Flickers of Freedom

Punishment and Blame within Criminal Justice

Thanks to everyone who commented on my first post and made the discussion so useful and rich, at least from my point of view! Happily, that discussion led into issues in mental health, public policy, and criminal justice, connecting to what I had planned for this second post. So it’s natural to pick up the thread here.

As well as working clinically with patients, I’m also currently developing a training for prison officers, to teach them how to distinguish responsibility from blame in theory and in practice, as part of an initiative to increase awareness and skills working with personality disorder (PD) and promote a more rehabilitative environment within prisons. On a purely personal note, going into prisons has been hard. Over time I’ve become much less scared, but I still can’t bear being locked in, dependent on the officers and their keys to get out. Every time I go, I can’t quite believe we’ve ended up doing this to people, no matter what they’ve done. So I certainly think there’s reason to re-think radically the entire system, on multiple grounds. However the training I’m developing and the theoretical work that underpins it aims to be pragmatic rather than revolutionary – and that’s what I’m going to blog about today. No utopian ideals!

We currently spend millions and millions imprisoning offenders. Meanwhile there’s some real and plenty of anecdotal evidence that one of the best ways to increase re-offending is to put people in jail – arguably, you really couldn’t design a better environment to entrench criminality if you tried. Yet 66% of male offenders and 50% of female offenders have PD – they have many of the same mental health problems and psycho-socio-economic backgrounds as patients in the community who we know we can help in Therapeutic Communities and other forms of treatment program. Therapeutic Community prisons have a relatively long history now in the UK and indeed recent research suggests they reduce re-offending among violent offenders and other perpetrators of serious crime by about 25% (with certain caveats, e.g. a prisoner who has completed treatment within a TC prison cannot then be returned to a normal prison or the gain in reduced risk of re-offending is lost). Why not aim to shift the culture in all prisons to a Therapeutic Community / Responsibility without Blame model, thereby helping to address mental health needs while at the same time reducing re-offending rates? We’re spending so much anyhow this would cost next to nothing in comparison – especially if you factor in the reduction in spending on re-offending it would hopefully achieve. The main thing required is the training of staff and the alteration of the nature and structure of the prison environment, as well as a real shift in attitudes towards offenders – in the courts, prisons, probation services, and of course also society at large.  

What gets in the way? Well, culture shifts are not easy to orchestrate, so there’s that major practical issue. But I’ve been extraordinarily impressed by the commitment and initiative of many of the staff I’ve met in prisons – it’s of course not universal, but there are plenty of people who are really up for trying to change the system. I believe we could do this, if we wanted to (as they already have in Nordic prisons). But we don’t. Why not? One of the major obstacles, in my view, comes from the idea that people who are responsible for terrible crimes deserve to be punished for their actions.  In other words, part of the problem is the prevalence of ‘just deserts’ theories of punishment.

Punishment requires justification. Step back for a moment and think what we actually do to people when we imprison them. We condemn them, ostracize them from their family and community, deprive them of liberty and access to goods and opportunities that we normally and arguably by right expect, and may further allow them to be the victims of mistreatment, violence, and rape within prison walls. Such ‘hard treatment’ (as it’s blandly known) requires justification if it is not to be a flagrant violation of the basic moral norms in our society. Just deserts theories recognize this demand and argue that punishment is justified only and exactly in so far as the hard treatment is inflicted in response to, by reason of, and in proportion to blameworthiness. Blameworthiness in turn is a function of degree of responsibility and severity of offense. The requirement of responsibility ensures that punishment can never be justified on purely consequentialist grounds, while proportionality provides a limit to punitive excess. Thus constrained, just deserts theories typically hold that it is right that people who do wrong are punished for that harm – made to suffer for their offense.

Just deserts theories certainly do not need to uphold the criminal justice system in its present form, or believe that the kind and degree of punishment meted out is on the whole proportionate or that the brutal conditions found in prisons are in any way acceptable. But these theories nonetheless typically offer a justification – with conditions and limits, of course – of retribution and retaliation. They therefore invite, encourage, and feed affective blame towards offenders. After all, we might think, given what these people have done, how could it not be right to respond with anger, resentment, disgust, contempt, or hatred, to judge their character harshly, and to act in ways that are aggressively or passive-aggressively expressive of these emotions and judgements?  (For a sobering recent example of this kind of attitude, check out David Cameron’s “victory of common sense” speech applauding the decision that prisoners not be given the right to vote – a possibility he earlier remarked made him feel “physically sick”: http://www.telegraph.co.uk/news/politics/10382322/David-Cameron-hails-victory-for-common-sense-as-prisoners-lose-right-to-vote-ruling.html )

