The Ethics of Punishment: Free Will & Moral Responsibility

[00:00:18]perhaps the most pressing question prescriptive question that's posed by free will concerns punishment if people don't have the kind of free will with that we thought they did if they're not morally responsible then what does that mean for the ethics of punishment can we justify punishment morally if people don't have free will or does morality demand that we give up on the practice of punishment if people don't have free will this question is of course especially salient for the free will skeptic because the skeptic is the one who denies that free will exists and denies that people are morally responsible and we find the issue of punishment discussed already by dolbach who was our representative skeptic from the 18th century so dolbach considers this objection people had said to him even in his time well if you don't believe in free will then how are you going to justify the practices of punishing criminals and one of dolbach's responses to the problem of punishment was to say that well just as a person who commits a bad action does so because he was determined so too we punish him because we are determined he was determined by the forces of nature to be bad we are similarly determined to punish him by the forces of nature and this is obviously a really glib reply crucially it does nothing to defend the moral appropriateness of the action because just saying i am determined to punish the guy doesn't say anything in defense of the idea that it was morally appropriate for me to punish the guy bilbach has more to say like later theorists dolbach defends punishment by appealing to the good consequences for one thing punishment serves to discourage people from socially detrimental behavior like stealing and killing and in addition punishment can help shape people it can determine people to have good moral characters so dolbach suggests in his early discussions of this that we can use punishment to build people to have good moral characters so we we take sort of we take advantage of the deterministic processes to shape them into being good people in this lecture we'll consider how the ethics of punishment stacks up against the problem of free will we'll look at various approaches to punishment in something like a chronological order starting from the early practices of vengeance and for each approach to punishment we will explore whether it depends on the idea of free will and also whether the approach is generally morally acceptable so this will really be focused on the ethics of punishment for each theory we'll see that philosophers have some reservations about whether the theory of punishment is morally acceptable so philosophers have raised moral qualms about every proposed theory of punishment the way we think of punishment now at least in the u.s is largely in terms of what people deserve that people should be punished based on what they deserve but it's not so clearly like this in the early emergence of the law the early emergence of the law seems linked to the idea of vengeance and vengeance is often regarded as the earliest version the earliest form of punishment and it's also at the heart of blood feuds which have and continue to play a large role in small-scale societies one important feature of blood feuds is that it can be appropriate to harm someone who didn't himself produce the bad outcome so the individual who is harmed who gets the sort of who is the subject of the attack doesn't have to be the wrongdoer so it's perfectly appropriate in a blood feud to try to harm the brother of the offender for instance if you can't get to the offender himself then it's certainly acceptable to attack his kin if you're engaged in a blood feud relatedly the notion of proportional punishment is not so central to vengeance rather the aim is often to do great damage to the enemy in a blood feud that's what you want apparently you want to try to to invoke as much chaos as you can on the enemy you don't try to carefully balance off how much wrong he did to you and then try to exact precisely that much harm no you're trying to retaliate and that will often mean doing more damage to him than he did to you another important feature of vengeance is that it can be appropriate to seek vengeance even when the outcome wasn't intended by the person at all so if jones ox tramples and kills smith's child smith might go out and seek vengeance against jones even though jones intended no harm this would not be out of bounds of the norms of vengeance we find something similar to vengeance in early legal codes that the idea of vengeance seems to be part of what shapes early legal codes in early english law a person was held responsible if his sword fell on someone and injured them so there it looks like there's no intention to harm there it was an accident but the person is still held responsible in effect these laws held people strictly liable that is for certain bad outcomes the person is held responsible even if the outcome was neither intentional nor obviously negligent even today we have some laws that operate under strict liability in some states store clerks are strictly liable for selling alcohol to minors so if they sell alcohol to minors it doesn't matter if they did their best to try to avoid it they're still held responsible one of the really important things about vengeance for our purposes is that it doesn't depend on the idea of free will and responsibility if i think i should seek vengeance against a neighbor or his family it doesn't matter if i find out that there's no such thing as free will what matters is striking back at the offender airy reflections about determinism are quite irrelevant and this is made especially vivid by the fact that it can be appropriate to attack the wrong the wrongdoers can and it can be appropriate to seek vengeance for for offenses that weren't even intentional what matters is striking back retaliating against the offense basically so the offender is going to get