Reorg Unit 6

24: NOV 17. Unit Six: Criminal Justice and Moral Responsibility Skepticism

Assigned

• Radio Lab Episode on Blame and Moral Responsibility
• Article abstract, "Klüver–Bucy syndrome, hypersexuality, and the law"

In-class

• Some basics of the moral responsibilty and free will discussion

Introduction to philosophical problems with Moral Responsibility and the Law

• Basic Questions:

• 1. Do we praise people for things that they don't deserve credit for and blame people for things that are not their fault?
• 2. Is our concept of moral responsibility (and all of the behaviors and institutions based on it) wrong somehow? Is it out of sync with ideas about free will, what we know about the brain, and the causes of crime?
• 3. What exactly do we mean when we say, "You are responsible for that"? Start a list. Causal, moral, both, neither. Do you find yourself referencing some idea of a "normally competent person"? When would you also hold someone responsible for becoming a normally competent person? What sorts of conditions make is more or less likely that you will become a normally competent person?
• 4. If we clarify our understanding of moral responsibility, will we still approach criminal punishment with retributive intent?

• Some concepts for thinking about moral responsibility:

• Moral Responsibility - The idea that people deserve praise or blame for their actions. In the standard view, praise and blame are based on "moral desert".
• Moral desert - Normally, you "morally deserve" something because you did (or failed to do) something to merit it, positively or negatively. (You worked a shift and deserve to be paid. You failed to observe the speed limit...)

• Moral desert can be contrasted to what you deserve just because of your status, as in rights. This is also called "moral standing". Moral desert can also be contrasted with "morally arbitrary" (recall Rawls). So, we would say you do not deserve praise or blame for things that are "morally arbitrary": things you did little or nothing to achieve (like an inheritance), things about you that were just your good fortune (good impulse control, a good noodle, athletic ability, at ease in social life...). Yet we clearly praise and blame people (and ourselves) for all of these things!

• Accountability vs. Morally Responsibility -- Giving an account of someone as having done or failed to do things we normally expect of others can be done quite apart from holding someone blameworthy. This might be an important distinction if you become a skeptic about moral responsibility. You don't lose accountability, necessarily.
• Free will and responsibility -- Most people would agree that if we cannot freely will our actions, we cannot be held responsible for them. But what sort of free will is required? Is normal choosing (neurologically described) free will or do we have to break with the causal fabric of the universe! (Libertarian Free will). If the world is deterministic, everything has been "decided" (Including basketball games!). Does that mean there is no free will, or just that it might not be what we think it is?

Radio Lab Episode on Blame and Moral Responsibility

• Segment 1: Story of Kevin and his wife, Janet. Kevin is arrested for child pornography.

• 15 years earlier. Epilepsy seizures returned after surgery two years earlier. Can't drive so he meets Janet from work, who drives him to work. Romance... Still more seizures. Another surgery. Music ability in tact. But then his food and sexual appetites grew, played songs on the piano for hours. Disturbing behavior. Really disturbing behavior.

• Reporter tries to get at who it was who did it. Kevin claims compulsion. Downloads and deletes files.

• Orin Devinsky: Kevin’s neurologist. Testified in court that it wasn't Kevin's fault.

• Neurological dive: deep parts of our brain can generate weird thoughts, but we have a "censor". Maybe Kevin lost that part of his brain. Observed in post-surgery monkeys.

• Lee Vartan, prosecutor -- Can't be impulse control. Porn at home, but not at work. He must have known that it was wrong. But Tourette's can be circumstantially triggered even though it is clearly neurological. Poignant exchange with Janet about staying in the relationship. Could you have stayed in the relationship? Kluwer-Bucy. Months before sentencing. Medication makes him normal, but eliminates his libido. 5 yrs. - home arrest. Judge acknowledges prosecutor's point. How does the legal system assign blame when you are sometimes “in control” and sometimes not? Adds: You could have asked for help. (Reflect on this a bit.) 24 months federal prison 25 months of house arrest. 2008-2010. Do you agree with prosecutor's Vartan's point? Why or why not? What would your sentence have been? (Short group discussion on questions in bold.)

• Segment 2: Blame - person or brain. (26:30 mins)

• Nita Farahany - neurolaw professor (law and philosophy!). Might be lots of cases. One count: 1600 cases from 1% sampled. (Counter-argument: Isn't this just like blaming everything else for what you do wrong? Isn't it too easy?). Thought experiment: Imagine a deaf person, who can’t hear a child in burning building. You wouldn't hold the deaf person liable for the death of the child. "Emotional inability" would also be damage to a physical structure (as in the ear).

• David Eagleman, Neuroscientist - Makes critical point: Neuroscience isn't so precise. Like looking at earth from space. New technologies may show us how experience is written in our brain. (Back to Descartes: mind is the ghost in the machine.) Slippery slope, the brain is always involved. Even healthy brain. Blameworthiness might be the wrong question. Person vs. biology doesn't really make sense anymore. The "choosey part” of the brain (the homunculus! - Explain: Sapolsky will make fun of this idea.) 36:00 minutes. Funny exchange. Self-modification comes up. The choosey part is also part of the brain. One system. Raises possibility that all decisions are determined.

• Claim from Eagleman: Legal system should drop moral blame. Adopt utilitarian approach. Predict recidivism. Point system exists for sex offenders. Better than people’s "unguided judgement" (50% accurate). Point system and algorithm: 70%. Currently there is appearance bias for example from juries. [Mention controversies over sentencing algorithms [1].

