In what sense do people deserve to suffer once we see that their character and behavior are entirely the result of genetic and environmental factors that they didn’t choose? Why shouldn’t we, instead of relentlessly and punitively imposing “just deserts,” address these factors, and so make criminality less likely without unnecessary suffering? Although extended, these exchanges illustrate the sorts of rhetorical ploys (e.g., focusing strictly on the individual, implying that compatibilist freedom carries the same implications as libertarian free will) that are necessary to sustain retributivism in the light of naturalistic causality. Despite the fact that I pose it several times, Hill never answers the question asked by the title above (I’ve put this reiterated question in italics in the text). I’m suggesting that, if one accepts naturalism, there is no good answer.
David Hill writes (round 1)
Let me consider one clear mistake that Robert Wright makes, a mistake typical of moralists of his kind. He writes, "Once you see the forces that govern behavior, it's harder to blame the behaver." (The Moral Animal, p. 348) This is often taken for a truism, but is in fact plainly false. My brother was murdered some years ago, and not surprisingly I took an interest in his killers. I learned something about their motives, which were in fact easy enough to understand. The more I knew of them, the more culpable they appeared. I do not doubt that their actions can be interpreted as a complex of hereditary factors and environmental influences. The killer was predisposed to violence (had been all her life). She was a bomb waiting to go off, and it may be that this disposition had genetic causes. This did not make her appear less culpable. It explained and illuminated her culpability. Wright is unaware that there are good grounds for holding that determinism and free will are compatible. For a much more enlightened discussion (despite occasional confusions), see Pinker's Blank Slate (174-180).
David, could you clarify how culpability (by which I take it you mean the agent-specific responsibility for an act such that one deserves blame and punishment) is explained and illuminated by adducing all the influences, environmental and genetic, which produced the individual, her propensities for violence, and the ensuing crime? If one accepts determinism, as you do, then on what grounds should we not look outside (as well as inside) the individual and distribute responsibility (“blame”) for the crime to the various factors that produced the person and her act? Such distribution seems to me not only empirically more accurate, but prompts us to address (“hold responsible”) the environmental and genetic causes of violence, which is far more likely to avert future tragedies than simply attributing violence to the free will of the offender.
As for Pinker, it seems he doesn’t think that free will and determinism are compatible, since he says on page 180 of The Blank Slate that:
“But how can we have both explanation, with its requirement of lawful causation, and responsibility, with its requirement of free choice? To have them both we don’t need to resolve the ancient and perhaps unresolvable antinomy between free will and determinism. We only have to think clearly about what we want the notion of responsibility to achieve.” (my emphasis in second sentence)
The notion of responsibility, construed (properly, in my view) as applying to fully determined human agents and the environmental and genetic causes that produced them, should allow us to achieve quite a bit in terms of reducing unnecessary suffering. If we construe it only to apply to agents who simply and primarily deserve punishment (why, precisely?), then we won’t move much beyond the punitive, violence-perpetuating status quo.
Hill (round 2)
I don't know whether determinism is true or not (or which version of it may be true). I am confident, however, that any form of determinism is compatible with freedom. In most cases, hideously guilty persons are solely responsible for their crimes. That is, rarely will a detailed knowledge of such crimes "spread the blame." This is compatible with saying that various influences made these persons what they turned out to be. All goal-directed behavior is reactive and contextual. That is, all such behavior aims at goals that in different circumstances would not have emerged as goals at all. If Smith had never met his wife, he would not have married and later murdered her. And there may be a thousand little things (genetic and environmental) that are relevant to the murder. In all probability, none of this will be exculpatory. You could probably know everything there is to be known about Smith's motives, and about the circumstances in which he came to have those motives, and not be any the less impressed with his evil and his guilt. Freedom is incompatible with certain things. It is incompatible with coercion. It is incompatible with certain kinds of madness. It is not incompatible with causation and influence.
