PHIL 181: Philosophy and the Science of Human Nature

Lecture 17

 - Punishment I


Professor Gendler begins with a discussion of differing responses to hypothetical and actual examples, and offers an actual example of a Trolley Problem. Then, the central topic of the lecture, punishment, is presented. After offering a characterization of what civil punishment involves, Professor Gendler discusses various justifications that have been offered of the practice. She distinguishes between justifications that are forward-looking and those that are backward-looking, and between justifications that are primarily victim-directed and those that are primarily offender-directed. These outlooks are then connected to the moral views that have been presented in earlier lectures: Utilitarianism and deontology

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Philosophy and the Science of Human Nature

PHIL 181 - Lecture 17 - Punishment I

Chapter 1. Hypothetical Versus Actual Cases [00:00:00]

So what I want to do in today’s lecture is to move us onto a topic not unrelated to the one that we were addressing before March break. So as you recall, what we were thinking about before March break were the relations that people bear to one another as far as moral responsibility goes.

You might think the first part of the course, the part on flourishing, was about human beings as individuals and the ways in which, within themselves, they might achieve a certain kind of harmony. The second part of the course was about morality, about interpersonal relations between individuals.

And the third part of the course, which we’ll move to in earnest next week, is about how political structures might play a role in cultivating certain kinds of behavior on the part of individuals. Obviously, that’s an idealization. Individuals considered in isolation are always in interaction with others. Individuals in pairwise relations are always embedded within larger communities.

But the arc of the course has been to move from individuals, to small groups of individuals, to larger groups of individuals. And the punishment unit, which is just two lectures long, is in some ways a transitional unit between the morality section and the political philosophy section.

So what I want to do in our running start, to sort of get people back thinking about the questions that we’ve been thinking about, is to start with a couple of clicker questions. So I hope that your clickers didn’t get lost over March break. And to begin by asking you to think about a couple of cases in real life, tragically, that have the structure that Trolley problems do. And then we’ll move on to some cases more directly related to punishment.

So you remember that we devoted a reasonable amount of class attention to thinking about an abstract and idealized moral dilemma situation, which is sometimes called the Trolley Bystander case. There’s a trolley which is about to run into five people. There’s a bystander next to it, who realizes that there’s an alternative track on which only one person is standing. And that bystander faces the choice of whether to divert the threat, the trolley, from the track where there are the five to the track where there are the one.

Tragically, the world has found itself with something like an actual trolley case, in the form of the effusion of radioactive clouds from the Japanese nuclear power plant. So suppose you were–this is the first clicker question–the Japanese Prime Minister, and it were evident that the radioactive cloud was heading towards Tokyo, with a population of roughly 13 million, and there was the possibility of diverting the cloud to the countryside, to an area with a population of roughly one million.

Your clicker question is this: would it be, one, morally mandatory to redirect the plume from the 13 million to the 1 million, two, morally permitted but not morally mandatory, or three, morally prohibited?

So let’s see how the numbers come out. One second remaining. And let’s see. So 31 percent of you think it would be morally mandatory to redirect, 56 percent think it would be morally permitted, and 13 percent think it would be morally prohibited.

Now, let me show you how you thought about this question when we presented it abstractly, as a simple trolley problem. More than twice as many of you, looking at these numbers, 31 percent, as opposed to 15 percent, think that it’s morally mandatory in the actual case to redirect the plume. That’s interesting.

It’s interesting methodologically, because it’s interesting to ask why a real world case is giving you a different sort of response than a hypothetical case is. But it’s also interesting methodologically to notice that on the prohibition, the numbers were almost identical. 15 percent of you thought it was prohibited in the imaginary case. 15 percent of you, actually 13 percent of you, thought it was prohibited in the actual case.

So there’s a way in which it appears that these imaginary cases are tracking, in their abstraction, the same sort of considerations that the actual cases are, and ways in which they aren’t. And I encourage you, in the context of your sections and your conversations amongst yourselves, to think about why that might be.

But in addition to being a straight trolley problem, the traditional Bystander case, in the case of the nuclear tragedy in Japan, there’s also something not very different from what we might call the Harm’s Way case. So you’ll recall that the second kind of case that we thought about in the context of trolleys concerned a case where a trolley is hurtling down a track towards five individuals, and resting over the track is a person who, if you put him into harm’s way, could prevent the death of the other five.