• A point system might be very predictive, but it might involve convicting someone of a future crime. Would it be? Would that be ok?

• Nita Frahany - Blame might serve social function of articulating norms.

• Segment 3: Dear Hector / Dear Ivan

• Bianca Giaever (radio producer who did the story on Hector) - Hector Black, 86. Hector's backstory - WWII vet, Harvard, joins civil rights movement in Atlanta, moves South, adopts Patricia, a neglected child who lived nearby. Patricia's story (becomes a beautiful and productive person), college, adopts kids -- Patricia is murdered (strangled) and raped by Ivan Simpson. Hector feels retributive impulse. Ivan confesses. Hector considers whether he wishes the death penalty for him, decides no. Hector's statement at sentencing. Writes a letter of forgiveness to the murderer, which starts correspondence. Is it important that Ivan doesn’t forgive himself? Ivan's story - son of schizophrenic mom, adopted, horror. Ivan abused. Mom tries to drown Ivan and two other children.

• Ivan tells the original story of Patricia's murder. Burglary. Drug use. Returns to Patricia’s house. Conversation with Patricia. Didn’t originally intend to kill her. Patricia give him food. Gets high on crack. Ivan hears a voice that sometimes comes to him. Commits the murder. Can't make sense of it. Wants death penalty.

• Do we still blame Ivan Simpson the same way? Hector tells his story. Many letters exchanged. A strange bond. Hector has self-doubts about his behavior toward Ivan - sending care packages to Ivan???. (Maybe he's just a weird guy or is he on to something?) How do you evaluate Hector’s approach to Ivan?

• Does Ivan's story change your view of the kind of threat he poses -- one from choosing evil/failing a responsibility vs. compulsion?’’’

Some complicating arguments and thought experiments on moral responsibilty

• A couple of interesting philosophical arguments to take into the thought experiment:

• From Peter Strawson, summarized here in Waller, Against Responsibility:

• If one is to be truly responsible for how one acts, one must be truly responsible for how one is, morally speaking. To be truly responsible for how one is, one must have chosen to be the way one is. But one cannot really be said to choose (in a conscious, reasoned fashion) the way one is unless one already has some principles of choice (preferences, values, ideals etc.) in the light of which one chooses how to be. But then, to be truly responsible for one’s having those principles of choice, one must have chosen them, in a reasoned conscious fashion. But that requires that one have principles of choice. And thus the regress. (pg. 29, Waller)
• Strawson's argument suggests the "impossibility" of moral responsibility.

• Mele’s Intentional Self-Modification Argument

• Mele seems to accept the idea that in order to be responsible for how one acts, one must be responsible for how one is at the time of action. But he takes exception to Strawson’s claim that in order to be responsible for how one is, one must have chosen to be that way. He thinks there are cases of intentional self-modification that allow an agent to be responsible for what they do, without involving an infinite regress of choices. He makes his case by first developing the following thought experiment:
• The Case of Betty: Betty is a six-year-old girl who is afraid of the basement in her house. She knows that no harm has come to anyone, including herself, who has entered the basement. But she is still afraid. Nevertheless, she recognizes that her fear is “babyish” and takes steps to overcome come it. She starts to make periodic visits to the basement, staying slightly longer each time until she no longer feels afraid. After following this method for a few months, she loses her irrational fear.
• Mele's Intentional self-modification argument suggests that we can be held responsible for our actions because we have powers of self-modification.
• But! Now imagine Benji, also afraid of the basement. He doesn't try to conquer his fear or tries and fails. How would you know if Benji deserves to be blamed for his failure?
• Maybe Betty is a "chronic cognizer" and Benji is a "cognitive miser". Are these traits they for which they have "moral desert"? Some people are not persuaded by Mele's argument. How far can "self-modification" go to make up for doubts about moral responsibility?

• Thought experiment on interpersonal praise and blame

• Suppose you were raised in a good home and have acquired good habits. We would normally praise you for that. Now, would you reassess your deservedness of praise in light of the following conditions?

• Condition 1: Compare yourself now to someone raise in a bad home, or no home, and who acquired good habits, having overcome many personal obstacles. Are you less deserving of your praise than this person, equally, more?
• Condition 2: Suppose now that you look at your family and extended family and you notice that, compare to other families, yours seem to come to good habits easily. None of you really ever do anything wrong, or much. You notice that your friend's families have higher frequencies of bad or dysfunctional behavior (drugs, alcohol, just being "bad", disruptions in employment). Are you less deserving of your praise than people from these families, equally, more?

Small Group Discussion: Thought Experiment on Praise and Blame

• Work through the thought experiment above, sharing your responses to Conditions 1 and 2. Do these comparisons make you less certain about the basis of moral responsibility? When you are ready, fill out this google form about the thought experiment:
• Try to think of some clear cases in which you would blame yourself (or blame someone else) for failing a specific moral responsibility. Make a list with different levels of seriousness. Include a few cases of criminal conduct, but mostly stay with interpersonal responsibility contexts. (Example: I would blame myself if I failed to prepare for class because I got distracted reading magazines. -Alfino) In each case, try to think about what you "deserve" or "ought to have to do" in light of your failure. Is it always a penalty (from nominal penalty to one proportion to failure)? Does it always involve "deserving blame"? When does it? Hopefully, this helps us think about praise and blame in actual contexts. Please bring 1-3 items from your list back to the whole class.