How the concept of freedom changes under naturalism (1) (Clark, round 2 response)
If I know the causal history of Smith and his motives, and believe that those circumstances fully account for his hideous act, then I am much less impressed with his evil and guilt as a self-originated attribute for which he alone must be held responsible. In other words, my concerns track the causality. Given the causal story, I am much more impressed by the importance of addressing the conditions that led to the horror so such that it doesn’t repeat itself, in which case the acute, prolonged suffering of Smith (for that is what punishment as deserved is intended to achieve) becomes secondary, perhaps counterproductive, if the concern to create conditions which reduce the likelihood of future Smiths.
Smith’s freedom consisted only in the fact that he wasn’t insane and wasn’t coerced, which as you say is compatible with being fully caused. This is quite different from libertarian freedom which is traditionally used to justify retribution, the freedom that supposes that the individual originated his actions in some sense independently of causes, and so fundamentally deserves to suffer. Of course it’s natural we will want to harm Smith if he harmed us or our loved one, but the unrestrained fulfillment of that desire may be incompatible with achieving a less violent society. Contemplating causality can help keep retributive passions in check.
Hill (round 3)
On page 180 of The Blank Slate, Pinker is inconsistent on this point [about the compatibility of free will and determinism]. He promotes compatibilism and in the next few lines suggests incompatibilism. But the drift of the discussion is to use compatibilism to avoid charges that explaining behavior excuses crimes. Explanation of this kind, he insists, is not exculpation.
Clark (round 3 response)
Explanations don’t, of course, mean that the offender is free to go, since we want to deter similar behavior, keep dangerous people off the streets, and reform individuals when possible (at least not make them more dangerous and depraved). But by illuminating the causes of crime, explanations help us see that the offender is not self-originating, and so help turn retributive rage into a productive determination to address these causes.
Hill (round 4)
The notion of responsibility surely can permit the recognition of outrageous evil that ought to be punished without in any way inhibiting studies of ancillary causes of bad behavior. If researchers can show that by doing X or not doing Y we can reduce the incidence of, say, murder, then fine. No one is so eager to place blame that they would oppose reduction of criminal behavior! The point is simply that (as Pinker says) explanation is not always (and really not often) exculpation.
It might well be the case that abolishing punishments that model killing and brutality (e.g., the death penalty in the US, unnecessarily harsh prison conditions) would help reduce the incidence of violence. It’s the retributive impulse that fuels support for such punishments, so a compatibilist understanding of freedom which undercuts the libertarian justification for retribution is to be welcomed. A flurry of recent books including Owen Flanagan’s The Problem of the Soul, Dennett’s Freedom Evolves, Derk Pereboom’s Living Without Free Will, Patricia Churchland’s Brain-Wise, and Pinker’s The Blank Slate, are breaking the news to a wider public that the ghost in the machine is a fiction, so the concept of desert is being deprived of its traditional basis in the contra-causal self. I don’t think naturalized notions of freedom, responsibility, and desert (if indeed desert can be naturalized) support the retaliatory justice that’s typical in the US.
Hill (round 5)
Tom Clark expresses very clearly the view that many of us grew up with and (I hope) has begun to recede. (See below.) What this view fails to take account of is that (a) we cannot in fact track the causality and (b) even if we could there is no reason to think that what we would find would be exculpatory. If we can reduce the likelihood of future Smiths, all the better. But this in no way diminishes the blame that Smith properly receives. The notion that in order to be free the individual must have "originated his actions in some sense independent of causes" harks back to the Kantian notion of a self that generates its actions independently of any other cause. Given that human action is inevitably reaction, this is incoherent. Thus either freedom is compatible with causation (external and internal) or there can be no freedom at all. The former thesis is in every way the more plausible.
Actually, we are getting better and better at tracking causality, which is why the libertarian conception of freedom involving a contra-causal self has been exposed, as Hill rightly says it is, as incoherent. Hill believes that discovering the causes of behavior has, or should have, no effect on our tendency to place blame on the agent. But if, as I have argued, the appreciation of causes tends to widen the focus of our concern beyond the individual who has transgressed, then it seems to me our penchant for retributive punishment, up until recently justified by untenable libertarian conceptions of freedom, should be moderated in favor of less punitive regimes of incarceration, abolishment of the death penalty, and emphasis on rehabilitation, community restitution, and other criminal justice policies which work to prevent, not reinforce violence.
