PHIL 181: Philosophy and the Science of Human Nature

Lecture 18

 - Punishment II


The lecture begins with a consideration of the traditional consequentialist account of punishment–-that punishment is justified by its deterrent effect on future crimes. Traditional criticisms of the view are presented, and John Rawls’ two-level justification for punishment is offered as one possible way to avoid such criticisms by bringing together consequentialist and deontological justifications of punishment  in a single theory. Next, Professor Gendler reviews some empirical research on punishment intuitions, including data on moral outrage and the “Knobe effect”. The lecture concludes with a brief discussion of how moral luck interacts with intuitions about punishment.

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Philosophy and the Science of Human Nature

PHIL 181 - Lecture 18 - Punishment II

Chapter 1. Consequentialist Justifications of Punishment [00:00:00]

Professor Tamar Gendler: All right, so where we are in the context of the course is on our second lecture on punishment. So you’ll recall that before the break we had been thinking about what sorts of moral norms are appropriate: What sort of principle underlies our specification of moral norms? And we’re now looking at those same cluster of questions from the opposite side. We’re looking at that cluster of questions from the perspective of what ought to go on when somebody violates those norms, either qua moral norms or qua legal norms as encoded in a society’s set of statutes. And we were looking at a number of justifications that might be offered for the practice of punishment. And we talked briefly, and I’ll say a little bit more today, about the bottom two of these: restitution and rehabilitation. But we spent the bulk of the second half of Tuesday’s lecture thinking about backward-looking justification, which in many ways is analogous to the sort of justification of moral constraint that we see in the deontological picture.

What I want to do now is to look at the first of these in some detail, and to think about what a forward-looking or consequentialist picture of punishment looks like. And to think about the ways in which the problems that arise for a consequentialist account of punishment seem to echo a number of the problems that arise for a consequentialist account of morality more generally.

So just to remind you what the characterization of punishment that we’re working with looks like, of which the most important clause is going to be the first, we’re making use of the classic mid-century characterization of punishment that comes out of the Anglo-American legal philosophical tradition. And what’s key in thinking through the justification of punishment from a consequentialist perspective is to remember that punishment is done in response to a legal offense, is done by one judged to be an offender, and so on. But it’s also something that, as part of what punishment is, involves the imposition of unpleasantness and suffering on the person to whom conditions two through five apply. And that the question we’re trying to answer for ourselves is how a state could ever be justified in bringing deliberate disutility to one of its members. So what the harm reduction or consequentialist outlook says is that the sole goal of, or the sole justification for, punishment is to prevent or deter future wrongdoing. Consequentialist accounts, in their pure forms, are interested solely in consequences. And to the extent that they’re concerned with the distribution of utility across members in a society, what they’re interested in is the maximization of utility from that moment onwards. They’re called future-directed because though they may take the past into account to the extent that the memories of individuals take the past into account, they don’t take the past into account as something relevant to the calculation of utility. The sole goal of punishment is to prevent or deter future wrongdoing. And the sole justification for punishment is to prevent or deter future wrongdoing.

Now if a utilitarian account is to serve as a justification for punishment as a practice, punishment being the deliberate bringing about of disutility to a member of the community who has violated some moral or legal norm, then it must be the case, for it to be justified on consequentialist grounds, that punishment is an effective, and indeed, on some accounts, that punishment is the most effective mechanism for bringing about the prevention or deterrence of future wrongdoing. If there’s some alternate way of bringing about an equally beneficial result, then it can’t be justified on consequentialist grounds to impose harm or suffering on an individual. That’s what the consequentialist picture says. And notice, this is the mirror image of some of the perplexities that we found ourselves getting into around things like the surgeon case, where if all one takes into consideration are distributions of utility, then a lot of the factors that go into common sense reasoning about cases seem to fall out with respect their relevance.

