PROFESSOR: 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 judge to the 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 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--
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 crime.
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 consequentialists for denying
telishment.
As with the standard cases of the surgeon cutting up the
patient, there are more complicated moves that the
consequentialists 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.
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.
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 mechanisms 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 being 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 is 23%.
So that one's 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.
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 all right 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.