1
Free Will, Legal Punishment, and Retributivism
Within the criminal justice system one of the most prominent justifications for legal
punishment, both historically and currently, is retributivism. The retributive justification
of legal punishment maintains that, absent any excusing conditions, wrongdoers
are morally responsible for their actions and deserve to be punished in
proportion to their wrongdoing. Unlike theories of punishment that aim at deterrence,
rehabilitation, or incapacitation, retributivism grounds punishment in the
blameworthiness and desert of offenders. It holds that punishing wrongdoers is
intrinsically good. For the retributivist, wrongdoers deserve a punitive response
proportional to their wrongdoing, even if their punishment serves no further purpose.
This means that the retributivist position is not reducible to consequentialist
considerations nor in justifying punishment does it appeal to wider goods such as the
safety of society or the moral improvement of those being punished.
The dual aims of this book are to argue against retributivism and to develop and
defend a viable nonretributive alternative for addressing criminal behavior that is
both ethically defensible and practically workable. In the first half of the book,
I argue that there are several powerful reasons for rejecting retributivism, not the
least of which is that it is unclear that agents possess the kind of free will and moral
responsibility needed to justify it. I also consider a number of alternatives to
retributivism, including consequentialist deterrence theories, educational theories,
and communicative theories, and argue that they have ethical problems of their
own. In the second half of the book, I then develop and defend a novel nonretributive
approach, which I call the “public health–quarantine model.” The model draws
on the public health framework and prioritizes prevention and social justice. I argue
that it not only offers a stark contrast to retributivism, it also provides a more human,
holistic, and effective approach to dealing with criminal behavior, one that is
superior to both retributivism and other leading nonretributive alternatives.
1.1 free will and the criminal law
Since the issue of free will features centrally in the discussion to follow, it is
important that I begin by defining what I mean by “free will.” I maintain that the
1
variety of free will that has been of central philosophical and practical importance in
the historical debate is the sort required for moral responsibility in a particular but
pervasive sense. This sense of moral responsibility 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, punishment and reward. As Derk Pereboom
defines it:
For an agent to be morally responsible for an action in this sense is for it to be hers in
such a way that she would deserve to be blamed if she understood that it was morally
wrong, and she would deserve to be praised if she understood that it was morally
exemplary. The desert at issue here is basic in the sense that the agent would deserve
to be blamed or praised just because she has performed the action, given an
understanding of its moral status, and not, for example, merely by virtue of consequentialist
or contractualist considerations. (2014: 2)
Understood this way, free will is a kind of power or ability an agent must possess in
order to justify certain kinds of desert-based judgments, attitudes, or treatments –
such as resentment, indignation, moral anger, and retributive punishment – in
response to decisions or actions that the agent performed or failed to perform.
These reactions would be justified on purely backward-looking grounds – that is
what makes them basic – and would not appeal to consequentialist or forwardlooking
considerations, such as future protection, future reconciliation, or future
moral formation (see Pereboom 2001, 2014; Levy 2011; Caruso and Morris 2017).
There are several distinct advantages to defining free will in this way. First, it
provides a neutral definition that virtually all parties can agree to. Unlike some other
definitions, it does not beg the question or exclude from the outset various conceptions
of free will that are available for disputing parties to adopt. Second, by defining
free will in terms of moral responsibility, this definition captures the practical
importance of the debate. As Manuel Vargas writes:
One advantage of making explicit an understanding of free will as linked to
responsibility, is that it anchors philosophical concerns in something comparatively
concrete and undeniably important to our lives. This is not a sense of free will whose
only implication is whether it fits with a given philosopher’s particular speculative
metaphysics. It is not a sense of free will that is arbitrarily attached to a particular
religious framework. Instead, it is a notion of free will that understands its significance
in light of the role or function it plays in widespread and recognized forms of
life. (2013b: 180)
Third, this definition fits with our everyday understanding of these conceptions.
There is, for instance, growing evidence not only that ordinary people view free will
and moral responsibility as intimately tied together but also that it is precisely the
desire to blame, punish, and uphold moral responsibility that motivates belief in free
will (see, e.g., Clark et al. 2014; Shariff et al. 2014; Feldman et al. 2016; Clark et al.
2018; Clark, Winegard, and Baumeister 2019; Everett et al. 2018). People, for
2 Free Will, Legal Punishment, and Retributivism
instance, attribute more free will to performers of morally bad actions than morally
good actions and morally neutral actions (Feldman et al. 2016; Clark et al. 2018;
Everett et al. 2018), and pondering over morally bad actions leads people to increase
their belief in free will of all humankind (Clark et al. 2014). They also appear to
understand responsibility for actions and consequences first and foremost in the
sense defined earlier (Cushman 2008). For instance, empirical findings from Shariff
et al. (2014) and others support the hypothesis that free will beliefs, at least among
ordinary people, positively predict retributive and backward-looking attitudes (see
also Carlsmith and Darley 2008).
Lastly, rejecting this understanding of free will makes it difficult to understand the
nature of the substantive disputes that are driving the free will debate. It is important,
for instance, to distinguish between consequentialist-based and desert-based
approaches to blame and punishment (see, e.g., Caruso and Morris 2017; Morris
2018; Dennett and Caruso 2021). Consequentialist-based approaches are forwardlooking
in the sense that agents are considered proper targets of reprobation or
punishment for immoral actions on the grounds that such treatment will, say,
prevent the agent or other agents from performing that type of action in the future.
Desert-based responsibility, on the other hand, is considered to be backward-looking
and retributivist in the sense that any punitive attitudes or treatments that are
deemed appropriate responses to moral or legal offenses are warranted simply by
virtue of the action/decision itself, irrespective of whatever good or bad results might
follow from the punitive responses. By defining free will as the control in action
required for basic desert moral responsibility, we are able to make sense of this
distinction and sharpen one of the key questions in the free will debate: Do agents
have the control in action (i.e., the free will) needed to justify various desert-based
judgments, attitudes, or treatments such as resentment, indignation, moral anger,
and retributive punishment? Since those who doubt or deny the existence of free will
can adopt consequentialist and forward-looking approaches to blame and punishment,
this cannot be what the substantive debate is about (see Caruso and Morris
2017). Hence, whatever else the free will debate is about, it must also be about basic
desert moral responsibility.
One of the key claims of this book is that the issue of free will is relevant to the
criminal law for at least two main reasons. First, the criminal law is founded on the
idea that persons can be held morally responsible for their actions because they have
freely chosen them. The US Supreme Court, for instance, has asserted:
A “universal and persistent” foundation stone in our system of law, and particularly
in our approach to punishment, sentencing, and incarceration, is the “belief in
freedom of the human will and a consequent ability and duty of the normal
individual to choose between good and evil.”1
1
United States v. Grayson, 438 U.S. 41 at 52 (1978), quoting Morissette v. United States, 342 U.S. 246, 250
(1952).
1.1 Free Will and the Criminal Law 3
Indeed, the US courts have observed that “[t]he whole presupposition of the
criminal law is that most people, most of the time, have free will within broad
limits”2
and that “the law has been guided by a robust common sense which assumes
the freedom of the will as a working hypothesis in the solution of its problems.”3
The
US Supreme Court, in fact, has gone so far as to suggest that “a deterministic view of
human conduct . . . is inconsistent with the underlying precepts of our criminal
justice system.”4
While this last claim is controversial, since some legal scholars
claim that the criminal law only requires compatibilist free will (see Morse 2010,
2013, 2018), one thing is clear: If human beings lack the control in action, that is, the
free will, required for basic desert moral responsibility, then our current conception
of the criminal law will need to be revised.
As the legal historian Thomas Andrew Green has observed,
criminal law has been affected by the problem [of free will] at every level: the
definition of criminal offenses, the assessment of responsibility, including the
practices we have adopted to reach such an assessment; and the way we deal with
those found guilty, both in the formal sense of the institutions of punishment or
treatment and in the informal sense of social views regarding the guilty (2014: 2–3).
The UK House of Lords has held that “the criminal law generally assumes the
existence of free will . . .. [I]nformed adults of sound mind are treated as autonomous
beings able to make their own decisions how they will act.”5
The problem, however,
is that the criminal law’s appeal to free will is founded more on preference and
convenience than fact. As Herbert Packer explains:
The idea of free will in relation to conduct is not, in the legal system, a statement of
fact, but rather a value preference having very little to do with the metaphysics of
determinism or free will . . .. Very simply, the law treats man’s conduct as autonomous
and willed, not because it is, but because it is desirable to proceed as if it were.
(1968: 74–75)
Matthew Jones further writes, “While most areas of law carry free will as a base
assumption, criminal law relies on it to an even greater degree because it provides
a philosophical basis for individual punishment” (2003: 1035). This brings me to
my second point.
Free will is also relevant to the criminal law because of the important role it plays,
historically and currently, in one of the most prominent justifications of legal
punishment: retributivism. The retributive justification of punishment maintains
2
Smith v. Amontrout, 865 F.2d 1502, 1506 (8th Cir. 1988).
3
Steward Machine Co. v. Davis, 301 U.S. 548. 590 (1937).
4
United States v. Grayson, 438 U.S. 41 at 52 (1978). See also Bethea v. United States, 365 A.2d 64, 83 n.39
(D.C. 1976), which asserts: “[T]he notion that a person’s conduct is a simple function of extrinsic forces
and circumstances over which he has no control is an unacceptable contradiction of the concept of
free will, which is the sin qua non of our criminal justice system.”
5
R v. Kennedy, No. 2 (2007), A.C. 269, at 275.
4 Free Will, Legal Punishment, and Retributivism
that wrongdoers deserve the imposition of a penalty solely for the backward-looking
reason that they have knowingly done wrong. Michael S. Moore, a leading retributivist,
highlights this purely backward-looking nature of retributivist justification
when he writes:
[R]etributivism is the view that we ought to punish offenders because, and only
because, they deserve to be punished. Punishment is justified, for a retributivist,
solely by the fact that those receiving it deserve it. Punishment may deter future
crime, incapacitate dangerous persons, educate citizens in the behaviour required
for a civilized society, reinforce social cohesion, prevent vigilante behaviour, make
victims of crime feel better, or satisfy the vengeful desires of citizens who are not
themselves crime victims. Yet for the retributivist these are a happy surplus that
punishment produces and form no part of what makes punishment just: for
a retributivist, deserving offenders should be punished even if the punishment
produces none of these other, surplus goof effects. (1997: 153; see also 1987, 1993)
This backward-looking focus on desert is a central feature of most pure retributive
accounts of punishment (see, e.g., Kant 1790; von Hirsch 1976, 1981, 2007, 2017;
Husak 2000; Kershnar 2000, 2001; Berman 2008, 2011, 2013, 2016; Walen 2014).6
And it is important to emphasize that the desert invoked in retributivism (in the
classical or strict sense) is basic in the sense that it is not in turn grounded in
forward-looking reasons such as securing the safety of society or the moral
improvement of criminals. Thus, for the retributivist, the claim that persons are
morally responsible for their actions in the basic desert sense is crucial to the
state’s justification for giving them their just deserts in the form of punishment for
violations of the state’s laws. Retributivists typically also hold, in addition, that just
punishments must be proportional to wrongdoing. Both the justificatory thesis and
the proportionality requirement for punishments are reflected in Mitchell
Berman’s statement of retributivism: “A person who unjustifiably and inexcusably
causes or risks harm to others or to significant social interests deserves to suffer for
that choice, and he deserves to suffer in proportion to the extent to which his
regard or concern for others falls short of what is properly demanded of him”
(2008: 269).
