Unconscious Mens Rea, part 2

In my last post I discussed the case of Bert, the father who honestly forgot it was his weekend to take care of his kids, and was found guilty of child abandonment. I indicated that those who don’t attribute moral responsibility to agents for harm caused by lapses could support punishing Bert based on purely forward-looking aims of punishment, such as deterrence. Indeed, I suggested that some intuitions finding Bert responsible may stem from beliefs about deterrence and maybe not due to the presence of some condition that justifies holding Bert morally responsible.

However, I’m now going to come clean and admit that I think Bert IS morally responsible for the harm he caused to his kids. (Many of you who commented seemed to agree.) I’m going to argue that, if the facts of Bert’s case justify punishing him on grounds of deterrence, then those same facts also mean that Bert meets the conditions for minimal moral culpability.

Punishing Bert based on pure deterrence grounds indicates that we think Bert may be specifically deterred from child neglect and abandonment in the future due to his experience of being punished. This seems right: I can imagine that Bert, despite getting a sentence of probation, may be shamed enough by his encounter with the family court system to be more careful about caring for his kids in the future. Similarly, I can imagine a parent who heard about Bert’s case in the news being more careful about her custody schedule after hearing about Bert’s arrest. (This may be due to the worry about being punished, or just a heightened awareness of a possible lapse with regard to their kids’ care.)

If we think that Bert is capable of conducting himself such that he doesn’t lapse and violate the law due to the threat of punishment, this means we think the standard of care that constitutes a violation of the law is known, or should have been known, by Bert (if somewhat nebulously). Further, that Bert’s punishment can have this effect on his behavior suggests that the behavior triggering and targeted by the punishment is within his control.

I think this may mean that anyone who supported Bert’s forward-looking punishment actually implicitly supported assigning him direct moral responsibility. The efficacy of his forward-looking punishment rests on him having had the capacity to manage his behavior such that he met a particular standard of care. But the control and knowledge conditions discussed above sound suspiciously like grounds to attribute moral responsibility, even though Bert possessed no conscious awareness that the decision related to the lapse would cause criminal harm. For example, Fischer and Ravizza (1998) claim one has guidance control over an action if it is caused by a moderately reasons-responsive when an act is issued from a mechanism that is regularly receptive to reasons. If we think application of punishment to Bert means he, and others, may be deterred in future, we presumably also think the same threat of punishment may have deterred Bert, and the others, in the past. Thus we think Bert could have responded to the law as a reason not to lapse – that is, we think his act issued from a reasons-responsive mechanism. 

To put the argument in slightly different, more legalistic, terms: Those who would deny moral responsibility to Bert might support punishing him based upon forward-looking aims of punishment. But application of such punishment entails the idea that persons have the capacity to avoid lapses due to the threat of punishment. In Bert’s case, this means he both knew of and had the capacity to meet the legally required standard of care. When one has the capacity to know of and meet legally required standards of care, they are morally obligated to do so. Thus Bert is morally responsible for the violation of the standard of care due to his lapse.

This analysis of Bert’s case indicates his lapse may be best understood using a negligence standard. In most cases, a defendant found guilty of a crime is found to possess conscious mental states with regard the criminal harm she caused: she acted for the “purpose” of achieving the harm; she “knew” the harm was likely to occur; or she “recklessly disregarded” the likelihood of harm. However, in some cases criminal guilt is assigned even where there the defendant seems to have possessed no conscious mental states with regard to the criminal harm utilizing a negligence (or even a strict liability) standard. The law does this in cases where the criminal harm can be properly attributed to the defendant even though they lacked such agency, because he has culpably violated an important standard of care.

Violation of a standard of care is the hallmark of negligence. HLA Hart claimed instances of negligence were culpable as cases of unexercised capacity of choice to avoid risk (Hart, 1968). That is, Hart argued that assuming defendants have the capacity to choose to avert risk, they must have that capacity in at least some cases when they don’t avert risk, even where that risk was not consciously foreseen. Moore and Hurd, however, indicate negligence cases are a “dog’s breakfast,” meaning many of them appeal to different capacities, and have little in common besides a lack of specific mental states (Moore and Hurd, 2011). They provide a list of categories of capacities that defendants may fail to exercise such that they are negligently culpable, including: failure to address a dispositional lack of awareness of the risk; failure to address a risk related to character or psychological flaws the defendant knew about; and violation of a known mini-maximum (such as never leave a baby unaccompanied in the tub) (Moore and Hurd, 2011).

