EMBRACING RETRIBUTIVISM



in jail


Gregg Caruso’s Rejecting Retributivism is a resolute and wide-ranging book. Since I cannot address all the material in it that deserves attention, I will try to focus on the central and substantive opposition between Caruso’s views and mine. As my title immediately indicates, I disagree with Caruso’s rejection of retributivism. Although this disagreement is very important, it nonetheless obscures a meaningful agreement. Caruso and I largely agree in our assessment of the horrible excesses of some contemporary criminal justice systems – above all the criminal justice system of the United States. It shall prove salutary to keep the agreement in the back of our minds throughout, since it constitutes a valuable backdrop to my general discussion.


Caruso’s rejection of retributivism cannot be properly understood without at least briefly sketching its grand motivation. Caruso considers himself a “free will sceptic”. While scepticism does not necessarily entail denial, and while at times Caruso seems to admit that his position may allow for either “doubting or denying” moral responsibility (37), his main line, repeatedly expressed throughout his book, is that his scepticism entails the full-throttled denial of moral responsibility. Caruso claims that his scepticism is somehow consistent with a number of conceptions of responsibility, but he is emphatic that it entails the complete rejection of the idea that we could be “truly deserving of praise and blame [or] punishment and reward” (30; emphasis in the original). Similarly, Caruso asserts: “my own view is […] that […] we are never morally responsible for our actions in the basic desert sense” (8; repeated also in 14, 106, and passim). The “basic desert sense” for Caruso is the standard sense of responsibility independent of “consequentialist or forward-looking considerations” (2). So, Caruso’s rejection of retributivism is inseparable from his rejection of moral responsibility and of desert. Caruso’s Rejecting Retributivism could thus have been titled Rejecting Moral Responsibility, or Rejecting Desert, or, as we shall see, Rejecting Punishment. (Below I will suggest a more accurate title for Caruso’s book.) The ambitiousness of Caruso’s goals is evident throughout, but consider one representative passage:


It has been suggested to me, by friend and foe alike, that if my ultimate goal is criminal justice reform and the rejection of retributive practices and policies, I should work directly toward that goal and leave the contentious issue of free will aside. While I acknowledge that this may be a better rhetorically [sic] strategy, since getting people to question the existence of free will is no easy task, I resist it for two main reasons. First, I am a philosopher and am committed to the truth wherever it leads me. While this might sound high-minded, I have worked on the problem of free will for many years and am convinced that free will scepticism is the only reasonable position to adopt. […] Second, and more to the point, to achieve meaningful and lasting criminal justice reform, I believe it is important to challenge the assumptions of free will and basic desert moral responsibility (30, emphasis added).

Caruso’s view that only his favoured position is “reasonable” (repeated verbatim in 35, 107, and in spirit elsewhere) is noteworthy, as he sometimes unceremoniously tosses influential and sophisticated views into the bin of the “unreasonable”. Caruso’s attitude here evinces a certain arrogance that is at odds with a plea to humility that he mobilizes elsewhere (and to which I will return).

A “morality” that jettisons moral responsibility, and that affirms that no one is deserving of anything, strikes many as implausible. That is why many have suggested that we cannot really treat each other as Caruso would have us do: merely as “object[s] of social policy”, as “subject[s] for treatment”, as needing merely to be “managed or handled or cured or trained”, to quote P.F. Strawson. This impossibility can be explained in diverse ways: in the psychological terms of what Pamela Hieronymi calls the Humean interpretation of Strawson: we simply “do not have the right equipment to do that”; or in the more conceptual terms of what she calls the Wittgensteinian interpretation of Strawson: we “can neither support nor call into question the whole of a practice using notions that are, themselves, constituted by that practice”; or otherwise.

Independently of our interactions with each other, some have argued that the mere thought that we cannot praise or blame people for their actions “cannot actually be believed”. Ronald Dworkin, for example, suggests that “you cannot be convinced, even intellectually, that you are not responsible for your actions, because you cannot make any reflective decision [including what to believe] without judging which decision it would be better to make”. This is to invoke – even if unwittingly – the sense of responsibility which Caruso denies, because if you realized that you chose the wrong action, you would then blame yourself.

Furthermore, these considerations partly explain the widespread (compatibilist) sentiment amongst both moral philosophers and punishment theorists whereby moral responsibility is compatible with either the ultimate metaphysical truth or falsity of determinism. In other words, the move is to focus on the phenomenology of moral experience and to bracket this thorny debate between free will and determinism. This type of move is, moreover, perfectly familiar in science as well. When a physicist, for example, speaks of objects “at rest”, she is evidently bracketing all sorts of considerations, just as when a chemist talks about “pure” water. Nothing is completely at rest, or completely pure; but in the context of calculating the trajectory of a projectile, or of dissolving a water-soluble element in a lab, we can safely – nay: we had better – bracket these bits.

To deem Strawson a compatibilist and essentially leave it at that (Caruso, 118, 121, 127) evinces a superficial engagement with Strawson’s hugely subtle “Freedom and Resentment” – an article in which, after all, Strawson concedes quite a bit to the anti-compatibilist. Furthermore, insofar as he does not think that denying moral responsibility is “as destructive as Strawson” and others fear (29, also 116, 297), Caruso is happy to identify himself as an “optimist”. But this is precisely the sort of problematic optimism that worried Strawson – an optimism that, according to Hieronymi, Strawson found “shocking and appalling” – and which he suggested needed to be “radically” modified by what he deemed pessimistic but soberer considerations.

Strawson’s famous suggestion is that the impasse between optimists and pessimists can be at least alleviated by paying close attention to our “reactive attitudes”, which include “backward-looking” resentment, blame, gratitude, admiration, and so on. Caruso rejects Strawson’s emphasis on reactive attitudes, suggesting that even if Strawson were wholly right about them, it would still be “another thing altogether to think that retributive legal punishment is justified” (122). Caruso’s point is correct, as far as it goes. And Strawson need not object to it: unlike Caruso, Strawson was not directly interested in criminal justice reform or policy issues, so he was indeed not trying to justify retributive legal punishment. Caruso’s point, however, does not go far enough. The problem for Caruso is that if Strawson is right about reactive attitudes, then Caruso’s theoretical edifice would be in trouble. Optimistically, Caruso claims that his opponents are “simply mistaken” when they think that he is committed to “abandoning all discourse about justice, rights, and respect for persons” (29). Rejecting real praise and blame, however, is to thereby impoverish morality: the view whereby the very meaning of good and bad actions is importantly connected to their being praiseworthy or blameworthy is not uncommon. Evidently, Caruso believes that this impoverishment is not problematic, but, well, this is part of our general disagreement.

***


Our disagreement is further foregrounded when we turn to retributivism itself. Since time immemorial the debate concerning the justification of punishment has opposed retributivism and consequentialism (or utilitarianism). The sloganized version of the debate is that retributivists justify punishment by attending to what wrongdoers deserve and that, in contrast, consequentialists (or utilitarians) attend to the (potentially) good consequences of inflicting punishment. The typical good consequences that punishment is supposed to cause tend to relate to the prevention of future wrongdoing; punishment may accomplish this goal given its potential to deter, rehabilitate, incapacitate, and so on. As another famous slogan has it, retributivism is backward-looking, and consequentialism is forward-looking.

Consider this formulation of the debate, from over two thousand years ago:

No one punishes wrongdoers putting his mind on what they did and for the sake of this – that they did wrong, not unless he is taking mindless vengeance, like a savage brute. One who undertakes to punish rationally does not do so for the sake of the wrongdoing, which is now in the past – but for the sake of the future, that the wrongdoing shall not be repeated, either by him or by others who see him punished (Plato, Protagoras, 324a-b).

This passage not only attests to the age of the debate itself, but it attests, too, to the age of the well-worn charge that retributivism is somehow “irrational”, “barbaric”, and so on. This demonization of retributivism constitutes a conspicuous tradition in the history of ideas – a tradition that continues to be extremely popular to this day, as Caruso’s book amply confirms. Independently of its merits, even a cursory look at history reveals that Caruso’s anti-retributivist campaign is but a drop in a vast ocean.