In the US criminal justice system, the retributivist justification of legal punishment
and the attendant proportionality requirement are widely embraced. In fact,
a number of sentencing guidelines in the United States have adopted the retributivist
conception of desert as their core principle,7
and it is increasingly given
deference in the “Purposes” section of state criminal codes,8
where it can be the
6
In Chapter 5, I will examine so-called mixed accounts of punishment, like R. A. Duff’s (2001), that
combine both forward- and backward-looking features. For the moment, though, I will focus on
unmixed or pure retributive accounts.
7
E.g., 204 Pa. Code Sect. 303.11 (2005); see also (Tonry 2004).
8
E.g., Cal. Penal Code Sect. 1170(a)(1) (West 1985): “The legislature finds and declares that the purpose
of imprisonment for crime is punishment.”
1.1 Free Will and the Criminal Law 5
guiding principle in the interpretation and application of the code’s provisions.9
Indeed, the American Law Institute recently revised the Model Penal Code so as
to set desert as the official dominant principle for sentencing.10
And courts have
identified desert as the guiding principle in a variety of contexts,11
as with the
Supreme Court’s enthroning of retributivism as the “primary justification for the
death penalty”12
(Robinson 2008: 145–146). Additional examples can be found in
legislation, judicial decisions, sentencing guidelines, and criminal codes in
England, Wales, Scotland, Australia, Canada, New Zealand, and Israel (see,
e.g., Dingwall 2008; von Hirsch 2017).
For instance, in 2003 the UK Parliament established a Sentencing Guidelines
Council consisting of senior judges, legal scholars, and criminologists to provide
explicit guidance for sentencing decisions. The following year, the body promulgated
an “overarching principle” relying substantially on conceptions of desert
(see von Hirsch 2017: fn.9; Sentencing Guideline Council 2004; and Ashworth
2015: Chapter 4). This norm provides that a sentencing court is “required to pass
a sentence that is commensurate with the seriousness of the offence,” with the
offence seriousness to be determined by two main parameters: “the culpability
of the offender and the harm caused or risked being caused by the offence”
(2004: s. 1.4; see also von Hirsch 2017: fn.9). Israel also recently adopted a desertoriented
sentencing statue, one that “articulates a retributive guiding philosophy
for sentencing and contains a series of provisions related to various aspects of
sentencing” (Roberts and Gazal-Ayal 2013: 457). For instance, its Sentencing Act
of 2012 stipulates that “[t]he guiding principle in sentencing is proportionality
between the seriousness of the offence committed by the offender and the
degree of his culpability, and the type and severity of his punishment”
(s. 40b). By viewing proportionality to the offender’s culpability as the “guiding”
principle in criminal sentencing, this provision aligns the statute with sentencing
laws in other jurisdictions such as New Zealand and Canada. For example,
the Canadian Criminal Code designates proportionality as “the fundamental
purpose of sentencing” and states that “[a] sentence must be proportionate to the
gravity of the offence and the degree of responsibility of the offender” (2006:
s. 718.1). The New Zealand Sentencing Act similarly affirms the importance of
proportionality in sentencing (2002: s. 8(a); see also Roberts and Gazal-Ayal
2013: fn.12). And in Australia, one example of judicial attention to the retributive
justification of punishment in the context of a sentencing decision can be found
in the following comments from Chief Justice Spigelman in a case relating to
the torture and murder of a seven-month old child: “[T]he sense of outrage in
9
E.g., Model Penal Code Sect. 1.02(2) (Official Draft 1962).
10
American Law Institute, Model Penal Code Sect. 1.02(2) adopted May 24, 2017.
11
See, e.g., the US cases Spaziano v. Florida, 468 U.S. 447, 462 (1984); Gregg v. Georgia, 428 U.S. 153,
183–184 (1976); Cotton (2000).
12
Spaziano v. Florida, 468 U.S. at 461.
6 Free Will, Legal Punishment, and Retributivism
the community in such a case is so strong that the element of retribution must
play a prominent part in the exercise of sentencing discretion” (R v. Hoerler,
2014, NSWCCA 184).
Consider, for instance, the recent revisions made by the American Law Institute
as part of a fifteen-year project to revise the Model Penal Code, first introduced in
1962. The Model Penal Code is one of the most important developments in
American law, and perhaps the most important influence on American criminal
law. Conceived as a way to standardize and organize the often fragmentary criminal
codes enacted by the states, the Model Penal Code has influenced a large majority of
states to change their laws. While the Model Penal Code is not law and has no
binding effect, it has been the model for many states’ criminal codes and has been
extremely influential on state and local lawmakers.
The Purposes provision of the revised code, now set in place by the vote of May 24,
2017, states:
§ 1.02(2). Purposes; Principles of Construction.
(2) The general purposes of the provisions on sentencing, applicable to all official
actors in the sentencing system, are:
(a) in decisions affecting the sentencing of individual offenders:
(i) to render sentences in all cases within a range of severity proportionate
to the gravity of offenses, the harms done to crimevictims, and the
blameworthiness of offenders;
(ii) when reasonably feasible, to achieve offender rehabilitation, general
deterrence, incapacitation of dangerous offenders, restoration of
crime victims and communities, and reintegration of offenders into
the law-abiding community, provided these goals are pursued within
the boundaries of proportionality in subsection (a)(i); and
(iii) to render sentences no more severe than necessary to achieve the
applicable purposes in subsections (a)(i) and (a)(ii).13
It is the inclusion of (2)(a)(i) that taints the entire Model Penal Code and sets
retributivism as the official dominant principle for sentencing. While (2)(a)(ii)
and (2)(a)(iii) are not retributive in nature, they are secondary to the subsection
setting the “blameworthiness of offenders” as the primary justification for criminal
sentencing. Note, first, that retributivism is to guide sentencing “in all cases,”
while rehabilitation, deterrence, incapacitation, and restorative justice are only to
be pursued “when reasonably feasible.” Second, the provision clearly states that
(2)(a)(i) trumps (2)(a)(ii) in that the forward-looking, nonretributive approaches
cited in (a)(ii) are only to be pursued “within the boundaries of proportionality in
13
The revised Model Penal Code is available at: https://robinainstitute.umn.edu/sites/robinainstitute
.umn.edu/files/mpcs_proposed_final_draft.pdf.
1.1 Free Will and the Criminal Law 7
subsection (a)(i).” This amounts to saying that retributive proportional punishment
cannot be overridden for forward-looking reasons.
The revised Purposes section therefore rests upon the theory of limited retributivism,
setting a maximum and minimum for all sentencing based upon deontological
and retributive principles, and allowing for forward-looking,
nonretributive options only “when reasonably feasible” and “within the boundaries
of proportionality.” This is unfortunate, I contend, for at least two reasons.
First, by setting desert as the official dominant principle for sentencing, the
Model Penal Code, along with a number of state sentencing guidelines, has
assumed that “most people, most of the time, have free will within broad limits.”
This assumption is highly questionable and has been the subject of one of the
greatest debates in the history of philosophy. It should not be taken for granted. In
fact, free will skepticism takes seriously the possibility that human beings are never
morally responsible in the basic desert sense. Some skeptics defend the moderate
claim that in any particular case in which we may be tempted to judge that an
agent is morally responsible in the basic desert sense, we lack the epistemic
warrant to do so (e.g., Rosen 2004). Others go further and deny that free will and
basic desert moral responsibility are even possible (e.g., Strawson 1986, 1994).
My own view, and the view I defend in the following chapter, is that our best
philosophical and scientific theories about the world indicate 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.
Setting desert as the official dominant principle for sentencing is unfortunate for
a second reason as well. As trial judge Michael H. Marcus writes:
The revision has essentially abandoned any solution other than guidelines to the
problem of un-prioritized sentencing purposes, eschewing responsibility for
improvement of the public safety performance of sentencing, and settling for
whatever guidelines can bring us to moderate mass incarceration and sentencing
disparity. Indeed, it is only by proposing guidelines, sentencing commissions, and
related appellate review that the revision has any claim to improvement as
compared with the [previous] Model Penal Code. Through the various drafts of
the revision, it is apparent that the [American Law Institute] believes that
programs and alternatives are appropriate for only a small “layer” of crimes . . ..
Because the revision has yielded all to the continued archaic dominance of just
deserts – retributivism however named – and because it evades responsibility for
public safety, its only promise is that of guidelines. That promise is anemic
indeed. (2007: 74–75)
I agree with Judge Marcus that, independent of worries over free will, the move
toward retributivism will likely not reduce crime or increase public safety. Focused
as it is on just deserts and the blameworthiness of offenders, it makes no effort at
addressing the causal determinants of crime or rehabilitating and reintegrating
8 Free Will, Legal Punishment, and Retributivism
offenders back into society. On the other hand, the public health approach developed
in this book maintains that the criminal justice system should be focused on
prevention, rehabilitation, and reintegration. It aims to replace the current reactive
approach to criminal behavior with a preventive approach. I contend that it is indeed
unfortunate that the American Law Institute has decided to continue the “archaic
dominance” of just deserts and retributivism. When judges and attorneys assume
that legal punishment is all (or primarily) about the blameworthiness of offenders
and giving them their just deserts, they become blind to the fact that public safety,
fairness, and the well-being of society are better served by adopting a more holistic
approach focused on prevention, addressing social injustices that give rise to crime,
and rehabilitation.
1.2 retributivism and punishment
Depending on how retributivists view the relationship between desert and punishment,
we can identify three different varieties of the view – weak, moderate, and
strong.14
Weak retributivism maintains that negative desert, which is what the
criminal law is concerned with when it holds wrongdoers accountable,15
is merely
necessary but not sufficient for punishment. That is, weak retributivism maintains
that while desert is a necessary condition for punishment, it is not enough on its own
to justify punishment – other conditions must also be met. As Alec Walen describes
it, weak retributivism is the view that “wrongdoers forfeit their right not to suffer
proportional punishment, but that the positive reasons for punishment must appeal
to some other goods that punishment achieves, such as deterrence or incapacitation”
(2014). Wrongdoing, on this view, is merely a necessary condition for punishment:
“The desert of the wrongdoer provides neither a sufficient condition for nor even
a positive reason to punish” (Walen 2014; see also Mabbott 1939; Quinton 1954).
Moderate retributivism, on the other hand, maintains that negative desert is
necessary and sufficient for punishment but that desert does not mandate
punishment or provide an obligation to punish in all circumstances – that is,
there may be other goods that outweigh punishing the deserving or giving them
their just deserts (Robinson and Cahill 2006). Leo Zaibert, while eschewing the
14
See, e.g., Alexander, Ferzan, and Morse (2009: 7–10), Walen (2014).