paid back since vengeance doesn't require free will that means that even if we don't have free will that won't undercut the propriety of vengeance so the freewill skeptic would be free to embrace vengeance vengeance and blood feuds seem to be immune from worries about free will but this is not really all that much comfort for the freewill skeptic because few educated people today are in favor of endorsing or returning to vengeance in the blood feud to our modern sensibilities vengeance and blood feuds just seem barbaric so while we have identified a form of punishment that doesn't depend on free will it's not a form that's regarded as morally viable in place of vengeance and blood feud the next major approach to punishment that emerges historically is the idea of retribution and retribution continues to be central to common sense views about punishment again at least in the us but actually probably pretty broadly retribution is a very common view of punishment and the notion of retribution is at the heart of the doctrine lex talionis an eye for an eye kalionis that the term talionis is not related to the word for the part of an eagle claw it's not a talon that's what i used to think but the word taliona shares a root with the word retaliate but the relevant notion of retribution here is more refined or the relevant notion of retaliation here is more refined than the crude notion of vengeance so retaliation is part of vengeance but the way it plays out in retribution is more sophisticated in a number of ways the critical thing is that the idea of retribution is tied to the idea that people who do wrong deserve to be punished and there are three different features here that i want to bring out one is called positive retributivism and that's the idea that the guilty deserve to be punished that is it's morally appropriate to punish the guilty we should punish the guilty it's a good thing to punish guilty people that's positive retributivism a second part of retributivism is negative retributivism and that holds that only the guilty deserve to be punished it's not morally appropriate to punish those who aren't guilty the innocent should just be left alone and then the third part of retributivism is proportionality and that holds that the punishment should fit the crime so it's wrong for instance to punish someone severely for a minor crime you don't kill people for littering similarly it's wrong to punish someone lightly for a severe crime you think maybe someone who believes in retributivism would think it was preposterous to sentence a first degree murderer to a weekend of community service somehow or other the the punishment should be appropriate to the crime now of course this picture of retributivism differs significantly from what we found in vengeance in vengeance you don't worry about dessert you worry about retaliation and beating down the wrongdoer in his kin you don't distinguish the guilty from the innocent and you don't sweat issues of proportionality all of those elements guilt innocence and proportion are absolutely central to retributive approaches to punishment though moreover unlike punishment as vengeance retributive approaches to punishment do seem to assume that we have free will that is the moral propriety of retribution seems to depend on the view that the wrongdoer possesses free will so under retribution we think that a person deserves to be punished if he's done wrong indeed we we even see this in the modern military one american brigade in iraq had the motto punish the deserving the idea of desert also grounds the retributivist view that only the wrongdoer deserves to be punished his kin aren't responsible for his actions so his brother doesn't deserve to be harmed only the wrongdoer himself deserves the punishment the idea that a wrongdoer deserves to be punished seems to presuppose that the person freely chose their action why is punishing them morally appropriate because they chose to do the bad thing and so they freely brought themselves brought the punishment on to themselves that's key to the idea of retribution although most people regard retributivism as a vast improvement on blood feuds many are also uncomfortable with the idea of retributivism one objection is that it's still barbaric and even grotesque in civilized society do we think it's morally right literally to take an eye for an eye now some people maybe would accept this grotesque implication but there's a there's an obvious response the standard retributivist move here is to say well it doesn't have to be exactly the same as what the wrongdoer did you don't have to pop out an eyeball of somebody of somebody who killed or took somebody else's eyeball out rather the point is to do something that's proportional to the crime so if bill pokes out john's eye we don't pull out bill's eye but we have to inflict an appropriately severe punishment on bill for such a serious offense that's the idea of proportionality that the retributivist wants to retain a deeper objection to retributivism is that it seems to advocate pointless suffering if the suffering that you inflict on the wrongdoer won't produce any good it seems needlessly cruel this is one persistent objection to retributivism the retributivist by his own lights says that he's not meeting out punishment with any concern for future goods he's not trying to create positive goods for something down the line he's just punishing the deserving he's just making the bad guy pay for what he did another standard objection to retributivism and the one that's especially relevant for us is that retributivism is inhumane because it depends on the false assumption that we have free will and that gets us back to our central issue if people don't have free will then the fact that someone is a criminal is just bad luck and it's morally wrong to punish them for bad luck one way to make the point is to compare criminals with the physically ill the criminal the criminal is no more responsible for his criminal behavior than the diabetic is