. Five juvenile males – four black, one Hispanic, the oldest was – were swiftly arrested and charged. The media sensationalized the crime as an act of mindless “wilding”: young minority males sought out the first available target for a gang rape and savage beating. Evidence against the defendants was almost nonexistent. DNA from the scene matched none of those arrested, and their confessions were extracted in the absence of counsel, by use of threats, and under prolonged duress. But strike-back emotions were inflamed, and the defendants were swiftly convicted. The five youths all served long prison sentences. In , a man who was serving a life sentence (for multiple crimes including rape and murder) confessed to raping and beating the jogger, acting alone, and his confession was confirmed by DNA evidence. We may feel superior to rats and chimpanzees and Russian peasants, but we are motivated by the
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same strike-back retributive emotions: we have suffered, so someone has to pay; the pain must be passed along. The retributive desire is powerful and dangerous, and easily exploited by unscrupulous politicians and prosecutors. But its perils notwithstanding, it is not a desire we should wish to eliminate. Eliminating retributivism would be a positive and wonderful outcome, and is a worthwhile goal even if it is difficult to envision ever reaching it; eliminating the retributive desire is another matter. Retributive anger may be an essential element of a well-functioning moral life. Antonio Damasio claims that: The elimination of emotion and feeling from the human picture entails an impoverishment of the subsequent organization of experience. If social emotions and feelings are not properly deployed, and if the relation between social situations and joy and sorrow breaks down, the individual cannot categorize the experience of events in his autobiographical memory record according to the emotion/feeling mark that confers “goodness” or “badness” upon those experiences. That would preclude any subsequent level of construction of the notions of goodness and badness, namely the reasoned cultural construction of what ought to be considered good or bad. (Damasio : )
Strong emotional reactions of retributive anger may serve a valuable role, even if they are lousy guides to good behavior. It should not surprise us that human animals have vital emotions that are less than optimum guides to behavior. The loving parents who subject their child to a painful vaccination feel empathetic pain with the child, and feel a strong emotional desire to snatch the child away from this painful encounter. Doing so would be unfortunate: the emotional feeling is not in this case a reliable behavioral guide, but the parents would not wish to eliminate the empathetic pain and emotional rescue response, believing them to be essential elements of deep affection for their child. If Romeo and Juliet profoundly value their faithful monogamous relationship, they may continue to feel frustrating sexual desires for other attractive persons, but losing such desires might also involve loss of sexual desire for one another. Thus they may be glad that they have such desires while rejecting those desires as temptations toward destructive behavior. If racist white youths abuse and demean an elderly black man, it should awaken in you angry retributive impulses. If not, then it is likely that you see nothing wrong with such vile behavior, and also likely that you will make no effort to prevent such behavior. Genuine moral condemnation of that behavior probably requires a strong angry emotional reaction to it: I sincerely desire to see those abusive youths severely harmed. Strong
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retributive emotional reactions are valuable, even if we conclude that they are poor guides to behavior or policy. Tamler Sommers describes how he gave up his earlier skepticism regarding moral responsibility (from his perspective, an epiphany; from mine, a fall from grace) based on a strong emotional strike-back reaction to an imagined harm. Challengers to his skepticism about moral responsibility posed this question: “What if someone harmed your daughter Eliza? You wouldn’t think he was morally responsible for doing that?” Sommers responds: First, psychologically I wouldn’t be able to think that person didn’t deserve blame or punishment. In fact, I’d want to give the guy as much punishment as possible with my bare hands. With something like that, your retributive emotions override any kind of theory you have in your head. But then I thought about something else, something that made me question even my theoretical skepticism about free will and moral responsibility. Even if I could use my theory to overcome or undermine my retributive hatred of this person, I wouldn’t want to. I actually think there’d be something wrong with me if I didn’t have that irresistible inclination. In other words, it’s not an ideal version of me that would abandon retributive feelings toward a person who hurt Eliza. (Sommers : -)
It is good that Tamler should feel “retributive hatred” of anyone who harmed his beloved daughter, since feeling such anger is probably inseparable from his deep affection for her: Tamler is right that “there’d be something wrong with me if I didn’t have that irresistible inclination.” But whether Tamler should act on such a feeling, and whether he would be morally justified in acting on such a feeling, are very different questions. Retributive emotions are powerful and widespread, but they are not immutable. They can be modified, manipulated, inflamed, and ameliorated. The manipulative intensifying of retributive emotions – what criminologists call penal populism or populist punitiveness (Bottoms ) – has been a prominent feature of recent political campaigns, and a successful political strategy for US politicians (Lacey : –). Richard Nixon, Ronald Reagan, both Bushes, and Bill Clinton used it, and British politicians – from Margaret Thatcher to John Major to Tony Blair – soon recognized its electoral benefits. It is a crude but effective political ploy. Dramatic detailed accounts of violent crime arouse outrage and fear: graphic crime stories – especially those involving attractive victims – draw readers and viewers, so the media jumps on board. The “crime problem” is then blamed on opposition politicians who are “soft on crime.” The proposed solution is a “tough on crime” policy, demanding harsh
Beyond the Retributive System
punishments and fewer protections for the accused (such protections protect criminals who deserve harsh punishment). As more politicians become adept at the game, harsher punitive measures are constantly proposed, and politicians fearing the mortal label of “soft on crime” vote for mandatory sentencing, minimum sentences, “boot camps” and adult prisons for juvenile offenders, “sex offender” permanent registrations, Supermax isolation, and “three strikes” laws. Interest in examining and fixing the economic and social forces that shaped criminal behavior is ridiculed as caring more for the criminal than the victim of crime. With retributive emotions fanned to a fever pitch, the demand for harsh punitive measures overwhelms protection of the accused and the convicted, and blocks thoughtful inquiry into the deeper causes of criminal behavior. While it is painfully obvious that retributive emotions can be manipulatively intensified for political gain, it is also true that retributive emotions can be softened and even dissipated. We need the strike-back retributive emotions, but we also need ways of controlling and ultimately reducing them. When the strike-back feelings linger and fester, they not only block better ways of dealing with the problem of criminal behavior, but they also exact an additional psychological toll on the crime victim. Striking back feels like righteous retribution, and that can easily overwhelm careful reflection. But thoughtful consideration of all the factors that contributed to the crime and shaped the wrongdoer typically has a mitigating effect on the strike-back feeling (Watson ; Nichols ). Numerous criminological studies have shown that deliberative reflection and understanding significantly reduces the desire for severe punishment of offenders (Doob and Roberts ; Fishkin ; Indermaur et al. ). Can we manage our essential strike-back emotions, gain greater knowledge of deeper causes, and move toward a workable alternative to retributive justice? It does not seem likely. But it does not seem likely because we are asking that question – especially if we ask it in the USA or the United Kingdom – from deep within a system that holds retributivism locked securely in place. Challenging retributivism requires moving beyond the retributive thought system. Sociologists, criminologists, and economists (Esping-Andersen , ; Cavadino and Dignan a, b) distinguish several patterns in Western cultures, with neoliberal and social democratic corporatist marking the greatest contrast. Neoliberal cultures promote the belief that individuals are self-made and should be self-sufficient, and that both the successes and failures of individuals are almost entirely their own doing. Those at the bottom justly deserve to be there, society owes them little or nothing in the
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form of welfare support, and those receiving such support are stigmatized. Anyone committing a crime bears full responsibility for that act, and justly deserves severe punishment and isolation. The successful deserve full credit for their success, and owe nothing to others. The market is fair, requires little regulation, and rewards and punishes in accordance with one’s just deserts. The clearest example of neoliberal culture is the United States, but it is also quite strong in the United Kingdom. In stark contrast to neoliberal culture is the social democratic corporatist culture of Sweden, Finland, Norway, and Denmark. Rather than insistence on atomistic “rugged individuals,” the social democratic corporatist culture recognizes the mutual support and interdependence of all members. Differences in incomes are relatively small (especially in contrast to the enormous differences found in the neoliberal United States), social inclusion is a powerful value, and social and economic support are regarded as basic rights. In the United States almost all prisoners are deprived of the right to vote, and, for many, their loss of that right continues even after release from prison. Prisoners in social democratic corporatist cultures retain the right to vote, and the governing assumption is that all prisoners will be completely restored to society as rapidly as possible: the continuing rights of prisoners are respected, and prisoners are not treated as outcasts or enemies of society. Prison sentences are imposed very reluctantly: the USA imprisons at a rate times higher than that of Sweden. When seeking the causes behind the enormous differences in prison conditions, rates of imprisonment, and social attitudes between neoliberal cultures and social democratic corporatist cultures, criminologists Cavadino and Dignan suggest this explanation: It is also possible that in a social democratic culture people are not so ruthlessly held responsible for the offenses they have committed, which are less likely to be attributed to the free will of the individual offender. Without necessarily going so far as to say that ‘society is to blame’ for all crime, there could nevertheless be a greater willingness to assume a degree of collective responsibility for the fact that an offence has been committed. (Cavadino and Dignan b: )
There is no “pixie dust” that we can sprinkle over the USA and the United Kingdom that will transform them into Norway and Sweden. But the point is that when we are seeking to change the brutally punitive retributive practices found in the USA and United Kingdom, we are not trying to change an isolated element but a central component of a much larger system. If we want a better alternative to retributivism, we must challenge the systemic forces that hold retributivism firmly in place. Dead
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center of that system is belief in individual moral responsibility: the belief that individuals are justly deserving of punishment and reward for their acts. Tightly linked with that belief are two others that hold it firm: belief in rugged individualism, and belief in a just world. Belief in rugged individualism – each individual is basically self-made, and every individual’s success or failure is almost exclusively the result of his or her own efforts – is tightly yoked to strong belief in individual moral responsibility. To the degree that you justly deserve reward or punishment, it must be because what you did was the product of your own individual efforts and under your own individual control. Cavadino and Dignan make clear the central importance of belief in individual responsibility both for belief in moral responsibility and for commitment to harsh punitiveness. There is much about the USA in the last three decades which may have made it fertile soil for law and order ideology. To begin with, the ideology’s conjunction of beliefs in free market capitalism and in the free will of the individual expresses a very American rugged individualism, which may help to explain the particularly strong burgeoning of punitive politics and its popular appeal in the USA. The neo-liberalism of American society is predicated upon individual responsibility in a way highly consonant with the law and order attitude. The American Dream is one in which every good individual has the opportunity to succeed whatever their initial disadvantages – a recurrent theme of feel-good Hollywood films with happy endings . . . Consequently, economic failure is seen as normally being the fault of the individual and no responsibility of society (hence the minimal, safety-net welfare state) – and so is crime. . . Social democratic societies have a different culture and a different, less individualistic and more sympathetic attitude towards both the economic failure and the criminal. (Cavadino and Dignan b: )
Belief in individual moral responsibility is closely linked with another deep belief: belief in a just world. This belief rarely comes to the surface, but it exerts a powerful force, and was a major factor in developing the strong belief in moral responsibility. Adrian Furnham gives this account: “The belief in a just world asserts that, quite justly, good things tend to happen to good people and bad things to bad people despite the fact that this is patently not the case” (Furnham : ). Delusion though it is, nonconscious belief in a just world is powerful and pervasive, and is wellestablished by an extensive body of psychological research (Furnham ; Hafer and Bègue ). When we reflect on it, it is painfully obvious that the world is not just. Innocent men, women, and children are the victims of wars, ethnic conflicts, genocidal purges, industrial disasters in Bhopal and Bangladesh,
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tsunamis, earthquakes, famine, and disease. This false belief may encourage our efforts and provide the “virtuous” fortunate with a sense of security, but the benefits of belief in a just world are paid for in fundamental injustice. As Lerner and Miller note: Since the belief that the world is just serves such an important adaptive function for the individual, people are very reluctant to give up this belief, and they can be greatly troubled if they encounter evidence that suggests that the world is not really just or orderly after all. (Lerner and Miller : )
In fact, people find it so troubling that they often solve the problem by concluding that the “innocent victim” was not so innocent after all, and instead received his or her just deserts. Blaming rape victims is a horrible and extensively documented example. Rape is brutal and demeaning. In a just world, no innocent person would suffer such abuse. When an innocent person is raped, our deep comforting nonconscious belief in a just world is threatened. But there is an all too easy defense of our just world belief: the rape victim must not have been innocent. She dressed provocatively, led him on, somehow “asked for it.” Harsh defense attacks on the character of rape victims are common and often effective, because juries start with an eagerness to preserve their belief in a just world by casting the victim as guilty. A wide range of studies has established the common tendency to preserve belief in a just world by blaming victims. When belief in a just world is stronger, the likelihood of blaming victims becomes greater (Wagstaff ; Furnham and Gunter ; Harper and Manasse ; Dalbert and Yamauchi ; and Montada ). Indeed, the need to believe in a just world is so strong that innocent victims often blame themselves (Lerner : –). It is not only the folk who manifest deep belief in a just world: philosophers – including some of the most psychologically sophisticated – are also entranced by this nonconscious belief. One of the major challenges to moral responsibility is the fact that we start from substantial differences in confidence, self-control, education, opportunities, abilities; thus it is not fair to blame those who fall short and reward those whose initial advantages translate into greater success. Daniel Dennett dismisses that objection with a charming example: Imagine a footrace in which the starting line was staggered: those with birthdays in January start a yard ahead of those born in December. Surely no one can help being born in one month rather than another. Isn’t this
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manifestly unfair? Yes, if the race is a hundred yard dash. No, if it’s a marathon. In a marathon such a relatively small initial advantage would count for nothing, since one can reliably expect other fortuitous breaks to have even greater effects . . . Is it fair enough not to be worth worrying about? Of course. After all, luck averages out in the long run. (Dennett : )
Of course, the differences in starting advantages aren’t always “relatively small,” but even if they are the differences are unlikely to be balanced out by subsequent racing luck; rather, the initial advantages increase rather than diminish. Initially more talented youth players get more playing time, develop greater stamina, gain more confidence, play in better leagues, have better and more intensive coaching, are selected for all-star teams, and play more games against better competition, and the distance between them and their slightly less talented friends continues to expand. George Sher presents an argument very similar to Dennett’s: Even if M is initially stronger or more intelligent than N, this difference will only entail that M does not deserve what he has achieved relative to N if the difference between them has made it impossible for N to achieve as much as M. However, differences in strength, intelligence, and other native gifts are rarely so pronounced as to have this effect. The far more common effect of such differences is merely to make it more difficult for the less talented person to reach a given level of attainment. He must work harder, husband his resources more carefully, plan more shrewdly, and so on. (Sher : –)
But the “natural lottery” does not distribute desirable attributes in such an even-handed manner. Greater intelligence results in success at solving challenges, which results in a stronger sense of self-efficacy (Bandura ) along with greater capacity for hard work and more practiced ability at planning shrewdly. The diligent tortoise triumphing over the swift but dilatory hare is a wonderful children’s story, but in reality the hare’s advantage in speed is more likely to be joined with better conditioning, stronger powers of perseverance, and superior racing skill. Once we believe in a just world, then retributive punishment against wrongdoers must be just, whether the punishment is meted out by divine or mortal powers; but how can it be just, when we know that individuals vary greatly in powers of cognition, fortitude, self-control, and concentration? The solution was found in a special human capacity of free will, which gave humans an almost godlike power of self-creation. In the fifteenth century, Pico della Mirandola proposed that humans have a special gift from God: the power to make ourselves, and by our own
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choice either descend to the level of the beasts or rise to the level of divinity. The human power of self-making has been a justification for moral responsibility ever since. Daniel Dennett is not so flamboyant in the self-making powers he ascribes to humans, but he nonetheless regards the self-making model as plausible grounds for moral responsibility: I take responsibility for any thing I make and then inflict upon the general public . . . Common wisdom has it that much the same rationale grounds personal responsibility; I have created and unleashed an agent who is myself; if its acts produce harm, the manufacturer is held responsible. I think this common wisdom is indeed wisdom. (Dennett : )
In some sense, of course, we do make ourselves by our own choices and efforts, but some start with better self-making materials and better tools for the self-making task than do others (including superior powers of selfcontrol and fortitude), and so supposing that self-making can be grounds for moral responsibility requires taking a very shallow view of the selfmaking process, or alternatively ascribing to humans a self-making power that can transcend all worldly limits. So there are three interlocking elements that hold the retributive system in place: belief in a just world, belief in rugged individualism and selfsufficiency and self-making, and belief in moral responsibility. In neoliberalism, we get these three elements on steroids: first, extreme belief in unlimited equal opportunity for all in the exceptionally just world of the United States: the USA is the land of equal opportunity that offers liberty and justice for all. Second, an extreme faith in the power of individual selfmaking: I made it myself, with no help. Jim Hightower, the Former Texas Commissioner of Agriculture, once said of George W. Bush that he was born on third base, and now he thinks he hit a triple. That fantasy of being a “self-made man,” who did it all himself with no help from anybody, and who owes nothing to anyone, is a widespread delusion in the United States. In the presidential campaign, Barack Obama made an offhand remark that generated a firestorm of conservative neoliberal protest: If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you’ve got a business – you didn’t build that. Somebody else made that happen. (White House, Office of the Press Secretary, )
“Somebody along the line gave you some help”; you didn’t do anything completely on your own; you needed the people who provided your
Beyond the Retributive System
education, built the infrastructure, made the discoveries that made your accomplishments possible. That is obvious, but that obvious truth is disturbing to those who fancy themselves “self-made men” who owe nothing to anyone. And of course, the flip side of the successful selfmade man who deserves all the credit is the self-made man who commits a crime or is an economic failure and who deserves all the blame. The third element of the neoliberal system is an obsessive insistence on individual moral responsibility. Everyone has fair opportunity in this fair system, thus everyone has the opportunity to fashion a successful self, and therefore everyone has full moral responsibility for his or her acts. Since everyone has full moral responsibility, enormous concentrations of wealth alongside abject poverty are regarded as perfectly legitimate because justly deserved; severely punitive measures are appropriate, since those who commit crimes had rich opportunities to take the path of virtue, and now have only themselves to blame for the criminal acts and their punitive consequences. One might suppose that, in this overheated insistence on moral responsibility, one would at least get an intense respect for individual human rights, a dedication to treating every individual as a member of Kant’s kingdom of ends, a system in which each self-made individual is accorded highest respect and there is profound concern for protection of human rights. In fact, the result is precisely the opposite. Programs that would support dignity and opportunity for the least well off – including the “safety net” for those who are in greatest need – are scaled back, even destroyed. The neoliberal United States, with its intense commitment to individual moral responsibility, was one of the very last countries to allow execution of children and of those with severe mental impairments. Although it proclaims the value of equal opportunity, it continues to provide terrible and dangerous schools for the least well off. Until very recently, many of its poor children had no effective access to health care, and little or no effort was made to correct the problem of lead poisoning in inner city ghettoes that severely compromised the intellectual abilities of thousands of poor children. The right of habeas corpus was abolished in the United States by the “Patriot Act” of and that abolition was further supported by the National Defense Authorization Act of . In the United Kingdom, the precious right to silence – the right that John Mortimer’s Rumpole of the Bailey called “the golden thread of British Justice” – was swept away. Protections against convicting the innocent are undercut. Defendants often must rely on incompetent or overworked defense counsel; they are threatened with draconian punishments if they
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do not plead guilty (the “trial tax” that makes a mockery of the right to a trial by jury); prosecutors use “jailhouse informants,” who are given bribes of reduced sentences or dropped charges in exchange for their perjured testimony. Why is the intense belief in individual moral responsibility linked with harsh threats to basic human rights? I suspect it is because retributive punitiveness gets ratcheted to such a high level that it overwhelms concern for rights, but that is speculative; what is not speculative is that individual rights are trampled – not only the right to fair opportunity but also the right to a fair trial. And when convicted, the punitive measures are often such that they destroy dignity (sometimes on purpose, such as shaming punishments that place men and women in chain gangs in public places) and sometimes by the nature of the imprisonment (in Supermax isolation, which threatens sanity). How do we break out of the moral responsibility retributive system? One proposed alternative is the therapeutic model: treat crime as if it were an illness, and seek to discover and implement effective treatments that will rehabilitate the criminal. The therapeutic approach generated enormous opposition, with the opposition swinging between two extremes. First, the “nothing works” (Martinson ) criticism: attempts to “treat” criminals to improve their behavior and prevent recidivism are a waste of money and effort because nothing works; so the best approach is to warehouse criminals through long mandatory prison sentences and policies of selective incapacitation. This was an attractive myth: we have made extensive efforts to rehabilitate criminals, and our generous efforts have failed because criminals are evil, and radically different from the rest of us, so ultimately it is not surprising that nothing works in changing their evil self-chosen nature. The nothing-works scenario was obviously false even at the time when Robert Martinson presented it in ; indeed, it was so obviously false that Martinson () himself renounced it years later, acknowledging that “some treatment programs do have an appreciable effect on recidivism.” Unfortunately, the damage was already done: the slogan overwhelmed careful examination of the reality. The second criticism was the opposite, playing on fears of science – and particularly psychiatry – that are easily exploited: the Clockwork Orange scenario of mad scientists manipulating criminals (and, after criminals, maybe the rest of us) through brutal conditioning “treatments.” The therapeutic model is an enormous improvement over retribution and the “war on crime,” and carefully designed rehabilitation programs will be an important element of any serious effort to move beyond retribution. But the therapy system preserves the basic assumption of the
Beyond the Retributive System
retributive moral responsibility system: moral responsibility is the default setting, and if we want to exempt anyone from just deserts in the form of retributive punishment, then we must excuse them from moral responsibility; and the most common form of excuse is that the individual is sick, unbalanced, deranged, and thus excused from just deserts and instead subject to treatment. And that, of course, is a major reason for resistance to the therapy model of treating criminal behavior: the notion that criminals are sick is not only implausible but is also resisted by criminals themselves, and for good reason. To be a criminal is to be a wrongdoer, but still a member of the moral community. To be excused and subject only for treatment is to be regarded as outside the community: in P. F. Strawson’s () famous analysis, something to be treated but no longer eligible for participant reactive attitudes such as love and respect. Instead of regarding exemption from moral responsibility as an exception, the key is to drop the moral responsibility system altogether and move “beyond blame and shame.” The moral responsibility system is made up of three elements: belief in a just world, commitment to individualism and individual self-making, and individual moral responsibility. All three elements are locked in place by a refusal to look hard and deep at the actual causes and conditions of human behavior. In the libertarian tradition, deeper inquiry traditionally is blocked by miraculous first-cause powers that have no causal history to study: that is the approach of most libertarians, from Pico della Mirandola to C. A. Campbell to Roderick Chisholm. But even among the compatibilists – who fervently reject any appeal to miraculous powers – the first line of defense for moral responsibility is the resistance to any efforts at deeper inquiry into causes of behavior. John Martin Fischer develops a charming account of this strategy for defending moral responsibility, which he compares to the “middle path” of Buddhist virtue: It is also important to see that certain approaches to moral responsibility require us to trace back excessively far into the past; this is . . .. a form of overreaching or “metaphysical megalomania.” . . . Although I am inclined to agree that an agent must be the source of his behavior, in order to be morally responsible for it, I do not conclude from this intuitive point that such an agent must be the “ultimate source” . . . I believe that our moral responsibility requires that we play the cards that are dealt us . . . but surely this does not require that we deal ourselves the cards, or that we own the factory that made the cards. (Fischer : )
This is a wise strategy if you wish to preserve belief in moral responsibility: don’t look too hard or too deep at the causes of behavior, because
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you will discover formative factors that were the product of good or bad luck, rather than grounds for holding people morally responsible. This resistance to deeper inquiry is even clearer in Michael Moore’s defense of the moral responsibility of Patty Hearst, a peaceful, innocent -year-old student who had grown up with all the privileges and protections of great wealth but who had the misfortune of being kidnapped and brainwashed by the Symbionese Liberation Army, a group of urban guerillas who financed their goals by robbing banks. Patty Hearst’s newly formed criminal commitments were the product of violent and terrifying treatment, together with crude brainwashing methods, but that makes absolutely no difference to Moore: “She robbed the bank; it was her act, whether or not a situation that was not of her making implanted in her the beliefs that caused her to act” (Moore : ). That is precisely the way the moral responsibility/criminal justice system works; and if it is to function as it now does, any examination of the shaping of Patty Hearst’s criminal character must be off-limits. Examining her history would also require examining the brutal conditions that shaped the criminal characters of other criminals: the dysfunctional families, violent childhoods, inferior schools, harsh juvenile justice, and other conditions even more obvious and thorough than those that transformed peaceful Patty Hearst into violent Tania. The moral responsibility system functions by blocking the deeper psychological and sociological examination of causes and details and differences that explain behavioral differences and undercut confidence in just deserts. As Thomas W. Clark notes: “To the extent that criminality is thought to arise from individuals’ self-caused, freely willed choices, its actual biological, social, and economic causes will necessarily go unexplored and unaddressed” (Clark : ). The neoliberal culture glorifies individual moral responsibility, so it is not surprising that champions of neoliberalism oppose scrutiny of the deeper causes of criminal behavior. James Q. Wilson was an architect of the “selective incapacitation” policy of long-term warehousing of criminals through policies such as “three strikes” lifetime incarceration, and he rejects all questions concerning the causes of crime: “There is one great advantage to incapacitation as a crime control strategy—namely, it does not require us to make any assumptions about human nature” (Wilson ). That is indeed the great advantage of a criminal justice system based in moral responsibility: it allows us to avoid looking deeper and to pretend that the problems are solved by administering “just” punishment. This is a particularly important advantage in neoliberal cultures in which deeper inquiry might force us to confront the fact that our positions of
Beyond the Retributive System
privilege are built on the misery of others, and thus we ourselves contribute to crime. From the neoliberal perspective we are all self-made, fully responsible for ourselves and our behavior, and nothing is gained by looking harder and deeper. That belief is explicit in the speeches of neoliberal hero Ronald Reagan: “Our forebears were never concerned about why a person misbehaves. We are straying away from the principle of holding the individual responsible for his actions” (quoted in Beckett : ). In the midst of the media-fueled frenzy for imposing severe punishment on the “Central Park Five” for attacking a young woman jogging in Central Park (the five who were later shown to be innocent of the crime, after serving many years in prison), New York Mayor Ed Koch fanned the flames: “To understand is to forgive. I don’t want to understand what motivates someone to engage in this kind of horror, I want, rather than to understand them, I want them punished.” In an inflammatory neoliberal speech calling for tougher penalties for juvenile crime, Prime Minister John Major voiced a similar view: “Society needs to condemn a little more and understand a little less” (Major : ). Koch and Major were right: condemning more and understanding less is precisely how the moral responsibility system works, particularly in its extreme neoliberal form; less understanding is the price paid for clinging to moral responsibility and retribution. Preserving retributivism and its moral responsibility foundation requires limiting inquiry. The path beyond retributivism leads in the opposite direction: to the search for greater understanding of individual behavior and its causes, as well as in the study of society and the larger social environment and its impact on both criminal and constructive behavior. Just as the best way to deal with cancer is to prevent it, the same applies to crime, and just as we must carefully study the environmental factors and their interaction with individual factors in order to prevent cancer, we must do the same in attempting to prevent crime. We already know a great deal about the factors that enable people to avoid crime and live productive lives, as well as the factors that contribute to crime; unfortunately, we fail to apply that knowledge effectively. James Gilligan, former director of Harvard Medical School’s Center for the Study of Violence, listed four factors in the neoliberal United States that are major contributors to criminal violence: the social and economic system of the United States combines almost every characteristic that maximizes shame and hence violence. First, there is the “Horatio Alger” myth that everyone can get rich if they are smart and work hard (which means that if they are not rich they must be stupid or lazy, or
. both). Second, we are not only told that we can get rich, we are also stimulated to want to get rich. For the whole economic system of mass production depends on whetting people’s appetites to consume the flood of goods that are being produced (hence the flood of advertisements). Third, the social and economic reality is the opposite of the Horatio Alger myth, since social mobility is actually less likely in the U.S. than in the supposedly more rigid social structures of Europe and the U.K. Fourth, the U. S. has the most unequal income distribution and the highest poverty rates among all the advanced economies in the world. The net effect of all these features of U.S. society is to maximize the gap between aspiration and attainment, which maximizes the frequency and intensity of feelings of shame, which maximizes the rates of violent crimes. (Gilligan : –)
From the positive perspective, we also know what factors reduce crime in communities and for individuals. Criminologist Rob Canton states some obvious points concerning the prevention of criminal behavior, but those obvious policies are often overwhelmed by punitive programs that have the opposite effect: Desistance . . . typically depends on living a worthwhile life, including, for example, sustaining rewarding relationships and ‘prosocial’ ways of living. The informal social controls exercised on most of us by our partners, our friends, our colleagues and which arise spontaneously from living full lives are a much more compelling inducement to good behaviour than the external controls of criminal justice. (Canton : )
Retributive punitiveness blocks and disrupts stable relationships, and undercuts social relations that could radically reduce crime. People need the opportunity to take responsibility for their families, their jobs, their own constructive behavior. But the responsibility taken is not moral responsibility; rather, it is the responsibility we all need and cherish of having work and goals that are our own and that we can strive to accomplish and that make a genuine contribution: the responsibility of effectively carrying out our roles as parents, spouses, teachers, attorneys, police officers, candlestick makers, and bakers. It is what H. L. A. Hart () called role responsibility, which has great positive value, in contrast to the moral responsibility that blames and shames. We need to build a social system in which everyone has a genuine opportunity to claim and competently exercise respected role responsibilities. But when politicians score cheap political points with diatribes celebrating a war on crime, any attempt to look for the causes and fix the problems and improve society and help those who are caught up in criminal behavior is regarded as giving aid and comfort to the enemy.
Beyond the Retributive System
Moving beyond individual moral responsibility and blame and retribution has been a slow process, and under the neoliberal onslaught we seem to be moving backwards. But in some areas we have already implemented programs that reject blame and shame in favor of greater knowledge and better understanding, and such programs have achieved remarkable success. One of the most noteworthy is in air traffic control. In the past, individual controllers were singled out and severely blamed for mistakes – sometimes tragic mistakes, other times terrifying near misses. Controllers struggled to hide their small mistakes, which often went undetected, and endeavored to shift blame to others when mistakes were uncovered. Investigating the causes of mistakes was made more difficult, and many errors that should have been examined and their causes discovered and thus future mistakes prevented were instead covered up until a subsequent mistake resulted in disaster. In the Commercial Aviation Safety Team adopted the systems approach to improving airline safety in the United States, in which mistakes were treated as faults in the air traffic control system rather than being blamed on individual controllers, and controllers were rewarded for reporting errors and seeking systemic ways of preventing the recurrence of errors. Problems in the system could be more effectively discovered, and corrections could be made that would prevent such errors from occurring. The result was a dramatic reduction in errors, and a reduction in air traffic fatalities by % over the next decade. A similar program has been implemented in some medical settings. Errors in medical treatment have been enormous; in , one authoritative estimate of the annual number of deaths in the United States due to medical error was between , and ,. A major obstacle to preventing such errors has been the belief in the medical community that good physicians do not make mistakes, and that the individual physician deserves severe blame for any mistake made. As Lucian Leape described the problem: In everyday hospital practice, the message is . . . clear: mistakes are unacceptable. Physicians are expected to function without error, an expectation that physicians translated into the need to be infallible. . . this need to be infallible creates a strong pressure to intellectual dishonesty, to cover up mistakes rather than to admit them. The organization of medical practice, particularly in the hospital, perpetuates these norms. Errors are rarely admitted or discussed among physicians in private practice. Physicians typically feel, not without reason, that admission of error will lead to censure or increased surveillance or, worse, that their colleagues will regard them as incompetent or careless. Far better to conceal a mistake or, if that is impossible, to try to shift the blame to another, even the patient. (Leape : –)
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Problems cannot be effectively studied when all the energy is invested in avoiding blame and deflecting blame elsewhere. Rather than seek infallible physicians and perfect nurses and using blame and shame to condemn the inevitable mistakes, we must look for why mistakes happen, including the small mistakes and the near mistakes that reveal places where we need systemic change (perhaps in clearer labeling, or better access to patient records, or more sleep for overworked interns, or ways of double checking meds before they are administered, or a culture in which everyone – including nurses, technicians, and interns – is encouraged to voice concerns and have those concerns taken seriously). When the focus is finding and blaming an individual, the systemic causes of individual errors are left in place to produce repeated failure. There are promising programs that offer clear indications of what form a criminal justice system might take in a world without moral responsibility. In contrast to the traditional retributive justice model, restorative justice (Braithewaite , ; Morris ; and Johnstone ) focuses on restoring to wholeness or health the community where the crime occurred and the crime victims (so far as possible), as well as restoring the perpetrator to the community. Restorative justice programs vary widely, but there are some common features. First, it is important that the person committing a crime – who harmed the community and individuals within the community – acknowledge the wrongdoing, recognize that others were hurt by the wrongdoing, recognize his or her own fault, and sincerely apologize for the wrong done. Some suppose that the denial of individual moral responsibility eliminates the possibility of sincere apology; the opposite is the case (Waller ). I can more readily recognize and acknowledge and sincerely regret my own genuine flaws – and how acting from those flaws has harmed others – when I also recognize that I am not morally responsible for my flaws, that they were caused by factors I did not control. The flaw is still my own, and I recognize that I was the source of harm, and regret the harm and resolve to correct the flaw, and I can more readily face that unpleasant fact if I realize that I should not be blamed for my own flaws. Second, the community emphasizes restoring the wrongdoer to the community and examines what went wrong to cause this community member to become seriously flawed in his or her behavior, and what can be done to change the causal forces to correct such flaws and prevent their development in others. The restorative model recognizes that, just as problems in air traffic control and medical treatment are often due to systemic rather than individual problems, so also criminal acts are often indicative of social rather than narrowly individual problems. Thus the restorative justice model combines
Beyond the Retributive System
a strong commitment to sincere apology with an equal commitment to finding and understanding and correcting the causes for criminal behavior (including causes within the community itself ). Restorative justice opens the process, encourages deeper scrutiny, and broadens our perspective: the focus is not exclusively on the wrongdoing of the offender but on the relation between offender and community, and includes seeking out community problems as well as individual problems and their causes. Finally, in restorative justice the victim is not reduced to a prop in a retribution drama, providing a “victim impact statement” that is designed to inflame anger against the offender and justify increased punitive harshness, but which also solidifies the “victim status” and may increase a sense of helplessness as well as exacerbating fear of these alien and inexplicable criminals. Instead the victim is deeply involved in the restorative process, treated with respect, the damage suffered is taken very seriously, and a sincere apology – which is what most victims really want, whether victims of medical error or crime – is more likely. As we gain greater knowledge and understanding of the powerful causes that shape both virtuous and vicious behavior, the belief in moral responsibility is diminished, and as belief in moral responsibility wanes, so the opportunity for deeper inquiry waxes. With enhanced and enlarged understanding, we have the opportunity to move beyond retributive punishment, but moving entirely beyond punishment will be much more difficult, and perhaps impossible. Punishment – sometimes even imprisonment – will be unavoidable for the foreseeable future. But it is better that we recognize that we are inflicting punishment, and that the punishment is not justly deserved. We may label the punishment with a new name: preventive detention, therapeutic intervention. Whatever we call it, we should not hide from ourselves what we are doing. Some criminals must be detained for the protection of society, and they do not justly deserve such treatment. Painful as it is to be involved in such injustice, we should acknowledge that an injustice is being done. When imprisonment cannot be avoided, there remains a vast difference between treating prisoners as the legitimate targets of righteous retribution and treating them as people like ourselves whose unfortunate behavior was produced by flaws in our social system. As the governor of Norway’s Bastoy Prison, Arne Nilsen, described the difference: “I believe that we as human beings, if we are prepared to make fundamental changes in the way we regard crime and punishment, can dramatically improve the rehabilitation of prisoners and thereby reduce the reoffending rates . . . I believe that the UK is going in the wrong direction—down a
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completely mad and hopeless path, because you still insist on revenge by putting people in harsh prison conditions that harm them mentally and they leave a worse threat to society than when they entered” (Hernu ). We probably must confine – imprison – the brutal sociopath, Robert Harris, described by Gary Watson (), but if we recognize our share in producing Robert Harris and the conditions that shaped him, we will not feel so eager for harsh punishment. Instead, we will recognize – in Neil Levy’s () felicitous phrase – that the criminal is now facing double misfortune, and that his failure is one we shared in producing, and that we are participating in an injustice by confining him against his will. That doesn’t mean that we are obligated to provide the prisoner with a five-star resort (Smilansky ), but it does mean that we must treat Robert Harris as decently as possible, and that we must come to grips with the fact that the world is unjust, and that sometimes we cannot avoid being part of that injustice. The recognition that we are contributing to injustice is painful, as it should be, but that discomfort can motivate dedicated efforts to make reforms that will reduce the need for and length of imprisonment. The belief in moral responsibility does not disappear in social democratic corporatist cultures, but it is clearly much less powerful, moderated by a strong recognition of social interconnectedness. With weakened belief in moral responsibility comes better rehabilitative efforts, more intelligent efforts at shaping a society that prevents rather than nourishes crime, and more respectful treatment of wrongdoers. Positive steps beyond retribution occur when reliance on blame and moral responsibility is replaced by a commitment to exploring and understanding the causes of problems (as in air traffic control) and in finding programs that solve problems (as in Norway) rather than exacerbate them. Maintaining belief in moral responsibility requires blocking deeper causal inquiry, and it is only through unrestricted study of both social and individual causes of behavior that better alternatives to retributivism can emerge. If we are to move beyond retribution, we must also move beyond moral responsibility and the radical individualism and just world beliefs that form the retributive unholy trinity. R E F E R EN C E S Bandura, A. (). Self-Efficacy: The Exercise of Control. New York: W. H. Freeman. Barash, D. P., and J. E. Lipton. (). Payback: Why we Retaliate, Redirect Aggression, and Take Revenge. New York: Oxford University Press. Beckett, K. (). Making Crime Pay: Law and Order in Contemporary American Politics. New York: Oxford University Press.