15
Negative desert can be contrasted with positive desert, which has to do with an agent deserving praise or
reward for good actions. It’s important to note that there is another conception of “negative desert” that
is widespread in the literature. This latter notion refers to the negative component of the retributivist
thesis. As Walen examples, “Retributivism . . . involves both positive and negative desert claims. The
positive desert claim holds that wrongdoers morally deserve punishment for their wrongful acts.” On
the other hand, “[t]his positive desert claim is complemented by a negative one: Those who have done
no wrong may not be punished. This prohibits both punishing those not guilty of wrongdoing (who
deserve no punishment), and punishing the guilty more than they deserve (i.e., inflicting disproportional
punishment)” (2014, s. 3.1). Having two different notions of negative desert can potentially be
confusing, but I will try my best to make clear which conception is at play in different contexts.
1.2 Retributivism and Punishment 9
taxonomy offered here, defends a kind of moderate retributivism when he
argues:
There are many reasons why sometimes refraining from punishing a deserving
wrongdoer is more valuable than punishing him – even if one believes that there
is [intrinsic] value in inflicting deserved punishment. Perhaps the most conspicuous
cases are those in which the refraining is related to resource-allocation and
opportunity costs . . . To acknowledge the existence of these cases is not to thereby
deny the value of deserved punishment: it is simply to recognize that this value, like
any value, can be – and often is – lesser than other values. (2018: 20)
Mitchell Berman also defends a form of moderate retributivism, which he calls
“modest retributivism” (2016), since he maintains that negative desert grounds
a justified reason to punish, but not a duty. For moderate retributivists, negative
desert is sufficient to justify punishment but other values and considerations may
outweigh inflicting the deserved punishment.
Lastly, strong retributivism maintains that desert is necessary and sufficient for
punishment but it also grounds a duty to punish wrongdoers. Immanuel Kant is
perhaps the most famous representative of this latter view, since he famously
argued that the death penalty was not only deserved but also obligatory in cases of
murder:
[W]hoever has committed murder, must die. There is, in this case, no juridical
substitute or surrogate, that can be given or taken for the satisfaction of justice.
There is no Likeness or proportion between Life, however painful, and Death; and
therefore there is no Equality between the crime of Murder and the retaliation of it
but what is judicially accomplished by the execution of the Criminal. Even if a civil
society resolved to dissolve itself with the consent of all its members – as might be
supposed in the case of a people inhabiting an island resolving to separate and
scatter themselves throughout the whole world – the last murderer lying in prison
ought to be executed before the resolution was carried out. This ought to be done in
order that every one may realize the desert of his deeds, and that blood-guiltiness
may not remain upon the people; for otherwise they might all be regarded as
participators in the murder as a public violation of justice. (1790: Part II: 6)
Of course, not all retributivists support the death penalty – in fact, many contemporary
retributivists do not – but here Kant seems to be embodying the strong retributivist
view that we are not only justified in giving offenders their just deserts by
punishing them, we have a duty to do so. Michael S. Moore also defends a form of
strong retributivism and argues, like Kant, that society has a duty to punish culpable
offenders:
We are justified in punishing because and only because offenders deserve it. Moral
responsibility (“desert”) in such a view is not only necessary for justified punishment,
it is also sufficient. Such sufficiency of justification gives society more than
merely a right to punish culpable offenders. It does this, making it not unfair to
10 Free Will, Legal Punishment, and Retributivism
punish them, but retributivism justifies more than this. For a retributivist, the moral
responsibility of an offender also gives society the duty to punish. Retributivism, in
other words, is truly a theory of justice such that, if it is true, we have an obligation to
set up institutions so that retribution is achieved. (1997: 91)
Strong retributivists therefore defend two distinct claims: (1) that negative desert is
sufficient to justify punishing wrongdoers on the grounds that they deserve it and (2)
that we have a duty to do so. Moderate retributivists, on the other hand, seek only to
defend the first claim.
In what follows, I will limit my discussion to moderate and strong varieties of
retributivism and leave weak retributivism aside – although I will briefly return to the
weak retributivist thesis in Chapter 4. I will do so because, first, most leading
retributivists defend one of these stronger forms of retributivism and it is my desire
to address the dominant view, not a subordinate view held by few – see, for example,
Moore (1997, 1987, 1993), Kershnar (2000, 2001), Husak (2000), Berman (2008, 2011),
von Hirsch (1976, 2007, 2017), Alexander (2013), Alexander, Ferzan, and Morse
(2009). Second, weak retributivism is considered by many retributivists to be “too
weak to guide the criminal law” and as amounting to nothing more than “desert-free
consequentialism side constrained by negative desert” (Alexander, Ferzan, and
Morse 2009: 7). In fact, some theorists simply define retributivism in a way that
excludes weak retributivism from consideration altogether. David Boonin, for
example, defines retributivism as the claim that “committing an offense in the
past is sufficient to justify punishment now, whether or not this will produce any
beneficial consequences in the future” (2008: 86; emphasis added). Retributivist
Mitchell Berman maintains that the “core retributivist thesis” is that
[t]he goodness or rightness of satisfying a wrongdoer’s negative desert morally
justifies [i.e., is sufficient for] the infliction of criminal punishment, without regard
for any further good consequences that might be realized as a contingent result of
satisfying the wrongdoer’s desert. (2016)
And Alec Walen in his Stanford Encyclopedia of Philosophy entry on “Retributive
Justice” (2014) defines retributivism as committed to the following three principles:
(1) that those who commit certain kinds of wrongful acts, paradigmatically serious
crimes, morally deserve a proportionate punishment; (2) that it is intrinsically
morally good – good without reference to any other goods that might arise – if
some legitimate punisher gives them the punishment they deserve; and (3) that it is
morally impermissible to intentionally punish the innocent or to inflict disproportionately
large punishments on wrongdoers.
Lastly, the weight the criminal law gives desert and the way retributivism is
practically implemented in the law (especially in the United States) indicate that
the desert of offenders is typically seen as sufficient for punishment. The revised
Model Penal Code makes this point rather clear. For these reasons, I will take as my
target the claim that the desert of offenders provides sufficient grounds for
1.2 Retributivism and Punishment 11
punishment and that we are therefore justified in sometimes punishing wrongdoers
for no purpose other than to see the guilty get what they deserve. Since this core
claim is held in common among all moderate and strong varieties of retributivism,
I will henceforth drop the moderate/strong distinction and focus instead on this
shared feature.
I will also be limiting my investigation to the question of legal punishment.
Punishment, we can say, is the intentional imposition of an unpleasant penalty
or deprivation for perceived wrongdoing upon a group or individual, typically
meted out by an authority. Everyday examples include a parent taking away
their teenager’s cellphone privileges for a week for bad behavior and a university
expelling a student for plagiarism. Legal punishment is a specific sort of
punishment; it is the intentional imposition of a penalty for conduct that is
represented, either truly or falsely, as a violation of a law of the state, where the
imposition of that penalty is sanctioned by the state’s authority. More precisely,
we can say that
[l]egal punishment consists in one person’s deliberately harming another on behalf
of the state in a way that is intended to constitute a fitting response to some offense
and to give expression to the state’s disapproval of that offense. (Zimmerman 2011;
see also Boonin 2008; Walen 2014)
This is Michael Zimmerman’s (2011) definition and it is the one I will adopt
herein since I think it best captures the key features of legal punishment.
According to this definition, Person A legally punishes Person B if and only if
A acts on behalf of the state in such a way that (1) he harms the punishee – this
could include imposing an unpleasant penalty or deprivation; (2) this harm is
intended by the state; (3) this harm is believed by the state to be fitting – in
particular, fitting to the fact, perhaps in conjunction with some other facts, that
the punishee is associated with some legal offense; (4) he thereby expresses the
state’s disapproval both of the offense and of the offender; and (5) he thereby acts
in some legal official capacity (see Zimmerman 2011: 20). Note that the first three
conditions set out what we may call the core requirements of punishment:
intended harm that is (believed to be) fitting. The latter two conditions are
unique to the legal context – that is, legal punishment is distinct from interpersonal
punishment or punishment carried out by an angry mob since it is sanctioned
by the state, expresses the state’s disapproval, and is guided by a system of
criminal laws concerned with punishment of individuals who are believed to
have committed crimes.
It is important to stress that intended harm is a necessary condition of punishment.
As Leo Zaibert correctly notes, “[W]hatever else punishment seeks to do,
it seeks to make wrongdoers suffer (by somehow diminishing their well-being
or by visiting upon them something they do not want)” (2018: 1). He goes on
to write:
12 Free Will, Legal Punishment, and Retributivism
To punish . . . is to (try to) inflict suffering (or pain or misery or a bad thing, etc.) on
someone as a response to her wrongdoing. Punishment without trying to inflict
suffering is like gifting an object without intending to transfer any right over the
thing gifted or like feeding someone without intending to give her some nourishment.
(Zaibert 2018: 7)
The renowned legal philosopher H. L. A. Hart stresses this point in his definition of
punishment, which he maintains “must involve pain or other consequences normally
considered unpleasant” (2008: 4). Wittgenstein concurs, finding it perfectly “clear,”
that just as “reward must be something pleasant,” punishment must be “something
unpleasant” (1961: 78e; see also Tasioulas 2006; Boonin 2008; Zimmerman 2011;
Zaibert 2018). The kind of harm, suffering, or harsh treatment meted out by the
state in cases of legal punishment need not involve physical pain, but it must be
unpleasant or diminish (at least temporarily) the well-being of offenders.
It must also be the case that the state (or someone acting on its behalf) deliberately
intends the harm, since unintended harms do not constitute punishment. If I trip
and knock over an elderly person, causing them harm, I do not thereby punish them.
Punishment requires intentional harm. As Walen writes:
For an act to count as punishment, it must . . . [f]irst . . . impose some sort of cost or
hardship on, or at the very least withdraw a benefit that would otherwise be enjoyed
by, the person being punished. Second, the punisher must do so intentionally, not
as an accident, and not as a side-effect of pursuing some other end. (2014, s. 2.1)
Zimmerman concurs with this second requirement and writes, “[N]o accidental
harming can qualify as punishment; if you punish someone, then the harm that you
cause is something that you intended to cause” (2011: 7–8). He goes on to argue:
This being the case, it might be thought that, although no accidental harm counts
as punishment, perhaps the harm that punishment involves needn’t be intended
either, as long as it is foreseen. But I think that a little reflection shows that that can’t
be right. We often knowingly cause harm without intending to do so. Indeed, the
harm that we knowingly cause might be just the same kind of harm as that caused by
punishment but, unless we intend to cause it, we cannot be said to be engaged in
punishment. Compare incarceration with quarantine, for example. The extent to
which one’s liberty is restricted may be the same in either case, but only the former
qualifies as punishment, for only in the former case is the harm caused by the
restriction to liberty intended. In the latter case, the harm is foreseen but it is not
intended – although the restriction itself is of course intended, for otherwise it could
not be classified as a case of quarantine at all. (2011: 9–10)
The comparison between punishment and quarantine will play an important role in
the discussion to follow, but Zimmerman is absolutely correct that quarantine is not
a form of punishment since it does not intentionally seek to cause harm.