Caruso claims that retributivism is “widely embraced” and a “core principle” (5), or indeed the “official dominant principle” (8) of American criminal law. He sees retributivism “enthroned” as the “primary justification for the death penalty” in the United States, and for criminal punishment more generally in a number of other countries (6 ff., and passim), and as the cause of “excessively punitive punishments” (18). These claims deserve some attention. Caruso himself problematizes his first sort of claim, for despite his talk of “wide embrace”, “enthroning”, “dominance”, and so on, he admits that “the American criminal justice system has long been committed to limiting retributivism” (322). My own view is that the American criminal justice system is insufficiently retributive, and that many prominent (and deeply problematic) aspects of it are essentially unintelligible unless seen as effusions of a broadly consequentialist worldview. The very institution of plea-bargaining, which is the way in which the vast majority of criminal cases in the United States are resolved, patently contradicts retributivism. These bargainers do not even pretend to care about desert. According to the National Association of Criminal Defense Lawyers, more than 97% of all criminal cases in the United States are decided through this utterly and unabashedly non-retributivist process. Other non-retributive policies and trends include the proliferation of felony murder provisions (where non-murderous killings that occur in the context of committing a felony are punished as severely as if they had been murders), strict liability offenses (where offenses committed with differing mental states are punished identically), mandatory minimums in sentencing (where the importance of the details of the case at hand is limited), and overcriminalization (where non-blameworthy conduct is turned into criminal conduct and eventually punished).

As for Caruso’s second sort of claim, it is important to underscore that retributivism does not seek to provide an answer to the question of what specific punishment specific crimes deserve. In other words, despite the fact that this is frequent confusion, retributivism is not lex talionis (an eye for an eye, a tooth for a tooth). A retributivist could deny that murderers deserve the death penalty, or that rapists deserve to be raped, etc. But even if a retributivist believed that murderers, say, deserve the death penalty, she is not thereby committed to supporting the death penalty. For, obviously, the value of giving people what they deserve can conflict with – and lose out to – other values. Caruso knows this, and he concedes that retributivists can oppose the death penalty, and that there exist “reasonable retributivists” who oppose overly harsh criminal justice systems, and so on. But Caruso nonetheless believes that, in the end, all retributivists are prone “to try to make life in prison as unpleasant as possible” (19). What Caruso describes here is not a retributivist – it is a sadist. The retributivist wants punishment to be as unpleasant as wrongdoers deserve – not more (and, in principle, not less) than that. One point that often gets lost in anti-retributivist positions is that part of what retributivism seeks to do – both analytically and historically – is to preclude excessive punishments.

Caruso appears to believe that because retributivists care about desert, they cannot (or cannot easily) care about other things. This is like believing that because philatelists care about stamps, they cannot (or cannot easily) care about anything else. Thus, Caruso asks us to imagine someone who has received a drug that makes it “virtually certain that he will brutally murder a person” within a week. Caruso thinks that he would have no problem incapacitating this person (in the sense of rendering him incapable of committing crime again), but that, contrariwise, “retributivists would have a hard time justifying preventive measures” (293). Unfortunately for Caruso, there is no reason whatsoever why a retributivist – qua retributivist – should have any trouble incapacitating this person. Similarly, Caruso claims that “retributivists care little about rehabilitation” (19), that they are committed to understanding respect for human dignity “narrowly”, as merely a matter of “just deserts” which is (somehow) likely to generate treatment that “dehumanizes and disenfranchises individuals” (125), and so on. Caruso’s retributivists are truly absurd creatures, only capable of being motivated by, and of only valuing, desert. For whatever it is worth, I do not know of a single retributivist who asserts that human dignity is wholly a matter of giving people what they deserve. We are, for example, entitled to have our human rights (and more) respected independently of whether or not we deserve that. A retributivist is in no way prevented from caring about rehabilitation or from vehemently opposing dehumanization and disenfranchisement.

If asked, the retributivist may (correctly) point out that the incapacitation in Caruso’s thought-experiment is not a matter of punishment: for the person has, ex hypothesi, not done anything wrong. This reveals another uneasy tension in Caruso’s book: at times he claims to reject retributivism, and at times he claims to reject punishment altogether. Although Caruso claims to limit his discussion to “legal punishment” (12), his absolutely radical rejection of moral responsibility suggests he is against punishment tout court. Now, abolitionism regarding state punishment deserves at least some attention, but the global abolitionism that appears to flow from Caruso’s global rejection of responsibility is terribly untenable.

Caruso wants to replace criminal justice systems with a public health-quarantine system that, more than non-retributive, is explicitly non-punitive: “my version of the public health-quarantine model remains pure and free of any punitive components and is therefore compatible with the complete rejection of all justifications of punishment” (313). It is not easy to see how Caruso can succeed in this. While Caruso’s approach would rule out “retributivism and sever [sic] punishment, such as the death penalty”, he admits that his approach would still justify “incapacitation and rehabilitation programs” (29). To the extent that those programs can be imposed against the “wrongdoers’” will, and in ways they find unpleasant, harsh, and so on, they can be difficult to distinguish from punishments – thus risking turning this discussion into a mere word game.

Retributivists disagree amongst themselves about whether the fact that someone deserves punishment provides us with merely a necessary condition for punishment to be justified (thus generating a prohibition against punishing the innocent), or rather with a full-blown sufficient condition that renders punishment justified (thus generating a duty to punish the guilty). Elsewhere I have referred to the former sort of retributivism as “minimalist” and to the latter as “unbridled” – and I have objected to both. A mere prohibition against punishing the innocent seems sensible enough, but altogether too feeble. Moreover, this interpretation scandalously fails to render the traditional accusation that retributivism is barbaric, or too severe, even intelligible. What can be barbaric about protecting innocents? Would Caruso’s passionate rejection of retributivism encompass this protection too? A full-blown duty to punish the deserving, in contrast, strikes many (including many retributivists) as too rigid or stern.

As it turns out, Caruso attempts to turn the traditional bipartite division into a tripartite one, distinguishing between (1) weak, (2) moderate, and (3) strong retributivism. Caruso’s weak retributivism is what I call minimalist retributivism: desert is “merely necessary but not sufficient for [justified] punishment”. But in both what Caruso calls “moderate” and what he calls “strong” retributivism, desert is “necessary and sufficient for [justified] punishment” (9-10). It would appear that the difference between Caruso’s (2) and (3) is that in (2) the “sufficiency” somehow does not amount to a duty, though it does in (3). But then, of course: How is deserved punishment a “sufficient condition”? A sufficient condition for what? In any event, not only does Caruso’s tripartite taxonomy fare no better than the traditional bipartite taxonomy (as I will show immediately), but soon after he introduces it he explicitly abandons it anyhow (12).

In my view, you are a retributivist if you think that the fact that someone deserves punishment is, in itself, important, that this fact matters. The more important you take this fact to be, the more retributivist you are. Evidently, the notion of “importance” does not translate neatly into the talk of necessary and sufficient conditions. The fact that you consider something important, or its realization valuable, does not necessarily generate a duty to bring it about, nor does it reduce to the limp view that its absence precludes action. Hence the failure of the traditional bipartite approach and of Caruso’s tripartite approach (if that is what is): they cannot deal with the (important) notion of importance.

My own version of retributivism is unabashedly pluralistic: I expressly recognize the importance of things other than desert. In contrast, Caruso’s position is necessarily monistic: the only thing that ultimately matters to him is the diminution of suffering in the world (as we shall see below). Of course, under that general heading Caruso may pursue various goals, but always in the service of the overarching suffering-diminution goal. Moreover, my pluralism is centred around the tension between punishment and forgiveness, in a way that Caruso cannot even countenance (as we shall also see below). Caruso’s position is, in fact, as monistic as the utilitarianism that has historically opposed retributivism, and from which he unsuccessfully seeks to distance himself.