How would that go in the actual situation that we now face? Same nuclear accident, same prime minister, same 13 million people, but now, as the Prime Minister, you face the possibility of conscripting into certain death a small group of engineers, whose work on the plant in, for example, regaining electricity, or pouring water in places that would be inaccessible due to radioactivity to anybody whom you weren’t sending to certain death. Individuals who are in a position to save the lives of these 13 million, through the sacrifice of an incredibly small number of individuals.

So the question is this: for the Prime Minister, supposing that the job involves conscripting workers to go, the plant is about to explode and bring with it an enormous amount of radiation to an enormous number of people, would it be morally mandatory, one, morally permitted but not morally mandatory, or morally prohibited to conscript the workers, sending them to certain death?

So the numbers here are actually extremely interesting, when I show them to you in comparison with the abstract case. So your numbers here are 27 percent say it’s prohibited, 41 percent say it’s permitted but not prohibited, whereas only–sorry, 41 percent say it’s permitted but not mandatory, and only 32 percent think it would be morally prohibited to conscript the workers in a way that would bring about their certain death.

How did your numbers look in the fat man case? They looked very different indeed. So just to show you, here were your numbers in the actual case. Roughly 32 percent of you thought it was prohibited, more than twice as many thought it prohibited in the case of fat man.

Now, is that because, as Josh Greene suggests, when a situation is up close and personal, the way you imagine engaging in the pushing action somehow plays a role, as either a legitimate or illegitimate moral heuristic, whereas in the case where you’re imagining conscripting the workers, what you’re doing is somehow more distant, in terms of the harm’s way into which you’re putting it? Is the difference that, in the case of the workers it feels more like a statistical harm? And as Cass Sunstein suggests, statistical harms are in some ways harder for us to process? Is what’s going on in your different response to the Prime Minister case somehow that the numbers 13 million versus a small number change the calculus? But if they change the calculus, then it couldn’t have been that an inviolable right was driving your response in fat man.

So for those of you who are in the vast majority of having moved your position–note that mandatory went up, prohibited went down, permitted went up–I want you to think about what kind of moral reasoning explains the difference in your response to this actual Prime Minister case and the imaginary Fat Man case. And as always, these slides will be online for you by later today for you to have a chance to look closely at the numbers.

Chapter 2. What is Punishment? [00:10:33]

So the cases that we’ve been considering so far, the cases where earthquakes bring about natural disasters that cause great harm to people, are tragedies. But they’re tragedies with respect to which it’s hard to know where to direct our dissatisfaction at the state of the world. There’s very little that we can do to prevent things like earthquakes from happening. And although there are precautions that we can take with respect to things like nuclear power plants, again there are features of the world with which it’s difficult for us to exert control.

What we moved to in the lectures right before March break, in the context of moral luck, were instances where the wrong-doing that concerned us was perpetuated not by an impersonal agency, like an earthquake, but rather by an individual. And so we considered, for example, the four cases of the driver on their way home from work. Lucky Alert, who simply drove home, Unlucky Alert, who drove home alert and unfortunately hit a child, Lucky Cell Phone, who drove home as none of you ever do, I’m sure, talking on his cell phone, and Unlucky Cell Phone, who drove home talking on his cell phone and tragically hit a child.

So I’m going to show you two of your numbers from before, and then ask you one more clicker question. Nearly all of you, 95 percent of you, thought that Lucky Alert did nothing morally blame-worthy in driving home. Remember, we stipulated that we weren’t talking about the ways in which his carbon footprint might be contributing to various kinds of global problems. The issue was just whether he did something morally wrong in driving home, and 95 percent of you thought that he didn’t. By contrast, 92 percent of you, nearly everyone in the class, thought that Unlucky Cell Phone, the one who was talking on his phone and hit the child, did something morally blame-worthy.