So the suggestion, if the empirical hypothesis is correct, is that punishment is the most effective mechanism for prevention or incapacitation. That is, it’s the best way of precluding the possibility of wrongdoing on the part of the perpetrator, and/or that it’s the best mechanism for deterring wrongdoing, either on the part of that individual or on the part of others who–as the result of making public the practice of punishment–come to recognize that what you might think of as the cost-benefit analysis of performing a particular act changes. So Jeremy Bentham famously says that the–Jeremy Bentham was the utilitarian predecessor of John Stuart Mill, the person who originally articulated in the modern philosophical tradition how it is that we should think of consequentialism. So Jeremy Bentham famously said, what punishment does is to change the calculus of costs and benefits associated with a particular act of wrongdoing, and to attach to something which is generally beneficial some sort of cost, so that that can enter into the calculus. In the literature on conditioning and reinforcement, punishment is something that changes the contingencies associated with a particular act. It brings a penalty along with a reward to something that typically carries only a reward. Or it reduces the reward associated with something that generally brings a high reward.

Now it should be clear to all of you, because we went through the mirror image of this in the positive case, that thinking merely in terms of consequentialist justifications for punishment seems to carry with it two kinds of problems. The first problem is that the consequentialist justification seems to under-generate reasons for punishment, if we remember that punishment involves the deliberate bringing about of a harm. So, for example, it may well be, with respect to the question of incapacitation, that if our sole goal is to incapacitate individuals who are likely to commit crimes in the future that will bring disutility to society as a whole, if our sole goal is to incapacitate them, then there may well be equally effective non-punitive alternatives. Remember condition one in our characterization of punishment. Punishment involves state-imposed pain or suffering. It involves the deliberate bringing about of disutility to an individual. Presumably, simple incapacitation can be done in a way that does not involve anything more than the minimum amount of imposition of suffering on the individual. So any amount more than required for incapacitation can’t be justified on this consequentialist ground.

Moreover, it seems, not just with regard to prevention, that there’s a possibility of non-punitive incapacitation, but also with regard to the question of deterrence. Presumably, if one’s real concern is to reduce the crime rate, then there are things that are a good deal less expensive than the prison system to bring about that desired goal. Creating social situations in which people have access to education and access to employment may–an empirical question–be a more effective means of deterring crime than public punishment. Particularly if one of the results of jailing individuals, many of whom are parents, is to leave the next generation of children in a position where the kind of stable households, that we know from our earlier discussions of what it is that allows people to have well-ordered souls. Many children growing up in households that don’t provide them with that sort of stability might have social costs.

So let me reiterate, these are empirical questions. It is an empirical question whether the most effective form of incapacitation is one that in addition involves the imposition of more suffering than is required for incapacitation at the time. Perhaps that has better long-term consequences in terms of preventing future crimes. Likewise, perhaps the most effective form of deterrence is a kind of punishment that brings with it a publicity that causes others to avoid behaviors of that kind. But if it turns out that the prevention requires simple incapacitation and that deterrence seems more effective through some other means, consequentialism can’t give us a justification for punishment. So the first problem with the consequentialist argument, if what you’re trying to find is a justification for punishment, is that it under-generates.

The second problem is that in certain cases it seems to over-generate punishment. So it seems–and we read about this in the John Rawls piece that we read for last class–to license what’s sometimes called telishment. Where telishment means focusing on the telos, focusing on the goal, focusing on the end, rather than focusing on the process.

So how might this go? Here’s an example. Here’s a community of shepherds. They all look like Gyges. And there they all are with their horses. In comes our standard bad guy and steals two of the horses. The police come looking for him. And he leaves town. So there’s no one to punish for stealing the horses. Poor Jim, unlucky, shows up just at the time that the police have come looking for a perpetrator. And the police realize that a very effective way to prevent the stealing of future horses, perhaps, would be to put Jim in jail and write a big newspaper article about it: ”Horse Thief Captured! Sentenced to life in prison.” That is, the deterrence effect that is demanded by punishment seems, at least in principle, as if in certain cases it could be carried out equally effectively by bringing punishment, or something like punishment, to bear on an individual who is not in fact the one who perpetrated the crime. If the goal is deterrence, and if the hypothesis that publicizing punishment is what produces deterrence, then it seems as if there aren’t resources in the conceptual repertoire of the consequentialist for denying telishment.