Punishment, on the other hand, requires that the harms caused be intended.
1.2 Retributivism and Punishment 13
The question under discussion in this book, then, is whether retributive legal
punishment is ever justified. That is, does retributivism as a theory of legal punishment
withstand scrutiny? In particular, is state-sanctioned intentional imposition of
harms (e.g., penalties and sanctions) for violating the state’s laws ever basically
deserved?
One reason to think that no human agents ever basically deserve legal punishment,
as retributivism presupposes, is that we lack the control in action, that is, the
free will, required for moral responsibility in the basic desert sense. Free will skeptics
maintain that since what we do and the way we are is ultimately the result of factors
beyond our control, we are never morally responsible for our actions in the basic
desert sense. Free will skepticism therefore presents a serious challenge to retributivism:
If we never basically deserve blame just because we have knowingly done
wrong, neither do we ever basically deserve punishment just because we have
knowingly done wrong. And this would remain true whether or not the criminal
law assumes libertarian free will, since free will skepticism also denies that compatibilism
preserves the kind of free will and moral responsibility needed to justify
retributive legal punishment.
Free will skepticism, one might object, allows for non-basically deserved blaming
and praising – for example, blaming that invokes desert grounded in consequentialist
(e.g., Daniel Dennett 1984; Manuel Vargas 2013a) or contractualist (e.g., Ben
Vilhauer 2013a, 2013b) considerations. For instance, according to one type of
revisionary account, our practice of holding agents morally responsible in a desert
sense should be retained, not because we are in fact morally responsible in this sense,
but because doing so would have the best consequences relative to alternative
practices. Daniel Dennett (1984) advocates a version of this position, as does
Manuel Vargas (2013a). But punishment justified in this way would not be genuinely
retributivist, since its ultimate justification would be consequentialist, and this is
incompatible with retributivism as it has traditionally been understood. Dennett,
himself, admits as much in my recent debate with him in Just Deserts: Debating Free
Will (Dennett and Caruso 2021), where he makes clear that his consequentialist
defense of the “system of desert” rejects retributivism. Furthermore, it is unclear that
retributivism actually has the consequentialist value some think – this too is an
assumption I will challenge in subsequent chapters.
My own reasons for favoring free will skepticism will be spelled out in detail in the
following chapter. As we will see, they feature distinct arguments that target three
rival views, event-causal libertarianism, agent-causal libertarianism, and compatibilism,
and then claim that the skeptical position is the only defensible position that
remains standing.16
I maintain that the sort of free will required for basic desert
moral responsibility is incompatible with both causal determination by factors
16
See Chapter 2 for definitions. But in short, libertarian theories of free will reject the thesis of causal
determinism and defend an indeterminist conception of free will in order to save what they maintain
are necessary conditions for free will – the ability to do otherwise in exactly the same set of conditions
14 Free Will, Legal Punishment, and Retributivism
beyond the agent’s control and with the kind of indeterminacy in action required by
the most plausible versions of libertarianism. For this reason, I follow Pereboom in
labeling my view hard incompatibilism, since it maintains that free will is incompatible
with both determinism and indeterminism (Pereboom 2001, 2014; Pereboom
and Caruso 2018). I also present a second, independent argument for skepticism that
maintains that regardless of the causal structure of the universe, free will and basic
desert moral responsibility are incompatible with the pervasiveness of luck. This
argument is intended not only as an objection to event-causal libertarianism but
extends to compatibilism as well. At the heart of the argument is the following
dilemma, which Neil Levy (2011) calls the luck pincer: Either actions are subject to
present luck (luck around the time of action), or they are subject to constitutive
luck (luck in who one is and what character traits and predispositions one has),
or both. Either way, luck undermines moral responsibility since it undermines
responsibility-level control.
But even if one is not convinced by the arguments against the sort of free will
required for basic desert, I argue that there remains a second strong Epistemic
Argument against causing harm on retributivist grounds that is sufficient for the
rejection of retributive legal punishment. This is because the burden of proof lies on
those who want to intentionally inflict harm on others to provide good justification
for such harm (see Vilhauer 2009a, 2012, 2015; Shaw 2014; Corrado 2017; Caruso
2020). This means that retributivists who want to justify legal punishment on the
assumption that agents are free and moral responsible (and hence justly deserve to
suffer for the wrongs they have done) must justify that assumption in a way that
meets a high epistemic standard of proof since the harms caused in the case of legal
punishment are often quite severe. It is not enough to simply point to the mere
possibility that agents possess libertarian or compatibilist free will. Nor is it enough
to say that the skeptical arguments against free will and basic desert moral responsibility
fail to be conclusive. Rather, a positive and convincing case must be made that
agents are in fact morally responsible in the basic desert sense, since it is the
backward-looking desert of agents that retributivists take to justify the harm
caused by legal punishment. This Epistemic Argument against retributive legal
punishment is developed and defended in Chapter 3, but I can briefly summarize
it here as follows:17
and/or the idea that we remain, in some important sense, the ultimate source/originator of action.
Compatibilism, on the other hand, defends a conception of free will that aims to reconcile free will
with causal determinism – the thesis that every event or action, including human action, is the
inevitable result of antecedent circumstances in accordance with the laws of nature.
17
The basic idea behind the Epistemic Argument was first introduced by Pereboom in Living Without
Free Will (2001: 161). Benjamin Vilhauer then developed the argument in detail in a series of papers
(2009a, 2012, 2015). I presented my own version of it in Caruso (2020). Others who have also defended
versions of the Epistemic Argument include Double (2002), Shaw (2014), Corrado (2017), and
Jeppsson (2020).
1.2 Retributivism and Punishment 15
(1) Legal punishment intentionally inflicts harms on individuals and the justification
for such harms must meet a high epistemic standard. If it is significantly
probable that one’s justification for harming another is unsound, then,
prima facie, that behavior is seriously wrong.
(2) The retributivist justification for legal punishment assumes that agents are
morally responsible in the basic desert sense and hence justly deserve to suffer
for the wrongs they have done in a backward-looking, non-consequentialist
sense (appropriately qualified and under the constraint of proportionality).
(3) If the justification for the assumption that agents are morally responsible in
the basic desert sense and hence justly deserve to suffer for the wrongs they
have done does not meet the high epistemic standard specified in (1), then
retributive legal punishment is prima facie seriously wrong.
(4) The justification for the claim that agents are morally responsible in the basic
desert sense provided by both libertarians and compatibilists faces powerful
and unresolved objections and as a result falls far short of the high epistemic
bar needed to justify such harms.
(5) Hence, retributive legal punishment is unjustified and the harms it causes are
prima facie seriously wrong.
In developing the Epistemic Argument, I examine the leading extant accounts of
basic desert moral responsibility and argue that they all fail to satisfy the high
epistemic standard needed to justify retributive legal punishment – a standard,
I contend, that is both reasonable and defensible. I therefore conclude that the
Epistemic Argument provides sufficient reason for rejecting retributivism.
In addition to free will skepticism and the Epistemic Argument, I also provide
several additional arguments against retributivism in Chapter 4. First, I argue that,
even if the requisite capacity for control is in place and basic desert could be secured,
there are good pragmatic reasons for rejecting retributivism. This is because retributive
justice has “limited effectiveness in promoting important social goals such as
rehabilitation and reforming offenders” (Shaw 2019a). Second, I argue that it is
philosophically problematic to impart to the state the function of intentionally
harming wrongdoers in accordance with desert since it is not at all clear that the
state is capable of properly tracking the desert and blameworthiness of individuals in
any reliable way. This is because criminal law is not properly designed to account for
all the various factors that affect blameworthiness, and as a result the moral criteria of
blameworthiness is often misaligned with the legal criteria of guilt (Kelly 2018).
While a retributivist could argue that this second objection is more indicative of our
broken criminal justice system, not retributivism per se, I argue that there are in
principle reasons to doubt that the criminal justice system could ever properly align
the legal criteria of guilt with the moral criteria of blameworthiness.
This is because, third, for the state to be able to justly distribute legal punishment
in accordance with desert, it needs to be in the proper epistemic position to
16 Free Will, Legal Punishment, and Retributivism
know what an agent basically deserves, but since the state is (almost) never in the
proper epistemic position to know what an agent basically deserves, it follows that
the state is not able to justly distribute legal punishment in accordance with
desert. In Chapter 4, I label this the Poor Epistemic Position Argument (or PEPA)
so as to distinguish it from the Epistemic Argument outlined earlier. I argue that
it is practically impossible for the state to punish in accordance with desert,
without this leading to injustice, since, due to the state’s epistemic limitations,
some people will inevitably end up getting more punishment than they deserve
(and some less) judged on the retributivists own grounds. Lastly, I argue that even
if retributivism could overcome all these various difficulties, there remains the
additional problem that how the state goes about judging the gravity of wrong
done, on the one hand, and what counts as proportional punishment for that
wrong, on the other, is wide open to subjective and cultural biases and prejudices,
and as a result, the principle of proportionality in actual practice does not provide
the kind of protections against abuse it promises.
In the end, I conclude that there are at least six powerful reasons for rejecting
retributivism: (1) the truth of free will skepticism (or what we can call the Skeptical
Argument); (2) the Epistemic Argument; (3) the Limited Effectiveness Argument –
that is, practical concerns over the limited effectiveness of retributive justice in
promoting important social goals; (4) the Misalignment Argument, which argues
that the criminal law is not properly designed to account for all the various factors
that affect blameworthiness, and as a result the moral criteria of blameworthiness is
often misaligned with the legal criteria of guilt; (5) the Poor Epistemic Position
Argument (or PEPA); and (6) the Indeterminacy in Judgment Argument, which
argues that judgments of gravity and proportionality are indeterminate, ambiguous,
and too easily influenced by cultural biases and prejudices to guarantee respect for
persons and prevent cruel and inhumane punishment.
Consider, for instance, the fact that the US criminal justice system widely embraces
the retributivist justification of legal punishment and the proportionality requirement,
yet this has not prevented the mass incarceration of its citizens nor has it been
sufficient to protect against disproportionate punishment. While I am not suggesting
that these problems are due solely to retributivism – since there is good reason to think
that “three strikes” laws, mandatory minimums, and other policies responsible for
mass incarceration were also motivated by the desire for deterrence18
– my point is
simply that commitment to limited retributivism has not prevented these abuses. As
witnessed by the codes, provisions, and rulings cited earlier, it is clear that the
retributivist justification of legal punishment and the attendant proportionality
requirement are widely embraced in the United States (see fns.5–10). Yet, with
only 4.5 percent of the world’s population, the United States imprisons
25 percent of the world’s prisoners – far more than any other nation in the world.
18
This is partly why I also reject consequentialist deterrence theories of punishment (see Chapter 5).