for his poor circulation so the argument goes it's indefensible to take a retributive attitude one that says this guy should be punished towards the criminal it's indefensible that we should punish the criminal because he deserves it but we should nurture and tend to the diabetic the idea that the diabetic doesn't deserve punishment but the equally determined criminal does that the objection goes makes no sense being diabetic is a product of nature being a criminal is a product of nature and so you shouldn't treat them any differently when it comes to punishment this point is illustrated in samuel butler's 19th century satirical novel erawan in that fictional world those who commit crimes are treated with compassion while the physically ill are given long prison sentences and put to hard labor punished and shamed at one point in the novel we get to hear a trial of a person who has pulmonary consult consumption and the judge berates the defendant saying quote yours is no case for compassion this is not your first offense you have led a career of crime you were convicted of aggravated bronchitis last year so again the idea is in this world they punish people they blame people for being sick and the judge goes on to preemptively dismiss any excuses he says quote it is all very well for you to say that you came of unhealthy parents and had a severe accident in your childhood which permanently undermined your constitution excuses such as these are the ordinary refuge of the criminal but they cannot for one moment be listened to by the ear of justice there is no question of how you came to be wicked but only this namely are you wicked or not this has been decided in the affirmative you are a bad and dangerous person this that he's a bad and dangerous person the judge says is indicated by the fact that the defendant had committed one of the most heinous known offenses namely pulmonary consumption and this kind of example is used to illustrate how ridiculous it would be to treat the physically ill in a retributive way the point here is not just that punishment isn't going to make them better making someone pulmonary consult consumption engage in hard labor isn't going to do anything to cure their pulmonary consumption the point is that in addition punishing the physically ill is morally inappropriate when we see the society in erawan that punishes the sick it brings home to us the fact that it's just not their fault it seems so so out of touch so unfair to punish someone for pulmonary consumption but at this point the free will skeptic seems pressed into a corner just as it isn't the fault of the consumptive that he has consumption neither is it the fault of the murderer that he's a murderer he just like the consumptive is a product of nature so if it's morally absurd to seek retribution against the consumptive it's supposed to be equally absurd to seek retribution against the murderer let's turn then to alternative approaches to punishment that are available to somebody who rejects free will alternatives that don't depend on the idea of free will and don't depend on the idea of retribution to see the distinction or to see the alternatives we should recognize a really central distinction in punishment theory generally philosophers draw this central distinction between two kinds of theories of punishment one kind is called forward looking and the other is backward looking backward looking doesn't mean backward at least it doesn't have to mean backward in any sort of pejorative sense what it means is that the decision about whether punishment is morally appropriate depends largely or entirely on what happened in the past by contrast on forward-looking accounts the decision about whether punishment is morally appropriate depends on the future effects of punishing someone so backward-looking accounts say when you're trying to decide whether to punish someone you look backwards and see what happened forward-looking accounts say if you're trying to decide whether to punish someone you look forward to see what you'll get out of it so both vengeance and retribution are backward-looking approaches to punishment what makes a certain form of punish of punishment on those views appropriate depends on who did what it depends on what happened in the past so according to retributivism for instance the question should mcgillicuddy be punished is answered by figuring out whether mcgillicuddy is guilty of some bad action in the past the answer to that question doesn't depend at all on what will happen in the future that is if you want to know whether or not mcgillicuddy deserves to be punished you don't look to the future you see whether mcgillicutty did something bad in the past so as you might have anticipated forward-looking approaches are the opposite they say if you want to figure out whether this guy should be punished you see well what's going to happen in the future now the question should mcgillicuddy be punished is answered on forward-looking accounts by considering the good and bad effects that punishing mcgillicuddy will have now and in the future all that matters is figuring out what we can do now that will have the best effects what happened in the past on this account is morally irrelevant the only reason the past is relevant to punishment at all on forward-looking accounts is because it can help us make predictions so if we know that mcgillicuddy has repeatedly done bad things one after another then this knowledge about the past can inform our decision about whether and how to punish mcgillicuddy because it allows us to figure out what things he's likely to do in the future and what things we can do to make the future better or as good as it can be many philosophers think that the only way to justify punishment is by giving a forward-looking account you say what's done is done we can't change the bad thing that happened in the past the best we can do now is figure out what we can do to make the future as best we can as good as we can try to make the future the best