WEBVTT 00:00.680 --> 00:04.760 PROFESSOR: All right, so where we are in the context of the 00:04.760 --> 00:09.350 course is on our second lecture on punishment. 00:09.350 --> 00:13.670 So you'll recall that before the break we had been thinking 00:13.670 --> 00:19.030 about what sorts of moral norms are appropriate: What 00:19.030 --> 00:23.030 sort of principle underlies our 00:23.030 --> 00:25.730 specification of moral norms? 00:25.730 --> 00:30.740 And we're now looking at those same cluster of questions from 00:30.740 --> 00:32.180 the opposite side. 00:32.180 --> 00:35.130 We're looking at that cluster of questions from the 00:35.130 --> 00:40.380 perspective of what ought to go on when somebody violates 00:40.379 --> 00:46.769 those norms, either qua moral norms or qua legal norms as 00:46.770 --> 00:51.370 encoded in a society's set of statutes. 00:51.370 --> 00:55.360 And we were looking at a number of justifications that 00:55.360 --> 01:00.020 might be offered for the practice of punishment. 01:00.020 --> 01:02.260 And we talked briefly, and I'll say a little bit more 01:02.260 --> 01:05.530 today, about the bottom two of these: restitution and 01:05.530 --> 01:06.720 rehabilitation. 01:06.720 --> 01:11.920 But we spent the bulk of the second half of Tuesday's 01:11.920 --> 01:14.920 lecture thinking about backward-looking 01:14.920 --> 01:19.270 justification, which in many ways is analogous to the sort 01:19.270 --> 01:23.300 of justification of moral constraint that we see in the 01:23.300 --> 01:25.230 deontological picture. 01:25.230 --> 01:30.010 What I want to do now is to look at the first of these in 01:30.010 --> 01:34.350 some detail, and to think about what a forward-looking 01:34.350 --> 01:40.030 or consequentialist picture of punishment looks like. 01:40.030 --> 01:44.130 And to think about the ways in which the problems that arise 01:44.130 --> 01:48.780 for a consequentialist account of punishment seem to echo a 01:48.780 --> 01:52.100 number of the problems that arise for a consequentialist 01:52.100 --> 01:54.740 account of morality more generally. 01:54.740 --> 01:59.060 So just to remind you what the characterization of punishment 01:59.060 --> 02:02.210 that we're working with looks like, of which the most 02:02.210 --> 02:06.380 important clause is going to be the first, we're making use 02:06.380 --> 02:10.550 of the classic mid-century characterization of punishment 02:10.550 --> 02:14.440 that comes out of the Anglo-American legal 02:14.440 --> 02:16.700 philosophical tradition. 02:16.700 --> 02:21.580 And what's key in thinking through the justification of 02:21.580 --> 02:25.040 punishment from a consequentialist perspective 02:25.040 --> 02:29.970 is to remember that punishment is done in response to a legal 02:29.970 --> 02:33.430 offense, is done by one judge to the offender, and so on. 02:33.430 --> 02:39.450 But it's also something that, as part of what punishment is, 02:39.450 --> 02:44.880 involves the imposition of unpleasantness and suffering 02:44.880 --> 02:47.750 on the person to whom conditions two 02:47.750 --> 02:49.670 through five apply. 02:49.670 --> 02:54.620 And the question we're trying to answer for ourselves is how 02:54.620 --> 02:59.540 a state could ever be justified in bringing 02:59.540 --> 03:04.320 deliberate disutility to one of its members. 03:04.320 --> 03:09.900 So what the harm reduction or consequentialist outlook says 03:09.900 --> 03:15.760 is that the sole goal of, or the sole justification for, 03:15.760 --> 03:22.020 punishment is to prevent or deter future wrongdoing. 03:22.020 --> 03:26.340 Consequentialist accounts, in their pure forms, are 03:26.340 --> 03:29.780 interested solely in consequences. 03:29.780 --> 03:32.020 And to the extent that they're concerned with the 03:32.020 --> 03:37.100 distribution of utility across members in a society, what 03:37.100 --> 03:42.240 they're interested in is the maximization of utility from 03:42.240 --> 03:44.730 that moment onwards. 03:44.730 --> 03:48.030 They're called future-directed because though they may take 03:48.030 --> 03:51.630 the past into account to the extent that the memories of 03:51.630 --> 03:55.180 individuals take the past into account, they don't take the 03:55.180 --> 03:58.050 past into account as something relevant to the 03:58.050 --> 04:00.760 calculation of utility. 04:00.760 --> 04:03.780 The sole goal of punishment is to prevent or deter future 04:03.780 --> 04:04.640 wrongdoing. 04:04.640 --> 04:08.460 And the sole justification for punishment is to prevent or 04:08.460 --> 04:10.960 deter future wrongdoing. 04:10.960 --> 04:18.690 Now if a utilitarian account is to serve as a justification 04:18.690 --> 04:22.280 for punishment as a practice, punishment being the 04:22.280 --> 04:26.860 deliberate bringing about of disutility to a member of the 04:26.860 --> 04:32.820 community who has violated some moral or legal norm, then 04:32.820 --> 04:38.730 it must be the case, for it to be justified on 04:38.730 --> 04:44.970 consequentialist grounds, that punishment is an effective, 04:44.970 --> 04:48.760 and indeed, on some accounts, that punishment is the most 04:48.760 --> 04:53.540 effective mechanism for bringing about the prevention 04:53.540 --> 04:56.390 or deterrence of future wrongdoing. 04:56.390 --> 05:01.230 If there's some alternate way of bringing about an equally 05:01.230 --> 05:06.520 beneficial result, then it can't be justified on 05:06.520 --> 05:11.720 consequentialist grounds to impose harm or suffering on an 05:11.720 --> 05:12.770 individual. 05:12.770 --> 05:16.350 That's what the consequentialist picture says. 05:16.350 --> 05:19.620 And notice, this is the mirror image of some of the 05:19.620 --> 05:22.980 perplexities that we found ourselves getting into around 05:22.980 --> 05:28.180 things like the surgeon case, where if all one takes into 05:28.180 --> 05:32.840 consideration are distributions of utility, then 05:32.840 --> 05:36.990 a lot of the factors that go into common sense reasoning 05:36.990 --> 05:43.250 about cases seem to fall out with respect their relevance. 05:43.250 --> 05:48.870 So the suggestion, if the empirical hypothesis is 05:48.870 --> 05:53.660 correct, is that punishment is the most effective mechanism 05:53.660 --> 05:57.430 for prevention or incapacitation. 