Hill’s emphasis on blame suggests (although he hasn’t explicitly said so) that he favors retribution as a primary aim of the law, and wouldn’t support the policy changes I recommend in the light of a naturalistic understanding of human behavior and violence. I’m curious about the rationale behind such positions, if indeed he holds them. Hill hopes my view is starting to recede, but it would recede more rapidly if he could articulate precisely how, as he originally put it, the causal story “explains and illuminates” an individual’s culpability (see Exchange #1).
I hope Tom Clark and I are not writing solely to and for ourselves, as I think he has successfully focused the disagreement between us on a point of real importance. He is exactly right to infer that I regard retribution as a primary aim of the criminal law. Suppose (as he suggests) that the steadfast pursuit of retribution inhibits the prevention of violent crime. Since the latter also is a primary aim of the criminal law, this threatens to undermine the entire enterprise. I am not convinced that retributive measures have these unhappy effects. It is always a possibility that some retributive measures do and some do not, in which case we would favor those that do not. However, I will leave that discussion to others.
I’m glad David Hill thinks that pursuing retribution should comport with the goal of reducing violence, since for some, e.g., Michael Moore, retribution trumps all other aims of criminal justice (see his book Placing Blame and my review of it). I think it’s unquestionably the case that deliberately harsh prison conditions, designed to give offenders their just deserts, further brutalize and dehumanize those who might otherwise have avoided the fate of violent recidivism. If I’m right about this, Hill might agree with me that such punitive measures, even though they serve the aims of retribution, should be abolished. Similarly, if it were shown that capital punishment, perhaps by modeling (and thus implicitly sanctioning) retributively motivated killing, actually increased the incidence of murder, then Hill might again agree that this practice too should be abolished (there are, of course, other good reasons to end it). The general question is the balance we should strike between affording retributive satisfactions and preventing violence, since (despite Hill’s optimism) these may well be incompatible to a great extent.
Assume compatibilism (broadly, the thesis that freedom of action and behavioral causation are compatible). How can this perspective, linked to a specific causal analysis of a specific instance of criminal behavior, explain and illuminate the criminal's culpability, and hence support retribution? I think that both factors do so, at different levels. (a) If compatibilism is correct, we see that what Kant would call heteronomy -- the involvement of a network of external and internal causes in individual behavior -- is consistent with an individual's dignity as an agent, i.e., with his freedom and his praiseworthiness or culpability. We can treat people as genuinely free actors even as we investigate the causes of their behavior. The use of biology as a powerful and general source of behavior-explanation is thus apparently consistent with a broadly humanistic respect for persons. It does not force us into a revisionary psychology that dispenses with persons, agents, and responsibility.
It is crucial to see that on a compatibilist understanding of freedom and moral responsibility, being a “genuinely free actor” is quite different from what it was under the traditional libertarian understanding of agency (Owen Flanagan makes this point in The Problem of the Soul, pp. 126-7). Agents are fully caused, not self-originated, and their freedom of action consists only in the fact that they have the capacity and opportunity to act rationally on the basis of their character, needs, wants, motives, and concerns; that is, free agents are (most basically) neither coerced nor insane. Such freedom makes them moral agents since moral and legal rules can engage this capacity, and thus guide behavior. Such agents can and should be held responsible since, based on their presumptive freedom, holding them responsible (and the prospect of being held responsible) makes them more likely to behave morally, while serving to put other such agents on notice (for details see “Materialism and Morality: The Problem with Pinker”, and “Science and Freedom”). Note that on this revisionary account of moral responsibility (revisionary since it dispenses with libertarian free will) persons and their freedom, dignity, and responsibility are still quite real, but backwards-looking retributive desert plays no role. Instead, moral and legal sanctions and rewards are the forward-looking shapers of desired behavior; as law professor Stephen Morse puts, it they “guide goodness” (see his paper “Guiding Goodness”). On this account, purely retributive punishments, which are ordinarily justified by the existence of the libertarian agent and whose primary aim is to maximize the suffering of the offender (and which often end up worsening moral and legal compliance, see above), are no longer applicable.