One of Caruso’s main arguments against his amalgamation of punishment and retribution happens to be one that I have repeatedly criticized. The argument is somewhat attractive, at least on first approximation, but it ultimately fails. The superficial attractiveness flows from two specious moves. The first move is to suggest that punishment involves harming wrongdoers (Caruso, 110, and passim). This non-neutral term – “harm” – is tendentious. Undeniably, the treatment that the wrongdoer is to endure is meant to be unpleasant, unwanted, and so on: that is a purely conceptual point about punishment. There could be, I guess, a sense in which anything unpleasant or unwanted is “harmful”. But there is another obvious sense in which it need not be: the side-effects of some medicines may be unpleasant and even unwanted, but not thereby harmful. The most influential contemporary definition of punishment, the Flew-Benn-Hart definition, avoids this term “harm” altogether, and instead claims, neutrally, that punishment involves “pain or other consequences normally considered unpleasant”. While I have argued against several aspects of this definition, I have, like its champions, avoided the potential ambiguity of “harm”: neither the widespread definition nor mine says anything about harming wrongdoers.

The second move is a plea for epistemic humility – and here the attractiveness is greater: for who, other than the arrogant, can be against epistemic humility? Caruso believes that retributivism fails to meet a particularly demanding “burden of proof” – and the burden is so demanding because when what is at issue is harming others, we had better impose a “high epistemic standard” (110). One could, of course, immediately retort that punishment is not supposed to harm the wrongdoer, even though it is meant to be “painful” or “unpleasant”, as I have just sketched. But even if we put aside the tendentiousness of “harm”, something else is problematic with this argument.

Caruso approvingly cites authors who think that the very talk of “burden of proof” comes to us “from the adversarial courtroom” (111), where different burdens depend on whether cases are civil or criminal. In non-criminal cases the standard of proof is “preponderance of evidence”; in criminal cases, however, preponderance of evidence is deemed not enough: the standard of proof is ratcheted up to “beyond a reasonable doubt”. The reason for this increased burden is that criminal convictions are, in principle, much more serious than non-criminal ones. (The “in principle” hedge here is required because governments often abuse the allegedly non-criminal nature of some matters, precisely in order to get away with doing awful things to people.)

Caruso’s argument is that insofar as there exists reasonable doubt about the existence of the type of free will that may justify punishing wrongdoers, then we should refrain from punishing until we can be certain – beyond reasonable doubt – that said free will exists. I sidestep the fact that from Caruso’s perspective this is never going to happen: as we have seen, “free will scepticism [in the sense of denial] is the only reasonable position to adopt” (30). The main weakness of this argument is that reasonable doubts are possible about all sorts of things, things that we nonetheless need to do, and are justified in doing. As I have pointed out elsewhere, there are “important differences between adjudicating guilt in a court of law and ascertaining the merits of a theory (philosophical or otherwise)”. I have sought to illustrate this disanalogy (and hence the weakness of this often-repeated argument) by pointing out that “there is plenty of discussion about the best procedure for treating inguinal hernias, or about how best to combat inflation. Yet no one doubts that inguinal hernias ought sometimes to be treated, or that they are in fact sometimes treated correctly and sometimes incorrectly – and the same holds for economic measures combating inflation”. Retributivism – like any other theory – cannot be simply rejected by pointing out that there are doubts – even serious doubts – about its truth. Expecting otherwise is particularly odd since the truth about the alternatives to retributivism is, despite Caruso’s extraordinary confidence, also very much in doubt.

***

fence with barbed wire

Perhaps Caruso’s point could be salvaged by assuming that his doubts vis-à-vis retributivism could be redirected: not to reject a theory, but to reject the very serious suffering – albeit not a harm – that (allegedly in the name of a theory) many criminal justice systems inflict on human beings. Perhaps. But then Caruso’s book would need to be rewritten – beginning with its title. Rejecting Excessive Punishment would be a more accurate title, if much less effective –

for who could then be Caruso’s opponent? As I stated at the outset, opposing excessive punishment is something about which Caruso and I – together with retributivists and anti-retributivists, libertarians and determinists, compatibilists and anti-compatibilists, and so on – can all agree. Where Caruso goes wrong is in thinking that (in practice) retributivism is somehow the cause of excessive punishment, although (in theory) it forbids it.


Some inflictions of suffering are indecent or otherwise immoral (even if deserved!); some criminal justice systems are heartless and dysfunctional, and some downright perverse and cruel. In fact, even when fully deserved, there is something to be lamented, something very often tragic in the infliction of punishment; as I have argued in my 2018 book Rethinking Punishment, it is difficult to punish without getting our hands dirty. Being a retributivist does not preclude you from endorsing any of these claims, or from accepting differentiated burdens of proof based on the severity of the punishments. Moreover, being an anti-retributivist does not prevent you from endorsing extraordinarily harsh treatments too: utilitarianism and “humanitarian” approaches can be as harsh as any retributive treatment. The scare quotes around “humanitarian” are meant to cast doubt on an approach that I think bears important similarities to Caruso’s favoured public health-quarantine model. Caruso wishes his model to avoid the problems he sees in retributivism (or punishment), while not thereby collapsing into utilitarianism or consequentialism. This is not easy. Caruso, like many others, distinguishes between utilitarianism and consequentialism. I have no truck with that, and in some contexts this is a perfectly acceptable thing to do – say, when distinguishing a comprehensive moral doctrine from a particular justification of punishment. But there are also contexts in which the distinction between retribution and its alternatives is best seen as dichotomous: either inflicting deserved suffering is intrinsically valuable or it is not. This is as dichotomous as the pair formed by any proposition whatsoever and its negation. If you believe that deserved suffering is in this sense intrinsically valuable (in whatever degree), then you are a retributivist; if you do not believe that, then you are not. There are plenty of reasons – both analytical and historical – for referring to the person who denies that deserved suffering is intrinsically good as a utilitarian. And so I will continue to do so, although I emphasize once again that what matters is substance, not labels. Whatever you call things, Caruso cannot avoid being on one side of this dichotomy or the other – and it seems obvious to me what side that is. Caruso champions the view that punishment should “be focused on prevention, rehabilitation, and reintegration” – that it should be entirely “preventive” – and these have always been paradigmatic utilitarian rationales (9; similar remarks appear on 184 and passim). Moreover, Caruso’s public health-quarantine model necessarily shares with utilitarianism the bald denial of any intrinsic goodness in the infliction of deserved suffering. Caruso’s basic idea is that just as we should quarantine those with communicable diseases, we should quarantine wrongdoers. The analogy is obvious: just as those with communicable diseases may harm us, wrongdoers may harm us. In both cases we need protection, and in both cases lockups work. Remarkably, differences between the ways in which bad things may come about are unimportant from Caruso’s perspective. We should deal with potential calamities in a wholly undifferentiated way – Caruso sees no important normative difference between our hospitals, our prisons, and indeed our lightning rods, our sump-pumps, and so on. It is very hard to see how Caruso’s radical denial of moral responsibility can coexist with a system that purports to morally respond to moral wrongdoing. Despite being sympathetic to some of the effects that Caruso’s favoured system may end up having, I cannot avoid thinking that Caruso has left himself with no theoretical room for real wrongdoing, and that therefore his model is not really capable of morally responding to it. Caruso’s model either contains only what Strawson (and others) see as purely objective attitudes (that is, attitudes that reduce human beings to “objects of social policy”, to objects that need to be “managed or handled or cured or trained”), or he cherry-picks which reactive attitudes to admit (28). Either way, the specific reactive attitudes of praise and blame require a type of moral responsibility that Caruso officially rejects. Problematically, however, Caruso sometimes cannot avoid appealing to a not-so-diminished morality. For example, he thinks that “to hold people truly deserving of blame and praise, punishment, and reward” is wrong, because “it is fundamentally unfair and unjust” (30). Given Caruso’s main line, it is hard to see how he can maintain this: he cannot criticize practices employing tools afforded by those very practices, to again echo Wittgenstein. Caruso’s official line should be that (since no one is “truly” responsible) nothing is ever “truly” unfair or unjust – a line that, however, he does not want to hold, but cannot consistently avoid. (I gloss over the fact that, wholly independently of the specific infliction of deserved suffering and of the horrors of criminal justice systems, Caruso claims that truly praising is “fundamentally unfair and unjust”: so, for him, praising Amanda Gorman for her “The Hill We Climb” is “fundamentally unfair and unjust”.) Caruso’s public health-quarantine model (and its concomitant shift between an avowal and a disavowal of morality) is reminiscent of another a famous appeal to “epistemological modesty” within punishment theory (Karl Menninger’s), and to Michael S. Moore’s reaction to how “inconsistently it is applied”. Moore quotes this remarkable passage from Menninger:

The very word justice irritates scientists. No surgeon expects to be asked if an operation for cancer is just or not. No doctor will be reproached on the grounds that the dose of penicillin he has prescribed is less or more than justice would stipulate. It does not advance a solution to use the word justice. It is a subjective emotional word .... The concept is so vague, so distorted in its applications, so hypocritical, and usually so irrelevant that it offers no help in the solution of the crime problem which it exists to combat but results in its exact opposite – injustice, injustice to everybody.