05:57.430 --> 06:02.080 That is, it's the best way of precluding the possibility of 06:02.080 --> 06:07.430 wrongdoing on the part of the perpetrator, and/or that it's 06:07.430 --> 06:12.720 the best mechanism for deterring wrongdoing, either 06:12.720 --> 06:17.230 on the part of that individual or on the part of others who-- 06:17.230 --> 06:20.900 as the result of making public the practice of punishment-- 06:20.900 --> 06:23.680 come to recognize that what you might think of as the 06:23.680 --> 06:26.150 cost-benefit analysis of performing a 06:26.150 --> 06:28.050 particular act changes. 06:28.050 --> 06:30.740 So Jeremy Bentham famously says-- 06:30.740 --> 06:35.630 Jeremy Bentham was the utilitarian predecessor of 06:35.630 --> 06:40.100 John Stuart Mill, the person who originally articulated in 06:40.100 --> 06:45.090 the modern philosophical tradition how it is that we 06:45.090 --> 06:46.700 should think of consequentialism -- 06:46.700 --> 06:51.100 so Jeremy Bentham famously said, what punishment does is 06:51.100 --> 06:55.630 to change the calculus of costs and benefits associated 06:55.630 --> 06:59.090 with a particular act of wrongdoing, and to attach to 06:59.090 --> 07:03.270 something which is generally beneficial some sort of cost, 07:03.270 --> 07:06.700 so that that can enter into the calculus. 07:06.700 --> 07:11.020 In the literature on conditioning and 07:11.020 --> 07:14.100 reinforcement, punishment is something that changes the 07:14.100 --> 07:17.740 contingencies associated with a particular act. 07:17.740 --> 07:21.890 It brings a penalty along with a reward to something that 07:21.890 --> 07:24.100 typically carries only a reward. 07:24.100 --> 07:27.620 Or it reduces the reward associated with something that 07:27.620 --> 07:30.470 generally brings a high reward. 07:30.470 --> 07:34.500 Now it should be clear to all of you, because we went 07:34.500 --> 07:38.060 through the mirror image of this in the positive case, 07:38.060 --> 07:42.290 that thinking merely in terms of consequentialist 07:42.290 --> 07:48.340 justifications for punishment seems to carry with it two 07:48.340 --> 07:53.000 kinds of problems. The first problem is that the 07:53.000 --> 07:57.980 consequentialist justification seems to under-generate 07:57.980 --> 08:02.460 reasons for punishment, if we remember that punishment 08:02.460 --> 08:06.420 involves the deliberate bringing about of a harm. 08:06.420 --> 08:11.520 So, for example, it may well be, with respect to the 08:11.520 --> 08:17.590 question of incapacitation, that if our sole goal is to 08:17.590 --> 08:22.840 incapacitate individuals who are likely to commit crimes in 08:22.840 --> 08:26.180 the future that will bring disutility to society as a 08:26.180 --> 08:32.100 whole, if our sole goal is to incapacitate them, then there 08:32.100 --> 08:37.860 may well be equally effective non-punitive alternatives. 08:37.860 --> 08:41.960 Remember condition one in our characterization of 08:41.960 --> 08:43.320 punishment. 08:43.320 --> 08:45.630 Punishment involves 08:45.630 --> 08:49.190 state-imposed pain or suffering. 08:49.190 --> 08:53.430 It involves the deliberate bringing about of disutility 08:53.430 --> 08:55.730 to an individual. 08:55.730 --> 09:01.650 Presumably, simple incapacitation can be done in 09:01.650 --> 09:07.550 a way that does not involve anything more than the minimum 09:07.550 --> 09:11.970 amount of imposition of suffering on the individual. 09:11.970 --> 09:17.460 So any amount more than required for incapacitation 09:17.455 --> 09:25.035 can't be justified on this consequentialist ground. 09:25.040 --> 09:31.170 Moreover, it seems, not just with regard to prevention, 09:31.170 --> 09:34.990 that there's a possibility of non-punitive incapacitation, 09:34.990 --> 09:39.780 but also with regard to the question of deterrence. 09:39.780 --> 09:45.020 Presumably, if one's real concern is to reduce the crime 09:45.020 --> 09:49.750 rate, then there are things that are a good deal less 09:49.750 --> 09:55.130 expensive than the prison system to bring about that 09:55.130 --> 09:57.310 desired goal. 09:57.310 --> 10:01.920 Creating social situations in which people have access to 10:01.920 --> 10:06.720 education and access to employment may-- 10:06.720 --> 10:08.940 an empirical question-- 10:08.940 --> 10:14.060 be a more effective means of deterring crime than public 10:14.060 --> 10:15.210 punishment. 10:15.210 --> 10:18.740 Particularly if one of the results of jailing 10:18.740 --> 10:23.260 individuals, many of whom are parents, is to leave the next 10:23.260 --> 10:27.920 generation of children in a position where the kind of 10:27.920 --> 10:31.210 stable households, that we know from our earlier 10:31.210 --> 10:34.620 discussions of what it is that allows people to have 10:34.620 --> 10:36.200 well-ordered souls. 10:36.200 --> 10:39.740 Many children growing up in households that don't provide 10:39.740 --> 10:41.600 them with that sort of stability 10:41.600 --> 10:44.410 might have social costs. 10:44.410 --> 10:48.870 So let me reiterate, these are empirical questions. 10:48.870 --> 10:53.540 It is an empirical question whether the most effective 10:53.540 --> 10:58.890 form of incapacitation is one that in addition involves the 10:58.890 --> 11:02.300 imposition of more suffering than is required for 11:02.300 --> 11:04.370 incapacitation at the time. 11:04.370 --> 11:08.300 Perhaps that has better long-term consequences in 11:08.300 --> 11:10.770 terms of preventing future crime. 11:10.770 --> 11:15.690 Likewise, perhaps the most effective form of deterrence 11:15.690 --> 11:20.530 is a kind of punishment that brings with it a publicity 11:20.530 --> 11:24.440 that causes others to avoid behaviors of that kind. 11:24.440 --> 11:30.360 But if it turns out that the prevention requires simple 11:30.360 --> 11:32.950 incapacitation and that deterrence seems more 11:32.950 --> 11:37.050 effective through some other means, consequentialism can't 11:37.050 --> 11:39.890 give us a justification for punishment. 11:39.890 --> 11:45.070 So the first problem with the consequentialist argument, if 11:45.070 --> 11:47.040 what you're trying to find is a justification for 11:47.040 --> 11:49.870 punishment, is that it under-generates. 11:49.870 --> 11:55.620 The second problem is that in certain cases it seems to 11:55.620 --> 11:58.500 over-generate punishment. 11:58.500 --> 12:00.310 So it seems-- 12:00.310 --> 12:03.670 and we read about this in the John Rawls piece that we read 12:03.670 --> 12:04.970 for last class-- 12:04.970 --> 12:08.650 to license what's sometimes called telishment. 12:08.650 --> 12:12.070 Where telishment means focusing on the telos, 12:12.070 --> 12:16.720 focusing on the goal, focusing on the end, rather than 12:16.720 --> 12:19.070 focusing on the process. 12:19.070 --> 12:22.160 So how might this go? 12:22.160 --> 12:23.680 Here's an example. 