It has been argued that empirical science undermines the claim that people can deserve
punishment, and that the criminal justice system therefore ought to be radically reformed.
Such arguments lose their force if moral responsibility and desert do not depend on
what caused the action, but on the agent's choice. We solve one problem for the justification
of the criminal justice system, but create another one; if moral responsibility depends
on the offender's choice, finding out to what extent she was responsible might be
very difficult.
Our common practice of holding each other responsible for our actions contains elements
of character evaluation and pragmatism, i.e., encouraging some behaviors and discouraging
others. We also have the idea that people can be morally responsible for what they
do in the sense of deserving to be praised for exemplary actions and blamed for bad
ones—and even punished, if the action was bad enough. Many philosophers and legal
theorists who believe that the primary goal of the criminal justice system ought to
be crime prevention rather than the dealing out of just deserts, still argue that
the offenders' desert ought to serve as a restriction on what we are allowed to do
in the name of crime prevention; no one must be given more punishment than she deserves
(e.g., von Hirsch, 1992; Lippke, 2014). Since no system is perfect, it is inevitable
that this principle will sometimes be violated, but we ought to strive for a system
that allows us to consistently approximate this ideal. However, if no one were morally
responsible for anything, all punishments would be undeserved, and the criminal justice
system difficult to ethically justify.
Some philosophers and scientists do argue for the non-existence of moral responsibility
and desert, roughly along the following lines: Whether an offender was morally responsible
for what she did depends on how her action was caused. If it was caused by events
beyond her control, she lacks moral responsibility for it. Therefore, she does not
deserve to be punished if her crime were caused by, e.g., psychosis, someone slipping
a drug into her drink, or someone making an irresistible threat toward her. However,
all crimes are ultimately caused by events beyond the offender's control (e.g., non-conscious
events in her brain, genes and environment). Therefore, no one ever deserves to be
punished (Pereboom, 2001; Strawson, 2002; Greene and Cohen, 2004; Harris, 2012). If
these philosophers are right, any system for dealing with criminals resembling the
current one might be ethically unjustifiable.
However, this whole argument fails if we deny the initial premise that moral responsibility
for an action depends on how it was caused.
Some philosophers of law and legal theorists do deny that premise; Morse (2013) and
Moore (1997) argue that the law as it stands permits punishing offenders when they
are capable of making choices for reasons. Furthermore, there is nothing wrong with
the law on this point; the thesis that offenders can deserve punishment for what they
have chosen to do can be defended by philosophical argument. Many Kantian philosophers
argue that actions can be viewed from two different perspectives; a theoretical one,
where we explain why someone did what she did by pointing at causes, and a practical
one, where we focus on her choice and her reasons for taking one option rather than
another. The claims we make from those different perspectives do not contradict each
other. I might have chosen to become a philosopher for the reason that I found philosophy
interesting. If a scientist were to discover the neurological causation of interest,
it would still be true that I chose a philosophy career for the reason I did. Since
morality is concerned with making the right choices for the right reasons, moral judgments
ought to be made from a practical perspective. Whether someone was morally responsible
for an action and deserves to be praised, blamed, or punished depends on the choice
she made, not the underlying causes (Korsgaard, 1996; Bok, 1998; Dworkin, 2011, pp.
224 and 462; Jeppsson, 2012). I call this thesis “Practical Perspective Compatibilism,”
or PPC.
According to PPC, many offenders are morally responsible for what they did, and would
thus deserve to be punished, since many offenders chose to commit a crime. PPC can
also explain why some psychotic, drugged or seriously threatened offenders ought to
be excused: in these states, they might very well be bereft of choice. Alternatively,
in the case of a serious threat, the offender might have consciously chosen to do
the least bad thing in a terrible situation; even if she were morally responsible
for this choice we might judge that she did nothing wrong if she, e.g., stole an object
because someone threatened to kill her children otherwise, and therefore she ought
to go unpunished. It is evident that these excuses do not generalize to all offenders.
It is still the case that many offenders choose to commit crimes, and no advancements
made in neurobiology or other empirical sciences will undermine this claim. Their
choices may have had causes, but they were still choices. PPC thus solves one problem
for the ethical justification of criminal justice, but it creates another one; if
moral responsibility depends on the offender's choice, finding out to what extent
she was responsible might be very difficult.
Drawing the line between agents who deserve some kind of punishment for committing
a crime and those who ought to be completely excused might not be too difficult in
most cases (Moore, 1997, p. 112; Kenny, 2010, pp. 392–401). But if moral responsibility
and desert depend on the offender choosing actions, cases where the offender deserves
less punishment due to having diminished responsibility for her crime will be difficult
to judge
1
. If moral responsibility depends on the offender's choice, mitigating circumstances
mitigate only insofar as they affect said choice. When the offender made less of a
choice, she was less responsible (Jeppsson, 2012, pp. 58–67; Coates and Swenson, 2013).
