Flickers of Freedom

Bleg: References?

A law school colleague is looking for stuff by philosophers that says something along the lines of "in order for it to be fair to blame/punish/sanction a wrongdoer, it is important that the wrongdoer know in advance of the wrongdoing the rule under which if they do that wrong, they will be subject to blame or punishment." Not quite the same idea, but close enough for his purposes is the idea that it isn't fair to punish someone unless they knew what the rule was prior to wrongdoing.

I take it that something like this is at the heart of lots of control-based theories of responsibility (especially as pertains to the knowledge condition), and I'm pretty sure a bunch of us have said things roughly along these lines. But it ain't obvious to me where to point his attention. 

What specific passages/articles/things should he look at?

The Holmes Trial: Some Concluding Remarks

So the curtain is drawn on the James Holmes theater massacre trial, and the final call on punishment is life without parole.  With the death penalty off the table, appeals won't be in the offing, so there can be no higher court ruling on the death penalty as applied to someone mentally ill, and I bet lawyers on both sides of the aisle (and the probably 4-5er Supreme Court on this) are relieved.

Let's recall how we got here.

 

I don't know what this means

It probably doesn't mean much, but I thought folks here might be interested in these, which I made over at the Google Ngram Viewer.  Apologies about the wonky spacing. I couldn't figure out how to fix it. As a result, the diagrams are below the fold...

A Piece on Restorative Justice and Forgiveness over at Slate

In response to Eddy's recent piece on compatibilism and punishment, Tamler suggested that a selling point of compatibilism is that is can accommodate restorative approaches to wrong-doing--which focus on rehabilitating the offender via atonement and making amends with the victims--in a way that skepticism about free will cannot. I sketched out a few responses in the comment thread on behalf of the skeptic. Then, this morning, I stumbled upon a recent piece over at Slate entitled, "He Killed Her Daughter. She Forgave Him." It's about restorative justice. Given that it's a concrete case, I thought some readers might be interested in checking it out. The question I have is whether the skeptic about free will can capture all of the salient features of situations like these. I think they can.  What do others think?

Related articles

Punishing with a Compatibilist Heart

Free Will Skepticism and Criminal Behavior: A Public Health-Quarantine Model

Punishing with a Compatibilist Heart

Inspired by the need to start thinking and learning more about punishment for a conference organized by Gregg Caruso, by Gregg’s interesting paper posted earlier this month, and by this post by Jerry Coyne on the Norwegian prison system, I thought I’d offer a few musings here to try to get some discussion going during the last week of our free month at Flickers. 

I want to suggest that compatibilist approaches to free will are best situated to deal with concerns about criminal punishment.  Here are some reasons why, which I’ll just present as a list of numbered claims, barely argued for, so people can refer to them in comments (and demand more argument!):

Free Will Skepticism and Criminal Behavior: A Public Health-Quarantine Model

Seeing as though this is a free month, I thought I would start things off by posting a draft of my paper on free will skepticism and criminal behavior. Since I will be using this paper as my  Presidential Address to the SWPS, as well as presenting it at Cornell University and Ghent University, I would really appreciate your feedback. Bruce Waller talked me into sharing the paper so I hope he kicks things off in the comments ;)

The paper appears below but if you prefer to read the PDF version it is available here.

The diachronic self, incarcerated*

In my last post I argued persons may be responsible for aspects of themselves that are under their diachronic self-control, and I highlighted self-interventions discussed by Roskies as important means to create and manage the culpable self. Such self-interventions include the ability to engineer ones’ environment so that it elicits or makes manifest valued dispositions, and does not realize those disvalued; intervening on ones’ future self by making commitments to future behavior or setting overarching policies; and practicing and strengthening the processes of self-control.

There is some interesting overlap, I think, between a diachronic self-control view and Aristotelian virtue theory. Virtue theory claims character is built by habituation, which involves building a trait via the use of practical reason. A stable disposition to act in accordance with a trait, such as honesty, is established as a result of being appropriately honest over time and in a variety of circumstances. Similarly, a disposition to be neglectful towards ones’ family is firmly established as a result of being neglectful over time. The resultant traits can be seen as flexible dispositions to behave that are in constant development or decline, depending on the choices that one makes (see Annas 2011; Webber 2006). Self-interventions such as manipulating ones’ environment and making commitments for future behavior can be seen as agent management of the processes of habituation.