Sardonically, Moore then points out: “apparently the late Dr Karl knew injustice when he saw it, even if justice is a useless concept”. Even if Caruso could explain how those who punish wrongdoers can indeed be truly unfair and unjust (although they are not morally responsible), he cannot (on pain of contradiction) explain how they could deserve any blame or punishment for their alleged unfairness and injustice. ***


But there is more that is problematic in Caruso’s assimilation of wrongdoing to communicable disease. Quite clearly, some wrongdoers may remain threats for the entirety of their life – thus Caruso would recommend “treating” them until they die, even though, ex hypothesi, they will never be “cured”. Also quite clearly, not all wrongdoers continue to be threats after doing wrong. Nothing prevents a wrongdoer from having an epiphany – or from having an accident that leaves her paralyzed and unable to cause any further harm – immediately after doing wrong. We do not quarantine people who are no longer capable of transmitting diseases, so why should we quarantine wrongdoers who no longer pose threats? Caruso may bite the bullet here and admit that we should quarantine whoever is a threat (whether they have done wrong or not) and that we should not quarantine “wrongdoers” (regardless of what they did) who are no longer threats. This answer, however, would underscore the extent to which Caruso’s system is not morally responding to moral wrongdoing at all. Caruso’s richer answer, however, is to bolster his public health-quarantine system with considerations that he draws from health care ethics contexts. Thus, Caruso takes into account what he calls the four “key dimensions” of health care ethics: “autonomy, beneficence, nonmaleficence, and justice” (187). It is not clear, again, how a commitment to these “dimensions” of ethics is supposed to be consistent with Caruso’s radical denial of moral responsibility. Take autonomy, to mention but the first of the terms that Caruso lists: does not the very talk of autonomy – i.e., self-rule, self-determination – presuppose precisely the sort of free will that Caruso denies? Truly a leitmotif in Caruso’s book, the Wittgensteinian inconsistency mentioned at the outset, whereby Caruso criticizes a practice by presupposing notions constituted by that very practice, reappears yet again. Caruso recognizes the obvious connection between free will and autonomy when, early in the book, he criticizes the law for assuming that we are autonomous (4 ff.). But Caruso also takes it away: “here [where?] self-determination has nothing to do with metaphysical free will or the control in action required for basic desert moral responsibility” (217). This is an extraordinary assertion: nothing to do with it. To say, as Caruso says immediately after the statement just quoted, that “rather, it [self-determination] is the linchpin of liberal political theory” (217) is not helpful. Regardless of the role self-determination may play within liberalism or political theory, how exactly are we supposed to determine ourselves when we are not autonomous? Moreover, if, waxing compatibilist, Caruso can so easily (and radically) separate self-determination in political theory from the thorny metaphysical debate, why can he not do that too regarding self-determination in ethical theory? Some of the problems of Caruso’s analogizing wrongdoing and disease have been perceptively pointed out by Michael Corrado. Although Caruso engages at length with this objection, I am unconvinced by his response. Part of Corrado’s objection involves (non-intermittent) epistemic humility. Since, unlike Caruso, most of us are not certain that moral responsibility is impossible, we find it reasonable to preserve the ostensible disanalogy between wrongdoing and disease. Corrado’s move is a nod to the sort of compatibilism that most punishment theorists embrace, and whom Caruso chides for embracing (Caruso, 113 ff., passim). The point here is not that we should preserve this or that particular criminal justice system – again, we can all agree that many contemporary criminal justice systems are scandalously cruel. The point on which Corrado (and others) insists is, rather, that seeing wrongdoing as a real moral notion, which calls for a real moral response – punishment (or forgiveness, etc.), not treatment – not only allows us to coherently invoke the notion of justice, but it affords wrongdoers concrete protections. For example, modern criminal law offers many protections to defendants: the principle of legality, due process, strict rules concerning evidence admissibility, rules against self-incrimination, the prohibition against double jeopardy, the in dubio pro reo (i.e., when in doubt, side with the defendant) principle (which, incidentally, does consistently and humanely mobilize epistemic humility), and myriad other prohibitions against excessive (or “cruel and unusual”) punishment. These protections are out of place within the insufficiently moral context of Caruso’s public health-quarantine model. Imagine, for example, the absurdity of an in dubio pro patiens (i.e., when in doubt, side with the patient) principle. ​ But Caruso’s desire for his public health-quarantine model to have access to these moral safeguards is persistent and multifarious. So, he claims that his public health-quarantine model has “a proportionality principle of its own” (125). Whence? The question is all the more pressing given the (at least) diminished morality Caruso’s denial of moral responsibility generates. Moreover, seeking to avoid the potential excesses of utilitarian approaches, Caruso wishes to ground his public health-quarantine model in society’s alleged right to self-defence. Again: whence? Where does this right come from if not, in the final analysis, from a not impoverished morality which includes moral responsibility? Just as much as the other moral safeguards mentioned, self-defence and other justifications presuppose precisely the sort of robust morality that Caruso rejects. Caruso’s response to Corrado’s objection is reminiscent of another example of anti-retributivist inconsistencies. In her illuminating Are Prisons Obsolete?, Angela Davis discusses Lucia Zedner’s also illuminating work on the punishment of women. Davis understandably regrets that sometimes women have been required “to do more time than men for similar offenses”. Zedner’s explanation for this asymmetry is that “women were sent to reformatories not to be punished in proportion to the seriousness of their offense [i.e., according to desert] but to be reformed and retrained”. Furthermore, Zedner underscores that in “important respects the [exclusively female] reformatory represented a greater infringement in women’s freedom [than men’s punishments infringed in their freedom]”. While Zedner here refers to early American reformatories, she offers similar remarks about the United Kingdom: “the most important prison for women in Britain – Holloway – was redesigned in the late 1960s on the assumption that ‘most women and girls in custody require some form of medical, psychiatric or remedial treatment’”. ​ The most natural – and arguably the most pertinent – way to object to women being imprisoned longer than men for the same offenses is, of course, to say that they do not deserve this differential treatment. But this is an objection that anti-retributivists cannot make. Admittedly, there is no gender bias in Caruso’s approach: Caruso wants to “reform and retrain” all so-called wrongdoers, without discrimination of any kind. But gender bias is not the only problem in what Zedner describes: the insufficiently moral focus on “reform and retrain” to the detriment of moral desert is problematic in itself, independently of biases. Not only, then, does Caruso’s denial of moral responsibility undermine those general protections that the very act of conceptualizing something as punishment, in a moral sense, affords defendants, but it also undermines a substantive notion of justice, or at least of retributive justice, itself. It is important to avert an ambiguity here: “retributive justice” does not necessarily refer to retributivism: utilitarian justifications of punishment belong to “retributive justice” just as much as retributive justifications do. Retributive justice deals with fitting responses to others’ actions, and it is typically contrasted to distributive justice which deals with structural patterns of resource-allocations. (Incidentally, championing the importance of desert within retributive justice says little about one’s views as to the role of desert in distributive justice: being a retributivist does not entail preferring, say, meritocracy over democracy.) Discussing which student paper, say, deserves a prize, or which footballer deserves the Golden Boot award has little to do with punishment and yet it is a matter of retributive justice. Again, either Caruso cannot countenance these discussions at all, for no one deserves anything anyhow, or he would have to deem that awarding Harry Kane (or Mo Salah, or anyone else) the Golden Boot is “fundamentally unfair and unjust”.