25: NOV 22

Assigned

• Sapolsky, Chapter 16: Biology, the Criminal Justice System, and (Oh, Why Not?) Free Will (580-613) (Part One 580-598)

Sapolsky, Chapter 16: Biology, the Criminal Justice System, and (Oh, Why Not?) Free Will

• Discusses professional interaction between biologists and legal scholars that may have started “neurolaw”. Conferences, Innocence Project (350 exonerated, 20 from death row). Sapolsky focusing on narrow range of topics, exclusions p. 582.( science in courtroom, min IQ for death sentence, cognitive bias in jurors, cognitive privacy)

• Cites his liberal credentials, but claims he’s not taking a liberal stance.

• 583: Historic example of scientific evidence disrupting criteria for guilt in witches trials, mid-16th century. Older women might not be able to cry. Liberals, is S’s view, focus on making small adjustments (not prosecuting older women with failing tear ducts), but he’s going big:

• Radical claim: Current criminal justice system needs to be replaced. (Must be said, this is also a liberal reform.)

• Three Perspectives on Free Will

• 1. Complete free will; 2. No free will; 3. Somewhere in between.

• No one now disputes that we sometimes are not free (epilepsy example). Problem is how to think about it. Sometimes it’s not “him” but “his disease”. Sapolsky will be critical of the idea that you can make this separation.

• Yet medieval europe tried animals for guilt. (Sounds weirder than it is. Just imagine it's about the act, not criminal intent.) Ok, it's still pretty weird... Inference: We don’t have complete conscious control of our actions.

• Drawing Lines in the Sand 586

• S Endorses a broad compatibilism = Free will is compatible with determinism..
• But most people talk like “libertarian dualists”, what he calls “mitigated free will”. Sapolsky will try to show that this view doesn’t hold up, in part because it depends up arbitrary use of a “homonculus” to explain things.

• 1842: M’Naghten. Rule at 587. Mentally ill murderer. Many objected to his not being found guilty. John Hinckley. Again, many objected. Law passed restricting insanity defense in federal crimes.

• "Mitigated free will" homunculus view: (read at 588. Funny, but that is how many people think.) We all more or less think this way and then the problem of responsibility comes down to figuring out what to expect from the homunculus. Note his humorous/sarcastic description of it. What is it capable of or should have been capable of. This is our "folk psychology" of free will.

• Age, Maturity of Groups, Maturity of Individuals

• 2005 case Roper v. Simmons. Age limit of 18 on executions and life terms. Follows debates on this. 590.
• 2010 and 2012 cases on rehab for juvies. age related bounds on free will (in the justice system).

• Brain damage to rationality as a criterion
• Morse: critic of neuroscience in courtroom, but allows for ”grossly impaired rationality”. [Note: The law is mostly interested in "rationality" not free will.]

• Some views Sapolsky finds hard to accept:

• Gazzaniga’s view: FW is an illusion, but we should still punish. Responsibility is a social level concern. (This view makes more sense than Sapolsky sees.)
• Deliberate actions are "free" - doesn't make sense of brain processes.

• Time course of decision making.

• Disputes about the maturity of adolescents: APA has spoken both ways in court: not mature enough for criminal resp., but mature enough to make an abortion decision. Might be contradictory unless you think that the immaturity affects impulse control more.

• Causation and Compulsion

• You might defend mitigated FW by distinguishing causation from compulsion: not everything that causes us to act is a compulsion, but for some, it is.

• Works through example of schizophrenic hearing voices. Not all cases would be compulsion. "If your friend suggests that you mug someone, the law expects you to resist, even if it's an imaginary friend in your head." On the other hand, some say that act might be “caused” by this voice. “Thus, in this view even a sensible homunculus can lose it and agree to virtually anything, just to get the hellhounds and trombones to stop.” 593

• Starting a behavior vs. halting it.
• Libet experiment, 1980s, EEG disclosure of “readiness potential” — activity measured before conscious awareness of will. .5 second delay might just be artifact of experiment design. Time it takes to interpret the clock. Libet says maybe the lag time is the time you have to veto the action your body is preparing you for (“free won’t”)

• Sapolsky’s view is that these debates reflect a consensus about the interaction of biology and free will, whatever that is.

• ”You must be smart” vs. “You must have worked so hard”

• research of Carol Dweck, 90s, saying that a kid worked hard to get a result increases motivation.

• 596: we tend to assign aptitude to biology and effort and resisting impulse to free will. Sapolsky seems very skeptical that we can justify assigning character (impulse control anyway) to non-biological factors (fairy dust). Read at 598.

• Conclusions: “worked hard/must be smart” are equally grounded in our physical nature.

• Some evidence that pedophilia is not freely chosen or easily resisted.

• Chart showing how we divide things between biology and “homuncular grit”. — Long list of ways out biology influence the items on the right. (Note that this applies to Kevin in the Radio Lab episode, “Blame”.)

• Like Eagleton in our podcast, Sapolsky is saying that all of these efforts to defend “mitigated free will” fails because both sides of these distinction are part of the same physical world. There is no humunculus.