Note that in each of these types of negligence cases there is a capacity to abide by a standard of care (one was aware of or should have been aware of), and then a failure to exercise that capacity – exactly what is required for a punishment to have a deterrent effect. This is what amounts to “minimal culpability” in the law. Even in cases of strict liability – where the law claims to require the defendant possess no mental states with regard to the criminal harm – that harm has to be tied to a culpable (not “purely innocent”) act; it cannot be the result of an earlier, fully legal, decision (Brown, 2012). Brown argues that strict liability is applied in categories of cases where actors are oftentimes negligent, and in some cases reckless. The classic case of strict liability is statutory rape, where a defendant is held responsible for having sex with someone underage, even if they did not know what the person’s age was. Legal scholar D. Brown argues courts are especially willing to imply this required “minimal culpability” in cases involving a victim’s age or where the offense involves a weapon (Brown, 2012). “Strict liability does not reject culpability’s relevance but merely serves it imperfectly; strict liability is a clear rule with the inevitable weaknesses of clear rules—it is over inclusive for some cases” (Brown, 2012).

In my next post I want to explore minimal moral culpability in more detail. Can we hang such minimal culpability on indirect moral responsibility via tracing conditions? Matt King says no, and I’m inclined to agree.

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Comments

[Ben M-Y]

Hi Katrina,

Thank you for these interesting posts.

I have a question about two claims you make in the most recent post regarding what we assume about the capacities of the agent when we judge that punishment is warranted on grounds of deterrence.

You say: "If we think that Bert is capable of conducting himself such that he doesn’t lapse and violate the law due to the threat of punishment, this means we think the standard of care that constitutes a violation of the law is known, or should have been known, by Bert (if somewhat nebulously). Further, that Bert’s punishment can have this effect on his behavior suggests that the behavior triggering and targeted by the punishment is within his control."

And a little later, you say: "If we think application of punishment to Bert means he, and others, may be deterred in future, we presumably also think the same threat of punishment may have deterred Bert, and the others, in the past."

In both of these places, it seems to me that you are claiming that a judgment that punishment is warranted on grounds of deterrence--that is, on forward-looking grounds--commits us to a judgment that the agent satisfied certain conditions in the past, namely, at the time of the action. I need some help seeing why this is so.

One complaint against deterrence as justification for punishment is that it does not take account of the agent's capacities at the time of the action, but only in the future. You seem to be denying that this complaint is well-founded. Perhaps you have a more nuanced view of deterrence in mind, and that would be interesting to hear more about. Moreover, it seems that the knowledge condition you cite, in particular, could be satisfied in the future in virtue of the punishment--it made Bert aware of the standard of care. So it seems that the deterrence-based justification need not commit us to thinking that the agent satisfied the knowledge condition in the past, even if we do think that the justification of the punishment is bound up with him satisfying this condition in the future.

I would love to hear what you think about this. And thanks in advance.

[Katrina Sifferd]

Hi Ben, thanks for your comment. Yes, this is exactly the claim I am trying to make, although I'm sure I could have made it more clearly. Certainly, the principle of specific deterrence only requires that this experience of punishment right now impact Bert's actions in the future (e.g. make him more aware of the law's requirements, such that the can abide by them). But the principle of general deterrence claims that the threat of punishment for violation of laws or standards of care effect the behavior of the general population. Bert was a part of the general population before he committed his crime. When others were punished under the child abandonment laws before Bert was arrested, a theorist who believed in deterrence would have justified their punishment by the impact that application of punishment might have on the general population's likelihood of committing a similar sort of crime (including Bert). But if this general justification of punishment is to be taken seriously, it cannot only be applied in cases where a person is indeed deterred: we must also think that those who aren't deterred could have been deterred (barring some sort of excusing condition). Bert has no excusing psychological condition. If one is committed to deterrence as a justification for Bert's punishment, and others similarly situated to Bert, why does that justification fail to apply to Bert as a member of the general public before he commits his offense? That is, why does it not indicate Bert could have be deterred from his lapse/avoided his lapse?

Does that help?

[Wesley Buckwalter]

Hey Katrina, I agree that Bert has a moral obligation to fulfill his promise to care for the children when he was scheduled to, and that this obligation was not nullified by his mental lapse. I also believe that these intuitions are highly representative of the ordinary response to such cases. I did have a few questions about your argument though. First, I was wondering if deterrence-motivated punishment is a good indicator of moral culpability or implicitly ascription of direct moral responsibility. There seems like a lot of cases where we might want to deter actions through punishment that have nothing to do with morality specifically. Second, I was wondering if deterrence is what best captures why we think Bert is morally responsible for failing to fulfill his promise. For instance, fiddling with the details of the case lead me to assign moral responsibility along with different levels of punishment for failure. I can even create a case where Bert doesn’t seem blameful, say in which no amount of good will physically gets him to the appointment on time due to extenuating circumstances. But in that sort of case whatever the punishment ends up being minimal or severe really can’t motivate future behavioral changes relevant to preventing that failure.