***


I now return to the important agreement between Caruso and me: that the criminal justice system in the United States is deeply objectionable. The general power asymmetries between the state and the individual that have understandably worried punishment theorists are, in the context of the United States, exacerbated by the depressingly intimate connection between American criminal justice and racism – systemic and otherwise (see, for example, Michelle Alexander’s book The New Jim Crow or Douglas A. Blackmons’s Slavery By Another Name). I can press an argument against the United States’ hellish and racist criminal justice system that is inaccessible to Caruso. Part of the horror of the American criminal justice system is the result of the inordinate amount of undeserved suffering that it inflicts. Caruso cannot even blame racists (or, again, anyone else): the most his denial of moral responsibility allows him to do is to quarantine racists, and only if they are (and only as long as they remain) threats. I am of course not alone in being able to advance this sort of argument. Douglas Husak, to mention but another contemporary retributivist, has been at the forefront of a campaign against overcriminalization and over-punishment. Husak’s core arguments revolve around precisely this point: much of what the state punishes is unjust because it is undeserved. Granted, there is so much that is wrong with the American criminal justice system that there are enough other horrors that Caruso (or anyone else) may invoke in order to powerfully condemn it. Still, Caruso has at least one fewer argument in his arsenal – and the missing argument is precisely the argument that I (and many others, now and throughout history) consider to be absolutely crucial. Contemplating the horrors of the United States’ criminal justice system may prime us to be tempted by positions such as Caruso’s. As a salutary contrast, however, consider a different context. The United Nations’ Report of the Independent Expert to Update the Set of Principles to Combat Impunity, particularly its addendum, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, is replete with efforts to ensure that perpetrators of human rights violations get the punishment that they deserve. In its very preamble, the document unequivocally asserts that “there can be no just and lasting reconciliation unless the need for justice is effectively satisfied” and that this is part of the reason why “the duty of every State under international law to respect and to secure respect for human rights requires that effective measures should be taken to combat impunity”. Impunity is no simple negation: it is a privation. It is the absence of punishment when punishment is deserved: someone who deserves no punishment and is not being punished is not thereby enjoying impunity. Given its narrow – and insufficiently moral – focus on threats, Caruso’s public health-quarantine program is utterly inert in this international context, incapable as it unabashedly is of even seeking justice. Caruso cannot combat impunity because in his moral universe no one deserves punishment, and so there simply is no theoretical room for impunity there. One last casualty of Caruso’s denial of moral responsibility deserves mention: forgiveness. For whatever it is worth, I have suggested that progress in the justification of punishment requires paying much closer attention to the justification of forgiveness. Admittedly, my arguments for this view are theoretical, but they have the added practical bonus of perhaps contributing to tempering excessively harsh responses to wrongdoing. While I of course think that my view is on the right track, I understand that the view is not (yet) widely accepted. There is, however, one conceptual aspect about forgiveness which is rarely disputed: forgiving means forswearing resentment (or, in my view: foreswearing punishment) regarding someone who deserves it. If a potential “forgivee” does not deserve resentment or punishment, then what appears to be forgiveness would, purely as a conceptual point, be something else: an excuse, a justification, and so on. As I highlight in Rethinking Punishment, the fact that forgiveness is the deliberate refusal to inflict a punishment (or the deliberate forswearing of a resentment) that is deserved is the reason why forgiveness is at once so paradoxical, and sometimes so alluringly admirable. Given Caruso’s laudable desire (and, insofar as I believe in real praise and blame, I can truly laud him) to contribute to a more humane criminal justice system, he should welcome a more prominent role for forgiveness. But he cannot. Just like he cannot countenance impunity, Caruso cannot countenance forgiveness: for these require precisely the “real” judgments of desert and the real moral responsibility that Caruso rejects. Within Caruso’s public health-quarantine model, forgiveness degenerates into simple medical malpractice: to “forgive” therein would amount to refusing to quarantine someone who is a threat. Not that Caruso can blame (or praise) this malpractitioner anyhow. Caruso’s rejection of desert and moral responsibility thus generates a problematically barren moral universe: a moral universe without real praise and real blame (and arguably without real gratitude, real admiration, and so on); without real (retributive) justice, without real moral wrongs and real impunity, and, we finally see, without even real forgiveness. Leo Zaibert is William D. Williams Professor of Philosophy, Law, and Humanities at Union College, New York. He has published extensively on punishment, forgiveness, and related themes. His latest book, Rethinking Punishment, was published by Cambridge University Press in 2018.

I would like to begin by thanking Leo Zaibert for his thoughtful and challenging comments on my book, Rejecting Retributivism: Free Will, Punishment, and Criminal Justice. I have long respected Zaibert’s work on punishment and consider his pluralistic version of retributivism, with its focus on forgiveness and balancing competing values, one of the most subtle. Unlike stronger versions of retributivism, Zaibert’s account maintains that the value of punishing deserved wrongdoers needs to be weighed against other values and, as such, there will sometimes be good reason to refrain from punishing a deserving wrongdoer. While I welcome Zaibert’s rejection of strong retributivism in favour of a more moderate approach, I nevertheless still fundamentally disagree with his account since it remains thoroughly committed to the core retributivist claim that “deserved suffering is intrinsically valuable” and “the fact that someone deserves punishment is, in itself, important” in justifying punitive responses to wrongdoing.

In Rejecting Retributivism, I argue against such claims and develop and defend a viable nonretributive alternative for addressing criminal behaviour that is both ethically defensible and practically workable. In the first half of the book, I argue that there are several powerful reasons for rejecting retributivism, not the least of which is that it is unclear that agents possess the kind of free will and moral responsibility needed to justify it. I also consider a number of alternatives to retributivism, including consequentialist deterrence theories, educational theories, and communicative theories, and argue that they have ethical problems of their own. In the second half of the book, I then develop and defend a novel nonretributive approach, which I call the public health-quarantine model. The model draws on the public health framework and prioritizes prevention and social justice. I argue that it not only offers a stark contrast to retributivism, it also provides a more human, holistic, and effective approach to dealing with criminal behaviour, one that is superior to both retributivism and other leading nonretributive alternatives.

In what follows, I will briefly outline my reasons for rejecting retributivism, sketch my public health-quarantine model, and respond to Zaibert’s many objections.

To begin, we can say that the retributive justification of legal punishment maintains that, absent any excusing conditions, wrongdoers are morally responsible for their actions and deserve to be punished in proportion to their wrongdoing. Unlike theories of punishment that aim at deterrence, rehabilitation, or incapacitation, retributivism grounds punishment in the blameworthiness and desert of offenders. It holds that punishing wrongdoers is intrinsically good. For the retributivist, wrongdoers deserve a punitive response proportional to their wrongdoing, even if their punishment serves no further purpose. This means that the retributivist position is not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. As a result, the desert invoked in retributivism is basic in the sense that it is not in turn grounded in forward-looking consideration.

In the book, I present six distinct arguments against retributivism. The first, which I call the Sceptical Argument, maintains that agents lack the kind of free will and moral responsibility needed to justify retributive punishment. It is here that I defend a form of free will scepticism that maintains that who we are and what we do is ultimately the result of factors beyond our control and because of this we are never morally responsible for our actions in the basic desert sense – the sense that would make us truly deserving of blame and praise, punishment and reward. Since retributive punishment requires the kind of free will associated with basic desert moral responsibility in order to be justified, free will scepticism implies that retributive punishment lacks justification – i.e., free will scepticism undermines the retributivist notion that wrongdoers deserve to be punished in the backward-looking sense required. Insofar, then, as we demand justified legal punishment practices, the Sceptical Argument maintains that we should reject retributivism in light of the philosophical arguments against free will and basic desert moral responsibility.

