Sam Harris, Psychopaths, and Moral Culpability

Sam Harris, Psychopaths, and Moral Culpability May 31, 2011

Sam Harris is blogging about morality and free will, and one of his examples puts me in mind of our discussion about culpability, hate, and radical forgiveness.  Harris doesn’t think free will is a coherent concept, but he doesn’t see that fact as precluding any discussion of culpability.  I want to focus more on the example he provides than his explanation, but, for the sake of completeness, here’s what he has to say:

What does it really mean to take responsibility for an action? For instance, yesterday I went to the market; as it turns out, I was fully clothed, did not steal anything, and did not buy anchovies. To say that I was responsible for my behavior is simply to say that what I did was sufficiently in keeping with my thoughts, intentions, beliefs, and desires to be considered an extension of them. If, on the other hand, I had found myself standing in the market naked, intent upon stealing as many tins of anchovies as I could carry, this behavior would be totally out of character; I would feel that I was not in my right mind, or that I was otherwise not responsible for my actions. Judgments of responsibility, therefore, depend upon the overall complexion of one’s mind, not on the metaphysics of mental cause and effect.

There’s plenty to discuss there and people are welcome to pick it apart in the comments, but I’m going to pass over it in order to consider Harris’s example of varying degrees of culpability.

Consider the following examples of human violence:

  1. A four-year-old boy was playing with his father’s gun and killed a young woman. The gun had been kept loaded and unsecured in a dresser drawer.
  2. A twelve-year-old boy, who had been the victim of continuous physical and emotional abuse, took his father’s gun and intentionally shot and killed a young woman because she was teasing him.
  3. A twenty-five-year-old man, who had been the victim of continuous abuse as a child, intentionally shot and killed his girlfriend because she left him for another man.
  4. A twenty-five-year-old man, who had been raised by wonderful parents and never abused, intentionally shot and killed a young woman he had never met “just for the fun of it.”
  5. A twenty-five-year-old man, who had been raised by wonderful parents and never abused, intentionally shot and killed a young woman he had never met “just for the fun of it.” An MRI of the man’s brain revealed a tumor the size of a golf ball in his medial prefrontal cortex (a region responsible for the control of emotion and behavioral impulses).

…The degree of moral outrage we feel clearly depends on the background conditions described in each case. We suspect that a four-year-old child cannot truly intend to kill someone and that the intentions of a twelve-year-old do not run as deep as those of an adult. In both cases 1 and 2, we know that the brain of the killer has not fully matured and that all the responsibilities of personhood have not yet been conferred. The history of abuse and precipitating cause in example 3 seem to mitigate the man’s guilt: this was a crime of passion committed by a person who had himself suffered at the hands of others. In 4, we have no abuse, and the motive brands the perpetrator a psychopath. In 5, we appear to have the same psychopathic behavior and motive, but a brain tumor somehow changes the moral calculus entirely: given its location, it seems to divest the killer of all responsibility. How can we make sense of these gradations of moral blame when brains and their background influences are, in every case, and to exactly the same degree, the real cause of a woman’s death?

It seems to me that we need not have any illusions about a casual agent living within the human mind to condemn such a mind as unethical, negligent, or even evil, and therefore liable to occasion further harm. What we condemn in another person is the intention to do harm—and thus any condition or circumstance (e.g., accident, mental illness, youth) that makes it unlikely that a person could harbor such an intention would mitigate guilt, without any recourse to notions of free will.

Again, there’s a lot here, but I want to focus on the percieved difference between persons #4 and #5.  Both people are morally out of joint, but Harris (and most people) recognize a profound difference in intentionality and culpability between the man with a brain tumor and the one whose psychopathy should properly be labelled as ideopathic.  By letting the man with the tumor off the hook, we acknowledge someone’s moral sense can be radically disordered through natural causes and through no fault of their own, so why are we so quick to decide that the psychopath is free of any pernicious, exculpating influence.