The question that I want to ask you now, if you’ll take out your clickers, is whether Unlucky Cell Phone, the person who was talking on his phone and hit the child, did something that merits punishment. And with that, we’ll move into the central topic of our discussion today and Thursday. So did Unlucky Cell Phone do something that merits punishment in driving home and talking on his cell phone and, unfortunately, hitting the child? Let’s see how our numbers come out. 94 percent of you–Wow, even more of you think he deserves punishment than think he did something wrong. Great class! [laughter]

What I want to do in the next two classes is to think seriously with you about this rather perplexing philosophical and psychological phenomenon. The fact that when somebody does something wrong, and we perceive the person, or we perceive the perpetrator of the wrongdoing, as having had a certain sort of agency, there is, across cultures and across times, a tendency to think that that individual is deserving of punishment.

So the questions that I want to ask in today’s lecture are three. I want to start out by presenting you with a classic characterization of civil punishment, so that we have a sense of what it is that we’re talking about, and in so doing, I’ll present you with one that Pojman summarized in the outline reading that I had you to do today, that comes from mid-1950’s work in analytic legal theory. So I’m going to ask what it is that we mean, when we talk about civil or criminal punishment.

I then want to turn to the central philosophical question about punishment, which is what sort of justification does punishment have? And you will discover, as you noticed already from the readings, that two of the dominant justifications that are offered for punishment actually echo two of the dominant justifications for moral constraint. That is, one can give roughly a utilitarian account of punishment, and one can give roughly a deontological account of punishment. And I want to try to get you within the mindset of each of those two conceptions of punishment, both in order to help you think about punishment and in order to help you think about, more clearly, some of the issues in moral philosophy that we were talking about before break. And of course, I will not merely present those views, but will try to give you a sense of why one might think those are reasonable or unreasonable justifications of punishment.

Next class, we’re going to turn to some very interesting psychological literature that does, with respect to the deontological and utilitarian theories of punishment that we’re looking at philosophically today, what some of the empirical moral literature did with respect to deontology and utilitarianism more generally. That is, it suggests the psychological substrate for our reactions, and in some cases tries to argue that that renders those reactions illegitimate. Or illegitimate as a basis for a certain kind of normative judgment.

So again, I want to think about these both as questions about punishment, and as ways of thinking about the practical psychological critique of moral theory more generally, that we talked about last week.

And finally, what I want to do next class is to think about the relation between punishment in the civil context and punishment in a much more personal context. You might have noticed that one of the things that we’re going to be reading for Thursday is another chapter from I take to be the Aristotelian-inspired parenting guide of Alan Kazdin.

So let me offer one caveat, which is the topic of punishment is enormous. We could offer an entire lecture course on this question. And what I’m presenting to you in the class is a pretty bread-and-butter Anglo-American picture of what punishment amounts to. Any of you who have thought about punishment in the context of social theory have encountered some of the sophisticated critiques of punishment that come to the Western twentieth-century philosophical tradition largely through the writing of Nietzsche and Foucault. And simply due to time constraints, not because these are uninteresting, indeed they are extraordinarily interesting, we won’t be thinking about these writers in this class. Though, as always, I’m very happy during office hours or other times to talk to you about those.

So let’s start with the first of these questions. What do we mean by civil punishment? So when you clicked on your clicker and you said that Unlucky Cell Phone, the man who talking on his cell phone accidentally killed the child, when you said that Unlucky Cell Phone was someone who merited punishment, presumably you were thinking of something with roughly the five characteristics that are taken to be characteristics of paradigmatic instances of punishment, and perhaps even as necessary and sufficient conditions for what it is for something to be punishment.

So the first thing, the first characteristic, the one perhaps most salient when we think about punishment, is that punishment is something that involves a certain kind of unpleasantness or suffering. In traditional culture, punishment involved either the infliction of some sort of physical pain, or the infliction of some sort of social isolation, or the infliction of some sort of public humiliation. All of these involved unpleasantness and suffering.

In the amazing description of the three horses from Plato’s Phaedrus that we read at the beginning of the semester, the charioteer, in his effort to direct the recalcitrant wild horse, pulls on the bit in a way that brings blood to the mouth of the horse in an effort to inflict punishment. So the core notion is that punishment involves unpleasantness and suffering. It involves bringing somebody into a state that brings disutility to them. As far as the felicific calculus goes, the calculus of felicity, the enumeration of the amount of happiness in the world, punishment reduces in that individual the amount of happiness that they have.