In defence of the Sceptical Argument, I offer two distinct sets of arguments in support of free will scepticism. The first features distinct arguments that target the three leading rival views – event-causal libertarianism, agent-causal libertarianism, and compatibilism – and then claims the sceptical position is the only defensible position that remains standing. It’s a form of hard incompatibilism, which maintains that free will is incompatible with both causal determination by factors beyond the agent’s control and with the kind of indeterminacy in action required by the most plausible versions of libertarianism. Against the view that free will is compatible with the causal determination of our actions by natural factors beyond our control, I argue that there is no relevant difference between this prospect and our actions being causally determined by manipulators. Against event causal libertarianism, I object that on such accounts agents are left unable to settle whether a decision occurs and hence cannot have the control required for moral responsibility. While agent-causal libertarianism could, in theory, supply this sort of control, I argue that it cannot be reconciled with our best physical theories and faces additional problems accounting for mental causation. Since each of these views fails to preserve free will, I conclude that free will scepticism remains the only reasonable position to adopt.

In addition to hard incompatibilism, I also defend a second, independent argument against free will which maintains that regardless of the causal structure of the universe, free will and basic desert moral responsibility are incompatible with the pervasiveness of luck – a view sometimes called hard luck. This argument is intended not only as an objection to libertarianism but extends to compatibilism as well. At the heart of the argument is the following dilemma, which Neil Levy calls the luck pincer: Either actions are subject to present luck (luck around the time of action), or they are subject to constitutive luck (luck in who one is and what character traits and predispositions one has), or both. Either way, luck undermines free will and basic desert moral responsibility since it undermines responsibility-level control.

Consider, for instance, the problem constitutive luck raises for the compatibilist. Since our genes, parents, peers, and other environmental influences all contribute to making us who we are, and since we have no control over these, it seems that who we are is largely a matter of luck. And since how we act is partly a function of who we are, the existence of constitutive luck entails that what actions we perform depends on luck. A compatibilist could respond, as they often do, that as long as an agent takes responsibility for her endowments, dispositions, and values, over time she will become morally responsible for them. The problem with this reply, however, is that the series of actions through which agents shape and modify their endowments, dispositions, and values are themselves subject to luck – and, as Levy puts it, “we cannot undo the effects of luck with more luck”. Hence, the very actions to which compatibilists point, the actions whereby agents take responsibility for their endowments, either express that endowment (when they are explained by constitutive luck) or reflect the agent’s present luck, or both. Hence, the luck pincer.

I find it both interesting and ironic that while Zaibert focuses the majority of his critical comments on my sceptical view, he never directly addresses the arguments for either hard incompatibilism or hard luck. Instead, he relies on exaggerated claims about the implications of the view, arguing that the sceptical perspective is “implausible” or “cannot actually be believed”. This, however, is no substitute for careful consideration of the arguments, nor does it provide a defence of free will. In fact, retributivists who wish to ground their justification for punishment in the notion of desert must overcome both sets of arguments since each is sufficient on its own for undermining the kind of free will and moral responsibility needed. Hence, it’s not enough to argue that one of these routes to free will scepticism fails, since if the right hand doesn’t get you, the left hand will. Unfortunately, Zaibert does not respond to either set of arguments, leaving one wondering why he’s so confident in his compatibilism.

My second argument against retributivism maintains that even if one is not convinced by the arguments against free will and basic desert moral responsibility, it remains unclear whether retributive punishment is justified. This is because the burden of proof lies on those who want to inflict intentional harm on others to provide good justification for such harm. This means that retributivists who want to justify legal punishment on the assumption that agents are free and morally responsible (and hence justly deserve to suffer for the wrongs they have done) must justify that assumption. And they must justify that assumption in a way that meets a high epistemic standard of proof since the harms caused in the case of legal punishment are often quite severe. The problem, I maintain, is that all extant accounts of basic desert moral responsibility fail to satisfy the high burden of proof required. I call this second argument the Epistemic Argument and it runs as follows: (a) Legal punishment intentionally inflicts harms on individuals and the justification for such harms must meet a high epistemic standard. If it is significantly probable that one’s justification for harming another is unsound, then, prima facie, that behaviour is seriously wrong; (b) The retributivist justification for legal punishment assumes that agents are morally responsible in the basic desert sense and hence justly deserve to suffer for the wrongs they have done in a backward-looking, non-consequentialist sense. The problem, however, is that (c) the justification for the claim that agents are morally responsible in the basic desert sense provided by both libertarian and compatibilist accounts face powerful and unresolved objections and as a result fall far short of the high epistemic bar needed to justify such harms; hence (d) retributive legal punishment is unjustified and the harms it causes are prima facie seriously wrong.

Here, Zaibert does offer a few direct replies. First, he challenges the notion that punishment involves harming wrongdoers. He writes: “This non-neutral term – ‘harm’ – is tendentious. Undeniably, the treatment that the wrongdoer is to endure is meant to be unpleasant, unwanted, and so on: that is a purely conceptual point of punishment. There could be, I guess, a sense in which anything unpleasant or unwanted is ‘harmful.’ But there is another obvious sense in which it needs not be”. He goes on to recommend that we understand punishment, not in terms of intentional harm, but in terms of “pain or other consequences normally considered unpleasant”.

This purely semantic point, however, does not cut one way or another since it leaves the core philosophical challenge of the Epistemic Argument in place. In his book Rethinking Punishment, Zaibert acknowledges that punishment “will necessarily have to (seek to) make the wrongdoer suffer”. He writes: “To punish, then, is to (try to) inflict suffering (or pain or misery or a bad thing, etc.) on someone as a response to her wrongdoing. Punishment without trying to inflict suffering is like gifting an object without intending to transfer any right over the thing gifted or like feeding someone without intending to give her some nourishment”. Regardless, then, of whether we replace the term harm with another, there’s no avoiding the fact that to punish is to intentionally and deliberately seek to inflict some suffering, pain, misery, or bad thing on someone as a response to their wrongdoing. And the core philosophical question remains: Is the retributivist justified in intentionally inflicting suffering, pain, or some other harsh treatment on perceived wrongdoers based on the highly questionable assumption that they are free and morally responsible (in the basic desert sense) and hence justly deserve to suffer for the wrongs they have done?

The Epistemic Argument maintains that the answer is “no”, since there remain powerful and unresolved objections to both libertarian and compatibilist accounts of free will – including the manipulation argument, consequence argument, no-forking-paths argument, basic argument, luck argument, disappearing agent objection, luck pincer, and others – and as a result they fall far short of the high epistemic bar needed to justify such harms. As my fellow free will sceptic Benjamin Vilhauer explains, “if it can be reasonably doubted that someone had free will with respect to some action, then it is a requirement of justice to refrain from doing serious retributive harm to him in response to that action”. Zaibert disagrees because he does not believe retributivism should be held to the beyond-a-reasonable-doubt standard, but he is fundamentally mistaken about this.

In his second reply to the argument, Zaibert writes: “The main weakness of this argument is that reasonable doubts are possible about all sorts of things, things that we nonetheless need to do, and are justified in doing”. He goes on to write that there are “important differences between adjudicating guilt in a court of law and ascertaining the merits of a theory (philosophically or otherwise)”, and as a result “retributivism – like any other theory – cannot be simply rejected by pointing out that there are doubts – even serious doubts – about its truth”. What Zaibert seems to be missing, however, is that other theoretical beliefs are not used to justify intentionally harming or inflicting pain and suffering on others in the form of state punishment!

Of course, when it comes to theoretical debates over, say, realism about the external world or the abstract nature of numbers, there will always be room for reasonable doubt. These theoretical debates, however, have very little costs associated with a wrong answer and are therefore significantly different than adopting compatibilism to justify intentional harm and institutional punishment. Given, then, the importance of free will and basic desert moral responsibility to retributive punishment, as well as the gravity of the harm caused by legal punishment (not only to the individual punished but also to those who depend upon them for income, care, love, support, and/or parenting), I maintain that the proof-beyond-a-reasonable-doubt standard is the appropriate epistemic standard to apply.