I doubt we understand psychopathy well enough to say that it is freely chosen.  The impression I’ve gotten from my limited readings in this field is that many psychologists think psychopathy has a genetic component and the lack of empathy that characterizes it may be present from early childhood.  (Apparently Jon Ronson’s book The Psychopath Test: A Journey Through the Madness Industry is well done.  I liked the excerpt run in The Guardian.)  But, ultimately, I’m not sure what qualifies psychopathy as any more of an illness than hatefullness.  Is it anything other than an accident of definitions or a desire for vengeance that prevents us from labeling almost all extreme violence as criminal insanity?

I don’t imagine the moral sense as the kind of thing that exists on a wide, natural spectrum, where people might land anywhere or choose to move themselves.  I do see it as a telos for humanity, the kind of thing that no one can rationally reject.  Losing a sense of the moral law, or having it diminished, is a terrible privation and an assault on human potential.  Whether a disordered moral sense is the result of a tumor, an abusive childhood,  idiopathic pyschopathy, or the slow erosion of bad choices can have important practical ramifications for rehabilitation, but it doesn’t change the simple fact that all of these people are badly broken and ought be otherwise.  Pity and mourning are more natural than anger.

*Note: discussion of fault and forgiveness remains orthogonal to the question of what is to be done.  It is not the fault of a rabid dog that it has rabies, but that does not change the necessity of putting it down before it harms someone else.  In the general case, I would prefer to hold someone who was a danger to themselves and others in custody that was humane and non-punitive and hope there would be significant progress in rehabilitative treatment before the end of the prisoner’s natural life.

If it were I who was morally unmoored and dangerous, I would prefer to be put down, but I would not universalize this choice.  I suspect it is primarily motivated by pride.

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  • Two things:1.) What exactly is the argument here that "moral law" cannot be rationally rejected? Which moral law are we talking about? Whose? Under what conditions? In what language? 2.) This might be interesting to consider in conjunction:

  • The question *I* find interesting here is just how broad or specific the moral law has to be. Assuming that there is such a thing as objective right and wrong, does that imply that every circumstance we can conceive of, without fail, necessarily entails a single correct path? Just how deep do the tendrils of moral law go? (This is a different question from whether or not there's such a thing as a range of different choices, from worst to best, and we can make a choice that's in line with good without being the best we could've made — presumably under those circumstances the best possible choice would be the Correct Choice. I'm interested in whether or not there are cases where there's more than one possible Correct Choice, and whether that can be squared with a sense of moral objectivity. I suspect that it can.)Also, on a less curious and more polemical note, I'm highly suspicious what value "more natural" has as a heuristic for evaluating responses to moral breaches.

  • I think the most important difference between cases 4 and 5 is whether the person's acts and desires are being overridden and controlled by a factor external to themselves, or whether the person's whole being is, so to speak, cooperative in producing the antisocial impulses. After all, if the psychopath in #5 acknowledged that his violent behavior was due to a brain tumor, but decided that he liked himself better this way and actively resisted medical treatment that might cure him, we might reasonably judge him to be just as culpable in the morally relevant sense as in scenario #4. And yes, if we could trace ultimate responsibility all the way back, we might discover that the organically healthy psychopath is just as "damaged" in some sense as the one with the tumor – we might find that all psychopaths are missing some vital brain circuit, say, whether as a result of genetics or disease or abusive upbringing. If there was some kind of surgical intervention we could perform to fix this, I'd be all for it. In the absence of such a technique, we should still choose imprisonment as the best option, I think, to protect society from them and ensure that they get whatever help is in our power to give.

  • Wow.This Sam Harris article is basically meaningless drivel poured out paragraph by paragraph. I can barely stand to read it. It is not clear why or what point he is even trying to make.Example: At one point he states "A voluntary action is accompanied by the felt intention to carry it out, while an involuntary action isn’t." – does he *really* think this is the ONLY difference between a voluntary and involuntary action?I think Sam Harris is so absolutely focused on refuting 'free will' because it is so foundational to Christian thinking, rather than because he really has a reason not to believe it. Which of course is absurd, if Christianity depends on free will and Christianity is false, it does not follow that free will is false!As to whether free will is "real" or not he misses the forest for the trees. It is almost entirely irrelevant since every social structure, and every thought we have assumes free will a priori. I can't even debate free will with Sam Harris with out BOTH of us assuming it from the start!This article reminds me of a video interview with Richard Feynman in which he explains just how hard it is to explain magnetism to a lay-person. I don't understand magnetism on a fundamental level AT ALL, however I also don't write rambling blog posts or books proving how my children's artwork can stay on the fridge without magnetism.