Small Group Discussion on Will Power and "Homuncular grit"

• Evaluate Sapolsky's chart on p. 597 showing how we divide "biological stuff" from "homuncular grit". How far do you go in accepting his criticism of the distinction. (read below chart). Are there reasons for thinking we have a “homunculus” that isn’t biological? Does this lead you to reevaluate your agreement with the prosecutor in Kevin's case?
• What is the "source" (what are the sources) of "will power"? When you "find" willpower or marshal your personal resources to meet a challenge, is there a "who" who is deciding that or is there just a competition in your head based on all kinds of things, including perceive rewards and perceived risks? Do you need a homunculus to have will power?

Two Positions that might follow from your small group discussion

• 1. There is “homuncular grit” and it’s not biological.

• Supports this view: Moral Responsibility and Deserved Punishment. Moral responsibility can be desert based since it is almost always your “moral failure” when you break the law. (Except for a small range of “mitigating circumstances”). You can be guilty and deserve punishment.

• 2. It’s biology all the way down. (Meaning, you and your development.)

• Supports this view: Accountability and Penalties View.

• Society must enforce standards (through laws and regulations), but this mostly involves penalties and interventions. Speeding tickets and the loss of liberty are effective ways of encouraging compliance. Society is also entitled to self-protection.
• Moral responsibility just means “you have an obligation to meet the standards”. No need for desert-based judgement or punishment. Penalties and interventions are enough. You can be judged to have failed to meet the standard and face consequences. If penalties don’t work or the social threat is great (e.g. murder), you might lose your liberty.

26: NOV 29

Assigned

• Sapolsky, Chapter 16: Biology, the Criminal Justice System, and (Oh, Why Not?) Free Will (580-613) (Part Two 600-613)

• Henrich, Joseph, "Hell, Free Will, and Moral Universalism" from The WEIRDEST People on Earth p. 146-148, (2)

In-class

• Lecture: Traditional v Naturalist approaches to Free Will.

Sapolsky, Chapter 16: Biology, the Criminal Justice System, and (Oh, Why Not?) Free Will (580-613) (Part Two 598-613)

• But does anything useful actually come of this?

• Grounds for skepticism about using neuroscience in the courtroom: Stephen Morse. Neurolaw sceptic, ok with M’naugton, but thinks cases are rare. Reviews valid criticisms he makes: 1. Juries might overvalue neuroscience images, 2. Descriptive vs. Normative.

• Morse supports a strong distinction between causation and compulsion. Causation is not itself an excuse. But Sapolsky argues that this still involves walling off a “homunculus” and that’s not plausible.

• Acknowledges an apparent problem. Neuroscience typically can’t predict individual behavior very much. Fictional exchange with prosecutor. 600

• Explaining lots and Predicting Little

• But is the lack of predictive power a problem in the argument? S. works through some cases in which probability of prediction decreases, but no less likely that it could be a case of compulsion. 601

• 602: Important methodological point: There's no less biology in the leg fracture vs. the other disorders, but level of biological explanation is different. Leg fractures are less connected to culture. Behavior is multifactorial and heavily cultural. (Oh god, another Henrich digression. Free will has a history.) Example: how much does biology predict depression? Factors are diverse biological mechanisms, including cultural factors. (But, point is, someone can be disable by depression, just like the leg fracture.)

• Marvin Minsky, “Free will: internal forces I do not understand”. Sapolsky adds “yet”.

• Neat charts showing historic trend to connect social behavior and biology in research journals. 604-605.

• If you still believe in mitigated free will:

• Case of Dramer and Springer and the spiritual explanation for epilepsy. Biblical version with Jesus.
• Sapolsky imagines an Inquisitor (witch burner). Must be puzzled occasionally by fact pattern. Mom has epilepsy.
• Growth of knowledge argument 607-608. read list. Most likely option is that our kids will look at us as idiots about moral responsibility and culpability.

• 608: practical outcomes. Not about letting violent criminals free. On the biological view, punishment can’t be an end in itself (restoring balance). Retributive punishment is an end in itself.

• Brain imaging suggests culpability judgements activate the cool and cognitive dlPFC, but punishment judgements activate more emotional vmPFC. “A frothy limbic state”. Makes sense that punishment is costly. But we need to overcome our attachment to punishment. It is involved in a lot of unjustified suffering.

• Recaps the transition we've made with epilepsy 610.

• Car free will. A kind of reductio argument.

Henrich, Joseph, "Hell, Free Will, and Moral Universalism"

• This excerpt from The WEIRDEST People in the World comes in the context of a section on "universal moralizing gods" which characterize the major world religions (though Buddhism requires some discussion). H's theory is that this cultural innovation in religions allows societies to grow, solving the problems associated with living with so many strangers, something our evolved psychology did not really prepare us for.

• The three innovations of moralizing religions are:

• contingent afterlife: how you behave in this life determines your after life or next life
• free will: encouraged followers to believe they could comply with moral code by acts of choice and will.
• moral universalism: moral rules are the same for all people. (Note how this overcomes groupish morality.)

• The rest of the excerpt goes into evidence of the effects of each feature on social life. The research related to free will is at top of p. 148.

• What consequences, if any, does this research have for our thinking about the modern problems of free will and moral responsibility?

