I’ll raise a problem for Retributivism, the view that legal punishment is justified on the basis of desert. I’ll focus primarily on Mitchell Berman’s recent defense of the view. He gives one of the most sophisticated and careful statements of it. And his argument is representative, so the problem I’ll raise for it will apply to other versions of Retributivism. His insights about justification also help to make the problem particularly obvious. I’ll also show how the problem extends to non-retributive (...) justifications of punishment. I’ll argue that Berman’s argument makes a questionable assumption about the standard of justification that justifications of punishment must meet to be successful. If we think about what it takes to justify punishment and reflect on the intuitions that retributivists appeal to, it turns out that the intuitions aren’t obviously up to the task. (shrink)

The purpose of this paper is to provide a justification of punishment which can be endorsed by free will skeptics, and which can also be defended against the "using persons as mere means" objection. Free will skeptics must reject retributivism, that is, the view that punishment is just because criminals deserve to suffer based on their actions. Retributivists often claim that theirs is the only justification on which punishment is constrained by desert, and suppose that non-retributive justifications must therefore endorse (...) treating the people punished as mere means to social ends. Retributivists typically presuppose a monolithic conception of desert: they assume that action-based desert is the only kind of desert. But there are also personhood-based desert claims, that is, desert claims which depend not on facts about our actions, but instead on the more abstract fact that we are persons. Since personhood-based desert claims do not depend on facts about our actions, they do not depend on moral responsibility, so free will skeptics can appeal to them just as well as retributivists. What people deserve based on the mere fact of their personhood is to be treated as they would rationally consent to be treated if all they had in view was the mere fact of their personhood. We can work out the implications of this view for punishment by developing a hypothetical consent justification in which we select principles of punishment in the Rawlsian original position, so long as we are careful not to smuggle in the retributivist assumption that it is under our control whether we end up as criminals or as law-abiding citizens once we raise the veil of ignorance. (shrink)

This article identifies a novel challenge to standard understandings of responsibility practices, animated by experimental studies of biases and heuristics. It goes on to argue that this challenge illustrates a general methodological challenge for theorizing about responsibility. That is, it is difficult for a theory to give us both guidance in real world contexts and an account of the metaphysical and normative foundations of responsibility without treating wide swaths of ordinary practice as defective. The general upshot is that theories must (...) either hew more closely to actual practice than they appear to, or they must provide some normative foundation for responsibility that does not go through actual practice. (shrink)

I argue for three conclusions. First, responsibility skeptics are committed to the position that the criminal justice system should adopt a universal nonresponsibility excuse. Second, a universal nonresponsibility excuse would diminish some of our most deeply held values, further dehumanize criminals, exacerbate mass incarceration, and cause an even greater number of innocent people (nonwrongdoers) to be punished. Third, while Saul Smilansky's ‘illusionist’ response to responsibility skeptics – that even if responsibility skepticism is correct, society should maintain a responsibility‐realist/retributivist criminal justice (...) system – is generally compelling, it would not work if a majority of society were to convert, theoretically and psychologically, to responsibility skepticism. In this (highly improbable) scenario, and only in this (highly improbable) scenario, the criminal justice system would need to be reformed in such a way that it aligned with the majority's responsibility‐skeptical beliefs and attitudes. (shrink)

This chapter outlines six distinct reasons for rejecting retributivism, not the least of which is that it’s unclear that agents possess the kind of free will and moral responsibility needed to justify it. It then sketches a novel non-retributive alternative called the public health-quarantine model. The core idea of the model is that the right to harm in self-defense and defense of others justifies incapacitating the criminally dangerous with the minimum harm required for adequate protection. The model also draws on (...) the public health framework and prioritizes prevention and social justice. It is argued that not only does the public health-quarantine model offer a stark contrast to retributivism, it also provides a more humane, holistic, and effective approach to dealing with criminal behavior, one that is superior to both retributivism and other leading non-retributive alternatives. (shrink)

I argue that legal punishment is morally wrong because it’s too morally risky. I first briefly explain how my argument differs from similar ones in the philosophical literature on legal punishment. Then I explain why legal punishment is morally risky, argue that it’s too morally risky, and discuss objections. In a nutshell, my argument goes as follows. Legal punishment is wrong because we can never sufficiently reduce the risk of doing wrong when we legally punish people. We can never sufficiently (...) reduce this risk because wrongful punishment is much worse than wrongful non-punishment and because punishment’s permissibility depends on the answers to a variety of difficult philosophical questions about which we’re fallible. (shrink)

