Philosophers Form New “Justice Without Retribution Network”

Philosophers Form New “Justice Without Retribution Network”


There’s a new project to bring philosophy to bear on policy issues. In this case it is free will skepticism and criminal justice.

Gregg Caruso (SUNY Corning), Farah Focquaert (Ghent), Derk Pereboom (Cornell), and Elizabeth Shaw (Aberdeen) have formed the Justice Without Retribution Network.

The Justice Without Retribution Network (JWRN) will bring together researchers from law, philosophy, psychology, psychiatry, and neuroscience, from a range of jurisdictions. The Network will explore the practical implications of free will scepticism for the criminal justice system. It will consider whether non-retributive approaches to criminal behaviour that do not rely on a traditional understanding of free will can be ethically defensible and practically workable.

In a column at Psychology Today, Professor Caruso elaborates:

Free will skepticism maintains that what we do, and the way we are, is ultimately the result of factors beyond our control and because of this we are never morally responsible for our actions in the basic desert sense—the sense that would make us truly deserving of praise and blame.

Free will skepticism stands opposed to the retributivism that underlies many of our attitudes and practices related to criminal justice. Caruso writes:

While there are many reasonable retributivists who acknowledge that we imprison far too many people, in far too harsh conditions, retributivism nonetheless remains committed to the core belief that criminals deserve to be punished and suffer for the harms they have caused. This retributive impulse in actual practice often leads to practices and policies that try to make life in prison as unpleasant as possible. It was this retributive impulse, for instance, that was recently behind the effort in England and Wales to create a blanket ban on sending books to prisoners. Luckily, the high court declared the book ban unlawful, reasoning that books are often essential to the rehabilitation of criminals. It is also this retributive impulse that has lead, at least in part, to the mass incarceration crisis in the United States.

The number of people incarcerated in the US is staggering. With only five percent of the world’s population, the United States imprisons twenty-five percent of the world’s prisoners—far more than any other nation in the world…. And not only does the US imprison at a much higher rate, it also imprisons in notoriously harsh conditions. American supermax prisons are often cruel places, using a number of harsh forms of punishment including extended solitary confinement. The watchdog organization Solitary Watch estimates that up to 80,000 people in the US are currently in some form of solitary confinement. These prisoners are isolated in windowless, soundproof cubicles for 23 to 24 hours each day, sometimes for decades. Such excessively punitive punishment not only causes severe suffering and serious psychological problems, it does nothing to rehabilitate prisoners nor does it reduce the rate of recidivism.

For more information about the network, contact one of its organizers.

(image: aerial photos of U.S. correctional facilities, via Google, arranged by Josh Begley)

prisons aerial photos copy

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Yet Another Anon Grad Student
Yet Another Anon Grad Student
5 years ago

Not to beat the nihilist drums, but it seems quite absurd to me to take the scientific worldview seriously enough to doubt a metaphysically loaded notion of free will, and yet still cling to metaphysically loaded notions of justice, desert, and morality. As though there were somehow *more* evidence that the things (e.g. platonic Forms or some sort of ideal of Reason) required to ground moral realism exist. If we don’t have free will then this infects the rest of our moral theory causing widespread error, since the relevant moral notions have all been formed in reference to it. In the same way that the non-existence of spirits and witches led to a cascading failure of all the theoretical claims of medieval medicine.Report

Another kind of sceptic
Another kind of sceptic
5 years ago

The U.S. incarceration rate rose sharply beginning in the 1970s. It seems doubtful that the increase followed a similar rise in beliefs in free will and retributivism. Perhaps it might be argued that the prevalence of these beliefs provided a standing condition in which social changes of one sort or another caused the increased incarceration. Even if we suppose that this is so, the question remains whether arguing about these beliefs is an effective strategy for lowering the incarceration rate and improving our treatment of those we incarcerate. But perhaps there’s something to be said for attacking the problem from many directions.Report

anon junior ethicist
anon junior ethicist
5 years ago

I’m torn! On the one hand, I totally agree that retributivist thinking has had a huge and horrible influence on the criminal justice system, and and applaud these philosophers for taking organized steps against it.