future it can be the contrast between these two different approaches forward-looking and backward-looking is perhaps the most central distinction in the ethics of punishment backward-looking theorists maintain that it just doesn't matter what punishment will do for the future a wrongdoer deserves to be punished and it's a good thing if he's punished end of story a retributivist might think that it's just a confusion to look for future gains when you're trying to decide on a punishment the person who did wrong needs to pay and that's all there is to it one way to play up the full strength of the idea of the backward-looking nature of retributivism again the backward look not backward in the pejorative sense but just that you look back to see whether or not it's an appropriate thing to do goes as follows so imagine that society is completely wiped out except for two people a healthy murderer and a deathly ill judge the judge is about to die but he has it in his power to meet out a punishment to the murderer before the judge expires the retributivity says it would be a morally good thing if the judge manages to enact the punishment before he dies even though it won't improve society at all there won't there's not going to be any more society it won't produce any future benefits to punish the murderer but retributivism says nonetheless it would be a good thing if if the judge does it by contrast forward-looking theorists just find this baffling why on earth should he punish the murderer the whole show is over nothing good can come of punishing the murderer so what matters is not what happened in the past on these theorists according to these theorists but only what we can do for the future the most famous forward-looking approach to punishment is a theory that we've seen from time to time utilitarianism utilitarian accounts of punishment reject the idea that anybody deserves punishment punishment like everything else for the utilitarianism for the utilitarian is right only in so far as it produces good consequences and wrong only in so far as it produces bad consequences everything is right or wrong depending on whether it produces good or bad consequences for the people who are involved punishment will be no exception here punishment will fall in exactly in line with the rest of the utilitarian approach to ethics now utilitarians typically justify punishment by claiming that it will deter future crime that's the positive good that comes out of punishment so when we try to decide whether to punish someone we merely look at the cost-benefit ratio if punishing them will lead to better outcomes than not punishing then we should punish the morally right thing to do is to punish so this is obviously a forward-looking account what we look for what we want to get in the future is whatever future benefits we can as elsewhere utilitarianism just says do whatever it takes to make things the best that can possibly be as we saw in our discussion of utilitarianism in lecture 17 utilitarianism has this distinct advantage that it has no debt to free will it doesn't require that we have free will utilitarians don't care for the ethics it just doesn't matter whether we have free will because all that matters are doing what it takes to get the best outcomes so this approach to punishment gets out of the problem of worrying about whether we have free will and it also avoids what some people think is the barbaric nature of retributivism so you don't have this sort of backward looking view that says we should still punish the murderer even if no good will come of it but utilitarian approaches to punishment have their own shortcomings and the problems are typical as elsewhere in utilitarianism as we've seen their approach in general has extremely bizarre counter-intuitive consequences about what counts as moral and their theory of punishment is exactly the same that utilitarianism will recommend punishment in cases that we find really disturbing so if all that matters is getting good effects in the future then guilt and innocence guilt and innocence are not in themselves morally significant at all utilitarians say punishment should be based entirely on what the consequences will be for the future so the idea of punishing the guilty turns out to be at best kind of a useful strategy but there's no moral reason for punishing the guilty even worse there can be a moral reason for punishing the innocent because all we do when we try to determine whether we should punish someone is we assess whether punishing them will have a good effect if someone commits a serious crime but we know that punishing them won't have any good consequences then we shouldn't punish on the other hand if someone is innocent but we know that punishing her will have really good consequences then utilitarianism says the right thing to do is punish her again this seems even worse when we realize that it's not just that the utilitarian says that it's okay to punish an innocent person the utilitarian says if we don't punish the innocent person when doing so would create the most good our action is morally wrong that if it would create the most good to punish them then we're the morally correct action is to punish them so for any action that leads to overall worse consequences doing that action is morally wrong so again if we discover that punishing a guilty person would produce less overall good it's immoral to punish him and if we discover that failing to punish an innocent person will lead to worse consequences then it's immoral to fail to punish the person there's a related problem about proportionality if we know that wildly disproportionate punishments will have really good effects then we should do that but even if the consequences would be outstanding it seems just clearly wrong to execute someone for shoplifting what we find here is that utilitarianism is odd as it odds with our retributive impulses we naturally think that only the guilty deserve to be punished that people shouldn't be punished out of all