Second characteristic. Punishment is not merely the infliction of pain or suffering on an individual. It’s the infliction of pain or suffering on an individual in response to a particular offense. Either a legal offense, in the case of legal punishment. Or if you think that punishment is also something that can be carried out with regard to moral trespasses, in response to a moral offense. So it’s not just a bringing about of pain randomly in the world. It’s a bringing about of pain in the world in response to a legal offense, to the person who committed the offense.

So, it’s not merely that if something bad happens in a location: you find an individual and visit suffering upon them. The individual on whom suffering is visited is supposed to be the one who has been judged, by whatever procedures are considered the legitimate procedures for making such judgments, to have been an offender.

Moreover, the punishment needs to be intentionally administered by a human agent. It’s not enough if natural forces somehow bring about the bad consequences. And we’ll talk about that, with respect to a puzzle, in the case of retributive punishment, in a moment.

And finally, it’s imposed and administered not by an individual acting on his or her own, or even by a posse of individuals, who have taken the law into their hands, but rather by a legal authority that has the sanction of the state or civil institution behind it. So the question that punishment raises, and we’ll think about this again when we start thinking about political theory more generally, is how is it that a state could ever be justified in bringing harm to one of its members. How could it be legitimate for a society to cause one of its individuals to experience unpleasantness or suffer?

Chapter 3. Justifications for Punishment: Overview [00:23:32]

So there are two basic kinds of justification that are offered for punishment. The first is a forward-looking justification. It’s one that says punishment is an effective mechanism for avoiding future harm. When somebody acts in a way that violates either legal or social norms, that individual indicates, perhaps, a likelihood of acting in that way again. And so disabling them is important. Or, when an individual acts in a way that violates legal or social norms, and others see that the individual has acted in that way, and received no negative consequences from the community as a result, others will be likely to act in that way. And so punishment serves a public deterrence function.

Regardless of how it’s operationalized, and we’ll talk a bit more about that at the end of the lecture, the basic motivation for the forward-looking justification of punishment is that punishment is an effective means of avoiding future harm. So that in some way, the suffering of the individual who is punished on behalf of the state is offset by the benefits to other individuals that will result as a consequence of having caused suffering in one place. It’s a trade-off of disutility and utility.

The second sort of justification of punishment, and let me say, those of you who felt unsatisfied by number one but frustrated by Kant in our moral theory discussion before March break, have some thinking to do about how your worldviews fit together. The second justification of punishment is that punishment is called for, because when somebody violates moral or legal codes, they deserve to be penalized. The justification is not that it’s a way of avoiding future harm, though it might happen to bring that, as a nice added benefit. The reason an individual is to be punished on this picture is because in committing a moral or legal violation, the person has violated the moral or legal code in such a way that what he or she deserves is to be punished.

So those are the two justifications that we’re going to think about. But I want to point out that there’s another way of thinking about punishment that we’ll talk about a little bit more in the context of the lecture, which is, you might think about punishment as being a response to a disruption of the social order, in such a way that at least two individuals are involved. One, the victim, with respect to whom, if you want to restore the pre-harm state, the important thing to think about in the context of punishment is neither the large question about retribution nor the large question about deterrence, though those are important to the individual as a member of society, but rather in the case of this specific crime, what one wants to think about is restitution. What can be done to restore the individual to her pre-harm state? And, in the case of the offender, one might think about what can be done to restore that individual to what one might think of as a larger, more global pre-harm state, namely towards a situation of pro-sociality.

So let’s illustrate these four ideas with a particular example. Here’s our old friend Gyges, remember him, back in January? There he was, and for now, we’ve given him a horse. So Gyges has a horse, and up shows Pedro, he’s our bad guy from Jim and the Indians, and Pedro goes and steals Gyges’ horse. Now, what is to be done? Well, if the question that interests us is that of restoring the situation to its pre-harm state, then our primary concern is with restitution. We want Pedro to give Gyges back his horse. Suppose that instead of stealing Gyges’ horse, Pedro had murdered Gyges’ horse? We might think then that what restitution requires is presenting Pedro with something as good as the horse he previously had. Perhaps Pedro needs to give Gyges one of his horses.

But the picture that lies behind restitution, and we’ll talk about the ways in which restitution is problematic, when restoring to the pre-harm state involves something a little more complicated than giving back stolen property or replacing in kind. The notion behind restitution is that the goal in which the state has legitimate reason to be engaged, is that of taking the innocent party and making sure that they are no worse off after having suffered a crime than before having suffered.