  • Patrick

    "I can't even debate free will with Sam Harris with out BOTH of us assuming it from the start!"While oft claimed by advocates of free will, this is definitely false.

  • @Patrick, please elaborate. Sam Harris certainly did NOTHING to disprove free will in his post, perhaps you would like to have at it.

  • Patrick

    Because there's a difference between accepting that something appears true, and assuming that something is true.

  • @ LeahPerhaps I'm misunderstanding what you are getting at, but Harris is certainly not making the case that "psychopathy is freely chosen", as he doesn't think anything is "freely chosen". @ CharlesIt's a bit ludicrous to say that Harris merely rejects free will on account of his distaste for Christianity with supplementing evidence. The man has a PhD in neuroscience and has an extensive background in the science behind the brain. I would say he probably has a leg up on most of us in terms of knowledge of the evidence surrounding things generally considered in the arena of free will.While the scope of the article isn't sufficient for his arguments against free will, he has done so extensively elsewhere. One of the studies which any free-will advocate will have difficulty defending is that of Benjamin Libet ( If actions are really free, how would a dualist (which, most Christians are)respond? Since Libet, there have been decades of research in the same arena that are merely expanding the distance by which we can predict behavior, and even opening to areas we never thought possible.

  • JSA

    @Charles – Matt is right; it's hard to be a neuroscientist and still believe in libertarian free will.I would also add that Calvinist Christians like myself do not believe in libertarian free will, and argue that the Christian Bible has preached against libertarian free will since the time of Paul. You could say that St. Paul was 2000 years ahead of Sam Harris on this one.Having said that, there are many very smart people who believe in libertarian free will, and good arguments either way, so it's possible that there is free will. But such a belief has never been critical to Christianity (and, according to some hyper-Calvinists, belief in free will is tantamount to rejection God)

  • @Patrick: "Because there's a difference between accepting that something appears true, and assuming that something is true."I would argue that not only does it appear to be true, it is irrelevant whether it is true since ALL social constructions and personal actions are predicated on it being true. One simply cannot make a society without free will, unless you suppose we have no free will and the lack of free will includes the widely held belief in and appearance of free will.@Matt, $JS : I don't defer to someone on one subject because they have a phd in another. I also don't see any reason to accept "it's hard to be a neuroscientist and still believe in libertarian free will." as a valid assertion.Everyone:I refer you to: for a possible explanation of free will for a materialist.I never claimed not to be a materialist, I simply find it ridiculous that anyone is deluded enough to argue against that which seems to me to be an a priori knowledge. How am I too act? What am I too argue if I were to choose to believe all my thoughts were deterministic? its an absurdity!

  • Patrick

    Charles- You need to take some time and put your thoughts in order. That didn't make sense.

  • JSA

    @Charles – Nobody is asking you to drop your belief in free will because of Sam Harris's PhD. We were simply rebutting your bizarre claim that "Sam Harris is so absolutely focused on refuting 'free will' because it is so foundational to Christian thinking, rather than because he really has a reason not to believe it".As I pointed out, belief in free will has nothing to do with Christianity, and it is far more plausible that he arrived at his belief because of his scientific training and thoughtful analysis.You are welcome to keep believing in free will. As far as false beliefs go, it's no more harmful than belief in Santa Claus.Secondly, I agree with Patrick, you seem deeply confused. I've already explained that free will is orthogonal to Christianity; it is also orthogonal to materialism.Saying that people do not have free will is not the same as saying that people don't make conscious choices or bear culpability for their actions. It simply means that your choices and reasons for choosing are all pre-determined (and to the extent that they're not, they are random). If the clock and your memory were rewound, and you had to re-live a portion of your life, you would live it exactly the same way — you would make the same choices, for the same reasons. To the extent that you didn't, it would show randomness in your behavior — not free will.