• 1. Cultural variants on ways of thinking about agency make (or made, in the past) real differences in social morality, whether or not they are metaphysically grounded. They work to the extent that people can actually think of themselves as having FW and thinking this way changes their behavior.
• 3. The philosopher's concern with the metaphysical problem of free will is hard to reconcile with the cultural utility of a belief in free will. If a belief in FW motivates better outcomes, why do we care about it's metaphysical grounding?
• 4. When you tell your future kids "You can do it if you try. Don't let other people control your decisions. What do you want to do with your life?" you may really be motivating them to take up a particular set of values to approach challenges. But notice this is only valuable motivationally. At some point, your parents stopped saying this so much. Instead, "you're doing fine..."

Cases:

• Kimberly Potter -
• Amber Guyger - the police officer, off duty, who mistook her neighbor, Botham Jean, for an intruder and killed him.
• A man has a heart attack / epileptic attack while driving and kills a pedestrian. (Consider variations.)
• A man is working two jobs to support a family, nods off at the wheel and kills a pedestrian.
• A man knows his car is close to a dangerous malfunction. When it occurs, he loses control and kills a pedestrian.
• The tragic case of the man who left his baby in a hot car.

27: DEC 1

Assigned

• Cavadino, Michael and James Dignan. "Penal policy and political economy". (17)

• Tax rates by country.[2]
• Crime rates by country [3]
• Homicide rates by country [4]

Cavadino, Michael and James Dignan. "Penal policy and political economy"

• Huge increase in US incarceration rate since 1970s. 5x, highest in the world.

• Two claims:

• Diffs in penalty likely to continue in spite of globalization
• One reason for this is that penality tracks political economy. (Think of it as a "local mental adaptation" in American culture -- like our libertarianism or our "car culture" mentality or our "suburban" mentality.)

• Starts with an overview of the influence of the US on global penal policy. To the extent that US exerts influence on other countries to move in a neo-liberal direction there may be "penal convergence". Also, incarcertation systems are one of our global exports! "correctional imperialism"

• Some elements of the US "justice model" (retributive punishment and retributive deterrence) travel faster than others. "3 strikes" and "zero tolerance"

• In Europe, the European Convention on Human Rights is influential. Moved Russia away from capital punishment. Example of global influence.

• Political Economy and Penality

• 441: Table: Typology of political economies and their penal tendencies.

• ’Neo-liberal'. Example: US. Free market capitalism, individualism, minimal welfare state. Social exclusion (442) - acceptance of underclass with lower access to market goods. High inequality. Tracks this also in UK, Australia, and NZ (443).

• Conservative corporatism National interest groups integrated into political governance. Great welfare protections, but allows for class difference and some inequality. Also, still valuing church institutions. “Christian democrats” for example. Example: Germany in 2008 recession reinvests in industrial modernization and worker skills. Netherlands a borderline case between this and “Social dem corporatism”

• Social democratic corporatism More egalitarian and secular. Sweden. Strong trade union movement, more egalitarian social insurance than Germans.

• Oriental corporatism Japan, for example. “Corporate paternalism” High job security, structured pay scale to life stages. Welfare is more employer based obligation. Some neo-liberal influence after WWI, but more egalitarian than US.

• Let's review some of the connections the authors make in their discussion. (bring in crime rates)

• Table 2: Political economy and imprisonment rates. (447)

• Is neo-liberalism "criminogenic"?

• Possibly: Evidence that unequal societies with weak community relationships suffer from worse rates of crime. 447. Social exclusion reduces social cohesion.

• Interesting: Weak link bt crime rates and imprisonment rates. More to do with “cultural attitudes toward deviant and marginalized fellow citizens”

• Some possible mechanisms: Neo-liberal societies have high social exclusion: labor market and CJ failures treated similarly. The authors suggests a "feedback loop" here: the socially excluded confirm the neo-liberal narrative.

• By contrast, Corporatist and social dem states are inclusionary, have a communitarian ethos. (Less likely to intervene, less likely to ask citizens, “Are you alright?” Old MRFW news example [5]

• Beckett and Western (2001) and others claim that high welfare spending correlates with low incarceration (except Japan). Also, economic inequality predicts high incarceration rates.

Some Ways of Thinking about Moral Responsibility and Justice

• Traditional/Current Theories of Punishment

• Retributive punishment / retributive deterrence.

• Requires very strong concept of MR and FW to be just. Retribution is justified by "moral desert". It can also involve "social exclusion" -- making it hard for offenders to vote or hold a job. One can also advocate for a punishment dimension as a deterrence. Even is not wholly "deserved," punishment deters bad behavior.

• Utilitarian models of punishment: General principle: Goal of penal system is to reduce harm to public and offender.

• Versions include: Public Health-Quarantine Model, Community welfare model (crime is a kind of welfare issue, also for communities), Rehabilitative approaches, Restorative justice. These models can overlap and tend to assume that crime has natural causes that can either be mitigated through preventative welfare measures (addressing poverty and homelessness, for example) or through rehabilitation, confinement, and/or monitoring. Does not require a strong position on FW or MR, but these approaches can trigger liberty objections. (Present discussion option here! Could you imagine a criminal insisting on being treated retributively? Maybe.)

• Accountability and Interventions

• Distinguishing retributive punishment from "penalties and interventions". Punishment is about pain. Penalties (like speeding and parking tickets) might also hurt, but they can be justified not only on utilitarian grounds, but also more simply as ways of making the standards for behavior clear and reminding us of them, e.g. promoting accountability. Interventions include conditioning liberty (staying out of jail) on getting help with a problem, suspending privileges like driving on better behavior, asking for and listening to an offender's "plan" to avoid recidivism. Using social science knowledge about the patterns of our behavior to offer solutions. Technology (leg braclets and geo-location) and options for medications (libido killers) are also morally controversial in terms of consent, but might be preferable to more painful methods.