12:23.680 --> 12:25.670 Here's a community of shepherds. 12:25.670 --> 12:26.910 They all look like Gyges. 12:26.910 --> 12:30.800 And there they all are with their horses. 12:30.800 --> 12:41.440 In comes our standard bad guy and steals two of the horses. 12:41.440 --> 12:45.150 The police come looking for him. 12:45.150 --> 12:47.200 And he leaves town. 12:47.200 --> 12:51.690 So there's no one to punish for stealing the horses. 12:51.690 --> 12:58.480 Poor Jim, unlucky, shows up just at the time that the 12:58.480 --> 13:02.480 police have come looking for a perpetrator. 13:02.480 --> 13:08.150 And the police realize that a very effective way to prevent 13:08.150 --> 13:13.730 the stealing of future horses, perhaps, would be to put Jim 13:13.730 --> 13:17.340 in jail and write a big newspaper article about it: 13:17.335 --> 13:18.405 "Horse Thief Captured! 13:18.410 --> 13:24.260 Sentenced to Life in Prison." That is, the deterrence effect 13:24.260 --> 13:32.650 that is demanded by punishment seems, at least in principle, 13:32.650 --> 13:36.370 as if in certain cases it could be carried out equally 13:36.370 --> 13:40.970 effectively by bringing punishment, or something like 13:40.970 --> 13:46.840 punishment, to bear on an individual who is not in fact 13:46.840 --> 13:49.230 the one who perpetrated the crime. 13:49.230 --> 13:54.550 If the goal is deterrence, and if the hypothesis that 13:54.550 --> 14:00.340 publicizing punishment is what produces deterrence, then it 14:00.335 --> 14:04.875 seems as if there aren't resources in the conceptual 14:04.880 --> 14:09.570 repertoire of the consequentialists for denying 14:09.570 --> 14:12.010 telishment. 14:12.010 --> 14:16.440 As with the standard cases of the surgeon cutting up the 14:16.440 --> 14:19.930 patient, there are more complicated moves that the 14:19.930 --> 14:21.830 consequentialists can make. 14:21.830 --> 14:25.330 And the suggestion is not that it's impossible within a 14:25.330 --> 14:28.560 consequentialist framework to rule out something like 14:28.560 --> 14:29.800 telishment. 14:29.800 --> 14:35.250 The thought is just that it's important to be clear what 14:35.250 --> 14:39.310 resources are available to you if this is the justification 14:39.310 --> 14:40.780 to which you're appealing. 14:40.780 --> 14:45.190 And to recognize, that at least prima facie the 14:45.190 --> 14:48.860 consequentialist justification seems both to under-generate 14:48.860 --> 14:54.250 and over-generate things that look like punishment in cases 14:54.250 --> 14:59.570 where, at least as encoded in our inherited legal statutes, 14:59.570 --> 15:03.160 it violates the norms to which people feel themselves 15:03.160 --> 15:04.730 intuitively drawn. 15:04.730 --> 15:07.670 So how might we get around this problem? 15:07.670 --> 15:10.550 Remember there were problems, it seemed, with the 15:10.550 --> 15:14.560 retributivist picture, and problems it seems with the 15:14.560 --> 15:16.970 consequentialist picture. 15:16.970 --> 15:21.680 One of the standard ways of getting around this is to 15:21.680 --> 15:25.910 introduce what might be called a two-level theory. 15:25.910 --> 15:31.000 And we read an example of one of the most sophisticated and 15:31.000 --> 15:33.930 influential two-level theories in our 15:33.930 --> 15:36.300 readings for last class. 15:36.300 --> 15:40.170 So John Rawls, from whom we'll hear again in a couple of 15:40.170 --> 15:43.090 weeks, the political philosopher, wrote in the 15:43.090 --> 15:47.760 1950s a famous paper called "Two Concepts of Rules." in 15:47.760 --> 15:53.200 which, one of the things that he analyzes is punishment. 15:53.200 --> 15:58.090 And what he suggests is that we think about the question of 15:58.090 --> 16:01.600 the justification of punishment in a more 16:01.600 --> 16:03.940 complicated way. 16:03.940 --> 16:08.450 That we think first about what it is that justifies the 16:08.445 --> 16:13.425 practice itself: What makes it legitimate for a society to 16:13.430 --> 16:15.910 have punishment? 16:15.910 --> 16:19.540 And the suggestion is that what justifies the practice 16:19.540 --> 16:24.590 itself is that having such a practice in place is something 16:24.590 --> 16:26.910 of societal utility. 16:26.910 --> 16:32.610 But that once we have set up the practice, what justifies 16:32.610 --> 16:38.330 particular actions within the practice is retribution. 16:38.332 --> 16:41.942 And he suggests, later in the paper, that we think of this 16:41.940 --> 16:45.860 distinction between justifying a practice and justifying 16:45.859 --> 16:50.249 actions within a practice, on analogy with something like 16:50.250 --> 16:53.480 the rules of baseball. 16:53.480 --> 16:59.460 So when we set up the rules of baseball, we can have a debate 16:59.460 --> 17:03.260 about whether baseball would be a better game if there are 17:03.260 --> 17:05.920 three strikes or four strikes. 17:05.920 --> 17:09.100 Whether baseball would be a better game if stealing bases 17:09.100 --> 17:11.090 is allowed or disallowed. 17:11.090 --> 17:16.360 Whether baseball is a better game if, or if not, pitchers 17:16.360 --> 17:19.490 are also treated as batters. 17:19.490 --> 17:23.870 So that's the debate about the nature of the practice. 17:23.870 --> 17:26.670 And you might think when we're debating the nature of the 17:26.670 --> 17:31.600 practice, one sort of consideration comes into play. 17:31.600 --> 17:36.320 But once we have the practice in place, we don't have 17:36.320 --> 17:40.270 debates in the context of a game about whether it would be 17:40.270 --> 17:44.760 better in that particular instance for a batter to get 17:44.760 --> 17:46.340 four strikes. 17:46.340 --> 17:49.310 Or whether it would be better in that particular instance 17:49.310 --> 17:53.440 for a stolen base to count or not count as a way of 17:53.440 --> 17:56.090 advancing across the bases. 17:56.090 --> 17:59.970 So we can distinguish between what it is that sets up our 17:59.970 --> 18:04.350 practice, and what it is that happens once our practice has 18:04.350 --> 18:06.050 been set up. 18:06.050 --> 18:09.940 And Rawls' suggestion is that what justifies the practice in 18:09.940 --> 18:14.060 the case of punishment is a general picture of utility, 18:14.060 --> 18:18.460 whereas what justifies acts within the practice is 18:18.460 --> 18:20.940 something like retribution. 18:20.940 --> 18:25.790 And the suggestion is that this manages simultaneously to 18:25.790 --> 18:31.220 resolve two problems. It resolves the problem of 18:31.220 --> 18:34.840 under-generation, in some sense, because if the general 18:34.840 --> 18:37.340 practice isn't useful, then the 18:37.340 --> 18:39.890 practice will be abandoned. 