1.2 Retributivism and Punishment 17
The US imprisons roughly 700 prisoners for every 100,000 people,19
whereas
Scandinavian countries such as Sweden, Finland, and Norway hover around 60 per
100,000.20
And not only does the United States imprison at a much higher rate, it also
imprisons in notoriously harsh conditions.
American prisons are often cruel places, using a number of harsh forms of
punishment including extended solitary confinement. The watchdog organization
Solitary Watch estimates that 80,000 to 100,000 people in the United States are
currently in some form of solitary confinement.21
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. In fact, the United States has one of the highest rates of
recidivism in the world, with a recent report by the Bureau of Justice Statistics (2018)
finding an estimated 68 percent of released prisoners being rearrested within three
years of release, 79 percent within six years, and 83 percent within nine years.22
Norway, by contrast, has the world’s lowest recidivism rate at 20 percent
(Kristoffersen 2010; Encartele Inc. 2018). One of the big differences is that the
Norwegian systems aim at rehabilitation and reintegration and prepare inmates for
life after incarceration by providing them with educational opportunities and work
training. It also encourages guards to cultivate friendships with the inmates, for
inmates to interact with each other, and for inmates to exercise maximal autonomy.
Treating inmates humanely helps them develop the interpersonal skills needed to
successfully reintegrate back into society. US prisons, on the other hand, tend to
isolate inmates and control every aspect of their lives – for example, when they eat
and sleep, what they do, where they go, etc. This can instill a kind of learned
helplessness that makes it extremely difficult for individuals to readjust to life on
the outside.
Sentences in the United States also tend to be more punitive than other countries.
Even controlling for crime rates and population size, the United States hands down
longer sentences, spends more money on prisons, and executes more of its citizens
than every other advanced industrial democracy (Farrell and Clark 2004; Blumstein,
Tonry, and Van Ness 2005; Enns 2006: 3; Cowen 2010; Amnesty International 2012).
A combination of three strikes laws and other legislation has also led to
a disproportionate number of US prisoners serving life without the chance of parole.
19
According to the Prison Policy Initiative, in 2018 the number was 698 per 100,000 (see: www
.prisonpolicy.org/global/2018.html).
20
According to the latest numbers, Norway imprisons 63 per 100,000, Sweden 59, Finland 51, and
Denmark 63. See International Centre for Prison Studies, “World Prison Brief”: www
.prisonstudies.org/sites/default/files/resources/downloads/wppl_12.pdf.
21
See also the Vera Institute report on “Solitary Confinement: Common Misconceptions and Emerging
Safe Alternative” (2015). Available at: www.vera.org/downloads/publications/solitary-confinement-
misconceptions-safe-alternatives-report_1.pdf.
22
The report is available here: www.bjs.gov/content/pub/pdf/18upr9yfup0514.pdf.
18 Free Will, Legal Punishment, and Retributivism
In fact, the proportion of individuals serving life without parole in the United States
is approximately 180 times greater than England (Enns 2016: 3). A recent report by
the Sentencing Project (2017) found that there were 161,957 people serving life
sentences, or one of every nine people in prison. An additional 44,311 individuals
are serving “virtual life” sentence, yielding a total population of life and virtual life
sentences at 206,268 – or one of every seven people in prison. The pool of people
serving life sentences has more than quadrupled since 1984. Furthermore, nearly
half (48.3 percent) of life and virtual life-sentenced individuals are African
American, equal to one in five black prisoners overall. More than 17,000 individuals
with life without parole or virtual life sentences have been convicted of nonviolent
crimes. The United States incarcerates people for life at a rate of 50 per 100,000,
roughly equivalent to the entire incarceration rates of the Scandinavian nations of
Denmark, Finland, and Sweden (The Sentencing Project 2017).
Of course, there are many reasonable retributivists who acknowledge that we
imprison far too many people, in far too harsh conditions. The problem, however, is
that retributivism 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 (rather than in pure theory) often leads to practices and policies that
try to make life in prison as unpleasant as possible. It also fuels the desire to continue
to punish individuals even after they have been released. Consider voter disenfranchisement.
In the 2016 US Presidential election, an estimated 6.1 million Americans
were barred from participating due to felony convictions, with an estimated
3.1 million of those disenfranchised due to state laws that restrict voting rights even
after the completion of sentences. Such voter disenfranchisement policies can only
be justified on the assumption (correct or not) that it is deserved, since denying the
vote to ex-offenders accomplishes little of forward-looking value. As Supreme Court
Justice Thurgood Marshall so eloquently put it:
It is doubtful . . . whether the state can demonstrate either a compelling or rational
policy interest in denying former felons the right to vote. [Ex-offenders] have fully
paid their debt to society. They are as much affected by the actions of government as
any other citizen, and have as much of a right to participate in government decisionmaking.
Furthermore, the denial of a right to vote to such persons is a hindrance to
the efforts of society to rehabilitate former felons and covert them into law-abiding
and productive citizens.23
Since retributivists care little about rehabilitation and other forward-looking goods,
the only rationale they need appeal to is giving wrongdoers their just deserts.24
23
Richardson v. Ramirez, 418 U.S. at 78; Marshall J. dissenting
24
Other potential policy interests defenders of voter disenfranchisement can point to include: (1)
protecting against voter fraud or other election offenses, (2) prevention of harmful changes to the
law, and (3) protection of the “purity” of the ballot box. But there are severe problems with each of
these putative interests (see Human Rights Watch, Sentencing Project: www.hrw.org/legacy/
reports98/vote/usvot98o-03.htm).
1.2 Retributivism and Punishment 19
Unfortunately, this desire for retribution, in actual practice, often overrides any
theoretical commitments to proportionality and respecting human dignity.
1.3 the public health–quarantine model
If we reject retributivism, either because we come to doubt or deny the existence of
free will or for other reasons, what are we left with? Many worry that without the
justification of retributivism and the putative protection afforded by the principle of
proportionality, we would be unable to successfully deal with criminal behavior. But
traditionally, in addition to pure retributivism there have been a number of other
common justifications of legal punishment, including consequentialist deterrence
theories, moral education theories, and a variety of expressive, communicative, and
mixed theories of punishment. While I will argue in Chapter 5 that these other
approaches face significant moral concerns of their own – or, in the case of mixed
theories, retain certain retributive components that are unjustified – the second half
of the book will develop and defend what I contend is an ethically defensible and
practically workable alternative to retributive legal punishment, one that is consistent
with free will skepticism and preferable to these other nonretributive alternatives.
I call it the public health–quarantine model. As we will see, the model not only
provides a justification for the incapacitation of dangerous criminals consistent with
free will skepticism, it also provides a broader and more comprehensive approach to
criminal behavior generally since it draws on the public health framework and
prioritizes prevention and social justice.
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. Yet the model does not justify the sort of criminal
punishment whose legitimacy is most dubious, such as death or confinement in the
most common kinds of prisons in our society. In fact, the model is completely
nonpunitive since it does not satisfy the definition of punishment introduced earlier.
It also requires special attention to the well-being and dignity of criminals that would
change much of current policy. Perhaps most importantly, the model also develops
a public health approach that prioritizes prevention and social justice and aims at
identifying and taking action on the social determinants of health and criminal
behavior (see Chapters 6–8).
The model begins with Derk Pereboom’s quarantine analogy, which draws on
a comparison between treatment of dangerous criminals and treatment of carriers of
dangerous diseases (see Pereboom 2001, 2013, 2014; Caruso 2016, 2017; Pereboom and
Caruso 2018; Caruso and Pereboom 2020). In its simplest form, it can be stated as
follows: (1) Free will skepticism maintains that criminals are not morally responsible
for their actions in the basic desert sense; (2) plainly, many carriers of dangerous
diseases are not responsible in this or in any other sense for having contracted these
diseases; (3) yet we generally agree that it is sometimes permissible to quarantine
20 Free Will, Legal Punishment, and Retributivism
them, and the justification for doing so is the right to self-protection and the
prevention of harm to others; (4) for similar reasons, even if a dangerous criminal
is not morally responsible for his crimes in the basic desert sense (perhaps because
no one is ever in this way morally responsible) it could be as legitimate to preventatively
detain him as to quarantine the nonresponsible carrier of a serious communicable
disease (see Pereboom 2001, 2014).
The first thing to note about the theory is that although one might justify
quarantine (in the case of disease) and incapacitation (in the case of dangerous
criminals) on purely utilitarian or consequentialist grounds, Pereboom and I resist
this strategy (see Pereboom and Caruso 2018; Caruso and Pereboom 2020). Instead,
we maintain that incapacitation of the seriously dangerous is justified on the ground
of the right to harm in self-defense and defense of others. That we have this right has
broad appeal, much broader than utilitarianism or consequentialism has. In addition,
this makes the view more resilient to a number of objections and provides
a more resilient proposal for justifying criminal sanctions than other nonretributive
options (see, e.g., Pereboom and Caruso 2018). One advantage it has, say, over
consequentialist deterrence theories is that it has more restrictions placed on it
with regard to using people merely as a means. For instance, as it is illegitimate to
treat carriers of a disease more harmfully than is necessary to neutralize the danger
they pose, treating those with violent criminal tendencies more harshly than is
required to protect society will be illegitimate as well. In fact, the model requires
that we adopt the principle of least infringement, which holds that the least restrictive
measures should be taken to protect public health and safety. This ensures that
criminal sanctions will be proportionate to the danger posed by an individual, and
any sanctions that exceed this upper bound will be unjustified.
Second, the quarantine model places several constraints on the treatment of
criminals (Pereboom 2001, 2014). First, as less dangerous diseases justify only preventative
measures less restrictive than quarantine, so less dangerous criminal
tendencies justify only more moderate restraints (Pereboom 2014: 156). We do not,
for instance, quarantine people for the common cold even though it has the
potential to cause you some harm. Rather, we restrict the use of quarantine to
a narrowly prescribed set of cases. Analogously, on this model the use of incapacitation
should be limited to only those cases where offenders are a serious threat to
public safety and no less restrictive measures were available. In fact, for certain
minor crimes perhaps only some degree of monitoring could be defended.
Secondly, the incapacitation account that results from this analogy demands
a degree of concern for the rehabilitation and well-being of the criminal that
would alter much of current practice. Just as fairness recommends that we seek to
cure the diseased we quarantine, so fairness would counsel that we attempt to
rehabilitate the criminals we detain (Pereboom 2014: 156). Rehabilitation and
reintegration would therefore replace punishment as the focus of the criminal
justice system. Lastly, if a criminal cannot be rehabilitated and our safety requires
1.3 The Public Health–Quarantine Model 21
his indefinite confinement, this account provides no justification for making his life
more miserable than would be required to guard against the danger he poses
(Pereboom 2014: 156).