Hill (round 8)
(b) My brother was murdered. His murderer acted out of false beliefs about his actions (she thought, incorrectly, that he had mistreated her girlfriend). She was prone to extraordinary jealously and possessed a hideous temper. These are dangerous traits, and when acted on, can produce great evil. Certain possible discoveries about the source of these traits might reduce our inclination to blame her for her traits. If we find that their source was an illness, injury, or severe abuse as a child (one can generate other possibilities), we might see her as pitiable as well as dangerous. If, however, we find that she developed her criminal tendencies simply in the process of going through life, if we come to think that she was dispositionally defective from the start, then we find it much easier to blame her for developments which she as a rational agent should have noted and struggled against (but did not). In such a case, we find it much more plausible to see her as a fundamentally evil person whom we can hate, despise, blame, and punish with a clear conscience.
The causal story of morally responsible agent #1 who “developed her criminal tendencies simply through the process of going through life” will be just as definitive, causally, as the story of another morally responsible agent #2 who is subjected to highly visible traumas and unfortunate life circumstances that obviously affect traits (e.g., “illness, injury, or severe abuse as a child”). To produce equally horrific behavior, the causes for #1, even though they were (let us assume) gradual, hidden, and insidious, must have been of more or less equal power as those for #2. Holding the crime constant, and assuming both our agents are more or less rational and uncoerced, the judgment that #1 is fundamentally evil, blameworthy, despicable, and hateful, is only a matter of the invisibility of the causal factors, an emotional response to the fact that we can’t see how the character before us was shaped. Causal obscurity makes agent #1 seem more self-originated, and thus more deserving, in the traditional libertarian sense, of punishment. Our “clear conscience” in applying retributive punishments, whose aim is solely to produce intense, prolonged suffering on the part of the offender, therefore depends on maintaining ignorance about the offender’s causal history, especially the causes of her failure to sufficiently notice and struggle against the factors which led up to the crime. None of this is to deny the horror of the act or the need to apply sanctions or restraints (which may well differ depending on the characteristics of the offender), but it is to deny that evil somehow necessitates retribution as opposed to containment and prevention.
Hill (round 9)
Now suppose we acquire further insight into her [my brother’s murderer’s] basic defect. Suppose we can locate genetic components that explain her unfortunate initial disposition. We are then in a position to say that we know why she does violence, and also (equally plausibly) why she is evil. Either of these is a reasonable explanandum. What I protest against is the assumption that the former is a proper explanandum but the latter not only is not, but simply disappears from the analysis in light of the success with the first explanandum. Successful pursuit of the causes behind behavior will sometimes be exculpatory. Much more often, it will serve to provide us with an elaborate gloss on moral pathology. That moral monsters be understood is desirable. But a robust sense of right and justice requires that they also be punished. It makes precisely as much sense to condemn and punish the evil as it does to praise and reward the good.
Given his example, I’m not sure what the difference is between Hill’s two explananda, doing violence and being evil. It is surely evil to commit, for instance, pre-meditated, unprovoked first-degree murder for pleasure or to achieve some selfish end. But evil does not disappear in the light of success in explaining why the murder occurred, rather evil gets explained and therefore naturalized. Explaining evil is, as Hill says, to shed light on moral pathology, and as pathology it may eventually be healed through the causal understanding of human behavior. To pathologize evil is not, as some think, to risk demoralization, since even without retributive justifications for punishment we still have excellent reasons to treat rational, uncoerced offenders as what they are, namely moral agents liable to sanctions and constraints. Once we’ve discarded the myth of libertarian free will, a robust, fully naturalistic sense of right and justice need not require offenders’ acute and prolonged suffering as a primary aim of the law, since there are better, less punitive ways of bringing about the sort of society most of us want. I’ll close with a quote from Janet Radcliffe Richard’s excellent book, Human Nature After Darwin (p. 210, her emphasis):
"...if we understand that there are good *evolutionary* reasons for our wanting people to suffer when they have done direct or indirect harm to us, then we can account for our strong feelings about the appropriateness of retribution without presuming they are a guide to moral truth.... We may be able to recognize our retributivist feelings as a deep and important aspect of our character - and take them seriously to that extent - without endorsing them as a guide to truth, and start rethinking our attitudes toward punishment on that basis."