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Bottoms, A. E. (). The philosophy and politics of punishment and sentencing. In C. Clarkson and R. Morgan, eds., The Politics of Sentencing Reform. Oxford: Clarendon, pp. –. Braithewaite, J. (). Restorative justice: assessing optimistic and pessimistic accounts. Crime and Justice: A Review of Research, , –. (). Restorative Justice and Response Regulation. Oxford: Oxford University Press. Canton, R. (). Not another medical model: using metaphor and analogy to explore crime and criminal justice. British Journal of Community Justice, , –. Cavadino, M., and J. Dignan. (a). Penal policy and political economy. Criminology and Criminal Justice, , –. (b). Penal Systems: A Comparative Approach. London: Sage. Clark, T. W. (). Encountering Naturalism: A Worldview and Its Uses. Somerville, MA: Center for Naturalism. Dalbert, C., and L. Yamauchi. (). Belief in a just world and attitudes toward immigrants and foreign workers: A cultural comparison between Hawaii and Germany. Journal of Applied Social Psychology, , –. Damasio, A. R. (). Looking for Spinoza: Joy, Sorrow, and the Feeling Brain. Orlando, FL: Harcourt. Dennett, D. (). Elbow Room. Cambridge, MA: MIT Press. Doob, A. N., and J. V. Roberts. (). An Analysis of the Public View of Sentencing. Ottawa: Department of Justice (Canada). Esping-Andersen, G. (). The Three Worlds of Welfare Capitalism. Princeton, NJ: Princeton University Press. (). Social Foundations of Postindustrial Economies. New York: Oxford University Press. Fischer, J. M. (). Deep Control: Essays on Free Will and Value. New York: Oxford University Press. Fishkin, J. (). Bringing deliberation to democracy. The Public Perspective, , –. French, P. (). The Virtues of Vengeance. Lawrence, KS: The University Press of Kansas. Furnham, A. (). Belief in a just world: research progress over the past decade. Personality and Individual Differences, , –. Furnham, A., and B. Gunter. (). Just world beliefs and attitudes towards the poor. British Journal of Social Psychology, , –. Gilligan, J. (). Preventing Violence. New York: Thames and Hudson. Hafer, C. L., and L. Bègue. (). Experimental research on just-world theory: problems, developments, and future challenges. Psychological Bulletin, , –. Harper, D., and P. Manasse. (). The just world and the third world: British explanations for poverty abroad. Journal of Social Psychology, , –. Hart, H. L. A. (). Punishment and Responsibility. Oxford: Clarendon Press.
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Hernu, P. (). Norway’s controversial ‘cushy prison’ experiment – Could it catch on in the UK? Daily Mail. Updated July , : www.dailymail.co .uk/home/moslive/article Indermaur, D., L. Roberts, C. Spiranovic, G. Mackenzie, and K. Gelb. (). A matter of judgment: the effect of information and deliberation on public attitudes to punishment. Punishment and Society, , –. Johnstone, G., ed. (). A Restorative Justice Reader. Cullompton UK: Willan Publishing. Kawamura, S. (). Aggression as studied in troops of Japanese monkeys. In C. Clemente and D. Lindsley, eds., Aggression and Defense, Brain Function. Berkeley: University of California Press, pp. –. Lacey, N. (). The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Democracies. New York: Cambridge University Press. Leape, L. (). Error in medicine. Journal of the American Medical Association, , –. Lerner, M. J. (). The Belief in a Just World: A Fundamental Delusion. New York: Plenum Press. Lerner, M. J. and D. T. Miller. (). Just world research and the attribution process: looking back and ahead. Psychological Bulletin, , –. Levy, N. . Hard Luck: How Luck Undermines Free Will and Moral Responsibility. New York: Oxford University Press. Major, J. (). Interview with the editor of the Mail (London), Jonathan Holbrow, February , . Martinson, R. (). What works?—Questions and answers about prison reform. The Public Interest, , –. (). New findings, new view: a note of caution regarding sentencing reform. Hofstra Law Review, , –. Montada, L. (). Belief in a just world: a hybrid of justice motive and selfinterest. In L. Montada and M. Lerner, eds., Responses to Victimizations and Belief in the Just World. New York: Plenum, pp. –. Moore, M. S. (). Placing Blame: A General Theory of the Criminal Law. Oxford: Oxford University Press. Morris, A. (). Critiquing the critics: a brief response to critics of restorative justice. British Journal of Criminology, , –. Nichols, S. (). After incompatibilism: a naturalistic defense of the reactive attitudes. Philosophical Perspectives, , –. Potegal, M. (). Aggressive arousal: the amygdala connection. In M. Potegal and J. F. Knutson, eds., The Dynamics of Aggression: Biological and Social Processes in Dyads and Groups. Hillsdale, NJ: Lawrence Erlbaum Associates, pp. –. Sher, G. (). Desert. Princeton, NJ: Princeton University Press. Smilansky, S. (). Hard determinism and punishment: A practical reductio. Law and Philosophy, , –. Solomon, R. C. (). In Defense of Sentimentality. New York: Oxford University Press.
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Sommers, T. (). A Very Bad Wizard. San Francisco, CA: Believer Books. Strawson, P. F. (). Freedom and resentment. Proceedings of the British Academy, , –. Virgin, C. E., and R. Sapolsky. (). Styles of male social behavior and their endocrine correlates among low-ranking baboons. American Journal of Primatology, , –. Wagstaff, G. F. (). Correlates of the just world in Britain. Journal of Social Psychology, , –. Waller, B. N. (). Sincere apology without moral responsibility. Social Theory and Practice, , –. Watson, G. (). Responsibility and the limits of evil. In F. Schoeman, ed., Responsibility, Character, and the Emotions. Cambridge: Cambridge University Press, pp. –. Wilson, J. Q. (). Selective incapacitation. In A. von Hirsch and A. Ashworth, eds., Principled Sentencing: Readings on Theory and Policy, nd ed. Oxford: Hart Publishing, pp. –.
Alternatives to Retributive Punishment
Free Will Skepticism and Prevention of Crime Derk Pereboom
The free will skeptic aims to articulate a theory for treatment of criminals that rejects retributivism, since this justification for punishment is inconsistent with the skeptic’s outlook, but nevertheless actually works in the real world. In past versions of such an account, I’ve emphasized the quarantine analogy for incapacitation together with the value of rehabilitation and reintegration (Pereboom : –, , : –), and I’ve endorsed Gregg Caruso’s embedding the view within a public health model (Caruso , ; Pereboom and Caruso ). Recently I’ve paid special attention to the permissibility and the limits of special and general deterrence (Pereboom b, ). Here I set out this view and develop it in certain key respects in response to the latest objections raised against it.
. Free Will and Retributivist Theories of Punishment On the retributivist theory for the justification of punishment, the good at which punishment aims is that wrongdoers receive what they deserve just because of their having knowingly done wrong (Kant ; Moore ; Morse ); that is, their punishment is justified because they basically deserve to be harmed (Pereboom : xx; : , ; cf. Feinberg ; Scanlon ). The retributivist theory is incompatible with free will skepticism, since if agents do not deserve to be blamed just because they have knowingly done wrong, neither do they deserve to be punished just because they have knowingly done wrong. Indeed, one reason to oppose retributivism derives from skepticism about the sort of control in action – the free will – that attribution of basic desert requires. Libertarians and compatibilists may reject this skepticism, but to secure the legitimacy of actual punishment on a retributive basis, the case they make for affirming that we have such free will must meet a high epistemic standard. Punishment involves inflicting harm, and, in general, justification for
harming, in particular when it is nontrivial, must meet a high epistemic standard. If it remains open that one’s justification for harming is unsound, then at least prima facie that behavior is seriously wrong (Pereboom : ; : ; Vilhauer ; Caruso ). There are reasons to think that retributivism is unacceptable independent of the concern regarding free will. It’s open that retributivist sentiments are grounded in a desire for revenge, and, if so, retribution would be on no better footing than vengeance as a reason for punishing (Pereboom : –, : –). And even if criminals basically deserve to be harmed, would seeing to it that they receive what they basically deserve be a legitimate function of the state? It’s generally agreed that these legitimate functions include protecting citizens from serious harm and providing a framework for valuable personal and economic interaction. Is there reason to think that administering harm in accord with basic desert is another such function? If it were, so would distributing reward in accord with basic desert, or at least so it would seem. Shouldn’t we then set up state-funded institutions for distributing rewards that correspond to our institutions for delivering criminal justice? Such a proposal is never made or taken seriously. So why should a massively expensive retributive justice system fare better? (Pereboom : –).
. A Deterrence Theory Consistent with the Absence of Free Will According to deterrence theories of criminal punishment it’s the prevention of criminal wrongdoing that serves as the good by means of which punishment is justified. As noted, it’s generally agreed that protecting citizens from serious harm is a legitimate function of the state, and deterrence theories accord with this function. Deterrence theories don’t appear vulnerable to concerns about free will, or at least not at first glance. At the same time, deterrence theories are subject to the general objection that they license treating people merely as means. One response to this objection is that criminals have, by virtue of their criminal behavior, lost the protection the right offers, at least for a time, not to be treated merely as means. This response might in turn be justified on grounds of basic desert – the criminal basically deserves to lose the protection that the right not to be used provides (Nelkin ). But this claim reintroduces the concern about free will. A historically prominent deterrence theory is Jeremy Bentham’s (/ ) utilitarian version. In his conception, the state’s policy for the threat
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of criminal behavior should aim at maximizing utility, and punishment is justified if, and only if, it does so. The negative consequences of punishment result from limitations on freedom due to the threat of punishment, from the anticipation of punishment by those who have been sentenced, from the actual punishment itself, and from the sympathy for those who are punished felt by others such as their friends and family. The most significant positive consequence is due to the increased security that results from punishment’s capacity to deter. A serious concern raised for utilitarian deterrence theory is the use objection. A general problem for utilitarianism is that it potentially requires that people be used merely as means; that is, that they be harmed without their consent in order to benefit others, and this is intuitively wrong. Punishing criminals for the sake of security would at least initially seem to qualify as use of this sort. As noted, one response to this concern invokes desert (Nelkin ); one might claim, for example, that criminals basically deserve to lose the protection that the right not to be used provides. Some who maintain that the main point of punishment is deterrence may be implicitly relying on a retributivist assumption of this sort. But if the free will skeptic is right, such a view is unavailable. The kind of deterrence theory advocated by Daniel Farrell potentially avoids the use objection by grounding the right to punish not in consequentialist considerations but instead in the right to harm aggressors to defend against immediate threats (Farrell : –; Kelly ). Farrell’s justification of punishment foregrounds special deterrence – deterrence of actual, by contrast with merely potential, threats. (General deterrence encompasses deterrence of merely potential threats as well.) In outline, his view is this. Each of us has the right of direct self-defense – your right to harm an unjust aggressor that is an actual threat to prevent the aggressor from harming you or someone else. Each of us also has the right of indirect self-defense – your right to threaten an unjust aggressor with that amount of harm to prevent the aggressor from harming you or someone else. It’s crucial to note that the right of direct self-defense is the right to inflict the minimum amount of harm on an unjust aggressor needed to prevent the aggressor from harming you. Because you also have the right of indirect self-defense, you have the right to threaten to inflict that minimum amount of harm. The right of direct self-defense permits you to carry out this threat against the aggressor when it is clear that the threat alone is ineffective as a deterrent. Furthermore, since each of us has these rights of indirect and direct self-defense, the state, acting as proxy for us, may issue corresponding general threats in order to deter unjust aggressors,
and may also legitimately carry out such threats when the threat alone is ineffective. In this way the right to self-defense yields justification for the state’s policy of criminal punishment. The self-defense rights invoked by Farrell’s account are widely accepted, and it’s open to the free will skeptic to endorse them as well. Thus it would seem that this account provides free will skeptics with a justification of criminal punishment they can adopt. But is Farrell correct in claiming that punishment, exactly, can be justified in this way, where punishment is the intentional imposition of harm on criminals for the reason that they have done wrong? I’ve argued that it cannot (Pereboom : ; : ). When criminals who have committed a violent crime are in custody prior to trial, they most often do not pose an immediate threat since they are under restraint. Supposing that they would continue to be violent if they were released, it might well be that the minimum harm required to keep them, in their restrained circumstances, from future violence is preventative detention, and not under unpleasant circumstances. Accordingly, Farrell’s line of reasoning might justify preventative detention, and not imprisonment conceived of as punishment. What makes it appear that punishment can be justified in this way is the model of an unjust aggressor in circumstances in which state law enforcement and criminal justice agencies have no role – a “state of nature” situation. Here violent harm might be justified, but these circumstances differ significantly from those of an unjust aggressor being tried in court (Pereboom : –; : –). If one proposes to harm an aggressor more severely, for instance to provide credibility for a system of threats, the right to harm in self-defense would not supply the requisite justification. One might object that if criminals don’t deserve to be detained, it would be at least prima facie wrong to detain them. At this point I draw on Ferdinand Schoeman’s () analogy to quarantine of carriers of dangerous diseases. We generally agree that it is legitimate to isolate carriers of the Ebola virus to protect others from this disease, even if those carriers don’t deserve to be isolated. Similarly, it would be legitimate to detain those who pose threats of violence, even if they don’t deserve to be detained. Absence of desert in these cases issues in restrictions on justifiable treatment. It would be wrong to treat carriers of communicable diseases more severely than is required to protect others from the resulting threat. Analogously, it would be wrong to treat criminals more harshly than is required to protect others from the threats they pose. Moreover, just as threats involving moderately dangerous diseases may justify only measures less restrictive than quarantine, so merely moderately serious threats may only justify
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measures less restrictive than detention. In addition, this account recommends concern for the rehabilitation and well-being of the criminal that would alter much of current practice. For just as we should seek to cure the diseased we isolate, so we should aim to prepare detained criminals for reintegration (Pereboom : –, ; Caruso , ; Pereboom and Caruso ).
. General Deterrence Without Basic Desert Farrell’s deterrence theory highlights the distinction between special deterrence (punishment aimed at preventing actual unjust aggressors from engaging in criminal behavior) and general deterrence (punishment aimed at preventing merely potential unjust aggressors from doing so). In his view, special deterrence is significantly easier to ground in the right to harm in self-defense or defense of others than is general deterrence. He contends that the theory he proposes does not extend to full-fledged general deterrence, for this would involve harming someone to prevent not just that person’s aggression but also the potential aggression of others, and this would involve use. But note that preventative detention, justified as special deterrence on the ground of the right to self-defense, stands to have a significant general deterrent effect. For it’s plausibly required that the state not conceal the fact that it detains violent criminals on such a ground, but to make this information publicly available. We have the right to know what the state does to its members, and why, when they are dangerous to others. But such a policy would serve to yield, as a side effect, general deterrence. Such preventative detention would not only have a deterrent effect on the actual unjust aggressors who are detained but also on others who are tempted to commit crimes. This general deterrent effect comes for free, so to speak, since it is a side effect of the state’s satisfying a publicity requirement on special deterrence. I call general deterrent effects justified as special deterrence on the basis of the self-defense right free general deterrence (Pereboom ). Free general deterrence comes with a significant limitation on how much harm can legitimately be inflicted – only the minimum harm required to protect against an aggressor can be justified. One way of justifying more exacting general-deterrence-subserving penalties is on grounds of basic desert, in accord with Dana Nelkin’s () proposal. The state’s function includes deterring crime, but punishment justified on general deterrence grounds is subject to the use objection, yet as long as
criminals basically deserve punishment of a particular severity, it is legitimate to recruit that punishment to the service of general deterrence. That line of justification is not open to the free will skeptic. Kevin Murtagh (in this volume) argues that punishment justified as general deterrence is not subject to a deontological requirement as stringent as the rule against use. According to one widely endorsed deontological view, intentions and intended actions are subject to more stringent prohibitions than are unintended side effects of intended actions; this is the core idea of the doctrine of double effect. Murtagh argues that our intention in setting up a scheme aimed at deterrence is to prevent crime by threat. What we intend, then, is to threaten and to prevent crime by threat. Punishment is required to support the threat scheme if the conditions on threats are violated. However, it’s generally accepted that one intends the means one selects to achieve what one wants. A mere side effect, then, cannot be means one selects for attaining what one wants. We can agree with Murtagh that the primary intention of the general deterrence scheme is to prevent crime by threat. And he’s right that we’d be perfectly content if no crime was ever committed as a result. But once conditions of the threats are violated and crimes are committed, we will want to maintain the deterrence scheme, which is now imperiled. If we failed to act on our threats by punishing, the threats would cease to be credible, and the deterrence scheme would collapse. At this point we punish as a means to what we now want, to maintain the deterrence scheme. And we intend the means we choose. Thus punishment, given this scheme, is intended, and is subject to the more stringent rules governing intentions and intended actions. I’ve proposed another way to justify general deterrence that surpasses free general deterrence, albeit to a limited degree (Pereboom b, ). First, I’ve argued that it’s plausibly the right to life, liberty, and physical security of the person that have a key role in making the use objection to general deterrence intuitive. Those rights are grounded in the more general right to a life in which one’s capacity for flourishing is not compromised in the long term. There is a heavily weighted presumption against punishment as use where that involves intentional killing, long-term confinement, and infliction of severe physical or psychological harm. But if the proposed penalties are significantly less extreme, such as monetary fines and short prison terms, it would be permissible to use unfree wrongdoers in ways that involve such penalties to subserve general deterrence. There may well be many circumstances in which effective general deterrence would require modest penalties of these sorts, and yet more
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severe and thus involving the imposition of more harm than can be justified on special deterrence grounds; that is, as free general deterrence. Suppose preventing a habitual shoplifter from theft requires only monitoring with an ankle bracelet. But the probability of shoplifters without monitoring devices being caught is low. As a result, for quite a few people the expected utility of shoplifting is relatively high. Imagine that increasing the severity of the penalty for shoplifting to a modest but substantial monetary fine would reduce shoplifting significantly relative to the threat of mere monitoring. Suppose in addition that it would reduce the cost of deterrence significantly relative to the monitoring policy. Would increasing the severity of the penalty be permissible in these circumstances? Note that monetary fines, by contrast with long-term confinement, don’t hinder the prospects for a life lived at reasonable level of flourishing. Accordingly, if imposing hardship on an offender on special deterrence grounds can be justified, imposing a somewhat more exacting measure, not justified on special deterrence grounds, is plausibly justified if it substantially increases general deterrence value, and/or it substantially lowers the cost of deterrence, provided that the more exacting measure doesn’t hinder the prospects for a life lived at a reasonable level of flourishing (Pereboom ). This proposal might be justified on consequentialist grounds; one need not be a full-fledged consequentialist to hold that consequentialist considerations have some weight when deciding moral and legal issues. It requires only that such considerations have modest additional weight when special deterrence justification is already accounted for. We generally accept that it’s legitimate for the police to apprehend suspects of crime when there is adequate, but nevertheless insufficient, reason to believe that they are in fact criminals. This is a significant cost we impose on many who are in fact innocent, a cost that would be difficult to justify on other than consequentialist grounds. Tadros () proposes a nonconsequentialist justification for general deterrence that invokes duties wrongdoers have to their victims, one that avoids desert and is thus amenable to free will skepticism. In one of his examples, Dave, a lorry driver, involuntarily and nonculpably injures Veronica. Tadros contends, plausibly, that Dave has a more stringent duty to assist Veronica than does Xavier, a bystander. Suppose that instead Dave voluntarily injured her while satisfying the compatibilist condition on moral responsibility. Tadros maintains that now Dave incurs even more stringent and extensive duties of this sort, even if factors beyond his control causally determine him to act, and even if he therefore doesn’t
basically deserve to have the cost that carrying out these duties involves imposed on him (Tadros : –). By analogy, it’s plausible that those who commit crimes collectively have a duty to compensate society that noncriminals lack, even if they don’t deserve to suffer the harm involved in making this compensation. By voluntarily doing wrong, criminals make an expensive deterrence scheme necessary, and they plausibly have a duty to compensate as a result. This compensation may come in the form of bearing the cost of the measures, imposition of which is, required to keep the deterrence scheme intact. Note again that the objective is only to justify measures somewhat more severe than those justifiable on special deterrence grounds alone, and that therefore these considerations need not be weighty (Pereboom ).
.
Protecting the Innocent from Punishment
Saul Smilansky (in this volume) raises a number of important objections to the type of view I defend. In his challenge, he articulates a basic conception of just punishment articulated by H. L. A. Hart (). The picture, he writes, concerns a number of distinct elements: (a) Justice is a central concern. (b) “Treating as a person” is inherently connected to voluntary action. (c) “Using persons for the benefit of others” (e.g., in punishment) is forbidden unless those persons have voluntarily made themselves liable to being so used through their voluntary actions. He then specifies that ‘the sense of “voluntary” pertinent here is surely broader than the mere distinction between the voluntary and involuntary, and is a moralized view related to some sense of free will (otherwise talking here about liability as a basis for the justice of treatment would not make sense).’ But on Smilansky’s view this picture is inconsistent with free will skepticism, since: on that view little of all of this can remain. Since according to [free will denialism] no one has free will and moral responsibility in a way that can make her deserving of punishment, justice forbids such punishment. Morally, in the deep sense, everyone is innocent, no one can make herself liable to punishment in the way in which Hart postulated, hence no one can be justly punished.
Let me first address the broader objection that Smilansky raises: that according to free will skepticism, in the deep sense everyone is innocent.
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He does allow that in a shallower sense those who have committed crimes are not innocent, whereupon he articulates the narrower objection that the view I defend will permit those who have not committed crimes to be drawn into the criminal justice system. I will subsequently take up this objection.
. A Response-Dependent Notion of Blameworthiness Given free will skepticism, no one is basically deserving of blame or punishment. But how deep a notion of blameworthiness can the view retain? I’ve defended a free will skeptical account of blameworthiness in the past (Pereboom , : –, a), but here I suggest a position with a new slant. It begins with a skeptic-friendly revision of the response-dependent account of blameworthiness that David Shoemaker () has recently proposed, and then, in accord with the account I’ve defended in the past (e.g., Pereboom a), I specify a similar response-independent alternative. On a standard reading of P. F. Strawson’s () “Freedom and Resentment,” moral responsibility is a response-dependent notion (McKenna ; Watson ): the blameworthy is that which elicits the morally angry reactive attitudes, such as moral resentment (i.e., anger with another agent due to a wrong that agent has done to oneself ), and indignation (i.e., anger with another agent because of a wrong done to a third party). The position Shoemaker () sets out is of this kind, cast specifically as a view about accountability, which for him is the sense of moral responsibility that features confrontation of wrongdoers with the morally angry reactive attitudes. He begins with a first pass, which he subsequently amends: First pass: Dispositional Response-Dependence about the Blameworthy: The blameworthy is what typically elicits anger; that is, it is what people are typically disposed to respond to with anger, under standard conditions.
Shoemaker cites several objections to this initial attempt. First, the reasons to which we refer in judging someone blameworthy do not make justifying reference to anyone’s dispositions; rather, they make reference to features of the blamed agent. Second, people’s typical angry responses, even in standard conditions, may be wrong. Third, it’s hard to know how to specify standard conditions. The second is most important, and it suggests the following option:
Response-Independence about the Blameworthy: The blameworthy consists in a property (or properties) of agents that makes anger at them appropriate, a property (or properties) whose value-making is ultimately independent of our angry responses. (Fischer and Ravizza ; Brink and Nelkin )
Against this, Shoemaker argues that what unifies all of the properties that make anger appropriate is just that they merit anger, and that there is no better account. This is analogous with the funny; what unifies all of the properties that make the amusement response appropriate is just that they merit this response. Thus: Fitting Response-Dependence about the Blameworthy: The blameworthy (in the realm of accountability) just is whatever merits anger (the angerworthy); that is, someone is blameworthy (and so accountable) for X if and only if, and in virtue of the fact that, she merits anger for X.
Most of Shoemaker’s discussion defends his specific notion of response dependence, and not the selected type of response: anger. Such an account that invokes anger at this point, I contend, is unavailable to the free will skeptic. On the view that seems most plausible to me, the morally angry attitudes of moral resentment and indignation include the following two components: anger targeted at agents because of what they’ve done or failed to do, and a belief that the agents deserve to be the target of that very anger just because of what they have done or failed to do (Pereboom : –). Such morally angry attitudes thus invoke basic desert, which the free will skeptic rejects. I have two additional general concerns about the choice of anger. I suggest that “angerworthiness” be replaced by “protestworthiness.” First, there are cases of blameworthiness that aren’t cases of angerworthiness. You’re a parent, and your children misbehave in minor, common, predictable ways. Some parents respond with anger, but you don’t, and instead respond with the sense of a duty to correct and educate, combined with care, but not with anger. The anger response seems optional. Those who don’t respond with anger aren’t morally defective, even in a minor way. For another example, you’re a professor, and in every class at least some students come unprepared, not having done the assigned reading. Suppose they’re blameworthy. You respond with protest and surprise reading quizzes, but not with anger. The anger response seems nonoptimal. Professors who don’t respond with anger aren’t morally defective, even in a minor way. Finally, you’re a department chair, and your faculty misbehaves in typical ways. You protest, but don’t show anger. Showing
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anger in such situations tends to undermine your effectiveness. Not responding with anger isn’t morally defective. One possible fix is to claim that the misbehavior in these cases is nevertheless pro tanto angerworthy, and that’s enough to make it blameworthy. In reply, extending a point Victor Tadros makes against Michael Moore’s () view about alleged pro tanto duties to criminalize (Tadros : –), it’s questionable that a response is pro tanto justified if the response is almost never permissible. Or at least, if there is a response that is appropriate in a wider range of cases, it’s to be preferred. Second, there’s evidence that anger has a strong tendency to distort judgments of blameworthiness. Accordingly, one might object that it’s not likely to be true that to be blameworthy is to be worthy of a reactive attitude that systematically distorts judgments of blameworthiness. Surveys conducted by Mark Alicke and his associates indicate that subjects who spontaneously evaluate agents’ behavior unfavorably are apt to exaggerate their causal control and any evidence that might favor it while deemphasizing counterevidence (Alicke, Davis, and Pezzo ; Alicke ; Alicke, Rose, and Bloom ; cf. Pereboom : –). Alicke calls this tendency “blame validation.” In the last several decades, impressive experimental evidence that blaming behavior is widely subject to problems of these kinds has been mounting (e.g., Nadelhoffer ). Instead of anger, I believe that protest is the right sort of response. Pamela Hieronymi (), Matthew Talbert (), and Angela Smith () have argued that blame should be understood as moral protest. Following their lead, I’ve endorsed the following simple version of such an account: Moral Protest Account of Blame: For B to blame A is for B to issue a moral protest against A for immoral conduct that B attributes (however accurately) to A. (Pereboom a)
I contend that such moral protest can be justified by forward-looking elements such as the right of those wronged or threatened by wrongdoing to protect themselves and to be protected from immoral behavior and its consequences, the good of reconciliation with the wrongdoer, the good of the moral formation of the wrongdoer, and the retention of a victim’s sense of integrity. Accordingly, I suggest the following successor to Shoemaker’s view: Fitting Protest-Response-Dependence about the Blameworthy: The blameworthy (in the realm of accountability) just is whatever merits moral protest (the morally protestworthy); that is, someone is blameworthy (and so
accountable) for X if, and only if, and in virtue of the fact that, she merits moral protest for X.
One might object that blameworthiness in the realm of accountability essentially involves confrontation by the morally angry reactive attitudes. Shoemaker indeed thinks so, but here is the general definition of accountability that he provides: To be accountable for something is to be liable to being appropriately held to account for it, which is to be eligible for a range of fitting responsibility responses with a built-in confrontational element. (Shoemaker : )
On the account I place on offer, wrongdoers are appropriate targets of moral protest, such moral protest is essentially confrontational, and thus it qualifies as a kind of accountability by Shoemaker’s own characterization. This account does not invoke basic desert and is thus consistent with free will skepticism. This account has a response-independent correlate, which also invokes moral protestworthiness but claims that there are properties that make wrongdoing protestworthy that are independent of our protest responses: Fitting Protest-Response-Independence about the Blameworthy: The blameworthy (in the realm of accountability) consists in a property (or properties) of agents that makes morally protesting their wrongdoing appropriate, a property (or properties) whose value-making is ultimately independent of our responses of moral protest.
The properties at issue include the agent’s having done wrong, in many cases the past wrongdoing persisting as a continuing threat (Hieronymi ), and the agent’s being responsive to moral reasons, which allows confrontation by moral reasons in the form of protest to realize its forwardlooking aims. This account is also available to the free will skeptic, in particular if Shoemaker’s general objections to response-independent accounts can be answered.
. Assuming Desert to Protect Noncriminals Smilanksy objects that, on the account of criminal treatment I propose, those who are innocent in a shallower but nonetheless robust sense, those who have not yet committed crimes, will illegitimately be drawn into the criminal justice system. He has raised the issue of incapacitating those who pose threats but have not yet committed crimes (Smilansky ), and now (in the present volume) he extends this concern to the targeting by the legal system of the innocent for the kinds of justifications that I invoke,
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which includes consequentialist reasoning. In Smilansky’s view, retributivism and the assumption of basic desert should be retained in order to ensure that only the guilty are punished. Both Gregg Caruso and I have responded to the first concern (Pereboom , , ; Pereboom and Caruso ); here I focus on the second. Let me begin by pointing out that Smilansky’s proposal to retain the assumption of basic desert in order to achieve the good that the innocent not be targeted by the legal system is actually at odds with the notion of basic desert moral responsibility. When desert is cited as a justification for harming someone, it won’t be basic if that justification appeals to good beyond such persons receiving what they deserve. I characterize basic desert as follows: For an agent to be morally responsible for an action in the basic desert sense is for the action to be hers in such a way that she would deserve to be blamed if she understood that it was morally wrong, and she would deserve to be praised if she understood that it was morally exemplary. The desert at issue here is basic in the sense that the agent, to be morally responsible, would deserve to be blamed or praised just because she has performed the action, given sensitivity to its moral status; and not, for example, by virtue of consequentialist or contractualist considerations. (Pereboom : )
Note that this characterization allows for nonbasically deserved blaming and praising – for example, blaming that invokes desert grounded in consequentialist (Dennett ; Vargas ) or contractualist (Vilhauer ) considerations. On one type of revisionary account, our practice of holding agents morally responsible in a desert sense should be retained, not because we are in fact morally responsible in this sense but because doing so would have the best consequences relative to alternative practices. In his article “Two Concepts of Rules,” John Rawls () presents a two-tiered theory that serves to incorporate nonbasic desert. On the conception Rawls sets out, justifications employed within the legal practice for punishment are entirely backward looking, in that lawyers, judges, and juries consider only backward-looking reasons for punishment. But the legal practice itself is justified on consequentialist grounds. One might conceive of a version of such a view on which no actual person produces this consequentialist justification, but it is in fact the justification of the legal practice. On Smilansky’s recommendation for adopting retributivism, he cites a good to be achieved: that only the guilty are punished, that the innocent not be punished. The best way to achieve this good is by way of a certain legal practice – by lawyers, judges, and
juries justifying their decisions at least in part on grounds invoking desert. However, on this conception basic desert invoked won’t be basic, since the practice is justified (at least partly) on the ground that it’s the best way to attain nonpunishment of the innocent. By contrast, we might imagine someone who does think that basic desert justifications are in place and who cites this benefit as a side effect. But Smilansky does not fit this category, since he holds that we do not have free will; that is, the control in action required for basic desert moral responsibility (Smilansky ). He is an illusionist about free will and about basic desert. Smilansky’s view is that we must maintain the illusion about free will and basic desert for the sake of an important aspect of human well-being: that the innocent not be punished. Thus he is in fact invoking desert, and not basic desert, in his account. David Hodgson () also cites protection of the innocent from punishment as a benefit of belief in desert. But he not an illusionist about free will, and he can consistently invoke basic desert in his proposal. Are Hodgson and Smilansky right to think that commitment to desertbased legal justifications would indeed have the effect of protecting the innocent from punishment? For this to be so, it must first of all be the case that someone’s not deserving to be harmed is sufficient reason for the state not to harm that person in the interests of a legitimate state interest. The problem for the proposal is that there is another prominent state interest that justifies harm: protection of its citizens. And those who pose threats to citizens may not be deserving of harm. Suppose that an assailant has been given a drug, against his will, that makes him prone to extreme violence for a short time. The only way for the police to stop him from killing someone is to incapacitate him with a painful taser. This is clearly legitimate. Or suppose that the drugged person is about to shoot as many students in school as he can, and the only way the police can stop him is to kill him. This is also legitimate. Or suppose the shooter is mentally ill in such a way that precludes his deserving to be punished. Then we also believe that it’s legitimate for the police to kill him. Thus, not being deserving of harm does not insulate a person from being justifiably harmed by the state on the basis of legitimate state interests, such as citizens’ protection. Furthermore, and particularly troublesome for Hodgson and Smilansky’s proposal, when people are presumed to be threats the belief that only the guilty should be detained or killed is often ineffectual. In the United States, belief in retributivism is strong in regions in which convictions of the innocent who are unjustifiably believed to be threats are also prevalent, particularly when the innocent are African-American men. This is
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consistent with belief in desert and in retributive justification for punishment reducing the incidence of such convictions, but it’s not clear whether this is in fact so. The central element of Farrell’s view, which I adopt, is that the core justification for detention is the right of self-defense and defense of others. This right allows only targeting those who pose a threat, and those who have not committed crimes or have threatened to so do not fit this category. If the core justification did not adduce this right, Smilansky’s concern would carry more weight. Moreover, the self-defense right features the principle of least infringement, which specifies that the minimally harmful measures should be taken to protect (Pereboom :–, : –; Pereboom and Caruso ). On detaining threats who have not yet committed a crime, In Free Will, Agency, and Meaning in Life I presented an example in which an agent has been given a drug without his knowledge, as a result of which he will almost certainly commit a violent crime within a week (Pereboom : ). After that week the effect of the drug wears off. I suggested that the state is entitled to detain him for that week, and I think everyone should agree. Michael Corrado (in correspondence) allows that if the drug renders him not reasons responsive, preventative detention is permissible. Smilansky may be attracted to this position. But what if someone is dangerous and reasons responsive? Corrado’s () proposal is that then he may not be detained unless it can be shown that he has a current intention to cause harm. As he indicates, characterizing the particular features of intention (e.g., how specific does it need to be?) that would be sufficient for preventative detention is a delicate issue. But this general sort of position seems reasonable to me (Pereboom ) and should to Smilansky as well.
. Concluding Words The sort of free will at issue in the traditional debate is presupposed by retributive theories of punishment and serves general deterrence theories insofar as retributive considerations provide a counterweight to the use objection to such views. The skeptic about this sort of free will must reject retributivism and this way of responding to the use objection. But free will skepticism is consistent with a theory that justifies incapacitation by the right to self-defense, it can appropriate the “free” general deterrence benefit that publicizing incapacitation provides, and it can augment general deterrence with modestly more exacting penalties that are justifiable in absence of desert.
R E F E R EN C E S
Alicke, M. D. (). Culpable control and the psychology of blame. Psychology Bulletin, , –. Alicke, M. D., T. L. Davis, and M. V. Pezzo. (). A posteriori adjustment of a priori decision criteria, Social Cognition, , –. Alicke, M. D., D. Rose, and D. Bloom. (). Causation, norm violation and culpable control, Journal of Philosophy, , –. Bentham, J. (/). An Introduction to the Principles of Morals and Legislation. London: Macmillan. Brink, D, and Nelkin D. (). Fairness and the architecture of responsibility. Oxford Studies in Agency and Responsibility, , –. Caruso, G. D. (). Free will skepticism and criminal behavior: a public health quarantine model. Southwest Philosophy Review, (), –. (). Public Health and Safety: The Social Determinants of Health and Criminal Behavior. London: ResearchLinks Books. (). Justice without retribution: An epistemic argument against retributive criminal punishment. Neuroethics. DOI: ./s---. Corrado, M. L. (). Punishment and the wild beast of prey: the problem of preventive detention. The Journal of Criminal Law and Criminology, , –. Dennett, D. C. (). Elbow Room. Cambridge: MIT Press. Farrell, D. M. (). The justification of general deterrence. The Philosophical Review, , –. Feinberg, J. (). Justice and personal desert. In J. Feinberg, ed., Doing and Deserving, Princeton: Princeton University Press, pp. –. Fischer, J. and Ravizza, M. (). Responsibility and Control, New York: Cambridge University Press. Hart, H. L. A. (). Punishment and Responsibility. Oxford: Clarendon Press. Hieronymi, P. (). Articulating an uncompromising forgiveness. Philosophy and Phenomenological Research, , –. Hodgson, D. (). Rationality + Consciousness = Free Will. New York: Oxford University Press. Kant, I. (). The Metaphysics of Morals. Tr. Mary McGregor. Cambridge: Cambridge University Press, . Kelly, E. (). Criminal justice without retribution. Journal of Philosophy, , –. McKenna, M. (). Conversation and Responsibility. New York: Oxford University Press. Moore, M. S. (). Placing Blame. New York: Oxford University Press. Morse, S. J. (). Common criminal law compatibilism. In N. A. Vincent, ed., Neuroscience and Legal Responsibility. New York: Oxford University Press, pp. –. Nadelhoffer, T. (). Bad acts, blameworthy agents, and intentional actions: some problems for jury impartiality, Philosophical Explorations, , –.
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Nelkin, D. (). Duties, desert, and the justification of punishment. Criminal Law and Philosophy, –. Pereboom, D. (). Living Without Free Will. New York: Cambridge University Press. (). Free Will, Agency, and Meaning in Life. Oxford: Oxford University Press. (a). Responsibility, regret, and protest. Oxford Studies in Agency and Responsibility, , –. Pereboom. D. (b). A defense of free will skepticism: replies to commentaries by Victor Tadros, Saul Smilansky, Michael McKenna, and Alfred R. Mele on Free Will, Agency, and Meaning in Life. Criminal Law and Philosophy, (), –. (). Incapacitation, reintegration, and limited general deterrence. Neuroethics. DOI: /./s–--. Pereboom, D., and G. D. Caruso. (). Hard-incompatibilist existentialism: neuroscience, punishment, and meaning in life. In G. D. Caruso and O. Flanagan, eds., Neuroexistentialism: Meaning, Morals, and Purpose in the Age of Neuroscience. New York: Oxford University Press, pp.–. Rawls, J. (). Two concepts of rules. The Philosophical Review, , –. Scanlon, T. M. (). Giving desert its due. Philosophical Explorations, , –. Schoeman, F. (). On incapacitating the dangerous. American Philosophical Quarterly, , –. Shoemaker, D. (). Responsibility from the Margins. Oxford: Oxford University Press. (). Response-dependent responsibility. The Philosophical Review, , –. Smilansky, S. (). Free Will and Illusion. Oxford: Oxford University Press. Smilanksy, S. (). Pereboom on punishment: funishment, innocence, motivation, and other difficulties. Criminal Law and Philosophy. DOI: ./ s---. Smith, A. (). Moral blame and moral protest. In N. Tognazzini and D. J. Coates, eds., Blame: Its Nature and Norms. New York: Oxford University Press, pp. –. Strawson, P. F. (). Freedom and resentment. Proceedings of the British Academy, , –. Tadros, V. (). Wrongs and Crimes. Oxford: Oxford University Press. Talbert, M. . Moral competence, moral blame, and protest. Journal of Ethics, , –. Vargas, M. (). Building Better Beings. New York: Oxford University Press. Vilhauer, B. (). Free will and reasonable doubt. American Philosophical Quarterly, , –. (). Persons, punishment, and free will skepticism. Philosophical Studies, , –. Watson, G. (). Peter Strawson on responsibility and sociality. Oxford Studies in Agency and Responsibility, , –.
