Quick preface (added in 2014). I argue in the below essay that people don’t deserve to be punished. I haven’t looked closely at it since posting it in 2013 (I probably need to revisit and update), though I remember the gist, and that it need not be seen as an argument against free will. Suppose a human has free will but has a very limited range of options available due to being physically enclosed in an iron box. This sort of intervention on one’s range of options is what I’m concerned with here. In the case of the iron box, or of your older sister’s “stop hitting yourself” game, the intervention is clear. When a brain tumor is pushing against your amygdala, or your range of options is limited due to some sort of real or imagined restriction placed on one’s options etc… it’s not so clear.
We might decide that such restrictions, in some or all cases, effectively remove the person’s free will (if it was there to begin with). For example, you might say that when the restriction comes in the forms of unchosen desires, and unchosen desires about those desires… well, that’s just what we mean by lacking free will. Maybe so. But this isn’t what I’m arguing for or relying on here. The upshot of what I’m arguing is that it’s possible to have free will and still not deserve to be punished for having committed a wrongful act due to one’s limited range of choices. I will also argue, however, that actors still often should be punished (in a certain sense) for wrongful acts; given the lack of desert, however, this should not be done within a retributivist framework.
I’ll also note that we are, with or without free will, responsive to reasons. Just as yelling “fire” contributes a reason to running out of a room, so might punishment contribute a reason for (or influence on, etc.) not performing an act again.
Finally, at the time I wrote the essay (for a course I took in 2012), I believe I was agnostic about free will. Or maybe continuously wishy-washy is better put. But I didn’t think that mattered to the argument. Still, I was moved in 2013 (when I published this post) to add an Addendum declaring that I’d become convinced of free will’s nonexistence. And soon after that I added a second Addendum hedging on that conviction, pointing out that I did believe we have some sort of free will. I include both Addenda below. I wonder what I’ll think in another two years.
In his essay, “Punishment and Desert,”1 James Rachels states, within his Principle of Desert, that “people deserve to be treated in the same way that they have (voluntarily) treated others.” He then goes on to argue in favor of a retributivist application of this principle in cases of criminal behavior. The conclusion of all this could be boiled down to: People who commit crimes deserve to be punished, and therefore should be punished. I disagree with Rachels here, and instead hold a view that could be boiled down to: People who commit crimes do not deserve to be punished, yet they must be punished. This lacks a “therefore” because it falls within the purview of a greater argument, simply stated: People who pose a danger to society must be restricted in their engagement with society; this restriction constitutes a punishment in that it removes benefits (possibilities?) from, and causes harm to, those so restricted; therefore, as punishment cannot be avoided, such people must be punished. What I’m most concerned with here, however, is not justifying punishment, but rather arguing against Rachels’ notion of desert, as notions of punishment follow from notions of desert.
In Rachel’s story of Worker and Slacker, in which the former deserves a promotion over the latter due to having put in exceptional efforts at work, Rachel appeals to our intuitions to show that “what people deserve always depends on what they have done in the past.” Let’s challenge this intuition by applying a few more details to the story. Suppose the promotion involves high-stakes tasks requiring great skill, and a test is administered to determine the best candidate. Slacker wants the promotion because it pays more, so she takes the test, and, thanks to her natural talents, beats out Worker for the job. Rachels could respond to this by pointing out that her getting the job seems to be a breach of our intuitions surrounding desert, and that it seems somehow unfair to Worker that he didn’t get the promotion (though Worker still should be treated well at work). Rachels might say that this tells us something important about desert in cases of criminal guilt, a realm in which we give out punishment based on desert, not tests. I’ll look at desert in criminal cases in a moment, though right now I’d like to focus on Rachels’ response to the role played by Slacker’s natural talent.
Rachels’ solution for reconciling discrepancies between natural endowment and desert comes out of his refutation of John Rawls’ claim that people don’t deserve anything because native endowments are a matter of luck. Rachels’ response is simply that desert is determined based on the extent to which a person maximizes her natural endowments. This is not, however, an effective refutation of Rawls. Suppose Person A and Person B appear to possess the same endowments as we usually conceive of them. And yet, operating within essentially the same circumstances, Person A excels beyond Person B. There’s a temptation to say that Person A did a better job of maximizing their endowments. I claim, rather, that this actually indicates that Person A has some endowment Person B lacks. Namely, whatever endowment makes it possible for Person A to excel—whether it’s greater motivation or a higher metabolism or a tendency to desire healthier food. In the end, we see that the ability to maximize one’s endowments is itself an endowment and, as all with all endowments, a matter of luck. Returns on ones endowments are therefore also matters of luck, not desert.
Next, Rachels turns to moral deserts, in which his most effective argument is illustrated by “the case of a forced choice” in which I must decide whether to help either Smith (who previously shunned me) or Jones (who previously helped me). I would choose to help Jones, as Rachels predicts. And, though it is conceivable that I could tell myself that I’m helping Jones for a variety of reasons (such as to be sure he’ll help me again next time), it is clear to me that these situations usually do have a strong element of desert for us; that is, a strong feeling that desert is at play. However, a closer look at these cases reveals that we tend to use notions of desert quite arbitrarily, which works against the notion that lawbreakers deserve to be punished (in the usual sense of the word “punished,” that is; more on that in a moment).