I don’t deny that we all, myself included, feel this way at times when faced with truly terrible crimes. But it is one of philosophy’s roles to questions and probe aspects of our conceptual scheme that, in ordinary life, we take for granted. Why, then, is it right to respond to criminal wrongdoing with retributive and retaliatory emotions and attitudes? They are not essential to our concept of punishment even if they are commonly associated with it, especially in criminal contexts. Consider e.g. how a parent can punish a child, not out of any anger or vengeance, but with love, both to uphold a rule and teach the child to do better. So here’s a challenge: if we are going to cleave to retributive and retaliatory attitudes towards offenders, we need to specify and justify the sense in which it is right to have these in response to serious crime as a component of punishment.  Just deserts theories do not typically offer this. Rather, they justify and limit punishment, but without offering a specific justification for the emotions and attitudes that commonly, although not necessarily, accompany and motivate punishment in criminal justice contexts. 

As you can no doubt guess by now, I am sceptical that this can be done – I will leave it to you to make suggestions if you wish. Rather, I want to end this post by trying to describe the attitude towards emotions we take in the clinic (and that came up at different points in the thread following my previous post) because of how unusual and decidedly non-justificatory it is.  As such, I think it offers an interesting and welcome alternative to the attitude we so often take to our emotions, in philosophy and outside it. I’m not yet sure quite how best to articulate this clinical position (and really welcome any questions and suggestions to help clarify that you have). But one way to describe it is this: in the clinic, we validate emotions without evaluating them. By ‘validate’ I mean we acknowledge and try to understand how a person is feeling. By ‘evaluate’ I mean we don’t hold to the idea that people should or shouldn’t feel a certain way – that there is, from a moral point of view, a right or wrong way to feel.  

Let’s start with a distinction that is essential to any proper theory of the emotions and which is well-articulated by D’Arms and Jacobsen (“The Moralistic Fallacy: on the ‘Appropriateness’ of Emotions”): the distinction between the truth of whatever representation an emotion is responsive to, and the appropriateness – as it’s typically termed – of the emotion. To take the kind of example we’ve been discussing in these posts, suppose I feel affective blame towards one of my patients. That blame is responsive to a representation of the patient as blameworthy. That representation may be conscious or unconscious, justified or unjustified, true or false. In the ideal rational case, it is conscious, justified, and true. At the other extreme of irrationality, it may be unconscious, unjustified, and false – it’s “my issue” as we say in the clinic. If I come to realise that my representation of the patient as blameworthy is false, then that may affect my feelings towards them – again, this is the ideal rational case. But we and our emotions are often less than ideally rational. My feelings of affective blame may persist despite my knowledge that it is “my issue” – and however much I wish they didn’t.

Now let’s suppose, further, that in this particular case my patient is indeed blameworthy. It’s still inappropriate of me to feel affective blame in my clinical role. Quite often in philosophical discussions of emotions, this notion of “appropriateness” carries a moral connotation. In the clinic, it doesn't. 

What does it mean? People’s emotions can certainly be out of sync with cultural expectations or conventions and so "inappropriate" in this modest sense. They can also be productive or counter-productive in so far as they fail to serve various ends, including but not exclusively moral ends. Here’s another example, to flesh this out.  Suppose a patient is isolated, lonely, and truly desperate to make friends. But they are easily angered and lash out, sometimes even in violence, doing harm to others. Then there are two kinds of reasons to help them address and manage their anger, relative to two different ends they – and we – may have. On the one hand, there is the end of improved mental health and wellbeing: the anger is getting in the way of making friends, which is a clearly identified health need. On the other, there is the moral end of reducing violence: the anger inclines them to behave badly. But from the fact that their anger inclines them towards immoral behaviour it does not follow that their anger itself is intrinsically immoral or that it is morally wrong to be angry.  All that follows is that their anger is instrumentally counter-productive, to health and moral ends alike. Equally, from a practical point of view, telling a patient that they shouldn’t feel angry is probably the worst thing we could do – it’s a bit like telling someone not to think of a pink elephant. So in the clinic, what we do is validate their anger: the anger is OK, even understandable (indeed, it’s OK and often enough understandable even when it’s totally irrational). It’s what they do with it that isn’t: violence is not OK. But that’s alright, because although patients can’t directly change how they feel, they can directly change how they behave. 