Deontology and Deterrence for Free Will Deniers Benjamin Vilhauer
In this chapter I outline what I take to be a solution to a problem about free will denial and the justification of punishment pointed out by Saul Smilansky (). Smilansky argues that free will deniers must acknowledge that some institution of punishment is necessary to maintain law and order, but, since criminals do not deserve to be punished, it is unjust to punish them, and we therefore have a duty to compensate them. Since this is a great injustice, we must compensate them very heavily – in fact so heavily that the institution of punishment will cease to deter, and will instead become an incentive to commit crime. Previous responses to Smilansky’s “practical reductio” argument by Neil Levy () and Derk Pereboom () have emphasized consequentialist moral reasons. I advocate a deontological social contract approach to punishment that draws on Kantian and Rawlsian notions of treating criminals as ends by respecting their rational consent to punishment (Vilhauer ). In the course of explaining how my approach provides a response to Smilansky’s challenge, I will also respond to some objections to it from Pereboom.
.
Introduction
Let me begin with a few terms and a bit of background. By “free will skepticism” I mean the view that we do not know whether or not we have free will, and by “free will denial” I mean the view that we lack free will. I endorse skepticism rather than denial. I think that it is possible that we have free will, and that this possibility is sufficient to justify appeals to free will in some contexts (which include taking up some of the positive
Acknowledgements: Thanks to Elizabeth Shaw for organizing the conference for which this paper was first developed, and to Elizabeth as well as Gregg Caruso and Derk Pereboom for their editorial work on this volume. Thanks also to the conference participants for their valuable suggestions. I draw on remarks in my paper in some sections of this chapter.
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reactive attitudes, and supporting the ought-implies-can principle) but not in the context of retributively justifying serious harm of the sort involved in punishment. People deserve the benefit of the doubt. The upshot is that the constraints placed on the ethics of punishment by free will skepticism of this sort are the same as those placed on it by free will denial. According to some theorists, an approach to criminal justice that dispenses with the idea of retributive desert should not be called an approach to punishment, because such desert is part of the concept of punishment. I am not convinced that this is correct, since we do speak of the injustice of punishing the innocent. I would nonetheless be happy to conform to the usage recommended by these theorists, and call the approach I recommend an approach to criminal justice rather than punishment, were it not for a danger of euphemism here that is greater than the danger of infringing a norm of usage. Calling a practice punishment emphasizes the need for justification in a way that calling it criminal justice does not, and free will skeptics must be especially sensitive to this need. As I read Smilansky’s practical reductio argument, it has two important stages. First, free will deniers acknowledge that violent criminals do not deserve to be incarcerated based on their crimes. But violent criminals must be incarcerated to maintain enough law and order to avoid a return to the state of nature. We must therefore compensate them for the wrong we are doing to them by incarcerating them. Since this is a very great wrong, their compensation must equivalently great – we must make life in prison very pleasant. We must make it so pleasant that not only will the deterrent effect of incarceration disappear, but also we will create an incentive to commit violent crimes as a means to the end of becoming incarcerated, an incentive which will inevitably lead some people to commit violent crimes that they would not have committed in the absence of that incentive. The institution of incarceration will become a facilitator of violent crime rather than an inhibitor. We will have replaced punishment with “funishment,” with the consequence of destroying the law and order society needs to survive.
This part of my position is in significant agreement with Pereboom’s position. He too endorses what I am calling skepticism rather than denial, and holds that the possibility of free will is not sufficient to justify appeals to free will in retributive justifications of harm. He argues that the “reasonable doubt” standard in criminal law should also be applied to metaphysics of moral responsibility (Pereboom : ). I agree with this, but I argue that people deserve the benefit of the doubt in the context of praise as well as blame, and that it is justified to offer harmless praise (praise that benefits some without harming others) so long as can be reasonably doubted that the candidate for praise did not act with free will (Vilhauer ).
The second stage of the argument is Smilansky’s claim that a morally deep solution to this problem must be deontological. He thinks that while it is easy to solve this problem with utilitarianism, if free will deniers solve it in this way, or with any other form of consequentialism that does not recognize giving people what they deserve based on their actions among the valued consequences, they make the distinctive moral intuitions proper to free will denial inexplicable, and they cease to be able to understand free will denial as an ethical position that is distinct from utilitarianism. That is, free will deniers typically direct their attention to punishment when prompted by the intuition that there is a grave injustice in the way our society punishes criminals, because they do not deserve to suffer for their crimes. However, according to the sort of consequentialism that easily solves this problem, there need be no injustice here at all, so long as our punitive practices lead to the best consequences. Further, if we endorse this sort of consequentialism, then we must accept that the entire debate about whether we have free will and moral responsibility never really mattered for ethics in the first place, because, even if we do have free will and moral responsibility, we have no obligation to treat each other in the ways in which we deserve to be treated based on our actions, because such treatment is at best contingently related to the production of valuable consequences. I think Smilansky is correct that the justification of deterrence is a pressing problem for free will skeptics, and that it is valuable to offer a deontological justification. However, while Smilansky claims that free will deniers do not have a deontological justification available, I think they do, as I will argue shortly. I do not think that a utilitarian approach is as fundamentally flawed as Smilansky argues. As Neil Levy points out, utilitarians can sensibly advocate free will denial as a way of winning new converts to utilitarianism, since many strong objections to utilitarianism derive from intuitions about action-based desert that free will deniers reject (Levy : ). This would seem to imply that the intuitions that flow from denying actionbased desert claims are not necessarily at odds with utilitarianism in the way Smilansky suggests. There are, however, reasons for all philosophers to worry about utilitarianism that need not have anything to do with intuitions about actionbased desert. For example, if our sole justification for punishment is that it reduces overall suffering in society, then we are using the people punished as mere means that we manipulate in order to benefit others. Further, suppose it turns out that we get the most deterrence for the least punitive
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pain with practices that strike our pretheoretical moral intuitions as abhorrent, such as imposing maximally painful punishments, weakening or violating due process, and framing noncriminals when it is more effective than punishing real criminals. As many have noted, if these practices turn out to give us the lowest ratio of suffering caused to suffering prevented, then utilitarianism must endorse them. Our sense of the abhorrence of these practices does not have to be explained with reference to intuitions about action-based desert. As a free will skeptic, I think it is true that no criminals deserve maximally painful punishment based on their criminal actions, but I think this would be true even if we did have free will and moral responsibility. As I see it, and as I think many others do, there is nothing anyone could possibly do to deserve a maximally painful punishment, even if we did have free will and moral responsibility. If this is true, then stating that no criminals should be given a maximally painful punishment because they do not deserve it based on their criminal actions does not explain the wrongness of maximally painful punishments. So objections to utilitarianism about punishment need not derive from intuitions about action-based desert. This gives free will deniers not already committed to utilitarianism a good reason to seek alternative ethical approaches to punishment. Deontology is, of course, not the only alternative to simple utilitarianism. Pereboom’s response to Smilansky’s challenge is to recommend a consequentialism “where morally fundamental rights being honored and not violated count among the good consequences” (Pereboom : ). Let us refer to this approach as “rights-consequentialism.” If we assume that we have fundamental rights to be free from maximally painful punishment, violations of due process, and framing, then, according to rights-consequentialism, we should sometimes prefer an outcome that offers a level of protection of these rights L over an outcome that protects these rights less than L but achieves greater overall happiness. However, if we can maximize the overall protection of rights by violating rights in a few cases, then it would seem that rights consequentialists must endorse violating rights in a few cases. Suppose that by falsely accusing a few criminal court judges of violations of due process, and then framing and punishing them, we could generate a great blast of deterrence that would dramatically reduce the overall violation of due process by other participants in the legal system. Should we do it? It looks like rights consequentialists have to say “Yes.” Now, I do not want to claim that this is obviously wrong, and I lack space here to argue that it is wrong. I think it is fair to acknowledge that this is a hard problem. But it also seems fair to claim that
framing and punishing even a few people clashes with our pretheoretical intuitions about the absolute status of our rights to due process, and it should be of interest to free will deniers whether a theory that makes these rights absolute is available to them. Perhaps we can get absolute rights from some version of rule-consequentialism, but I have never been able to get over the often-noted stumbling block for rule-consequentialism that it would seem to give us sufficient reason to break the rules whenever the consequences of breaking them are better than the consequences of following them. So I think it is worth exploring a deontological approach.
. Funishment and Circustine Before I set out the deontological approach in more detail, I would like to briefly consider another aspect of Pereboom’s approach, which he uses to set a limit on the harshness of the treatment we can impose on criminals, giving it a response to the objection to rights-consequentialism just made. Pereboom emphasizes an analogy between quarantining carriers of dangerous illnesses and incarcerating violent criminals. I think this analogy is valuable for shifting the paradigm we use to think about punishment, and I think the approach I advocate could serve as a sort of deontological scaffolding for the quarantine justification, since I think they prescribe the same sort of treatment for prisoners in the end. Pereboom argues for the quarantine justification by pointing out that there is broad agreement that quarantine can be justified, despite the fact that carriers of disease have done nothing to deserve to be quarantined, and arguing by analogy for a justification of punishment. Society must have as much right to separate violent criminals from the society they threaten as it does to quarantine disease carriers. Pereboom also argues that constraints on how we can treat prisoners follow from this. On his view, we could only be justified in imposing unpleasant treatment on people in quarantine insofar as it is necessary to protect society from them. The same follows for incarceration when justified by way of this analogy – we cannot impose unpleasant treatment on people in prison beyond what is necessary to keep society safe from them (Pereboom : ). This limitation on the harm we can legitimately impose on criminals places an important sideconstraint on his rights-consequentialism, by (for example) ruling out violations of the right to be free from cruel and unusual punishment of a
Gregg Caruso (, , Chapter [this volume]) also defends a justification of punishment based on the quarantine analogy.
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few people even in cases in which this would maximize society’s access to this right in the aggregate. If I understand the view correctly, Pereboom holds that publicizing the policy of imprisoning violent criminals is likely to have a deterrent effect despite the fact that our justification for incarceration is drawn from the quarantine analogy (Pereboom : ), but the fact that our justification is drawn from the quarantine analogy implies that we are justified in coercively separating violent offenders from the rest of the population but not treating them in ways that generate deterrence except insofar as deterrence is a fortunate by-product of the coercive separation (Pereboom : ). In other words, on Pereboom’s model, deterrence that may result from quarantine is a fortunate contingency but is not something that we may, as it were, calibrate the conditions of incarceration to achieve. As I understand it, it is central to Pereboom’s argument that in quarantine we find a social practice that has a justification that is clear and uncontroversial, and is also entirely independent of questions of deterrence. However, I think that philosophical reflection on the notion of effective quarantine shows that it depends upon deterrence, and that a justification of effective quarantine therefore demands a justification of deterrence. We can imagine having reasons of morality or even social policy to want the conditions of quarantine to be pleasant enough that we would risk creating an incentive for people to voluntarily expose themselves to a disease as a means to the end of entering quarantine. So the basic structure of the argument Smilansky makes about funishment applies here as well. Since people exposed to a serious illness have done nothing to deserve the isolation of quarantine, we would seem to have a duty to make quarantine as pleasant as possible, and, if we do a good enough job in fulfilling this duty, we create an incentive to enter quarantine. We might aim at making quarantine as entertaining as the circus, so let us name this problematically pleasant quarantine “circustine” to emphasize the parallel to funishment. Given the fear of suffering and death provoked by most of the diseases against which we would employ quarantine, it may seem absurd to suggest that some people might have an incentive to expose themselves to disease to enter quarantine. But imagine an extremely contagious and incurable philosomania that made the afflicted so pathologically excited about reading and discussing philosophy that they were unable to do anything else except eat and sleep. Without a strict and permanent quarantine this disease would mean the end of civilization. Given the injustice involved in separating the afflicted from their families and communities, we would
have strong moral reasons to make this quarantine as enjoyable as possible and allow the people confined to go on about their philosophical activities. But given that philosomania would not be intrinsically unpleasant, especially when in the company of its other victims, it is not hard to imagine that a substantial number of people might be inclined to expose themselves to it in order to enter the quarantine, thereby creating the conundrum of circustine. For a less empirically implausible example, consider the Ebola epidemic, which experts worried might lead to a global pandemic. At its heights, some commentators proposed easing the complaints of people asked to remain in quarantine by paying them a substantial sum for their trouble. They seemed to be motivated by moral concerns about infringement on autonomy, by pragmatic concerns about getting people to stay in quarantine, and, interestingly enough, by a desire to create an incentive for some people to expose themselves to Ebola. Now, the only people they sought to motivate to expose themselves to Ebola were medical personnel, more of whom they wanted to travel to the hardest-hit countries. However, if high enough quarantine payments were authorized, other people might have been motivated to voluntarily expose themselves to Ebola too; for example, the very poor, or very elderly people who wanted to leave something to their great-grandchildren. This may give us a more realistic path to circustine. These examples demonstrate that we must ensure a minimum level of unpleasantness, or a maximum level of pleasantness, depending on how you look at it, for quarantine to achieve its goal, and it seems clear that we need a moral justification to explain why we are entitled to calibrate quarantine conditions to this level. It seems to me correct to describe this as calibrating quarantine conditions to achieve deterrence. If this is right, then the justification of quarantine turns out to be inherently entangled with the justification of deterrence, in the sense that it is necessary to have a justification of whatever degree of deterrence is necessary to avoid circustine if one is to have a general justification of effective quarantine. Certainly in most cases the fear of the disease itself and its symptoms will provide the necessary deterrent, but the examples show that this is a contingent matter rather than something entailed by the concepts of disease or quarantine. This line of thought also highlights an important difference in the degrees of deterrence needed to avoid circustine and funishment. Since most of the diseases against which we would institute quarantine are more like Ebola than philosomania, an incentive sufficient to prompt people to
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enter quarantine would have to be powerful enough to overcome not just the disincentive of confinement and isolation from mainstream society but also the disincentive of exposure to the disease and the harm of possibly getting sick. An incentive sufficient to prompt potential criminals to enter the sort of humane prisons contemplated by most free will deniers would only have to be strong enough to overcome the disincentive of confinement and isolation from mainstream society, assuming that the potential criminals would not find it distressing to commit the violent crimes they would have to commit to be admitted. I take this to demonstrate two things that reinforce Smilansky’s worry: first, in both quarantine and incarceration, these institutions will not fulfill their intended function of making society safer without some degree of deterrence, and second, we should assume that the conditions necessary to ensure deterrence in incarceration are more unpleasant than the conditions needed in quarantine. If more unpleasant conditions are needed to ensure deterrence in incarceration, we must have an account of why we are justified in imposing them, and how unpleasant they can be. As I explained earlier, I think that it is valuable for free will deniers to have a deontological justification available.
. A Deontological Approach to Punishment for Free Will Deniers The deontological approach to be defended here draws on a Rawlsian version of the Kantian idea of refraining from treating people as mere means to ends. The Kantian idea is that we refrain from treating others as means by refraining from coercing, deceiving, or otherwise manipulating other people into serving as means to our ends by causing them to do things they would not rationally consent to do. Crucially, the “others as ends” principle does not require us to avoid treating each other as means in all cases, because it is sometimes rational to consent to serving as a means to another’s end; for example, when reciprocally serving as a means to one’s own end. For example, if I have the end of teaching some philosophy, then the students I teach are among the means to my end. If those students have the end of learning philosophy, then I, as their teacher, am among the means to their end. So the students can be a means to my end and I can reciprocally be a means to their end. We are treating each other
Sharon Dolovich () proposes a similar approach, but not in the context of free will skepticism. My own approach develops out of ideas in Vilhauer ().
as ends as well as means, because we can rationally consent to this interaction, in light of our complementary ends. Social contract theory can model rational consent. If it would be rational to choose to join in a social contract with a particular institutional structure, then we can view that institutional structure as one to which we would rationally consent. I think that Rawls’ approach to social contract theory should be of special interest to nonconsequentialist free will skeptics, because we can use original position deliberation to capture an underlying moral distinction between the action-based kind of desert typically at issue in the free will literature, on the one hand, and personhood-based desert, on the other. A “desert base” is whatever grounds a desert claim. Many commonplace desert claims are based on actions. Examples of action-based desert claims are claims about praise and blame, Lockean claims about coming to own property by mixing our labor with matter, and claims about why criminals deserve retribution. Actions can be desert bases only if agents are morally responsible for actions, so free will deniers must hold that action-based desert claims are never legitimate. Many philosophers assume that all desert claims are action based, and as a result it comes naturally to many free will deniers to hold that there are no legitimate desert claims. But I think there are desert claims that are not action based. Some are based on personhood. Claims to deserve respect, not to be used as mere means, and to access our human rights are not based on our actions but are instead based on the mere fact that we are persons. Free will denial does not undermine personhood-based desert in the way it undermines action-based desert, so free will deniers can endorse personhood-based desert claims. Consider the presumption of innocence. As a conceptual matter, we regard the presumption of innocence to be such that nobody could act in such a way as to deserve to have it withdrawn. Those who were not treated as innocent until proven guilty could legitimately claim to deserve rectifying measures. But they could not explain this claim by pointing out that they had not done anything to deserve not to be treated as innocent until proven guilty, because there is nothing anyone could do to deserve not to be treated as innocent until proven guilty. On my view, their claims to deserve to be treated as innocent until proven guilty, and to deserve rectifying measures if they are not, are personhood based. I think all our claims to due process of law, and equal treatment before the law, have this structure. On my view, free will deniers should think that the kind of rational consent that matters is rational consent in light of personhood – but not action-based desert. In other words, what should matter for free will
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deniers is what it would be rational for us to consent to if all we had in view was the mere fact that we are persons. The Rawlsian social contract fits well here. As is of course well known, on this view, we choose the basic principles of society from a deliberative standpoint called “the original position,” behind a “veil of ignorance.” Rawls’ moral purpose in designing the original position is to create a standpoint in which deliberators’ reasons of self-interest result in the selection of basic principles of society that follow the lines of broadly Kantian reasons of fairness when they are implemented. As an original position deliberator, one has broad empirical knowledge about the human condition, including psychological, sociological, and economic knowledge, but one lacks knowledge of particular features of oneself such as whether one is rich or poor, or what one’s religion, ethnicity, or sex is. One also cannot know what patterns of action one exhibits; for example, whether one is industrious or lazy. Rawls thinks it is just to demand ignorance about these features of ourselves because they are morally irrelevant to choosing the basic principles of society, and he thinks this at least in part because he thinks we do not deserve to have these particular features. In other words, Rawls is motivated at least in part by a kind of skepticism about desert, and this makes him a natural ally for deontologically inclined free will deniers. When it comes to human rights and distributive justice, I think that free will deniers can take on board Rawls’ view of original position deliberation in its entirety. Rawls thinks that original position deliberators will insist that everyone’s basic needs are met, and that there is equality of rights and political liberties. He also thinks they will choose the “difference principle,” the principle that economic inequalities are just if, and only if, they improve the conditions of the worst-off members of society. Part of what makes it rational for us to choose the difference principle in the original position is the veiling of our degree of industry in the original position. Rawls himself does not apply original position deliberation to penal justice. Rawlsian “ideal theory” requires us to assume that we will be able to follow the laws we choose in the original position. But this presupposes a kind of control over our actions, which opens the door to the justification of retribution, which is off-limits for free will deniers. So free will deniers adopting original position deliberation about punishment must assume ignorance about whether we will follow the law. In other words, in the original position, I cannot assume that I can avoid liability to punishment by avoiding crime – call this the “avoidability-of-crime assumption.” If I assume that I can control my liability to punishment by avoiding crime, my fear that I will suffer punishment myself will diminish, and if I assume
that punishment deters I will prefer more severe punishments than I would otherwise have accepted. But accepting the avoidability-of-crime assumption entails accepting ideas about control that free will deniers must reject. Rejecting the avoidability-of-crime assumption is a substantial departure not just from Rawls but from much of the social contract tradition, since criminals are often represented as “contract breakers” who have placed themselves back in the state of nature with respect to the rest of society. On my view, any contract we could rationally enter must include specifications for how we will be treated if we violate the laws – it must be, in this sense, an unbreakable contract. How would original position deliberation apply to punishment? Rawls’ general idea about original position deliberation is that deliberators will use “maximin” reasoning: that is, they will focus on the lot of the worst-off, and choose principles that make their lot as good as it can be. Rawls at points argues for maximin reasoning as a kind of risk aversion that would be rational under conditions of uncertainty, and this has been disputed by many. But he also argues that we should stipulate that original position deliberators reason in this way because it ensures fairness, by procedurally implementing a broadly Kantian idea about fair cooperation and equality among rational beings, and free will deniers interested in exploring alternatives to consequentialism have no reason to dispute this. Let me explain this point in more detail. A variety of critics, including Harsanyi (see e.g., Harsanyi ), hold that that Rawls fails to show that the concept of choosing behind the veil of ignorance implies the maximin principle on its own, and that Rawls must build nonconsequentialist moral premises into his theory to arrive at the maximin principle. The concern is that without stipulating that rational choice is nonconsequentialist choice, there is no way to rule out the possibility that original position deliberators might choose consequentialist principles that (for example) maximize overall well-being and set no limits on the wretchedness of the circumstances of the worst-off, with the deliberators simply betting that they will not be among the worst-off. Now, this concern is a reason to reject Rawlsian methodology if one’s goal is to deduce moral principles solely from the mere concept of rational choice behind the veil of ignorance. But that is not my goal. I am proceeding from the assumption that it is valuable for free will skeptics to have a nonconsequentialist approach to punishment, so my approach is already encumbered with a general sort of nonconsequentialist assumption similar to the one critics attribute to Rawls. My goal is to borrow Rawlsian methodology precisely because it is nonconsequentialist but nonetheless filters out action-based desert claims. I think
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Rawls is correct that his conception of original position deliberation models moral commitments about fairness and equality at the core of the Kantian approach to ethics, and for present purposes I am happy to assume the correctness of these commitments. However, despite the moral reasons in favor of maximin reasoning, there are disanalogies between distributive justice and penal justice that create obstacles to applying maximin reasoning in the context of punishment. There is only one sort of candidate for the worst-off position when we are talking about distributive justice: the poorest. In the case of penal justice, there are two sorts of candidates for the worst-off position – victims of crime, and the people punished – and these two positions compete in the penal justice system. That is, if we assume that punishment deters, then changing our principles of punishment to make things better for victims tends to make things worse for the people punished, and changing our principles of punishment to make things better for the people punished tends to make things worse for the victims. (I will later argue that this competition should not be understood as fundamental, since all rational adopters of a social contract secure better outcomes for themselves than they can expect in the state of nature.) The technological and social strategies that might eliminate this competition in a desirable way are limited in contemporary society. Today we might strive to eliminate the position of victim with blanket surveillance and militarized policing, but even this would not prevent all crimes. It would in effect punish everyone, and it would be irrational to consent to universal punishment. We might someday put vast numbers of artificially intelligent ticklebots on patrol, which had the legal expertise and speed necessary to ensure that would-be criminals collapsed in helpless giggles before completing their crimes, obviating the need for punishment, but without social practices yet unimagined even the cheeriest ticklebots could easily become repressive tools of a security state. We could of course eliminate the position of the punished today by ceasing to punish people altogether, but we would worry that violent crime would become ubiquitous and we would be cast into the state of nature. If, for the foreseeable future, criminals and victims will compete in our institutions of punishment, how should we weigh their interests in original position deliberation? We seem compelled to make assumptions behind the veil of ignorance about the probabilities of finding ourselves among the punished, and among the unpunished. Rawls himself holds that the veil of ignorance must be understood as screening out knowledge of the probabilities of finding ourselves in various social roles. This helps him motivate maximin reasoning – if we do not
know the probabilities of finding ourselves in various social roles, it is more plausible to claim that self-interest requires us to design the worst role to be the best it can be. But as I have explained, there are also broadly Kantian moral reasons for preferring maximin reasoning to consequentialist reasoning, and this screening-out helps original position deliberation to model these reasons. If we could know that the probability of ending up in the worst-off position was very low, and we could make all the other positions better by making the worst-off position very bad (say, by making the worst-off position that of a slave doing the bidding of everyone else), then it might be rational in a self-interested sense to make the worst-off position very bad and roll the dice. However, when our choice of the principles of punishment confronts us with two candidates for the worstoff position, it seems impossible to conduct original position deliberation without making some assumption about the probability of finding oneself in one position or the other. Given the nonconsequentialist purpose of original position deliberation, and the importance of constraining deliberators’ knowledge of probabilities in achieving that purpose, care must be taken in determining the probabilities we ought to assume. Suppose that original position deliberators knew that they could have a negligible chance of ending up among the punished if they chose principles of punishment that imposed maximally painful punishments on just a few of the punished but yielded a horribly effective deterrent. This would give them reasons of self-interest to select these principles of punishment. But the moral reasoning that original position deliberation would thereby model would be little different from that of simple utilitarianism. Since the moral purpose of Rawlsian original position deliberation is to model broadly Kantian notions of equality and fairness, I can see no better way to select a probability assumption than by falling back on these notions and holding that a principle is fair to competing parties if I would choose it under the assumption that my probability of being benefited by it is equal to my probability of being harmed by it. There may be other plausible nonconsequentialist approaches to fairness and equality in selecting a probability assumption, but I lack the space to explore that possibility in this chapter. It is clear that moral constraints on the probability assumption are necessary to preserve nonconsequentialism in original position deliberation, and it seems reasonable to claim that an assumption of equal probability is one plausible resolution. On this basis, I claim that the principles of punishment are fair if I would choose them under the assumption that I am just as likely to be the person punished as I am to be a potential victim.
Deontology and Deterrence for Free Will Deniers
I identify potential victims as the relevant beneficiaries, rather than actual victims, because potential victims have more to gain from punishment than actual victims. Actual victims have already suffered the harm we would hope to avoid in the original position. For example, if the positions I considered were those of actual victims of serious violence and punished people, and I assumed I was equally likely to end up in either position, then I might reason that, since the harm has already been done, I would gain little from punishment if I turn out to be the victim, and I would have a lot to lose if I turn out to be the punished person. I might conclude that I am better off in not endorsing any institution of punishment at all. Further, if we identify the relevant beneficiaries as potential victims, then we do not leave out anyone who can benefit from punishment, since everyone who has been victimized can potentially be revictimized, except victims of fatal violence. I identify the actual punished as the relevant harmed parties, rather than the potential punished, because the potential punished who do not become the actual punished are not actually harmed by the institution of punishment. What principles of punishment would I choose if I had to assume that I was just as likely to be harmed by punishment as I was to benefit from it? As already suggested, it seems safe to assume that deliberators would have a strong initial preference for a society that had no institution of punishment. They would choose to pour social resources into the development of technology and social practices that allowed us to build a free and just society that did not punish. Recognizing that we do not yet have these tools, they would also choose to invest heavily in noncoercive strategies for diminishing incentives to commit crimes, such as improved access to employment, education, public services, and voluntary therapy for those most at risk of committing crimes. They would also recognize that, as things stand today, some system of after-the-fact punitive constraint is necessary to avoid a collapse into the state of nature, but they would deem this legitimate only insofar as it was coupled with progress toward the abolition of punishment. This point is important because it implies that the approach I recommend can only be a justification of punishment in a relative sense, in that it sets abolition as an ideal and legitimizes punishment only as a temporary measure as we work toward its abolition. What sort of after-the-fact punitive practices would original position deliberators endorse under the assumption that they are equally likely to find themselves punished and unpunished? It is crucial to recognize that the
I refer to this approach as “ideal abolitionism” in Vilhauer ().
trade-off we are talking about is one that imposes significant harm on the person punished in order to confer what may be a very modest benefit on the potential victim. The badness of life in prison – the control, and the separation from friends, family, and community – would be a significant harm even in a radically reformed prison of the sort that nonretributive ethicists could contemplate. But a reduction in someone’s odds of becoming a victim of crime does not confer a similarly significant benefit, so long as the person is not the sort who worries obsessively about the odds of becoming a victim. If I could know with certainty that choosing to use some particular kind of punishment in my society would make the difference between my remaining a merely potential victim and my becoming an actual victim, then the benefit to me might be just as great as the harm to the punished. But I cannot know this in the original position. If we look at society as a whole, the benefit of punishment may be much greater than the harm it imposes: even if we cannot know whether particular individuals will be spared victimization, we may be able to know that there will be a substantial overall reduction in victimization. But this is not relevant in the original position. Rawls emphasizes that a key function of original position deliberation is to make us think about social outcomes one person at a time, and he criticizes utilitarianism for disregarding the boundaries between persons. The aggregate reduction in victimization is not something that happens to a person – it is an abstraction that is a function of many people. The fact that original position deliberation disregards aggregate harm reduction is part of what makes this a deontological approach. That is, it helps safeguard against the instrumentalization of criminals to which utilitarianism resorts in its unconstrained pursuit of harm reduction.
. Deterrence and the Rights of Criminals In light of these considerations, the question to ask is the following: how much harm am I willing to impose on the person punished for the sake of bringing the much-smaller benefit of reduced odds of victimization to the potential victim, assuming that I am just as likely to be the former as I am to be the latter? We would be unwilling to risk imprisonment to protect ourselves against nonviolent crime – we would prefer, for example, principles that required thieves to compensate their victims. We would take a different attitude toward violent crime, however. We would be willing to risk imprisonment to protect ourselves against crimes of violence, so long as
Deontology and Deterrence for Free Will Deniers
the conditions of imprisonment were very different from those of contemporary prisons – that is, so long as they were humane, offered opportunities for voluntary therapy and rehabilitative treatment, and left room for a worthwhile life, including things like regular visits from friends and loved ones and opportunities for meaningful work. The mere fact of imprisonment would prevent violent offenders from repeating their crimes, and this would be attractive to original position deliberators. However, their general knowledge of human psychology, sociology, and economics would make them realize that prison conditions had to be calibrated to create some degree of deterrence to avoid funishment. It seems clear that the mere fact of imprisonment could provide a substantial deterrent even if prison conditions were comfortable, since almost everyone would prefer not to have their actions restricted in the way that prison restricts action, even under humane conditions. Further, in a society that selected all its basic principles in the original position, our principles of penal justice would be implemented along with the principles of distributive justice chosen in the original position, which require that everyone’s basic needs are met, that there is equality of rights and political liberties, and that the poorest are as wealthy as possible. As a result, there would be less upward pressure on crime rates from the problems caused in our own society by poverty and oppression, so less deterrent force would needed than is needed in our society. It must also be kept in mind that we almost certainly cannot deter everyone, and that we need not deter everyone to maintain a society of law and order. So there is reason to hope that a modest deterrent would be strong enough. Original position deliberators would, however, need to be certain to avoid a deterrent so weak that it would amount to funishment and the consequent collapse of the law and order that society needs to survive, since the alternative to society is the state of nature, with its war of all against all. Original position deliberators would select principles of punishment allowing enough sensitivity to actual social situations to calibrate a deterrent unpleasant enough to ensure this. It seems clear, however, that original position deliberators would not risk imprisonment that deterred more strongly than necessary to avoid funishment and the state of nature, since they must assume that they are as likely to live in the conditions that create that deterrence as they are to live under the protection of that deterrence. It should be emphasized that unpleasantness is often a relative matter – we avoid a less-pleasant alternative when we have a more-pleasant alternative available, even if the less-pleasant option is not intrinsically unpleasant. The minimum level of unpleasantness necessary to avoid
funishment would be relative to the conditions of life outside prison, and the prioritization of noncoercive preventative measures demanded by original position deliberators (such as education, jobs, and social services) suggests that imprisonment would not have to be intrinsically unpleasant for it to be less pleasant than life on the outside. It is for this reason that I think that original position deliberation sets a limit on harsh treatment of prisoners at the same level that I take to be required by the quarantine justification. How should we put these principles into practice? If original position deliberators have good but not perfect empirical knowledge of human nature, then I think they would select a program of rapid improvements in distributive justice toward the Rawlsian ideal, with matching but slightly slower improvements in prison conditions, and heavy spending on empirical research to determine the point at which deterrence begins to decay, so that they could slow the improvements in prison conditions, or stop them if needed, before arriving at funishment. If my reasons for choosing principles of punishment in the original position include deterrence, then this approach to punishment has a consequentialist element. But this does not imply that it is a species of consequentialist justification. The premise of this approach is that what we consent to in the original position is just, not that punishment ought to be aimed at achieving any particular outcome. I take this to be a deontological premise. Whatever consequentialism derives from original position deliberation is the result of working out the implications of this deontological premise. That is, if this line of thought is sound, it would be rational to weigh consequentialist considerations in consenting to principles of punishment, but it is legitimate for these considerations to play a role in justifying punishment only because they emerge from our rational consent. The consequentialist considerations have no independent value. This justification of deterrence implies using criminals as means, but it does not imply using them as mere means. Criminals can be used as means to the end of deterrence without being used as mere means if they would rationally consent to being used in this way. Translated through Rawls, the claim is that criminals can be used as means to the end of deterrence without being used as mere means if, in the original position, they would choose an institution of punishment that included deterrence. Now let us consider whether this approach sets suitable deontological limits on how people caught up in the penal justice system can be treated. Earlier in the chapter I mentioned three disturbing forms of instrumentalization that utilitarianism, and arguably all pure consequentialisms, must
Deontology and Deterrence for Free Will Deniers
endorse under certain circumstances: (i) punishments of unlimited severity; (ii) violating or weakening due process; and (iii) framing and punishing noncriminals. Can the personhood-based approach defended here rule out these practices? Let us consider limitations on the severity of punishment first. Can we justify imprisonment under harsh conditions in order to strengthen deterrence? Original position deliberators would resist this, since they face an equal probability of a significant harm and a smaller benefit. The same would even more obviously be true of the death penalty and torture. As mentioned earlier, original position deliberators would not risk imprisonment that deterred more strongly than necessary to maintain a society of law and order. Rejecting the avoidability-of-crime assumption is crucial in establishing this limit. If we assume that we can avoid crime, and thereby avoid liability to punishment, it could seem rational in the original position to endorse very severe punishments in order to strengthen deterrence (at least if we have strong institutions of due process in place). Next, can this approach explain why we should not weaken or violate practices of due process when the utilitarian calculus shows that doing so would reduce overall suffering? On this point, rejection of the avoidabilityof-crime assumption may appear to be more of a liability than an advantage. That is, if we assume that we can avoid committing crimes, then it makes sense to insist on a very strong institution of due process, because this will allow us to be confident that by refraining from crime we can escape punishment. Free will deniers need a different solution. As argued before, original position deliberation about principles of penal justice requires us to distinguish the people harmed and the people benefited. Previously, the focus has been on choosing the principles of punishment; that is, on determining how we should treat people who have already been selected for punishment. But now, we are choosing the principles of due process: in other words, we are choosing the rules for determining who we should punish. So our competitors are not the people punished versus potential victims, but instead the accused versus potential victims. We must assume that we are just as likely to be the person accused of a crime as we are to be the potential victim. It can be shown that an individual accused of a crime (whether correctly or incorrectly) has more to lose from a weakened institution of due process than an individual potential victim has to gain from it. Suppose that the criminal conviction standard were to be lowered from “reasonable doubt” to something weaker. This would allow prosecutors to convict more of the accused, thereby worsening things for the accused. Some of the additional people convicted will have been
correctly accused, and their conviction will result in an improvement for potential victims. But the lowered standard will also open the door to sloppy or politically motivated prosecutions that result in the conviction of noncriminals, thereby worsening things for the accused without an equivalent improvement for potential victims. So it would worsen things for the accused more than it would improve things for potential victims, and, since I must assume that I am just as likely to be in either position, I would not choose to weaken due process. Now let us turn to the issue of framing and punishing noncriminals. Suppose that we could dramatically strengthen general deterrence by occasionally framing and punishing celebrities, given all the publicity involved. In Kantian terms, an institution that aims to deter by way of penalizing anyone other than real criminals can only succeed through a systematic and global deception of the public that contradicts itself. That is, to choose a principle of punishment that allowed punishment of a framed celebrity instead of a real criminal for the sake of general deterrence, I would also have to choose that the overwhelming majority of the population be deceived about the fact that this principle was in effect. The deception would be necessary because if word got out that scapegoats were sometimes punished instead of real criminals, then the extra deterrent force that authorities had hoped to achieve with the framing would be destroyed. Since I could not assume that I would not be among the deceived, I would in effect be volunteering to be deceived about the principle I had chosen. In other words, I would be volunteering to be a mere means to the end of amplifying deterrence. Consenting to be deceived about the basic principles of one’s society undermines one’s status as a rational agent in a way that parallels consenting to slavery, and should be seen as selfcontradictory for parallel reasons. So we could not rationally consent to an institution of punishment that punished anyone but real criminals.