Before moving on from the Epistemic and Sceptical Arguments, I would like to make one final comment. In several places, Zaibert accuses me of “arrogance” for concluding that free will scepticism remains the only reasonable position to adopt. He also implies that I’ve been inconsistent since my position allows for “either ‘doubting or denying’ moral responsibility”. Both of these charges are wildly uncharitable. They also reflect a radical misunderstanding of my view. It’s not arrogant to conclude – after careful, detailed, and prolonged argument – that since all the leading libertarian and compatibilist accounts of free will fail to preserve the control in action required for basic desert moral responsibility, free will scepticism remains the only defensible position left standing. If Zaibert wants to defend compatibilism, he needs to respond to the arguments against it rather than calling his opponents arrogant for denying free will after prolonged argument.

Second, it is not inconsistent to offer two distinct arguments against retributivism that rely on stronger and weaker varieties of scepticism. Yes, my own variety of free will scepticism denies the existence of free will and maintains that who we are and what we do is ultimately the result of factors beyond our control. But for maximum persuasive power, I wanted to offer a second argument against retributivism, the Epistemic Argument, that required only a weaker notion of scepticism, namely one that holds that the justification for believing that agents are free and morally responsible in the basic desert sense is too weak to justify the intentional suffering caused by retributive legal punishment. There’s no conflict or waffling here.

In addition to the Sceptical and Epistemic Arguments, I also develop and defend four additional reasons for rejecting retributivism in the book, all of which are independent of worries over free will and basic desert moral responsibility. Sadly, Zaibert discusses none of these. They include the Misalignment Argument, which maintains that it is philosophically problematic to impart to the state the function of intentionally harming wrongdoers in accordance with desert since it’s not at all clear that the state is capable of properly tracking the desert and blameworthiness of individuals in any reliable way. This is because criminal law is not properly designed to account for all the various factors that affect blameworthiness, and as a result the moral criteria of blameworthiness is often misaligned with the legal criteria of guilt. I also present a closely related argument, which I call the Poor Epistemic Position Argument (PEPA). It argues that for the state to be able to justly distribute legal punishment in accordance with desert, it needs to be in the proper epistemic position to know what an agent basically deserves, but since the state is (almost) never in the proper epistemic position to know what an agent basically deserves, it follows that the state is not able to justly distribute legal punishment in accordance with desert.

My final two arguments against retributivism are the Indeterminacy in Judgment Argument and the Limited Effectiveness Argument. The former maintains that how the state goes about judging the gravity of wrong done, on the one hand, and what counts as proportional punishment for that wrong, on the other, is wide open to subjective and cultural biases and prejudices, and as a result, the principle of proportionality in actual practice fails to provide the kind of protections against abuse it promises. The latter argues that there are good additional pragmatic reasons for rejecting retributivism since it has limited effectiveness in promoting important social goals such as rehabilitation and reforming offenders.

Given Zaibert’s silence on these arguments, his failure to defend compatibilism against the arguments for incompatibilism as well as the luck pincer, and his unconvincing replies to the Epistemic Argument, I conclude that we have more than ample reason for rejecting retributivism – despite Zaibert’s protestations to the contrary.

***

prison

That said, I would like to briefly respond to some of Zaibert’s other, more general concerns about my free will scepticism before moving on. Regarding morality, Zaibert writes: “A ‘morality’ that jettisons moral responsibility, and that affirms that no one is deserving of anything, strikes me as implausible”. In response, I would point out that free will sceptics need not reject axiological judgments of right and wrong, good and bad, behaviour. For instance, even if we came to hold that a serial killer was not blameworthy due, let’s say, to a degenerative brain disease, we can all still justifiably agree that his actions are morally bad. This is because judgments of moral goodness and badness need not require an agent who is blameworthy or praiseworthy – they simply require grounds by which we can differentiate between the two types of judgments.

If one were a Calvinist, for instance, one could point to the transcendent moral law as a way to judge while simultaneously rejecting all moral responsibility. Less exalted moral systems, such as utilitarianism or Kantianism, provide alternative ways of grounding moral judgments. Of course, if one were to adopt a Kantian test of universalizability while rejecting the rest of Kant’s moral views (which do presuppose agents are morally responsible), it would hardly be an orthodox Kantian view. But, as several sceptics have noted, the denial of moral responsibility is not inconsistent with the principles of Kantian moral rationalism. It is arguable, then, that axiological judgments of moral goodness and badness would not be affected by moral responsibility scepticism, and this may be sufficient for moral practice.

A second concern Zaibert notes is that “we cannot really treat each other as Caruso would have us do”. Quoting P.F. Strawson, Zaibert contends that on the sceptical perspective, wrongdoers would be seen, “merely as ‘object[s] of social policy’, as ‘subject[s] for treatment’, as needing merely to be ‘managed or handled or cured or trained’”. This, however, is mistaken. In fact, I spend a good deal of time addressing this concern in the book. In brief, I maintain that rejecting basic desert moral responsibility does not require one to adopt what Strawson calls the “objective attitude” toward wrongdoers. As Derk Pereboom and I have argued elsewhere, Strawson may be right to contend that adopting the objective attitude would seriously hinder our personal relationships (though some philosophers have challenged this claim). However, a case can be made that it would be wrong to claim that this stance would be appropriate if determinism did pose a genuine threat to the reactive attitudes. While certain kinds of moral anger such as resentment and indignation would be undercut if free will scepticism were true, I maintain (following Pereboom) that these attitudes are suboptimal relative to alternative attitudes available to us, such as moral concern, disappointment, sorrow, and moral resolve. My view, then, is that the reactive attitudes we would want to retain either are not undermined by a sceptical conviction because they do not have presuppositions that conflict with this view, or else they have alternatives that are not under threat. And what remains does not amount to Strawson’s objectivity of attitude and is sufficient to sustain the personal relationships we value.


Derk Pereboom

There is a lot more to be said here, but given the limited space I have, I would now like to turn to Zaibert’s criticisms of my non-retributive alternative – the public health-quarantine model. The core idea of the model is that the right to harm in self-defence and defence of others justifies incapacitating the criminally dangerous with the minimum harm required for adequate protection. The model begins with Derk Pereboom’s famous quarantine analogy, which draws on a comparison between treatment of dangerous criminals and treatment of carriers of dangerous diseases. In its simplest form, it can be stated as follows: (1) Free will scepticism maintains that criminals are not morally responsible for their actions in the basic desert sense; (2) plainly, many carriers of dangerous diseases are not responsible in this or in any other sense for having contracted these diseases; (3) yet, we generally agree that it is sometimes permissible to quarantine them, and the justification for doing so is the right to self-protection and the prevention of harm to others; (4) for similar reasons, even if a dangerous criminal is not morally responsible for his crimes in the basic desert sense (perhaps because no one is ever in this way morally responsible), it could be as legitimate to preventatively detain him as to quarantine the non-responsible carrier of a serious communicable disease.


The first thing to note about the theory is that although one might justify quarantine (in the case of disease) and incapacitation (in the case of dangerous criminals) on purely utilitarian or consequentialist grounds, Pereboom and I resist this strategy. Instead, we maintain that incapacitation of the seriously dangerous is justified on the ground of the right to harm in self-defence and defence of others. That we have this right has broad appeal, much broader than utilitarianism or consequentialism has. In addition, this makes the view more resilient to a number of objections and provides a more resilient proposal for justifying criminal sanctions than other non-retributive options. One advantage it has, say, over consequentialist deterrence theories is that it has more restrictions placed on it with regard to using people merely as a means. For instance, just as it is illegitimate to treat carriers of a disease more harmfully than is necessary to neutralize the danger they pose, treating those with violent criminal tendencies more harshly than is required to protect society will be illegitimate as well. In fact, the model requires that we adopt the principle of least infringement, which holds that the least restrictive measures should be taken to protect public health and safety. This ensures that criminal sanctions will be proportionate to the danger posed by an individual, and any sanctions that exceed this upper bound will be unjustified.