  • JSA

    @Charles – You also misrepresent the significance of the Searle talk. He is not saying that there is free will. He is simply saying that the only way to even conceivably have free will if the brain somehow inherits quantum indeterminacy without inheriting the randomness. (He also said that makes him vomit, and sounds preposterous). He's not presenting a theory of free will; he is just stating that any future theory will have to fit the parameters he prescribes.I believe he is completely correct about that, and that doesn't look good for believers in free will. That's an extraordinarily restrictive box. I have seen only one good attempt to explain free will in terms of quantum indeterminacy; and it comes from Mark Balaguer. It's still very speculative, and smells of adhocery.Searle also states that his only motivation for cooking up this hypothesis is that he can't see why evolution would lead to consciousness. That tells me that he just isn't up on the current theories about evolution of consciousness, and it begs the question of why our brains would evolve "quantum indeterminacy detectors". In any case, Searle seems to think that compatibilism is a perfectly acceptable theory, given sufficient evolutionary explanation.

  • @Patrick: please explain. I think it is quite clear what I said, free will is a foundational premise for all of society, law, and the at least majority of philosophy.@JS: I was commenting on a specific comment where it was stated that "The man has a PhD in neuroscience and has an extensive background in the science behind the brain. I would say he probably has a leg up on most of us in terms of knowledge of the evidence surrounding things generally considered in the arena of free will."– Clearly that is someone using his phd as evidence!I think it is pretty clear from his work that Sam Harris is very anti-Christian, it is not a stretch to speculate that his anti-Christianess might cloud his judgment on this issue. I don't think that is bizarre by any stretch, because free will is so massively fundamental to most of Christian ethics, morality, and theology. I have to say most here because Calvinism is the one big exception, but to say that free will is 'orthogonal' to catholic thinking is fundamentally wrong.As for the materialism argument, I posted a talk that allows for free will and materialism, I suggest you read Searle's book."Saying that people do not have free will is not the same as saying that people don't make conscious choices…" — This demonstrates that you didn't understand Harris's thesis at all. He argues for culpability, but as for "conscious choices"he actually states "A voluntary action is accompanied by the felt intention to carry it out, while an involuntary action isn’t", I don't see how you could refute conscious choice more than describing it as a "felt intention", other than denying feeling any 'intention' at all – which is patently ridiculous, so Harris says, in effect, `yeah you have the 'feeling' of intention, but its just a feeling`!As for your clock bit at the end, I am familiar with Laplace's Demon and all its problems. I find it absurd that you could be having anything like what I experience as consciousness and argue that you think you are essentially an automaton.

  • @JS: in your second post you refute your own statement. I don't think I misrepresented his talk at all, in fact I linked to it with the comment "for a possible explanation of free will for a materialist." — it was the quickest link that came to mind. I think its clear from the talk that Searle is looking for an explanation for free will for the simple reason that its OBVIOUS we have free will. these materialist arguments against free will are essentially a bunch of people that cant seem to see the forest for the trees.

  • @Matt, as for Libet in the very link you posted about his work it clearly states that even Daniel Dennett finds his work inconclusive! Are you going to call Dennett a dualist? or a free will believer? If his work were 'conclusive' it would do nothing to harm 'free will' and probably just add support to mind-body dualism, a clearly more ridiculous idea than free will.

  • Patrick

    Charles- At times you seem to be claiming that free will is self evidently true. At other times you claim that the truth or falsity of free will is irrelevant, because it seems true. At other times you claim that free will is commonly assumed to be true in many contexts. You also insist that the assumption of free will is very, very important to many things people do. These are not the same claims, but you have so far treated them as interchangeable- at one point switching between them in a single sentence. I don't know what to say to you because I don't know what you think, and I suspect that anything I say will be misunderstood if you really think these claims are all the same.

  • Patrick

    JS- I don't get the quantum mechanics thing either. The worst part about claiming that free will somehow resides in quantum mechanics is that quantum mechanics are probabilistic. I do not understand why some people find the idea of a clockwork deterministic universe horrific and objectionable, and are yet pacified by a belief in a universe that runs on randomization with statistical distribution.