. Objections and Responses I would like to move toward a conclusion by responding to some objections from Pereboom (: –, footnote ). He accepts that it may be right to claim that, because we are persons, we deserve to live in a society regulated by the principles we would choose in the original position, but he is skeptical about using this idea to justify the claim that criminals deserve to be punished. However, the purpose of my discussion of desert is to analyze a notion of desert sometimes taken to be monolithic in the free will literature. As explained earlier, I distinguish personhood-based desert from
Deontology and Deterrence for Free Will Deniers
action-based desert, and then, on the basis of this distinction, I make a more specific claim: that criminals have personhood-based desert claims that give them absolute deontological rights to certain standards of treatment, and that it is nonetheless possible to punish them without violating their personhood-based desert claims. The point of appealing to desert is to argue that, even in the absence of action-based desert, there is another kind of desert that continues to protect the rights of criminals to be treated in particular ways. Pereboom goes on to express a more specific concern about how my view justifies deterrence: We might well agree in the original position that if there was no other way to save million or more people than by killing one innocent person, we should do so. But it seems implausible that this one person would then deserve to be killed. In addition, I don’t think that just because we’ve all hypothetically agreed to this resolution, the innocent person isn’t being used as a mere means when she is killed. On the contrary, it’s highly intuitive that she is. This worry carries over to a general deterrence scheme agreed upon in the original position. (Pereboom : –, footnotes)
Suppose that we contemplated the “kill one innocent to save million” principle in ignorance of whether we would wind up as the one innocent person killed, or among the million saved. In the act of social cooperation in which a person might be killed to benefit the rest, the one innocent would be easy to recognize as the worst-off party, and original position deliberation would direct us to assume that we would find ourselves in that person’s shoes when the veil of ignorance was lifted. So, contra Pereboom’s claim earlier, we would reject the “kill one to save million” principle and we would not be compelled to endorse the use of that person as a mere means. Of course (and as Pereboom would no doubt add), it will sound rigoristic and bizarre to many to suggest that we could have a moral reason to refrain from killing one and let so many die. Two points are important here. First, as I explained earlier, my goal in drawing on original position deliberation in the ethics of free will skepticism is to incorporate the nonconsequentialist notion of rational choice, which allows Rawls to model Kantian absolute duties to persons that cannot be overridden by considerations of aggregate well-being. Kantian duties are demanding. Kant famously rejects the saying that “It is better for one man to die than for an entire people to perish,” claiming that “if justice goes, there is no longer any value in human beings’ living on the earth” (Kant : ). Second, from a broadly Kantian perspective, I think the claim
to make about the moral reasons relevant for the one innocent is this: that person has a right not to be killed by us to benefit others, but can nonetheless fulfill an imperfect duty of virtue by choosing to die for the benefit of the rest. (Kant himself does not argue that self-sacrifice can be an imperfect duty of virtue, but ethicists working in the Kantian tradition could accommodate such a duty.) The distinction between duties of right and imperfect duties in Kantian ethics allows us to hold, in cases like this, that the moral reasons in favor of the one innocent’s death are that person’s to voluntarily accept, not ours to coercively enforce, and by voluntarily fulfilling a duty in this way the person is not used as a mere means. I appeal to Rawlsian methodology for help in explaining our rights against one another when harms are at issue, but I do not mean to claim that it provides a complete moral theory. I should emphasize that I do not take myself to have provided anything like a sufficient case for the claim that this Rawlsian/Kantian approach to the ethics of free will skepticism is preferable to a consequentialist approach. My goal has been merely to argue that such an approach is compatible with free will skepticism, and that it solves certain problems in a way that makes it worthy of consideration. A more indirect response to Pereboom’s concern derives from a more general feature of the view of social contracts explained earlier, that criminals are not contract breakers cast back into the state of nature, but instead are equal participants in the social contract. I take it to be a basic assumption of social contract theory that it can only be rational for us to join the contract if it gives us good reason to believe that we will fare better in society than we would fare in the state of nature. This on its own implies that I cannot contract for the possibility of being killed, because that outcome is no better than the state of nature. Further, I think that even the worst positions in society must be better than the state of nature for us to rationally join the contract, even those of prisoners. It seems plausible to think that we can imprison people under conditions calibrated to provide just enough deterrence to avoid funishment that are nonetheless preferable to the state of nature. This point adds another perspective to my defense against the mere means objection. That is, even imprisoned people gain something in return for what they contribute to society. A society that includes people serving as means to the end of deterrence is the only alternative to the state of nature, given the limited social and technological tools for abolishing punishment currently at our disposal. The people punished serve as means to the end of deterrence, but the other members of society serve the people punished as means to their end of living in
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better conditions than the state of nature affords. This may sound appalling. Don’t we all deserve more from society than a life that is merely better than the state of nature? My answer is yes, of course – we deserve a life to which we would consent in the original position. The other members of society must serve prisoners not just as means to their end of a life better than the state of nature but also as means to their end of a life they would accept in the original position. I am not suggesting that it is sufficient to justify a form of punishment that it passes this better-than-the-state-ofnature test, only that it is necessary. Forms of punishment chosen in the original position will pass the better-than-the-state-of-nature test, but forms of punishment that pass the better-than-the-state-of-nature test may not always be acceptable in the original position, because they may punish more harshly than necessary to avoid funishment, or because they may allow practices like violations of due process. Nothing I have said is meant to deny that there remains a tragic kind of unfairness in the incarceration of criminals for free will deniers, given that they have done nothing to deserve their situation. But acknowledgment of that tragic unfairness isn’t a reason to be less resistant to the kinds of unfairness involved in maximally painful punishment, violations of due process, and framing. The main purpose of the account I defend is to explain how free will deniers can justify punishment despite establishing deontological rights against these kinds of unfairness. REF ERE NCE S Caruso, G. D. (). Free will skepticism and criminal behavior: A public health-quarantine model. Southwest Philosophical Review, (), –. (). Public Health and Safety: The Social Determinants of Health and Criminal Behavior. London, UK: ResearchLinks Books. (). Free will skepticism and its implications: The case for optimism. In E. Shaw, D. Pereboom, and G. D. Caruso, eds., Free Will Skepticism in Law and Society: Challenging Retributivism, ch. [this volume]. Cambridge, MA: Cambridge University Press. Dolovich, S. (). Legitimate punishment in liberal democracy. Buffalo Law Review, (), –. Harsanyi, J. (). Can the maximin principle serve as a basis for morality? A critique of John Rawls’s Theory. The American Political Science Review, (), –. Kant, I. (). The Metaphysics of Morals, ed. and trans. M. Gregor. New York: Cambridge University Press. Levy, N. (). Skepticism and sanction: The benefits of rejecting moral responsibility. Law and Philosophy, (), –.
Pereboom, D. (). Living without Free Will. New York: Cambridge University Press. (). Free will skepticism and criminal punishment. In T. Nadelhoffer, ed., The Future of Punishment. New York: Oxford University Press, pp. –. (). Free Will, Agency, and Meaning in Life. New York: Oxford University Press. Smilansky, S. (). Hard determinism and punishment: A practical reductio. Law and Philosophy, (), –. Vilhauer, B. (). Free will skepticism and personhood as a desert base. Canadian Journal of Philosophy, (), –. (). Persons, punishment, and free will skepticism. Philosophical Studies, (), –. (). Free will and the asymmetrical justifiability of holding morally responsible. Philosophical Quarterly, (), –. (). Kant’s mature theory of punishment and a first Critique ideal abolitionist alternative. In M. C. Altman, ed., Palgrave Kant Handbook. New York: Palgrave Macmillan, pp. –.
Free Will Skepticism, General Deterrence, and the “Use” Objection Kevin J. Murtagh
In this chapter, I will defend the view that a free will skeptic can endorse general deterrence as a justifiable aim of legal punishment. I do not claim that it is the justifiable aim, or the main aim, but rather that it is a justifiable aim among others. Derk Pereboom, a prominent free will skeptic, has argued that general deterrence is not a justifiable aim of punishment, albeit on grounds independent of free will skepticism (Pereboom : –). Here, I will focus primarily on the “use” objection, one of the objections advanced by Pereboom, according to which general deterrence is wrong because it involves harming some, without their consent, in order to benefit others. Borrowing from recent work of Zachary Hoskins, I will argue that the “use” objection myopically focuses on only one aspect of a system of general deterrent punishment, and that, when we take full account of the complexity of this sort of punishment within a reasonably just legal system, we can see that it need not involve an impermissible kind of use. I will then turn to Pereboom’s positive account of how to respond to crime, and, after a critique of his claim that his proposed measures are sufficient for good social policy, I will offer a sketch of an account that combines the measures that Pereboom advocates with others designed to promote general deterrence. The argumentation presented here is intended to partially clear the path for an account of punishment that both includes general deterrence as a justifiable aim and can be embraced by a free will skeptic. At the outset, some definitions are necessary. A free will skeptic is someone who believes that human beings lack the kind of free will required for moral responsibility, where moral responsibility is understood in the basic desert-involving sense. As Pereboom states, “For an agent to be morally responsible for an action in this sense is for it to be hers in such a way that she would deserve to be blamed if she understood that it was morally wrong, and she would deserve to be praised if she understood that it was morally exemplary” (Pereboom : ). Deterrence is the ability of
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punishment to reduce crime by appealing to prospective offenders’ fear of punishment. General deterrence is deterrence aimed at the general public, both former offenders and prospective first-time offenders alike. This is to be contrasted with specific, or special, deterrence, which is deterrence aimed at previous offenders in order to reduce the likelihood of their reoffending. Legal punishment, our focus here, is punishment within a legal system, as opposed to punishment within, for example, the family or a religious organization. My major project in this article is defending general deterrence against objections, but it is worthwhile to at least say a few words in favor of general deterrence before discussing the objections. Fortunately, it is not difficult to state a prima facie case for general deterrence: by using deterrent threats, a society can reduce the incidence of crime, and thereby reduce pain, suffering, and the deprivation of the rights of its citizens. As I do not wish to belabor the obvious, I will simply add that punishment that is insufficient for general deterrence exposes us to the same risks that Bentham cautioned against in the Introduction to the Principles of Morals and Legislation when discussing punishment that is insufficient to outweigh the profit of the offense: It is “partial benevolence” that “would counteract as well those purposes which such a motive would actually have in view” and that it would be “cruelty to the public, that is cruelty to the innocent, by suffering them, for want of adequate protection, to lie exposed to the mischief of the offense . . .” (Bentham : ch. ). This is important to keep in mind because, given the free will skeptic’s view that offenders are not morally responsible for their crimes, it is tempting to focus excessively on ameliorating their undeserved suffering while simultaneously deemphasizing the fact that victims and prospective victims of crime do not deserve to suffer either.
. Pereboom’s Objections to “Utilitarian Deterrence Theory” In a number of works, most recently in his new book Free Will, Agency, and Meaning in Life, Pereboom objects to “utilitarian deterrence theory.” He refers to three objections as “especially threatening,” and I will discuss them in turn. His first objection is as follows. This approach will justify punishments that are intuitively too severe. For it would seem that in certain cases harsh punishments would be more effective deterrents than milder forms, while the harsh punishments are intuitively too severe to be fair. For example, if society is threatened by a
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crime wave, administering harsh penalties might well maximize utility (Pereboom : ). This is a common objection to utilitarian approaches to punishment, and C. L. Ten uses the following example in order to illustrate it: Suppose . . . that petty thefts are rife in a society and literally hundreds of cases occur weekly, and the thiefs [sic] are so efficient that it is rare for one to be caught. Although the harm caused by each theft is small, the total harm caused by all the thefts is, from the utilitarian point of view, great, and may well outweigh the harm caused by the severe punishment of one petty thief. Suppose that in such a situation the application of a newly enacted law imposing a punishment of years’ imprisonment on a convicted petty thief, and the threat of repeating the penalty on future offenders will be sufficient to deter all other thiefs [sic], and no lesser penalty will have any deterrent effect. It is arguable that the utilitarian would have to condone the imposition of years’ imprisonment on the one unfortunate petty thief who was unlucky enough to be caught. (Ten : –; italics mine)
Although this example incorporates some highly dubious assumptions (no lesser penalty will have any deterrent effect?), it succeeds in showing that there is a conceivable set of circumstances in which utilitarianism can justify very harsh punishments for relatively minor crimes. But it is crucial to realize that this is an objection to utilitarian approaches to punishment, not to deterrence as an aim of punishment. Utilitarianism, in its classical form at least, is aggregative: determining the right action involves adding up the good (for Bentham, pleasure), subtracting the evil (for Bentham, pain), and choosing the action with the best “bottom line” (Bentham : ch. ). Within this theoretical framework, it is not difficult to see how harsh punishments for relatively minor crimes can be justified, at least in theory: as long as they help to achieve the best bottom line, compared with available alternatives, they will be justifiable. To return to Ten’s example, the -year prison sentence for the one petty thief could be justifiable on utilitarian grounds because, even though that sentence will cause a great deal of pain for the thief and the thief’s friends and family, an even greater amount of pain will be avoided by preventing the large number of thefts that would have otherwise occurred. But, so the objection goes, such an exemplary punishment would clearly be wrong, and, therefore, the theory that would condone it must be mistaken. At this point, we can see that it is the aggregative nature of utilitarianism that gives rise to this objection. But despite the fact that
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utilitarians, such as Bentham, often hold that deterrence is an important aim of punishment, it is crucial to see that deterrence as an aim has no essential ties to utilitarianism. A theorist, such as H. L. A. Hart, can accept deterrence as a legitimate aim of punishment without embracing the essential features of utilitarianism, such as aggregation. Hart argued that much of the confusion surrounding the justification of punishment was due to the failure to separate distinct questions and consider that these questions might be answered by appealing to different principles: What is needed is the realization that different principles (each of which may in a sense be called a “justification”) are relevant at different points in any morally acceptable account of punishment. What we should look for are answers to a number of different questions such as: What justifies the general practice of punishment? To whom may punishment be applied? How severely may we punish? (Hart : )
When we distinguish these questions from each other, we can see that it is consistent to argue that the justification of the general practice of punishment, which he refers to as the “general justifying aim,” is its beneficial consequences, and that the pursuit of that aim should be constrained by justice-based “principles of Distribution which require that punishment should be only of an offender for an offense” (Hart : ). Regarding social institutions in general, Hart argues that, after determining the aim of the institution, we must also ask whether there are principles that constrain the means that we may adopt to pursue that aim. He points to the complexity of many of our social institutions and observes that they “possess a plurality of features which can only be understood as a compromise between partly discrepant principles” (Hart : ). I accept this view, and I think that it should at least be viewed as plausible by anyone who is not already committed to the view that all moral questions should be answered by reference to a single, fundamental value or principle. In the context of discussing the sentencing principles of proportionality and parsimony, Michael Tonry makes a similar point by drawing on Isaiah Berlin: “The burden of persuasion should rest . . . on those who reject Isaiah Berlin’s observations that ‘not all good things are compatible, still less all the ideals of mankind’ and that ‘the necessity of choosing
See Jeremy Bentham, The Rationale of Punishment, Digitized text from edition published by Robert Heward, London (). Classical Utilitarianism Web Site: www.laits.utexas.edu/poltheory/cuws/ (accessed January , ), book , chap. .
Skepticism, General Deterrence, and the “Use” Objection
between absolute claims is then an inescapable characteristic of the human condition’” (Tonry : ). With this sketch of Hart’s approach to punishment, it should not be difficult to see how the objection that we are presently considering targets utilitarianism, but not deterrence as an aim of punishment. Hart could completely agree that the -year sentence for the petty thief is wrong because it is unjust, while still maintaining that general deterrence is justifiable when it is pursued within justice-based constraints. Whether or not Hart’s approach to punishment is entirely satisfactory, this at least shows how utilitarianism and deterrence can and do come apart, and, therefore, that the objection does not target deterrence as an aim of punishment. Pereboom’s second objection is the famous punishment-of-the-innocent objection: The theory would seem to justify punishing the innocent. If after a series of horrible crimes the actual perpetrator is not caught, potential criminals might come to believe that they can get away with serious wrongdoing. Under such circumstances it might maximize utility to frame and punish an innocent person. (Pereboom : )
This is probably the most common objection to utilitarian approaches to punishment, and a classical statement of it is made by H. J. McCloskey: Suppose a utilitarian were visiting an area in which there was racial strife, and that, during his visit a [black man] rapes a white woman, and that race riots occur as a result of the crime, white mobs, with the connivance of the police, bashing and killing [black people], etc. Suppose too that our utilitarian is in the area of the crime when it is committed such that his testimony would bring about the conviction of a particular [black man]. If he knows that a quick arrest will stop the riots and lynchings, surely, as a utilitarian, he must conclude that he has a duty to bear false witness in order to bring about the punishment of an innocent person. (McCloskey : ; italics mine)
This basic objection goes through just as well if we modify the case to more closely resemble the one described by Pereboom: instead of stopping riots and lynchings, the purpose of framing the innocent person could be to deter rape (although in that case the racial details would be superfluous). This shows that this objection, like Pereboom’s first objection, does not target deterrence as an aim of punishment, but rather utilitarianism as a
In place of the bracketed terms, the original contains the word “negro,” which I have taken the liberty of changing here.
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normative theory. Any case that is constructed will enable the objector to make the same point provided it sketches a plausible set of circumstances in which punishing an innocent person promotes better consequences in the aggregate than any of the available alternatives, regardless of whether those better consequences are promoted by placating an angry mob or deterring crimes that are similar to the one for which the innocent person is framed. As our brief detour into Hart’s approach to punishment has shown, a theorist may accept deterrence (and, I would add, placation) as a legitimate aim of punishment without being a utilitarian and, thereby, embracing the view that goods should be aggregated in order to determine the right act. So, for reasons essentially similar to those discussed in response to the first objection, the punishment-of-the-innocent objection also fails to show that deterrence is an unjustifiable aim of punishment. Turning now to my main focus, Pereboom’s third objection is the “use” objection. A general problem for utilitarianism is that it sometimes requires people to be harmed severely, without their consent, in order to benefit others, and this is often intuitively wrong. Punishing criminals for the security of society would appear to be just such a practice (Pereboom : ). This objection, unlike the other two, does target deterrence, and especially general deterrence, as an aim of punishment: the idea is that by punishing a person in order to prevent others from committing a certain crime, that person is being used as an instrument to affect the behavior of others, and that is inconsistent with respect for that individual as a person. Because this objection, unlike the other two, does target deterrence, it will be my main focus. To put this objection in its classical Kantian form, the punished person is being used as a mere means: Punishment by a court [legal punishment] . . . can never be inflicted merely as a means to promote some other good for the criminal himself or for civil society. It must always be inflicted upon him only because he has committed a crime. For a human being can never be treated merely as a means to the purposes of another or be put among the objects of right to things: his innate personality protects him from this, even though he can be condemned to lose his civil personality. He must previously have been found punishable before any thought can be given to drawing from his punishment something of use for himself or his fellow citizens. (Kant : )
Although this objection, and especially its formulation with the term “mere means,” is most strongly associated with Kant, Pereboom is not working in an entirely Kantian framework. As is well known, Kant is an
Skepticism, General Deterrence, and the “Use” Objection
absolutist, and Pereboom argues in other places in his chapter that the force of the “use” objection can be outweighed by other considerations (Pereboom : ). In addition, Pereboom states that, in terms of general moral theory, his “own predilection is to endorse an axiological moral theory which includes better consequences as valuable, where morally fundamental rights being honored and not violated count among the good consequences” (Pereboom : ). Kant, the paradigm deontologist, would never accept such a view.
. Critique of the “Use” Objection For the reasons mentioned, it would be a mistake to reply to Pereboom’s “use” objection as though it rests entirely on a Kantian foundation. Let us, then, look to the actual words that he uses and see whether the objection as stated is plausible. Again, in pointing out the supposedly problematic nature of deterrent punishment, he states that it “requires people to be harmed severely, without their consent, in order to benefit others . . .” But this formulation of the objection, if taken at face value, is problematic. There are all sorts of examples in which it is perfectly moral, even exemplary, to harm people severely, without their consent, in order to benefit others: Andrew rushes at Bob with a knife, intent on stabbing him to death. I shoot Andrew in the leg with a gun before he reaches Bob so that Bob can escape. I have harmed Andrew severely, without his consent, in order to benefit Bob. This is not a contrived example, and it is not difficult to think of others. Pereboom does state, directly after the words quoted earlier, that “this is often intuitively wrong” (Pereboom : ; italics mine), so it would be a mistake to interpret him as claiming that actions that fit his stated criteria are always wrong. But I think that it is worth pointing out that there are cases that fall under the stated criteria that are straightforwardly unproblematic. In addition, the intuitions that Pereboom is relying upon here do not seem to track any deep moral principle. Rather, intuitions about a given case that fit his stated criteria are likely to depend upon the severity of the harm, the magnitude of the benefit, and the number of others benefitted. To see this, consider how the strength of the intuition in the afore-mentioned case is affected if we change the example: Andrew rushes at Bob, Cal, and Dean, intent on stabbing them all to death. I shoot Andrew in the leg with a bow and arrow before he reaches them so that they can escape. The intuition that my behavior is morally permissible is stronger here, suggesting that our intuition about a particular case simply depends upon how we fill in the details.
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At this point, it is difficult to know how to evaluate the objection. And even if we can reformulate it more plausibly, it will still be difficult to evaluate without knowing how it is supposed to fit into an overall moral framework. Even if we were to find that use, however characterized, is morally wrong, it would be difficult to determine its moral seriousness. Without knowing its level of moral seriousness, even approximately, it is unclear how we are supposed to perform the balancing that would seem called for by Pereboom’s favored general moral theory. All that said, we probably have a clear enough idea of the objection in order for it to be worthwhile to further discuss it and evaluate some replies. In addition to evaluating Pereboom’s overall account, this will help us to make progress in determining overall whether general deterrence is a justifiable aim of punishment for the free will skeptic. In offering these replies, I will put to the side Benjamin Vilhauer’s account presented in “Persons, Punishment, and Free Will Skepticism” (Vilhauer ). He endorses a “hypothetical consent” justification that utilizes principles generated in the Rawlsian original position, and uses that framework to reply to the “use” objection. I find this approach to be promising, and I encourage everyone who hasn’t already read his paper to do so, but I cannot do justice to it here and cover everything else that I want to cover. In an excellent paper, “Deterrent Punishment and Respect for Persons,” Zachary Hoskins () presents a number of replies to the “use” objection. As I will argue, they are not all consistent with free will skepticism. But some of them are, and I think that his overall approach provides us with a successful reply to the “use” objection. He begins by pointing out that: . . . actual inflictions of punishment are not the means by which the system seeks to achieve [the aim of crime reduction]. Rather, the threat of punishment is intended to do the deterrent work. A deterrent system of punishment communicates a threat to everyone in the community: if you do these acts, you will be subject to punishment. . .Actual instances of punishment, then, are best seen as cases where the deterrent threat failed. (Hoskins : )
These points are important for a number of reasons. First, and crucially, he points out that we are concerned with punishment in a system, and that the actual inflictions of punishment are only one part of that system. The “use” objection is often stated as though the deterrent punishment is taking place within a state of nature in which someone does something to displease another person or a group, and they in turn decide to make an
Skepticism, General Deterrence, and the “Use” Objection
example of that person to make others afraid of performing a similar action. Deterrent punishment in a legal system has a number of important features that distinguish it from such a practice. In addition, and this is related to the first point, he shows that it is the threat, not the punishment, that does the deterrent work. This is easy to see: if someone is punished for engaging in certain conduct on Monday, and the legislature repeals the law criminalizing that conduct on Tuesday, then someone else who wants to engage in that conduct on Wednesday will not be deterred by the Monday punishment (provided, of course, that the person knows about the repeal). This is because, despite the recent deterrent punishment, the threat has evaporated. This, of course, does not mean that there is no relationship between the actual infliction of the punishment and the deterrence of offenses. The infliction of the punishment helps to maintain the credibility of the threat, which in turn aids in the deterrence process. But, for reasons that I will return to, I think that the indirect nature of the relationship between punishment and deterrence is important. Returning to Hoskins’ argument, viewing deterrence from a systemic point of view, the individuals who violate the law despite the deterrent threat are “foreseeably rather than intentionally harmed” (Hoskins : ). As alluded to earlier, it is myopic to only look at the punishment itself when evaluating its moral permissibility. The punishment is only a part of an overall legal system put in place ahead of time for the purpose of reducing crime. At that point, there is no intention to punish any particular individual, and it would be best if everyone took the threat seriously and nobody had to be punished at all. However, and regrettably, some people will violate the law despite the deterrent threats, so it is foreseeable that some punishments will have to be inflicted. As Hoskins states: “Punishment aimed at general deterrence, then, is best characterized not as intentionally harming some to benefit others, but rather as intentionally threatening everyone, and then foreseeably harming those who nevertheless commit crimes” (Hoskins : ). So far, the line of argument being pursued here does not seem to involve anything that conflicts with free will skepticism. There is no appeal to offenders’ having given the society “license” to use them through their own voluntary and responsible choices. Hoskins, not writing in a free will skeptic’s framework, argues that when we punish actual offenders (as opposed to the “innocent”) we are doing so in response to their free and autonomous choices to harm others, and that this successfully counters the claim that they are being treated as mere means (Hoskins : –).
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This response, at least in this form, will not be available to the free will skeptic, since it involves investing too much significance in a choice that offenders are not ultimately morally responsible for having made. Luckily, that otherwise-plausible line of response is unnecessary. In my view, a successful response to the “use” objection can be made by the free will skeptic by focusing on the systemic nature of punishment. Another way of putting this point is that we should view deterrent punishment as part of a plan. In “Contrived Defenses and Deterrent Threats: Two Facets of One Problem,” Claire Finkelstein and Leo Katz suggest that we: . . . assess plans—and component parts of those plans—in the context of the overall moral character of the entire package . . . [T]he legitimacy of a particular deterrent threat must be assessed in the context of the overall justifiability of the plan to threaten, and eventually to follow through, in order to deter someone else’s wrongdoing. (Finkelstein and Katz : )
Their focus is not deterrent punishment in the criminal justice system, but I think that the point goes through just as well in that context. To use an example similar but not identical to theirs, surely there is an important moral difference between the following courses of action: () letting your guard dog attack a trespasser who has intentionally come onto your property in order to deter future trespassers; () enclosing your property in a fence, posting a number of “Beware of Dog” signs, and allowing your guard dog to roam your property in order to deter trespassers. It may be objected that the intuition that there is an important moral difference between these two cases rests on assumptions about moral responsibility that are inadmissible in the context of free will skepticism: the reason why our view of the second case differs from the first, so the objection goes, is that we think that trespassers in the second case are responsible for their fate, whereas the trespasser in the first case is not responsible (or is less responsible). To an extent, this objection is probably right: in part, the intuition about the second case may rest on the assumption that, by jumping the fence and disregarding the signs, the trespasser is somewhat morally responsible for being attacked. Reflecting on my own intuitions, they do not seem to be driven by assumptions about moral responsibility; what strikes me as most relevant is that the second case, but not the first, involves the use of a plan to keep trespassers out and to make them aware ahead of time of the possible consequences of trespassing. These features of the second case seem to be important for
Thank you to an anonymous reviewer for raising this objection.
Skepticism, General Deterrence, and the “Use” Objection
reasons of fundamental fairness, independent of assumptions about moral responsibility. But, of course, it is part of the nature of intuitions that their source, or sources, is not discoverable through introspection. Belief in moral responsibility, as argued compellingly by Bruce Waller, is stubborn (Waller ). Given how entrenched this belief is, I will not pretend to have shaken it entirely, despite the fact that I’ve disavowed it intellectually. All that said, I think that my argumentation here stands on its own and does not rely crucially on intuitions about cases such as these, so the intuitions may be rejected without harming the argument. So, let us look specifically at the features of a legal system that affect the justifiability of general deterrent punishment within that system. General deterrent punishment, as I am prepared to defend it, will have the following features: - Deterrent threats are announced ahead of time, apply to everyone equally, and are tied to moral reasons that are either obvious (e.g., punishment for murder) or discoverable (e.g., punishment for violating the tax code). The system and its agents use both prudential and moral appeals to, as Hoskins puts it, “persuade citizens not to do that which they have a moral obligation not to do anyway” (Hoskins : ). - General deterrence can be implemented so that the sanctions are swift, certain, and parsimonious (Hawken and Kleiman : ), and I would argue that, in a reasonably just legal system, they should be. It is widely recognized that swiftness and certainty have a substantially greater effect on deterrence than does severity of punishment (Hawken and Kleiman : ). In addition, a reasonably just legal system should incorporate, in some form, the principle of parsimony, which states that a punishment should be no more severe than necessary in order to achieve its legitimate goals (Tonry : ). - Crime-control strategy would incorporate the knowledge gained from studies conducted since the mid-s that “consistently find that putting more police officers on the street—either by hiring new officers or by reallocating existing officers to put them on the street in larger numbers or for longer periods of time—has a substantial deterrent effect on serious crime” (Nagin : ). Daniel Nagin distinguishes between police officers’ roles as apprehension agents and as “sentinels”: “capable guardians . . . whose presence discourages a motivated offender from victimizing a criminal opportunity” (Nagin : ). As sentinels, the evidence suggests that police can have a very large deterrent effect (Nagin : ). Based in part on this evidence, Nagin suggests
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that we could improve our crime prevention efforts by reallocating resources from imprisonment to policing (Nagin : ). - A system of deterrent punishment can be implemented in a way that minimizes the amount of punishment that will actually be carried out. Especially if the punishments that are carried out are imposed with “swiftness and certainty,” a credible system of deterrent threats may be able to minimize actual inflictions of punishment. Both Hoskins (: –) and Finkelstein and Katz (: –) make a similar point. - A legal system that employs general deterrent punishments thereby protects both those who have and have not committed a serious offense. As Hoskins puts it, “[N]ote that insofar as the institution of punishment yields a deterrent effect, those who commit crimes typically will have reaped benefits from the existence of this institution just as law abiders have done . . . Thus, insofar as the institution of punishment helps to deter crime, it protects the safety and security of everyone” (Hoskins : ). So, can a free will skeptic endorse general deterrence as a justifiable aim of legal punishment? I think that the answer is “Yes.” Even though we are not within a Kantian framework, the operative concern behind the “use” objection is that general deterrent punishment fails to respect persons. But general deterrent punishment, as I envision it, does not seem to fall to that charge. At the risk of some repetition, my vision of general deterrent punishment is as follows: it takes place within a legal system according to legal rules that apply to everyone and are established ahead of time (before the conduct that is the occasion for the punishment). The deterrent threat is clearly communicated, or at least made available, to everyone within the jurisdiction of the legal system, and the punishment for disregarding that threat is made clear or available as well. The moral reasons behind the law forbidding the conduct are either clear or available, so that offenders cannot complain that they could not have understood the wrongness of their conduct. In order words, the claim that the deterrent threat was merely a brute threat will be unavailable. Deterrent sanctions will be swift, certain, and parsimonious in order to maximize their effectiveness and minimize gratuitous suffering (suffering that accomplishes no legitimate purpose). An emphasis will be placed on using the police as sentinels, thereby preventing a substantial number of crimes that would have occurred without police presence. The overall system of deterrent punishment will benefit everyone by helping offenders and non-offenders alike to
Skepticism, General Deterrence, and the “Use” Objection
live lives that are minimally affected by victimization at the hands of others. Put simply, as a free will skeptic, this strikes me as a fair and just arrangement, and I have not come across any convincing reasons why it is not. Even though, as I argued earlier, I do not think that we have a precise and plausible form of the objection to work with, it seems that, in giving content to the objection, some reference will have to be made to practical rationality and autonomy. In Living without Free Will, Pereboom’s previous book-length treatment of the free will problem, he argues that practical rationality and autonomy are consistent with free will skepticism (Pereboom : –). I think that he is right about this, although I am not sure that the free will skeptic can justify assigning to these capacities the level of moral importance that he does. Regarding practical rationality, Pereboom discusses an interpretation of Kant by Thomas Hill, a leading Kant scholar. On Hill’s interpretation, . . . practical rationality allows us to set ends or goals for ourselves, to reason about means for achieving those goals, to set goals and choose means in accord with principles that specify respect for all humanity, to formulate such principles and to make a commitment to them. (Pereboom : )
Regarding autonomy, Pereboom argues that . . . at least the core feature of Kantian autonomy – ‘positive freedom’ – does not presuppose free will of the sort required for moral responsibility. To have positive freedom is to have a capacity to commit oneself to certain principles of conduct as rationally binding, principles that are not adopted to satisfy any contingent desires and are necessarily imposed on oneself as a rational agent. (Pereboom : –)
So, does general deterrence involve a kind of use that is inconsistent with respecting persons conceived as practically rational and autonomous? I do not think that it does. With regard to practical rationality, all punishment interferes with people’s ability to pursue certain goals on the basis of their rational deliberation, and that is one way of stating the essentially morally problematic nature of punishment. But there does not seem to be anything about general deterrence specifically that is especially offensive to persons conceived as practically rational. In a legal system, when the rules of conduct are conveyed to citizens ahead of time, they are able to pursue their goals and rationally deliberate about courses of conduct that will enable them to avoid punishment. If deterrent punishments are set up as I have outlined, they will maximize the opportunities of citizens to live lives of their choosing within the bounds set by the criminal law. With regard to
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autonomy, I likewise see no reason why general deterrent punishment should be thought inconsistent with respect for persons conceived as autonomous. It need not interfere with people’s ability to commit themselves, as rational agents, to binding moral principles. If the concern is not with the capacity to practically reason or to commit oneself to binding moral principles, but rather with the exalted moral status derived from possessing such capacities, referred to as dignity or an analogous term, I do not see how general deterrent punishment as I’ve described it is inconsistent with recognizing such a status. Among other reasons, the offender is punished within an overall system that has made available moral reasons for avoiding the conduct in question, and the offender is treated as equal to all others in the society by only being punished for violating a law that applies to everyone. These considerations run counter to the view that the offender is being treated as nothing but a convenient instrument for the purposes of others.
. The Insufficiency of Pereboom’s Account and Proposals for Modification Turning now to Pereboom’s positive account, I will argue that the measures that he advocates for responding to crime are justifiable, but that it is quite plausible that they are insufficient for good social policy. I offer a sketch of an account that combines Pereboom’s measures with additional ones designed to achieve general deterrence. For a more thorough presentation of Pereboom’s account, see his chapter in this volume. I will give a brief summary of it here. Pereboom does not present his view as an account of punishment, but rather uses phrases such as “ways to respond to criminal behavior” to describe the practices that he endorses (Pereboom : ). For reasons that I will mention shortly, I think that this is right, since his account appears to be an alternative to punishment. He uses an analogy to quarantine to justify the incapacitation and isolation of the criminally dangerous: it is justifiable to quarantine carriers of dangerous contagious diseases in order to prevent harm to others, regardless of whether they bear any responsibility for having contracted the disease. Similarly, it is justifiable to incapacitate and isolate dangerous criminals in order to prevent harm to others, even if they are not morally responsible for being dangerous (Pereboom : ). While the complete incapacitation and isolation of some dangerous offenders can be justified on this account, “the less dangerous the criminal, the less invasive the justified forms of incapacitation would be. For certain minor crimes,” he argues,
Skepticism, General Deterrence, and the “Use” Objection
“perhaps only some degree of monitoring could be defended” (Pereboom : ). Continuing the quarantine analogy, both the quarantined carrier of a dangerous disease and an isolated dangerous criminal are undeservedly deprived of their freedom for the benefit of others. Just as fairness demands that we do what we can to make quarantined people safe for release as soon as possible, we ought to do what we can to rehabilitate dangerous criminals so that they can be released as soon as possible (Pereboom : ). In addition to what we might call this “incapacitation with rehabilitation” account of responding to crime, Pereboom points out that the free will skeptic should “also endorse measures for reducing crime that aim at altering social conditions, such as improving education, increasing opportunities for fulfilling employment, and enhancing care for the mentally ill” (Pereboom : ). I agree with Pereboom regarding the justifiability of all of the measures that he endorses. I disagree, however, with his contention that these measures are, as he says, “sufficient for good social policy” (Pereboom : ). For example, I do not think that his account, which is focused on justifying the prevention of the most dangerous crimes, can deal adequately with lesser crimes. There are many crimes that are low to moderate in terms of seriousness, and they are committed in far greater numbers than crimes such as rape and murder. For these less serious crimes, Pereboom is right to state that highly invasive prevention methods, let alone isolation, would be unjustifiable. As stated earlier, for less serious crimes he allows for less invasive forms of incapacitation and states that, for certain crimes, only some degree of monitoring can be justified. Because he does not flesh out what these methods are supposed to look like, it is difficult to evaluate their likely effectiveness. However, I do not want to delve deeply into speculative empirical debates about how the crime rate would be affected by adopting Pereboom’s approach to responding to criminal behavior. Rather, I think that we ought to admit that we cannot predict with a substantial degree of confidence what would happen to the crime rate if we were to reform our methods of dealing with criminal behavior to conform to Pereboom’s recommendations. Punishment, as David Garland persuasively argues, is a complex social institution: Punishment is, on the face of things, an apparatus for dealing with criminals—a circumscribed, discrete, legal-administrative entity. But it is also . . . an expression of state power, a statement of collective morality, a vehicle for emotional expression, an economically conditioned social policy, an embodiment of current sensibilities, and a set of symbols which display a
. cultural ethos and help create a social identity . . . What appears on its surface to be merely a means of dealing with offenders so that the rest of us can lead our lives untroubled by them, is in fact a social institution which helps define the nature of our society, the kinds of relationships which compose it, and the kinds of lives that it is possible and desirable to lead there. (Garland : )
For the purposes of the present argument, the most important upshot of the complexity of punishment is that it is very difficult to predict how radical changes in how we respond to criminal behavior will affect our society. As philosophers, it is best to acknowledge this and to admit that we do not have firm grounds for claiming that changes that are as radical as those advocated by Pereboom would be sufficient for good social policy. I mentioned earlier that Pereboom’s account is not one of punishment, but rather an alternative to punishment. This seems correct because, as Joel Feinberg has persuasively argued, punishment is inherently expressive: “Punishment . . . has a symbolic significance largely missing from other kinds of penalties” (Feinberg : ). Theorists differ in terms of their views regarding what punishment expresses, but Feinberg’s view is representative: he suggests that it expresses condemnation, which he describes as “a kind of fusing of resentment and reprobation.” Resentment refers to the vengeful attitudes that are often caused by criminal behavior, while reprobation refers to the judgment of disapproval (Feinberg : –). The measures that Pereboom endorses, which operate under the assumption that the offender is not morally responsible for the criminal behavior, do not include the expression of resentment or anything substantially similar to it, and therefore are not properly termed punishment. But the significance of this goes beyond a mere semantic issue: Feinberg persuasively argues that punishment’s expressive nature may be vital to many of its purposes and functions, including those that have been traditionally prominent, such as deterrence and rehabilitation, and those that are less frequently emphasized, such as absolution of others and vindication of the law (Feinberg : –). Even if the symbolic message expressed by punishment is not absolutely necessary for the promotion of these purposes and functions, it is plausible that it promotes them better than available alternatives, perhaps because of the vivid forcefulness of punishment. The wider point is that Pereboom is calling for a radical transformation of a very complex social institution, and the effects of changes of that magnitude are very difficult to predict. While I am skeptical of Pereboom’s claim that the measures that he advocates are sufficient for good social policy, I would be very happy to be
Skepticism, General Deterrence, and the “Use” Objection
proved wrong. But if his account is insufficient for good social policy and would not cause crime rates to remain at tolerable levels, then I think that it would be justifiable to supplement the measures that he advocates with additional measures aimed at general deterrence. Take the following set of circumstances, which is a bit oversimplified, but suffices to illustrate the point: suppose that the criminal justice system (if we still called it that, but put that aside for now) were reformed in a way that put Pereboom’s recommendations into practice. Rates of certain crimes spike, and some are being committed at double their previous rates. Some less serious crimes, which used to be addressed by punishments that aimed primarily at general deterrence, reach a point at which the number of victims is larger than the prereform number of punished offenders and victims combined. A consensus emerges among criminologists that the new reforms are responsible for the increase in crime, largely because previous measures designed at general deterrence were eliminated. Faced with this set of circumstances, I think that it would be justifiable to use measures aimed at general deterrence. Different theorists will, of course, disagree about the likelihood of the kind of scenario that I have described. But, given the complexity of punishment and the attendant difficulty of predicting the effects of radical reforms, I think that this scenario is at least plausible. And if this scenario is plausible, then there is, at the very least, a plausible set of circumstances in which measures aimed at general deterrence would be justifiable. I do not think that crime rates would have to become as high as in the described scenario in order for general deterrence to be justifiable. Rather, I am attempting to show that there is a plausible scenario in which one would be hard-pressed to deny the justifiability of measures aimed at general deterrence. To endorse the justifiability of general deterrence, however, is not necessarily to defend any particular existing system, much less the United States criminal justice system. In what follows, I will sketch a general deterrent system that I think would be both fair and effective. As mentioned earlier, I agree with Pereboom about the justifiability of his proposed measures, so what I propose is intended as a supplement, and not an alternative, to his incapacitation with rehabilitation account. In addition to the practices that Pereboom’s endorses, we should be open to measures that are put in place for general deterrent purposes. (For the reasons
While I have no issue with specific deterrence, at least as long as it is pursued within certain constraints, I will not take up that issue here.