On the other hand, there’s a great argument by Walter Sinnott-Armstrong, published the year I was born, that might be a close theoretical cousin to the forward thinking argument, in which failing to hold Bert responsible risks trivializes morality more generally for everyone in the future (http://philpapers.org/rec/SINOCI). The basic idea that if agents like Bert are off the hook, all one would have to do to nullify their moral responsibilities is set themselves up to experience situations in which one has some kind of genuine lapses!

[Ben M-Y]

Yes, Katrina, that does help. Thanks for spelling out the reasoning for me.

[Katrina Sifferd]

Hi Wesley, thanks for your great comments. I'm very excited to take a look at Walter's paper; that argument sounds like it may be very helpful. I agree that we want to deter behavior that may not be immoral (e.g. maybe some drug-taking behavior) for public health or other reasons. But I take it that a violation of a law that aims to increase public health or social order may be immoral precisely because it is the violation of such a law. And I agree that deterrence may not be our primary reason to hold Bert responsible. I'm attempting to get at the problem sideways - some think persons like Bert aren't morally responsible, but may be punished anyway. I'm hoping to argue that he can't be punished without unless he has a basic level of moral responsibility for his lapse. From there, how to ascribe him this basic level is up for grabs. One might think tracing conditions will do it, but I'm going to argue this won't work, and thus we need to look for some other theory of moral responsibility to punish Bert.

[Wesley Buckwalter]

Hey Katrina, thanks for clarifying. So in the op you said "anyone who supported Bert’s forward-looking punishment actually implicitly supported assigning him direct moral responsibility". But now it sounds like you are agreeing that punishing with the goal of deterring behaviour need not indicate a moral violation (even if it sometimes could in health or safety cases), is that correct? An example might be parking tickets, they justifiably deter bad parking we all agree is annoying but there's really nothing principally immoral in an of itself about bad parking (even if that could sometimes lead to moral implications in certain cases). If that's true, I'm wondering why your interlocutor can't say agents can be justifiably punished, perhaps successfully deterring a wide variety of different behaviours, without presuming there need be moral responsibility.

[Katrina Sifferd]

Hey, I'm afraid my earlier reply may have just muddied the waters. Let me try again. When I talk about moral responsibility, I'm thinking in terms of a theory that would provide the conditions for what might make an agent responsible for a thought or act such that they deserve praise or blame for it. E.g. a deep self theories, which claims responsible acts are expressive of our identities as practical agents, or control theories, which claim responsible acts express the kind of control required for culpability (guidance control). Both types of theories require, in a sense, that an action be one that issues from a person's agency in order for her to morally responsible. I'm arguing that if one thinks an agent could have been deterred from a lapse, that this may mean they had the capacity not to lapse. In this case the conditions might be met for responsibility for the lapse. I haven't spelled out under what sort of theory the lapser may be responsible, but on the table are indirect moral responsibility under Levy's consciousness theory, and some versions of control theory, as well as theories like Angie Smith's rational relations view (amongst others).

It is a separate question whether the lapse itself constitutes a violation of some moral code of conduct. It may or may not. We are morally responsible in the sense I'm speaking of above for both good and bad actions from the perspective of any code of behavior. The law is a code of behavior that may or may not echo some objective moral code with regard to which acts are right and wrong. (Natural law theorists say it must track this sort of moral code, and positivists say it need not.) Mens rea, however, seems to track moral responsibility in the sense above -- that it may establish a basic connection between agent and act such that the agent is morally responsible for it (deserves blame under the criminal law).

Thanks so much for continuing to push me so I am forced to think hard about what I'm trying to say!

[Wesley Buckwalter]

Hey Katrina, thanks again for the clarification, that was really helpful. So tell me if I have your argument right. Is the basic idea here supposed to be that despite what the Bert case might initially suggest about Bert's ability to make the appointment, our desire to punish him is best explained by the goal of deterring future appointment missing behaviour, and it only makes sense to have such a goal if he actually has the ability to deter, so then he must have had the ability to make the appointment all along? If so I'm wondering why that should mean that about the details of his past situation. My question before also involved the observation that we'd probably still want to hold him morally responsible even with pessimism punishment could deter.

[Katrina Sifferd]

That sounds about right. If Bert could have averted the risk, he is responsible when he fails to do so. But people may be morally responsible for actions where a threat of punishment could have had no effect...can you give me an example?