As with the standard cases of the surgeon cutting up the patient, there are more complicated moves that the consequentialist can make. And the suggestion is not that it’s impossible within a consequentialist framework to rule out something like telishment. The thought is just that it’s important to be clear what resources are available to you if this is the justification to which you’re appealing. And to recognize, that at least prima facie the consequentialist justification seems both to under-generate and over-generate things that look like punishment in cases where, at least as encoded in our inherited legal statutes, it violates the norms to which people feel themselves intuitively drawn.

Chapter 2. Two-level theories of punishment [00:15:05]

So how might we get around this problem? Remember there were problems, it seemed, with the retributivist picture, and problems, it seems, with the consequentialist picture. One of the standard ways of getting around this is to introduce what might be called a two-level theory. And we read an example of one of the most sophisticated and influential two-level theories in our readings for last class. So John Rawls, from whom we’ll hear again in a couple of weeks, the political philosopher, wrote in the 1950s a famous paper called “Two Concepts of Rules” in which, one of the things that he analyzes is punishment. And what he suggests is that we think about the question of the justification of punishment in a more complicated way. That we think first about what it is that justifies the practice itself: What makes it legitimate for a society to have punishment? And the suggestion is that what justifies the practice itself is that having such a practice in place is something of societal utility. But that once we have set up the practice, what justifies particular actions within the practice is retribution.

And he suggests, later in the paper, that we think of this distinction between justifying a practice and justifying actions within a practice, on analogy with something like the rules of baseball. So when we set up the rules of baseball, we can have a debate about whether baseball would be a better game if there are three strikes or four strikes. Whether baseball would be a better game if stealing bases is allowed or disallowed. Whether baseball is a better game if, or if not, pitchers are also treated as batters. So that’s the debate about the nature of the practice. And you might think when we’re debating the nature of the practice, one sort of consideration comes into play. But once we have the practice in place, we don’t have debates in the context of a game about whether it would be better in that particular instance for a batter to get four strikes. Or whether it would be better in that particular instance for a stolen base to count or not count as a way of advancing across the bases. So we can distinguish between what it is that sets up our practice, and what it is that happens once our practice has been set up. And Rawls’ suggestion is that what justifies the practice in the case of punishment is a general picture of utility, whereas what justifies acts within the practice is something like retribution. And the suggestion is that this manages simultaneously to resolve two problems. It resolves the problem of under-generation, in some sense, because if the general practice isn’t useful, then the practice will be abandoned. And it resolves more clearly the problem of over-generation, the problem of telishment, because it’s ruled out as an act within the practice. We’ve set up the rules of what punishment involves. Those are justified on utilitarian grounds. But within the practice we can’t do things like put Jim in jail as a way of deterring, because that’s prohibited within the practice.

So it might seem that the pluralist challenge, or the pluralist solution, to the dilemma of how punishment might be justified, either retributively or on consequentialist grounds, solves the problem with which we were concerned. Which is, how can the state ever be justified in bringing about harm to its citizens? But there are, I think, three questions that can be raised even with regard to this solution. So we might ask whether utility alone, without appeal to retribution, can really serve as the sole justification of the practice, or whether in fact the under-generation problem is just going to re-emerge at the level of justification of the practice. We can ask whether retribution alone, without appeal to utility, can serve to justify actions within the practice, or whether ultimately in order to capture what it is that we want punishment to do, even once we’ve established the practice, requires some appeal to retribution. And I’ll talk about the psychology of this in a minute. And finally we might ask whether, given the distinctness of the two levels, we’ve provided anything like a coherent account of what justifies punishment. If one sort of reason governs the practice, and another sort of reason governs the application of the practice, then even if each of them independently is able to do that work, in fact, especially if each of them independently is able to do that work, one might wonder how the two together provide a coherent account.