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mentioned earlier, I am not sure that I would want to call them punishments, but let us leave that to the side and continue to use the term for the sake of convenience.) Many of the constraints are discussed earlier, but it is worth it here to mention the highlights again: sentences should be handed down in accordance with the principle of parsimony, which states that the punishment should be no more severe than is necessary to achieve its legitimate purposes, which, on my view, would include general deterrence. Types of punishments, sentence lengths, and overall crime-control policy would be guided by the empirical research on general deterrence, which illustrates that certainty is more important than severity: increasing the perceived likelihood of getting caught is much more effective in reducing crime than increasing the severity of sentences. The swiftness of punishment is also a factor in raising general deterrence, so there would be efforts made to reduce the amount of time between the offense and the punishment, consistent with the demands of due process. A substantial number of police officers would be deployed in a sentinel role, thereby deterring a number of offenses that would have occurred without police presence. This is not the place to offer an in-depth survey of the empirical evidence about general deterrence, but I think that what has been said offers a substantial amount of support for the claim that a “smart” deterrent system – one that incorporates and is guided by the latest empirical evidence on what actually works to prevent crime – is one that uses general deterrent “punishments” sparingly and as part of a coordinated effort to minimize crime and the need for punishment.
. Conclusion In my view, the free will skeptic can endorse general deterrence as a morally justifiable aim of legal punishment. I take no position here regarding its place in a comprehensive justificatory theory, beyond the general claim that it ought to have a place. Of Pereboom’s three objections to utilitarian deterrence theory, only one, the “use” objection, actually targets general deterrence as an aim of punishment. I have argued, drawing on the work of Zachary Hoskins, that this objection fails. Pereboom’s incapacitation with rehabilitation account is defensible as far as it goes, but it is justifiable to supplement the measures he
See supra page . See supra page –.
See supra page .
See supra page .
See supra page .
Skepticism, General Deterrence, and the “Use” Objection
endorses with additional ones aimed at general deterrence. As much of the recent empirical literature illustrates, general deterrence can be pursued in ways that use punishment sparingly, which is very different from an alternative image of deterrence in which an unlucky few are subject to harsh punishments in order to terrify others. I hope that this chapter will lead others to delve more deeply into the question of the justifiability of general deterrence within the framework of free will skepticism, and also to examine the justifiability of other aims, such as specific deterrence and norm reinforcement, which may play an important role in crime prevention and should not be ruled out as justifiable aims without good reason. REF ERE NCE S Bentham, J. (). An Introduction to the Principles of Morals and Legislation. Oxford: Clarendon Press. Feinberg, J. (). The expressive function of punishment. In A. Duff and D. Garland, eds., A Reader on Punishment. New York: Oxford University Press, pp. –. Finkelstein, C., and L. Katz. (). Contrived defenses and deterrent threats: Two facets of one problem. Ohio State Journal of Criminal Law, (), –. Garland, D. (). Punishment and Modern Society: A Study in Social Theory. Chicago, IL: University of Chicago Press. Hart, H. L. A. (). Prolegomenon to the principles of punishment. In Punishment and Responsibility: Essays in the Philosophy of Law. New York: Oxford University Press. Hawken, A., and M. Kleiman. (). Managing drug involved probationers with swift and certain sanctions: Evaluating Hawaii’s HOPE. Available at: www.ncjrs.gov/pdffiles/nij/grants/.pdf. Hoskins, Z. (). Deterrent punishment and respect for persons. Ohio State Journal of Criminal Law, , . Kant, I. (). The Metaphysics of Morals, ed. and trans. M. Gregor. New York: Cambridge University Press. McCloskey, H. J. (). A non-utilitarian approach to punishment. In G. Ezorsky, ed., Philosophical Perspectives on Punishment. Albany, NY: State University of New York Press, pp. –. Nagin, D. S. (). Deterrence in the twenty-first century. Crime and Justice, (), –. Pereboom, D. (). Living without Free Will. New York: Cambridge University Press. (). Free Will, Agency, and Meaning in Life. New York: Oxford University Press. Ten, C. L. (). Crime, Guilt, and Punishment. Oxford: Clarendon Press.
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Tonry, M. (). Proportionality, parsimony, and interchangeability of punishments. In A. Duff and D. Garland, eds., A Reader on Punishment. New York: Oxford University Press, pp. –. Vilhauer, B. (). Persons, punishment, and free will skepticism. Philosophical Studies, (), –. Waller, B. N. (). The Stubborn System of Moral Responsibility. Cambridge, MA: The MIT Press.
Free Will Skepticism and the Criminal Justice System
Fichte and Psychopathy: Criminal Justice Turned Upside Down Michael Louis Corrado
However paradoxical it may sound, the Criminal Code is the criminal’s Magna Charta. It certifies his right to be punished only in accordance with the statutory requirements and only within the statutory limits.
Franz von Liszt
It is my opinion that no punishment is likely to make the psychopath change his ways. Hervey Cleckley
In my work I have been trying to find a way to preserve the distinction between the two instruments the state uses to maintain order: the corrective and the preventive. Those who, like me, reject the notion of moral responsibility seem to fall into one or the other of two camps: those who prefer to abandon punishment in favor of preventive techniques – therapy and incapacitation – and those who seek to justify (nonretributive) punishment nevertheless. I find my tent on the fringes of this second camp: I think that punishment is essentially retributive and that it cannot be justified. But I also think that we must, if possible, avoid yielding to the preventive worldview. My view is that borrowing from punishment its harsh methods we maintain the dignity of offenders when we subject them to these methods with the aim of leading them to abandon the defective motivational traits that resulted in the crime. I want to call this approach “correction” rather than “punishment,” precisely because it lacks the
From the notes to the translation: “His theory of criminal law was based on positivism. He insisted that the purpose of criminal punishment was not to impose retribution [Vergeltung], as claimed instead by the leading criminal lawyer and stricter positivist, Karl Binding (–), but to bring about ‘special prevention’ by deterrence, with the consequence that the goal of society was both to improve social conditions and try as much as possible to re-socialize those who had engaged in criminal offences. In particular, in his view juvenile criminality should not be seen as a sub-category of general delinquency, but as a specific social problem to be dealt with primarily using social and educational measures” (von Liszt ).
retributive element that makes punishment punishment. The argument of the first part is in support of the position that this treatment is a benefit to the offender. Of course, to be truly a benefit it must be cleansed of the brutality that the aim of retribution has encrusted punishment with.
. The state has two ways of using violence to prevent crime: it can inflict pain to make an example of people who have committed crimes, an example to themselves and others; or it can seize the criminals and subject them to coercive therapy and indefinite detention. Call the first “corrective” (or “punitive,” if you insist) and the second “preventive.” For my part I would not want to live in a society in which criminal justice was solely therapeutic and incapacitative, a society in which crime was controlled only by the use of what Hart called “the manipulative techniques of the Brave New World.” Others have different intuitions, and believe that that approach is just what we should be pursuing. I intend to take for granted what Herbert Morris and H. L. A. Hart saw and what, at a different level, C. S. Lewis saw, namely that the preventive society, the society that uses therapy where it will work and incapacitation where it won’t, is not one we want to live in (see Lewis ; Morris ; Corrado ). But there are two things that, taken together, complicate the picture for me. I believe, on one hand, that it is unlikely that human beings have free will. The most valiant contemporary efforts to rescue compatibilism seem
I have argued that we have punishment only where we have retribution, and that it would be better to use a different word for what we are after. I prefer the word “correction.” “Criminal punishment as an attempt to secure desired behavior differs from the manipulative techniques of the Brave New World (conditioning, propaganda, etc.) or the simple incapacitation of those with anti-social tendencies, by taking a risk. It defers action until harm has been done; its primary operation consists simply in announcing certain standards of behavior and attaching penalties for deviation, making it less eligible, and then leaving individuals to choose. This is a method of social control which maximizes individual freedom within the coercive framework of the law” (Hart : ). See Pereboom (, ), Caruso (), and Pereboom and Caruso (). Barbara Wootton welcomed what she perceived, in , as a general shift toward prevention and away from punishment: “[I]t will indeed be a principled theme of these lectures that the choice between the punitive and the preventive concept of the criminal process is a real one . . . [I]n recent years a perceptible shift has occurred away from the first and towards the second of these two conceptions of the function of the criminal law; and that this movement is greatly to be welcomed . . . I was led nearly four years ago to the conclusion that . . . any attempt to distinguish between wickedness and mental abnormality was doomed to failure; and that the only solution for the future was to allow the concept of responsibility to ‘wither away” (Wootton : –). The preventive turn would require indefinite confinement, of course: “Logically, therefore, the conception of criminal procedure as preventive rather than punitive involves acceptance of indeterminate sentences” (Wootton : ).
Fichte and Psychopathy: Criminal Justice Turned Upside Down to founder on the same rocks that earlier versions foundered on in the middle of the twentieth century, and contemporary libertarianism approaches fantasy, demanding an utter suspension of disbelief. At the same time I also believe that free will is precisely what responsibility for actions – the sort of responsibility that would all by itself add justifying support to the infliction of pain for wrongdoing, the sort of responsibility that justifies a just God in casting sinners into eternal flames, the sort of responsibility that entails deservingness of pain – calls for. I don’t want to confuse this sense of responsibility with what someone might mean when they use “responsibility” to pick out the persons on whom it would be most useful to inflict pain. I am talking about full-blooded responsibility needed to justify retribution, to justify feeling that the infliction of pain is, in some cases, a good thing in itself. I believe that this sort of responsibility is what punishment requires, that you can’t have punishment without it, and consequently, since I believe that responsibility requires free will and that we do not have free will, I believe that punishment cannot be justified. That leaves me in the funny position of seeming to say that we can’t do without punishment, since the purely preventive approach is undesirable, but we can’t do with it either, since the grounds for retribution are missing. And it seems to put me at odds with those writers who argue for a nonretributive sort of punishment (Kelly ; Vilhauer , ). But I am after the same thing they are, at least I think I am. I am after the same thing in the end, but because I believe that the word “punishment” entails retribution I would use another term for what it is that we are after: correction. Correction, as I use the term, is the application of harsh treatment to those who have committed crimes, but it cannot avail itself of the support of retribution, and therefore it requires very solid support of another kind. To that end I want to explore the theory proposed by J. G. Fichte, a theory
See my review of Vihvelin (Corrado ). The semicompatibilism of Fischer and others agrees with this point. As to punishment as a way of expressing condemnation of a crime, Wootton cites Hart’s Law, Liberty, and Morality (): “[A]s Professor Hart has put it . . . the idea that we may punish offenders against a moral code, not to prevent harm or suffering or even the repetition of the offense but simply as a means of venting or emphatically expressing moral condemnation, is uncomfortably close to human sacrifice as an expression of religious worship” (Wootton : ). (Note that Hart’s, and Wootton’s, point here depends upon the idea that punishment must entail condemnation both of the individual and what he has done. What I am calling correction need not. Indeed, correction should be free of “vicarious” resentment and indignation: I am optimistic about the possibility of reaching the state in which that is possible, much as we have reached it in connection with the correction of children.)
of criminal justice without moral presuppositions. And I want to test the conclusions I draw from that exploration against the problem presented by so-called psychopaths in our society.
. Fichte declined to appeal to morality in constructing his theory of criminal justice, and I think we may assume that he would forgo appeal to moral responsibility as well. (You must take what I assume about Fichte for what it’s worth – the assumption of one who is not a specialist in the history of philosophy and certainly not in the study of Fichte’s work.) Fichte built the structure of criminal law on his idea of what the social contract would entail; what his idea of the social contract would entail is, I believe, a complete reversal of the usual approach to correction (or punishment) and prevention. In the usual philosophical approach to criminal justice we try first to justify corrective violence and then try to justify preventive violence as an exception to it. Thus we try to explain the prison sentences and the executions imposed by the state and to justify them in this way or that. Then, almost as an afterthought, we try to explain why on occasion those instruments are not called for and instead quarantine and coercive treatment are needed. We are justified in detaining the criminally insane, we say, because in cases of insanity the actor cannot comply with the law. Correction is the default; prevention is the exception. Fichte did not start by justifying punishment and then turn to prevention as an exception. Instead he began with the idea of outlawry: one – anyone – who broke the contract by violating the law became by that very act an outlaw. If a person violates any part of the civil contract, whether willfully or out of negligence (i.e., where the contract counted on him to act prudently), then, strictly speaking, he loses all his rights as a citizen and as a human being, and becomes an outlaw with no rights at all. (Fichte : )
Now Fichte thought of the outlaw as one forced to wander in the wilderness, but of course even in Fichte’s day the wilderness was allegorical. The real position of outlaws was that of people denied the protections of the contract, of people who had denied the rights of others and therefore were not to be accorded any rights themselves. They have put themselves outside the law.
“Let them go into the wild and live among animals” (Fichte : ). We hear an echo of this view in the work of Gunther Jakobs. See also the early view of Jeffrey Murphy.
Fichte and Psychopathy: Criminal Justice Turned Upside Down It seems to me that that the best contemporary analogue to outlawry is what I have been calling prevention: indefinite detention and perhaps coerced therapy. Although Fichte believed that outlaws had no legal rights whatever, not even the legal right not to be killed by whoever was passing by, there was a moral obligation not to harm them needlessly, just as there is a moral obligation not to harm a sheep needlessly. Today we have provided legal rights for what Fichte thought were merely moral obligations – we may not treat the people preventively detained as we choose, but must follow certain guidelines – but the important point for me here is that they are outside the reach of the criminal law. Such individuals should view being subject to the criminal law with a kind of longing, a benefit in comparison with their outlaw (or preventive) state. It is from that point of view that we should understand the quotation from von Liszt at the beginning of this chapter: Nullum crimen sine lege, nulla poena sine lege. These two maxims are the citizen’s bulwark against the State’s omnipotence; they protect the individual against the ruthless power of the majority, against Leviathan. However paradoxical it may sound, the Criminal Code is the criminal’s Magna Charta. It certifies his right to be punished only in accordance with the statutory requirements and only within the statutory limits. (Von Liszt : )
This, to begin with, is very different from the contemporary view that, for example, insanity is an excuse, and that the insanity acquittee is better off in being committed than the sane criminal is in being sent to prison. As every criminal defense lawyer knows, commitment to a psychiatric institution is often worse than any penalty except the death penalty, and one way of viewing the death penalty is as a preventive measure applied to an offender who is outside the protections of the criminal law.
I think this transition from outlawry to prevention is supported by an early article by Jeffrey Murphy (), in which he argues that someone who persistently disregards the rights of others and is beyond the reach of punishment may have his rights “suspended and he may be subjected to involuntary indefinite preventive detention and therapy and perhaps even (if his case is hopeless) to painless extermination.” This is not my view, and it is no longer Murphy’s view, but it puts prevention in its proper light. The extreme form of exclusion is death, which is a form of prevention and not punishment: “[T]here is one possible reason that might lead the state to kill the criminal; namely, that it is the only way to protect itself against him . . . The criminal’s death is not a form of punishment, but only a means to ensure security” (Fichte : ). Here’s an analogy: involuntary indefinite preventive detention and therapy are not the preferable outcomes; commitment to involuntary detention and therapy is like damnation. To be permitted to benefit from correction is to like being consigned to purgatory, where there is hope. Of course, the analogy falls down with those who are amenable to therapy; there is hope for them as well. Perhaps there is a major division in purgatory that Dante was not aware of.
But at this point Fichte steps back and takes stock: if everyone who breaks the law becomes an outlaw, no matter how trivial the law, then how will society function? Who will be left to turn the wheels of commerce and industry and government and education? What’s called for is a compromise: society must offer to certain law-breakers, no doubt the majority of law-breakers, a way to expiate their crimes. This is not something that criminals are entitled to; they are entitled to nothing. Instead it is a benefit that society confers in return for the benefit society receives – the ability to go on functioning – and it will be conferred only in those cases in which it is to society’s net benefit to confer it. But now it is just as much in the state’s interest to preserve its citizens (provided only that doing so is consistent with the state’s primary end [i.e., “the mutual security of the rights of all in relation to all others”]), as it is in each individual’s interest not to suffer the loss of all rights for every single offense. So from every perspective there is good reason, in all cases where there is no risk to public security, to impose alternative punishments for offenses that, strictly speaking, merit exclusion. (Fichte : )
And so we have, from the very outset and in anticipation of the needs of society, the secondary expiation contract: instead of being outlawed, lawbreakers will in many cases be allowed to work their way back into the social contract by undergoing various deprivations that count as punishment or correction. Now if you interpret outlawry as I have suggested, you will see what I meant when I said that Fichte has turned the usual justifying approach to criminal justice on its head. Prevention and not punishment is the default, and less desirable, position; punishment or correction, and not prevention, is the benefit. And it is offered to the criminal only when it benefits society to do so. I am attracted to this position not because of any curmudgeonly feeling on my part that anyone who breaks the law ought to be outside the law, but because it helps to fill out my explanation
This transposition is the solution to what appeared to Wooton to be a paradox: “Some people used to be thought extremely wicked: today they are classified as cases of mental disorder. Paradoxically, this has the effect that if you are consistently (in old fashioned language) wicked enough, you may hope to be excused from responsibility for your misdeeds, but if your wickedness is only moderate, or if you show occasional signs of repentance or reform, then you must expect to take the blame for what you do and perhaps also be punished for it” (Wootton : ). The apparent paradox can be sustained only by the belief that being “excused” for mental illness makes you better off than not being excused. On Fichte’s view it is punishment (or correction) that is the preferable outcome from the offender’s point of view, outlawry (or prevention) that is the less desirable.
Fichte and Psychopathy: Criminal Justice Turned Upside Down of why punishment – from here on I will speak of correction rather than punishment – my explanation of why correction should be seen as a benefit for the criminal. I think I need to be able to say that it is a benefit if I am to maintain that in a world without retribution the infliction of essentially harsh treatment on criminals is justifiable. And of course it goes without saying that correction can be a benefit in this sense only if it is in fact preferable to prevention: In Fichte’s telling of the story correction is preferable to outlawry, but of course correction could be so brutal that outlawry would be better. The forms of correction that this approach justifies seem rather mild against the backdrop of our present system of penalties, especially in the United States. Fichte goes on to describe various levels of correction that might admit criminals of different sorts back into society, and even some things that seem to fall somewhere between correction and outlawry, but we needn’t follow him that far. At this point, instead, I would like to talk about how, starting out from Fichte’s upside-down approach, we might tackle the question of how to distinguish those who ought to be outlawed – subjected to purely preventive measures – and those who ought to receive the benefits of correction. If we keep in mind the net benefit to society in return for the benefit to the offender, how do we draw that line?
. The leading thought here is that the institution of correction must be so shaped that although it consists essentially of harsh treatment it will be preferable, from the offender’s point of view, to purely preventive measures. That is one reason why punishments must be limited and rather mild. But the institution must also be preferable from the community’s point of view, or there would be no reason for the state to offer this benefit to the offender. What advantage, then, does correction offer to the community, once it has declined the appeal of retribution?
Fichte appears to use the word “punishment” to cover both preventive measures and what I refer to as correction, but exclusion from a group on the ground that you have broken the contract that established the group cannot in any ordinary sense be understood as either punishment or correction. Punishment must be proportional and limited, and exclusion is not. Correction must be understood as an attempt to aim at a change in the offender, and exclusion means abandoning the offender. I add “essentially” here because the harshness of the treatment is essential to it, unlike the pain that may be inflicted by the physical therapist, which the therapist would avoid if there were another way, and unlike the deprivation that may be inflicted on the legally insane by their keepers, which would be avoided if there were another way.
Correction allows offenders the opportunity to correct what Brandt called their motivational faults, and therefore it must be offered only to those who can benefit the community by correcting those faults. It must be offered only to those who are capable of learning from punishment or correction. Who is amenable to correction? When can we say that corrective treatment, applied with correction of the offender in mind, has a substantial chance of success? How do we distinguish those who are corrigible from those who are incorrigible? This is the question that should guide our inquiry, not the question of moral responsibility. Fichte’s answer, I think, will not work for us, but it is suggestive. For Fichte the principle behind correction is “counterpoise” – the correction is meant to counterbalance the possible gain from the crime. I will say more about this in due time. But there are cases in which counterpoise does not work: [T]here must be an adequate counterpoise to unjust wills and negligence. Wherever this principle is applicable, the expiation contract [the contract granting the offender the right to expiate his offense through correction] can apply; and then, as we have seen, public security can be guaranteed. Therefore, an answer to the question, “How far does the expiation contract rightfully extend?” depends in part . . . on an answer to the question, “To what extent can there be an adequate counterpoise to bad wills and negligence?” (Fichte : )
Fichte distinguishes between the will that is “formally” bad and the will that is “materially” bad. When the will is materially bad, when actors are motivated by a desire for what others have, we may rely upon their concern for their own well-being to bring about their correction. It should be enough of a deterrent, for offenders concerned for their own well-being, to set correction equal to the probable gain, even though the probable gain may be subject to miscalculation on the part of the offender – they may believe their chances of getting caught are smaller than they are, for example. One desirable function of correction, in addition to subtracting
At this point in the text, Fichte makes clear that he understands Bentham’s point about the relationship between the appropriate sentence for an offense, the likely gain from the offense, and the probability of getting caught, but he seems to think that in a “well-governed state” the probability of being apprehended and convicted for a crime is at least .: every other crime will result in a conviction. For this reason, an adequate counterpoise in the case of an intentional crime committed with a materially bad will is a penalty equal to double the value of the misappropriated good, whatever it might happen to be: “the transgressor must not only return the property to its rightful owner, but must also pay, as an additional punishment, a fine equal to its value.” This is not plausible, or even desirable, but unless I am mistaken Fichte’s view does not depend upon it.
Fichte and Psychopathy: Criminal Justice Turned Upside Down from their willingness to break the law, would be to help them to focus on the correct calculation. So, perhaps surprisingly, the best target for the benefit of correction is the “selfish” criminal. But correction is inappropriate – because ineffective – for the offender with a formally bad will: The principle of counterpoise is, by its very nature, inapplicable if the person’s will is formally bad, i.e., if he causes harm, not in order to gain some advantage, but only for the sake of causing harm. Such a will is not deterred by punishment equal to the offense: a malicious, vindictive person will gladly suffer the loss, as long as his enemy is also harmed. If no other way can be found to protect the person’s fellow citizens against such a formally bad will, then any offense arising from such a will is to be punished by exclusion from the state. (Fichte : )
What makes this surprising, I think, is that we generally think of purely selfish offenders – those who hires out as assassins only to make money is the extreme example – as morally lower than the person who might kill out of unrequitable anger, and as therefore requiring a greater punishment. And we tend to think that the one who kills because provoked is less bad than the one who kills with forethought, and so should be punished less. But Fichte is consistent in this: When it comes to morality, no human being can or ought to judge another. The only purpose of civil [i.e., state] punishments, and the sole criterion for determining their severity, is the possibility of public security. A person who harms public security simply for the sake of harming it is to be punished more severely than someone who harms it for personal gain, but not because his offense displays a higher degree of immorality . . . Rather such a person is to be punished more severely because the fear of a more lenient punishment, i.e., punishment equal to the offense, is not sufficient to deter his crime. (Fichte : )
Rage and intoxication can, Fichte says, mitigate a crime, but only if they are not part of the character of the offender. For a single, illegal action might be nothing but an exception in an otherwise blameless life. [That’s not to say that it doesn’t deserve any penalty at all; it may be that in such cases a penalty underlining the counterpoise the state has established will be enough.] But if someone says: ‘I often get so angry or so drunk that I lose my self-control,’ he is admitting that he regularly turns into an animal and thus is incapable of living in society with rational beings. (Fichte : )
Fichte’s precise answer to the question will not appeal to us, I think, because the distinction between a selfish offense and a “disinterested”
offense is no longer as clear as it appears to have been to Fichte. But his formulation of the question is the right one and may lead us to a workable criterion. The question is: when are offenders in such a condition that undergoing corrective measures will cause them to focus more clearly on the pain of correction and to appraise correctly the relationship between the offense and correction? Equivalently, we might ask it from the other side: when are offenders in such a condition that undergoing corrective measures cannot cause them to focus more clearly on the pain of correction and to appraise correctly the relationship between the offense and correction? The answer to both these questions is that correction can only work to eliminate or reduce the willingness to break the law when both of these conditions obtain: • •
the potential offender has an appropriate aversion to the “pain” of correction; and the offenders’ appreciation of the likelihood of being subjected to correction for their behavior – their discounting of that likelihood – can be improved by undergoing correction.
If the first is not true, if the potential offenders are not averse to correction, then the threat of correction can have no deterrent effect on them, nor can the experience of correction. If the second is not true, if the rate at which the offender discounts the likelihood of correction is both exaggerated and incorrigible, then correction itself will be useless. Let’s say, when both of these conditions are true, that the offender is amenable to correction, or that the offender is capable of learning from correction. We should all agree, I think, that the question of amenability to correction is a question of fact, one to be answered (to the extent that it can be answered) by social and biological science, and in fact a great deal of work has been done and is being done on this question by psychologists and neuroscientists. It is an unfortunate fact that much of this work is directed, with little success, toward discovering the elements of moral responsibility. If we abandon that fruitless search and turn instead to the question about the capacity to learn from correction we find that in fact much of the work that has been done seems to be pointing in the right direction. Before discussing that work I want to consider an objection to the learning approach raised by Derk Pereboom.
I admit to having contributed to this fruitless chase for responsibility.
Fichte and Psychopathy: Criminal Justice Turned Upside Down In the course of his examination of the various attempts to justify punishment, Pereboom considers the “moral education” approach: [A] theory that justifies criminal punishment on the ground that punishment educates criminals morally is not jeopardized by free will skepticism per se. However, we lack strong empirical evidence that punishing criminals reliably results in moral education, and without such evidence it would be immoral to punish them to achieve this aim. It is generally immoral to harm someone to realize some good without substantial evidence that the harm will produce the good. Moreover, even if we had impressive evidence that punishment is effective in morally educating criminals, non-punitive ways of achieving this would be morally preferable. (Pereboom : –)
I agree with Pereboom about the importance of empirical evidence here and I will turn to that in a moment, but first I would like to make a point about the burden of proof in all this. In the law, ignorance is a disadvantage for the party that has the burden of proof. If there is no evidence of the defendant’s failure to take care in a negligence case the plaintiff, who has the burden of proof on that issue, loses. Something like that is true here: If we assume that preventive measures are preferable to corrective measures, as Pereboom does, then ignorance about the educational effectiveness of corrective measures must weigh in favor of pure prevention. The burden is on the one advocating what Pereboom sees as the less desirable, namely correction. But if we assume with Fichte that correction is preferable, the burden shifts. Let the one who opposes the use of corrective measures show that education does not work. Ignorance with regard to the effect of education should work in favor of correction: offenders should be consigned to preventive measures only when it is clear that they are incapable of learning from correction. Where there is uncertainty, correction is to be preferred. But the truth is that we are not entirely in the dark here. There are some cases, of course, in which it is relatively clear that the offender is not amenable to correction, among them cases of recognized mental disorders. It would be pointless to offer the benefit of correction when neither the state nor the offender might benefit from it. But beyond these established cases of mental disorder there appears also to be a consensus in the literature that the psychopath is not amenable to correction. I am not a scientist and I am not prepared to evaluate all the work that has been done. But I will point to some suggestive results about psychopathy. In spite of doubts expressed here and there in the literature, the overall evidence seems to point to the conclusion that the psychopath is resistant to current methods of correction.
Probably the most problematic aspect of punishment presented by these findings regarding psychopathy and learning is the rehabilitation aspect. If a psychopath is unable to understand the consequences of his/her actions, how can his/her behavior be corrected? Coupled with a lack of empathy, the psychopath’s inability to learn from his or her mistakes and form associations between actions and consequences means that the prospect of rehabilitation is bleak. (Mitchell et al. )
More explicitly: Failure to profit from punishment is regarded as a cardinal characteristic of psychopaths. (Newman et al. ).
It may not be exactly that psychopaths do not react to threats, but rather that once focused on a reward, “they are less likely to interrupt a dominant response set to process negative feedback.” Newman et al. (: ) Some of this literature is several decades old, and we should be cautious in drawing inferences from experiments in the laboratory, experiments testing aversive conditioning, which may not extend to legal correction. If this is in fact so, then it is pointless to talk about the inhumanity and immorality of subjecting someone to preventive measures. Correction, after all, is intended to be essentially painful in a way that preventive measures are not, and it is justified only by the common agreement between the community and the individuals that undergoing that pain is the preferable outcome for both them and the community. When neither they nor the community stand to gain from it, then the pain is pointless. Instead they must be treated or detained against their will, but in conditions that are as bearable as possible, with every effort to remove any unnecessary pain. The question here is one for the social scientist to answer and not the philosopher, and the answer to it may change over time as our understanding advances. Should we find that psychopaths are not amenable to correction, the next question is whether they are amenable to therapy. It was long believed that psychopathy was untreatable, but Felthous came to the conclusion that “the validity of the untreatability assumption remains unanswered” (Felthous : ). If it should turn out that in fact the psychopath is untreatable, then the only alternative left to the state is preventive detention or some less harsh form of restriction, depending on
Females who score high on the PCL-R (Psychopathy Checklist–Revised) do not appear to share this “deficit.” See Vitale et al. (). See John S. Callender: “It is difficult, and perhaps impossible, to know if psychopaths are deterred from crime by the prospect of punishment” (Callender : ).
Fichte and Psychopathy: Criminal Justice Turned Upside Down the threat the offender presents to the community. With those less dangerous, a form of monitoring might suffice. As times change and as our understanding improves, these outcomes – though not the principles on which they are based – should change. If methods are found of treating those individuals who are labeled criminal psychopaths today, then the criminal psychopath thereby becomes amenable to therapy. Similarly, as we learn more about correction, it may become possible to reach the more resistant offenders; and, if that happens, they will thereby become amenable to correction.
. The fact that correction is to be preferable to prevention places a cap on justifiable correction: it cannot be so harsh that the rational person would prefer preventive measures to corrective measures when corrective measures are capable of doing the job. At the same time the community will insist that corrective measures are capable of doing the job before it will agree to the expiation contract. This does not mean that correction will always work: it is in the nature of correction and one of its benefits to offenders that it remains up to them whether in the individual case it does work. But it must by and large work, and something that is especially relevant at this point is the evidence that, in general, shorter penalties are more effective than longer. Perhaps some sort of cost-benefit analysis would be helpful here; that’s a subject for another essay. All in all, correction should be mild and administered with the same optimistic attitude with which we correct our children. The structure of the criminal process, if what I have said so far is right, should be something like this: • The first determination should be whether there was a presumptive offense, and whether the person being tried was the presumptive author of the offense. The questions of both mens rea and justification arise at this point. • If both of those questions are answered affirmatively, the second determination should be whether the circumstances permit the inference to an essential character flaw. What we call the excuses (other than insanity) are taken up at this point. Insanity that leads to violent and unjustifiable behavior is not an excuse in this sequence, but instead is one form of the essential character flaw. This point is
Up to this point I am following, or at least mean to be following, Richard Brandt’s () theory of motivational deficiencies or character flaws.
•
•
consistent with the understanding that moral disapproval of the insane person is misplaced. If the appropriate character flaw is found, the next determination is whether the offender is amenable to correction. If so, then correction is appropriate. Correction must be light, comparatively speaking. The brutal sentences given out in American systems of criminal justice are not appropriate where the aim is education. If offenders are not amenable to correction, the remaining determination is whether they are amenable to therapy. Therapy is directed toward coercively replacing incorrigible traits with correctible ones, excising those character flaws that cannot be changed with corrective measures. If they are not amenable to therapy, then detention – indefinite – may be called for. If they are, then therapy, with or without detention, is the appropriate response.
There is perhaps one other determination that ought to be made once a presumptive offense and a lack of excuse have been found. We may want to determine what sort of restitution is owed to the victim. This may be part of a separate hearing – the tort action in common law countries – or may be attached to the criminal hearing. What the offenders owe is independent of the correction they receive or the preventive measures they are subject to. This is another reason for keeping the corrective sentence light; when it is complete the offender must still face restitution. The requirement of restitution also addresses the fear that one who is subjected to therapy might be cured and then be released even before a corrective sentence would have run out. The offender who is not amenable to correction but who is amenable to therapy might be cured rather quickly, it is feared, and then released – part of the support for postsentence detention is to ensure that those who are felt to require therapy and detention should serve a certain minimum of time. The hope here is that the requirement of reparations would allay that concern. The reasoning is a little like the reasoning about the defense of necessity in tort law: the trespasser may be privileged by necessity and thus avoid the consequences of trespass, but he must pay.
. A final thought: I repeat that the attitude of the community toward the offender should, where possible, be the optimistic attitude of the parent toward the child. If the child does something dangerous or harmful, the parent who has reason for optimism does not in the first instance drag the
Fichte and Psychopathy: Criminal Justice Turned Upside Down child to the therapist for treatment or for drugs, and does not lock the child up in isolation from society. Instead the parent who still has reason for optimism admonishes the child, and takes corrective measures. Such children are sent to their rooms, or deprived of their toys or gadgets for a period of time. The reason for this is not the benefit, or not just or even primarily the benefit, of the parent or the community. Preventive measures may do a better job of satisfying those ends. And the reason is certainly not retribution for what has been done; we have grown out of any tendency to inflict pain on the child as something that is deserved. Instead correction is largely for children’s own benefit, teaching them to control their own behavior, teaching them to stay within the lines. REF ERE NCE S Brandt, R. (). A motivational theory of excuses. Nomos, (). Reprinted in M. L. Corrado, ed., Excuse and Justification in the Criminal Law, Garland Publishing (). Callender, J. (). Free Will and Responsibility: A Guide for Practitioners. New York: Oxford University Press. Caruso, G. D. (). Free will skepticism and criminal behavior: A public health-quarantine model. Southwest Philosophy Review, (), –. Corrado, M. L. (). Why do we resist hard incompatibilism? Thoughts on freedom and punishment. In T. Nadelhoffer, ed., The Future of Punishment. New York: Oxford University Press, pp. –. (). A review of Vihvelin’s Causes, Laws, and Free Will. Criminal Justice Ethics, December. Available at: https://papers.ssrn.com/sol/papers.cfm? abstract_id=. Felthous, A. R. (). The “untreatability” of psychopath and hospital commitment in the USA. International Journal of Law and Psychiatry, (), –. Fichte, J. G. (). Foundations of Natural Right. Edited by F. Neuhouser, Translated by M. Baur. New York: Cambridge University Press. Hart, H. L. A. (). Punishment and Responsibility. Oxford: Clarendon Press. Kelly, E. (). Criminal justice without retribution. Journal of Philosophy, (), –. Lewis, C. S. (). The humanitarian theory of punishment. In C.S. Lewis, God in the Dock, ed. by W. Hooper. Grand Rapids, MI: William B. Eerdmans, pp. –. Mitchell, D. G. V., R. A. Richell, J. Lumsden, C. Fine, C. Newman, and R. J. R. Blair. (). Instrumental learning and relearning in individuals with psychopathy and in patients with lesions involving the amygdala or orbitofrontal cortex. Neuropsychology, , –. Morris, H. (). Persons and punishment. The Monist, (), –. Murphy, J. (). Moral death: A Kantian essay on psychopathy. Ethics, , .
Newman, J. P., C. M. Patterson, E. W. Howland, and S. L. Nichols. (). Passive avoidance in psychopaths: The effects of reward. Personality and Individual Differences, (), –. Pereboom, D. (). Living without Free Will. New York: Cambridge University Press. (). Skepticism about free will. In G. D. Caruso, ed., Exploring the Illusion of Free Will and Responsibility. Lanham, MD: Lexington Books, pp. –. (). Free Will, Agency, and Meaning in Life. Oxford: Oxford University Press. Pereboom, D., and G. D. Caruso. (). Hard-incompatibilist existentialism: Neuroscience, punishment, and meaning in life. In G. D. Caruso and O. Flanagan, eds., Neuroexistentialism: Meaning, Morals, and Purpose in the Age of Neuroscience. New York: Oxford University Press, pp. –. Vilhauer, B. (). Free will skepticism and personhood as a desert base. Canadian Journal of Philosophy, (), –. (). Persons, punishment, and free will skepticism. Philosophical Studies, (), –. Vitale, J. E., D. G. MacCoon, and J. P. Newman. (). Emotion facilitation and passive avoidance learning in psychopathic female offenders. Criminal Justice and Behavior, (), –. von Liszt, F. (). Die deterministischen Gegner der Zweckstrafe’ [Deterministic opponents of purposive punishment]. Die gesamte Strafrechtswissenschaft, , –. Translated by Iain L. Fraser. Wootton, B. (). Social science and social pathology. Philosophy, (), –. (). Crime and the Criminal Law: Reflections of a Magistrate and Social Scientist. The Hamlyn Lectures. Sydney, Australia: The Law Book Company Ltd.
Causality and Responsibility in Mentally Disordered Offenders John Callender
After all, I should probably have been unable to do anything with my generosity of soul; neither forgive, because the person who offended me might have been following the laws of nature, and you can’t forgive the laws of nature; nor forget, because even if it was according to the laws of nature, it was still an affront. Dostoyevsky, Notes from Underground
. Introduction This chapter is based around three clinical cases. Details have been changed in order to protect confidentiality. Although none of these patients was under my care, I had considerable involvement following the significant events that are described. The purposes of this chapter are as follows: . .