This chapter offers non-retributive, broadly Kantian justifications of punishment and remorse which can be endorsed by free will skeptics. We lose our grip on some Kantian ideas if we become skeptical about free will, but we can preserve some important ones which can do valuable work for free will skeptics. The justification of punishment presented here has consequentialist features but is deontologically constrained by our duty to avoid using others as mere means. It draws on a modified Rawlsian original position (...) in which we assume we are just as likely to be among the punished when the veil of ignorance is raised as we are to be among those protected by the institution of punishment. The justification of remorse presented here is care-based, and draws on the value of sympathizing with people we have wronged, which has a Kantian ground in the duty to take others’ ends as our own. (shrink)

Harming other people is prima facie wrong. Unless we can be very certain that doing so is justified under the circumstances, we ought not to do it. In this paper, I argue that we ought to dismantle harsh retributivist criminal justice systems for this reason; we cannot be sufficiently certain that the harm is justified. Gregg Caruso, Ben Vilhauer and others have previously argued for the same conclusion; however, my own version sidesteps certain controversial premises of theirs. Harsh retributivist criminal (...) justice can only be morally right if the following three propositions are true: Moral responsibility exists, retributivism is right, and we can find out how much punishment offenders deserve for their crimes. Suppose that we initially assign a high credence to each of the three propositions; I assume for the sake of argument that there are good arguments in support of each. Nevertheless, these arguments ultimately depend on intuitions. Since we have philosophical peers whose intuitions differ from ours, we ought to downgrade our credence in each. However, even slightly less credence in each proposition means far less credence in a conjunction of all three. Since the stakes are high and there are morally safer options for a criminal justice system, we ought to dismantle harsh retributivist ones. (shrink)

The aim of this article is to set out a theory for treatment of criminals that rejects retributive justification for punishment; does not fall afoul of a plausible prohibition on using people merely as means; and actually works in the real world. The theory can be motivated by free will skepticism. But it can also be supported without reference to the free will issue, since retributivism faces ethical challenges in its own right. In past versions of the account I’ve emphasized (...) the quarantine analogy for incapacitation together with the value of rehabilitation and reintegration. Here I pay special attention to the permissibility and the limits of general deterrence. (shrink)

Many philosophers think that, when someone deserves something, it’s intrinsically good that she get it or there’s a non-instrumental reason to give it to her. Retributivists who try to justify punishment by appealing to claims about what people deserve typically assume this view or views that entail it. In this paper, I present evidence that many people have intuitions that are inconsistent with this view. And I argue that this poses a serious challenge to retributivist arguments that appeal to desert.

Skepticism about moral responsibility, or what is more commonly referred to as moral responsibility skepticism, refers to a family of views that all take seriously the possibility that human beings are never morally responsible for their actions in a particular but pervasive sense. This sense is typically set apart by the notion of basic desert and is defined in terms of the control in action needed for an agent to be truly deserving of blame and praise. Some moral responsibility skeptics (...) wholly reject this notion of moral responsibility because they believe it to be incoherent or impossible. Others maintain that, though possible, our best philosophical and scientific theories about the world provide strong and compelling reasons for adopting skepticism about moral responsibility. What all varieties of moral responsibility skepticism share, however, is the belief that the justification needed to ground basic desert moral responsibility and the practices associated with it—such as backward-looking praise and blame, punishment and reward (including retributive punishment), and the reactive attitudes of resentment and indignation—is not met. Versions of moral responsibility skepticism have historically been defended by Spinoza, Voltaire, Diderot, d’Holbach, Priestley, Schopenhauer, Nietzsche, Clarence Darrow, B.F. Skinner, and Paul Edwards, and more recently by Galen Strawson, Derk Pereboom, Bruce Waller, Neil Levy, Tamler Sommers, and Gregg D. Caruso. -/- Critics of these views tend to focus both on the arguments for skepticism about moral responsibility and on the implications of such views. They worry that adopting such a view would have dire consequences for our interpersonal relationships, society, morality, meaning, and the law. They fear, for instance, that relinquishing belief in moral responsibility would undermine morality, leave us unable to adequately deal with criminal behavior, increase anti-social conduct, and destroy meaning in life. Optimistic skeptics, however, respond by arguing that life without free will and basic desert moral responsibility would not be as destructive as many people believe. These optimistic skeptics argue that prospects of finding meaning in life or of sustaining good interpersonal relationships, for instance, would not be threatened. They further maintain that morality and moral judgments would remain intact. And although retributivism and severe punishment, such as the death penalty, would be ruled out, they argue that the imposition of sanctions could serve purposes other than the punishment of the guilty—e.g., it can also be justified by its role in incapacitating, rehabilitating, and deterring offenders. (shrink)