So that closes what I want to say about the general philosophical issues underlying punishment as a practice. We thought through two of the standard justifications, and then a third which attempts to reconcile them. And let me again remind you that part of what we’re doing here is thinking more generally about moral justification. So all of the arguments that we’ve considered in the context of punishment have direct analogs in the positive mirror image of it.

What I want to in the last half of lecture is to talk about three additional questions. These are the readings that we did for today. I want to talk about the psychology and the psychological constraints that seem to constrain any picture of punishment that we’re going to have. That’s going to accord with how it is that it appears people intuitively respond to particular instances of norm violation. I want to connect what we’ve talked about in the context of punishment with the issues that we talked about around luck at the end of our classes before March break. And finally, I want to bring us back to some Aristotelian themes about virtuous character by talking about punishment and parenting.

Chapter 3. Empirical Research on Punishment [00:22:16]

So there’s been, in the last thirty years or so, a vast body of empirical research conducted by a number of extremely sophisticated social psychologists who have looked both at people’s responses to hypothetical cases and at the legal codes of numerous societies in an attempt to get not at the normative question, what should justify punishment, but at an answer to the descriptive question, what psychological human need does punishment address. And in exploring these questions, John Darley–from whom we’ve read selections at a number of points in the course, including for today–makes appeal in his discussions to the very distinction that we’ve been talking about with respect to the normative question.

So you can distinguish in looking to see what factors affect people’s decisions about punishment, whether what they seem to have their attention directed to are questions of things like just desert and retribution. That is questions–does it affect how likely or how severe their punishment will be, if it looks like the individual in question intended to do a great amount of harm, regardless of whether he or she succeeded at it? Does it affect people’s assessment of bringing about of harm, if the individual, for example, stole money to give to a charity, as opposed to stole money to buy herself a Ferrari? If questions about what was going on in the individual’s mind–did the individual intend to bring about the harm or not. If questions about what goals the person had with respect to the proceeds of the crime–did they want to use them for something prosocial or something antisocial–then it looks like one of the kinds of considerations that’s coming into play when people reason about punishment are things about retribution.

By contrast, if when people are thinking about what kind of punishment to impose, what they look at are things like, how likely is a crime like this one to be detected, or how public is the act of punishment going to be, then it seems like the underlying psychological mechanisms behind punishment are ones that are primarily sensitive to consequentialist constraints.

So in a series of studies over the last several decades, psychologists have asked the question, to what sort of variations are punishment judgments sensitive? In general, when people are assigning punishment, when people are assigning severity, when people are deciding whether to punish or not, do they, if given the chance to look for information, want information, for example, about the criminal’s state of mind or about the criminal’s motivation? Or do they want information about how widely publicized the punishment is going to be or how likely crimes of this sort are to be detected? And it turns out fairly consistently that it’s considerations of the first type that seem to be driving people’s responses. That is, that a utility calculus doesn’t seem to be the primary motivation when individuals who are surveyed in psychology studies, or penal codes, are looked at as indications, of the psychological mechanism that underlie punishment.

And we see further evidence in favor of this hypothesis if we consider a phenomenon that’s sometimes known as altruistic or costly third-party punishment. So these are cases where an individual, A, punishes–that is brings about harms and costs to–another individual, in a way that, first of all, brings a cost to A, brings no direct benefits to A, and concerns a norm violation that didn’t affect A in the first place. So for example, I’m standing in a long line waiting to get my iPad 2, and a person cuts in line behind me. Right–so, he cuts in line behind me. It doesn’t affect my access to the iPad. I might punish him by inviting everybody that stands behind him to cut in front of both of us. That makes me worse off, right? I’ve just let everybody behind me in line cut in front of me. It doesn’t directly benefit me in any way. And the thing for which I am causing a harm to the individual behind me is not something that concerned a norm violation directed at me. He cut in line behind me. And we see instance after instance of behaviors with this structure in the behavioral economics literature. It appears for whatever reason. Perhaps because this is a way of promoting a certain kind of evolutionarily stable prosociality. Perhaps because norm violations tap into heuristics that cause people to act in certain ways. Perhaps for some third reason. It appears that in numerous, both laboratory and public settings, individuals engage in punitive acts that have the structure articulated above. Consequentialism, at least in its simple form, can’t explain that.