In addition to these restrictions on harsh and unnecessary treatment, the model
also advocates for a broader approach to criminal behavior that moves beyond the
narrow focus on sanctions. As we will see, I situate the quarantine analogy within the
broader justificatory framework of public health ethics. Public health ethics not only
justifies quarantining carriers of infectious diseases on the grounds that it is necessary
to protect public health, it also requires that we take active steps to prevent such
outbreaks from occurring in the first place. Quarantine is only needed when the
public health system fails in its primary function. Since no system is perfect,
quarantine will likely be needed for the foreseeable future, but it should not be
the primary means of dealing with public health. The analogous claim holds for
incapacitation. Taking a public health approach to criminal behavior would allow
us to justify the incapacitation of dangerous criminals when needed, but it would
also make prevention a primary function of the criminal justice system. So instead of
myopically focusing on punishment, the public health–quarantine model shifts the
focus to identifying and addressing the systemic causes of crime, such as poverty, low
social economic status, systematic disadvantage, mental illness, homelessness, educational
inequity, exposure to abuse and violence, poor environmental health, and
addiction (see Chapter 7).
Since the social determinants of health and the social determinants of criminal
behavior are broadly similar, or so I will argue, the best way to protect public health
and safety is to adopt a public health approach for identifying and taking action on
these shared social determinants. Such an approach requires investigating how
social inequities and systemic injustices affect health outcomes and criminal behavior,
how poverty affects health and incarceration rates, how offenders often have
preexisting medical conditions including mental health issues, how homelessness
and education affect health and safety outcomes, how environmental health is
important to both public health and safety, how involvement in the criminal justice
system itself can lead to or worsen health and cognitive problems, and how a public
health approach can be successfully applied within the criminal justice system (see
Chapter 7). I contend that just as it is important to identify and take action on the
social determinants of health if we want to improve health outcomes, it is equally
important to identify and address the social determinants of criminal behavior.
Furthermore, the public health framework sees social justice as a foundational
cornerstone to public health and safety (see Powers and Faden 2006). In public
health ethics, a failure on the part of public health institutions to ensure the social
conditions necessary to achieve a sufficient level of health is considered a grave
injustice. An important task of public health ethics, then, is to identify which
inequalities in health are the most egregious and thus which should be given the
highest priority in public health policy and practice. The public health approach to
22 Free Will, Legal Punishment, and Retributivism
criminal behavior likewise maintains that a core moral function of the criminal
justice system is to identify and remedy social and economic inequalities responsible
for crime. Just as public health is negatively affected by poverty, racism, and
systematic inequality, so too is public safety. This broader approach to criminal
justice therefore places issues of social justice at the forefront. It sees racism, sexism,
poverty, and systemic disadvantage as serious threats to public safety and it prioritizes
the reduction of such inequalities.
The core of the public health–quarantine model, then, 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 resulting account
would not justify the sort of criminal punishment whose legitimacy is most dubious,
such as death or confinement in the most common kinds of prisons in our society.
The model also specifies attention to the well-being of criminals, which would
change much of current policy. Furthermore, the public health component of the
theory prioritizes prevention and social justice and aims at identifying and taking
action on the social determinants of health and criminal behavior. This combined
approach to dealing with criminal behavior, I maintain, is sufficient for dealing with
dangerous criminals, leads to a more humane and effective social policy, and is
actually preferable to the harsh and often excessive forms of punishment that
typically come with retributivism.
1.4 implications
Adopting the public health–quarantine model will, of course, have significant
implications for our institutions of criminal justice and law. Since legal punishment
seeks to make wrongdoers suffer and requires the intentional imposition of a penalty
for conduct that is represented as a violation of a law of the state, and since the public
health–quarantine model does not involve punishment in this way, it offers
a nonpunitive alternative to treatment of criminals. When we quarantine an individual
with a communicable disease in order to protect people, we are not intentionally
seeking to harm or impose a penalty on them. The same is true when we
incapacitate the criminally dangerous in order to protect society. The right of selfdefense
and prevention of harm to others justifies the limiting or restricting of
liberty, but it does not constitute punishment as standardly understood. This is
important for several reasons. First, the model demands that we view individuals
holistically and that we adopt a preventive approach – one that understands that
individuals are embedded in social systems, that criminal behavior is often the result
of social determinants, and that prevention is always preferable to incapacitation.
Second, after a criminal offense has occurred, courts would need to work with
mental health experts, drug treatment professionals, and social service agencies to
seek alternatives to incarceration. Lastly, for those who must be incapacitated, they
would need to be housed in nonpunitive environments designed with the purpose of
1.4 Implications 23
rehabilitation and reintegration in mind. Since most prisons in the United States,
United Kingdom, and Australia are inhospitable and unpleasant places designed for
punitive purposes, we would need to redesign them so that the physical environments
and spaces we incapacitate people in better serve the goal of rehabilitation
and reintegration (see Chapters 7 and 8 for details).
With regard to sentencing, voter disenfranchisement, and three strikes laws, the
public health–quarantine model would require radical changes to our current, often
excessively punitive, system. For one, felony voter disenfranchisement policies
would be ended, since they serve no forward-looking benefit and are ultimately “a
hindrance to the efforts of society to rehabilitate former felons and covert them into
law-abiding and productive citizens.” The sentence of life without parole would also
be removed as an option, since it precludes from the outset the possibility of
rehabilitation, violates the principle of least infringement, discourages the state
from working to improve the well-being of offenders since they are seen as “lost
causes,” and prevents the reassessment of individual cases as circumstances change.
While this may sound like a radical proposal, it is not a novel one. Portugal was the
first country to abolish life imprisonment in 1884 and since then several other
countries have followed suit, including Norway, Spain, Canada, Bosnia, Brazil,
and Croatia. The maximum sentence one can get in Norway, for instance, is twentyone
years, and this is true even for murder. The Norwegian penal code does allow,
however, for detention to be extended by five years at a time if the offender is still
considered dangerous after serving their original sentence. While this may effectively
allow for a life term if an offender cannot be rehabilitated and is deemed
a serious continued threat to society, it has the benefit of requiring continued
reevaluation and assessment. And unlike the United States, where one out of every
nine people in prison is serving a life sentence, very few people in Norway ever serve
more than a year. The average sentence in Norway is around eight months, more
than 60 percent of prison sentences are up to three months, and almost 90 percent
are less than a year.
The public health–quarantine model would similarly require incapacitation be
kept to an absolute minimum and life without parole be eliminated as an option.
A recent study by the Brennan Center for Justice found that 39 percent of the US
prison population (roughly 576,000 people) is behind bars with little public safety
rationale (Austin et al. 2016). They found that many offenders should not have
been sent to prison in the first place. According to the report, up to 25 percent of
prisoners (364,000 people), almost all nonviolent, lower-level offenders, would be
better served by alternatives to incarceration such as treatment, community
service, and probation. Another 14 percent (212,000 people) have already served
long sentences and can be safely set free with little or no risk to public safety.
Releasing these individuals would significantly and safely cut our prison population
by more than a half million and save $20 billion annually – enough to
employ 327,000 school teachers, 360,000 probation officers, or 270,000 new police
24 Free Will, Legal Punishment, and Retributivism
officers. If these numbers are correct, adopting the public health–quarantine
model would significantly aid in reducing mass incarceration since it would end
life without parole and seek alternatives to incapacitation for offenders who pose
little to no risk to public safety.
Three strikes laws would likewise need to be reversed since they prevent individual
cases from being judged on their own terms, which would be needed if we are to
accurately assess the threat an individual poses to society moving forward. Not all
felonies are equal. And the fact that one person has committed three strikes does not
mean they represent the same threat to society as another. Furthermore, three strikes
laws often run afoul of principle of least infringement. Consider the following example:
On November 4, 1995, Leandro Andrade walked into a Southern California Kmart.
Andrade – who had several past criminal convictions – was about to commit a crime
that would lead to a prison sentence of twenty-five years to life. Two weeks later, still
a free man, Andrade struck again. This time, the target was a Kmart just three miles
to the west of his previous crime. His plan was identical and would result in another
sentence of twenty-five years to life. In two weeks, Andrade had attempted to steal
nine VHS tapes: The Fox and the Hound, The Pebble and the Penguin, Snow White,
Batman Forever, Free Willy 2. Little Women, The Santa Clause, and Cinderella.
The total cost of the movies was $153.54. The actual cost to Andrade was fifty years to
life. (Enns 2016: 1)
Under California’s three strikes laws at the time, two counts of petty theft with a prior
conviction carried consecutive sentences of twenty-five years to life. And while you
might think this an extreme example, it is not:
In 2010, 32,392 individuals were imprisoned in California [alone] with their second
strike. Another 8,764 were incarcerated with their third strike. Of the second strikers,
833 were for petty theft. And like Andrade . . ., an additional 341 individuals faced
a potential life sentence for stealing items valued at $950 or less. (Enns 2016: 2)
On the public health–quarantine model, sentences like this would be in violation of
the principle of least infringement since Leandro Andrade’s acts of petty theft do not
constitute a serious threat to society, at least not on their own, and should therefore
be dealt with by other, less restrictive means.
These are only a few examples of the kinds of implications the public health–
quarantine model would have, but hopefully they provide a sense of the wideranging
nature of the reforms that would be required. Other implications will be
discussed in subsequent chapters.
1.5 common misconceptions
Since one of the main goals of this book is to develop and defend the public health–
quarantine model, I would like to address a few potential misconceptions at the
outset. Critics sometimes fear that my proposal will place offenders outside the
1.5 Common Misconceptions 25
moral community or flatten out important distinctions, treating the different capacities
of agents as irrelevant and/or treating all offenders as if they were incompetent
or mentally ill. For instance, retributivist C. S. Lewis (1953) famously argued that if
retributivism were abandoned in favor of harm prevention, responsible offenders
would be objectified and would no longer be protected by considerations of justice.
According to Lewis:
The Humanitarian theory removed from Punishment the concept of Desert. But the
concept of Desert is the only connecting link between punishment and justice . . .
There is no sense in talking about a “just deterrent” or a “just cure.” We demand of
a deterrent not whether it is just but whether it will deter. We demand of a cure not
whether it is just but whether it succeeds. Thus when we cease to consider what the
criminal deserves and consider only what will cure him or deter others, we have
tacitly removed him from the sphere of justice altogether; instead of a person,
a subject of rights, we now have a mere object, a patient, a “case.” (1953: 225)
In recent years, similar concerns have been echoed by Morse (2018), Smilansky
(2011),and Dennett (2011, Dennett and Caruso 2020). Sometimes the concern is put
in terms of P. F. Strawson’s (1962) famous distinction between the reactive and
objective attitudes. Strawson maintained that our justification for claims of blameworthiness
and praiseworthiness is grounded in the system of human reactive
attitudes, such as moral resentment, indignation, guilt, and gratitude. Strawson
contends that because our moral responsibility practices are grounded in this way,
if we were to abandon the notion of moral responsibility, we would be forced to
adopt the cold and calculating objective attitude toward others, a stance that
relinquishes the reactive attitudes. According to Strawson and his followers, the
denial of all moral responsibility is unacceptable, self-defeating, and/or impossible,
since to permanently excuse everyone would entail that “nobody knows what he’s
doing or that everybody’s behavior is unintelligible in terms of conscious purposes or
that everybody lives in a world of delusion or that nobody has a moral sense”
(1962: 74).