It hardly needs to be said that when an offender is incarcerated, diachronic self-control and habituation of dispositions becomes extremely difficult within most realms because there are very few meaningful choices to be made. Offenders in prison are denied even the simple choices of everyday life. They are told where to stand, sit, and sleep; what to eat; if and when to exercise and shower; and often, who they can talk to. Very few incarcerated offenders have the possibility of meaningful work or project-oriented hobbies. Some have very limited access to TV or books. Most offenders in the general population of a prison or jail spend the majority of their time doing …nothing.

Most offenders under isolation orders can only do nothing. All versions of solitary confinement mean living 23 to 24 hours a day in a cell. Sometimes inmates are granted one hour for exercise, which usually takes place alone in an exercise room or a “dog run” (Haney 2003). Solitary confinement cells generally measure from 6 x 9 to 8 x 10 feet. They can have solid metal doors so inmates cannot see outside, and inmates inside are often banned from using a TV, radio, or reading supplies (Haney 2003). (Those interested in the horrors of solitary confinement should see Lisa Guenther’s great book on the subject.)

Almost all philosophical theories of moral responsibility make choice-making central to self and agency. It thus ought to be generally recognized that when we incarcerate someone we are diminishing their ability to construct, and be, a human self. Incarcerated offenders’ sense of their own agency becomes smaller and smaller over time, shrinking to the point where, under solitary confinement, some offenders become severely mentally ill, or surrender into a vegetative state. The effects of this diminishment of self are long-lasting, and sometimes permanent.

Of course, those who justify punishment based in part on retributive blame believe at least some offenders deserve to have their moral agency diminished, and I agree. But once we are clear on the true impacts of incarceration, it seems that in the US more offenders go to prison than should, and most offenders go to prison for longer than is justified. Given the resulting diminishment of agency and self-hood, and their lingering effects, incarceration may be a proportional response to violent and/or repeat offenses, but not to many non-violent and victimless crimes. And those who support forward-looking justifications for incarceration need to balance desired general and specific deterrent effects with the criminogenic effect of prison. Such effects, I think, are directly related to the diminishment of moral agency suffered by offenders who are then drop-kicked back into their communities with impaired capacity for self-control. This impaired capacity is evidenced by released offenders' inability to make long-term plans and commitments, as well as everyday decisions; and their difficulty managing interpersonal relationships. 

To my mind, punishment practices ought to limit offender choice-making only to the extent necessary to directly achieve the principles of retribution and deterrence. This is because such choice-making, even minor choice-making, can be the means to diachronic self-control. Incarceration ought to be seen as a last resort, and community-based sanctions (probation with electronic monitoring and required rehabilitative treatment) ought to be routine for non-violent offenders. Juveniles, who are at a particularly important point in their self-development, ought to never be given life in prison without the possibility of parole (LWOP) sentences. An LWOP sentence means an offender relinquishes hope of ever again exercising full moral agency, or being a good person: he may only ever be a good prisoner.

To give an example: a person like Bert, convicted of child abandonment, might benefit from parenting classes, which could help him formulate a long-term commitment to be a better parent and teach him skills relevant to honoring this commitment. If offered as a condition of probation, Bert could maintain his already established disposition to be hardworking, because he could keep his job, and at the same time improve his parenting skills. If Bert is sent to prison, however, his virtuous disposition of being hardworking, and ability to contribute to his kids financial well-being, may be permanently undermined. Further, it will be very difficult for Bert to learn parenting skills or establish a disposition of care toward his children without having any contact with them. 

Even within a jail or prison setting, incarcerated offenders should be given some opportunities to make choices about their daily lives and to thus perform self-interventions and build dispositions. There are some model programs that do this. In Chicago, Sherriff Tom Dart has offered jail inmates the opportunity for bee-keeping, chess, drug addiction counseling, gardening, yoga, and the maintenance of chickens. He also offers offenders paid work demolishing abandoned properties. One California prison offers a program allowing prisoners to work as care-givers for other demented prisoners as a means to earn early release. As a result of the program, Shawn Henderson, who got 25 years to life for a 1985 double murder and was twice denied parole, earned his release. Mr. Henderson claimed that doing a job where “you get spit on, feces thrown on you, urine on you, you get cursed out” helped teach him to cope outside prison. “Now when I come into an encounter like that on the street, I can be a lot more compassionate,” he said.