Finally, state of mind seems to play a large role in how it is that people respond to situations that potentially involve punishment. So suppose poor Jim comes over to my house, and hidden behind the door is my prize umbrella. And Jim knocks on my door, and I say to Jim, “Come in.” And Jim walks in the door and knocks over my prize umbrella in a way that causes him to stamp through it and poke a hole in my umbrella. And he says, “Oh no, your prize umbrella.” Case one. Case two, Jim shows up at my house. And I say to him as he knocks on the door, “Jim, Jim look out for my umbrella as you come in!” And Jim opens the door and stomps on my prize umbrella, putting a hole in it, and says, “Oh darn, your umbrella!” Case number three, Jim knocks on my door. I say to him, “Jim, look out for my umbrella!” Jim opens the door, stomps on my prize umbrella, and looking down at his footwork says, “Yeah! I smashed your umbrella!”

What sort of responses do these three cases evoke? Here’s our famous Bad-o-meter that you will recall from our various trolley and other cases. When Jim accidentally stomps on my umbrella–the first case where I said, “come in Jim,” and he stomped on it and said, “Oh no, your umbrella!” There’s harm, but it’s treated as pretty low-level. When I say to Jim, “Look out, my umbrella!” And Jim nonetheless opens the door and stomps on it and says, “Oh darn, your umbrella!” he’s done something negligent. And there’s a sense, on the part of most subjects, that something slightly worse has occurred in the general bad direction. And when Jim comes into my house and stomps on my umbrella and proudly looks down at what he’s done, having done so, it seems, intentionally, there is, on the part of most subjects, a sense that something worse has happened.

Consequentialism alone can’t explain this. In all three cases I’ve got my poor stomped-on umbrella. What can explain this is a response that individuals seem pretty persistently to have across cultures, which is sometimes called the phenomenon of moral outrage. In the accident case, there’s no moral outrage at all. Nobody thinks, that was morally outrageous of Jim to step on my umbrella, given that he didn’t know it was behind the door and had just come in in response to my request that he enter. In the negligent case, there’s some irritation, there’s some moral outrage, there’s a feeling: “Jim, I told you my umbrella was there.” But the moral outrage is relatively low. But in the case where Jim did something that strikes us as having been an intentional bringing about of harm, in direct violation of my request that he not do so, “Jim look out for my umbrella” there’s a response of high moral outrage.

And what Carlsmith and Darley suggest, in the article that we read for today, is that these attitudes of either no moral outrage, low moral outrage, or high moral outrage direct our attention to different parties in the episode. When there is an event that’s happened that doesn’t produce moral outrage at all, there is, except with respect to a general desire to make the world a better place, no attention either to the victim or to the perpetrator. Bad stuff happens. We might go about trying to change the world. If there’s an extra supply of umbrellas in my car, I might bring one of them in. But in general, when things happen by accident the perpetrator isn’t a focus of attention. And the victim is no more a focus of attention than he or she would be if this had been brought about as the result of a gust of wind having destroyed the umbrella. In cases of low moral outrage, attention is directed to the victim. There’s a tendency to focus on compensation, on the need to make things better. But there’s no focus on the perpetrator as someone in need of our focused punitive attention. But in the case–and in a moment I’m going ask you to take out your clickers because we’re going to talk about intentional action. In the case where the act that violates the moral norm is seen as having been intentional, there is a tendency to focus not merely on compensation, but also on punishment. This is an extraordinarily resilient pattern, and one that seems very interesting psychologically if we’re trying to come up with moral codes that will seem to evolved human beings, to strike them as satisfactory.