proportion and that there's something good and appropriate about punishing the guilty all of that though gets swept aside and thrown in the garbage by the utilitarian machine there are other forward-looking alternatives to punishment besides utilitarianism and i want to talk about two to close out this lecture the best known alternative is the rehabilitation account on this view criminals are sick and need to be fixed they need to be cured rehabilitated punishment for its own sake is cruel and unjustified that what really we need are to treat criminals as if they have medical problems and to make this a little bit plausible think about some particularly horrible case like jeffrey dahmer who killed an eight parts of his victims clearly there was something deeply wrong with that guy his crimes revealed a deep and weird pathology it's very natural to think of dahmer as sick in the literal sense of needing some kind of medical treatment there was something defective about that individual unlike utilitarianism rehabilitation theory doesn't promote punishing the innocent or exercising disproportionate punishment they're not trying to say let's try to get the best social good we can rehabilitation theory is more narrowly focused in that it's not aimed at using punishment however we can to make things better it's focused on treating the criminal as having an illness in need of care but as with utilitarianism a rehabilitation approach to punishment doesn't depend on the idea that people have free will so far then rehabilitation seems like a promising option so it doesn't depend on free will and it seems like it doesn't have some of the problems of utilitarianism although rehabilitation has advantages here some worry about whether it's ethically legitimate to rehabilitate someone who doesn't want to be rehabilitated this kind of issue gets made salient in a clockwork orange in a way because that case shows us in the book in the movie a criminal and the dehumanizing process of rehabilitation although in that the book in the movie actually alex wanted to be rehabilitated because he thought it would get him out of the prison sentence but the consequences of it seemed like they were really pretty terrible and dehumanizing another alternative that also pursues a medical analogy is what people now call a quarantine account of punishment so you can say just as we're morally justified in quarantine people who have dangerous viruses so we're morally justified in quarantining people that we anticipate will pose a danger to society this doesn't require that we try to rehabilitate those who resist such rehabilitation but the quarantine account does have the virtues of the rehabilitation account so one of these virtues is it doesn't depend on the assumption about free will we don't need to blame people for their misbehavior in order to quarantine them any more than we blame them for having the ebola virus that we quarantine them even though we might think it's not their fault at all that they have this condition that they have this contagious disease or that they have this particular propensity to be violent also just as we would do the minimum necessary to quarantine a person with a virus so too we would only do the minimum necessary confinement for a person who exhibits dangerous behavioral tendencies so this kind of view seems more humanitarian than either the retributivist view or the utilitarian view which would say oh it's appropriate to punish people out of all proportion if that would produce the most good so the quarantine model says no you just quarantine them as much as you need to to get the appropriate social benefits of keeping them out of society and helping and sort of preserving us from their dangerous actions one problem with quarantine accounts is that it does seem to allow certain people to get off the hook so if someone commits a crime say spousal murder and we know that the circumstances were so exceptional that the individual will never again pose a risk for in the future then we have no basis for punishing them that is we don't have a quarantine based justification for punishing them we wouldn't quarantine a person who had a serious virus that then then disappeared that they didn't have the virus anymore so if this person who committed a murder was then no longer likely to commit another murder then we would have no justification in terms of quarantine to keep them out of society more broadly the quarantine and rehabilitation theories like the utilitarian theory are really counter-intuitive they run against our ordinary moral views in a number of ways on all of these accounts we have to give up the idea that the guilty in fact deserve to be punished that's at the core of the retributivist view that many of us find really intuitive we also have to give up the idea that worse crimes require more severe punishment really worse crimes just all we do to evaluate them is figure out either what will produce the best outcomes if you're a utilitarian figure out how to fix the individual if you think rehabilitation is the right view or figure out how long to keep them in incarcerated basically to reduce the threat on all of these accounts the only thing that you look at are the future considerations not the guilt of the person not the severity of the crime so they demand these theories demand that we sacrifice our intuitions that the guilty deserve to be punished and that they deserved proportionately severe punishment of course the fact that the forward-looking theories are counter-intuitive doesn't mean that the theories are wrong indeed the free will skeptic might press that the entire idea of retributivism the only reason that seems intuitive to us they could say is because of our false belief in free will once we get rid of that false belief that we have free will we'll have to look elsewhere for a theory of punishment anyway and so we'll have to be willing to accept some of the counter-intuitive consequences that seem to be pushed on us by the alternative theories