  • JSA

    @Charles – Searle says at least 3 times in the video that you gave, that his only reason for seeking an alternative to compatibilism is that it seems biologically too expensive.You do not seem sincere or intellectually honest. You're just argumentatively tossing out random citations of things that you've heard about and don't understand. Each time you get refuted, you just move on and toss out some other incoherent objection. BTW, you still seem to have missed the point that compatibilism has nothing to do with materialism. Compatibilism would be true even if materialism were false, and this is easy for anyone to verify with just a little careful thought. Searle himself explains why in the video that you linked. I am the only person on this thread who has actually cited a theory of how libertarian free will could be compatible with naturalism. Here is another one.Another thing that you seem to be completely missing is that Searle or Balaguer's idea of "indeterminate" will, even if it can one day be supported, would be nothing like the conception of "free will" that you say is so introspectively obvious. That is, at best, they are trying to show that there is a tiny smattering of indeterminacy inside a will that is otherwise compatibilist.

  • @Patrick: You have yet to refute any of the claims I make, just point out that I made a lot of claims.I will reiterate it for you:Free will is self-evidently true, even if it isn't ALL of society is based on the assumption that it is, therefore it is nonsensical to attempt to refute it.@JS – No one made a point about compatibilism, I am not discussing compatibilism, since if the universe is deterministic then compatibilism must also be true, since I am making the claim that free will is a priori.Either way you are muddling the point, the point was that Harris' paper is incoherent nonsense at best, and a dishonest striving to attack the underpinning of christianity at worst. You claim I am tossing out random citations, yet I have only cited the one searle talk, which I have already stated was a possible explanation for a materialistic/determinist universe that has free will. At no point did I refute your citation, you aren't even arguing anything at this point. Basically you are agreeing that free will is compatible with materialism in the most argumentative way possible. I am not disputing that. I am making a statement about Sam Harris' sloppy intellect.The one thing I will concede is that I was not thinking of Calvinism when I made the claim that Christianity requires free will. I apologize, Catholic Christianity requires free will. I have not, no will I defend or make statements about Calvinist views on pre-destination, and/or free will.Now as to the points I've missed or the level of my argumentativeness, so far I have been told I should trust Harris' thoughts because he has a php, because its hard to believe in free will as a neuro scientist, because some small subset of christians have a theology that is anti-free will, oh and because the two cited discussions of how free will and determinism could be compatible only "at best, they are trying to show that there is a tiny smattering of indeterminacy inside a will that is otherwise compatibilist."I don't see how any of this defends the points Harris is making (which I still hold are incoherent), or otherwise provides more reasons why free will is not real/an illusion/a feeling/ etc…

  • JSA

    @Charles – Searle does not defend an explanation of how free will can be compatible with materialism. He simply says that any such explanation *must* involve quantum indeterminacy, which he says is crazy. I pointed you to two paper which *do* defend such a theory. I suggest you read them and decide if you really want to associate yourself with that theory.Secondly, by "random citations", I just meant comments like your comment on "Laplace's Demon". Like many of your other comments, it had nothing to do with the point I made, and suggested that you didn't understand the point. Responding to every one would be tedious, but for that one specifically — I argued that your delusion of having free will would be a delusion, whether materialism were false or not. The case against free will does not depend on materialism in any way. You keep fixating on materialism (ergo, your knee-jerk citation of Laplace's demon), and I'm trying to get you to see that materialism is just as irrelevant to the discussion as Christianity. In the interests of contributing more productively to the discussion, please check out this paper by Peter Van Inwagen.Finally, are you aware that Searle concurs with me about neuroscientists, at roughly the 1:00:00 mark in the video link you provided? Searle says that the only possible theory of free will must involve quantum indeterminacy, and then says that "not a single neuroscientist believes that quantum indeterminacy underlies consciousness". He says that he works with many, many neuroscientists, and they all think it is a crazy idea. So he concurs, any neuroscientist who wanted to believe in free will would be exposed to negative peer judgment.