To provide some real-life illustrations of cases of severe offending. To promote discussion of the complex issues raised by these cases. The questions prompted include the following. How well do legal definitions of insanity map on to the reality of mental illness? What would be a just outcome in these three cases? It is widely believed that in order to treat offenders as persons rather than objects we must attribute free will and responsibility to them. But what does it mean to treat someone as a person rather than an object? Is it possible that treating people as free and responsible agents promotes injustice by ignoring the very real constraints faced by many people in conforming their behavior to the law? Does it convert complex human tragedies into simple dichotomies of good or evil, guilty or innocent, sane or insane, and right or wrong? A general aim of the criminal justice system should be the reduction of crime. What if some of the ways that we respond to crime make the problem worse rather than better?
Case A: Traumatization and Crime
This patient was referred to mental health services at age because of unmanageable behavior. Her problems included running away from home, frequent arguments with her parents, and self-cutting. She was sent to a residential facility for disturbed adolescents where her problems continued. She exhibited rapid changes in mood and behavior. There were also concerns about high-risk sexual activity and abuse of alcohol and drugs. She was verbally abusive and violent toward members of staff. After some months, she revealed that, just prior to the onset of her problems, she had been raped whilst walking in some woodland on her way home. She was attacked by two male strangers. There were suicide attempts in the form of self-strangulation. These were followed by a further suicide attempt by fire setting. There were no prior problems. Her school records through primary and secondary school indicated % full-time attendance and no absences. This remained the case until the onset of her difficulties. She was charged with willful fire setting and was remanded in custody. At trial, she was sentenced to years’ imprisonment. Following this she continued to cut herself and made frequent suicide attempts. She wrote of how the rape had destroyed her body and her life. She said that she hated her body and that this was the reason that she cut herself. She wrote that she was depressed, that she had locked her emotions up inside, and that she was exploding. Her self-harm culminated in her hanging herself months into her period of imprisonment. She was months short of her twenty-first birthday. In a recent study, survivors of near-fatal suicide attempts by hanging were asked why they had chosen the method that they used (Biddle et al. ). People who chose hanging sometimes did so because they thought that it would be quick, painless, and certain. This belief was based to some extent on the widespread use of hanging as a form of judicial punishment and the assumption that criminals would be killed as humanely as possible. In fact, this only applies in so-called long-drop hanging. The victim has to fall feet or more for the rope to exert sufficient force to cause fracture-dislocation of the upper cervical vertebrae and transection of the spinal cord, which does lead to instant death. Most people who commit suicide by hanging are actually throttled by the rope. It can take some time to lose consciousness and several minutes for death to ensue. Her death was followed by the final indignity of the statutory postmortem or autopsy examination. In this, the brain and all major organs are removed from the body and carefully weighed, cut open, and examined before being put back roughly where they came from. I’ve emphasized the more grisly elements of this case to underline how destructive it can be to any human being to be subjected to rape or a serious
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crime of violence. Such experiences often leave the victim permanently changed and damaged, sometimes beyond repair. A second point is that this young woman is entirely typical of incarcerated female offenders. Many studies attest to the high rates of histories of traumatization and abuse in offenders. One study of female juvenile offenders found that only % had no history of traumatization or abuse (Cauffmann et al. ). Our system is therefore taking young people whose offending behavior has its origins in traumatization and attempting to deal with its effects by inflicting more trauma in the shape of judicial punishment. Prior to imprisonment, further harm had been inflicted by removing A from her usual environment of home and school and placing her in a residential establishment with other young people who were exhibiting similar problems. In such settings, we see a process of “deviancy amplification” in which the young person increasingly identifies with a deviant subgroup and adopts its patterns of behavior. At the same time, she is becoming estranged and alienated from the normal run of life. It is well recognized that rape can cause severe and persisting psychiatric problems. Clements et al. () described a range of symptoms that can be encountered following rape in adolescents. These symptoms fall into six groups: () altered affect regulation, such as depression, chronic suicidal thoughts, and anger control; () altered consciousness, such as flashbacks; () altered self-perception, such as helplessness, shame, guilt, and self-blame; () altered relationships with others, such as persistent distrust and withdrawal and failure to protect oneself; () altered systems of meaning, such as hopelessness and despair; and () somatization. The response of the victim is often bewilderment, confusion, and numbness. A poor outcome is associated with suicide attempts, substance misuse, and negative self-assessment. Posttraumatic stress disorder (PTSD) is very common in the aftermath of rape. One study in France found that % of rape victims suffered PTSD at month following rape, % after months, and % months later. Other symptoms, such as fear, anger, anxiety, depression, guilt, and self-blame, are also common. The outcome following rape is generally worsened if the rape is accompanied by violence, perceived danger to life, and physical injury (Sexual Violence Research Initiative ). In the case of adolescent rape this is sometimes followed by high-risk sexual behavior; e.g., having sex with multiple partners, no use of contraception, and early pregnancy. This may sometimes be an attempt on the part of the victim to gain control of her sexual life. Unfortunately, the effect is often that she is retraumatized. Sexual revictimization is sometimes found; e.g., the person is raped a second time or is subjected to unwanted sexual acts. Another common response is anger and aggression directed against others. This can arise for a number of reasons.
One consequence of traumatization is that people develop a chronic “fight or flight” response. This is a physiological response to threat and prepares the person for a sudden burst of activity, either to fight off the threat or to flee from it. This creates symptoms such as anxiety, tension, irritability, increased startle response, and insomnia. The victim is often left feeling very angry at those who have harmed her. This anger can be displaced onto others. The trauma victim who has flashbacks may sometimes feel that she is back in the traumatizing situation and will lash out at people whom she believes are causing her serious harm. Deliberate self-harm is common in the aftermath of sexual abuse and sexual assault. This can serve various functions. These can include expressing pain when the victim feels she has no other way of doing this. One consequence of sexual assault is a sense that the body is spoiled or contaminated. This results in selfhatred. Self-harm then becomes an expression of anger against one’s own body. Another consequence of traumatization can be distressing feelings of dissociation. These occur as a way of protecting the person from awareness of what has happened to her. The pain caused by self-harm is sometimes used to jolt the person back into reality. Victims of rape often blame themselves for what happened. This can be either “characterological” or behavioral. Characterological self-blame refers to the person blaming herself because of the kind of person she is. In behavioral self-blame, the victim attributes the rape to something that she did; e.g., some form of high-risk or unsafe behavior. Whenever she was questioned about the rape, A seems usually to have said that she did not wish to discuss it and the matter was then dropped. Reasons for nondisclosure often include fear that the victim will be disbelieved or blamed. Recall of a traumatic event can often be painful for the victim. Another reason may be the sense of shame and stigmatization that usually accompanies rape. Research in the USA has revealed that only %–% of rape victims report the crime to the police. Reasons for nondisclosure to the police include aversion to the whole prospect of forensic examination and, again, a fear that the victim will be disbelieved (National Institute of Justice ). Alcohol abuse is often found in the aftermath of traumatic events such as rape. This can be a way of dealing with hyperarousal symptoms such as anxiety, irritability, and insomnia. Unfortunately, it often creates new problems, especially by increasing the risk that the victim will be exposed to further traumatization. Alcohol can lead to a weakening of inhibitions and increases the risks of suicide attempts and aggression in response to the kinds of negative feelings that can result from traumatization. The next point illustrated by this case is what is sometimes called retraumatization. One would intuitively expect that people who have been harmed would take great care to avoid further harm. In fact, the opposite is often true. The woman who has been raped is more likely to be raped again. As mentioned earlier, high-risk sexual behavior is often seen. Victims engage
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in repeated harmful behaviors such as self-cutting, suicide attempts, and substance misuse. The fact that the perpetrators of the rape were never charged or prosecuted might have increased A’s level of disturbance. If there is a successful prosecution followed by incarceration of the offender, the victim can sometimes feel that the threat to her has been removed from society, that there is public recognition of the seriousness of what happened to her, and that justice has been done. Retraumatization assumes a further level of significance when trauma victims inflict harm on others. It is sometimes said that violence and traumatization behave like contagious diseases. In the words of W. H. Auden, “Those to whom evil is done/Do evil in return.” There is now a substantial literature on the links between early traumatization and adult violence and criminality. People who have suffered trauma “tend to lead traumatizing and traumatized lives . . .” (van der Kolk and McFarlane : ). The purpose of rape, sexual abuse, and physical abuse is not just to inflict physical harm on the victim or to obtain sexual gratification. It is also to degrade and humiliate the victim, and the memories of humiliation are sometimes more searing than the physical pain. One way of dealing with this is what psychoanalysts call “identification with the aggressor.” Victims deal with their humiliation by finding someone to victimize themselves. They exchange their humiliation for a sense of the dominance, power, and control that they saw in the persons who traumatized them. This may be accompanied by feelings of contempt for the weakness of these new victims. A was quite a handful for those who tried to care for her. She was often violent toward careers and also sometimes to other young people with whom she was living. When she attempted suicide by fire-raising, she seemed to have scant regard for the safety of others in the building. It is important to consider what purpose or purposes could or should have been served by imprisonment of this young woman. One of these is protection of the public from someone with impulses to behave in ways that endanger others. This purpose is obviously served by confinement in prison but only as long as this lasts. A was due to be released after less than year of incarceration. If there had been no change in the factors that led to the index offence, one can only assume that she would be at risk of further, similar offending. It may be that the experience of imprisonment would have deterred her from repetition of the kind of behaviors that led to her conviction. The fact that her index offence was also a suicide attempt might indicate that the deterrent effect of imprisonment would not have been high. A second and more constructive approach would have been to use a period of incarceration as a safe space in which she could receive help to deal with the problems that led to her offending behavior. The aim of this would be to help her to cope better with herself and avoid the cycle of self-destruction in which she was trapped. A had a history over a number of years of multiple episodes of
deliberate self-harm and suicide attempts, aggression, and violence. There is no reason to think that this pattern of behavior would change unless steps were taken to ameliorate the underlying causal factors. We now encounter something of a paradox. I’ve been arguing against a retributive response to the kinds of crimes committed by A and proposing that we need to look at, and ameliorate, the underlying causes of these. In doing so, I’ve probably aroused the retributive urges of the reader against the young men who caused such terrible harm to her. But the contagion of traumatization cannot only be traced forward from one event to events in the future. It can also be traced back in time. Where do young men learn to be violent? The typical violent young male offender is nearly always someone who has grown up with violence. He has perhaps watched his mother being battered, either by his father or by another partner of his mother, and has had to stand by helplessly. He has been regularly beaten himself. He has felt the humiliation of victimhood and may try to exorcise this by finding victims himself. It is widely held that if we wish to diminish the burden of violence in our societies, we have to tackle the abuse of women and children that blights so many families, often behind facades of respectability and normality. Some societies have enacted laws prohibiting the physical punishment of children. This seems to be a sensible place to start. This is not to say that physical punishment is always or even generally harmful to children. However, the advantages of a complete ban are two-fold. First it provides a “bright line” – i.e., a very clear distinction between what is, and what is not, permitted. Second, it fulfills the declaratory function of the law in laying down standards of what is proper and acceptable behavior. So what to do with these kinds of offenders? Self-defense is an accepted defense against criminal charges. Societies, like individuals, are entitled to defend themselves against serious harm. We can protect ourselves by incapacitation of those who threaten us, either by imprisonment or infliction of the death penalty. Most societies no longer kill criminals and only the most severe offenders remain in prison for life. We should therefore strive to ensure that offenders reach the end of their prison sentences in better moral shape than they were at the outset. We are unlikely to achieve this if they are kept in an environment in which they are resubjected to violence and degradation and in which status and survival are obtained by callousness and ruthlessness.
Case B: Psychotic Illness and Crime A middle-aged man became convinced that there was a conspiracy among politicians to have him assassinated. He informed the police of his fears, who were unwilling to investigate. He then wrote to several newspapers in the hope
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that they would draw attention to his plight. When this failed, he became desperate. He decided that he would have to do something drastic if he were to avoid being killed. He went to his family doctor with a hammer concealed in his clothing. After being admitted to the consulting room, he assaulted the doctor with the hammer. The assault was calculated to be serious enough to cause significant harm and so attract publicity but not so serious that the doctor would die. He expected that this publicity would have the effect of alerting the authorities and the public to the fact (as he saw it) that his life was being threatened. He was arrested and remanded in custody. Following this he developed the belief that poisonous gas was being pumped into his cell. He accordingly began to sleep on the floor so that he could breathe the fresh air that came in under the door. He was charged with serious assault and placed on trial. Expert evidence was received from a total of six psychiatrists. They were unanimous in their view that he was mentally ill but differed as to whether this had led to a significant diminution in his culpability. He was eventually found guilty of serious assault and sent to prison. Around weeks later, he committed suicide by jumping from a high balcony. The prosecution case essentially centered on guidance control (Fischer and Ravizza ). This has two components: mechanism ownership and reasonsresponsiveness. The assault on the doctor had been carried out after lengthy deliberation. The level of violence was carefully calculated to be serious but nonlethal. B knew that what he was doing was wrong and against the law. Indeed, this knowledge was one of the central reasons for doing what he did. The action had been carried out with a callous disregard for the pain and suffering that it would cause to the victim. It was acknowledged that his mental illness had created a worldview in which he felt persecuted and endangered. However, his capacities for reasoning, calculation, and planning were such that he did not meet the standard M’Naghten criteria for legal insanity. This meritbased view led on to the conclusion that the assailant deserved some form of retributive punishment and he was accordingly sentenced to a lengthy period in prison. Does the idea of guidance control in fact help us here? With regard to mechanism ownership, the main argument for nonresponsibility was that the principal causal factor in his crime was the presence of a mental illness. This caused him to act in ways that were out of character for him. This mechanism could have been seen as something alien to his nature, something that he had no part in creating or controlling, and hence not something that he could be said to have “owned.” What happens if we apply the reasons-responsiveness criterion? According to Fischer and Ravizza, for “weak” reasons-responsiveness to apply we need to show “that there exist some possible scenario (or possible world) in which there is a sufficient reason to do otherwise, the agent recognizes this reason and the agent does otherwise” (Fischer and Ravizza : ).
B could be said to have been weakly reasons-responsive. He knew that what he was doing was wrong. He recognized reasons for not assaulting the doctor but nevertheless did so. Moderate reasons-responsiveness (Fischer and Ravizza : –) requires the following criteria: .
. .
There is an explicit connection between reason and action. The agent’s action in the actual sequence should be intentional; that is, there should be a clear link between the agent’s action and the agent’s reasons for performing it. There should be a clear and understandable pattern of receptivity to reasons. The reasons to which one should be responsive for the purpose of assigning moral responsibility should include moral reasons.
In terms of moderate reasons-responsiveness, the evidence is mixed. He was clearly able to act intentionally, in the sense that there was a clear relationship between his reasons and actions. On the other hand, there was some evidence of inconsistency in the pattern of his receptivity to reasons. Whilst his thinking and behavior had an internal consistency, the whole edifice of his reason was built on a foundation of wrong beliefs – i.e., that he was going to be killed. He would therefore fail the criterion for moderate reasonsresponsiveness, which requires that beliefs be minimally grounded in reality. However, there is a possible objection to this. This is that there are people who are not mentally ill who perform drastic actions for reasons that strike other people as not being grounded in reality. In these cases we tend to talk of extremism or fanaticism rather than mental illness. There is no religion that is believed in by a majority of the human race. Religious fanatics of any type will therefore act on a belief system that seems completely irrational to the majority of their fellow human beings but that they are absolutely committed to themselves. A delusion is defined as a false belief that is out of keeping with the cultural context of the person who believes it. If we are to use reasons-responsiveness to distinguish between mental illness and fanaticism, we need to add the refinement that beliefs should be grounded either in reality or in a recognized belief system. Alternatively, we might argue that a belief system is part of reality. The second way in which he might be nonresponsible in terms of moderate reasons-responsiveness is his failure to be receptive or reactive to moral reasons. An obvious moral reason in this case would be, “You have no right to cause serious harm to an innocent person.” Instead he was responsive to something along the lines of, “The harm that I do to the doctor is justified by my need to escape a more terrible harm.” However, it is not clear how this criterion would separate him from a callous criminal who was not mentally ill. To commit a crime that causes serious pain, harm, or death to another person
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requires a degree of indifference to the moral rights of that person. Otherwise, the crime would not have taken place. Fischer and Ravizza (: –) state that people such as this are “not responsible because they are not moral agents—they do not act on mechanisms that are receptive to moral demands.” According to this criterion, cruel and callous offenders would be nonresponsible because of their cruelty and callousness. The application of guidance control theory is problematical in this case. In terms of the mechanism ownership criterion, he could be regarded as nonresponsible. He had no previous record of offending. In fact, members of his family were dismayed by what he had done and said that it was quite out of character. His illness therefore was probably a necessary component of the causal circumstance that led to his action. The reasons-responsive criterion proved to be more contentious. The prosecution focused on the ways in which his behavior seemed to be reasonsresponsive and hence argued, successfully, that he was legally responsible for what he had done. This approach is one that is merit based and was employed in this case to ascertain whether the accused was deserving of punishment. The outcome was one that ended with an unnecessary death and that created no discernible benefit whatsoever for anyone. An alternative approach would have been the consequentialist one. This would have focused on the outcome that would have had the most desirable consequences for society. The assailant was clearly not deterred from what he did by the prospect of criminal proceedings and punishment. In his view of things, this was a desirable outcome that would draw attention to his predicament. As long as this view continued, he would be at risk of further offending if given the opportunity to do so. He was by common consent in need of psychiatric treatment. Until this happened, he would not be open to influence by the usual reward and punishment contingencies of society. He had no previous record of offending. His illness therefore was in all likelihood a necessary component of the causal circumstance that led to his action. The retributive impulse would have to be laid to one side. This might have been attenuated anyway by the knowledge of his mental illness and his previous good character. The disposal on this analysis would probably have been a hospital order rather than imprisonment. Although he could have received psychiatric treatment in prison, it is scarcely imaginable that he would not have been better placed in hospital. He would have received more intensive treatment for his illness and would probably have found more sympathy and understanding. In turn, this might have avoided his tragic death. The consequentialist position seems to be the more rational response to this scenario. In the present example, it would almost certainly have provided a more desirable outcome for all concerned: assailant, victim, and their families.
A counterargument is that it devalues the person in terms of his moral status. Instead of being treated as a moral agent, he is objectified and then hospitalized and treated against his wishes. However, there was clear evidence that he showed no tendency to criminal behavior before he became mentally ill. Treatment of his illness would have offered the chance of restoration of his premorbid self and a return to the moral community. It is surely better to try to restore something like normal (in terms of how he was before becoming ill) moral sensibility rather than leave him as someone who believes that it is appropriate to assault an innocent person for his own bizarre reasons. One can justify coercive treatment if it serves to restore moral autonomy.
Case C: Asperger Syndrome This patient had been under the care of psychiatric services since age eight. His principal diagnosis was Asperger syndrome. In childhood and adolescence, he had great difficulty in forming attachments to others. He would sometimes latch onto a member of his peer group and try to establish an intense and exclusive friendship. He became angry when these relationships broke down and this would lead sometimes to his hitting his friend. His parents thought that he never felt true emotions or felt things in the way that other people do. There were other isolated incidents of violence in the course of his teenage years but nothing after age . As he moved into adult life, his behavior showed a substantial and sustained improvement. Despite this, he was unable to gain employment or live independently. In his late s, he formed a relationship with a young woman. The relationship became very important to him. However, his partner eventually felt constrained by him and opted to end the relationship. He made threats to her to kill himself. He then developed homicidal thoughts in relation to her. He met her with the intention of having an amicable meeting and discussing how they could continue to have a friendship. In the event, an altercation ensued. This culminated in his stabbing her to death. In general terms the relationship between mental disorder and crime can be construed in four ways: . . . .
Mental disorder provides the motive for the crime. Mental disorder weakens or removes the normal restraints that prevent violent impulses being translated into action. Both of these apply. Mentally ill people commit crimes for the same reasons as those who are mentally well but these reasons are more likely to be present in the lives of the mentally ill.
Mental illness can provide a direct motive for violence for various reasons. A person suffering from psychosis may experience abnormalities of thinking or
Causality and Responsibility in Mentally Disordered Offenders
perception and these serve as provocation of a violent act. For example, people who have delusions of persecution may become violent in the mistaken belief that they are protecting themselves from the harmful intentions of other persons. Alternatively, people with illnesses such as schizophrenia may experience abnormal perceptions; e.g., a hallucinatory voice telling them to cause harm to other people. This seems not to have applied in this case. The situation in which mental illness acts as a necessary and sufficient cause of violence does occur and constitutes what is perhaps the standard lay perception of how mental illness and violence are linked. However, this may account for only a small part of the correlation between mental illness and violence (Peay ). Violent impulses and fantasies are common enough in the mentally well. Much of what we describe as entertainment exists to give vicarious expression to our aggressive impulses. We are nearly always prevented from committing violent acts by a range of inhibitions. These include empathy for the intended victim, concern about causing harm, fear of retaliation, fear of punishment, and respect for the moral and social order of which we are a part. It can be argued that the presence of an abnormal motivation for violence no more provides an explanation or excuse for violence than the presence of “normal” motivations. What is required in addition to motivation is loss of restraint. Loss of normal restraints is found in a range of psychiatric conditions, such as severe mental illnesses and organic brain disorders. The person with damage to some parts of the brain, especially the frontal lobes, may exhibit symptoms of emotional instability, impulsiveness, and inability to anticipate the outcomes of behavior. A different lack of constraint is found in persons with so-called psychopathic personality disorder. People with this condition may be at high risk of violent behavior. There is evidence that such persons do not generate the usual feelings of guilt and concern for victims that inhibit violence in most people (Blair et al. ). In this case, the impaired ability of C to empathize with his victim may have led to diminished inhibition about causing serious harm. Nevertheless, the fourth criterion is probably the most applicable here. The crimes of violence committed by the mentally ill are similar in many respects to those committed by the mentally well. Although mental illness may provide the necessary and sufficient cause or causes of crime, the relationship more often arises from the fact that mentally ill people are more likely to be subjected or susceptible to the same causal influences that lead to crime in the mentally well. A large proportion of serious violence and homicide occurs in the context of close relationships. In this respect, C was a typical perpetrator (i.e., a young male) and his ex-partner was a typical victim (i.e., an intimate partner who had rejected her assailant). The relationships of mentally disordered people tend to be less stable than those of people who are mentally well. As with many
Asperger patients, C may have found it difficult to tolerate change or a sense that he was not in control of his life. C was charged with murder but plead guilty to a reduced charge of culpable homicide. This verdict is one that can apply in Scots law in cases of homicide where the mens rea for murder is believed to have existed but where there are mitigating factors. In the light of psychiatric testimony, a compulsion order was imposed and he was committed to a high-security psychiatric hospital. This seems to be a fair and reasonable response. A person such as this with Asperger syndrome would find the prison environment very difficult to cope with. He would be at risk of victimization and exploitation by his fellow prisoners. It is unlikely that much would have been done to ameliorate his difficulties and prepare him for a future in the community.
. Discussion Hart opened his account of legal punishment with the statement that “. . . any morally tolerable account of this institution must exhibit it as a compromise between distinct and partly conflicting principles” (Hart : ). Is it possible that some of these aims cancel each other out and that in attempting to do several things at the same time we end up doing nothing well? The retributive impulse in all likelihood is one that has arisen in the course of our evolutionary development. In small-scale hunter-gatherer communities it probably served the purpose of regulating social behavior to an adequate degree. However, it is one of a range of instinctive impulses that has outlived its usefulness. (Another is the impulse to consume food whenever this is available to us). The libertarian belief that people can carry ultimate responsibility for their actions provides the theoretical and moral underpinning for retributive punishment. Most people have no personal experience of the criminal justice system and the degradation and inhumanity that characterize our prisons. When some people are given coercive control over others, there is always the risk of abuse of this power. We prefer to lock miscreants away and forget about them. A libertarian view allows us to turn a blind eye to the limited choices available to most offenders and to the grim realities of their lives. Despite thousands of years of retribution, we continue to have a seemingly intractable problem with crime and, in the United Kingdom, historically unprecedented levels of incarceration. To be the victim of a serious crime of violence is one of the worst things that can happen to a person. The psychological impact can be severe and enduring.
Causality and Responsibility in Mentally Disordered Offenders
The prescientific, retributive response to crime does not appear to have any way of moving forward. A scientific approach at least holds open the possibility of reducing the burden of misery caused by criminal behavior. To be able to make a difference, we have to be able to make more refined distinctions between different classes of wrongdoer and deal with them in ways that are appropriate to the wrongdoer and the crime (Greene and Cohen : ). This will involve some relinquishing of our reactive attitudes of anger, indignation, and the impulse for revenge (Strawson ). Those who deal with wrongdoers may have to overcome their innate responses in the interest of promoting the good of society. Just as surgeons have to overcome their revulsion at the sight of blood, pus, or malignant tumors if they are to help their patients, so we may have to “hold our noses” and get on with the job of dealing with wrongdoers in the most effective way. Our increased understanding of the sources of immoral behavior may be the very thing that helps us to do this. It is less easy to justify anger and revenge when we know that some people are laboring under severe disabilities in relation to their ability to do what is right. These are three very different cases. What general conclusions can be drawn from them with regard to how societies should respond to criminal behavior? The outcomes in the cases of A and B were unreservedly negative and tragic. The decisions that were made to inflict criminal punishment led to a final despair and death by suicide. The first case provides an illustration of how many offenders are themselves victims of traumatization. The question of whether the trauma victim makes a choice in resorting to criminality does not entirely go away. Many people who have been harmed by others do not deal with this by lashing out at new victims. There is probably no simple answer to why some people respond in ways that bring them into contact with the criminal justice system and others do not. Each person has a unique history and constitution that may act to mitigate or exacerbate the effects of trauma. Each trauma is different. The potential impacts are multiple and diverse. Therefore, attempts to attribute criminal responsibility can be facile and may rest on an inadequate appraisal of what a person has endured. At the very least, the criminal justice system should be something more than another twist in the cycle of violence and abuse. The tragic outcome in the second case arose from the fact that the concept of legal insanity is a construct that sometimes maps poorly onto
the reality of mental illness and the ways in which this can alter personality and behavior. One could argue at length about whether the posttraumatic symptoms of case A or the psychosis of case B provided significant mitigation or excuse in relation to criminal responsibility and liability to punishment. Such judgments are subjective and nuanced but ultimately have to come down on one side or the other, rather than finding a compromise. The adversarial nature of criminal court proceedings may not provide the best forum in which to reach the more desirable outcome. In both cases, one could say that mental disorder was a necessary causal factor, even if it was not a sufficient explanation, for what happened. If A had not been raped and traumatized and B had not developed a psychotic illness, their offences would not have occurred. In cases such as these, retributive punishment inflicts new harm on already damaged people and has no useful deterrent or other purpose. It should therefore be laid aside and replaced with a therapeutic response aimed at reduction of future harms to the offender and to other people. This is the approach that was adopted with case C and seems likely to produce the most humane and effective outcome. This is despite the fact that his case probably had more in common with crimes perpetrated by the non–mentally ill than was the case with the other two. Nevertheless, it is likely that his Asperger diagnosis played a significant and probably necessary causal role. Furthermore, it would have the effect of increasing the burden of criminal punishment This approach is not without its problems. The principal one is probably the need to balance the interests of the offender-patient against the need to protect the public from harm. Mentally troubled offenders are a highly stigmatized group whose interests may not weigh heavily when these are balanced against demands for public safety. Nevertheless, a focus on achieving the best outcomes for all concerned that is clear-eyed and undistorted by the retributive impulse is surely the best way forward for this group. Legal concepts and definitions of insanity should be dropped. Instead, we should adopt an approach that is therapeutic rather than punitive in all cases where mental disorder has been a necessary causal factor in the commission of the offence. R E F E R EN C E S Biddle, L., J. Donovan, A. Owen-Smith, et al. (). Factors influencing the decision to use hanging as a method of suicide: A qualitative study. British Journal of Psychiatry, (), –
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Blair, J., D. Mitchell, and K. Blair. (). The Psychopath. Malden, MA: Blackwell Publishing. Cauffman, E., S. S. Feldman, J. Waterman, and H. Steiner. (). Posttraumatic stress disorder among female juvenile offenders. Journal of the American Academy of Child and Adolescent Psychiatry, (), –. Clements, P. T., P. M. Speck, P. A. Crane, and M. J. Faulkner. (). Issues and dynamics of sexually assaulted adolescents and their families. International Journal of Mental Health Nursing, , –. Fischer J. M., and M. Ravizza. (). Responsibility and Control: A Theory of Moral Responsibility. Cambridge, UK: Cambridge University Press. Greene, J., and J. Cohen. (). For the law, neuroscience changes nothing and everything. In S. Zeki and O. Goodenough, eds., Law and the Brain. Oxford: Oxford University Press, pp. –. Hart H. L. A. (). Punishment and Responsibility: Essays in the Philosophy of Law. Oxford: Clarendon Press. National Institute of Justice. (). Extent, Nature and Consequences of Rape Victimization. Findings from the National Violence against Women Survey. Washington, DC: US Department of Justice, Office of Justice Programs. Peay, J. (). Mental Health and Crime. Oxford: Routledge. Sexual Violence Research Initiative. (). Rape: How Women, the Community and the Health Sector Respond. Geneva: World Health Organization. Strawson, P. F. (). Freedom and Resentment. In G. Watson, ed., Free Will, nd ed. Oxford: Oxford University Press, pp. –. van der Kolk, B. A, and A. C. McFarlane. (). The black hole of trauma. In B. S. A. van der Kolk, A. C. McFarlane, and L. Weisaeth, eds., Traumatic Stress: The Effects of Overwhelming Experience on Mind, Body and Society. New York: The Guilford Press, pp. –.
The Implications of Free Will Skepticism for Establishing Criminal Liability Elizabeth Shaw
. Introduction In recent years, a growing number of philosophers have argued that the traditional concepts of free will and moral responsibility should be rejected. If these concepts were abandoned, what would be the practical implications for the criminal justice system? In an influential article, Joshua Greene and Jonathan Cohen () have argued that we should take this question seriously, because they predict that new evidence from neuroscience will increasingly undermine our notions of free will and responsibility in a way that is more vivid and accessible than abstract philosophical theorizing. This evidence will cause ordinary people to question the presuppositions upon which our legal system is currently based. In particular, they will question the retributivist justification for punishment, which claims that punishment is a deserved response to free actions for which criminals are morally responsible. Greene and Cohen believe that, although retributivism is unsustainable in view of the arguments for free will skepticism, the practice of punishing criminals can still be justified on consequentialist grounds. In addition, they note very briefly that consequentialism can justify the retention of various criminal defenses. However, in common with most writers on this topic, they do not give detailed consideration to the process of establishing criminal liability in a trial, but instead focus on the general justification for punishment. This chapter discusses the implications of rejecting the notions of free will and retribution for the process of establishing criminal liability in a trial. Currently, it is a general principle of UK and American law that before a person can be convicted of a crime the prosecution must prove three things. Firstly, the accused must have performed the actus reus – the prohibited act. Secondly, (with the exception of strict liability offences) the prosecution must prove mens rea – a mental state such as intention or
Implications of Free Will Skepticism for Criminal Liability
recklessness. Thirdly, the accused must lack a valid defense, such as selfdefense. This chapter argues that these prerequisites for criminal liability should be retained. It offers a rationale for these prerequisites that appeals to considerations such as the value of liberty and moral communication, but that does not depend on the concepts of free will and retribution. This chapter then focuses specifically on the defenses of self-defense, provocation, and mental disorder.
. Key Terms Before presenting my main arguments, I will define some key terms. .. Retributivism This chapter will focus on an influential version of retributivism, which holds that punishing the guilty is intrinsically good. According to this version of retributivism, the state is not merely entitled to punish the guilty. Rather, the state has a moral duty to punish offenders, purely because they deserve to suffer, even if punishing them serves no further purpose. For the retributivist, the judgment that someone is morally responsible for committing a criminal offence means that their criminal actions belong to the offenders in such a way that they deserve to be punished for them, irrespective of the consequences of imposing punishment. (In this chapter, the term retributive responsibility will be used to refer to this kind of moral responsibility.) The principle that the guilty should receive the punishment that they deserve is known as positive retributivism, since it is meant to provide a
For a defense of this view see Moore (). For criticisms of other versions of retributivism, see Mackie (), Honderich (). Reform and deterrence are examples of purposes punishment might serve, and form no part of the retributive theory of justice. This definition of retributive responsibility is based on definitions given by Derk Pereboom (: –; : ). Richard Double uses the term retributive moral responsibility in Double (: ). The connection between retributivism and responsibility is also discussed by Ted Honderich. Honderich argues that retributive judgments depend on “holding people responsible in a certain way . . . a way that is inconsistent with determinism” (Honderich : –; ). See also H. L. A. Hart () and Galen Strawson (). Strawson asks “Are [people] ever responsible for the their actions in such a way that they are, without any sort of qualification, morally deserving of . . . punishment . . . for them?” (Strawson : ). Honderich argues for an alternative, nonretributive conception of responsibility in How Free Are You? (Honderich : ch. –). Pereboom also advocates a nonretributive conception of moral responsibility (Pereboom : –).
positive reason in favor of punishment. In contrast, the idea that those who are not guilty should be spared punishment (and that the guilty should receive no more punishment than they deserve) is known as negative retributivism. Those who endorse negative retributivism insist that this principle should constrain the state’s power to punish. Unless otherwise indicated, the term retributivism will refer to theories that include both the positive and the negative retributive principle. ..
Free Will
I will use the term free will to refer to the ability to control one’s actions in a way that could make one an appropriate candidate for judgments of retributive responsibility. ..
Free Will Skepticism
Free will skeptics believe that people lack free will and are not retributively responsible for their actions. They believe this either because they think determinism is true and that it is incompatible with free will and retributive responsibility, or because they think that free will and retributive responsibility are incompatible with both determinism and with indeterminism. ..
Determinism
Many free will skeptics argue that the truth of determinism would pose a serious challenge for free will and thus for retributive responsibility. Determinism, as it applies to human behavior, is the theory that the deliberations, choices, and conduct of every individual are causally necessitated by factors that are ultimately beyond the individual’s control. Determinism does not imply that our psychological states, such as our intentions, desires, and beliefs, make no difference to our actions. Rather, determinism implies that, if our actions are to be explained by reference to such psychological phenomena as mentioned earlier, then these phenomena were themselves produced by prior events that were causally sufficient for the occurrence of those psychological phenomena and that those prior events were themselves produced in the same manner by even earlier events etc. in an unbroken chain of cause and effect that can be traced back to before the person was even born. Nor does determinism imply that people will fail to modify their behavior in response to good reasons for
Implications of Free Will Skepticism for Criminal Liability
doing so. It merely implies that whether a person recognizes and responds to one particular reason for action rather than another at any given time is determined by prior events in the manner described earlier. This chapter examines the implications of the view that determinism (or indeterminism) is incompatible with retributive responsibility. However, this chapter assumes that determinism is compatible with rationality (see, e.g., Bradley ; Dennett : ). In this chapter, the term determinism will be used to mean the theory that human behavior is determined. The proposition that all events are caused has been contested by physicists. On one theory, indeterminism exists at the quantum level of subatomic phenomena. Some theorists have claimed that quantum physics may lend support to the idea that human actions are undetermined (e.g., Swinburne : –). However, free will skeptics have argued that, even if quantum events affect human behavior, it is unlikely that this could provide a satisfactory basis for retributive responsibility. In this chapter I will not discuss the arguments in favor of free will skepticism or the arguments against retributivism. Instead, I will focus on the practical implications of rejecting the traditional concepts of free will and retributive moral responsibility.
. The Actus Reus Requirement Currently, before a sentence can be imposed on an offender, it must be proved beyond reasonable doubt that the accused performed the actus reus of an offence. If we abandoned retributivism we would still be justified in detaining dangerous offenders in order to protect society. However, it might be questioned whether there would be any nonretributive reason for insisting that people should only be detained after it had been proved that they had already committed a crime. In this section, I will consider three nonretributive reasons for the actus reus requirement: the value of liberty, the idea that predictions of dangerousness that do not appeal to past offending are not sufficiently individualized, and the principle of fair warning. ..
Liberty
According to retributivists, only their theory can provide an adequate justification for having the actus reus requirement. This requirement follows from negative retributivism – the idea that we should not punish
the innocent. If we abandoned retributivism, it might be feared that the state could imprison people based on a mere suspicion that they might commit a crime in the future, even if the person had never actually broken the law. However, punishing someone on this basis would involve placing too much emphasis on security at the expense of liberty. The actus reus requirement can be defended on nonretributive grounds – it upholds the value of liberty by protecting the individual against the power of the state. In order to safeguard liberty, the state should be required to prove the individual’s dangerousness to a high standard. Past behavior is one of the best guides to future behavior (see Callender : ch.). It is therefore appropriate that proof that the individual has actually engaged in dangerous conduct should be a necessary condition for interfering with liberty. It might be objected that free will skeptics cannot rely on the value of liberty, because liberty is only valuable if individuals possess free will. However, free will skeptics have argued that the kind of liberty or “freedom” that is protected by human rights such as the right to “freedom of movement” is different from the sense of freedom that is at issue in the debate about free will and retribution. People can get satisfaction from acting in accordance with their preferences and can be frustrated if they are prevented from doing so. This can be true regardless of the origin of these preferences, i.e., regardless of whether these preferences are predetermined or due to chance. Free will skeptics can therefore still value liberty – in the sense of the freedom to act in accordance with one’s preferences. An example involving someone who is clearly not responsible in the retributive sense can support the claim that the freedom to act in accordance with one’s preferences is still valuable regardless of whether we have free will in the sense required by retributivism. People with severe learning disabilities might lack the free will necessary for retributive responsibility. However, such people might still be able to enjoy liberty in the sense of being able to act in accordance with their preferences and being free from coercion by others. If these people had never actually engaged in dangerous conduct, it would be objectionable to interfere with their liberty on the basis of a mere suspicion that they could pose a danger to others. The value of being able to act on one’s preferences without external coercion stems partly from the satisfaction that this produces. However, it is plausible that it is also intrinsically valuable. To support the claim that liberty could have this intrinsic value even if we lack free will in the retributive sense, let us return to the example of an individual who is not responsible in the retributive sense due to severe learning disabilities.
Implications of Free Will Skepticism for Criminal Liability
Such an individual may nevertheless be able to carry out some self-directed, independent activities – activities that involve exercising liberty. Even if the person would be equally content to lead a more passive life, dependent on others and governed by others’ decisions (and even if it were guaranteed that others’ support could be relied on) it seems plausible that it would be worthwhile for the individual to adopt the lifestyle that involves more liberty. ..