But one problem with this picture is that it turns out that determining whether an action was done intentionally may well be more complicated than it had initially appeared. So my colleague, and your fellow Yale professor, Joshua Knobe, has done a wonderful series of studies on the question of what it is that leads people to think of an action as having been performed intentionally. And we’re doing the study in the way that all of you are going to get both vignettes. So we won’t get exactly the distribution that’s indicative of typical responses. But I think it’s nonetheless interesting for you to think through the cases. So how many of you have seen these cases before? Just hands. Ok, so about 5% to 10% of you.

So Josh Knobe presents his subjects with scenarios, vignettes like the following. The vice president of a company went to the chairman of the board and said, “We’re thinking of starting a new program. It will help us increase profits, but it will also harm the environment.” The chairman of the board answered, “I don’t care at all about harming the environment. I just want to make as much profit as I can. Let’s start the new program.” They started the new program. Sure enough, the environment was harmed. The question is this: in starting that program–“I don’t care at all about harming the environment, I just care about making a profit”–is it the case that the chairman harmed the environment intentionally? Did the chairman one, yes harm the environment intentionally, two, no, did not harm the environment intentionally? Huh? People didn’t really have their clickers out. There’s only 70 of you. OK, let’s see how it came out. So 77% of you think that he harmed the environment intentionally.

And we’ll now try the second case. Second case–try to forget that you just had the first. I know you can’t do that, but try to do it anyway. The vice president of a company went to chairman of the board and said “We’re thinking of starting a new program. It’ll help increase profits. But it will also help the environment.” The chairman of the board answered, “I don’t care at all about helping the environment. I just want to make as much profit as I can. Let’s start the new program.” They started the new program. Sure enough, the environment was helped. So the chairman says, “I don’t care at all about helping the environment. I just want to make a profit.” Question, did the chairman help the environment intentionally? One, if yes. Two, if no. And let’s see how the numbers come out. Wow! You guys are amazing! All right, you came in even cleaner than standard Knobe results, even though I gave you the two cases sequentially, which should’ve mitigated the effect. But there we go. So classically, when you present this to people, in the first scenario where you guys gave 77% yes he harmed it intentionally, roughly 83% of people say that he did. Whereas, in the second case, where you guys gave this amazing 89% that he didn’t help the environment intentionally, typically this number [clarification: did help intentionally] is 23%. So that one’s [clarification: didn’t help intentionally] 67–sorry, 77.

OK, now what’s going on here? Let me remind you what just happened. We had two identical scenarios. The only difference is that we changed the term “help” here to “harm” in the first case. In both cases, what the CEO said is, “I don’t care about thing you think I did intentionally in the first case and thing you didn’t think I did intentionally in the second. I just care about making a profit.” So something that he was ignoring in the first case, most of you thought is something he was intending to do. Whereas something he was ignoring in the second case, almost none of you thought he was intending to do. That’s perplexing if what’s going on here is that punishment is supposed to be tracking intentional action. Because it looks like what kind of action we take to be intentional is in some way confounded with what sorts of actions we take to be morally problematic. So that makes the whole question of how we ought to think about punishment even more complicated than it struck us already.

But let’s set that aside temporarily and think about what implications there are from the psychological results that we’ve just been studying. On the one hand, it looks like, psychologically, paying attention to backward-looking or retributivist reasons for punishment, to the rebalancing of the scales of justice, is psychologically required for a theory to feel satisfying. Or at the very least, that simply looking forward and thinking about consequentialist considerations and utility doesn’t seem psychologically sufficient. So the question is whether, taking human psychology seriously, there’s an additional alternative. And a number of psychologists and philosophers have asked the question whether if we look not backwards and forwards, towards the performance of the crime as something that demands a rebalancing of the scales of justice, or towards the utility which can be brought to society, but rather at the things that we were calling three and four in our initial characterization, at restitution and rehabilitation as our motivations, can we somehow get a psychologically satisfying account of punishment, where the goal is not rebalancing or utility, but rather some sort of reparation? This is sometimes called restorative or reparative justice. And those of you who are intrigued by it, I’m pointing you to a location where you can read articles about that question.

