To: Anthony K.
From: Geoffrey Klempner
Subject: Determinism as a defence
Date: 6 December 2007 12:47

Dear Anthony,

Thank you for your email of 28 November, with your essay for Possible World Machine, entitled 'Determinism as a Defense'.

The original question was, 'In the light of the critique of 'free will', can blame and punishment ever be rationally justified? Consider hard cases, such as brainwashing, crimes of passion, the influence of drugs, medical or psychological conditions etc.'

This is a well written essay, for the most part. From the point of view of grammar, in a couple of occasions you started sentences with 'If...' but there was no 'then..'. There were some surprising spelling errors (like 'natageve' for 'negative') which suggest that you need to make better use of your spell checker.

Your answer to the question takes the line of a determinist theory of punishment. One noted philosopher who defends this view is Ted Honderich. You can probably find something about Honderich's views on free will and punishment if you search on Google.

Your reasoning for this conclusion is mostly sound. However, there are some aspects of the problem which need to be gone into more fully.

Society needs to be able to enforce a code of behaviour, otherwise we will 'implode on ourselves'. That is your main point. How do we decide who is fit to punish and who should be let off, or given treatment in a mental hospital? A crude but effective criterion is to consider whether they would have been deterred by the imminent threat of punishment.

The bank clerk who hands over the money to a robber at the point of a gun would not have been deterred by the imminent threat of punishment. That is why he is exonerated for his part in the crime. Punishment works as a deterrent against persons who have the ability to make choices for themselves. That lets off bank clerks threatened with guns, and also, arguably, people suffering severe psychological compulsions, such as kleptomaniacs (although it could be argued, on the other side, that a death penalty combined with the certainty that they will be apprehended would be sufficient to deter many kleptomaniacs from stealing).

Yet even this simple and relatively clear cut criterion runs into trouble. In the First World War, British troops who refused to go 'over the top' and face almost certain death at the hands of German machine gunners were subsequently executed by firing squad for cowardice, implying that still had the freedom to choose to face the machine guns. US marines who guard nuclear missile silos are presumably required to sacrifice their lives if necessary rather than give terrorists access to nuclear weapons.

The main argument against a determinist theory of punishment, however, is that it fails to distinguish between cases where, intuitively, we feel punishment is 'deserved' and cases where it is not deserved. A good case can be made for the practical efficacy of preventive punishment, e.g. where innocent youths are given a good beating and told, 'This is what you will receive, and more, if you become delinquent.' The idea strikes us as outrageous. But why? Isn't efficacy the only consideration? If not, why not?

The British philosopher F.H. Bradley (in his book 'Ethical Studies') gives the example of the 'Master of Hounds', before the fox hunt, giving his dogs a good thrashing, 'just to show who's boss'. We don't do this with people because we have a notion of justice, or when a punishment is 'deserved'.

Towards the end of your essay, you consider some hard cases for deciding whether a person is responsible, but I don't think that you find these cases hard enough.

There are many examples where courts have genuine difficulty in deciding whether the defendent was responsible or not, or indeed whether there are grounds for 'diminished responsibilty' (an alternative which you do not consider). E.g. the abused wife who stabs her husband with a carving knife gets a lesser punishment than she would have received if she killed him to get the insurance money. What is the rationale for this judgement?

It is true that we consider a drug taker responsible for taking the drugs that subsequently led them to commit a serious crime. However, deciding the extent of responsibility for that crime is not simply a matter of deciding whether or not they freely chose to take the drug. This case is similar to deaths caused by drink driving, where the motorist is severely punished, but not for 'murder in the first degree'. It is wrong to drink and drive, and worse if, by some unfortunate circumstance, death results. But this wrongness is still not comparable to the wrongness of cold blooded murder.

The Patty Hearst case is a famous example where debate continues to this day whether the kidnapped heiress should have been punished for her part in the bank robberies committed by her captors, the 'Symbionnese Liberation Army'. She didn't choose to be kidnapped. She didn't choose to be brainwashed. And yet, or so the jury were persuaded to believe, the person they were convicting was the person that Patty Hearst had become, a terrorist and a criminal, not the innocent girl who was kidnapped many months before.

All the best,

Geoffrey