18:39.886 --> 18:43.406 And it resolves more clearly the problem of 18:43.410 --> 18:47.390 over-generation, the problem of telishment, because it's 18:47.390 --> 18:51.700 ruled out as an act within the practice. 18:51.700 --> 18:55.040 We've set up the rules of what punishment involves. 18:55.040 --> 18:58.050 Those are justified on utilitarian grounds. 18:58.050 --> 19:01.980 But within the practice we can't do things like put Jim 19:01.980 --> 19:06.680 in jail as a way of deterring, because that's prohibited 19:06.680 --> 19:09.010 within the practice. 19:09.010 --> 19:13.400 So it might seem that the pluralist challenge, or the 19:13.400 --> 19:17.000 pluralist solution, to the dilemma of how punishment 19:17.000 --> 19:20.180 might be justified, either retributively or on 19:20.180 --> 19:24.920 consequentialist grounds, solves the problem with which 19:24.920 --> 19:26.260 we were concerned. 19:26.260 --> 19:29.740 Which is, how can the state ever be justified in bringing 19:29.740 --> 19:32.740 about harm to its citizens? 19:32.740 --> 19:37.410 But there are, I think, three questions that can be raised 19:37.410 --> 19:40.360 even with regard to this solution. 19:40.360 --> 19:44.140 So we might ask whether utility alone, without appeal 19:44.140 --> 19:49.030 to retribution, can really serve as the sole 19:49.030 --> 19:53.490 justification of the practice, or whether in fact the 19:53.490 --> 19:57.230 under-generation problem is just going to re-emerge at the 19:57.230 --> 19:59.840 level of justification of the practice. 19:59.840 --> 20:03.860 We can ask whether retribution alone, without appeal to 20:03.860 --> 20:08.970 utility, can serve to justify actions within the practice, 20:08.970 --> 20:12.370 or whether ultimately in order to capture what it is that we 20:12.370 --> 20:15.340 want punishment to do, even once we've established the 20:15.340 --> 20:18.880 practice, requires some appeal to retribution. 20:18.880 --> 20:20.020 And I'll talk about the psychology 20:20.020 --> 20:22.230 of this in a minute. 20:22.230 --> 20:24.870 And finally we might ask whether, given the 20:24.870 --> 20:28.220 distinctness of the two levels, we've provided 20:28.220 --> 20:32.420 anything like a coherent account of what justifies 20:32.420 --> 20:33.340 punishment. 20:33.340 --> 20:38.200 If one sort of reason governs the practice, and another sort 20:38.200 --> 20:42.900 of reason governs the application of the practice, 20:42.900 --> 20:46.440 then even if each of them independently is able to do 20:46.440 --> 20:49.940 that work, in fact, especially if each of them independently 20:49.940 --> 20:53.390 is able to do that work, one might wonder how the two 20:53.390 --> 20:56.950 together provide a coherent account. 20:56.950 --> 21:00.810 So that closes what I want to say about the general 21:00.810 --> 21:03.980 philosophical issues underlying 21:03.980 --> 21:05.990 punishment as a practice. 21:05.990 --> 21:09.430 We thought through two of the standard justifications, and 21:09.430 --> 21:12.140 then a third which attempts to reconcile them. 21:12.140 --> 21:15.800 And let me again remind you that part of what we're doing 21:15.800 --> 21:18.890 here is thinking more generally about moral 21:18.890 --> 21:20.130 justification. 21:20.130 --> 21:22.780 So all of the arguments that we've considered in the 21:22.780 --> 21:27.170 context of punishment have direct analogs in the positive 21:27.170 --> 21:28.840 mirror image of it. 21:28.840 --> 21:33.250 What I want to in the last half of lecture is to talk 21:33.250 --> 21:35.420 about three additional questions. 21:35.420 --> 21:38.100 These are the readings that we did for today. 21:38.100 --> 21:40.320 I want to talk about the psychology and the 21:40.320 --> 21:46.880 psychological constraints that seem to constrain any picture 21:46.880 --> 21:49.550 of punishment that we're going to have. That's going to 21:49.550 --> 21:53.150 accord with how it is that it appears people intuitively 21:53.150 --> 21:57.540 respond to particular instances of norm violation. 21:57.540 --> 22:00.000 I want to connect what we've talked about in the context of 22:00.000 --> 22:02.860 punishment with the issues that we talked about around 22:02.860 --> 22:06.920 luck at the end of our classes before March break. 22:06.920 --> 22:10.020 And finally, I want to bring us back to some Aristotelian 22:10.020 --> 22:13.660 themes about virtuous character by talking about 22:13.660 --> 22:16.080 punishment and parenting. 22:16.076 --> 22:21.486 So there's been, in the last thirty years or so, a vast 22:21.490 --> 22:26.320 body of empirical research conducted by a number of 22:26.320 --> 22:30.220 extremely sophisticated social psychologists who have looked 22:30.220 --> 22:34.950 both at people's responses to hypothetical cases and at the 22:34.950 --> 22:39.770 legal codes of numerous societies in an attempt to get 22:39.770 --> 22:44.090 not at the normative question, what should justify 22:44.090 --> 22:48.430 punishment, but at an answer to the descriptive question, 22:48.430 --> 22:54.700 what psychological human need does punishment address. 22:54.700 --> 22:57.950 And in exploring these questions, John Darley-- 22:57.950 --> 23:00.470 from whom we've read selections at a number of 23:00.470 --> 23:03.170 points in the course, including for today-- 23:03.170 --> 23:06.930 makes appeal in his discussions to the very 23:06.930 --> 23:09.880 distinction that we've been talking about with respect to 23:09.880 --> 23:11.790 the normative question. 23:11.790 --> 23:17.320 So you can distinguish in looking to see what factors 23:17.320 --> 23:21.520 affect people's decisions about punishment, whether what 23:21.520 --> 23:25.190 they seem to have their attention directed to are 23:25.190 --> 23:29.630 questions of things like just desert and retribution. 23:29.630 --> 23:31.860 That is questions-- 23:31.860 --> 23:37.690 does it affect how likely or how severe their punishment 23:37.690 --> 23:42.490 will be, if it looks like the individual in question 23:42.490 --> 23:46.620 intended to do a great amount of harm, regardless of whether 23:46.620 --> 23:49.670 he or she succeeded at it? 23:49.670 --> 23:54.540 Does it affect people's assessment of bringing about 23:54.540 --> 23:59.500 of harm, if the individual, for example, stole money to 23:59.500 --> 24:03.420 give to a charity, as opposed to stole money to 24:03.420 --> 24:06.500 buy herself a Ferrari? 