While I take these concerns seriously and acknowledge that earlier versions of
what Lewis (1953) calls the “humanitarian” approach may have been guilty of
them, I also maintain that they are misguided when applied to the public health–
quarantine model I defend. First, it is important to recognize that neither Pereboom
nor I set out our position in a strict consequentialist theoretical context. Rather, we
justify incapacitation on the ground of the right to self-defense and defense of others.
That right does not extend to people who are nonthreats. The aim of protection is
justified by a right with clear bounds and not by a consequentialist theory on which
the bounds are unclear. It would therefore be wrong, according to our model, to
incapacitate someone who is innocent since they are not a serious threat to society
(Pereboom and Caruso 2018; see also Chapter 8). The principle of least infringement
would also prohibit legal sanctions that exceed what is needed to protect
26 Free Will, Legal Punishment, and Retributivism
public health and safety. As a result, it would oppose using individuals simply as
a means to deter others by ratcheting up various punitive responses to crime, as was
the case with three strikes laws and mandatory minimums. The public health–
quarantine model therefore has distinct advantages over consequentialist theories of
punishment. Furthermore, Victor Tadros (2011) has persuasively argued that “the
objection against using someone merely as a means is best characterized as an
objection against ‘manipulative use’ – where someone is used in order to promote
some further, independent goal. In contrast, harming someone to eliminate a threat
they pose is much easier to justify, based on the right to self-defense” (Shaw 2019a:
101). Assuming, for the moment, that Tadros’s distinction between eliminating harm
and manipulative use is valid, concerns over treating individuals merely as means to
an end, or as objects to be used, would appear to apply more to consequentialist
theories of punishment than to the public health–quarantine model.
Second, neither free will skepticism nor the public health–quarantine model
implies that the difference between agents who are reasons-responsive and those
who are not is irrelevant to how we should treat offenders. On the contrary, free will
skeptics typically claim that this difference is crucial for determining the right
response to crime (Pereboom and Caruso 2018; Focquart et al. 2020). On the public
health–quarantine model, the question of whether an offender is reasons-responsive
is relevant for at least two reasons. First, it is important in assessing what kind of
threat an individual poses moving forward and whether incapacitation is required.
An offender suffering from a serious mental illness, for instance, differs in significant
ways from one who is fully reasons-responsive. These differences will be relevant to
determining what minimum restrictions are required for adequate protection.
Second, if the capacities of reasons-responsiveness are in place, forms of treatment
that take rationality and self-governance into account are appropriate. On the other
hand, those who suffer from impairments of rationality and self-governance would
need to be treated differently and in ways that aim to restore these capacities when
possible. Understanding the variety of causes that lead to impairment of these
capacities would also be crucial to determining effective policy for recidivism
reduction and rehabilitation (Focquart et al. 2019). Hence, free will skepticism
and the public health–quarantine model acknowledge the importance of reasonsresponsiveness,
self-governance, and differences in degrees of autonomy. But rather
than see these as relevant for assigning blameworthiness and basic desert moral
responsibility, they instead view them as important (in fact, essential) to determining
the appropriate course of action moving forward.
Third, while it is true that in justifying incapacitation the public health–quarantine
model appeals to an analogy with quarantine, it is also important to recognize that
what is analogous here is the justification of incapacitation and quarantine – that is,
both appeal to the right of self-defense and prevention of harm to others. The
model does not require us to view wrongdoers as “ill” or “diseased.” While some
people who commit criminal acts do so because of mental illness or incompetency,
1.5 Common Misconceptions 27
many others do not. These distinctions matter exactly for the reasons just stated.
Furthermore, I strongly want to resist what Bruce Waller (2006, 2011) calls “excuseextensionism”
– the idea that the denial of moral responsibility only makes sense on
the basis of characteristics that make one incompetent (and thus excused) as a moral
being (2011: 219). As Waller explains:
[I]f we start from the assumption of the moral responsibility system (assumptions
that are so common and deep that they are difficult to escape), then the denial of
moral responsibility is absurd and self-defeating. But the universal denial of moral
responsibility does not start from the assumption that under normal circumstances
we are morally responsible, and it does not proceed from that starting point to
enlarge and extend the range of excuses to cover everyone (so that everyone is
profoundly flawed). That is indeed a path to absurdity. Rather, those who reject
moral responsibility reject the basic system which starts from the assumption that all
minimally competent persons (all who reach the plateau level) are morally responsible.
For those who deny moral responsibility, it is never fair to treat anyone as
morally responsible, no matter how reasonable, competent, self-efficacious, strongwilled,
and clear-sighted that person may be. (2015: 103)
Since skeptics who globally challenge the moral responsibility system do not accept
the rules of that system,25
it would be wrong to interpret them as claiming that
“nobody knows what he’s doing or that everybody’s behavior is unintelligible in
terms of conscious purposes or that everybody lives in a world of delusion or that
nobody has a moral sense” (Strawson 1962: 74). Instead, global skeptics maintain that
our ordinary moral responsibility practices are unjustified even when agents are
competent and reasons-responsive.
Fourth, rejecting basic desert moral responsibility does not require one to adopt
what Strawson calls the objective attitude toward wrongdoers. As Pereboom and
I have elsewhere argued:
Strawson may be right to contend that adopting the objective attitude would
seriously hinder our personal relationships (for a contrary perspective, see
Sommers 2007). However, a case can be made that it would be wrong to claim
that this stance would be appropriate if determinism did pose a genuine threat to the
reactive attitudes (Pereboom 1995, 2001, 2014). While, for instance, kinds of moral
anger such as resentment and indignation might be undercut if free will skepticism
were true, these attitudes may be suboptimal relative to alternative attitudes available
to us, such as moral concern, disappointment, sorrow, and moral resolve. The
proposal is that the attitudes that we would want to retain either are not undermined
by a skeptical conviction because they do not have presuppositions that conflict
with this view, or else they have alternatives that are not under threat. And what
remains does not amount to Strawson’s objectivity of attitude and is sufficient to
sustain the personal relationships we value. (Pereboom and Caruso 2018: 201)
25
See, e.g., Waller (2011, 2015), Pereboom (2001, 2014), Levy (2011), G. Strawson (1986, 1994), and Caruso
(2012, 2013, 2018, 2019).
28 Free Will, Legal Punishment, and Retributivism
According to optimistic skeptics, like myself, life without belief in free will and basic
desert moral responsibility would not be as destructive as Strawson and Lewis
contend.26
Instead, prospects of finding meaning in life and sustaining good interpersonal
relationships would not be threatened (see Pereboom 2001, 2014; Waller
1989, 2011, 2014; Caruso 2013, 2018, 2019). And although retributivism and sever
punishment, such as the death penalty, would be ruled out, incapacitation and
rehabilitation programs would still be justified.27
Lastly, critics are simply mistaken when they assume that adopting the skeptical
perspective means abandoning all discourse about justice, rights, and respect for
persons.
In the second half of the book, I argue that free will skepticism and the public
health–quarantine model are perfectly consistent with respect for persons as
well as various nondesertist theories of justice. In particular, I defend
a capabilities approach to social justice and argue that not only is it consistent
with free will skepticism, it can also serve as the moral foundation for my public
health framework (Chapter 6). Appealing to work by Stephen Darwall (1992)
and Benjamin Vilhauer (2013a, 2013b), I also argue that respect for persons and
other safeguards against manipulative use can be made consistent with free will
skepticism and can be incorporated into the public health–quarantine model
(see Chapters 6 and 8; see also Shaw 2019a). For instance, the public health–
quarantine model incorporates several important safeguards, including the
conflict resolution principle, the principle of least infringement, the principle of
normality, and the prohibition of manipulative use. There is no reason to think,
then, that adopting the public health–quarantine model would require treating
individuals as objects. Quite the opposite. I contend that, contra retributivists,
we should resist narrowly conceiving of respect for persons in terms of giving
wrongdoers their just deserts. Instead, respecting human dignity demands, at
a minimum, that the capabilities and well-being of wrongdoers be taken into
consideration, that we avoid punishments that dehumanize and disenfranchise
individuals, and that we do everything we can to rehabilitate and reintegrate
offenders back into the community. The public health–quarantine model does
a better job at respecting human dignity in this sense than does retributivism
(see Chapter 8).
26
By “optimistic skeptics” I mean those who are optimistic about the implications of adopting the
skeptical perspective (e.g., Pereboom 2001, 2014; Waller 1989, 1990, 2007, 2011, 2015; Nadelhoffer 2011;
Levy 2011, 2015, 2016; Caruso 2013, 2018, 2019; Shaw 2019a, 2019b; Vilhauer 2009b, 2012, 2013a, 2013b;
Morris 2018).
27
Other free will skeptics who defend either incapacitation accounts or forward-looking consequentialist
accounts include Pereboom (2001, 2013, 2014), Jones (2003), Vilhauer (2009b, 2013a, 2013b), Levy
(2012), Corrado (2013), Chiesa (2011), Caruso (2016, 2017, 2020), Pereboom and Caruso (2018), Shaw
(2014, 2019a, 2019b), Focquaert, Glenn, and Raine (2013, 2018), and Focquaert (2019). See also Shaw,
Pereboom, and Caruso (2019).
1.5 Common Misconceptions 29
1.6 belief in free will remains an obstacle
I would like to close this chapter with some final thoughts on why the issue of free
will should not be overlooked in discussions of criminal justice. It has been
suggested to me, by friend and foe alike, that if my ultimate goal is criminal
justice reform and the rejection of retributive practices and policies, I should
work directly toward that goal and leave the contentious issue of free will aside.
While I acknowledge that this may be a better rhetorically strategy, since getting
people to question the existence of free will is no easy task, I resist it for two main
reasons. First, I am a philosopher and am committed to the truth wherever it
leads me. While this might sound high-minded, I have worked on the problem of
free will for many years and am convinced that free will skepticism is the only
reasonable position to adopt. This is not to say, of course, that the skeptical
perspective is not consistent with other conceptions of responsibility – for
example, causal responsibility, “take charge” responsibility, attributability,
answerability, etc. (see Caruso 2018). Nor is it to deny that there remain good
reasons for incapacitating dangerous criminals and engaging in forms of moral
protest in the face of bad behavior (see Pereboom 2014, 2020). Rather, it is to insist
that to hold people truly deserving of blame and praise, punishment, and reward
would be to hold them responsible for the results of the morally arbitrary or what
is ultimately beyond their control, which is fundamentally unfair and unjust.
Given that I am convinced of the skeptical perspective, it would be utterly
disingenuous of me to set the issue of free will aside or simply ignore it.
Second, and more to the point, to achieve meaningful and lasting criminal
justice reform, I believe it is important to challenge the assumptions of free will
and basic desert moral responsibility (cf. Fischborn 2018). There is growing
evidence that free will beliefs are motivated by the desire to punish others and
to justify holding them morally responsible (Clark et al. 2014; Clark, Baumeister,
and Ditto 2017; Clark Winegard, and Sharrif 2019). Researchers have also found
that free will beliefs correlate with increased punitiveness (Carey and Paulhus
2013; Nadelhoffer and Tocchetto 2013; Shariff et al. 2014). Leaving the concept of
free will unchallenged increases the likelihood that our practices and policies
will remain focused on individual responsibility and punitive responses to wrongdoing.