Evidence of Dangerousness Should Be Individualized
Another nonretributive reason in favor of the actus reus requirement is the idea that predictions of dangerousness that do not rely on past offending behavior are not sufficiently individualized. If these predictions do not rely on the particular individual’s own behavior, then they must rely more heavily on statistical generalizations. Locking people up on the basis of such generalizations seems intuitively objectionable. It might be objected that this intuition about the importance of individualized evidence really stems from negative retributivism – the idea that we must not punish those who are not morally blameworthy. However, in response, it should be noted that imposing negative consequences on someone based on statistical generalizations is typically regarded as unfair, even in contexts where retributive responsibility is not relevant. For example, imagine that there was evidence that, on average, women had significantly lower spatial abilities than men. Spatial abilities are important for certain professions, e.g., being a pilot. It would be unfair to apply a blanket rule that women could not be pilots or to automatically give preference to male candidates. This is because each individual should have the opportunity to prove through personal performance whether that individual has the ability to do the job. This principle of fairness does not stem from retributivism. Assuming that spatial abilities are determined by one’s genes and/or environment, people are not retributively praiseworthy or blameworthy for having or failing to have good spatial abilities. By analogy, therefore, it could be argued that fairness requires that individuals should be given the opportunity to prove through their own actions whether they are nondangerous, and this principle applies independently of retributivism.
The argument based on liberty should be read in conjunction with the arguments based on individualised evidence (..) and fair notice (..). These latter arguments help explain why it is particularly important to safeguard the liberty of those who have not committed the actus reus. The idea that past behavior is a good predictor of future behavior also relies partly on a statistical generalization, but it is more individualized than other methods of predicting dangerousness that do not appeal to the particular individual’s past behavior.
..
Fair Warning
A third nonretributive reason in favor of the actus reus requirement is that this requirement gives people advance notice of when they would be liable to interference by the criminal justice system. Individuals will know that they will be immune from such interference unless they perform certain prohibited actions. Giving people fair warning will reduce people’s fear of the state and will increase people’s ability to plan their lives. It will thus help to promote the general welfare.
. The Mens Rea Requirement Currently, the prosecution must prove mens rea – a mental state such as intention or recklessness (unless the crime is one of strict liability). According to negative retributivism, the mens rea requirement is based on the principle that people should only be punished if they were morally blameworthy for committing a crime. If retributivism were abandoned, what reason would there be against simply detaining anyone who performs a prohibited act, regardless of the person’s mental state? In this section, I will consider three nonretributive reasons for the mens rea requirement. Two of these reasons, liberty and fair warning, were also advanced in support of the actus reus requirement (discussed earlier). The third reason is the value of moral education. .. Liberty H. L. A. Hart argued that the mens rea requirement should be preserved in order to safeguard individuals’ liberty. More people would actually be detained if the mens rea requirement were abandoned. Hart writes: “if we are . . . to be liable if we [perform a prohibited act] by accident, by mistake . . . etc., the chances that we shall incur the sanctions are immeasurably increased.” In order to avoid being subjected to sanctions, people might also refrain from engaging in various legitimate, valuable activities, if they believed there was a risk that they might accidentally breach a prohibition while engaging in these activities. Deterring people from engaging in these activities in the first place would also constitute an interference with liberty. ..
Fair Warning
Hart also argued that the mens rea requirement should be preserved because individuals will be better able to predict when they will be
Implications of Free Will Skepticism for Criminal Liability
subject to legal sanctions than they would be if they could be detained simply because they had performed a prohibited action. If individuals cannot predict when they will be subjected to state sanctions, they will live in a permanent state of fear and it will be difficult for them to plan their activities. ..
Moral Communication
Convicting someone can be an important act of moral communication, even if the message being communicated is not a retributive one. It is a public declaration that the offender has committed a criminal offence. This also typically involves declaring that the offender committed a serious moral wrong, since the offence’s definition typically specifies a serious moral wrong. Free will skeptics have argued at length that actions can be morally right or wrong, even if we are not morally responsible in the retributive sense. Declaring that the offender committed a serious moral wrong can serve forward-looking purposes. It allows society to express and reinforce their commitment to the values that have been breached, it helps the community to develop its understanding of those values, and it can help criminals to reform, by bringing them to recognize the wrong that they have done. This third function of moral communication could only be fulfilled if the accused had mens rea at the time of the crime. If the actus reus were performed by accident, then attempts to reform the offender would be unnecessary. There is very widespread agreement about the appropriateness of morally appraising the conduct of offenders, even among those who argue that offenders are not morally responsible in the retributive sense. Pereboom, who is at the most skeptical extreme of the spectrum of views on free will, claims that the arguments against free will (while undermining retributivism) give us no reason to doubt our right to morally criticize wrongdoers’ conduct. Free will skeptics accept the legitimacy of engaging wrongdoers in dialogue about the moral quality of their actions and about their reasons for performing them; evaluating what these actions reveal about their attitudes or character traits; and demanding that they engage in self-reflection and apologize for their behavior. Pereboom writes:
This chapter will assume that they are correct, but there is not scope within this chapter to defend this claim.
The moral responsibility invoked here has been called the moral answerability or the fittingness of providing a moral explanation sense, and it is the variety of moral responsibility that is most thoroughly ingrained in our practice and least controversial . . . It may well characterize human interactions across cultures . . . The main thread of the historical free will debate does not pose determinism as a challenge to moral responsibility as answerability, and free will skeptics accept that we are morally responsible in this sense. (Pereboom : )
Free will skeptics would object to the practice of condemning or punishing offenders purely in order to make them experience psychological suffering. However, moral appraisability serves forward-looking goals (such as helping the offender to develop more morally desirable character traits) that could be endorsed by free will skeptics. Some free will skeptics have doubted whether these goals are weighty enough to justify state coercion, on their own (Tadros ). Free will skeptics tend to justify the state coercion of offenders by referring to the need to protect society from dangerous individuals. Nevertheless, even if the reason why offenders should be subject to coercion is based on the need to protect society from dangerous offenders, free will skeptics can still consistently maintain that the way in which offenders are subject to state coercion should communicate a message about the offender’s moral answerability. The mens rea requirement is necessary in order to ensure that this message is communicated accurately.
. Defenses The next part of this chapter focuses specifically on the defenses of selfdefense, provocation, and mental disorder. It argues that these defenses could be retained even if we abandoned the traditional notions of free will and retribution. It also considers whether these defenses, or their underlying rationale, would need to be revised. This chapter focuses on the
Pereboom recognizes that his conception of moral answerability cannot justify the “hard treatment” aspect of punishment, without relying on retributive ideas that he rejects. In line with his incapacitation theory, Pereboom proposes that nondangerous criminals should be allowed to go free, but he does not say whether, in his view, they should be acquitted. Indeed, he does not mention how we are to determine whether an individual is a “criminal” – through a trial or through some other procedure. It is submitted that in most cases the forward-looking benefits that can flow from morally appraising offenders at the conviction stage justify convicting offenders who have committed serious moral wrongs, even if they are not dangerous. This conclusion seems to be consistent with Pereboom’s overall position.
Implications of Free Will Skepticism for Criminal Liability
defenses of provocation, self-defense, and mental disorder as they are defined in Scotland and England. ..
Provocation
Provocation is a partial defense to murder. In Scotland, the defense of provocation has the following requirements. Firstly, there must be a recognized form of provocation – either provocation by assault or provocation by infidelity. Secondly, the accused must have a loss of self-control. Thirdly, for provocation by assault, the violence used by the accused must not have been grossly disproportionate to the provocation. For provocation by infidelity, an ordinary person must have been liable to react in the same way. In England, the defense of “loss of control” is roughly equivalent to the provocation defense in Scotland. It has the following requirements. Firstly, there must have been a loss of self-control. Secondly, that loss of self-control must have had a qualifying trigger, which includes either () circumstances of an extremely grave character, which caused the defendant to have a justifiable sense of being seriously wronged, or () fear of serious violence from the victim. Thirdly, the accused must have satisfied the ordinary person test – a person of the same age and sex with normal selfrestraint and tolerance might have reacted that way in those circumstances. According to the currently accepted rationale for the provocation defense, the person who kills in response to provocation is partially excused, but in order for the defense to succeed, the anger that motivated the killing must have been justified. If free will skepticism is correct, then is anger in response to someone’s provocative behavior ever truly justified? Anger in the sense of “retributive outrage” could not be justified. However, other similar emotional states could be. If, for instance, a person is physically attacked, it is appropriate for the person to feel very upset (and to experience a different kind of negative emotion than the person might feel after being hurt by a nonmoral being; e.g., an animal). In addition, it would be appropriate to feel a sense of repulsion at the moral “defect” that led to the attacker’s action, even if that defect was not something for which the attacker was retributively responsible. It is also appropriate to feel a strong sense of disapproval that a moral wrong has been committed. (I have assumed that the concepts of moral right and wrong are compatible with determinism, even though the concept of moral responsibility construed in the retributive sense is not.)
Drury v. HMA S.L.T.
Coroners and Justice Act , s
The provocation defense should require that the types of emotion discussed earlier are justified, but not that retributive anger is justified. This approach might have the additional advantage of reducing the risk that the provocation defense is seen as blaming the victim. Retributive anger is only appropriate if the victim is blameworthy. So saying that the provoked person’s anger is justified implies that the victim deserved blame. However, the negative emotions that are justifiable on the free will skeptic’s view do not imply that the victim was retributively blameworthy. A nonretributive provocation defense would not entail that offenders should be excused merely because their offences were due to the effect of intense emotions, because it would still be necessary that the circumstances warranted a strong emotional reaction of the kind described earlier. .. Self-Defense Self-defense is a complete defense. It has three requirements in Scotland. There must have been an imminent danger to life or limb, no reasonable opportunity to retreat, and the accused’s reaction must be proportionate. In England, self-defense has the following requirements. The defendant must have believed the victim posed an unjustified threat to the defendant personally or another or property. The use of force must be necessary. The degree of force must be reasonable (proportionality). The defendant must have acted in order to prevent the victim’s attack. Self-defense theorists are divided over whether it is ever permissible for an attacked person to harm/kill an “innocent aggressor.” Aggressors may be considered innocent if, for instance, they were psychotic, and therefore not morally responsible at the time of the attack. Many theorists maintain that the self-defense justification should cover both innocent and responsible offenders alike. However, a few argue that harming/killing an innocent aggressor is never justified, although it may sometimes be excusable. A third, “compromise” view holds that harming/killing an innocent aggressor is only justified under much more restrictive circumstances than when the aggressor is morally responsible. Self-defense theorists who consider the innocence or culpability of the aggressor to be morally relevant often appeal to the following considerations. They may argue that innocent aggressors had the bad luck to be
Justified reactions, other than anger, such as emotional upset might not cause the defendant’s violent reaction to provocation. However, justified emotional upset might provide the basis for a defence, because it could cloud the offender’s judgement, making it harder to resist violent impulses caused by emotions whose moral status is more doubtful, e.g. retributive anger. HMA v. Doherty J.C. Northern Ireland’s Reference (No. of )
Implications of Free Will Skepticism for Criminal Liability
subject to circumstances outwith their control which caused them to attack. They may argue that we should therefore have particular compassion for innocent aggressors, which should be reflected in the legal definition of self-defense. In contrast, the culpable aggressor chose to initiate the attack. It may be argued that it is therefore justifiable to use harmful or lethal force against culpable aggressors, because their moral guilt entails that their interests are now less valuable than the interests of the attacked person, or because the culpable aggressors “forfeited” their right to life/bodily integrity as a result of their immoral actions. This type of account has a distinctively retributive flavor. Its judgment about the culpable aggressor is strongly reminiscent of P. F. Strawson’s description of the attitude of retributive indignation – an attitude that entails a “partial withdrawal of goodwill” towards the wrongdoer and that entails a “modification . . . of the general demand that another should, if possible, be spared suffering” (Strawson : ). The free will skeptic could not endorse this type of reasoning, but would insist that all aggressors are ultimately victims of bad luck, even if the aggressor’s behavior flowed from a “choice” to do wrong. For that choice was either completely determined by factors wholly outwith the aggressor’s control, or else it was due to a random occurrence for which the aggressor was not responsible. Would a free will skeptic’s theory of self-defense treat all aggressors equally, regardless of whether their attack was the product of psychosis or a rational choice? Not necessarily. A free will skeptic might distinguish between these different types of aggressor if there were nonretributive (e.g., consequentialist) reasons for doing so. However, this distinction must not be based on the idea that one type of aggressor is merely unlucky and so worthy of special legal protection, whereas another type is undeserving of compassion and legal protection, purely because of the nature of the act of aggression. If all aggressors are unlucky, does this mean that killing/harming an aggressor in self-defense is only ever excusable and never justified? Free will skepticism does not necessarily entail this conclusion either. Many selfdefense theorists argue that self-defense can be a justification regardless of whether the aggressors’ behavior was the result of circumstances outwith their control. This position accords with widespread intuitions. “Common
It is, however, not exactly the same as the retributive justification for punishment. Even theorists who place a lot of weight on the aggressor’s “guilt” still accept that the use of self-defensive force against an aggressor is justified in order to prevent harm to the attacked person, not in order to punish the aggressor for his attack.
sense” seems to tell us that (all other things being equal) people are entitled to defend themselves against an attack that poses an immediate threat of significant physical harm or death, regardless of whether the attacker deliberately became the kind of person who would attack people, or was just unlucky to have turned out that way. It seems absurd to suggest that, when faced with an aggressor who is in some sense innocent, attacked people have a “duty of martyrdom” and should meekly submit to the attack, rather than harm the aggressor (Kaufman ). However, the free will skeptic’s arguments should make us reconsider what precisely is meant by saying that self-defense is a justification of defense. On a “modest” interpretation, saying that it is justified to use force to defend oneself means that it is morally and legally permissible to use force; that, all things considered, the use of force is acceptable. Theorists who adopt this interpretation often emphasize that harming/ killing someone is always regrettable, but that in extreme circumstances it can be the least bad option. In contrast, Boaz Sangero argues that selfdefense should be portrayed as a “real and strong” justification. He writes that “. . .private defense should not be viewed as evil, and not even as the lesser evil, but as the ‘best possible good.’ It concerns a desirable action . . .” (Sangero : ). Having characterized self-defense in this way, Sangero then argues that it should be reserved for the killing/ harming of “guilty” aggressors, and that it shows a “lack of compassion” to allow self-defense to cover the killing/harming of “innocent” aggressors, such as children, or psychotic individuals. Now, it does indeed seem somewhat heartless to characterize harming/killing child-aggressors or psychotic aggressors as positively “desirable,” or to appear to welcome their injury/death by calling it the “best possible good.” Nevertheless, it can still be appropriate to say that harming/killing such aggressors is justified in the more modest sense described earlier. The modest account of justification in terms of an all-things-considered judgment of permissibility better captures the moral complexity of this kind of situation than Sangero’s description of a justified action as something that is unequivocally desirable. Given the considerations advanced by the free will skeptic, it seems inappropriate to label the killing/injury of any aggressor as justified in Sangero’s sense of the word. All aggressors are victims of bad luck and are entitled to compassion. Maintaining that harming/killing another in self-defense is only justified as “the lesser of two evils”
Because, e.g., the aggressor lacked either libertarian or compatibilist free will.
Implications of Free Will Skepticism for Criminal Liability
acknowledges that every life is valuable and that causing death or injury is always a terrible thing (even when justified). ..
Mental Disorder
The forward-looking approach to dealing with criminal behavior that is outlined in this chapter provides a method for determining the scope of mental disorder defenses. The state should aim (among other things) to communicate to offenders that that they have committed a serious wrong, to make clear the reasons why the behavior was wrong, and to enter into dialogue with the offenders with the aim of reforming them. This suggests that offenders who are incapable of engaging in genuine dialogue or undergoing reform should not be held responsible. Other theories of punishment often leave the question of the scope of mental disorder defenses largely down to intuition. For example, some people have the intuition that offenders deserve punishment just as long as they knew that their behavior was wrong in the sense of being aware what the legal or moral rules are, without any depth of understanding. Others have the intuition that people are only retributively blameworthy if they knew the difference between right and wrong in a deeper sense. A forward-looking communication theory can help to settle this dispute by interpreting “knowledge” in terms of the ability to undergo moral dialogue. This is not an advantage that is unique to a hard-incompatibilist communication theory. Duff’s retributive communication theory, for instance, also has this advantage (Duff ). Nevertheless, it is still a merit of the approach advanced in this chapter.
. Conclusion Even if the notions of free will and retributive responsibility were abandoned, then the mens rea and actus reus requirements and various defenses could be still be retained. However, some of these legal rules, as well as the rationales behind them, would need to be revised. REF ERE NCE S Bradley, M. C. (). A note on Mr. MacIntyre’s Determinism. Mind, , –. Callender, J. (). Free Will and Responsibility: A Guide for Practitioners. New York: Oxford University Press.
Dennett, D. (). Mechanism and responsibility. In G. Watson, ed., Free Will: Oxford Readings in Philosophy. New York: Oxford University Press, pp. –. Double, R. (). Metaethics, metaphilosophy and free will subjectivism. In R. Kane, ed., The Oxford Handbook of Free Will. New York: Oxford University Press, pp. –. Duff, R. A. (). Punishment, Communication and Community. New York: Oxford University Press. Greene, J., and J. Cohen. (). For the law, neuroscience changes nothing and everything. Philosophical Transactions of the Royal Society, , –. Hart, H. L. A. (). Punishment and Responsibility. Oxford: Clarendon Press. Honderich, T. (). Punishment: The Supposed Justifications. London: Pluto Press. (). How Free Are You? The Determinism Problem, nd ed. Oxford: Oxford University Press. Kaufman, W. (). Self-defense, innocent aggressors and the duty of martyrdom. Pacific Philosophical Quarterly, (), –. Mackie, J. L. (). Morality and the retributive emotions. Criminal Justice Ethics, (), –. Moore, M. (). Placing Blame: A Theory of Criminal Law. New York: Oxford University Press. Pereboom, D. (). Living without free will: The case for hard incompatibilism. In R. Kane, ed., The Oxford Handbook of Free Will. New York: Oxford University Press, pp. –. (). Reasons-responsiveness, alternative possibilities, and manipulation arguments against compatibilism: Reflections on John Martin Fischer’s My Way. Philosophical Books, (), –. (). Free will skepticism and criminal punishment. In T. Nadelhoffer, ed., The Future of Punishment. New York: Oxford University Press, pp. –. Sangero, B. (). In defense of Self-Defence in Criminal Law; and on Killing in Self-Defence – A reply to Fiona Leverick. Criminal Law Bulletin, (), –. Strawson, G. (). The bounds of freedom. In R. Kane, ed., The Oxford Handbook of Free Will. New York: Oxford University Press, pp. –. Strawson, P. F. (). Freedom and resentment. Proceedings of the British Academy, , –. Swinburne, R. (). The Existence of God, nd ed. Oxford: Clarendon Press. Tadros, V. (). The Ends of Harm: The Moral Foundations of the Criminal Law. New York: Oxford University Press.
Free Will Skepticism and Criminal Punishment: A Preliminary Ethical Analysis Farah Focquaert
From the fact that we cannot totally eliminate punishment, it does not follow that punishment is just, that those whom we must punish justly deserve punishment, that those who must be punished are also morally responsible.
Waller (: )
.
Introduction
The legitimation of moral responsibility and the conviction that we need a concept of “voluntary control” (i.e., free will) in order to justify its use lies at the heart of the free will debate (Fischer and Ravizza ; Waller ). Moral responsibility and free will have been defined in a variety of ways and various forms of voluntary control have been proposed. Crucial questions remain heavily debated and consensus is unlikely to be reached any time soon. Do we need to be able to successfully exercise our capacity for voluntary control at the relevant time or does having the requisite capacity and being able to exercise it at various occasions suffice? If we are reason-responsive and our behavior is sometimes guided by reasons, does this legitimately entail that we are morally responsible at all times? According to McKenna: “[W]hat most everyone is hunting for, both in Four Views [including Kane, Pereboom, Fischer, and Vargas], and in the wider philosophical arena, is the sort of moral responsibility that is desert entailing, the kind that makes blaming and punishing as well as praising and rewarding justified” (McKenna : ). Caruso argues that the sort of free will that is at stake “refers to the control in action required for a core sense of moral responsibility” (Caruso : ). According to Caruso and many others, this core sense of moral responsibility incorporates a notion of basic desert (see Feinberg ; Strawson ; Clarke ; Fischer et al. ; Pereboom ; Waller ). According to free will skeptics, if causal determinism is true then we do not have the sort of free will that would justify desert-based moral
responsibility (Caruso ). If our actions are causally determined by factors beyond our control, we cannot be held morally responsible in this sense. We cannot legitimate desert-based moral responsibility because causal determinism either precludes the ability to do otherwise or because it is inconsistent with being the source of our actions in the requisite way. We need to be the source of our actions in a true or ultimate way in order for desert-based punishment to be just. Having a general capacity to refrain from committing immoral acts is not sufficient. We have to be able to successfully exercise that capacity at the relevant time. As Waller explains, it implies being able to do or act differently without ifs, ands, or buts about it. For example, without having a different history, having different values, thinking differently, desiring differently, or finding yourself in different circumstances. It implies that: Being exactly who you are, in precisely the same circumstances, with exactly the same condition and genetic history, with the same thoughts and interests and desires and fortitude, you could have chosen differently; and there is no explanation for your choice other than you made it. (Waller : )
Moreover, if the causal history of our actions is indeterministic and the causes of our actions are exclusively states or events, this, also, would not legitimate desert-based moral responsibility. The control in action that we need for it to uphold cannot be provided by that type of indeterministic causal history because whether we refrain from doing an immoral act or not, would not be “up to us” (i.e., the disappearing agent objection). We would not be the source of our actions in the relevant way required for desert-based moral responsibility. The only type of indeterminism that would give us the requisite free will relies on undetermined agent causes (i.e., if we have contracausal capacities and are able to cause actions without being determined to cause them). However, agent causation is not credible given our best scientific theories (Caruso , ). As Pereboom () argues, it is extremely unlikely that we have the kind of free will that is necessary for desert-based moral responsibility. Basic desert implies liability to retributive punishment and we do not have a sound justification for either basic desert or retributive punishment. Compatibilism preserves basic desert and easily lends itself to retributivism. However, absent sound responses to the objections that compatibilist approaches face (e.g., manipulation thought experiments, the pervasiveness of luck argument), it is ethically questionable to base one’s theory of punishment on such shaky grounds (Levy ; Pereboom ).
Skepticism and Punishment: A Preliminary Ethical Analysis
If it is significantly probable that one’s justification for the harming is unsound, then, prima facie that behavior is seriously wrong and one must refrain from engaging in it. A strong and credible response to the objections to compatibilism is required to meet this standard. (Pereboom : )
Punishment or sanctions will inevitably cause harm even if the harm is not intended as such. If we wish to punish or sanction offenders by purposely inflicting harm, we need to justify such harm. All harm requires a normative justification. Purposely inflicting harm on other individuals, including offenders, needs to meet a high moral standard. This means that our justification of the harm that is imposed needs to be consistent with our best scientific and philosophical theories (Pereboom ; Double ; Vilhauer ; Levy ). Morally condemning or morally praising an individual for a decision or action requires that it follows from the person in the requisite way (Smilansky ). To count morally, such persons need to have the relevant control over their decisions and actions. Random occurrence does not suffice for a decision or behavior to count morally. Determined occurrence deriving from causal factors beyond the person’s control does not count either. The mere possibility of having free will (i.e., the requisite kind of control) is not sufficient to legitimately inflict harm on others. Moreover, merely stating the “attractiveness” of a philosophical theory such as compatibilism or expressing fears vis-à-vis hard incompatibilist approaches is insufficient. If it is extremely unlikely, both theoretically and scientifically, that we possess the kind of free will that legitimates desert-based punishment, then the rationally defensible route is to adopt a cautionary perspective that draws on non-desert-based criminal justice procedures that are fair and just to all parties involved. A cautionary approach reflects a hard or demanding condition if one wishes to attribute moral responsibility (true or ultimate control), whereas a soft approach reflects less stringent demands (voluntary control as a capacity rather than an ability). Before examining some of the options we have left if we adopt a cautionary approach, it is important to note that criminal punishment may never be legitimate and may always involve a moral wrong. If we accept this position, then we must acknowledge that although there is a need to punish individuals if we wish to adequately protect society, it nevertheless remains unjust to do so (Waller ). If so, punishment is understood as a necessary harm in order to achieve an important moral good that we could otherwise not obtain. What does free will skepticism – primarily understood as being cautionary concerning moral responsibility attributions – imply for the criminal
justice system? Which options do we have left and do these amount to ethically justified theories of punishment? At the criminal justice level we are faced with the following options: () we can acknowledge that we do not have a justification for desert-based moral responsibility but choose to disregard this knowledge at both the trial (determining guilt versus nonguilt) and sentencing (punishment) phase, () we can acknowledge this and disregard it at the trial but not the sentencing phase, () we can acknowledge this and take it into account during both the trial and sentencing phases. Taking these options into account, we can then propose a number of models to effectively address criminal behavior. In this chapter, I present a nonexhaustive list of potential models and critically assess the most striking difficulties each of these models face.
. Overview of Free Will Skeptic Approaches to Criminal Justice (A)
(B)
An illusionary model in which the conventional (often retributive) criminal justice system is held in place for pragmatic reasons, consequentialist reasons, and/or reasons involving human flourishing and well-being. Proponents accept that we have no justification for desert-based moral responsibility, but argue that change is implausible and practically unobtainable, and/or that the benefits of believing in free will and (desert-based) moral responsibility outweigh the costs, and/or that not believing in free will undermines our sense of achievement, self-worth, and self-respect. Defenders of the first view might argue that it will be impossible to achieve societal approval for guiltless criminal justice. Defenders of the last two views might argue that illusory beliefs in free will play a largely positive role in human life and/or prevent a worsening of individual and societal well-being. The following general implications are in place: offenders are held morally responsible in the desert-based sense. A sentence may include fines, incarceration, probation, suspended sentences, restitution, community services, and rehabilitation programs. Backward-looking moral responsibility, involving moral guilt and blame, functions as an illusion during the trial and the sentencing phases. A nonretributive moral responsibility model in which punishment is solely motivated by nonretributive aims (e.g., deterrence,
Skepticism and Punishment: A Preliminary Ethical Analysis
rehabilitation, restorative justice, etc.). Proponents accept that we have no justification for desert-based moral responsibility, but continue to uphold non-desert-based moral responsibility, and eliminate retributive elements from the criminal justice system. Punishment is replaced by a science-based forensic rehabilitation, treatment, and safety model that focuses on “what works,” and incorporates a public health ethics approach to criminal justice that defends Mill’s harm principle while maximally respecting autonomy. The following general implications are in place: at the trial phase, moral guilt and blame are identified. At the sentencing phase, the focus is on forward-looking moral responsibility rather than backward-looking moral responsibility. (C) A symbolic responsibility model that denounces retributivism and demands a hard approach to moral responsibility in which guilt and blame cannot be legitimately assigned to offenders if we lack actual free will. This model takes a human rights–based approach to criminal justice that maximally respects the rights of both victims and offenders. In order to address the needs of (some) victims and the wider society, (moral) guilt is assigned for strictly symbolic, restorative reasons. This model can incorporate forward-looking approaches to responsibility during the sentencing phase, but not backward-looking approaches. The following general implications are in place: guilt is symbolically assigned during the trial phase, but completely eliminated from the sentencing phase. Forward-looking responsibility is part of the sentencing phase and is incorporated in restoration and rehabilitation. (D) A guiltless criminal justice model in which all offenders are held causally responsible, but not morally responsible. The acceptability of punishment and/or sanctions as a necessary moral harm is defended based on either a consequentialist, deontologist, or virtue ethicist framework, or a combination. This model reflects hard approaches to moral responsibility in which moral responsibility can only be upheld if actual free will exists. This model can incorporate forward-looking approaches to responsibility during the sentencing/sanctioning phase, but not backward-looking approaches. The following general implications are in place: complete absence of guilt or moral responsibility attributions during both the trial and the sentencing phases. Causal responsibility is identified and forward-looking responsibility can be incorporated.
. Discussion of Revised or Innovative Criminal Justice Models Free will skeptics cannot resort to retributive punishment to deal with criminal behavior. However, there are other ways in which we can legitimately place demands on prisoners, ways that do not rest on the existence of free will. In this section, I discuss which of the earlier mentioned revised or innovative approaches to punishment are (the most) ethically defensible, and which are (the most) ethically desirable: (A) an illusionary model that accepts that there is no justification for desert-based moral responsibility, but proceeds as if we are morally blameworthy for our actions (“you did it,” hence you are morally blameworthy); (B) a nonretributive moral responsibility model that accepts that there is no justification for desertbased moral responsibility and proceeds to focus on forward-looking notions of moral responsibility during the sentencing phase (“you did it,” hence you are morally responsible but strictly in a forward-looking sense; hence retributive punishment is lost); (C) a symbolic responsibility model that accepts that there is no justification for desert-based moral responsibility, identifies causal responsibility and assigns guilt solely for symbolic reasons, and proceeds with a forward-looking notion of responsibility during the sentencing phase (“you did it,” hence you are treated as if you are blameworthy during the trial because of your causal responsibility, but not treated as such during the sentencing phase); and (D) a guiltless criminal justice model that identifies causal responsibility, but eliminates all notions of guilt and moral responsibility (“you did it,” hence you are held causally responsible but not morally responsible). ..
Model A: The Illusionary Model
Would a guiltless criminal justice system be devastating for human life? It seems that this is likely according to several thinkers (e.g., Dennett ; Smilanksy ; Gazzaniga ). Do we have strong reasons to hold on to the illusion of free will and moral responsibility within the criminal justice system? Model (A) requires us to treat individuals as blameworthy and morally responsible even if they don’t deserve it (because the required free will does not exist), which can be viewed as prima facie morally wrong. Treating individuals as if they are morally responsible for their immoral behavior, when they could not have done differently at the relevant time, is inherently unfair and unjust (Tadros ; Caruso ; Pereboom ). It results in the “ultimate-level” victimization of others (Smilansky
Skepticism and Punishment: A Preliminary Ethical Analysis
). Such ultimate-level victimization is a harm, above and beyond the necessary harm of punishment or sanctions in order to protect society, that needs to be justified if such a model can be deemed ethically acceptable. Can we somehow counter the inherent unfairness of an illusion model when addressing criminal behavior? One clear benefit an illusion model holds is the fact it affirms the personhood of both offenders and victims by embracing their position as moral agents. It shows respect for the dignity of offenders by including them within the realm of rational moral agents, and respect for the dignity of victims by acknowledging that their rights should have been respected and by demanding reparation for the violation of these rights. However, respecting the dignity of victims need not involve retributivism or appeals to the intrinsic value of deserved punishment. The intrinsic value of victim restitution and restoration equally allows for the reparation of the wrong that has been done. Potentially, innovative criminal justice mechanisms such as nonretributive restorative justice could be better equipped to adequately address the needs and interests of victims compared to conventional retributive mechanisms (Morris ). Restorative justice acknowledges the (moral) agency of offenders by seeking their active involvement in repairing the harms that occurred. Although there can be intrinsic value in acknowledging the wrong you have done and taking responsibility for it, it is much harder to defend that desert-based punishment (i.e., intentionally inflicting suffering) reflects an intrinsic good. The view that it is intrinsically good to inflict suffering has, rightfully, been described as barbaric (Tadros ). It entails moral complicity in human rights violations. In fact, incarceration in our current prison systems is conducive to violations of physical integrity and human dignity even if retributivism prohibits the infliction of disproportional punishment (Walen ). ... Becoming less prosocial versus undermining effective treatment? A few empirical studies seem to suggest that people may become less prosocial and more antisocial when the existence of free will is questioned in an experimental setup (e.g., Vohs and Schooler ; Baumeister et al. ; Stillman et al. ). In one of these studies, exposure to a deterministic worldview supposedly increases cheating behavior when participants are subsequently asked to solve a computer task (Vohs and Schooler ). In reality, the participants in that study were exposed to a fatalistic worldview that promotes a deep sense of helplessness, rather than being exposed to mere determinism. Although the results of these experiments may appear troublesome at first, we need to remind ourselves that
these studies measure short-term reactions within a controlled experimental setting, which may not translate to or substantially affect real-world settings. These studies tell us very little about what would happen in the real world over longer periods of time when free will skepticism would indeed prevail. Moreover, the methodology of several of these studies has been questioned and some of the results have failed to replicate (see Caruso, Ch. [this volume]). Interestingly, recent survey studies indicate that a belief in free will is correlated with questionable ideologies such as just world beliefs and right wing authoritarianism. Scores on right wing authoritarianism are reliably correlated with racial prejudice, homophobia, victim blaming, and conservative attitudes in general (Nadelhoffer and Tocchetto ). We do not know if we would have a better overall world if we chose illusion over free will skepticism or vice versa. However, it would not be surprising if beliefs in libertarian free will are more hazardous to society compared to hard incompatibilist thoughts. At the very least, they are potentially more hazardous and more corrosive of one’s selfrespect compared to free will skeptic beliefs. Smilanksy () argues that the illusory beliefs in free will are already in place and play a largely positive role in society. In fact, he argues that not believing in free will endangers our self-respect and respect for others because it promotes the internalization of the belief that all our actions and achievements are ultimately based on luck and hence not attributable to us in any truly meaningful sense. Not believing in free will is understood as corrosive of effort, of the encouragement of success, of true appreciation, and of our self-respect. It undermines our adequate functioning as moral agents and the very meaning we can find in our lives. According to Smilansky, the danger of worthlessness looms large. It is argued that genuine feelings of responsibility are crucial for being responsible selves. Although I agree that disbelief in free will may indeed have repercussions in terms of the normal development of moral decision making and moral behavior (discussed later), there are strong reasons to question the use of guilt within the criminal justice system and with respect to vulnerable individuals in general. While disbelief in free will could to a lesser or greater extent threaten our self-respect and moral agency (Smilanksy ), belief in moral guilt is known to cause the internalization of self-blame and shame, and may lead to low self-worth and in some cases the total destruction of one’s self-esteem when individuals are confronted with stigmatization, hatred, and revenge (e.g., individuals facing prejudices and discrimination, such as patients with communicable diseases and psychiatric disorders, refugees, rape victims, individuals with physical and mental disabilities,
Skepticism and Punishment: A Preliminary Ethical Analysis
unemployed individuals) (Bayer ; Pickard and Pearce ; Pickard , ). In the context of forensic rehabilitation, belief in libertarian free will and related concepts such as desert, moral guilt, and blame is regarded as counterproductive by experts (Pickard ). In fact, forward-looking approaches to responsibility and agency, but not backward-looking approaches involving blame, appear to be crucial for effective treatment. While acknowledging the wrong that you caused and taking responsibility for your future actions is essential, being blamed (e.g., “It is your fault that this happened,” expressing resentment and anger toward the person for what they have done, identifying others as individuals with bad characters) for your past actions is considered highly detrimental (Pickard ). Personality disorders are heavily stigmatized within our society and even within psychiatry itself. Having a personality disorder is associated with unemployment, homelessness, and crime and the same holds for addictions, psychoses, depression, and anxiety. Individuals with a personality disorder often place a practical and emotional burden on family members, friends, and loved ones as well as on the therapeutic care team that treats them. As patients, they are frequently labeled as manipulative, demanding, attention seeking, and violent. However, blaming these individuals for the harm they cause has an adverse effect on care and prevents effective treatment. Blame is not conducive to offering care, help, and a safe and trusting environment. It undermines therapeutic bonds and may lead to disengagement. More seriously, however, clinical blame may trigger and exacerbate low self-esteem, self-hatred, and self-blame in patients who are already prone to having such feelings, thereby increasing the risk of selfharm and suicide (Pickard ). In order to change one’s future behavior and to refrain from wrongful behavior, individuals need to be convinced that it is in their power to do so. Blame has the propensity to make patients feel “rejected, worthless, ashamed and uncared for, thereby rupturing the therapeutic relationship as well as damaging any sense of hope for the future they might otherwise have, and, correspondingly, any motivation or belief that they can really overcome their difficulties” (Pickard ). Restorative justice studies also indicate that “not being made to feel a bad person” is a protective factor in crime desistance (Morris : ). Similarly, based on the Sheffield Desistance Study (Bottoms and Shapland ), Shapland concludes that “a constant backwards focus, as the criminal justice system tends to have, does not actually aid in encouraging the offender to desist from crime or help persistent offenders learn to lead a non-offending life in the community” (Bottoms and Shapland : ).