24:06.500 --> 24:09.790 If questions about what was going on in the 24:09.790 --> 24:11.800 individual's mind-- 24:11.800 --> 24:16.050 did the individual intend to bring about the harm or not -- 24:16.050 --> 24:21.680 if questions about what goals the person had with respect to 24:21.680 --> 24:23.420 the proceeds of the crime-- 24:23.420 --> 24:25.890 did they want to use them for something prosocial or 24:25.890 --> 24:28.230 something antisocial -- 24:28.230 --> 24:33.440 then it looks like one of the kinds of considerations that's 24:33.440 --> 24:37.330 coming into play when people reason about punishment are 24:37.330 --> 24:40.060 things about retribution. 24:40.060 --> 24:43.680 By contrast, if when people are thinking about what kind 24:43.680 --> 24:49.170 of punishment to impose, what they look at are things like, 24:49.170 --> 24:54.390 how likely is a crime like this one to be detected, or 24:54.390 --> 24:59.760 how public is the act of punishment going to be, then 24:59.760 --> 25:03.770 it seems like the underlying psychological mechanisms 25:03.770 --> 25:08.760 behind punishment are ones that are primarily sensitive 25:08.760 --> 25:11.370 to consequentialist constraints. 25:11.370 --> 25:17.720 So in a series of studies over the last several decades, 25:17.720 --> 25:22.830 psychologists have asked the question, to what sort of 25:22.830 --> 25:27.470 variations are punishment judgments sensitive? 25:27.470 --> 25:31.400 In general, when people are assigning punishment, when 25:31.400 --> 25:34.440 people are assigning severity, when people are deciding 25:34.440 --> 25:38.890 whether to punish or not, do they, if given the chance to 25:38.890 --> 25:42.780 look for information, want information, for example, 25:42.780 --> 25:46.770 about the criminal's state of mind or about the criminal's 25:46.770 --> 25:48.330 motivation? 25:48.330 --> 25:52.660 Or do they want information about how widely publicized 25:52.660 --> 25:57.080 the punishment is going to be or how likely crimes of this 25:57.080 --> 26:00.670 sort are to be detected? 26:00.670 --> 26:05.010 And it turns out fairly consistently that it's 26:05.010 --> 26:10.030 considerations of the first type that seem to be driving 26:10.030 --> 26:12.550 people's responses. 26:12.550 --> 26:18.370 That is, that a utility calculus doesn't seem to be 26:18.370 --> 26:24.110 the primary motivation when individuals who are surveyed 26:24.110 --> 26:29.410 in psychology studies, or penal codes, are looked at as 26:29.410 --> 26:32.670 indications, of the psychological mechanisms that 26:32.670 --> 26:34.680 underlie punishment. 26:34.680 --> 26:39.290 And we see further evidence in favor of this hypothesis if we 26:39.290 --> 26:44.030 consider a phenomenon that's sometimes known as altruistic 26:44.030 --> 26:47.450 or costly third-party punishment. 26:47.450 --> 26:52.140 So these are cases where an individual, A, punishes-- 26:52.140 --> 26:56.170 that is brings about harms and costs to-- 26:56.170 --> 27:01.550 another individual, in a way that, first of all, brings a 27:01.550 --> 27:08.630 cost to A, brings no direct benefits to A, and concerns a 27:08.630 --> 27:13.510 norm violation that didn't affect A in the first place. 27:13.510 --> 27:19.270 So for example, I'm standing in a long line waiting to get 27:19.270 --> 27:26.630 my iPad 2, and a person cuts in line behind me. 27:26.630 --> 27:29.210 Right-- so, he cuts in line behind me. 27:29.210 --> 27:33.280 It doesn't affect my access to the iPad. 27:33.280 --> 27:39.130 I might punish him by inviting everybody that stands behind 27:39.130 --> 27:45.190 him to cut in front of both of us. 27:45.190 --> 27:47.930 That makes me worse off, right? 27:47.930 --> 27:52.090 I've just let everybody behind me in line cut in front of me. 27:52.090 --> 27:56.060 It doesn't directly benefit me in any way. 27:56.060 --> 28:00.800 And the thing for which I am causing a harm to the 28:00.800 --> 28:05.020 individual behind me is not something that concerned a 28:05.020 --> 28:07.280 norm violation directed at me. 28:07.280 --> 28:10.310 He cut in line behind me. 28:10.310 --> 28:15.000 And we see instance after instance of behaviors with 28:15.000 --> 28:18.430 this structure in the behavioral economics 28:18.430 --> 28:19.680 literature. 28:19.680 --> 28:22.690 It appears for whatever reason. 28:22.686 --> 28:26.426 Perhaps because this is a way of promoting a certain kind of 28:26.430 --> 28:29.110 evolutionarily stable prosociality. 28:29.110 --> 28:34.720 Perhaps because norm violations tap into heuristics 28:34.720 --> 28:37.100 that cause people to act in certain ways. 28:37.100 --> 28:39.360 Perhaps for some third reason. 28:39.360 --> 28:44.870 It appears that in numerous, both laboratory and public 28:44.870 --> 28:51.210 settings, individuals engage in punitive acts that have the 28:51.210 --> 28:53.700 structure articulated above. 28:53.704 --> 28:57.364 Consequentialism, at least in its simple form, 28:57.360 --> 29:00.230 can't explain that. 29:00.226 --> 29:05.436 Finally, state of mind seems to play a large role in how it 29:05.440 --> 29:09.400 is that people respond to situations that potentially 29:09.400 --> 29:11.250 involve punishment. 29:11.250 --> 29:15.250 So suppose poor Jim comes over to my house, and hidden behind 29:15.250 --> 29:20.760 the door is my prize umbrella. 29:20.760 --> 29:25.580 And Jim knocks on my door, and I say to Jim, "Come in." And 29:25.580 --> 29:30.160 Jim walks in the door and knocks over my prize umbrella 29:30.160 --> 29:33.850 in a way that causes him to stamp through it and poke a 29:33.850 --> 29:35.280 hole in my umbrella. 29:35.280 --> 29:42.660 And he says, "Oh no, your prize umbrella." Case one. 29:42.660 --> 29:45.500 Case two, Jim shows up at my house. 29:45.500 --> 29:49.560 And I say to him as he knocks on the door, "Jim, Jim look 29:49.560 --> 29:52.480 out for my umbrella as you come in!" And Jim opens the 29:52.480 --> 29:56.270 door and stomps on my prize umbrella, putting a hole in 29:56.270 --> 30:03.450 it, and says, "Oh darn, your umbrella!" Case number three, 30:03.450 --> 30:05.700 Jim knocks on my door. 30:05.700 --> 30:10.400 I say to him, "Jim, look out for my umbrella!" Jim opens 30:10.400 --> 30:16.290 the door, stomps on my prize umbrella, and looking down at 30:16.290 --> 30:19.330 his footwork says, "Yeah! 30:19.330 --> 30:22.790 I smashed your umbrella!" 30:22.790 --> 30:30.050 What sort of responses do these three cases evoke? 30:30.050 --> 30:34.210 Here's our famous Bad-o-meter that you will recall from our 30:34.210 --> 30:38.110 various trolley and other cases. 