Desert, thought of in a relational sense (between friends, family, acquaintances, etc.), is very useful, and perhaps necessary, but it’s not a literal force, like gravity or electromagnetism. Rather, it’s a concept that we associate with certain kinds of intuitions and emotions. Imagine that John’s friend Mary wishes to take time off from work to celebrate a good grade in school. When John says, “You deserve that,” he need not necessarily be thinking of what she has actually done in school. He may mean something like, “I value you as a person, and I recognize that you need a break to stay sane, therefore I agree that you should take some time off to reward and enjoy yourself.” This sort of application of the concept of desert occurs in many forms, such as when we tell a friend who barely tries yet gets A’s and wins awards that she deserves her spoils, and when we do not tell our friend that he deserves his C, despite having tried hard. We are not lying when we are inconsistent about desert, rather it is a natural application of our feelings about desert to revise the concept as we go along.
This is all well and good for relational cases (i.e., cases among friends and family who are interacting in more or less everyday situations). However, when it comes to criminal cases and punishment, what I’m interested in showing is not whether it is a useful concept, but whether it is true in actuality that people deserve to be punished. This is a distinction that needs to be made clear. For example, Rachels writes that the “deepest reason why desert is important” is that it gives people control over how others treat them. While I think that there are other ways to effect this sort of control (e.g., based on the sorts of outcomes one can expect from certain kinds of behavior; one need not deserve these outcomes), it’s enough to point out here that the usefulness of desert does not prove that anyone deserves anything in actuality. Indeed, the arbitrary nature of the concept within the relational examples exposes the dangers of transferring the intuitive idea of desert to a legal system of punishment, to which I’ll now turn my attention.
Rachels lists four principles that make for a just system of punishment,2 the fourth being the allowance for excuses that relieve the accused of responsibility—or at least that modulate extents of responsibility—for outcomes. For Rachels, excuses are clear instances of anomalous factors that directly contribute to behavior and outcome, such as when someone is coerced to do something at the point of a gun, or when a driver hits a pedestrian who jumped unexpectedly in front of the driver’s car. It seems to me, though, that Rachels’ conception of what counts as an excuse is far too simple in its reliance on obvious and immediate influences. All acts have sources not attributable to the actor, whether it’s a detectable brain tumor, a lack of good judgment due to an extremely low IQ on top of a bad childhood and persistent adverse external pressures,3 or an overly hyper stress response system that results in irrational and dangerous behavior when an actor is faced with moral choices such as, “Do I rob a store to get money now, or do I enter the federal work program that will help me get a job later that I hate and for pay so low I’ll still be on welfare?”
Likewise, the person with the decent childhood and at least average IQ who chooses to drug and rape a young woman once in college is acting under—has given into—the pressure of influences to which, while most of us (let’s presume) would not give in to them, for some unknowable reason (some combination of nature and nurture) his disposition, at the moment in question, was sensitive. This is, of course, the sort of hard case I most need to address (however uncomfortably), precisely because it is the toughest sort of case for those skeptical of desert to address.
It feels wrong to say that a criminal act should be viewed as, in some large part, the result of uncontrollable influences when, more or less: intentions align with outcomes; the actor is of sound mind and is aware of the legal and moral consequences of the act; the act violates a clearly just law. Digging deeper, though, some aspects of these criteria become thorny. Perhaps the rapist’s intention, to some significant degree, was to win favor with a fraternity, an intention bolstered by pressures from friends, family, and society—i.e., a society that tends to blame women for such heinous acts while steeping young men in a culture of lethal masculinity—to excel at whatever cost while in college (this aligns with the oft-cited thesis that such assaults are often, at least to some significant degree, about power).
While this clearly and by no means justifies or excuses his horrible act, it does point to the need to be as clear as possible when determining extents of responsibility—i.e., when considering what the actual underlying causes of an act are—while assessing what sorts of harms to cause the wrongdoer in the form of punishment, particularly if what we’re looking for is a solution to what may be a larger or ongoing problem (e.g., dismantling lethal masculinity, starting with young boys). If we simply accept the notion that a behavior autonomously arises from a person, making that person solely to blame for the act, this is not only inaccurate, it also avoids larger systemic problems—it avoids the full complex of underlying causes in favor of retribution. It may also promote the demonization of entire classes of people with high rates of crime and incarceration (e.g., those in poorer classes), who come to be seen as deserving their lot as a group.