On the other hand, I think this has nothing to do with free will, and that it’s really counterproductive to think otherwise! Caruso says retributivism is indefensible because we lack free will, and therefore are not truly deserving of blame or praise. This implies that truly deserved blame can be retributive, and therefore that retributivism would be more defensible if we had free will. To put it mildly, both claims are controversial; many (if not most) theories of blame in the literature imply that both claims are false.

Although this isn’t the place for detailed and substantive discussion of blame etc., I think it’s important to bring this up because it seems likely to me that by tying anti-retributivism to hard determinism, the JWRN people are (a) conceding vital moral and rhetorical ground in allowing that retributivism could be defensible if we were different kinds of agents; (b) likely alienating people who would otherwise support the cause, but find the idea that we don’t have free will so depressing that they don’t pay attention. Since, again, retributivism in the criminal justice system is linked to so many HUGELY important policy issues, I exhort the JWRN people to consider arguments and strategies for reform that do not depend on tendentious views about the nature of freedom and moral responsibility, and that therefore could attract support from a wider range of philosophers, activists, and policy-makers.Report

benjamin s. yost
benjamin s. yost
5 years ago

It is important to distinguish between retributivism as a philosophical theory about the justification of punishment (either the practice of punishment or the imposition of a particular punishment on a particular offender) and retributivism as a retaliatory, get tough on crime mindset. Insofar as the former is committed to proportionality, it is not at all to blame for the terrible injustices committed by the U.S. penal system. I don’t know of any philosophical justifications of mandatory minimums, LWOP, extended solitary confinement, excessive drug sentences, etc, and most retributivists I know think these things quite obviously violate proportionality constraints. Sure, “getting tough on crime” might be linked in the popular imagination to retributivism, and in *that* sense, retributivism is to be decried. But I don’t think it’s correct to say that philosophical retributivism has had a huge and horrible influence on the criminal justice system (see, e.g., Tonry’s chapter in _Retributivism Has a Past_ for more on this point). In fact, if the criminal justice system were properly retributive, it would be radically more sane and humane than it is today. (Which is not to say that retributivism is the best theory of punishment going. I don’t think it is.)Report

Chris Surprenant
5 years ago

Glad to see more work being done in this area! I just received a grant to put together a conference on alternatives to incarceration. If anyone working on this project wants to participate in the conference or volume that we’re looking to put out on the same subject, please let me know.

If anyone not affiliated with this project is working on or thinking about alternatives to incarceration, we’ll be announcing a call for abstracts at the beginning of January. It will be a pretty quick turnaround as we’re looking to have the volume out by the beginning of 2017.

More information can be found here: http://www.uno.edu/news/2015/UNOPhilosophyProfessorGetsGranttoStudyAlternativestoIncarceration.aspx.

I’ll send Justin the call for abstracts as soon as that goes up.Report

Anon
Anon
5 years ago

Gosh, this is such a step backwards. Free will skeptics are just plain silly. Moreover, suppose that the “skeptics” are right, why call for change? Those who are responsible for the rise and persistence of retributive justice cannot control what they do or have done. Moreover, like previous commenters have said, it isn’t clear how free will is relevant here. Yes our justice system needs to change, but I don’t see what free will has to do with this.Report

PeteJ
5 years ago

I don’t get it. If we are a freewill sceptic then we believe we have no choice about how we treat criminals. So what is all the ethical soul-searching about? Is the idea that criminals have no control over their behaviour but criminologists do?Report

Gregory Sadler
Reply to  PeteJ
5 years ago

That’s precisely the problem with these sorts of proposals. I used to actually teach philosophy in a degree program in a maximum security prison, full-time, as my main teaching position. In Intro, we’d hit on the issue of free will and determinism, and the same general conversation came up several times.

Prisoner 1: So, if we don’t have free will, then I’m not really responsible for what I did, so I shouldn’t be in here. It’s wrong for them to be punishing me.

Prisoner 2: If you don’t have any freedom or responsibility, and so you can’t be punished for what you did – why would you think that it’s any different for the correctional officers, the administrators, the judge, the warden, or anyone else? If you’re somehow determined to commit a certain action, a crime, they’re just as determined to do their actions, i.e. to punish you.Report

Another kind of sceptic
Another kind of sceptic
5 years ago

Free will skeptics usually take free will to be all the control needed to be morally responsible for the things one does. They deny or doubt that we have this kind of control with respect to our behavior. They usually DON’T claim that we have no control at all over what we do. They don’t claim that consideration of reasons can’t change people’s beliefs, or that changes in beliefs can’t result in differences in one’s choices. It would be silly for them to claim these things, since these things are evidently false.