So, although we often encourage patients to do a reality check, and reflect on the justification or veridicality of a representation guiding an emotion, we do not evaluate the emotion itself as morally appropriate or  not. Rather, we assess emotions only as culturally in or out of sync, or productive or counter-productive as means to ends  –  instrumentally desirable or otherwise to various purposes, including moral ones, but not intrinsically right or wrong. 

I think we spend far too much time in philosophy and in ordinary life justifying our emotions and getting on a sort of moral high-horse, e.g. about how other people warrant our anger, resentment or hatred, or how we are entitled to our vengeance and contempt in the face of culpable wrongdoing. So it’s not only first-order emotions that can get in the way of achieving valuable moral ends. It’s equally the second-order attitude we so often take towards these first-order emotions. So here’s the pragmatic proposal. Never mind anything so radical as abolishing prisons. Instead, as a first step, let’s try to change aspects of our typical affective response to offenders – in courts, prisons, parole services, and the wider world. Perhaps we can actually learn how to avoid the first-order emotions that are presently part of our typical response – although we can’t directly decide not to feel these things, there are nonetheless ways of changing our propensities, as found in the clinic (I discussed some of these ways in the thread following the previous post, although no doubt there is more to be said). But surely we can more easily change the second-order attitude we take towards any such emotions we have – rather than insist upon the intrinsic moral appropriateness of our feelings, we can instead ask whether they are instrumentally productive to indulge and to act on given the moral (and other) ends we have.

In other words, we can adopt a Responsibility without Blame model within criminal justice, and reconceive punishment as serious and no doubt also typically negative consequences imposed in response to, by reason of, and in proportion to the offense, but without inflicting these consequences with or out of affective blame. Rather than impose consequences self-righteously, to make people suffer and satisfy our retributive and retaliatory instincts, we can impose them (similarly to what we do in the clinic and sometimes as parents) to uphold the law, to help people change, and with an attitude of respect, and yes, compassion. Responsibility is still a necessary condition for the just imposition of consequences, and proportionality still an important limit. Equally crucial is the fact that the wrongdoing is condemned, and the law upheld, by the demand for accountability and the imposition of consequences in response to crime. But without affective blame, these consequences can potentially be used to further genuinely rehabilitative ends within criminal justice. Hate the sin – but even if you can’t bring yourself to love the sinner, you don’t have to think it’s right to affectively blame them.

Responsibility and Blame in the Clinic

To begin, some background: I work part of the week in a Therapeutic Community (which is a distinctive kind of group treatment programme) for patients with personality disorder (PD). PD is diagnosed by extreme and overwhelming emotions, maladaptive and somewhat irrational beliefs, and “problem” behaviour like self-harm, aggression, violence, crime, alcohol and drug misuse, and severe difficulties in maintaining good relationships and fulfilling social roles and duties. Some of this behaviour is straightforwardly criminal, much of it is immoral, and almost all of it does real and lasting harm, to patients themselves, and to their families, friends, and others who may find themselves in the wrong place at the wrong time. Perhaps as you might then expect, patients with PD have long been stigmatized within mental health services as the patients “no one likes”.  They’re challenging and hard to work with because – to put it straight – they can behave so badly.

But we can really help these patients if we adopt a stance that I call “Responsibility without Blame”. Here’s what this means. The problem behaviour is voluntary. Patients with PD are not mentally ill and they know as well as most of us do what they are doing when they act. They have choice and control over their behaviour at least in the minimal sense that they can refrain – which they will often do if sufficiently motivated.  That does not mean that refraining is easy.  Here a little more background is important: PD is associated with extreme early psycho-socio-economic adversity. Most patients come from dysfunctional families or they may have been in institutional care. Rates of childhood sexual, emotional, and physical abuse or neglect are very high. Socio-economic status is low. Additional associated factors include war, migration, and poverty. Problem behaviour is often a learned, habitual way of coping with the distress caused by such adversity, and patients may have hitherto lacked decent opportunities to learn alternative, better ways of coping. So, until the underlying distress is addressed and new ways of coping are learned, restraint is hard.

Despite being hard to refrain from, the problem behaviour is still voluntary. This means that the basic way to help patients change it is to get them to “take responsibility” for it by expecting and encouraging them to choose differently and holding them responsible and to account when they don’t. We do this through a variety of means – I can tell you more about these if you want – but crucially for our purposes here, these means include making clear that the behaviour is unacceptable and creating a group culture in which the patient is expected to reflect and talk to the group about why they did it, undertake not to do it again, potentially make amends, and even on occasion accept the imposition of negative consequences in response.  