• Grounding punishment in the consent of the punished.

• Consider responses you might have to causing a harm to others. "Thanks! I needed that!" "I understand there will be consequences..." But what kind?
• Try the "veil of ignorance" approach to finding just principles of punishment. (mention law review article)

• Substituting the concept of a "tort" where we currently use retribution to establish restore justice.

• Instead of victims seeking revenge to be "made whole," (often by learning that a perpetrator will be incarcerated) you could see their loss as "insurable." Think about how would a "wrongful death suit" would proceed for a typical upper middle class person with "umbrella liability" coverage as opposed to someone who causes damage they are not insured for (underinsured motorists, for example)? Example of friend hurt by negligent driver Problems generalizing this as a form of guaranteed insurance!

Small Group Discussion on punishment

• Recall our theories of punishment from last class. Here are two thought experiments to help you sort out your views on punishment:

• 1. Imagine you are in the original position in Rawls' theory. You don't know if, when the veil is lifted, you will be a crime victim, criminal, or neither. Moreover, you don't know if you will live in a crime prone area, have good parents, and other factors that affect criminal behavior, like Socio-economic Status (SES). But you do know everything we currently know about the causal factors (both social and individual) that produce crime. You also know how victim's families feel and how you would feel if you were a victim of crime.

• Here are three choices you might make. Does one sound better than the other two? Is there a fourth?

• A. Contractors would choose a retributive punishment system, much like the current US system.
• B. Contractors would choose a "public health model", more like corporatist cultures (Cavadino & Dignan).
• C. Contractors would choose a "dual system" allowing for mix A and B. (Maybe using the tort concept.)

• 2. Faculty sometimes talk about how "punitive" the grading systems in our courses need to be. This can pit "softies" vs. "toughies". As with the moral responsibility and punishment issue in the criminal justice system, some faculty (toughies) worry that if they don't give more C, D, and F grades, students will become lazy. They also might believe that a higher level of performance would occur if we put students in fear of failing the course. (!) However, other faculty (softies) have the feeling that many differences in student performance are "baking in" prior to the first day of class and grading is largely "sorting" the same people over and over again. We need to give students good information about their performance, but we don't need to make harsh final judgements. If this is true, praising and blaming students more severely than needed to motivate the work seems undeserved. Softies sometimes acknowledge the "free rider" problems with their view. Do you find yourself agreeing with one group of faculty over the other? How punitive do we need to make a particular process for it to work? What are the variables? Do you have an analysis? How would you want your kids graded?

PP2: Free Will, Moral Responsibility, and Punishment Position Paper

• Stage 1: Please write an 1500 word maximum answer to the following prompt by Wednesday, Dec 14, 11:59pm. There will be no peer review process for this paper, but you will receive comments from me along with your grade.

• Topic: In this unit, we have explored different ways to think about free will, moral responsibility and punishment. We've looked at arguments (from philosophy and the law) for "moral responsibility skepticism," critiques of our ordinary ideas about free will, and the justification of our culture's approach to punishment. Respond to these challenges as you provide your own view, with supporting reasons, of free will and responsibility and how we should approach crime and punishment. Are there important reasons to retain retributive approaches? How should we take into consideration the growing body of knowledge about biological influences on our behavior? Should the approaches of other cultures influence our views?

• Advice about collaboration: Collaboration is part of the academic process and the intellectual world that college courses are based on, so it is important to me that you have the possibility to collaborate. I encourage you to collaborate with other students, but only up to the point of sharing ideas, references to class notes, and your own notes, verbally. Collaboration is also a great way to make sure that a high average level of learning and development occurs in the class. The best way to avoid plagiarism is to NOT share text of draft answers or outlines of your answer. Keep it verbal. Generate your own examples.

• Prepare your answer and submit it in the following way. You will lose points if you do not follow these instructions:

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4. To turn in your assignment, log into courses.alfino.org, click on the "3 - Position Paper #2: FW, MR and Punishment" dropbox.
5. If you cannot meet a deadline, you must email me about your circumstances (unless you are having an emergency) before the deadline or you will lose points.

28: DEC 6

Assigned

• Dennett, What is Free Will? 6 minute video [6]
• Greg Caruso and Daniel Dennett, "Just Deserts" [7].

Traditional vs. Naturalist Approaches to Free Will

• The traditional philosopher's approach:

Whether we have free will or not depends upon our answers to two metaphysical questions:

• "Is determinism true?" and "Are we exceptions to it?"
• Libertarians believe that when we act freely, we are the "first cause" (like God, by the way) in a chain of actions. In other words, humans are exceptions to determinism.

• Big Implication of traditional view: At least part of us (the homunculus) is absolutely free. Biological stuff can override our freedom in case of force or compulsion.

• The "naturalist" approach (biologists, cultural evolutionists, and some philosophers):

• We are products of nature. As far as we know, we are caused to be how we are. But that doesn't mean we can't be responsible for our behavior, just that there are natural limits to human responsibility. These limits are found by understanding agency and paying attention to how cultures shape the idea of free will (Henrich).

• What we have, in normal circumstances is "agency." Agency is "an ability to act in the world and to make myself accountable to others." I do this by conforming my behavior to the idea of a "normally competent agent." Having human agency means that I am determined (by biology and training) to be accountable for values that help us get along together, to "evade" bad outcomes.