[Wesley Buckwalter]

Hey Katrina, so if that's the argument I'm having trouble seeing how forward focused punishment need imply anything about past ability to complete specific acts. Afterall the circumstances in which punishment might deter some future failed promises could just be completely different from the past circumstances of that one failed promise and thus tell us nothing about his mental situation in the past. Perhals the punishment deters him from more general acts of negligence. Or perhaps through punishment the agent gains perspective or treatment or something which affords him a new ability his past self didn't have and future failures are detered. All of these things lead me to question that link.

[Katrina Sifferd]

Well, Wesley, if I still haven't convinced you that inherent in the principle of general (not specific) deterrence is the notion that a normal agent within the general public has the capacity to avert a lapse/stay within a legally required standard of care given the threat of punishment, I should give up.

What hangs on this argument is whether a theory that claims moral responsibility requires consciousness of the moral implications of an act can punish a lapser using a purely forward-looking aim such as deterrence. You say yes, I assume.

My theory of Bert's moral responsibility is still forthcoming. We'll see what you think of it!

[Izzy Black]

Hi Katrina. Grad student here. I've been following your posts and I just wanted to say that I'm looking forward to seeing how you think minimal culpability might be explained, if not by way of tracing conditions. Like you, the case strikes me as a paradigm case of negligence, but my intuition is that Bert's negligence can be explained in terms of tracing considerations.

I suspect, however, that we don't know enough facts about the case to assess (at minimum) his moral culpability. For instance, if he did everything within reason (or might reasonably be expected) to know what dates he was supposed to have his children, and yet still forgot, then the lapse might be excused as a kind of fluke. Given what bit you've said about his past, however, this seems unlikely.

The fact that he failed to take his kids on scheduled dates in the past (and seems potentially flaky about cooperating on the parenting plan in general) actually suggests that it was quite likely he was even aware that he had a negligence problem, and apparently didn't do well to correct that problem. If that's the case, he might be blameworthy for not taking the necessary steps to ensure that he knows when it is his time with the kids (such as, for instance, checking with his ex-girlfriend before he leaves town on the weekend).

[Wesley Buckwalter]

Hey Katrina, thanks for the discussion. I agree with what you said about general deterence and the law, I just don't think that in principle those assumptions imply specific mental states or abilities must have been present in really specific past circumstances. I mean maybe they were anyway though, even if that implication doesn't work, Izzy makes a great point more details might help. Looking forward to hearing more about your theory soon!

[Neil Levy]

I just don't understand the basis for the inference from "if Bert is punished, that will have a salutary effect on his future behaviour" to "the behaviour for which we punished Bert is behaviour with regard to which he exercised guidance control". That inference requires that it not be the case that the punishment alters Bert's epistemic situation or his capacity for control. And I don't see why we should accept that. You mentioned that our punishing Bert might not only bring it about that Bert's behaviour is better in future; it also might bring it about that third parties behave better "due to heightened awareness of a possible lapse". You seem then to accept that interventions like this alter agents' epistemic context.

By the way, contrary to what you said in the last post, I am not your target.I don't think Bert may justifiably be punished, since I don't think anyone may justifiably be punished.

[Paul Torek]

Hi Katrina, great posts. I want to try to reach a congruent conclusion by a different route.

You pondered: "those who don’t attribute moral responsibility to agents for harm caused by lapses could support punishing Bert based on purely forward-looking aims of punishment, such as deterrence." And then you focus on general deterrence, and point out that it only works on people with certain capacities, and those capacities confer moral responsibility.

I want to point out that making an example of Bert (for general deterrence) is only morally allowable if Bert was morally responsible. If we reject strict act-utilitarianism, inflicting harms or burdens on someone requires that he did something, or threatens to do something, that justifies the harm. Merely benefiting society at large by harming him is not enough.

[Tom Clark]

Thanks Katrina for bringing Bert, poor fellow, to our attention. You say "the control and knowledge conditions discussed above sound suspiciously like grounds to attribute moral responsibility."

I like to raise the point that compatibilist conditions for MR are usually forward looking, but that MR itself is characterized by compatibilists as essentially deontological and non-consequentialist. Punishment is deserved, say compatibilists, independent of its behavior-guiding effects. How does this switch get justified, I wonder?

You say "If we think application of punishment to Bert means he, and others, may be deterred in future, we presumably also think the same threat of punishment may have deterred Bert, and the others, in the past. Thus we think Bert could have responded to the law as a reason not to lapse – that is, we think his act issued from a reasons-responsive mechanism."