Most philosophers believe that wrongdoers sometimes deserve to be punished by long prison sentences. They also believe that such punishments are justified by their consequences: they deter crime and incapacitate potential offenders. In this article, I argue that both these claims are false. No one deserves to be punished, I argue, because our actions are shot through with direct or indirect luck. I also argue that there are good reasons to think that punishing fewer people and much less harshly will (...) have better social consequences, at a reduced overall cost, then the long prison sentences that are usually seen as required for social protection. (shrink)

This paper is about an asymmetry in the justification of praising and blaming behaviour which free will theorists should acknowledge even if they do not follow Wolf and Nelkin in holding that praise and blame have different control conditions. That is, even if praise and blame have the same control condition, we must have stronger reasons for believing that it is satisfied to treat someone as blameworthy than we require to treat someone as praiseworthy. Blaming behaviour which involves serious harm (...) can only be justified if the claim that the target of blame acted freely cannot be reasonably doubted. But harmless praise can be justified so long as the claim that the candidate for praise did not act freely can be reasonably doubted. Anyone who thinks a debate about whether someone acted freely is truth-conducive has to acknowledge that reasonable doubt is possible in both these cases. (shrink)

Free will sceptics claim that we lack free will, i.e. the command or control of our conduct that is required for moral responsibility. There are different conceptions of free will: it is sometimes understood as having the ability to choose between real options or alternatives; and sometimes as being the original or true source of our own conduct. Whether conceived in the first or in the second way, free will is subject to strong sceptical arguments. However, free will sceptics face (...) a difficulty: doubting the existence of free will might itself be problematic, whether free will exists or not. Three main considerations are offered in support of this claim. Firstly, it is said that free will sceptics confuse contexts: even if they are right to doubt the existence of free will in the philosophy classroom, they are wrong to do so in other contexts, such as day-to-day interactions or a court of law. Secondly, it is said that free will scepticism is incompatible with inescapable and indispensable human practices such as practical deliberation or moral criticism and evaluation. For, to deliberate about what to do, we must presume that we have true options or alternatives. And to judge that some human practices are wrong, we need to assume the existence of moral responsibility. Thirdly, free will scepticism is sometimes said to be self-defeating, on the grounds that it cannot be rational to believe free will scepticism, because free will is required for rationality. This thesis critically assesses these arguments. None takes free will scepticism down, but all are instructive about how not to be a sceptic. They trace the ‘contours’ of free will scepticism by discrediting some conceptions of free will and some arguments for free will scepticism. (shrink)

Humane farming, that is, a husbandry system where animals do not suffer, either during their lives, or at the time of their killing, has been advertised as an ethical alternative to the horrors of factory farming. Although it could be argued that such a system does not currently exist, we ought to determine whether this is a morally desirable end to strive for. My objective is to assess one of the utilitarian arguments used in the debate about humane farming. In (...) particular, I am interested in whether we have risk-related reasons to argue against the implementation of this practice. I will argue, against de Lazari-Radek and Singer, that considerations of moral risk should lead us to reject the practice of humane farming. In doing so, I will engage with arguments dealing with both the badness of animal death and the value of coming into existence. (shrink)

This article clarifies what a neuroscience challenge to criminal justice must look like by sketching the basic structure of the argument, gradually filling out the details and illustrating the conditions that must be met for the challenge to work. In the process of doing so it explores influential work by Joshua Greene and Jonathan Cohen, and Stephen Morse respectively, arguing that the former should not be understood to present a version of the challenge, and that the latter's argument against the (...) challenge is unpersuasive. This analysis allows the article to flesh out the challenge, and demonstrate why it is currently non-completeable. However, the paper argues that contrary to what is often assumed the burden of proof falls on the defenders of criminal justice, and that they will find meeting it a monumental task. (shrink)