Given the indicated construal of free will, there is no incoherence is saying: we don’t have free will, and that fact is a reason for us to alter our practices.

Still, as I said earlier, I’m rather doubtful that focusing on beliefs about free will is an effective way to improve our criminal justice system.Report

PeteJ
5 years ago

“They [free will sceptics] deny or doubt that we have this kind of control with respect to our behavior. They usually DON’T claim that we have no control at all over what we do.”

I hope I’m not being obtuse, but this contradiction is incomprehensible to me.

“Given the indicated construal of free will, there is no incoherence is saying: we don’t have free will, and that fact is a reason for us to alter our practices.”

If we do not have freewill then we do not have the ability to choose to change our practices. We do not even have the ability to choose to change our trousers.

We cannot assume that criminals do not have freewill but that legislators do, and as a sceptic we cannot even assume that our sceptical assumption was a free choice.Report

Another kind of sceptic
Another kind of sceptic
Reply to  PeteJ
5 years ago

Might you be able to choose on the basis of reasons but still lack what it would take to be morally responsible for what you do? Perhaps you think this isn’t possible. Free will skeptics disagree with you about that.Report

PeteJ
Reply to  Another kind of sceptic
5 years ago

I suppose you could argue that we can choose what we do but that it doesn’t matter, but this would be a very different argument. An argument stating that we must choose to behave in a certain way towards criminals because we are sceptical about freewill seems to be a very elaborate way to shoot ourselves in the foot.Report

Gray
Gray
5 years ago

@YetAnotherAnonGradStudent

“Not to beat the nihilist drums, but it seems quite absurd to me to take the scientific worldview seriously enough to doubt a metaphysically loaded notion of free will, and yet still cling to metaphysically loaded notions of justice, desert, and morality.”

But I’m not sure a ‘free will skeptic’ has to cling to metaphysical notions of justice and morality (and I’m pretty sure they’d be more than happy to do away with ‘desert’). You can use the words in a more pragmatic and looser sense, can’t you? ‘Justice’ might be the practical operation of the legal mechanisms for enforcing beneficial social norms. In regards to what is ‘beneficial’ here (social stability, productivity, wellbeing, may be a couple of examples), you could accept pluralism and say that this is a shifting and dynamic concept continually debated and reformed in any given society. ‘Morality’ might simply be one of a variety of communicated systems that attempts to argue for the ‘best’ or more preferred general approach to whatever benefit we are en masse motivated to seek, again dynamic and fluid. That’s not a position that necessitates moral realism, and I don’t know if it carries too much metaphysical baggage, although dig deep enough and it will always have something. But the concepts can still serve a pragmatic and functional role in the discussion without being absolutist or appealing to some kind of platonic ideal.

I mean what practical end does retributive justice serve other than to uphold some abstract notion of ‘desert’ that may be based on a false premise? The argument is that, even worse, it directly conflicts with what are mostly overlapping and uncontentious aims. I dunno if appealing to a shared desire for security, wellbeing, and safety needs to entail too strong a metaphysical commitment, but might also not have to go sliding off in to nihilism. I will say, though, that Caruso sounds more like a free will denialist than a free will skeptic to me.Report

Yet Another Anon Grad Student
Yet Another Anon Grad Student
Reply to  Gray
5 years ago

Gray, that all sounds about right. Even if nihilism is true, I think there is still plenty to do as far as ethical theory is concerned. It will just take the form of decision theory in which we systematize our current values by selecting some as fundamental (e.g., maximizing happiness) and then ask whether the resulting system is something we like and would endorse. If not, we select different fundamental values (e.g. respect for agency) and construct a new system. Rinse, repeat. It’s likely that our initial value system is contradictory at certain points, so this would be closer to Nietzsche’s project of the transvaluation of value than to Rawls’ notion of reflective equilibrium. That is, we’re probably going to find that some of our intuitions lead to things that we don’t like, and that upon seeing the big picture we should give them up. I’m not sure what moral realism adds to that equation. It seems to just cause dogmatism and adherence to systems that no one would want to live with.

