To: Dian C.
From: Geoffrey Klempner
Subject: Free will, determinism and the justification for punishment
Date: 17th December 2009 15:00

Dear Dian,

Thank you for your email of 9 December, with your first essay for the Possible World Machine, in response to the question, 'In 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.'

Your answer, which gives prominence to Locke's view of liberty as 'the power of doing, or forbearing to do according as the mind shall choose or direct', lays out the ground rules or criteria by means of which we should approach the 'hard cases'. You have done this clearly and articulately, and I have no substantial criticisms to make of what you say.

However, I think that there is still more that can be extracted from this question.

The American criminal justice system, like the British, recognizes that there can be 'extenuating circumstances'. Most persons, who have not studied philosophy, understand well enough what kind of thing an extenuating circumstance might be. If a person was not in their right mind, or overcome by overwhelming passion, or mentally subnormal, or under the influence of drugs, or unwillingly bullied into doing what they did (or etc.) then they do not deserve the same punishment who someone who was not in this state would deserve.

What is the philosophical principle behind this? That is the first question that we need to ask. What kind of test do we apply in these cases?

One way to approach this is through consideration of the effect that knowledge that the action is wrong is capable of exercising over the mind of the agent. (This obviously doesn't cover the case where the agent genuinely doesn't 'know' that they have broken the law or done wrong, but we can deal with that issue separately.)

As you state, 'The system takes into consideration, as much as possible, the offender's own rationality.' Punishment and blame are measured not just in relation to the crime itself, but also taking into consideration the agent's state of mind, what they intended to do and the degree of deliberation beforehand.

(Interestingly, the law is not only interested in the agent's state of mind but also in what actually resulted. The only difference between murder and attempted murder is in the consequence of the agent's action for the intended victim. The term sometimes used for this is 'moral luck'. A drink-drive motorist who kills a pedestrian and is sent to jail was 'unlucky'. Anyone who drinks and drives is potentially in the same position, but if no-one is hurt the punishment is less.)

Blame and punishment presuppose freedom to act. As the hard cases show, this is not an all-or-nothing matter: there can be degrees of freedom, degrees of accountability.

This leads on to the next philosophical question: what is punishment for? There are strongly opposed theories of punishment: on the utilitarian or consequentialist view, punishment can only be justified either as a deterrent, or as a means of changing or 'rehabilitating' the behaviour of the offender. On the 'retributivist' view, punishment is justified because it is what the offender deserves. These differing views have the potential to lead to different judgements about hard cases.

However, there is a deeper question still. And this is what the essay question was ultimately searching for: we are prepared to consider things that have an effect on 'the offender's own rationality'. What is it to be rational? Consider the mind of a suicide bomber. Take someone apparently intelligent, not a victim of brainwashing or under the influence of drugs, whose belief system has evolved into a world view where it is perfectly rational and justified to murder hundreds of innocent people. The law does not consider this to be an 'extenuating circumstance'. Why isn't this seen as a case of insanity?

If we are tempted to waver at this point, it seems that we are on the edge of a slippery slope. The hardened criminal who sees bank robbery as a perfectly rational way to make a living, has a belief system, a 'world view' which has somehow become fatally skewed from our perspective.

Here is where the utilitarian/ consequentialist view of punishment sharply deviates from the retributivist view. The utilitarian would say that in meting out punishment we are merely seeking to produce the 'best' consequences. The principle behind every case is the same. In effect, this views criminals and terrorists merely as 'suitable cases for treatment'. If a cure cannot be effected, and the danger is considered to be sufficiently high, then the only recourse is to keep the offender locked up for the safety of society.

On the retributivist view, by contrast, serious crimes merit equally serious punishment. There will still be 'cases for treatment', where a court is prepared to accept a plea of insanity. However, for the rest -- and allowing for greater or lesser extenuating circumstances -- the punishment must 'fit the crime'. The harm that the criminal has done to his/ her victim and to society must be 'paid back'.

All the best,

Geoffrey