30:38.110 --> 30:41.010 When Jim accidentally stomps on my umbrella-- 30:41.010 --> 30:44.490 the first case where I said, "come in Jim," and he stomped 30:44.490 --> 30:48.830 on it and said, "Oh no, your umbrella!" There's harm, but 30:48.830 --> 30:52.480 it's treated as pretty low-level. 30:52.480 --> 30:56.440 When I say to Jim, "Look out, my umbrella!" And Jim 30:56.440 --> 30:58.500 nonetheless opens the door and stomps on it and says, "Oh 30:58.500 --> 31:03.280 darn, your umbrella!" he's done something negligent. 31:03.276 --> 31:07.756 And there's a sense, on the part of most subjects, that 31:07.760 --> 31:10.700 something slightly worse has occurred in 31:10.700 --> 31:13.310 the general bad direction. 31:13.310 --> 31:16.940 And when Jim comes into my house and stomps on my 31:16.940 --> 31:21.130 umbrella and proudly looks down at what he's done, having 31:21.130 --> 31:25.210 done so, it seems, intentionally, there is, on 31:25.210 --> 31:28.030 the part of most subjects, a sense that 31:28.030 --> 31:31.120 something worse has happened. 31:31.116 --> 31:33.796 Consequentialism alone can't explain this. 31:33.800 --> 31:39.410 In all three cases I've got my poor stomped-on umbrella. 31:39.410 --> 31:44.700 What can explain this is a response that individuals seem 31:44.700 --> 31:48.420 pretty persistently to have across cultures, which is 31:48.420 --> 31:52.110 sometimes called the phenomenon of moral outrage. 31:52.110 --> 31:55.790 In the accident case, there's no moral outrage at all. 31:55.790 --> 31:59.620 Nobody thinks, that was morally outrageous of Jim to 31:59.620 --> 32:01.890 step on my umbrella, given that he didn't know it was 32:01.890 --> 32:05.330 behind the door and had just come in in response to my 32:05.330 --> 32:07.730 request that he enter. 32:07.730 --> 32:11.020 In the negligent case, there's some irritation, there's some 32:11.020 --> 32:14.710 moral outrage, there's a feeling: "Jim, I told you my 32:14.710 --> 32:17.610 umbrella was there." But the moral outrage 32:17.610 --> 32:19.910 is relatively low. 32:19.910 --> 32:24.380 But in the case where Jim did something that strikes us as 32:24.380 --> 32:29.750 having been an intentional bringing about of harm, in 32:29.750 --> 32:33.450 direct violation of my request that he not do so, "Jim look 32:33.450 --> 32:36.070 out for my umbrella" there's a response 32:36.070 --> 32:39.260 of high moral outrage. 32:39.262 --> 32:43.472 And what Carlsmith and Darley suggest, in the article that 32:43.470 --> 32:48.620 we read for today, is that these attitudes of either no 32:48.620 --> 32:53.100 moral outrage, low moral outrage, or high moral outrage 32:53.100 --> 32:56.890 direct our attention to different 32:56.890 --> 33:00.410 parties in the episode. 33:00.410 --> 33:04.570 When there is an event that's happened that doesn't produce 33:04.570 --> 33:09.080 moral outrage at all, there is, except with respect to a 33:09.080 --> 33:12.850 general desire to make the world a better place, no 33:12.850 --> 33:18.120 attention either to the victim or to the perpetrator. 33:18.120 --> 33:19.590 Bad stuff happens. 33:19.590 --> 33:21.840 We might go about trying to change the world. 33:21.840 --> 33:24.680 If there's an extra supply of umbrellas in my car, I might 33:24.680 --> 33:26.620 bring one of them in. 33:26.620 --> 33:31.310 But in general, when things happen by accident the 33:31.310 --> 33:35.100 perpetrator isn't a focus of attention. 33:35.100 --> 33:38.540 And the victim is no more a focus of attention than he or 33:38.540 --> 33:42.160 she would be if this had been brought about as the result of 33:42.160 --> 33:46.000 a gust of wind having destroyed the umbrella. 33:46.000 --> 33:51.260 In cases of low moral outrage, attention is 33:51.260 --> 33:53.920 directed to the victim. 33:53.920 --> 34:00.420 There's a tendency to focus on compensation, on the need to 34:00.420 --> 34:03.360 make things better. 34:03.360 --> 34:09.340 But there's no focus on the perpetrator as someone in need 34:09.340 --> 34:13.150 of our focused punitive attention. 34:13.150 --> 34:14.350 But in the case-- 34:14.350 --> 34:17.070 and in a moment I'm going ask you to take out your clickers 34:17.065 --> 34:20.065 because we're going to talk about intentional action. 34:20.070 --> 34:25.360 In the case where the act that violates the moral norm is 34:25.362 --> 34:29.802 seen as having been intentional, there is a 34:29.800 --> 34:36.050 tendency to focus not merely on compensation, but also on 34:36.050 --> 34:37.560 punishment. 34:37.560 --> 34:41.260 This is an extraordinarily resilient pattern, and one 34:41.255 --> 34:45.075 that seems very interesting psychologically if we're 34:45.080 --> 34:50.250 trying to come up with moral codes that will seem to 34:50.250 --> 34:58.050 evolved human beings, to strike them as satisfactory. 34:58.050 --> 35:02.980 But one problem with this picture is that it turns out 35:02.980 --> 35:08.130 that determining whether an action was done intentionally 35:08.130 --> 35:10.900 may well be more complicated than it 35:10.900 --> 35:13.500 had initially appeared. 35:13.500 --> 35:17.530 So my colleague, and your fellow Yale professor, Joshua 35:17.525 --> 35:22.615 Knobe, has done a wonderful series of studies on the 35:22.620 --> 35:28.120 question of what it is that leads people to think of an 35:28.120 --> 35:32.390 action as having being performed intentionally. 35:32.390 --> 35:34.650 And we're doing the study in the way that all of you are 35:34.650 --> 35:35.810 going to get both vignettes. 35:35.810 --> 35:39.300 So we won't get exactly the distribution that's indicative 35:39.300 --> 35:40.420 of typical responses. 35:40.420 --> 35:43.700 But I think it's nonetheless interesting for you to think 35:43.700 --> 35:44.350 through the cases. 35:44.350 --> 35:48.050 So how many of you have seen these cases before? 35:48.050 --> 35:48.980 Just hands. 35:48.980 --> 35:52.040 Ok, so about 5% to 10% of you. 35:52.040 --> 35:55.500 So Josh Knobe presents his subjects with scenarios, 35:55.500 --> 35:57.460 vignettes like the following. 35:57.460 --> 35:59.530 The vice president of a company went to the chairman 35:59.530 --> 36:00.840 of the board and said, "We're thinking of 36:00.840 --> 36:02.580 starting a new program. 36:02.580 --> 36:05.660 It will help us increase profits, but it will also harm 36:05.660 --> 36:09.370 the environment." The chairman of the board answered, "I 36:09.370 --> 36:11.370 don't care at all about harming the environment. 36:11.370 --> 36:14.420 I just want to make as much profit as I can. 36:14.420 --> 36:17.850 Let's start the new program." They started the new program. 