  • @JS – This is exactly my point. I don't think Christianity OR materialism are irrelevant to the discussion, since my original statement is that Harris feels compelled to attack free will BECAUSE he feels compelled to attack Christianity. Yes I agree that one doesn't have to be a Christian to believe free will (CLEARLY AS I am arguing FOR free will!) – and I has been pointed out that there are Christians who don't subscribe to free will, but I also pointed out that I claim no knowledge of that.You seem fixated on the Searle video, I simply linked to it as literally the FIRST thing that popped into my head as a quick discussion of a POSSIBLE path to connect materialism to free will, I don't think you would deny that Harris is a materialist, and I was not the one who brought materialism into the conversation. Materialism was brought in with the snide comments that since Harris is a phd neuroscientist he must know more about this, blah, blah, blah.I don't think I made any random citations, I think I made a reference (admittedly on my mind due to another recent discussion not involving this forum) to exactly what you were talking about. It was shorthand for saying you dont have to explain those concepts to me. You have yet to defend Harris' assertion that free will is an illusion.

  • JSA

    "You have yet to defend Harris' assertion that free will is an illusion."Please see the very short and readable PvI paper I linked you to, or read the opening section of the second Balaguer paper I pointed you so. Both provide succinct common-sense explanations for why your illusion of free will is an illusion.Honestly, you haven't provided a single argument for free will, other than that you really really wish it to be true. If you were doing this with respect to the earth being flat or the sun revolving around the earth, it might at least be understandable, since some amount of science is required to debunk those intuitions. But your delusion of free will does not even need science to debunk it — all that is necessary is a few moments of introspection and a mediocre IQ.

  • @JS – Your inane ad hominem attacks have ended this discussion.

  • Charles: " it's OBVIOUS we have free will"Indeed. It's also obvious we are solid and not made up of mostly space. And obvious that most of the cells in our body are human.The fact both of these OBVIOUS facts are wrong should maybe give one pause when deciding what is an a priori truth.Now if you really want to get into how the universe is not deterministic* then you have to give some possible way for free will to exist, saying quantum doesn't cut it since that is probabilistically random at best.I'd actually go further and say consciousness is an illusion never mind free will. But that's another discussion."ALL of society is based on the assumption that it is"Yes it is, but it's not that hard to alter it to function in a way where it isn't. e.g. Legally we simply remove vengeance from the criminal justice system (as we should anyway!) and have protection of the public, rehabilitation and disincentivisation of others as the guiding principles of imprisonment/punishment etc.* It actually isn't, it is deterministic with a probabilistic bent.**** It is trivially easy to set up a macro scale event based on quantum indetermism – simply have a probabilistic event and decide to go home via route A if it happens and route B if it doesn't. Chaos will probably scale up the difference int a globally significant difference many years later.

  • JSA

    "Legally we simply remove vengeance from the criminal justice system"This is a very intriguing comment; can you elaborate? Intuitively, it feels like you are right; that as long as we remove retributive justice, then the legal system is basically aligned with compatibilism.I would add that retribution is no longer a significant part of western jurisprudence. Even "punitive" damages are intended to serve as a deterrent; not as retribution.Something feels weird about it, though. Here's the thing: Calvinists and other protestants for 500 years have promoted Penal Substitution Theory (PST). It's the idea that Christ's death on the cross was efficacious in saving humanity, because Christ was a substitute target for God's vengeance. To the historical Protestant, if you decide that retributive justice is unfair, or if you decide that substitutionary expiation is unfair, then all of Christianity falls apart.I only mention this because, for millions of protestants for hundreds of year, retributive justice seemed perfectly fair, and they were compatibilists. IOW, we have strong historical evidence that compatibilism and retributive justice were once considered perfectly harmonious.Of course, today we find retributive justice to be abhorrent and disgusting; especially in the face of compatibilism. I wonder what changed?

  • "I would add that retribution is no longer a significant part of western jurisprudence."Would that it were so. The US has the death penalty, all the west has victimless crimes. We also punish people when they're not a threat to anyone else, not simply as a deterrent but "because they deserve it."PST is an evil doctrine. I would love to say something clever about it but I cannot beat what Christopher Hitchens has to say on the matter, so get onto youtube and listen to that.Retributive justice seems fair regardless of free will simply because it feels good. Nature has ingrained within us (as a social species) the wish to see wrongs righted and vengeance meted out. This is something we have to try to overcome. It is also why civilized societies have an impartial justice system so that cool heads prevail and justice is done rather than a lynching. However, the very phrase "justice is done" shows it is at least partly about retribution.The ideal situation (from the involved participants point of view) is for the people harmed to believe a harsh punishment is befalling the perpetrator, the perpetrator to get treatment to stop them from re-offending and society to recognize that the changes to the perpetrator actually change,in a fundamental way, who that person is and so that would be detterent enough. Obviously that's a pipe dream, but we may as well aim high since none of my ideas will be enacted anyway.