Hill (round 10)
I disagree with Tom on what I take to be the fundamental point at issue. An offender whose descent into degenerate, criminal behavior was impelled by freely chosen acts is on my view more culpable than one who did not choose any of the causes of that descent. He says I think this only because the factors involved are harder to see in the former case. Thus, if an offender was struck in the head with a blunt object and was subsequently inclined to criminal behavior, we are more likely to let him off the hook than if he simply made a lot of bad choices leading in the end to a degenerate character. We are more likely to say this because we see the cause, whereas in the latter case we don't. Indeed, he thinks, in the latter case we slip back into an assumption of Kantian autonomy, supposing the acts involved in the degenerate descent to be uninfluenced by external factors. I deny all this. The causes may be obvious in either case, and anyway I am willing to stipulate their existence. I am willing to stipulate equivalent efficacy. What matters is that the agent effectively chose his own degeneration. He (or she) freely chose to do A, B, C, D, . . ., the end result being that he (or she) becomes morally degenerate and dispositionally criminal. It makes all the difference that external causes are relevant only insofar as they influence, without compelling, freely chosen action. A malefactor who fits this description deserves to suffer, no matter how tightly wound the skein of causes.
David says that external causes don’t compel, only influence choices. But he agrees that the internal causes of choices – character traits, motives, dispositions, etc. – are themselves equally and completely a function of prior conditions (“The causes may be obvious in either case, and anyway I am willing to stipulate their existence”). If this is the case, then the agent’s freely chosen action (free in the compatibilist sense that it’s uncoerced by other agents and basically rational) is the fully determined outcome of conditions, which if they had been different, would have resulted in a different outcome. For some reason David wants to pick out a certain set of causes (call them the choosing), and say that because these are internal to the agent, justice requires that the agent suffer, for that is what deserving to suffer means. But why? What’s the argument behind the entailment?
Note that to describe the situation as David ends up describing it (“the agent effectively chose his own degeneration”) is to focus strictly on the agent and to discount (rhetorically at least) the previously acknowledged fact that her choices are fully determined. And to say that “It makes all the difference that external causes are relevant only insofar as they influence, without compelling, freely chosen action” is to complete the misdirection by suppressing the fact that internal factors are themselves just as determined. If we keep firmly in mind that the agent and her act are utterly and completely a part of a larger causal process, we won’t be misled into thinking that a subset of that process – traits, motives, choice-making behavior – carries some sort of metaphysical characteristic that somehow requires the agent to suffer, as opposed to being restrained, reformed, etc. It’s only the rhetoric of agency (She chose to be that way, dammit!), with its historical connotations of libertarian freedom, that induces and incites the retributive conclusion about choosing. Thus incited, we may strongly want to pursue retribution, but that isn’t an argument that we should pursue it.
Hill (round 11)
Let us suppose, for the sake of argument, that inflicting pain and distress on evildoers does not increase the likelihood that these evildoers (or others not yet caught and punished) will commit more evil acts. Tom, I think, would oppose this kind of retribution even if it was not in a utilitarian sense counterproductive. He would say that the infliction of pain and distress is a bad thing and can only be justified instrumentally, as a way of achieving other important ends. In so saying, he stakes out a moral position. That position is no more plausible, intuitively, than a contrary position holding that the infliction of pain and distress as a just punishment for hideous crimes is a good in itself. I will illustrate this principle as follows. Suppose there are two men in the wilderness. One murders the other (for money or pleasure or out of jealousy, or whatever). He cleverly hides the body and walks away. No one ever knows about the crime, except for its perpetrator, who never sins again. Given all this, which is the more desirable outcome? That the murderer suffer or that he live a painless life? I say the former, even if the pain serves no useful purpose in times to come. It is better because it is just.