But this treatment is only effective as a way of facilitating behavioural change if we do it in a supportive, respectful, understanding and compassionate way – a way that maintains dialogue and good relations with patients, opening up the possibility for reflection, and listening with concern to their perspective and voice. In other words, we need to do it, and create a group culture that does it, without blaming patients.

When I first started working with PD patients, this culture was like an alien world. I saw what my colleagues were doing, but I couldn’t even really make sense of it conceptually, let alone do it in practice. If a patient got angry and threatening towards me for no good reason, I would get angry, scared, and judgemental back: I resented them, I didn’t like them, and I didn’t want to work with them. How, let alone why, not? I could make sense of the idea that perhaps, despite appearances, my patients were not in fact responsible for their behaviour because they had PD, and so they shouldn’t rightly be held to account or blamed (so, my reaction was out of place). And I could equally make sense of the idea that they were responsible despite having PD, as so should be held to account and blamed (so, my reaction was on the mark). But the idea that they were responsible and should be held to account but not blamed struck me as a philosophical, never mind practical, conundrum.

When I train prison officers to adopt the clinical stance of Responsibility without Blame, I explain it in the very simplest terms I can. Responsibility is about the patient/prisoner and whether their behaviour is voluntary. Blame is about you and how you respond to the patient/prisoner. As philosophers, we want to understand and articulate both responsibility and blame in more nuanced terms, but this simple distinction is the core of the clinical stance. We can substitute in a more sophisticated set of conditions than ‘voluntariness’ to give an account of responsibility (choose your favourite). And we will need to say a lot more about what exactly it is to respond to someone with blame (for a start, see below). But in effect, the clinic offers a real-world counter-example to a Strawsonian-style account that understands the idea of responsibility itself and/or our practice of holding responsible in relation to the reactive attitudes: we divorce responsibility and accountability from the attitudes we commonly feel towards those who do wrong. And this allows us to make judgements of responsibility and hold to account in the presence of other feelings and attitudes, like e.g. respect and compassion. The pay-off of doing this is real: we help people change so that they do less harm to themselves and others.

A final bit of background before I end by saying a little more about the nature of blame: obviously reactive attitudes can’t be turned on and off at will – there’s a lot to say about what allows clinicians and other group members to avoid blaming patients when they do wrong. But I cannot emphasise enough how real a risk is inherent in blame. We all have some experience ourselves of what it feels like when we do something wrong and then get blamed for it – it can be pretty awful, and you may need to be psychologically robust to deal with it productively. In the case of patients with PD, most of whom are already vulnerable and marginalized and not psychologically robust, being blamed can trigger childhood memories and feelings of rejection, anger, shame, and indeed self-hatred and self-blame, which increase the chance they disengage from treatment and fall into hopelessness and despair, potentially leading to self-harm or attempts at suicide.

There’s a lot to be said about the nature of blame and what it is to respond to someone with it. Here I want really to make one crucial initial point, which is that blame comes in two forms, that I call ‘detached’ and ‘affective’. Detached blame is just a judgement or belief that a person is responsible for harm or has done wrong (blameworthy, as we often say, but since I’m arguing that we shouldn’t blame even when a person is responsible for harm, you can see why I don’t want to use that term!). We can make that judgement or have that belief without feeling or doing much of anything (e.g. imagine you make it in a history lesson at school about a ruler from the distant past). Affective blame on the other hand involves emotions (e.g. anger, resentment, disgust, contempt, hatred), harsh and negative character judgements (e.g. writing someone off as bad, worthless, a disgrace to the human race), and actions that express these emotions and judgements (e.g. acting aggressively by punishing and retaliating, or passive-aggressively by rejecting and ostracizing). Detached blame is OK in the clinic – indeed, we form these detached judgements all the time when we hold patients to account. Affective blame is not OK – it counters effective treatment.

Very crudely, anti-blame arguments usually derive from determinism plus incompatibilism: blame is not deserved because free will and therefore responsibility is an illusion. In the clinic, we treat responsibility as real and indeed essential to our purposes but we are anti-blame nonetheless because blame, unlike responsibility and accountability, is instrumentally counter-productive to effective treatment and therefore also to the moral ends I hope we all endorse, namely, reduction of the amount of wrongdoing and harm in the world.  So here’s a question to end on. Suppose there’s a stark choice. You can either hold on to the idea that the emotions, thoughts, and actions constituting affective blame are deserved by those who do wrong and indulge in them, or you can give them up and reduce the amount of wrongdoing and harm in the world. Remember you get to hold wrongdoers responsible and to account if you give up blame – you just need to do it with a different, gentler attitude! What would you choose?