Desert, then, is useful in the relational sense, however, due to its arbitrariness, societal generalizability, and lack of a clear definition, it should be avoided in criminal cases. Also, while it is not within the scope of this essay to describe the system of punishment that would operate outside of a concept of desert, I will point out that Rachels’ four principles of justice seem like a good starting point, with Excuses being an area in need of reframing so that, rather than looking at obvious external influences, it looks to the likelihood that the actor’s behavior will recur, and whether the behavior was the result of an anomalous influence (gun to head) or a persistent one (pressures from a lifetime of adverse circumstances or toxic behavior-shaping pressures).
To be clear, I am in favor of replacing the current notion of punishment with something containing less of a blame-oriented connotation, however I think that it would be impossible to do this initially. Also, when we remove a person from society, even for the sake of rehabilitation, it will be perceived by the detained person as punishment. And perhaps there is a useful, even necessary, relational application of punishment in the same way as there is in the application of praise. For example, it’s necessary that students who perform well receive good grades, and that those who perform poorly receive bad grades. I argue that neither technically deserves her grade, but this doesn’t remove the need for a performance-based grading system. Altering our notion of desert, however, would alter the way in which we view and approach students who perform well or poorly. Also, it seems to me that, in legal case, using some other word than “punishment” results in a transparent euphemism that neglects the reality of the harm caused by incarceration of any kind.
The closer we can get to understanding how behavior is influenced by less obvious and less immediate factors—including not just genetics, but also prenatal environmental influences—the more we can appropriately determine what restrictions to apply to an actor’s agency in the world, so as to cause no more harm than is required to that actor and his family. That is, we can better determine the severity of punishment in proportion to the likelihood that the actor will commit the act again. This is a much different picture than Rachels’, in which an actor is treated badly precisely because he behaved badly, and in which desert “alone is sufficient to justify punishing” an actor, and in which excuses are only granted when mitigating influences are directly observable and relatively easy to categorize.
Second, Most Recent, Addendum (from 2013): My claims in this essay clearly bring up questions surrounding free will. I won’t get into that discussion here, but will note that I believe that we do have free will in the sense that we can participate in our own causal influences as intelligent, conscious agents; especially when we’re aware of the limits of our free will (for example, though we can make choices about whether and how to act on our desires, we can’t choose the nature and content of our desires, at least not many of them). To be clear, though, this sort of free will is not so limited that we cannot be considered responsible for our actions. I’m currently especially interested in what recent psychological studies reveal to us about this topic, as well as the usage of language as a tool for facilitating self-creation. More on this later…
First Addendum (from a little earlier in 2013): I wrote this essay several months ago, at a time in which I was still reconciling my own compatibilist intuitions regarding free will, which have since resolved in favor of the complete non-existence of free will in humans. This doesn’t change anything I’ve written here about desert and punishment, but it would lead me to make the case more strongly that every act a person commits is the result of some elusive, unknowable combination of factors that were not consciously chosen, authored, or otherwise designed by the actor. My use of the word “pressure,” then, would need to be distinguished from a causal influence.
For example, two people might experience the same external pressure to rob a store, but one does and the other doesn’t. The pressure doesn’t cause the first guy to rob the store, but there are underlying factors (which I refer to above as “sensitivity”) that cause him to give in to those pressures. This is not a subtle distinction. We are all tempted all the time, and who we are is largely formed by the sorts of things that happen to tempt us and for which we feel desire (which is out of our control), and the extent to which we succumb (happily or unhappily) to this or that temptation/desire (here, we do have a limited ability to exert influence, though this shouldn’t be confused with free will).
I’m not going to expound on the question of free will per se, as there is already a tremendous amount of writing on the subject from philosophers and scientists, but there are some related ideas I’d like to comment on. For example, we don’t have free will (indeed, the notion becomes more nonsensical the more one looks at it), but we can participate in our own causal influences and can make ourselves more into what we desire to be, in part thanks to realizing that we don’t have free will (what we desire to be is ultimately out of our control, however). It’s also the case that responsibility need not go out the window along with free will. Language, too, has an interesting role to play in all this. More soon.
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- Originally appeared in Ethics in Practice, edited by Hugh LaFollette (Oxford: Basil Blackwell, 1997), pp. 470-479
- (1) Guilt: Only the guilty may be punished; (2) Equal Treatment: People who have committed the same crime should get the same punishment; (3) Proportionality: The punishment should be proportional to the crime. (4) Excuses: People who have good excuses should not be punished, or at the very least, they should not be punished as severely as if they had no excuse.
- The word “pressure” should be distinguished from the idea of a causal influence. For example, two people might experience the same external pressure to rob a store, but one does and the other doesn’t. The pressure doesn’t cause the first guy to rob the store, but there are underlying factors (which I refer to above as “sensitivity”) that cause him to give in to those pressures. This is not a subtle distinction. We are all tempted all the time to some degree or another, and who we are is largely formed by the sorts of things that happen to tempt us and for which we feel desire (which is out of our control), and the extent to which we succumb (happily or unhappily) to this or that temptation/desire. We do have a limited ability exert influence (e.g., through so-called “willpower”), though this shouldn’t be confused with free will, and is itself an expression of what we desire our desires to be.