In addition, the model also advocates for a broader approach to criminal behaviour that moves beyond the narrow focus on sanctions. Most importantly, it situates the quarantine analogy within the broader justificatory framework of public health ethics. Public health ethics not only justifies quarantining carriers of infectious diseases on the grounds that it is necessary to protect public health, it also requires that we take active steps to prevent such outbreaks from occurring in the first place. Quarantine is only needed when the public health system fails in its primary function. Since no system is perfect, quarantine will likely be needed for the foreseeable future, but it should not be the primary means of dealing with public health. The analogous claim holds for incapacitation. Taking a public health approach to criminal behaviour would allow us to justify the incapacitation of dangerous criminals when needed, but it would also make prevention a primary function of the criminal justice system. So instead of myopically focusing on punishment, the public health-quarantine model shifts the focus to identifying and addressing the systemic causes of crime, such as poverty, low social economic status, systematic disadvantage, mental illness, homelessness, educational inequity, exposure to abuse and violence, poor environmental health, and addiction.

Since the social determinants of health and the social determinants of criminal behaviour are broadly similar, or so I argue, the best way to protect public health and safety is to adopt a public health approach for identifying and taking action on these shared social determinants. Such an approach requires investigating how social inequities and systemic injustices affect health outcomes and criminal behaviour, how poverty affects health and incarceration rates, how offenders often have pre-existing medical conditions including mental health issues, how homelessness and education affects health and safety outcomes, how environmental health is important to both public health and safety, how involvement in the criminal justice system itself can lead to or worsen health and cognitive problems, and how a public health approach can be successfully applied within the criminal justice system. I argue that just as it is important to identify and take action on the social determinants of health if we want to improve health outcomes, it is equally important to identify and address the social determinants of criminal behaviour.

Against my model, Zaibert offers a number of objections. First, he correctly notes that “Caruso wants to replace [our current] criminal justice systems with a public health-quarantine system that, more than non-retributive, is explicitly non-punitive”. That’s correct. The public health-quarantine model is not only non-retributive, it is also non-punitive in that it offers an alternative to legal punishment rather than a justification of it. Zaibert considers this “terribly untenable” but doesn’t explain why. Without further argument, then, I will simply dismiss this gibe as a failure of imagination.

Zaibert also makes a number of other unfounded gibes or mocking remarks – most of which I will simply ignore. There are, however, at least four objections worth commenting on. First, Zaibert claims: “Caruso sees no important normative difference between our hospitals, our prisons, and indeed our lightning rods, our sump-pumps, and so on”. I’m not sure what lightning rods and sump-pumps have to do with institutions like prisons and hospitals, but I do acknowledge a normative difference between prisons and hospitals. I just think that traditional prisons – understood as punitive institutions aimed at giving wrongdoers their just deserts – fail to be justified on retributive grounds. And since most prisons in the United States, United Kingdom, and Australia are inhospitable and unpleasant places specifically designed for punitive purposes, the public health-quarantine model would require us to redesign the physical environments and spaces we incapacitate people in so as to better serve the goal of rehabilitation and reintegration. If Zaibert wishes for our prisons to remain the same – cold and inhospitable places that not only incapacitate but seek to punish offenders – then that’s on him, not me. In fact, it only further highlights a major difference between the retributive approach to criminal behaviour and the public health-quarantine approach – one aims at giving wrongdoers their just deserts, while the other aims at rehabilitation and reintegration.

Second, Zaibert repeatedly accuses me of some kind of Wittgensteinian contradiction when I claim that it is fundamentally unfair and unjust to hold people truly deserving of blame and praise, punishment and reward. This is because, according to Zaibert, the sceptical perspective entails that “nothing is ever ‘truly’ unfair or unjust”. This, however, is mistaken. While some critics have argued that free will sceptics are not entitled to appeal to justice and fairness, since talk of justice presupposes deontological and/or desert-based claims that we are not entitled to, I have never quite understood this charge. Unless one were to think that all theories of justice had to be desertist (i.e., grounded in desert), there is no reason to think this claim has any merit. Yes, there are desertist theories of justice that hold that justice is fundamentally a matter of receipt in accord with desert. The idea seems to be present, for example, in certain passages in Aristotle, Leibniz, Mill, Sidgwick, and Ross. There are, however, several prominent theories of justice that are not desertist, including the well-known theory of John Rawls. And in Chapter 6 of the book, I defend a capabilities approach to social justice and argue that it is perfect consistent with the rejection of free will and basic desert moral responsibility. As long, then, as we understand justice in terms of a non-desertist theory, there is no reason free will sceptics cannot appeal to the notion of justice and all that it entails.

Third, Zaibert complains about my appeal to autonomy and its importance. He writes: “does not the very talk of autonomy – i.e., self-rule, self-determination – presuppose precisely the sort of free will that Caruso denies? Truly a leitmotif in Caruso’s book, the inconsistency of which Wittgenstein famously discussed, whereby Caruso criticizes a practice by presupposing notions constituted by that very practice, reappears yet again”. Here again, Zaibert is being uncharitable and attacking a strawman. As a free will sceptic, I do not deny that there are important differences between agents who have the kind of control compatibilists have identified. Such distinctions are undeniable. A normal adult who is responsive to reasons, for instance, differs in significant ways from one who is suffering from psychopathy, Alzheimer’s, or severe mental illness. I have no issue, then, with acknowledging various degrees of “control” or “autonomy” – in fact, I think compatibilists have done a great job highlighting these differences. My disagreement has more to do with the conditions required for what I call basic desert moral responsibility. As a free will sceptic, I maintain that the kind of control and reasons-responsiveness compatibilists point to, though important, is not enough to ground basic desert moral responsibility – i.e., the kind of responsibility that would make us truly deserving of blame and praise, punishment and reward in a purely backward-looking sense. There is no inconsistency, then, in free will sceptics talking about degrees of autonomy or pointing to the importance of reasons-responsiveness. They simply deny that these abilities are sufficient for basic desert moral responsibility.

Finally, Zaibert points to the fact that not all wrongdoers continue to be threats after doing wrong. He writes: “Nothing prevents a wrongdoer from having an epiphany – or from having an accident that leaves her paralyzed and unable to cause any further harm – immediately after doing wrong”. He goes on to ask, “why should we quarantine wrongdoers who no longer pose threats?” My answer would be we shouldn’t. If we were absolutely certain that a violent offender poses absolutely no forward-looking threat, then I would bite the bullet and say incapacitation would not be justified in such a case. I know this is unsatisfying for those with strong retributive impulses, but I reject retributivism. My justification for incapacitation is grounded in the right of self-defence and prevention of harm to others, and in this case, there would be less restrictive measures available short of incapacitation to protect public health and safety. That said, in most real-world cases, prior behaviour is our best guide to future risk, and some period of incapacitation would most likely be required to assess and determine the continued threat posed by seriously violent offenders. We may also be justified in engaging in other non-punitive measure, such as those aimed at fact finding, restorative justice, and/or civil liability.

While there is much more I would like to say in defence of the public health-quarantine model, I hope I have done enough to entice readers to check out the book and to see my more extended replies to critics in the Journal of Legal Philosophy. I leave it to readers, then, to decide for themselves whether we should embrace or reject retributivism.

Gregg D. Caruso is Professor of Philosophy at SUNY Corning and Honorary Professor of Philosophy at Macquarie University. He is also the Co-Director of the Justice Without Retribution Network (JWRN) at the University of Aberdeen School of Law. His research interests include free will, agency, and responsibility (both moral and legal), as well as philosophy of mind, cognitive science, neuroethics, moral psychology, criminal law, punishment, and public policy. His latest book, Rejecting Retributivism: Free Will, Punishment, and Criminal Justice, was published this year by Cambridge University Press.

Website: greggcaruso.com

Twitter: twitter.com/GreggDCaruso



 

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