Introduction

Hello everyone and thanks to Thomas for the invitation and warm welcome to the blog! I don’t know very many of you who contribute regularly and I’m really glad for this opportunity to meet people and discuss some ideas. As Thomas hinted when he passed the torch, my blogging is going to be partly philosophical and partly experiential  - I want to write about what it’s like to work with patients with personality disorder and also deliver training in prisons, and how that has shaped my philosophical views about responsibility, punishment, blame, and the emotions more generally. Although I’ve never met Tamler Sommers and he has every right to distance himself from what I’m about to say, one way of seeing what I’m offering is as a piece of cultural anthropology of the sort his work has championed – a description of a strikingly different practice of holding responsible than what we’re used to, and an equally different understanding of the right role for the reactive attitudes. But unlike many of Tamler’s examples which come from different historical periods or geographical places, this culture exists here and now, among us, e.g. in personality disorder clinics and, somewhat amazingly, increasingly in prisons in the UK. I want to try to convince you to take seriously the idea that this culture is not only possible to achieve, but also instrumentally desirable and morally good, in the clinic, in prisons, and perhaps even in ordinary life.

My plan is to post today about responsibility and blame in the clinic, and then to post next week about punishment and blame within criminal justice theory and practice. I’m then going to take a break for a bit, but post again at the very end of the month, changing topic to addiction. Finally just a reminder: I’m in the UK so in a different time-zone from many of you ... so if I suddenly go quiet in the middle of a discussion, that may be why! OK here goes ...

Passing the Featured Author Torch!

For starters, I hope everyone's 2014 is off to a good start!  Thanks to the contributors and readers of this blog, 2013 was a banner year here at Flickers of Freedom.  Hopefully, we can keep that trend going in the year ahead.  For now, it is time to once again pass the torch from one Featured Author to the next.  So, first let me thank Joe Campbell for doing a great job stirring up discussion during the busy month of December.  I found the posts about the varieties of compatibilism and revisionism especially illuminating and I look forward to seeing these issues fleshed out in more detail moving forward.  In the meantime, I want to welcome the next Featured Author--Hanna Pickard.

Dr. Pickard is a Wellcome Trust Biomedical Ethics Clinical Research Fellow in the Department of Philosophy and a Fellow of All Souls College at the University of Oxford. She is also a therapist at the Oxford Health NHS Foundation Trust Complex Needs Service, which is a therapeutic community for patients with personality disorders and related problems. She specializes in the philosophy of psychiatry and clinical ethics, investigating philosophical issues that arise out of clinical practice and related science. Her central, current project involves articulating the nature of the concepts of responsibility and blame that are used within effective clinical treatments of personality disorder, and exploring their application within the criminal justice system and prisons. She also works on the nature of addiction, self-harm, violence, emotions, and psychosis.

Dr. Pickard is currently developing a Responsibility without Blame training program for prison officers, as part of a government initiative to promote a more psychologically informed and rehabilitative environment within prisons. Fortunately for us,  she will be blogging about these and related issues later this month.  For instance, on her view, rather than preserve, enforce, or constitute morality, blame in empirical fact is hugely counter-productive to addressing immoral actions in the offending population.  Needless to say I am especially excited to hear about her experiences with the prison system and how these experiences have shaped her first order philosophical views!  So, please join me in welcoming her to the Featured Author series!

For now, however, we will have to wait a bit as Dr. Pickard is going to be blogging during the second half of the month (which I suspect will be the new format for the series moving forward). So, if you have some issues you've been wanting to post about but you haven't wanted to step on any toes, now is your chance!  This will also give everyone a chance to continue their conversation both with Joe Campbell and Peter Tse from last month!  That said, thanks again to everyone for doing their part to make this the best philosopy blog on the web!  Here's to a productive and interesting 2014!

p.s. I have a few other Featured Authors lined up as well (e.g., Randy Clarke, Kristin Mickelson, Josh Shepherd, Justin Coates, Zac Cogley, Matt King, and others), but I am still working on the best format moving forward.  For now, I want to see how the two week stints go!  So, stay tuned for details!