What does the notion of rehabilitation tell us to do in this state? Well, presumably it tells us to think about how–there’s Pedro with a shepherd’s staff–how can we help make somebody, whose interactions with society involve violations of its norms, such that he or she comes to internalize those norms in a way that they become the grounding for his or her behavior? In some ways, rehabilitation is the most effective means of deterrence and prevention. If it’s possible to reinstate pro-sociality in parts of the individuals towards whom we are expressing concern through punishment, wouldn’t that be the most effective means?

So that’s one version of thinking about what’s going on. We might think about restitution for the harmed and rehabilitation for the harmer. Alternatively, we might think about the question in terms of the two categories that we’re going to focus on for the remainder of lecture. That is, we might lock up Pedro and do so with the justification that that will prevent him from doing future crime. Or we might lock up Pedro with the thought–watch the slide, it’s the only joke all lecture–that in so doing, what we provide is justice. And, actually, there’s one more visual joke later in lecture about the ways in which it is part of our pop culture, part of cartoons, part of comic books, part of movies, that somehow the visiting of justice upon an offender is absolutely critical to society’s well-being.

So what I want to do is introduce you now, from the inside, from the work of Kant, on the one hand, and then more generally, and then through the work of Rawls on the other, to these two sorts of justifications.

Chapter 4. Retributivism [00:32:11]

So let’s start with the retributivist outlook. That’s the outlook, roughly, that when somebody does something that violates legal or moral norms, they’ve committed a wrong, and in so doing they’ve put the scales of justice somehow out of line. And that what punishment does is it reorients the scales of justice, it re-balances things. In punishing the harm-doer, we reorient the world in such a way that injustice becomes re-weighted, that desert is visited upon the harm-doer.

So the text we read in discussing the retributivist outlook was that of Immanuel Kant. And Kant writes explicitly “juridical punishment can never be administered merely as a means for promoting another good, either with regard to the criminal himself or the civil society.” That is, deterrence, prevention of future harm, rehabilitation, all of those–those are other goods–may well come along in the wake of punishment. But that cannot be the justification for the action. “Judicial punishment,” says Kant, “can be imposed only because the individual on whom it is inflicted has committed a crime.” This is of a piece with Kant’s more general outlook. You recall from the opening pages of the Groundwork that Kant isn’t interested in thinking about consequences. Kant is interested in thinking about moral rightness, and the way in which our behaviors and our social institutions can reflect our recognition of this fundamental fact about the world.

So those of you who are drawn to the picture that criminals deserve their deserts, not for utilitarian reasons but for fundamental ones, need to think about whether that brings in its wake for you a commitment to something like the more general Kantian outlook, whereby a good will is good not because of what it affects or accomplishes, but rather good in itself.

That’s the core of the retributivist outlook. The retributivist outlook often brings with it–in addition to an answer to the question, what’s the justification for punishment? Answer, moral desert–an account of what Kant, in the writings that we read for today, calls the “principle and standard of public justice.” That is, retributivism includes not merely the idea that criminals deserve penalty, but also a picture of what grounds that penalty, and sometimes a characterization of what those specific penalties amount to.

So Kant writes, “the undeserved evil which anyone commits to another is to be one regarded as perpetrated on himself.” That is, a principled justification for punishment in kind to the harm one has committed underlies Kant’s picture. So, he continues, “whoever steals makes all property insecure. He therefore robs himself of security in property, according to the right of retaliation.” The punishment for theft is loss of property, says Kant, on the principle that the undeserved evil which anyone commits on another is to be regarded as perpetrated on himself. The logic of that argument, of course, brings with it the conclusion that Pojman helpfully italicizes in Kant for us, “whoever has committed murder must die.” I’m not sure the italics are in the original German, but they do serve to make the text effective, for those of you coming back from March break and looking for a wake-up call in doing your reading.

So the picture that retaliation of the sort that is demanded by moral desert, that retribution for harm brings with it the mandate that a similar harm be perpetrated on you has, in Kant’s articulation, a particular form. The thought that death should be visited upon one who commits a crime of killing has struck many as a way of expressing not retribution, but revenge.