• Free will and MR as a cultural concept. Evidence from Henrich and others. Part of a cultural package that weakened kin bonds that might not have been seen as "choose-able". Promotes idea of choosing a creed or code of conduct apart from loyalty to kin.

• Naturalists want us to pay attention to how we actually talk about Free Will. This will help us understand the culturally shaped concept of FW and the way biology and environment pose real limits to our freedom.

• Ordinary language analysis -- We know what we mean by free will, whether it exists in libertarian form or not! Maybe it's a cultural artefact. Maybe we use mental modules related to Theory of Mind and governing "animate" objects.

• To warm up your intuitions that FW is a cultural concept, consider how adept we are in understanding these sentences: "ordinary language analysis"
• I may choose to take up painting as a hobby.
• I cannot choose to become a concert violinists at this point in my life.
• I can choose whether or not I get ready for class.
• I have no choice, I have to turn you in to the police.
• I can't choose not to love you, but I can't see you any more.
• I've decided I don't love you any more. (aww...)
• Parent to child: You can do anything you put your mind to.
• Parent to child: You need to try harder.
• Parent to (older) child: You're doing fine. Just keep that up.

• Big implication of naturalist view: Agency is about "degrees of freedom". We are not all equally free. Environments and our own biology and upbringing can constrain our freedom.

Small Group Discussion

• Does the traditional or naturalist view make more sense of your experience of free will? Is free will the ability to make absolutely uncaused choices or the ability (which we have by degrees) to hold ourselves accountable to our values and social expectations?

Dennett, What is Free Will?

• Interviewer poses the question, “If everything is determined, how can we have free will?
• Dennett: Free will isn’t just hard to reconcile with determinism, but also indeterminism. [If the universe is “indeterminate” that still doesn’t help us to think about being the origin of our actions. Indeterminacy is randomness.] We want to be the one’s determining our actions.

• History of the question: People look to physics to think about FW, but should be thinking about biology. Key: FW is a biological level phenomenon. [That means it exists at the level of the organism and its intentions, not the cellular or physical level.]
• ”Our actions are determined but not inevitable.” Inevitable mean “unavoidable”. But we have gotten really good at “avoiding.” Anticipation, corrective measures.
• ”You can change what you thought the future was going to be, into something else.” [I think this sounds puzzling if you don’t remember that we have causal agency. Determinism doesn’t mean we are like a billiard ball on a pool table, only subject to forces.]
• Physics level vs. Biological level.
• ”We also need to give up absolute blame and responsibility, but there is still responsibility. “We are determined” to control our future and hold each other accountable for doing that.

Caruso & Dennett, "Just Deserts"

• This dialogue allows you to see how a moral responsibility sceptic (Caruso) and a compatibilist (Dennett) might disagree about moral responsibility. Dennett defends a pretty strong view of moral responsibility but doesn’t think he’s a retributivist. Caruso defends a strong skeptical view of moral responsibility and thinks Dennett is still hanging on to retributivism.

• Caruso: What we do and the way we are is ultimately the result of factors beyond our control. [No Ultimate Resp. thesis - NUR]
• Dennett: [Seems to defend "mitigated free will" but instead of the humunculus, we are in “control” by virtue of the natural developments that produce an NCA.] Some people have mental disabilities that makes them not responsible, but normal people are morally responsibility and deserve praise or blame. Need to distinguish between causation and control. There are causal chains that turned you into an autonomous, self-controlling agent. [e.g. A normal person with a normal upbringing. The "normally competent agent" - NCA]

• Caruso: No problem with NCA, who is "responsive to reasons". NCAs are autonomous and have control. But they don't possess the characteristics that would justify "basic desert" responsibility. People don't deserve to have "something bad happen to them just because they have knowingly done wrong". Totally "backward looking". Retributivism overlaps with consequentialism (Punishing people might reduce harms and therefor achieve utilitarian ends) but the distinctive difference is that retributivist thinks punishment is justified in itself, by desert. I don't because of NUR. There may be "forward looking" reasons to keep certain systems of punishment and reward, like "incapacitating, rehabilitating and deterring offenders" [what we've been calling "penalties and interventions"]

• Dennett: I too reject retributivism, along views of free will [libertarian] that support it. [This will be a major point of dispute between them.] But there is a "backward looking" justification for punishment: [read example of promise breaking]. "deserving of negative consequences". This is something autonomous people accept as a condition of political freedom. Analogy of sports penalties. They can be deserved. Argument against NUR: So what? We grow into our autonomy.

• Caruso: [Are you sure you're not a retributivist, DD?] Isn't "deserving negative consequences" retributivism? The consequentialist benefits of punishment don't require "desert" [but just MR as "accountability" -- You did it, maybe on purpose...]. There are good [forward looking] reasons to keep penalties. [References the "moral luck" literature from Nagel.] Luck doesn't "even out", SES affects brain development, educational inequalities....[In a word, lucky privileged people.]

• Dennett: I'm using the "every day" sense of "deserve". I want to avoid "case by case" considerations of MR. You are "entitled" to the praise you get from good things and the "criticism, shame, and blame" from breaking the law. I'm still for criminal justice reform -- shorter sentences, no death penalty, rehab and reinstatement.