Chapter 4. Luck and Punishment [00:41:54]

OK, so that closes the first part of our discussion, the psychological implications of punishment. And what I want to do in the last five minutes of lecture is to talk about the interaction with luck. And then we’ll begin lecture next Tuesday by talking about the connection in the context of parenting. So we’ve been thinking throughout this unit about the cases like this, where luck seems to play a role in consequences. When the person didn’t intend to do harm. Unlucky Cell Phone and Unlucky Alert had no desire to harm the child.

But of course, luck can play a role in cases where somebody is deliberately trying to bring about harm. So here’s our standard bad guy, who shows up in town where there’s a potential victim for him. And he pulls out his gun and says, “Oh yeah, I’m gonna shoot that guy.” And luck is on his side. Intention carries out in the way that he intended and he succeeds. His perfect analog, Unlucky Shooter, shows up in town and says, “Oh yeah, I’m gonna shoot that guy.” But when he pulls the trigger, unfortunately, just at the moment that his bullet would have hit his intended victim, up comes the truck that was in our last story, and stops the bullet in its tracks. So he doesn’t succeed at his intended crime. Notice that this is the mirror analog to the previous case. The intention in the two cases is the same. The action in the two cases is the same. But in the first case the criminal has been lucky with respect to his intended goals. He shot the guy that he tried to shoot. Whereas in the second case the criminal has been unlucky with expected goals. He didn’t manage to shoot his victim.

The question is why we punish this one more seriously than this one. What sort of justification could possibly underlie this? And David Lewis in the rather complicated, I admit, paper that I had you read for today, and I promise we will talk about in sections to help you understand what the logic of the argument is, but David Lewis suggests that the only thing that could justify treating this act as more punishment worthy than this one, is if we think it would be alright to impose what he calls a penal lottery. So what he says is, if we knew objectively that when you engage in a shooting action where you pull a trigger there’s a one in ten chance that your action will fail and a nine in ten chance that your action will succeed, then punishing you is fundamentally, in our current system, equivalent to having you draw a straw from among a set of straws where there are nine that send you to a long prison term and one that sends you to a short one. And he suggests that we can see that our current practice is akin to that by bringing you through a series of imaginary cases, each of which, he suggests, has the same justification as this straw drawing.

So imagine a system where once we’ve established that the intent was equal in the two cases. We had our two individuals here just draw straws. Each of them has a one in nine chance of getting off the hook– sorry a one in ten chance. And a nine in ten chance of getting to jail. That corrects for luck.

Equivalent to that, says Lewis, is not that the individual draws the straw, but that before the trial takes place, a court representative draws the straw. And though the jury is just deciding, “did he intend to do it?, ”they don’t know in advance what the penalty will be. Equivalent to that, he suggests, is that beforehand, the court representative draws the straw and makes public that if they convict him of intending to do the crime, then he will either receive the nine penalty, the more severe one, or the one. Equivalent to that, suggests Lewis, is that beforehand we provide a reenactment of the crime, with similar odds, and if the victim dies in that case, then the individual will get a more severe punishment.

And, suggests Lewis, our actual practice of just letting the world play itself out, so that we punish the person whose crime attempt succeeded more severely than the one whose crime attempt didn’t, is just a pre-enactment, morally equivalent to a re-enactment, morally equivalent to the drawing of straws in a lottery.

So I’ll close with that as a way of trying to bring out yet again the perplexity of moral, or perhaps, immoral luck. And we’ll open next Tuesday with our discussion of Kazdin and then move on to our selection from the writings of Thomas Hobbes. And I’ll post that reading for you by tomorrow. Thanks.

[end of transcript]

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