NOV 30 - DEC 1

24: NOV 30

Assigned

• Caruso, Gregg. "The Public Health-Quarantine Model" (22)

Planning for last resources on 26th and 28th

• Please review the candidates for final readings / resources. Think also about any resources you are bringing into your work from outside the course resources.

• Options: Fixed readings vs. Student-chosen resource/brief verbal report.

Caruso, Gregg. "The Public Health-Quarantine Model"

• A defense of the public health - quarantine model.
• 1. Review of Free will skepticism

• Works through traditional non-naturalist positions.
• Identifies as a "hard incompatibilist" (note the pairing of a quasi-libertarian view of FW with determinism. That's how you get a "hard landing". The "problem / solution set" for FW MR skeptics is pretty traditional.)

• 2. Public Health Quarantine Model

• Pereboom basic argument. Analogy bt crime and public health. Based on self-defense and defense of others. (note Bradley also) not utility. Avoids some objections to utility. Principle of least infringement. Identifies with public health ethics. Recent book on SDH and SDPH.
• Includes social justice - understood in terms of capabilities approach of Nussbaum and Sen. Health, reasoning, self-determination, attachment, personal security and respect. Substantive freedom (Sen)
• [This looks oddly like Dennett's conception of freedom.]
• "It is a mistake to hold that the criteria of ind. accountability can be settled apart from considerations of social justice and the social determinants of criminal behavior."

• 3. Proportionality and Human Dignity

• Retributivists might argue that treating people as "broken things" undermines their dignity.
• Cites empirical evidence suggesting that retributive CJ systems like US appear pretty disproportional. Seems more likely that punishment systems are responding to beliefs about MR and self-determination than proportional fitting of penality to crime.
• Skeptic of the coherence of proportionality. Comparing different things vs. incarceration typically.
• American supermax prisons are horrible places. Overuse of solitary confinement. [Note this applies to policing in the US as well. ]
• Cardinal and ordinal proportionality.
• Argues that the PH model protects dignity better. Principle of proportionality and least infringement.

• 4. Victim's Rights

• [This section reminded me of Greene and Cohen's prediction.]
• Alliance for Safety and Justice data -- what victim's want
• Even if they wanted "vengence" it's not clear that would be morally ok. Retribs need a distinction.
• Restorative justice.

Final Paper Prompt

• Let’s take some time today to discuss the final paper prompt. It could be as brief as, “In light of your course readings and other knowledge and commitments that you have, provide your own theory of moral responsibility and free will (freedom). Then show what implications your theory has for how we should think about praise, blame, and punishment. You may also identify implications for our interpersonal ideas about praise and blame.”

25: DEC 5

• Shaw, Elizabeth. "Justice Without Moral Responsibility" (15)

• Some videos about prisons:

• Norwegian prison, [1]
• US Supermax prison, “Red Onion” [2]
• ”When kids do hard time,” Wabash Prison, [3]

Shaw, Elizabeth. "Justice Without Moral Responsibility"

• Interested in the implications of MR scepticism. Specifically, wants to address retributivist concerns about the rights of offenders and those accused of crimes.

• Many Concerns:

• 1. Framing the Innocent
• 2. Grossly disproportionate punishment
• 3. Absence of due process safeguards (against evidentiary requirements for coercive treatment and right to challenge one's case).

• Insight: Retribs aren't just advocating a view of just punishment, but also (often) defending a set of rights.

• Major argument premise: There are examples in the law from non-retributive contexts (where moral desert doesn't even arise) to suggest that MR sceptics can address the "rights violation concerns" of retributivists.

• 97: Sim/diff with Pereboom and Caruso.

• Moral Responsibility and Retribution

• Basis of retributive theory in punishment based on moral desert.
• MR Scepticism doesn't rule out a "moral protest" account of MR (New in the course!!) - add to earlier idea of "accountability" Moore: "Suffering of the guilty intrinsically good."
• C.S. Lewis' retributivist intuition: No "just cure" . Removing someone from a deserved punishment is unjust. It removes them from the sphere of justice altogether. Shaw rejects this.

• Framing the Innocent

• Presents the retributivist argument: Utilitarians would go along with framing an innocent person (under conditions described). But, compare to framing a non-responsible person, Timothy. Retributive desert doesn't arise, but we don't have trouble describing what is unjust about framing Timothy.

• worries about the quarantine model: Public health law allows detention without finding of harm. Scarier analogy for rights violation worries.

• Non-retribs can appeal to prohibitions against manipulation.

• Benjamin Vilhauer (2013) Rawlsian account. Note rationale: For FW skeptic, no moral desert so it is a morally arbitrary thing about you. Should be excluded from veil. Claims contractors would rule out "framing the innocent". (Interesting digression on how it might be rational to allow the state to deceive the public under some circumstances. 104.

• Proportionality

• Rights violation concern: state might medicalize criminality and lose sight of proportionality.
• Reply: This concern ignores how we actually currently protect the rights of individual where no moral desert arises (care of non-responsible persons). Stricter protection than utilitarian.

• Due Process

• Note: Dennett's view can justify either retributivism or non-retributivism (pause on this. It might matter to your papers.)
• Again, Shaw plays here "major argument premise" -- there are lots of due process protections in contexts where moral desert and criminality do not arise.