36:17.850 --> 36:21.610 Sure enough, the environment was harmed. 36:21.610 --> 36:26.490 The question is this: in starting that program-- 36:26.490 --> 36:29.590 "I don't care at all about harming the environment, I 36:29.590 --> 36:32.100 just care about making a profit" -- 36:32.100 --> 36:36.170 is it the case that the chairman harmed the 36:36.170 --> 36:38.490 environment intentionally? 36:38.490 --> 36:42.570 Did the chairman one, yes harm the environment intentionally, 36:42.570 --> 36:46.090 two, no, did not harm the environment intentionally? 36:46.090 --> 36:46.680 Huh? 36:46.680 --> 36:47.950 People didn't really have their clickers out. 36:47.950 --> 36:49.350 There's only 70 of you. 36:49.350 --> 36:50.900 OK, let's see how it came out. 36:50.900 --> 36:55.460 So 77% of you think that he harmed the environment 36:55.460 --> 36:58.010 intentionally. 36:58.010 --> 37:01.610 And we'll now try the second case. 37:01.610 --> 37:04.450 Second case-- try to forget that you just had the first. I 37:04.450 --> 37:07.460 know you can't do that, but try to do it anyway. 37:07.460 --> 37:09.240 The vice president of a company went to chairman of 37:09.242 --> 37:10.512 the board and said "We're thinking of 37:10.510 --> 37:12.420 starting a new program. 37:12.420 --> 37:14.290 It'll help increase profits. 37:14.290 --> 37:18.260 But it will also help the environment." The chairman of 37:18.260 --> 37:21.020 the board answered, "I don't care at all about helping the 37:21.020 --> 37:21.930 environment. 37:21.930 --> 37:24.880 I just want to make as much profit as I can. 37:24.880 --> 37:27.860 Let's start the new program." They started the new program. 37:27.860 --> 37:30.420 Sure enough, the environment was helped. 37:30.420 --> 37:33.920 So the chairman says, "I don't care at all about helping the 37:33.920 --> 37:34.810 environment. 37:34.810 --> 37:39.230 I just want to make a profit." Question, did the chairman 37:39.230 --> 37:41.420 help the environment intentionally? 37:41.420 --> 37:43.480 One, if yes. 37:43.480 --> 37:45.620 Two, if no. 37:45.620 --> 37:50.690 And let's see how the numbers come out. 37:50.690 --> 37:51.350 Wow! 37:51.350 --> 37:52.700 You guys are amazing! 37:52.700 --> 37:56.730 All right, you came in even cleaner than standard Knobe 37:56.730 --> 37:59.220 results, even though I gave you the two cases 37:59.220 --> 38:01.360 sequentially, which should've mitigated the effect. 38:01.360 --> 38:02.110 But there we go. 38:02.110 --> 38:05.960 So classically, when you present this to people, in the 38:05.960 --> 38:10.600 first scenario where you guys gave 77% yes he harmed it 38:10.600 --> 38:15.430 intentionally, roughly 83% of people say that he did. 38:15.430 --> 38:17.880 Whereas, in the second case, where you guys gave this 38:17.880 --> 38:21.600 amazing 89% that he didn't help the environment 38:21.600 --> 38:25.590 intentionally, typically this number is 23%. 38:25.590 --> 38:28.160 So that one's 67-- 38:28.160 --> 38:29.450 sorry, 77. 38:29.450 --> 38:31.800 OK, now what's going on here? 38:31.795 --> 38:34.085 Let me remind you what just happened. 38:34.090 --> 38:37.890 We had two identical scenarios. 38:37.890 --> 38:42.700 The only difference is that we changed the term "help" here 38:42.700 --> 38:46.140 to "harm" in the first case. 38:46.140 --> 38:53.320 In both cases, what the CEO said is, "I don't care about 38:53.315 --> 38:55.505 thing you think I did intentionally in the first 38:55.510 --> 38:58.240 case and thing you didn't think I did intentionally in 38:58.240 --> 38:59.340 the second. 38:59.340 --> 39:04.820 I just care about making a profit." So something that he 39:04.820 --> 39:11.590 was ignoring in the first case, most of you thought is 39:11.590 --> 39:14.210 something he was intending to do. 39:14.210 --> 39:18.760 Whereas something he was ignoring in the second case, 39:18.760 --> 39:24.310 almost none of you thought he was intending to do. 39:24.310 --> 39:31.220 That's perplexing if what's going on here is that 39:31.220 --> 39:36.350 punishment is supposed to be tracking intentional action. 39:36.350 --> 39:40.440 Because it looks like what kind of action we take to be 39:40.440 --> 39:47.020 intentional is in some way confounded with what sorts of 39:47.020 --> 39:51.360 actions we take to be morally problematic. 39:51.360 --> 39:54.390 So that makes the whole question of how we ought to 39:54.390 --> 39:58.570 think about punishment even more complicated than it 39:58.570 --> 40:01.410 struck us already. 40:01.410 --> 40:06.490 But let's set that aside temporarily and think about 40:06.490 --> 40:10.150 what implications there are from the psychological results 40:10.150 --> 40:13.350 that we've just been studying. 40:13.350 --> 40:18.930 On the one hand, it looks like, psychologically, paying 40:18.930 --> 40:23.260 attention to backward-looking or retributivist reasons for 40:23.260 --> 40:29.260 punishment, to the rebalancing of the scales of justice, is 40:29.260 --> 40:34.200 psychologically required for a theory to feel satisfying. 40:34.200 --> 40:38.430 Or at the very least, that simply looking forward and 40:38.430 --> 40:40.030 thinking about consequentialist 40:40.030 --> 40:44.320 considerations and utility doesn't seem psychologically 40:44.320 --> 40:46.180 sufficient. 40:46.180 --> 40:50.950 So the question is whether, taking human psychology 40:50.950 --> 40:55.110 seriously, there's an additional alternative. 40:55.110 --> 41:00.590 And a number of psychologists and philosophers have asked 41:00.590 --> 41:04.690 the question whether if we look not backwards and 41:04.690 --> 41:08.340 forwards, towards the performance of the crime as 41:08.340 --> 41:10.970 something that demands a rebalancing of the scales of 41:10.970 --> 41:14.940 justice, or towards the utility which can be brought 41:14.940 --> 41:19.210 to society, but rather at the things that we were calling 41:19.210 --> 41:22.470 three and four in our initial characterization, at 41:22.470 --> 41:27.790 restitution and rehabilitation as our motivations, can we 41:27.790 --> 41:32.000 somehow get a psychologically satisfying account of 41:32.000 --> 41:37.780 punishment, where the goal is not rebalancing or utility, 41:37.780 --> 41:42.200 but rather some sort of reparation? 41:42.200 --> 41:44.160 This is sometimes called restorative 41:44.160 --> 41:46.050 or reparative justice. 41:46.050 --> 41:49.590 And those of you who are intrigued by it, I'm pointing 41:49.590 --> 41:52.420 you to a location where you can read 41:52.420 --> 41:54.580 articles about that question. 