This claim is intuitively plausible. When choosing what to do, we try to find an option
that we have most or at least sufficient reason to pursue, according to our own views
about reasons (Jeppsson, 2012, pp. 59–60; see also Wolf, 1990, p. 31; implicit in
Kapitan, 1986; Pereboom, 2008). (This assumption is not supposed to be controversial,
since “our own views about reasons” may encompass a wide range of views.) We often
consider only a few options, or immediately choose what to do without considering
alternative actions at all, because it is immediately obvious to us that this option
is at least good enough. But occasionally agents fail to consider options that were
actually superior, according to the agents' own views about reasons, to the option
they picked, merely because these other options somehow did not strike them as real
alternatives. They fail to fully choose what to do. If moral responsibility depends
on choice, someone who did not fully choose is plausibly less than fully responsible.
The PPC theory of diminished responsibility thus has the resources to explain, not
only why some psychotic, drugged or seriously threatened offenders ought to be completely
excused, but also the fairly common judgment that a harsh environment can constitute
mitigating circumstances (e.g., Hudson, 1995, 1999). We might think that a young criminal
from a run-down, high-crime neighborhood is less responsible for her crimes, and therefore
less deserving of punishment, than a young criminal who had everything going for her
and yet chose to commit crimes. The criminal from the bad neighborhood might have
been expected to turn to crime; she internalized these expectations, and failed to
really see honesty as an alternative, even though an honest life might have seemed
preferable to her had she really thought about it. She did not fully choose to become
a criminal (whereas her more well-to-do counterpart made an active decision to engage
in crime), and therefore her responsibility is diminished. These explanations of why
a harsh environment is mitigating are intuitively more plausible than anything a causality-based
theory of moral responsibility can provide, since it does not generally seem to be
the case that causal influences behind one's choice renders one less responsible (I
am presumably fully responsible for becoming a philosopher, despite the fact that
this decision was undoubtedly influenced by a number of external factors).
However, we know that similar circumstances do not affect everyone equally. It is
possible that a young criminal from a run-down and high-crime neighborhood did think
things through and made an informed decision to become a criminal rather than engage
in honest work. It is thus possible that out of two young criminals with a similar
background, committing their crimes in similar circumstances, one is fully morally
responsible for what she did and therefore deserves a harsh punishment, whereas the
other one has diminished moral responsibility and deserves leniency. The same thing
can be said about any circumstance that is normally considered mitigating; whether
it diminishes the responsibility of this particular offender or not, depends on how
it affected her choice. It seems difficult, to say the least, to ascertain how much
punishment offenders deserve in particular cases, if moral responsibility and desert
depend on their choices.
We might try to ensure that we do not give some offenders more punishment than they
deserve by adopting a generally lenient approach when sentencing (Duus-Otterström,
2013). Possibly, in order to be on the safe side, we would have to be very lenient,
to an extent that seriously conflicts with the goal of crime prevention. However,
there is some empirical support for the thesis that if people are led to believe that
they were not really responsible for what they did, this belief makes them follow
temptation rather than making active choices (Vohs and Schooler, 2008), i.e., people's
belief that they lack moral responsibility might actually erode their moral responsibility.
Even if we were willing to accept that there are offenders who are chronically bad
at making choices and keep performing actions that they do not really believe that
they have reason to do, and who therefore never come to deserve more than fairly mild
punishment despite repeated crimes, a system that actually pushed people in that direction
would certainly be a failed one.
Thus, PPC ensures that offenders can be morally responsible for their crimes and therefore
deserve punishment, regardless of what neurobiology and other empirical sciences might
find. But PPC also implies that finding out to what extent someone was responsible
for what she did might be very difficult, perhaps even impossible.
Conclusion
If moral responsibility depends on the agent's choice rather than on her action being
caused in the right way, we need not worry that findings in neurobiology or other
empirical sciences will undermine the claim that people can be morally responsible
for what they do. This might seem like good news for the criminal justice system,
insofar as it depends on the assumption that offenders can deserve to be punished
for its ethical justification. However, if an offender's level of moral responsibility
ultimately depends on how she chose to do what she did, finding out to what extent
she was morally responsible for her crime, and thus how much punishment she deserves,
might be difficult. If we ought not to punish anyone harder than she deserves, this
is a problem that must be addressed.
Conflict of interest statement
The author declares that the research was conducted in the absence of any commercial
or financial relationships that could be construed as a potential conflict of interest.