There is a lively debate over who is to blame for the harms arising from unhealthy behaviours, like overeating and excessive drinking. In this paper, I argue that given how demanding the conditions required for moral responsibility actually are, we cannot be highly confident that anyone is ever morally responsible. I also adduce evidence that holding people responsible for their unhealthy behaviours has costs: it undermines public support for the measures that are likely to have the most impact on these (...) harms. I claim that these two facts—the fact that we cannot be highly confident that anyone is morally responsible and the fact that holding people responsible for their unhealthy behaviours has costs—interact. Together they give us a powerful reason for believing, or acting as if we believed, that ordinary people are not in fact responsible for their unhealthy behaviours. (shrink)

In this paper, I review arguments according to which harsh criminal punishments and poverty are undeserved and therefore unjust. Such arguments come in different forms. First, one may argue that no one deserves to be poor or be punished, because there is no such thing as desert-entailing moral responsibility. Second, one may argue that poor people in particular do not deserve to remain in poverty or to be punished if they commit crimes, because poor people suffer from psychological problems that (...) undermine their agency and moral responsibility. Third, one may argue that poor and otherwise marginalized people frequently face external obstacles that prevent them from taking alternative courses of action. The first kind of argument has its place in the philosophy seminar. Psychological difficulties may be important to attend to both in personal relationships and when holding ourselves responsible. Nevertheless, I argue that neither type of argument belongs in political contexts. Moral responsibility scepticism ultimately rests on contested intuitions. Labelling certain groups of people particularly irrational, weak-willed, or similar is belittling and disrespectful; such claims are also hard to prove, and may have the opposite effect to the intended one on people's attitudes. Arguments from external obstacles have none of these problems. Such arguments may not take us all the way to criminal justice reform, but in this context, we can supplement them with epistemic arguments and crime prevention arguments. (shrink)

Here is a skeptical trilemma. We know that we are responsible. We do not know that determinism is false. Yet, if we do not know that determinism is false, we do not know that we are responsible. If we want to avoid the skeptical conclusion of rejecting the first claim, we ought to reject the third. It does not follow that compatibilism is true. But it follows that libertarianism, the view that we are responsible even though responsibility requires indeterminism, is (...) unknowable, at least for now. To see this, we need to compare different forms of skepticism and their response. (shrink)

A growing number of theorists have launched an epistemic challenge against retributive punishment. This challenge involves the core claim that it is wrong (intentionally) to inflict serious harm on someone unless the moral argument for doing so has been established to a high standard of credibility. Proponents of this challenge typically argue that retributivism fails to meet the required epistemic standard, because retributivism relies on a contentious conception of free will, about whose existence we cannot be sufficiently certain. However, the (...) scope of the epistemic challenge should not be limited to doubts about free will or retributivism. In this article, I argue that the epistemic challenge should be expanded beyond the original focus on justifications of punishment. By “expanding the epistemic challenge” I mean demanding that other purported justifications for serious (intentional) harm be held to a high standard of credibility. To provide a focus for the argument, I will concentrate on the “Public Health Quarantine Model” defended by Gregg Caruso, but my arguments have wider implications beyond this model. A growing number of “abolitionist” theorists believe that punishment is wrong in principle. If retributive punishment, or punishment in general, were abandoned, we would need to ask, “how else should we respond to crime?”. My arguments suggest that all such abolitionists will have to face the same epistemic standard as penal theorists if they wish to replace punishment with the intentional imposition of non-punitive severe coercive measures. (shrink)

In Wrongs and Crimes, Victor Tadros argues that wrongdoers acquire special duties to those they’ve wronged, and from there he generates wrongdoers’ duties to contribute to general deterrence by being punished. In support, he contends that my manipulation argument against compatibilism fails to show that causal determination is incompatible with the proposed duties wrongdoers owe to those they’ve wronged. I respond that I did not intend my manipulation argument to rule out a sense of moral responsibility that features such duties, (...) and that I don’t believe it does. In fact, I’m willing to accept a restricted version of Tadros’s proposal, and I explain how this addition modifies the self-defense-based position on deterrence that I’ve defended in the past. (shrink)

Wimpy retributivism finds reasons to refrain from giving the blameworthy and culpable what they deserve, even if it comes to very little. These reasons have to do with the moral hazards of being mistaken about when harsh treatment is justified. A moral influence theory can help supplement retributivist reasons with further consequentialist considerations and thereby keep these skeptical worries in check.