But I would add that the skeptics’ move from the claim that people can’t be responsible to the claim that we shouldn’t punish them still seems pretty problematic for the initial reasons I gave, unless it is somehow supplemented. For instance, it could just be that retribution is something that we fundamentally value. That is, regardless of whether people are truly “free” in some special sense, we need a reckoning in which they pay for their bad behaviors. Moreover, the skeptics’ claim seems to suggest that we should embrace whatever technology we can to forcibly rewire people so that they are productive members of society. E.g., a biker goes in for rehabilitation for getting into fist fights, gets a neural re-haul, and comes out as a polo-wearing prep into wine-tasting and quinoa. I’m just not down with that. You’d basically be murdering one person and giving a new person their body. Whatever capacity of self-determination people do have should be respected to some extent, even if it is fairly deterministic. That probably means punishing them in some circumstances, even when they can be reformed through invasive means.Report

Andrew Sepielli
Andrew Sepielli
5 years ago

Judging from the Republican debate last night and the comment thread here, I gotta say Oswald Spengler would be killing it in the prediction markets.Report

A very-not-famous MR Skeptic
A very-not-famous MR Skeptic
5 years ago

“If we do not have freewill then we do not have the ability to choose to change our practices. We do not even have the ability to choose to change our trousers.”

Moral responsibility skeptics like me do not deny that we have the ability to choose to change how we live. Skeptics are not in denial that, in the moment, when facing certain choices (trousers or no trousers?) it feels as if it is really open for one to choose one way or another. This exact point is stressed by Galen Strawson (who is the person who convinced me to become a skeptic) in his Basic Argument against moral responsibility (‘The Impossibility of Moral Responsibility’ Phil Studies, 10). What skeptics deny is that the outcome of such choices is something for which one is morally responsible, and as a result reactive attitudes and other retributive punishments directed toward the actor are unjustified.Report

PeteJ
Reply to  A very-not-famous MR Skeptic
5 years ago

Then they are not freewill sceptics and we are at cross purposes. Lack of moral responsibility for ones choices is not the same thing as a lack of ability to choose. The article appears to be concerned with freewill sceptics, not moral nihilists.Report

Alan White
Alan White
5 years ago

First, free will skepticism comes in varieties, with different conceptual frameworks and logical consequences. Some skeptics are (i) incompatibilist denialists who also affirm (semi-)compatibilism, and some (ii) who deny both incompatibilism and compatibilism, and some (iii) who target incompatibilism specifically for denial. Second, these are all conceptually separate from some moral responsibility skeptics, and despite some earlier comments, some such skepticism does not entail moral nihilism, since realism (or anti-realism for that matter) about moral values does not necessarily entail particular stances about responsibility (particularly if nihilist-friendly pragmatism is invoked as a defense of responsibility-practices). Sure, there are some logical relations that can be drawn between specific stances and questions of moral responsibility: some forms of retributivism require libertarianism as a necessary and sufficient condition (but not others), so some forms of skepticism agree and take that as sufficient to refute retributivism (at least some (iii)s above, e.g.), but others ((i)s and (ii)s above) may have disparate accounts of the tenability of retributive and non-retributive accounts of responsibility, and lean heavily on parsing exactly what “retributivism” and its logically conceptual opposite means.

My point? None of this is easy and lends itself to resolution in blog postings. The best we can achieve here is to make minor points–like this one–that press for clarity on specifics and large-scope perspective on a vexed and complex morass of intersecting conceptual issues.

That clarity of course is best achieved in focused work on specifics and big-picture surveys in peer-reviewed venues.Report

amanda gorman
5 years ago

To some of the commenters here, I want to strongly recommend Manuel Vargas’ recent piece “The Revisionist Turn: A Brief History of Recent Work on Free Will” which is a great overview of recent methodological shifts in the discussion on free will and moral responsibility, and might help illuminate A) Why anti-retributivism might be of interest to certain compatibilists too and B) Why there is confusion about what kind of free will we’re talking about in these discussions.Report