It seems strange to me to say that his lapse - an omission really, not an act - issued from a reasons-responsive mechanism. Rather it's the failure of that mechanism to be engaged on that occasion that would explain the lapse (e.g., failure to consider the consequences of not being there to take care of the kids since he forgot that he was signed up to take care of them). We can punish such failures, hoping to make them less likely in future, but (on a conditional understanding of could) we can't suppose that Bert could have engaged the mechanism in the actual situation for which he's being punished.

[Neil Levy]

After an email exchange with Alan White, I realise that my comment was obscure. Here is what I was trying to say. If I understand her, Katrina was arguing as follows: an agent can be deterred only if she possesses guidance control over her actions. So if you think punishment can be justified on deterrence grounds, you are committed to thinking that the punished agent possesses guidance control, and therefore to thinking that the punished agent can be punished on non-deterrence grounds. Maybe, but it doesn't follow that the agent can justifiably be punished on non-deterrence grounds *for the token action* with regard to which we are supposing they may justifiably be punished on deterrence grounds. Deterrence base punishment requires that *subsequent* to the punishment, the agent possesses sufficient control over their behaviour to be deterrable. It is silent on whether they possessed sufficient control over their behaviour *prior* to their punishment. Suppose the following is true: my punishing Dimitri for his failure to X ensures that automatic mechanisms come to be sensitive to situations calling for X-ing such that Dimitri possesses control over his X-ing. Dimitri is now deterrable *because* he has been punished. But the mechanisms in question need not have been sensitive to these contexts prior to the punishment.

[David Duffy]

Just a thought that omissions as negligence are often judged on normative grounds - "what the average person would be expected to have done", which implicitly includes an estimate of how likely a particular lapse might arise in the applicable base population.

[Izzy Black]

"MR itself is characterized by compatibilists as essentially deontological and non-consequentialist. Punishment is deserved, say compatibilists, independent of its behavior-guiding effects. How does this switch get justified, I wonder?"

From a sentimentalist perspective, it's just that we find certain qualities of mind (i.e. intending to harm) arouses our sentiments or reactive attitudes in a particular way (indignation, resentment, etc). This is just a particular fact about our psychological makeup. We simply don't like those states of minds that wish harm upon others, and we admire those states of minds that seek to increase the happiness of others (the structure of these judgments thus seem largely utilitarian in character). What's relevant then isn't actual consequences, but intended consequences. This is consistent with our tendency to not wanting to find fault in an agent for producing effects accidentally or unintentionally, which might otherwise have particularly cruel results.

We still want to hold people accountable in those cases where it seems they "should have known" the effects, however. This creates a complicated problem for compatibilists who want to maintain a picture of MR strictly in terms of conscious intention and the reactive attitudes. Negligence is a problematic case for many compatibilists for this very reason (and typically requires a tracing move, which would be my strategy).

[Katrina Sifferd]

Hi Neil, thanks for that clarification! I think it helped me understand our exact point of disagreement. One might think that Bert lacks MR and thus cannot be punished on the basis of retribution, and instead aim to punish him using the purely forward-looking aim of deterrence. But I think if one looks closely, the aim of general deterrence assumes guidance control for agents within the general population (although this is a rebuttable presumption). (This idea that the threat of punishment generally deters agents from committing crimes - that is, the threat of criminal punishment is one reason people don't commit crimes, and more crimes would be committed if there was no criminal justice system, is pretty well-accepted by criminal law theorists.) This presumption of (weak) guidance control was not rebutted in Bert's case - he has no excusing psychological condition or story to tell. Now, maybe the guidance control we assume in agents when we justify punishment based on general deterrence is too weak to ground punishment on retributive grounds in any specific case. More argument would need to made on this point.

However, Dimitri experienced specific deterrence - he was actually punished, not just threatened with punishment. He is now more sensitive to reasons with regard to x-ing or not x-ing. Note that if Bert is once again convicted of child neglect or abandonment, his punishment will be more severe than it was on his first offense, partly because he ought to be more aware of his parental obligations after having been punished. (This is in keeping with our repeat offender, 3 strikes rules.) Whereas general deterrence seems to indicate some minimal level of culpability in the general population, specific deterrence indicates a heightened level of culpability in agents who have already experienced punishment.

[Katrina Sifferd]

Thanks for restating the problem so well, Izzy! I'm turning to tracing conditions next. Hopefully I'll have the post up in the next day or so.

[Neil]

Katrina, in claiming that the presumption of guidance control is not rebutted in Bert's case, you assume what is at issue. I claim that in cases like this one, the agent lacks guidance control. I think this is an essentially empirical question. I've tried to spell out what it takes psychologically to possess guidance control in a paper forthcoming in PPR.