In the Sheffield Desistance Study, successful desistance is correlated with self-efficacy. Self-efficacy reflects the self-belief and motivation that one possesses the necessary skills to desist from criminal activities under various conditions (Bottoms and Shapland ). Although patients’ choices may be extremely limited, for example due to addiction and poverty, and exercising control may be very hard to achieve, it is essential to support and empower forensic patients to break their cycle of past behavior in order to be able to lead a crime-free life (Pickard ). If stigmatization and blame reduce patients’ chances of effective rehabilitation and desistance, we need to make sure that therapeutic settings are blame-free and stigma-free environments. Epidemiological research shows that the stakes are high. In the general population, %–% suffer from antisocial personality disorder and % from psychopathy. In stark contrast, % of male prisoners and % of female prisoners suffer from personality disorders (with % antisocial personality disorder in men and % in women) (Fazel and Danesh ). More than half of incarcerated individuals suffer from mental health and (comorbid) substance abuse disorders (James and Glaze ). Moreover, %–% of incarcerated youth suffer from at least one mental health disorder and % suffer from a serious mental health disorder (Odgers et al. ). ... Preventing versus inducing unnecessarily harsh punishments Smilanksy () fears that letting go of free will-related practices and reactions or even a mild weakening of free will beliefs might leave us with less ability to resist immoral views concerning punishment, such as the view that a focus on efficiency (e.g., assessing recidivism risk) is all we need. It could steer us away from the prima facie importance of principles of justice and fairness toward a mere utility approach. Although such a route is not unlikely, we have strong arguments to discount exclusive utilitybased deterrence approaches to punishment. Pereboom () addresses these arguments in his book entitled Free Will, Agency, and Meaning in Life. To summarize, Pereboom argues that exclusively relying on public safety and effective recidivism reduction runs the risk of leading to excessively harsh punishments that will often fail to conform to our intuitions about fairness. Second, utilitarian deterrence theories would seem to justify punishing the innocent if that would maximize deterrence. Third, utilitarian deterrence theories face the “use” objection. It will sometimes require people to be harmed severely, without their consent, if that benefits others. Indeed, a mere consequentialist defense of punishment does not provide us with strong moral safeguards to protect offenders’ rights and slippery slope
Skepticism and Punishment: A Preliminary Ethical Analysis
concerns are warranted based on numerous examples of the continuous violation of offenders’ rights worldwide (e.g., organ procurement from executed prisoners, lack of or insufficient health care, rape and violence within prisons, use of torture, overcrowding). In the Czech Republic, individuals who committed sexual offences, including minor offences such as exhibitionism, were given the “choice” between physical castration and life-long imprisonment. Many offenders were not given proper information on the nature of the procedure and regretted having undergone the procedure afterwards. In certain US states, offenders without a sexual disorder may be forced to undergo potentially indefinite chemical castration in order to be released from prison after serving their sentences. Human history shows us that prisoners are subject to grave and frequent abuse, producing massive unmerited suffering (Husak ). Illusionism could be the only option left to safeguard morality and personal value and to adequately discard unprincipled nihilism (Smilansky ), but it can and should be questioned at the level of policy and especially with respect to criminal justice because of the continued unmerited suffering that we face in today’s prisons. According to Smilansky, “we often want a person to blame himself, feel guilty, and even see that he deserves to be punished” (Smilansky : ). As I argued earlier, such a claim, even if it is defensible in certain contexts, depends upon the perspective we take. From the perspective of the forensic psychiatrist or psychologist, blame and guilt are counterproductive and therefore undesirable as part of the forensic treatment process. Instead, what we want is the recognition of the wrong that has been done. We want the offenders or forensic patients to take responsibility with respect to their rehabilitation and future behavior. In countries where forensic psychiatric patients are held in secure forensic hospitals, the care team is frequently faced with (threats of ) deviant, aggressive behavior by patients who might never be able to leave these secure settings due to serious, chronic mental health problems. The perspective of the forensic caregiver matters if we are serious about protecting society (which includes caregivers at forensic care units). Do victims always want or need blame and retributive punishment? Undoubtedly, a substantial number of victims will ask for revenge and harsh punishment, and even the death sentence in some cases. Nevertheless, it is also the case that many victims strive for the recognition of the moral wrong that has been done, as well as some form of restitution and restoration. Whether or not blame and retributive punishment are necessary conditions to achieve this is unclear. We need empirical data to back this up. The voices of victims need to be better understood and heard
properly. A recent survey assessing the views of victims on safety and justice provides a much-needed starting point (Alliance for Safety and Justice ). According to the survey, victims of violent and nonviolent crime prefer that the criminal justice system focus more on rehabilitation compared to punishment by a to margin. By a to margin victims prefer holding people accountable through options other than imprisonment, such as rehabilitation, mental health treatment, community supervision, and service. Even if we assume that most victims do strive for blame and punishment, which I leave open at present, the question arises: does society or the criminal justice system have a moral duty toward victims to blame and retributively punish those who committed crimes? ... Respecting the rights of all parties involved, victims, offenders and the wider society The core rights of victims involve a right to be treated with fairness, dignity, sensitivity, and respect as well as a right to restitution and restoration. However, these rights do not encompass a right to retribution or institutionalized revenge. The European Commission groups the needs of victims together in five broad categories. These categories are (a) respectful treatment and recognition as victims, both within the justice system and more widely by society; (b) protection both from intimidation, retaliation, and further harm by the accused or suspected and from harm during criminal investigations and court proceedings; (c) support, including immediate assistance following a crime, longer-term physical and psychological assistance, and practical assistance during proceedings to help victims understand, participate, and to reduce their distress; (d) access to justice to ensure that victims are aware of their rights and understand them both linguistically and legally; and (e) compensation and restoration, whether through financial damages paid by the state or by the offender or through mediation or other forms of restorative justice that allow victims to face the accused, with the aim of reaching a voluntary agreement between them on how to repair the harm to the victim. The European Union adopted the Council of Europe Directive (//EU) establishing minimum standards on the rights, support, and protection of victims of crime to ensure that the member states fulfill the needs of crime victims. It is explicitly stated that crime victims have a range of needs that vary from victim to victim. All victims need to be treated individually to meet these individual needs. While retribution is not considered a legitimate demand, for some victims a sense of fairness and closure will require institutionalized revenge, if not in the long term, at least in the short term. From a free
Skepticism and Punishment: A Preliminary Ethical Analysis
will perspective, institutionalized revenge clashes with offenders’ right to be treated fairly and with respect for their dignity. While one may defend the position that committing a crime makes an offender liable to punishment, this liability cannot involve any kind of punishment that disrespects the human dignity of the offender. Individuals can be liable to losing their freedom of movement through incarceration, community-based sanctions, fines, and other types of reparation or restitution, but not to inhuman, cruel, or otherwise morally wrong types of punishment. Embracing a victim’s need for institutionalized revenge would entail that an offender can be punished for the mere sake of alleviating the suffering of the victim. In this respect, the offender would be used solely as a means to achieve a certain good and therefore the use objection would apply. Hence, a “right to retribution” on behalf of the victim cannot reflect an authentic right. In sum, based on the illusionary model, we should precede as if we are free, even if we know that this assumption does not hold at the theoretical level. By choosing to institutionalize free will–related attitudes and practices within the conventional criminal justice system, morally questionable types of punishment are in place throughout many parts of the world. Although the illusion model is portrayed as a means to prevent harm and prevent the erosion of our moral lives, in the real world, it creates a lot of unfairness and illegitimate harm through mass incarcerations, overly punitive sentences, and an insufficient focus on long-term rehabilitation goals. If our criminal justice system defends the existence of free will and blame, it legitimates these and related concepts such as just world beliefs instead of using its resources to effectively address recidivism, for example by redressing societal inequities that function as systemic causes of crime (e.g., poverty, unemployment, addictions, access to good healthcare). It legitimates unfairness and de facto institutionalizes revenge. While illusionary models aim to prevent harm, they appear to be increasing harm within real-world criminal justice settings. ..
Model B: The Nonretributive Moral Responsibility Model
Several of the criticisms that apply to model (A) are applicable to model (B) as well. In model (B) the negative consequences of retribution are avoided, but the potential negative consequences of attributing moral responsibility, as described earlier, remain. First of all, holding on to free will and moral responsibility might be detrimental to society rather than beneficial as it correlates with questionable ideologies such as just world beliefs and right wing authoritarianism. Second, it is unfair and unjust to
hold individuals morally responsible for their immoral behavior, when they could not have done differently at the relevant time. Third, attributing blame and moral guilt is generally detrimental within forensic treatment settings, although the forward-looking approach to punishment in this model can prevent that, and negatively affects desistance efforts. At the same time, an important benefit that model (B) shares with model (A), is the fact that it respects the dignity of offenders by attributing moral responsibility and identifying these individuals as responsible agents. A potential downside of a forward-looking approach to punishment that restricts moral blame and guilt attributions to the trial phase can be an excessive focus on utility-based punishments. However, as argued in the previous section, exclusive reliance on utility-based punishments faces severe criticisms and a human rights–based framework prevents excessively and unnecessarily harsh punishments as well as institutionalized revenge. On my reading of Pereboom’s work, it seems that his quarantine moral answerability model, which is without a doubt preferable to current mass incarceration practices, fits model (B). In Free Will, Agency, and Meaning in Life, Pereboom () argues that reason-responsiveness or a sensitivity to reasons is a necessary condition for moral responsibility and blame in a forward-looking sense, focusing on protection, reconciliation, and moral formation. Based on his model, we can still hold individuals responsible from a moral and legal point of view, but we can no longer punish individuals based on the fact that they deserve to suffer for their past behavior. Moral responsibility claims toward offenders should be forwardlooking claims that involve moral answerability and willingness to restore past mistakes and prevent future criminal behavior, but not backwardlooking claims that demand retributive punishment or sanctions in the basic desert sense. The main problem with model (B) is the fact that blaming and moral responsibility attributions are preserved while holding the view that free will does not exist. How can one consistently preserve blame and moral responsibility while acknowledging that free will does not exist? If there is an ethical basis for the libertarian or true free will requirement (i.e., having authorship of one’s self, or of one’s character), as Smilansky ()argues, then it seems that softer approaches to moral responsibility are in need of justification. A soft approach to moral responsibility entails that one assigns blame and moral responsibility without requiring that individuals are able to successfully exercise their decision-making capacity at the relevant time. Without requiring that the individual could actually have done differently at that moment in time. A hard approach to moral
Skepticism and Punishment: A Preliminary Ethical Analysis
responsibility entails that one needs to meet the libertarian requirement. I defend a hard approach to moral responsibility with respect to criminal justice and punishment and I agree with Smilansky () that we have a strong ethical basis to do so. The fact remains that if there is no libertarian free will a person being punished may suffer justly in compatibilist terms what is ultimately her luck, for what follows from being what she is – ultimately beyond her control, a state which she had no real opportunity to alter, hence neither her responsibility nor her fault. (Smilansky : )
Moreover, how do moral responsibility and blame link to a policy of incapacitation modelled on quarantine? Blame and moral responsibility are not assigned to carriers of dangerous communicable diseases. We indeed demand forward-looking responsibility (e.g., take your medication, do not leave the house, etc.), but at the same time, we completely withhold blame. Although our right to protect ourselves and to secure our safety can be based on a quarantine model at the state level, as Pereboom suggests, it remains somewhat puzzling why we need to attribute blame if no agent ever truly deserves to be blamed? Pereboom () gives a justification for keeping moral responsibility and blame alive based on three nondesert moral desiderata: protection of potential victims, reconciliation in personal relationships and with the wider moral community, and the formation of moral character. His forward-looking, soft approach to moral responsibility and blame aims for future protection, future reconciliation, and future moral formation. I fully agree that these moral desiderata are extremely important, although I wonder whether judgments of moral wrongness in combination with restoration and reparation without blame could potentially do a better job at achieving these aims. Moreover, as I describe later, it is questionable whether blame and guilt truly weaken dispositions to misconduct and strengthen dispositions to good behavior. While remorse is indeed a fitting response to wrongdoing and most likely a necessary component for moral improvement and reconciliation, self-blame has the potential to undermine moral progress and future desistance. I agree with Pereboom () that the legitimate functions of the state include protecting its citizens from significant harm and providing a framework for human interaction to proceed without significant impairment. However, should this include institutionalizing blame? As mentioned, an argument in favor of this model is that by preserving moral responsibility attributions we fully acknowledge an offender’s basic
status as moral agent. A related argument in favor of this model is the fact that the difference between intentional and nonintentional harm (tracking legal sanity versus legal insanity; or diminished responsibility) is identified at the trial and sentencing phase. Although the attribution of compatibilist differences between morally responsible and morally excusable behaviors faces serious difficulties (discussed later), there exist clear-cut cases where holding an individual morally responsible is morally questionable (e.g., when the offender is suffering from severe intellectual disability or epileptic seizures resulting in nonintentional aggression). Excusing an individual who is obviously not reason-responsive is morally desirable and avoids the harm of blaming innocent individuals (i.e., offenders who are excused within a compatibilist framework). Moreover, it can be argued that the dignity of the victim is maximally respected by, where applicable, identifying moral responsibility rather than “merely” identifying the moral wrong that has occurred. In my view, one of the most important arguments in favor of soft moral responsibility accounts including blame is indeed respect for victims’ rights and needs. There are horrific crimes for which it is nearly impossible to think in nonblaming terms, and for which it feels deeply wrong toward victims to withhold moral blame. Canton suggests that the debate on the justification of punishment might lead to the conclusion that some forms of punishment (or judgment) but not others are “justifiable for some people, for some crimes and in some circumstances” (Canton : ). Finally, whether a quarantine type approach to rehabilitation in itself sufficiently addresses victims’ need for closure and right to restitution and/ or restoration is unclear. The Council of Europe Directive states that all victims need to be treated individually to meet their individual needs within legitimate boundaries. Quarantine-type approaches might need to be complemented with nonretributive restorative justice approaches or other innovative approaches to achieve these demands. .. Model C: The Symbolic Responsibility Model Model C symbolically attributes (moral) guilt at the trial phase based on the offenders’ causal responsibility for the crime. Moral responsibility attributions are not considered legitimate as such. However, it is argued that victims’ rights to restitution and reparation cannot be respected and victims’ recovery and emotional closure cannot be achieved without such attributions. The latter view is strongly defended by some forensic psychiatrists and psychologists who participated in a recent qualitative interview
Skepticism and Punishment: A Preliminary Ethical Analysis
study (Specker et al., in press), and is also voiced by John Callender in his work on victims’ needs and the avoidance of self-blame and self-harm: It is well-recognised that a range of harms can arise when someone is the victim of criminal wrong-doing. In many cases, we see victims feeling guilty about their victimisation and punishing themselves by inflicting sometimes terrible damage. In the case described, the perpetrators of the crime were never apprehended, charged, or punished. In consequence of this, the victim took upon herself the burden of guilt and punishment, culminating in her committing suicide. (Callender, in press)
Defending a need for moral blame attributions, symbolic or otherwise, resonates with the view that certain crimes and their enduring consequences are so grave and horrific that withholding blame and punishment wrongs the victims of those crimes. It is largely an empirical matter whether (all or most) victims want institutionalized (moral) guilt and blame attributions or not, and more research is urgently needed to establish this. Whether or not the symbolic nature of the guilt attribution needs to be overtly identified is debatable (i.e., guilt attributions function as an illusionary belief at the trial phase in this model). Model C does not seem to face the ethical basis objection. It truly accepts that moral responsibility, guilt and blame, are not legitimate without true free will. Hence, an appeal to reason-responsiveness or sensitivity to reasons does not differentiate between those who can be identified as morally guilty and those who cannot. Nevertheless, the dignity of victims is respected by symbolically attributing (moral) guilt based on the offenders’ causal responsibility in bringing about the harm, and the dignity of the offenders is respected by addressing their moral agency. The guilt attribution is purely symbolic; it does not intend any suffering on behalf of the offenders merely because they have knowingly done wrong. It does intend to strongly identify the violation of the shared public values that are at stake (Duff ). The offenders are held causally responsible for the moral wrong and in symbolically identifying them as morally and/or legally guilty, the wrongness of the act is strongly signaled to the victim(s) and the wider society. The symbolic attribution communicates the moral wrongness of the act by proceeding as if (moral) guilt can be legitimately attributed. The kind of moral responsibility and blame that is symbolically attributed will not be retributive in nature, but conveys a type of moral answerability that is similar to Pereboom’s view on moral responsibility and blame (Pereboom , ). It is a restricted illusion model where the illusion stops after the conviction phase and judicial
programs to achieve desistance are blame-free. The main difference with model B lies in the symbolic, illusionary nature of the blame attribution, and the lack of differentiation based on intentional versus nonintentional behavior at the trial phase. The offender is not used as means to address the needs of victims, so the use objection does not apply. Based on the moral wrongness of the act, victims’ right to restitution and/or restoration, and society’s duty to protect vulnerable individuals, demands can be placed on the offender in terms of rehabilitation and restoration. Such demands are not intended as punishment. The demands in terms of rehabilitation will be limited to the demands that a quarantine-type model places on carriers of dangerous infectious diseases (Pereboom ; Caruso ), and the demands in terms of restoration will need to be nonretributive in nature. Existing forward-looking approaches to restorative justice fit this model (Daly ). If one holds that victims of crime are wronged if the wrongdoer is not punished, one might reject model C because it insufficiently addresses the needs of victims (Walen ). However, to adequately address and prevent crime, consequentialist reasons can legitimate certain punitive measures such as monetary compensations, community-based sanctions, and incapacitation if necessary. At the same time, respect for the human dignity of the offender necessitates proportionate demands placed on offenders, as well as proportionate punitive measures if such measures are needed. A potential problem this model faces, although it can be seen as a benefit as well, is the fact that the distinctions that are identified in great detail by compatibilist thinkers, such as reason-responsive versus nonreason-responsive agents or rational, competent agents versus agents lacking in normal cognitive-emotional capacities, are dismissed. Guilt is assigned based on one’s causal responsibility and does not track intentional versus nonintentional behavior. This means that compatibilist capacities or the lack thereof, for example when offenders suffer from a medical or psychiatric condition that can be linked to the harm that was caused, do not excuse. Although some may find this problematic, when we look deeper at the theoretical framework that is supported it basically assumes that no person is to be held morally responsible and no person deserves punishment. Individuals who are lucky enough to be able to resist crime are treated in the same way as individuals who are unlucky enough to commit crimes, whether intentional or nonintentional. At a deeper level, by merely assigning causal responsibility, the human dignity of offenders is maximally respected. By attributing symbolic guilt on the basis of causal responsibility, the victims’ needs are maximally addressed
Skepticism and Punishment: A Preliminary Ethical Analysis
(within the limits of a free will skeptic framework). Hence, on an alternative reading of this model, forsaking compatibilist distinctions at the trial phase can be seen as beneficial. It implies that guilt attributions are not based on distinctions that in practice lend themselves to arbitrary distinctions between individuals with potentially enormous consequences. What we do get is a model that aims to effectively reduce recidivism by looking at “who needs what” in order to lead a crime-free life without making arbitrary distinctions between individuals who suffer from fullblown mental insanity (e.g., psychosis) and individuals who “merely” suffer from personality disorders such as schizotypal personality disorder. In the interest of society as well as offenders and forensic patients, it is essential that safe and effective treatments for mental health problems and substance abuse disorders are available. In fact, if we look at the epidemiological data mentioned earlier, the huge number of offenders with psychopathy and antisocial personality disorder and/or aggressive, impulsive, addictive, and sexually deviant tendencies urges a timely investment in effective rehabilitative mechanisms during incarceration and after prison release, including but definitely not limited to therapeutic options. A systematic review of reoffending rates shows that these are higher for prisoners than for forensic psychiatric patients (for a discussion of UK, US, and Swedish studies, see Fazel et al. ). Although individual characteristics such as criminal career and seriousness of offences may (partially) drive the difference, it is probable that continuing treatment and provision of supportive aftercare contributed to reduced recidivism. Moreover, a large retrospective cohort study revealed that offenders with serious psychiatric disorders (major depressive disorder, bipolar disorders, schizophrenia, and nonschizophrenic psychotic disorders) have a substantially increased risk of multiple incarcerations over a -year follow-up (Baillargeon et al. ). According to a Swedish population-based study, % of all offenders make up .% of all violent crime convictions, and persistent violence was associated with personality disorders, substance abuse disorders, and major mental disorders (Falk et al. ). Current research suggests that protective factors are extremely important for rehabilitation and recidivism reduction. Much more effort and resources need to be devoted to enable offenders to resist future crime, such as investing in practical skills training, education, housing, access to healthcare, and employment (Ward et al. ). If the attribution of guilt is merely symbolic, does it deny offenders’ basic status as moral agents due to the symbolic nature of the guilt attribution? Do we thereby place offenders outside the moral realm of
responsible agency and deny these individuals their full-fledged status as moral persons? Or is the symbolic function sufficient to uphold their status as moral agents? It seems that free will skepticism cannot acknowledge any deeper status than this, even if we are willing to defend an illusion model. If an individual’s basic status as a moral agent draws upon one’s capacity for moral agency, and if exercising this capacity is ultimately “not up to us,” providing for symbolic or soft attributions of guilt may be the only way to counter the criticism that free will skepticism denies us of our basic status as moral agents. At the same time, it is unclear whether free will skepticism necessarily implies such denial. As free will skeptics, our membership of the moral community can include legitimate attributions of moral wrongness and moral rightness. Blame, guilt, and responsibility attributions can function symbolically or be embedded in a soft approach to morality. However, while soft approaches face the ethical basis objection, symbolic approaches have the potential drawback that the (moral) guilt attribution is indeed fictional and may promote feelings of being misled on behalf of the victim(s) and the wider society. It is questionable whether the use of such deception, however well intended, truly respects the rights and needs of victims. It is definitely a significant drawback of this model. It also remains to be determined whether victims would favor a model that does not differentiate between intentional versus nonintentional behavior. It could be the case that a mere symbolic identification of (moral) guilt at the trial phase is therefore detrimental in the long run. However, as discussed earlier, blame is counterproductive in terms of forensic rehabilitation. Not blame, but taking responsibility for one’s future actions and future life is key to successful rehabilitation. The opposite path, feeling stuck in a certain pattern of behavior and perceiving a loss of control over one’s behavior (i.e., learned helplessness, an emotional-cognitive state of [feelings of] helplessness and hopelessness) is considered a major etiological process in vulnerability to, onset of, and maintenance of clinical depression (Pryce et al. ). Hopelessness is also related to current health, perceived health, disability, and sociodemographic status (Hamzaoglu et al. ). In general, (feelings of ) hopelessness can influence one’s cognitive, emotional, and physical well-being profoundly and be very debilitating (Waller ). As such, we do need to remain wary of the links between moral guilt, blame, and stigma and how these may prevent successful rehabilitation and desistance. The symbolic model attempts to maximally address the rights and needs of both victims and perpetrators, but in doing so it might achieve this in a suboptimal fashion. However, by trying to address the needs of both
Skepticism and Punishment: A Preliminary Ethical Analysis
groups, it avoids the “empirically false and ethically distorting idea of victims and offenders as fixed and separate groups whose interests and rights are in opposition” (Canton : ). As mentioned earlier, according to a recent survey, crime victims prefer rehabilitation over punishment by a to margin, and favor rehabilitation, mental health treatment, community supervision, and service over imprisonment by a to margin. More research on the needs of victims, as well as on protective factors that enable desistance, is urgently needed. ..
Model D: The Guiltless Criminal Justice Model
The free will skeptic position holds that we do not have a justification for desert-based responsibility. This implies that backward-looking notions of moral responsibility involving blame and guilt are ruled out. Forwardlooking notions of moral responsibility or answerability can be defended, although the continued use of the term moral responsibility might lead to (unnecessary) confusion. Instead, you can get rid of all notions of moral responsibility and design a guilt-free moral universe. A guilt-free moral universe continues to identify causal responsibility and moral wrongs. To adequately address crime, it can draw upon society’s duty to protect its citizens, consequentialist reasons for deterrence and incapacitation, and social justice values to redress the systemic causes of crime. On model D, our criminal justice system needs to be radically revised to get rid of all notions of (moral) guilt, blame, and moral responsibility. Punishment can then be justified based on deterrence, either a utilitarian version or a version based on the right to self-defense and defense of others, which can be understood as a government’s duty to protect its citizens from third-party harm. As mentioned, utilitarian theories of punishment face well-known criticisms: “It would require punishing the innocent when doing so would maximize utility; in certain situations it would prescribe punishment that is unduly severe; and it would authorize harming people merely as means to the safety of others” (Pereboom : ). However, some form of deterrence/incapacitation is warranted to protect society (although potentially unjust), even in certain difficult cases where an offender does not pose an immediate threat to others. If the criminal justice system cannot guarantee an adequate level of safety when releasing an individual back into society, then society has a duty to take measures that will adequately protect others. These measures need not in any way be intentionally punitive, and unnecessarily harsh sanctions or measures that are unable to prevent future crime are to be avoided.
The quarantine model proposed by Pereboom (, ) falls within this framework provided the use of blame and guilt is rejected. According to Pereboom, an intuitively legitimate theory of crime prevention can be drawn based upon an analogy between the treatment of carriers of communicable diseases and the treatment of criminals. According to such a theory, similar to society’s right to isolate carriers of dangerous, communicable disease (e.g., Ebola), society has the right to isolate the criminally dangerous. However, it does not have the right to treat criminals more harshly than is needed for society to be protected from the dangers posed by these individuals. Such a theory would also demand a degree of concern for the rehabilitation and well-being of the offender that is absent in most criminal justice settings today, it would not allow for incarceration unless necessary, and it would not allow morally questionable practices such as the death penalty or excessively harsh environments such as supermax prisons. Caruso’s () free will skeptic approach to punishment builds on Pereboom’s views. He places Pereboom’s analogy in a broader public health ethics framework. A public health rationale is essentially justified by consequentialism or a mix of consequentialism and social justice theory. To respond to the use objection that consequentialist models of punishment face, Caruso suggests to maximally respect autonomy, beneficence, nonmaleficence, and justice as part of his public health approach to criminal behavior. For example, autonomy should not be infringed upon unless it is absolutely necessary to protect society from harm. Drawing upon Mill’s harm principle and Pereboom’s incapacitation account, Caruso argues that the right to self-protection and prevention of harm to others justifies incapacitating the criminally dangerous with the minimum harm required for adequate protection. His account requires us to prioritize the prevention of crime and to redress the social and economic inequalities that foster criminal behavior. Moreover, a core function of the criminal justice system should be to identify and remedy social and economic inequalities responsible for crime (e.g., racism, poverty, systematic disadvantages). One potential problem with the latter proposals is the fact that criminals that do not pose a threat to society should not be held in custody or suffer other measures. Unlike model C, model D does not require us, in any sense, to prioritize victims’ needs. Imagine the following case: a young man hears voices telling him to kill as many babies as possible because they are facing continuous harm on a day-to-day basis. He has been chosen to make sure that as many babies as possible are saved from further harm by
Skepticism and Punishment: A Preliminary Ethical Analysis
killing them. He then proceeds to kill seven innocent babies. The police arrest him and put him through an examination. The medical team discovers that his delusions were caused by a rare side effect of the medication he was taking. If he stops taking this medication, he will never commit such crimes again. The psychiatric team reassures the court that the young man is perfectly sane. The likelihood of this young man committing another crime is zero. As a result, the court releases the young man without further requirements or sanctions. There is no need and no justification for it based on model D. Clearly, this type of scenario causes outrage among the victims and society at large. Human beings have reactive attitudes that include a need for revenge, justice, closure, and emotional healing. Aside from the fact that the perpetrator will likely be the target of revenge, the rights of victims to receive restoration have not been met. Certain readings of model D involve a moral failure on behalf of the criminal justice system by disrespecting the rights of victims. We need to take into account the rights of victims, society as a whole, and the offender if we wish to avoid such moral failure. Offenders can be held liable to forward-looking sanctions that respect their human dignity. Sanctions aim to restore the wrong that was caused and prevent further wrongs from happening in the future, while maximally protecting the human rights of all parties involved. Another potential problem this model faces is the fact that it may lead to unjustified preventative detention of innocent individuals based on risk analysis. Such preventative detention infringes upon our right to liberty and allows an individual to be harmed without being sure that it produces a good. In fact, in certain cases, it will harm individuals unnecessarily, since some of these individuals would not have committed a crime even if free (see Pereboom and Caruso () for replies to these and similar criticisms).
. Outside Criminal Justice While compatibilist defenses of criminal punishment face serious theoretical and empirically-based objections, it remains open whether the empirical data warrant the same approach with respect to social life in general and the normal development of cognitive, emotional, and motivational capacities in particular. Due to genetic, neurobiological, and/or environmental influences, some children may not fully develop certain cognitive, emotional, and motivational capacities that are needed for moral decision making and behavior, including the ability to feel guilt and remorse. If a
notion of moral guilt is crucial to stimulate proper moral development in children, then we may lose too much if we eradicate all notions of moral responsibility (e.g., moral answerability). Research on the development of cognitive-emotional capacities in children shows that human capacities such as theory of mind, empathic understanding, and moral reasoning begin to emerge between the ages of and months and develop simultaneously (Spenser et al. ). These capacities enable individuals to control their behavior in socially appropriate ways (Sharp ). Theory of mind can be defined as the ability to understand others’ mental states, while affective theory of mind is the further ability to understand the feelings that are associated with these mental states. Empathic understanding denotes the ability to take the cognitive or emotional perspective of others, while affective empathic understanding is the ability to share in others’ emotional experiences. Moral reasoning can be defined in a variety of ways. Within developmental research contexts it is referred to as the ability to differentiate between socially acceptable and unacceptable thoughts and behaviors (Spenser et al. ). Within the same contexts, guilt is defined as a selfconscious moral emotion that provides feedback on the (un)acceptability of one’s own behavior and motivates reparative actions in case of selfattributable unacceptable behavior (Roos et al. : ). Defined as such, guilt appears to be essential for the development of normal moral reasoning skills. In fact, research suggests that guilt strengthens social bonds and attachments and may provide a constructive way to handle anger. Roos et al. () studied the effects of guilt, shame, and externalization of blame on aggressive behavior in a large pool of children. The study reveals that guilt has an aggression-inhibiting main effect, while shame and externalization of blame do not directly link to aggression. The relation of guilt and shame with aggressive behavior was moderated by emotion regulation. Proneness to feel guilt, shame, and to externalize blame appear to inhibit aggression in children who are relatively low in emotion regulation (i.e., inhibitory control and attention capacities that enable individuals to alter their behavior, resist temptation, and change their mood) and/ or relatively high in negative emotionality (i.e., tendency to experience negative emotions such as anger, frustration, and depressive mood). As levels of emotion regulation increased and negative emotionality decreased, the inhibiting effects weakened, disappeared, or, in situations where a child experienced shame, became supportive of aggression. With negative emotionality as moderator, the latter transformation effect extended to the externalization of blame.
Skepticism and Punishment: A Preliminary Ethical Analysis
A study by Paciello et al. () reports that adolescents who maintained higher levels of moral disengagement (i.e., converting morally unacceptable behavior into personally acceptable behavior by using cognitive distortions such as externalization of blame) were more likely to show aggressive and violent behavior in late adolescence. For example, they found that adolescents who exhibited higher levels of moral disengagement were more likely to show frequent physical and verbal aggression and violent behavior and were less likely to experience feelings of guilt in late adolescence. In a longitudinal study by Stuewig et al. (), proneness to guilt in children is seen as a protective factor linked to responsible rather than risky behavior in later life, including being arrested, convicted, and incarcerated. However, when controlling for childhood aggression, the link with incarceration disappeared. Proneness to shame in children appears to be a risk factor for later risky behavior. This is in line with other studies suggesting that shame-prone children are less popular, less empathic, and less able to manage feelings of anger in a constructive manner (see Stuewig et al. ). Sharp () has suggested that the inadequate development of theory of mind, empathic understanding, and moral reasoning during childhood may contribute to later antisocial behavior and crime. In line with this hypothesis, impaired empathic understanding and impaired moral reasoning have both been linked to aggressive, criminal behavior (e.g., Beven et al. ; Palmer and Begun ; Paciello et al. ). Moreover, neurobiological studies show that psychopaths suffer from functional and structural brain impairments in areas (e.g., amygdala, orbitofrontalventromedial prefrontal cortex) that are linked to moral reasoning and behavior in normal individuals (Focquaert et al. ). Psychopaths suffer from core deficits in emotional processing (e.g., inability to take the emotional perspective of others) – deficits that are not only observed in self reports and observation of behavior but that can be detected using physiological measures and brain imaging – which may contribute to impaired moral decision-making and behavior. Cognitive deficits in the processing of information may also contribute to impaired moral decisionmaking and behavior by increasing attention toward salient rewards and reducing attention to cues of punishment or cues that another is in distress. As we see in patients with damage to the orbitofrontal cortex who demonstrate both cognitive (poor planning, impulsivity) and affective (lack of empathy, emotional blunting) deficits, the same brain regions may influence both of these processes (Focquaert et al. ). Psychopathy is framed as a neurodevelopmental disorder partially driven by genes coding
for brain abnormalities early in life (Gao et al. ). Callous-unemotional traits in childhood have been linked to persistent, severe, aggressive and antisocial behavior during youth, and antisocial personality disorder and psychopathy in adulthood (Frick and White ). A lack of “conscience” is often equated with psychopathy and may result from early neurodevelopmental impairments in moral reasoning and behavior that prevent the development of appropriate feelings of guilt. Taken together, these empirical findings suggest that impaired capacities for empathic understanding and moral reasoning (including normal feelings of guilt) are potential risk factors for criminal behavior. If feelings of guilt are crucial for (the development of ) normal moral reasoning and behavior and the prevention of crime, we could indeed be losing too much if we eradicate all notions of (moral) responsibility in everyday life. However, a lot seems to depend on the type of guilt or the definition of guilt that is involved. As mentioned, when guilt transgresses to feelings of shame, these moral emotions may increase rather than decrease aggressive behavior. Several studies indicate that a proneness to shame is correlated with anger, hostility, and the propensity to blame others in individuals across a range of ages and socioeconomic backgrounds (see Tangney et al. ). Also, when we look at the measure (TOSCA [Test of Self-Conscious Affect–Adolescent] scale) that assesses guilt and shame during children’s development, it seems plausible that a notion of causal responsibility (or perhaps forward-looking moral answerability) could be sufficient to attain the aggression-inhibiting effects linked to the presumed feelings of guilt that children experience. It has been suggested that the scale does not measure guilt per se, but rather the child’s motivation to make amends for personal wrongdoing (Giner-Sorolla et al. ). In fact, according to Stuewig et al. (), taking responsibility for one’s actions and having positive interpersonal relationships are likely contributing to the link between shame-free “guilt” in childhood and later responsible behavior. Realistically assessing deviant behavior as bad behavior rather than as the result of having a bad self is essential. Again, this seems to suggest that learning to “take responsibility” for one’s behavior could be sufficient to promote nondeviant behavior and/or engage in reparative actions following one’s failures and transgressions.
.
In Closing
Innovative criminal justice systems need to, at the very least, continue to identify causal responsibility, promote taking responsibility for one’s
Skepticism and Punishment: A Preliminary Ethical Analysis
future behavior on behalf of offenders, and thoroughly respond to victims’ rights and needs. The attribution of moral guilt and the implementation of desert-based punishment face numerous objections. We need to start a debate on the desirability of a criminal justice model that focuses on causal responsibility and taking responsibility, a model that aims to achieve victim recovery, restitution, and restoration by implementing forward-looking justice mechanisms. Such a model will undoubtedly upset victims who are not informed about its underlying rationale and the long-term benefits it aims to achieve, and about the long-term costs and harms that result from sustaining conventional backward-looking criminal justice systems involving moral guilt and institutionalized revenge. At the same time, simply upholding the status quo and ignoring the harms caused by conventional criminal justice systems amounts to moral failure. REF ERE NCE S Alliance for Safety and Justice. (). Crime survivors: The first-ever national survey of victims’ views on safety and justice. Available at: https://alliance forsafetyandjustice.org/wp-content/uploads/documents/Crime%Sur vivors%Speak%Report.pdf. Baillargeon, J., J. V. Penn, K. Knight, et al. (). Risk of reincarceration among prisoners with co-occurring severe mental illness and substance use disorders. Administration and Policy in Mental Health and Mental Health Services Research, (), –. Baumeister, R. F., E. J. Masicampo, and C. N. DeWall. (). Prosocial benefits of feeling free: Disbelief in free will increases aggression and reduces helpfulness. Personality and Social Psychology Bulletin, , –. Bayer, R. (). Stigma and the ethics of public health: Not can we but should we. Social Science and Medicine, , –. Beven, J. P., A. O’Brien-Malone, and G. Hall. (). Using the interpersonal reactivity index to assess empathy in violent offenders. International Journal of Forensic Psychology, (), –. Bottoms, A. E., and J. Shapland. (). Learning to desist in early adulthood: The Sheffield desistance study. In E. Shapland, S. Farrall, and A. E. Bottoms, eds., Global Perspectives on Desistance: Reviewing What We Know, Looking to the Future. New York: Routledge, pp. –. Callender, J. S. (). Justice, Reciprocity and the Internalisation of Punishment in Victims of Crime. Neuroethics, –. Canton, R. (). Why Punish? An Introduction to the Philosophy of Punishment. New York: Palgrave. Caruso, G. D. (). Free Will and Consciousness: A Determinist Account of the Illusion of Free Will. Plymouth, UK: Lexington Books.
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Index
Alicke, , , , authoritarianism, , , , Baumeister, –, , , , –, , , , blame, , –, , , , –, –, –, , –, , , , , , , , , , , –, , , , –, , –, –, –, –, , , Callender, J., vii, , , , , , , , capability approach, – Caruso, G. D., vii, –, –, –, –, –, , , , –, , , , –, , –, –, , , –, , , , –, –, , , , –, , Cohen, J., , , , –, consequentialism, , –, , , , , contractualism, , – Corrado, M., vii, , , , , , –, –,
Focquaert, F., vii, , , , , , forward-looking responsibility, –, , –, , , –, –, , –, , –, , , – Greene, J., , , , –, Hardcastle, V., , Hart, H. L. A., , , , , –, , , –, , –, , , , , Hill, T., Honderich, , –, , illusionism, –, , , , , incapacitation, , , , , –, , , , , , –, –, , , , , – indeterminism, , , –, just world belief, , –, Kant, I., , , , , , , , Levy, N., , –, , , , –, , , –, , , , , , , , luck, –, , , , , , , , –, , ,
Dennett, D., –, , , , , , , desert, , –, –, , , , , , –, –, –, –, –, , , –, , , –, –, , , , , , –, , –, , , – determinism, , –, , , Duff, R., –, –, , Farrell, D., –, – Fichte, J. G., , , –, , Fischer, J. M., , , , , , , , , –,
McKenna, M., , , , –, , Mele, A., , , , , mens rea, , , , , , –, monitoring, , , Moore, M., –, , , , , , , , , moral responsibility system, , , , – Murtagh, K., vii, , , Nelkin, D., , , –, , , –
Index
Pereboom, D., vii, , –, –, , –, , –, , –, –, –, , –, , , –, , –, , , –, –, –, –, , –, , –, , , –, –, , , –, , –, – public health, , , , –, –, , , , , , , – quarantine, , , , , , , , –, –, , , , –, , , , , , –, , , Ravizza, M., , , , , , , Rawls, J., , , , , , –, , , , , rehabilitation, , , , , –, , , , , –, , , –, –, , –, , restorative justice, , , , , , , , , – retribution, –, –, , , , –, , , , , , –, , , –, –, , , , , , , – retributivism, , , –, –, , , –, , –, , , –, , , , –, –, –, , ,
Schooler, J., , , –, , , , self-defense, , , , , , , , , , , , –, Shaw, E., vii, , , , , , –, , , Shoemaker, D., –, Smilansky, S., viii, , –, –, , –, –, , , –, , , , , , , –, –, , , , , , , , –, social contract, , , –, , , Sommers, T., , , , , symbolic responsibility, –, Tadros, V., , , , , , , , , , –, therapeutic, , , , , , –, therapy, , , , , –, , , trauma, , –, , Utilitarianism, , , – Vilhauer, B., viii, , –, –, –, , , , , , –, , , , , , , , Vohs, K., , , –, , , , , Waller, B., viii, , –, , , , –, –, , , –, , , , , –, ,