If we offer offenders the opportunity to practice diachronic self-control, and encourage the development of virtuous dispositions, some of them may be better persons after their interactions with the criminal justice system. If we fail to offer such opportunities, we may ask too much of offenders when we demand they manage themselves such that they don't recidivate. 

 

 * I ask patience from those who have read my rants on this topic before. Mass incarceration is such an important issue I feel it is appropriate to address the topic repeatedly.

 

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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Holmes and Post-Hinckley Justice: A Blog Entry for Comments

The James Holmes mass murder trial is starting, and of course I will follow it with great interest.  It offers intriguing--if grim--comparisons and contrasts with John Hinckley's trial.  Hinckley was found to be NGRI with trial procedures that are very similar to the Holmes case:  the prosecution in the Holmes case must prove beyond reasonable doubt that Holmes was sane.  Given the  prima facie bizarre putative motives of each--Hinckley wanted to impress Jodie Foster by an assassination narrative aligned with that of subplots from Taxi Driver, and apparently Holmes just wanted to make something like a brutally literal statement of the Joker's moral nihilism--it's an a priori uphill battle for the prosecution to exclude all reasonable doubts about such a person's intent, and even given the state's initial psychiatric examinations finding Holmes sane.  Remember that proven premeditation of criminal-type actions is in itself insufficient for culpability if appreciation of wrongfulness is lacking throughout (though the law is a bit different in both cases--the Colorado case apparently uses a somewhat cruder M'Naughten test of the ability to know right from wrong than in Hinckley's case of the Model Code's #1 test of "substantial capacity to appreciate wrongfulness", along with a version of irresistible impulse that weakly resembles the Model Code question #2 in the Hinckley case about "substantial capacity to conform to the law").  So yes, the prosecution will be able to prove premeditation.  But culpable premeditation by the standard of M'Naughten mens rea intent?

As I posted in February, the laws covering insanity have themselves become meta-analytically insane since Hinckley with wildly different standards and procedures in force from jurisdiction to jurisdiction.  I hope Flickerers will post their own thoughts about the Holmes case here as it plays out.

My prediction?  Hinckley's case turned the masses against a fine-grained mens rea tradition, and I'll bet those attitudes are to be found dominate in the Holmes jury.  Against some very credible evidence for mercy by the law as I read it thus far, guilty it will be for Holmes and the resultant death penalty.

Back to Basics II--Free Will and the Law

Whatever the metaphysical status of free will, it has indisputably been the case that questions about free will have been taken seriously by western canons of law.  The English case of M'Naghten (variously spelled) in the mid-19th century solidified the traditional emphasis on mens rea (the guilty mind as sole determination of guilt) in terms of case precedent.  The ultimate influence of that case was on the axiological nature of intent (and in FW literature, the chief heirs to this are the quality of will/psychologically structural  views).  In the early 20th century many case precedents involving "irresistible impulse" (think Darrow's defense of Leopold and Loeb) began to introduce specific free will concerns that had at least implicit incompatibilist grounds.  Those latter concerns, along with M'Naghten, were ensconced in the American Law Institute's (ALI) comprehensive recommendations about statutory law (~1960) with respect to claims about exculpation from insanity, which were quickly and widely adopted in federal and many state jurisdictions, and each of which were usually asserted as necessary conditions for being held responsible.  M'Naghten was enshrined in one question to be put to judges or juries:  (1) Did the accused (who is already determined to have committed the act) have the substantial capacity to appreciate the wrongfulness of the act?  Irresistible impulse was also enshrined in a second question:  (2) Did the accused have the substantial capacity to conform to the requirements of the law?   (Please note that how these questions are rationally assessed is a further function of standards of evidence, ranging from preponderance to clear and convincing to proof beyond reasonable doubt, and there were/are jurisdictional differences here.)

Then came the case of John Hinckley in 1981-2.  He shot President Reagan and mortally wounded his press secretary James Brady (as just assessed in 2014 by his eventual death ruled as homicide), and was found via the ALI standards to be not guilty.

It did not take the country very long to react to the ALI influence in Hinckley's case.