  • JSA

    "Would that it were so. The US has the death penalty, all the west has victimless crimes."I did some research on this for a class in college (20+ years ago) and recall that there were many non-retributive reasons given in states that enact capital punishment. I wouldn't doubt that the general public votes for capital punishment with retribution as a major motivation, but they often conceal that motivation. And the politicians supporting capital punishment often promote other reasons (whether sincerely or not). Personally, I think that the statistics about deterrence are inconclusive.Regarding victimless crimes, how can the punishment be retributive if there is no victim? I'm thinking of the guy who gets 15 years in jail for the combined crime of selling weed and being black. Surely that punishment isn't retribution for anything?"Nature has ingrained within us (as a social species) the wish to see wrongs righted and vengeance meted out. This is something we have to try to overcome"That's a good point. Our entire system of values is built on the bedrock of our evolved moral impulses. By saying "indiscriminate murder is universally wrong", people really just mean, "If I see someone murdering people indiscriminately, I have an overwhelming desire to see that person killed.""The ideal situation (from the involved participants point of view) is for the people harmed to believe a harsh punishment is befalling the perpetrator, the perpetrator to get treatment"I'm surprised that you would say this. I would have expected you to say something like, "for the people harmed to sincerely forgive the perpetrator and let the anger go".What motivates your preference for the harmed party to see a believable illusion of vengeance? Is the idea that you don't want to undermine the evolutionary basis of morality (which is vengeance)? So the idea would be to keep the biological motivation in place, but harness and sublimate it for a more pragmatic social good?

  • Patrick

    I'm not sure there's really a conflict between retributive justice and the punishment of "victimless" crime. Retributive justice is usually defined as being about the psychological effect of punishment on the victim, but also on society. The thing about psychological effects is that they don't have to be grounded in anything to be real. If society feels victimized by the existence of scary black men, then its within the usual definition of retributive justice to punish black men for being scary. Obviously there's a lot of negative things to say about that, most of which have to do with the legitimacy of feeling threatened by the existence of black people. But the fact that we don't see the psychological effects being pandered to as legitimate ones doesn't mean that they aren't real, and that's all that is usually required for justice to be retributive.The thing is, I'm not 100% sure that retributive justice is really driving the conservative man-on-the-street attitude towards crime and punishment. I think its really traditionally… Christian, I guess, attitudes about evil. I think its the idea that some people are just plain Bad, by their inherent nature. And since a Bad Person's inherent nature is to be Bad, things like disproportionate punishment don't even exist as concepts. If a Bad Person is locked away for 15 years for selling weed while black, its not disproportionate in this view because it was never about proportionality in the first place: it was about defending ourselves by getting rid of a Bad Person who no doubt would have done more Bad Things if not imprisoned. Likewise the severity of punishment, or the rehabilitative effect of punishment, stop mattering so much. Bad People deserve to be punished, so things like prison conditions just aren't important.That's the attitude that drips from the pages of the NRA magazines my wife's family gives us, at least. Its a very medieval way of viewing crime- its like some people think they're living in Lord of the Rings.

  • I've noticed that most of you seem to take retributive justice as self-evidently wrong or unjust. Here's my problem: a court system without a foundation of retributive justice is open to far greater injustices. If our sole motive for punishment were deterrence, then we could punish anyone so long as it decreased crime elsewhere in society. If our sole motive for punishment were rehabilitation, then anyone could be labeled a social 'deviant' and face 'correction,' without regard to any actual guilt or active crime. Let's not forget the maxim that the worst tyrant is the 'benevolent' tyrant, because it is nearly impossible to stop someone who hurts you "for your own good."Retributive justice is the foundation for every form of justice, because only it links the punishment to the crime itself. Without retribution as a baseline, the other forms of justice become open to grotesque abuse.This doesn't mean retribution should be the biggest factor in jurisprudence. I'm just saying we shouldn't throw the baby out with the bathwater.