41:54.580 --> 41:58.660 OK, so that closes the first part of our discussion, the 41:58.660 --> 42:01.320 psychological implications of punishment. 42:01.320 --> 42:04.070 And what I want to do in the last five minutes of lecture 42:04.070 --> 42:06.930 is to talk about the interaction with luck. 42:06.930 --> 42:09.910 And then we'll begin lecture next Tuesday by talking about 42:09.910 --> 42:12.810 the connection in the context of parenting. 42:12.810 --> 42:16.220 So we've been thinking throughout this unit about the 42:16.220 --> 42:20.380 cases like this, where luck seems to play a role in 42:20.380 --> 42:21.550 consequences. 42:21.550 --> 42:25.990 When the person didn't intend to do harm. 42:25.990 --> 42:29.250 Unlucky Cell Phone and Unlucky Alert had no 42:29.250 --> 42:31.670 desire to harm the child. 42:31.670 --> 42:36.460 But of course, luck can play a role in cases where somebody 42:36.460 --> 42:39.820 is deliberately trying to bring about harm. 42:39.820 --> 42:45.160 So here's our standard bad guy, who shows up in town 42:45.160 --> 42:48.240 where there's a potential victim for him. 42:48.242 --> 42:52.512 And he pulls out his gun and says, "Oh yeah, I'm gonna 42:52.510 --> 42:57.120 shoot that guy." And luck is on his side. 42:57.120 --> 43:00.540 Intention carries out in the way that he 43:00.540 --> 43:04.700 intended and he succeeds. 43:04.700 --> 43:12.130 His perfect analog, Unlucky Shooter, shows up in town and 43:12.130 --> 43:18.280 says, "Oh yeah, I'm gonna shoot that guy." But when he 43:18.280 --> 43:22.230 pulls the trigger, unfortunately, just at the 43:22.230 --> 43:26.020 moment that his bullet would have hit his intended victim, 43:26.020 --> 43:30.420 up comes the truck that was in our last story, and stops the 43:30.420 --> 43:32.140 bullet in its tracks. 43:32.140 --> 43:37.600 So he doesn't succeed at his intended crime. 43:37.600 --> 43:45.780 Notice that this is the mirror analog to the previous case. 43:45.780 --> 43:49.830 The intention in the two cases is the same. 43:49.826 --> 43:52.686 The action in the two cases is the same. 43:52.690 --> 43:57.630 But in the first case the criminal has been lucky with 43:57.630 --> 43:59.290 respect to his intended goals. 43:59.290 --> 44:01.540 He shot the guy that he tried to shoot. 44:01.540 --> 44:06.420 Whereas in the second case the criminal has been unlucky with 44:06.420 --> 44:07.440 expected goals. 44:07.440 --> 44:12.410 He didn't manage to shoot his victim. 44:12.410 --> 44:18.910 The question is why we punish this one more 44:18.910 --> 44:22.570 seriously than this one. 44:22.570 --> 44:30.520 What sort of justification could possibly underlie this? 44:30.520 --> 44:35.860 And David Lewis in the rather complicated, I admit, paper 44:35.860 --> 44:38.910 that I had you read for today, and I promise we will talk 44:38.910 --> 44:42.490 about in sections to help you understand what the logic of 44:42.490 --> 44:49.010 the argument is, but David Lewis suggests that the only 44:49.010 --> 44:54.830 thing that could justify treating this act as more 44:54.830 --> 45:00.730 punishment worthy than this one, is if we think it would 45:00.730 --> 45:07.080 be all right to impose what he calls a penal lottery. 45:07.080 --> 45:13.540 So what he says is, if we knew objectively that when you 45:13.540 --> 45:16.950 engage in a shooting action where you pull a trigger 45:16.950 --> 45:21.610 there's a one in ten chance that your action will fail and 45:21.610 --> 45:27.330 a nine in ten chance that your action will succeed, then 45:27.330 --> 45:32.320 punishing you is fundamentally, in our current 45:32.320 --> 45:37.480 system, equivalent to having you draw a straw from among a 45:37.480 --> 45:42.720 set of straws where there are nine that send you to a long 45:42.720 --> 45:48.200 prison term and one that sends you to a short one. 45:48.200 --> 45:51.730 And he suggests that we can see that our current practice 45:51.730 --> 45:55.730 is akin to that by bringing you through a series of 45:55.730 --> 46:00.280 imaginary cases, each of which, he suggests, has the 46:00.280 --> 46:05.850 same justification as this straw drawing. 46:05.846 --> 46:10.116 So imagine a system where once we've established that the 46:10.115 --> 46:12.835 intent was equal in the two cases. 46:12.840 --> 46:17.900 We had our two individuals here just draw straws. 46:17.900 --> 46:20.250 Each of them has a one in nine chance of 46:20.250 --> 46:22.210 getting off the hook-- 46:22.210 --> 46:23.810 sorry a one in ten chance. 46:23.810 --> 46:27.300 And a nine in ten chance of getting to jail. 46:27.300 --> 46:32.860 That corrects for luck. 46:32.860 --> 46:36.800 Equivalent to that, says Lewis, is not that the 46:36.800 --> 46:40.230 individual draws the straw, but that before the trial 46:40.230 --> 46:42.150 takes place, a court 46:42.150 --> 46:45.050 representative draws the straw. 46:45.050 --> 46:48.960 And though the jury is just deciding, "did he intend to do 46:48.960 --> 46:52.330 it?" they don't know in advance what the 46:52.330 --> 46:55.440 penalty will be. 46:55.440 --> 46:59.910 Equivalent to that, he suggests, is that beforehand, 46:59.910 --> 47:03.460 the court representative draws the straw and makes public 47:03.460 --> 47:09.160 that if they convict him of intending to do the crime, 47:09.160 --> 47:13.770 then he will either receive the nine penalty, the more 47:13.770 --> 47:17.560 severe one, or the one. 47:17.560 --> 47:22.240 Equivalent to that, suggests Lewis, is that beforehand we 47:22.240 --> 47:27.350 provide a reenactment of the crime, with similar odds, and 47:27.350 --> 47:31.940 if the victim dies in that case, then the individual will 47:31.940 --> 47:36.030 get a more severe punishment. 47:36.034 --> 47:40.674 And, suggests Lewis, our actual practice of just 47:40.670 --> 47:46.150 letting the world play itself out, so that we punish the 47:46.150 --> 47:50.890 person whose crime attempt succeeded more severely than 47:50.890 --> 47:56.010 the one whose crime attempt didn't, is just a 47:56.010 --> 48:01.710 pre-enactment, morally equivalent to a re-enactment, 48:01.710 --> 48:04.170 morally equivalent to the drawing 48:04.170 --> 48:07.620 of straws in a lottery. 48:07.620 --> 48:12.700 So I'll close with that as a way of trying to bring out yet 48:12.700 --> 48:18.110 again the perplexity of moral, or perhaps, immoral luck. 48:18.110 --> 48:21.570 And we'll open next Tuesday with our discussion of Kazdin 48:21.570 --> 48:25.670 and then move on to our selection from the writings of 48:25.670 --> 48:27.540 Thomas Hobbes And I'll post that 48:27.540 --> 48:30.020 reading for you by tomorrow. 48:30.020 --> 48:31.270 Thanks.