This, in turn, will stand in the way of adopting the kind of public
health alternative I recommend, which shifts public policy, funding, and
focus to prevention, rehabilitation, and addressing the social determinants of
criminal behavior.
Recent empirical work in social psychology indicates that how we assign
responsibility is correlated with prior judgments of what counts as being morally
bad, which are in turn dependent upon other larger social and cultural factors
(see Hardcastle 2019). Take, for example, psychologist Mark Alicke’s culpable
control model of blame. It proposes that our desire to blame someone intrudes
30 Free Will, Legal Punishment, and Retributivism
on our assessments of that person’s ability to control his or her thoughts or
behavior. As Valerie Hardcastle describes:
Deciding that someone is responsible for an act, which is taken to be the conclusion
of a judgment, is actually part of our psychological process of assessing blame. If we
start with a spontaneous negative reaction, then that can lead to our hypothesizing
that the source of the action is blameworthy as well as to an active desire to blame
that source. This desire, in turn, skews our interpretations of the available evidence
such that it supports our blame hypothesis. We highlight evidence that indicates
negligence, recklessness, impure motives, or a faulty character, and we ignore
evidence that suggests otherwise. In other words, instead of dispassionately judging
whether someone is responsible, we validate our spontaneous reaction of blameworthiness.
(2018: 320)
Data, in fact, suggest that we often exaggerate a person’s actual or potential control
over an event to justify our blame judgment and we will even change the threshold
of how much control is required for a blame judgment (Neimeth and Sosis 1973;
Eften 1974; Sosis 1974; Lerner et al. 1976; Lerner and Miller 1978; Schlenker 1980;
Snyder et al. 1983; Alicke 1994, 2000, 2008; Alicke et al. 2008; Alicke Rose and Bloom
2008; Lagnado and Channon 2008; Clark et al. 2014; Everett et al. 2018).
Additional studies by Cory Clark and her colleagues (2014) have shown that a key
factor promoting belief in free will is a fundamental desire to blame and hold others
morally responsible for their wrongful behaviors. Across five studies they found
evidence that greater belief in free will is due to heightened punitive motivations.
In one study, an ostensibly real classroom cheating incident led to increased free will
beliefs, presumably due to heightened punitive motivations. In a second study, they
found that the prevalence of immoral behavior, as measured by crime and homicide
rates, predicted free will belief on a country level. Additional studies by Clark,
Baumesiter, and Ditto (2017) also demonstrate that free will beliefs are motivated
by a desire to punish others and to justify holding them morally responsible. These
findings have been replicated and confirmed in meta-analyses (Clark, Winegard,
and Shariff 2019). There is good reason to think, then, that our desire to blame and
hold others morally responsible comes first and drives our belief in free will, rather
than the other way around.
Researchers have also found that our judgment on whether an action was done on
purpose or not is influenced by our moral evaluation of the outcome of certain
actions – that is, whether we morally like or dislike it (Nadelhoffer 2006). And we
seem to have an asymmetric understanding of the moral nature of our own actions
and those of others, such that we judge our own actions and motivations as more
moral than those of the average person (Epley and Dunning 2000). As Maureen Sie
describes:
In cases of other people acting in morally wrong ways we tend to explain those
wrongdoings in terms of the agent’s lack of virtue or morally bad character traits. We
1.6 Belief in Free Will Remains an Obstacle 31
focus on those elements that allow us to blame agents for their moral wrongdoings.
On the other hand, in cases where we ourselves act in morally reprehensible ways
we tend to focus on exceptional elements of our situation, emphasizing the lack of
room to do otherwise. (2013: 283)
Additional findings indicate that believing more strongly in free will is correlated
with increased punitiveness (Carey and Paulhus 2013; Nadelhoffer and Tocchetto
2013; Shariff et al. 2014), and that weakening free will beliefs, either in general or by
offering evidence of an individual’s diminished decisional capacity, leads to less
punitiveness (Pizarro, Uhlmann, and Salovey 2003; Monterosso, Royzman, and
Schwartz 2005; Aspinwall, Brown, and Tabery 2012; Shariff et al. 2014).
For instance, Shariff et al. (2014) hypothesized that if free will beliefs support
attributions of moral responsibility, then reducing these beliefs should make people
less retributive in their attitudes about punishment. In a series of four studies they
tested this prediction and found support for it. In Study 1 they found that people with
weaker free will beliefs endorsed less retributive attitudes regarding punishment of
criminals, yet their consequentialist attitudes were unaffected. Study 1 therefore
supports the hypothesis that free will beliefs positively predict punitive attitudes, and
in particular retributive attitudes, yet it also suggests that “the motivation to punish
in order to benefit society (consequentialist punishment) may remain intact, even
while the need for blame and desire for retribution are forgone” (2014: 7). Study 2
found that experimentally diminishing free will belief through anti-free-will arguments
diminished retributive punishment, suggesting a causal relationship (2014: 6).
Studies 3 and 4 further found that exposure to stories and findings from neuroscience
implying a mechanistic basis for human action similarly produced a reduction in
retributivism.
If these empirical findings are any indication, the concepts of free will and
basic desert moral responsibility appear intimately connected with increased
punitiveness and the desire to blame. Additional work also reveals that belief in
free will is correlated with a number of other potentially harmful beliefs, desires, and
emotions – including Just World Belief, Right Wing Authoritarianism, and
increased Religiosity (Carey and Paulhus 2013; Nadelhoffer and Tocchetto 2013;
for overview see Caruso 2019). By abandoning these beliefs, we can look more clearly
at the causes and more deeply into the systems that shape individuals and their
behavior, and this will allow us to adopt more humane and effective practices and
policies. I propose that what we need is a radical paradigm shift in how we view
criminal behavior.
It is quite common both in criminal law and everyday attitudes to portray criminal
behavior as a failure of moral character and a matter of individual responsible. The
retributive justification of legal punishment assumes, for instance, that, absent any
excusing conditions, wrongdoers are morally responsible for their actions
and deserve to be punished in proportion to their bad deeds, even if this provides
32 Free Will, Legal Punishment, and Retributivism
no benefits to the individual or society. Since it focuses almost exclusively on the
individual and their responsibility, and not on the social determinants of criminal
behavior, retributive justice tends to favor punitive approaches to crime rather than
policies aimed at targeting the social structures and causes of criminal behavior. The
retributive approach maintains that it is the individual who is responsible for
criminal wrongdoing, and thus criminal justice is primarily about giving wrongdoers
their just deserts. Perhaps nobody embodied this ethos of individual responsibility
more than Ronald Reagan, who famously said: “We must reject the idea that every
time a law’s broken, society is guilty rather than the lawbreaker. It is time to restore
the American precept that each individual is accountable for his actions.”28
The problem, however, is that the more we learn about criminal behavior, the
more it becomes obvious that crime has more to do with places and circumstances
than people. In fact, look closely and you will find that there are lifetimes of trauma,
poverty, and social disadvantage that fill the prison system (see Chapter 7). Failing to
recognize this has profound consequences. James Dunlea and Larisa Heiphetz
(2020), for instance, have studied how adults and children think of people’s moral
character:
[They find] that both children and adults often assume that people go to jail or
prison because of internal characteristics – that is, something about their personal
character led them to the justice system. [Their] research suggests that people very
rarely spontaneously think about the social forces, like poverty, housing, and racism,
that are enormous contributors to criminal behavior. Instead, they attribute being in
jail or prison with internal characteristic (“They’re bad people”) or behavioral
characteristics (“They did a bad thing”). (LaBouff and Dustin 2020)
Importantly, Dunlea and Heiphetz find that these assumptions have consequences.
When we think about someone’s “badness” as an essential personal quality because
we’re ignoring the situational forces, we treat them worse and are less generous to
them. We adopt punitive reactive responses to crime rather than targeting the
situational causes of criminal behavior. We need to radically change our assumptions
about criminal behavior and focus instead on those situational forces and
changeable behaviors when making policy decisions (LaBouff and Dustin 2020).
Hence, if we seek to reject retributivism and adopt a more holistic and systematic
approach to criminal behavior, the belief in free will potentially stands in the way
since it encourages punitiveness and is driven by a desire to blame and hold others
morally responsible. It sees criminal behavior as primarily a matter of individual
responsibility and as a result ends the investigation at precisely the point it should
begin. The criminal law, with its assumptions about free will, encourages us to adopt
what I call a time slice approach to criminal behavior. It asks, at a particular moment
in time (the time of the crime), was the agent competent? Were they reasons-
28
From Reagan’s speech at the Republican National Convention, Platform Committee Meeting,
July 31, 1968.
1.6 Belief in Free Will Remains an Obstacle 33
responsive? Did they have a guilty mind or criminal intent? Did they understand
that their actions were wrong or unlawful? Etc. Etc. If the answers are yes, yes, yes,
and yes, then they are legally culpable and it is legitimate to punish them – all things
considered and assuming there are no excusing conditions. Of course, the criminal
law occasionally considers prior circumstances as relevant (e.g., in cases of domestic
violence), but it is primarily focused on establishing actus reus, mens rea, and the
state of mind of the offender at the time of the crime.29
Unfortunately, adopting such
a time slice approach abstracts individuals from their lived circumstances and the
social systems they are embedded in. It blinds us to the social determinants of
criminal behavior, the causes and systems that shape us, and how individuals
come to acquire a particular state of mind.
Once we adopt the skeptical perspective, on the other hand, we realize that the
myopic focus on individual responsibility, blame, and punishment is mistaken and
counterproductive. The skeptical perspective tells us that the lottery of life is not
always fair, we do not all have equal starting points, and individuals are embedded in
social systems that shape who we are and what we do. In contrast with the time slice
approach, it encourages a historical whole person approach that sees individuals as
byproducts of their histories and circumstances. It helps us to recognize that
criminal behavior is often the result of social determinants and that the best way
to reduce crime and increase human well-being is to identify and take action on
these determinants. So while it is possible to embrace the public health–quarantine
model without sharing my skepticism about free will and basic desert moral responsibility,
continuing to believe in the latter will work at odds with properly implementing
the former. As the empirical findings mentioned earlier indicate, belief in
free will, besides being unjustified, is wrapped up in punitive and retributive desires.
It keeps alive the notions that wrongdoers justly deserve to suffer for the wrongs
they’ve done and are morally blameworthy in the backward-looking sense. It is time
that we leave these antiquated notions behind, lose our moral anger, stop blaming
those who find themselves in unfortunate circumstances, and turn our attention to
the difficult task of addressing the causes that lead to criminality.
29
Traditionally, juries evaluate two aspects of a case for reasonable doubt: whether the accused actually
committed the crime (legally known as actus reus) and whether at the moment of the crime the
accused understood that he or she was doing wrong (legally known as mens rea).
34 Free Will, Legal Punishment, and Retributivism