Clark (round 11 response)
David is correct that I think “the infliction of pain and distress is a bad thing and can only be justified instrumentally” to achieve a less punitive, more flourishing society. Of course, as he shows with his example, we all have easily aroused retributive responses that make us reluctant to let the murderer off the hook, and we wouldn’t have made the evolutionary cut without them since pursuing retribution played an essential role in incapacitating and deterring aggressors. But having seen that desiring the suffering of those that harm us is functional, not a metaphysically grounded, intrinsic, and unquestionable aim of capital J Justice, we can then ask if there might not be better ways to achieve what retribution originally “intended”, namely the creation of a safer, more flourishing society. The better way, I think, is to minimize the deliberate infliction of unnecessary suffering and death (which only incites counterattack and models aggression) while pursuing policies that seek to prevent the sorts of behavior which stir our retributive juices in the first place. The sort of justice which requires perpetrators to suffer for no purpose, except to satisfy our desire that they suffer, is exactly that which denies the original functional, behavior-guiding role of retribution, and thus allows it to continue (on the question-begging basis that it’s intrinsically “just”) long after we can clearly see how counterproductive it is, and how alternative conceptions of justice might serve us better.
Hill (round 12)
Tom endorses compatibilism and so concedes that an offender's choices are often free, but then adds that since they are fully determined (i.e., are as much a part of the causal skein as other events), it makes no sense to demand severe punishment. This suggests that he is withdrawing what he has formally conceded, a view supported by his further claim that the offender is free only in a special sense (only in "the compatibilist sense" common to us both). But there is no special sense here. If one acts sanely, with understanding, and without coercion, pursuing ends that one thinks best, one is free in the ordinary sense. That one's choices would have been different in different circumstances is hugely probable, but that has nothing to do with the moral relevance of uncoerced choice. Tom seems genuinely puzzled that I lay stress on the choice rather than on all the other causes. But of course these other causes are relevant only insofar as they influence the free choice. It is the node through which they exercise relevant influence. The choice might have been generated in myriads of ways, none of which are at all relevant in its absence. Consider an example. A man wishes to kill his wife for her money, seeks opportunities to do the deed, almost does it half a dozen times, and finally does do it. In this last case, the surrounding influences were sufficient to trigger his free decision. All the other earlier sets of influences were not quite sufficient. Now which is the morally relevant cause? The latest set of influences? No. It was the settled disposition that issues in the free choice. The specific triggers are morally irrelevant.
Compatibilist, naturalistic freedom can't justify retributivism (Clark, round 12 response)
David says about half way through the paragraph above that “other causes are [morally] relevant only insofar as they influence the free choice.” The causes that influence the free (but, as we agree, fully determined) choice include, of course, the entire causal history of the agent, including all those factors that determine the “settled disposition that issues in the free choice” and the “specific triggers” of that choice. But then David ends up saying that the only morally relevant cause is “the settled disposition that issues in the free choice.” This seems to contradict what went before, but perhaps I’ve misunderstood him.
If we take the function of morality (as I do) to be guiding goodness, then morally relevant causes extend well outside the settled dispositions of individuals into the biology and culture that shape them. Punishing the individual is just one among many possible responses, targeted at both persons and their environments, in the quest to bring about a less violent, more flourishing society. Punishment must, on the guiding goodness view, be justified in terms of its instrumental contribution to that end. On the other hand, if, as does David, we take retributive punishment to be an intrinsic good and a primary aim of justice that need serve no function beyond imposing death or suffering on the offender, then indeed we’ll want to keep the focus on the individual, not on the factors that shaped him. After all, the normal reason offered why murderers deserve to suffer or die is that they chose to kill, not that they were caused to choose to kill. So I’m not at all puzzled by David’s stress on choice; it makes perfect sense in the light of wanting to maintain pride of place for retribution.
Regarding this, the question still remains that I posed David in my last response to him, so I’ll ask it again: why does an offender’s fully determined choice require retribution, as opposed to non-punitive incarceration and reformation? What’s the argument that establishes the goodness of the offender’s suffering? David says that the compatibilist view of freedom we share is the ordinary view, which I doubt, given widespread convictions outside the academy that humans have contra-causal freedom. But be that as it may, declaring compatibilism to be the ordinary view doesn’t answer the question of why retribution should be central to morality and the law.