And I want to present you with a very nice analysis, that was adverted to in one of your readings, that Robert Nozick, whom we’ll be reading more from later and read some from before. A nice analysis that he offers of the difference between retribution, on the one hand, and revenge, on the other. Because I want to try to give you a really clean picture of what the retributionist picture amounts to. So one axis along which you might contrast retribution and revenge is what it is that triggers a desire for retribution. And Nozick says retribution is triggered by a legal or moral wrong, a violation of a code that is accepted by all parties, though it may have been violated by one of them, whereas revenge might occur in response to a harm or a slight, not a violation of the moral code as such. There are, says Nozick, limits to retribution. Kant has just articulated one version of that. We penalize exactly in proportion to the harm done, on Kant’s picture. By contrast, revenge is, in principle, unlimited.

In terms of the personality involved, the degree of personalization, retribution is impersonal, it’s carried out by the state. Remember, that was one of our characterizations, one of the elements of our characterization of punishment. Whereas revenge is personal. It’s carried out by an individual for the sake of expressing that individual’s dissatisfaction.

Retribution differs from revenge in emotional tone. When one engages in retribution, one either takes pleasure in justice itself, or has no emotional feeling. When you put a criminal in jail, the pleasure is in having done the right thing, as far as justice demands, not the pleasure in seeing the suffering of another. There’s a kind of generality that attaches to retribution. An individual who performs a particular kind of act in a particular kind of circumstance, whoever they are, is going to be worthy of retribution. Whereas in the case of revenge, it’s about a specific person at a specific time, not as an instance of a category, but as a particular wrongdoer in eyes of the one taking vengeance.

There is a way in which retribution and revenge are similar, and that is that both of them are expressive acts. In the case of both of them, the target is supposed to know why the penalty is being inflicted, and to know that he is intended to know that. So again, these slides will be up, if you didn’t get down all the details. But the picture of retribution that we’re interested in is the one on the left.

So, I want to talk about two cases where this knowledge condition gives rise to potentially amusing or perplexing situations. One, in the case of revenge, and the other in the case of retribution. So it is, as you know, a trope in comic books that the villain is always trying to kill the hero in such a way that the hero knows why the villain is trying to do that. And those of you familiar with Austin Powers know that Austin Powers is always able to escape Dr. Evil, because Dr. Evil is so concerned with what we might think about the publicity constraint or the expressive role of revenge. But in addition to creating plot lines in parody movies, the phenomenon that retribution involves a particular kind of bringing about of harm gives rise to a perplexing phenomenon, that we might call “justice as the world ends.”

So Nozick writes, “the conditions demarcating retribution explain what otherwise appears to be a ludicrous phenomenon. If someone sentenced to death falls perilously ill or attempts suicide, execution is postponed and measures are taken to bring the condemned person back to health, so that he can then be executed. This is because his punishment is to involve something being visited upon him by others because of the wrongness of his act. His death by natural causes or by his own hand would avoid this so measures are taken to restore him for punishment.”

Notice the way in which this parallels the discussion of the drowning child case in the work of Mill’s Utilitarianism, on the one hand, and Kant’s Groundwork, on the other. Mill is just interested in the child getting out of the pond, and isn’t, in that passage, interested in whether you do it because you’re showing off for somebody that you want to impress on the shoreline, or trying to get a financial reward, or expressing a certain kind of moral commitment.

Kant is interested in why you are doing it. So too here. The retributivist picture says what matters is not that the criminal end up dead, at the end of things, in some way. What matters is that the criminal end up dead or punished in the right kind of way, at the end of things, because of a particular process.

So we’ll close today’s lecture and continue with utilitarianism next class with the otherwise perplexing quote from the end of Kant, which you are now in a position to understand. Kant writes, if it’s 2012, and the world is ending, in the way that it does in that movie, and the waves are coming in and the lightning is striking, and the new Ice Age is emerging, the first thing you have to do before the world ends, says Kant, is execute everybody on death row. “Even if civil society resolves to dissolve itself, the last murderer lying in prison,” said Kant, “ought to be executed before it does. This ought to be done”–this is the retributivist picture–“that everyone may realize the desert of his deeds.”

So we’ll pick up again on Thursday, with the utilitarian justification for punishment. And I’ll see you then.

[end of transcript]

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