  • Patrick

    Publius- What you are arguing for is proportionality, not retributive justice per se.While the link between retributive justice and proportionality is classically part of the definition of retributive justice, its a tacked on addition. Retributive justice as classically defined is actually several concepts duct-taped together. There's no reason that "punishment that psychologically benefits the victim or society" needs to be connected to "punishment that is proportional to the gravity of the crime." You could just as easy duct-tape proportionality to any of the other goals of criminal penalties. And you can just as easily detach proportionality from "punishment that psychologically benefits the victim," and then worry about what happens when that gets taken too far.More specifically, I agree that the logic of deterrence can go overboard. I don't see it as much with rehabilitation since you're basically claiming that it might lead to a redefinition of "crime," and there's no reason that would be unique to rehabilitation. And I really, really see the logic of retribution going to far. Its almost designed to go too far- the mental states of the victim and of a frightened society are poor custodians of proportionality.

  • Victimless crimes mean people want others punished for breaching some perceived code (moral/religious etc.) that they think should be punished in spite of it not harming anyone." I would have expected you to say something like, "for the people harmed to sincerely forgive the perpetrator and let the anger go"."Well that would be nice, but nature has built into (most of) us a desire to see wrongs righted, most especially when they happen to us. If nothing else it greatly helps the healing process. Incedentally, vengeance isn't moral – not in my moral system anyway.Another point is that there is the hideous idea within parts of Christianity that if you spare the rod you spoil the child. So punishing people is actually loving them (how messed up is your logic if you think this is the case!?!)Publius, you make some good points, I had it taken for granted that the greater good argument was taking a back seat, but I think it's right it be addressed."If our sole motive for punishment were deterrence, then we could punish anyone so long as it decreased crime elsewhere in society."Except in the long run the discovery of injustices would lead to the system breaking down. Plus the deterrent nature only really works if you punish people who can be shown to have committed that actual crime."If our sole motive for punishment were rehabilitation, then anyone could be labeled a social 'deviant' and face 'correction,' without regard to any actual guilt or active crime."Very Clockwork Orange… Yes, but the crime would actually be not conforming to whatever norm the rehabilitation would ideally produce. What makes you think you're not living in the initial stages of that system now?As long as we keep justice in the justice system then we can safely remove vengeance.

  • Patrick, you make good points, but you seem to be using a tactical definition for 'retributive justice' — you define it against historical usage, in such a way that it becomes indefensible.Formally, the classical theory of retribution has little to do with the psychical satisfaction of the victim. I believe you're thinking of 'retaliation' or 'revenge.' Retribution is proportionality — it is the principle that punishment is intrinsically linked to and justified by a criminal act. Run the Google "define:" function or check out Wiktionary to check out the contrast.It seems we're in total agreement — we just use different definitions. I have little patience for theories of justice that are predicated on the emotional state of either victim or the criminal, so I entirely agree that "psychological benefit" is an entirely unsatisfactory basis for criminal justice.

  • Patrick

    While it may technically be against historical usage, historical usage has been awfully flawed. The definition of retributive justice is actually a mix of several different concepts. Retributive justice is not just "proportionality." Proportionality is entirely severable from retribution. Retributive justice has had a lot of definitions over the years, from claims that its about restoring the moral order to claims that its about "restoring victims and offenders to their rightful positions." (This sounds a lot like restorative justice, but it differs in that it tears down the offender rather than building up the victim.) Its hardly a new idea or a "tactical definition" to point out that retributive justice often descends into revenge, or else often lowers the legal system to the same level as the criminal. That's not a new insight, nor even a controversial one. And its not a problem that can be solved by defining retributive justice to include proportionality. If you're going to take an alien concept like proportionality and attach it to justice with an eye towards satisfying the victim's legitimate desire for vengeance, you might as well attach proportionality to any other concept of justice.In fact, its not even clear that proportionality is a good goal or a goal that protects us from tyranny. When dealing with criminals who have multiple victims, proportionality may be impossible from a practical perspective, or may lead us into areas we'd rather avoid.