• Caruso: It doesn't help to appeal to the everyday sense, since that includes retributivist beliefs -- 1. backward-looking; 2. just deserts, and that's what we are trying to figure out (e.g. you're begging the question). If you say that the murderer deserves to go to prison for "a very long time" irrespective of future consequences, you are a retributivist. [ Think "strike back".] Example of Einstein. We can "attribute" things to Einstein.... You do offer a "forward looking justification for backward looking MR" [Roughly, we don't get the benefits of a stable society without punishing people in the "moral desert" sense.] But that's an empirical question; it's not justified by "moral desert" but only if the consequences follow.

• Dennett: Non-retributive punishment (visiting negative consequences on people because they deserve it) is justified in part by the need to promote "respect for the law" [connect to Henrich] Cites Hobbes.

• Caruso: [a bit frustrated] You say you're baffled that I don't see that you are not a retributivist, but you said that earlier that there are "backward looking" justifications for punishment based on desert. But when you elaborate that, it's all about forward looking justifications. [We're better off punishing.] Cites the "public health argument" from his book. Focusing on backward looking punishment keeps us from looking at the social causes of crime. Obama quote. [Note connection with Cavadino: We're looking at neo-liberal ideology....]. Claims society won't fall apart in the Hobbesian sense.

Small Group Discussion: Assessing the Caruso - Dennett discussion

• Here some questions from the discussion that it might be helpful for you to sort out your thinking about:

• If you advocate for “negative consequences” are you therefore a “retributivist” or does it just mean that you think NCAs still deserve blame and negative consequences are an expression of that?
• Is there a "backward looking" justification for punishment apart from forward looking consequences (preventing recidivism)?

Dennett's Naturalist view in Freedom Evolves

• Our folk psychological idea of Free will. The homunculus or soul or real self is somehow independent of influences. In philosophy, this is "Libertarian Free Will". Not well supported.

• Examples of decision making for us to pay attention to: Make a decision in response to the following prompts. 1. We're going to have a quiz today. Please go to the form. and 2. I've bought you all tickets to Hawaii. We're leaving at 5pm. Meet me at the airport. Did the decisions feel free? Did you feel absolutely free of influences or did you feel like you understood completely how to evaluate these requests?
• Rethinking your concept of free will doesn't require you to deny anything about your "agency" - Your actual capabilities for decision making, reasoning, understanding the world, etc. In fact, it helps to have evidence of this to challenge your folk psychology.

• The Standard Argument for Incompatibilism that our Folk Psychology encourages. (Should we resist?)

• If Determinism is true, everything is inevitable. (recall physics consult)
• If everything is inevitable, the future has no real possibilities. (No "open futures")
• If everything is inevitable, you can't blame someone for not doing otherwise than they did. (No "alternative possibilities.")
• If you can't blame someone for their actions, then there is no MR and retributive punishment is unjust.

• If you are like most people, you will not accept this argument. And you shouldn't. The question is, who has a better solution? Naturalists suggest that our folk psychology confusing us about the consequences of determinism, maybe because it wasn't designed for these kinds of questions. So their solution is to give an analysis of the implications of determinism that makes room for free will and to show how "freedom and free willing" might arise from nature. (If this seems like a stretch, philosophers have been here before. Mind from matter? Surely, you jest!)

• Digressive note: It doesn't really help to imagine an indeterministic world to solve the problem. There would be no prediction in a world without (causal) regularities. It would at least be a very annoying world, and not obviously "free."

• Rethinking Determinism. Here are three key challenges to the standard argument for incompatibilism (above) from naturalists:

• 1. Determinism doesn't make things inevitable.
• 2. There are real present and future possibilities in a determinist world, just not the "open futures" of folk psychology.
• 3. Freedom evolved in us in nature.

• In other words, the naturalist thinks free will and freedom (and some version of responsibility, if not punishment) are possible in a deterministic world with no "open futures". As we will see, part of the strategy is to show just how complicated we are, to be creatures who engage in inquiry and use knowledge to avoid back outcomes and create good ones. So, we might be "Determined (by nature) to improve the future!".
• Where does all that improvement show up? In culture, but only if things go right (remember Rapa Nui!). As we know from our studies this semester, "going right" in culture means benefiting from cooperation and acquiring cultural "packages" of mental adaptations that address the basic dilemmas of social creatures like us. Ultimately, surviving and thriving.

• So that's where we're headed. Now let's look at the naturalist's analysis in a little detail.

• 1. Determinism doesn't make things inevitable.

• Artificial Life research models how design can emerge from a set of artificially defined "creatures" moving in a completely deterministic manner, as in a video game. (Nerdy digression: Artificial life models can create "touring machines," which means they can solve computational problems.) Some creatures could develop "avoidance capabilities". The birth of "evitability"! You could imagine the computer programmers are acting as "hacker gods" to add design (they don't have to), but imagine instead that the creatures develope R&D capabilities, as we have. Not so implausible that nature designed us to be good "avoiders". We also have circuits for rewards and searching!
• In evolutionary theory, we describe the emergence of multi-cellular organisms as solving problems of parasitic genes and achieving a stable organism that persists.... Nature is full of "evitability" -- ways organisms avoid harm.

• 2. There are real present and future possibilities in a determinist world, just not the "open futures" of folk psychology.

• If something can be "determined to change" then it has, in a sense, an "open future." (Still not the folk psychological one exactly.) In us, meta-cognitive and social processes feed into our decision making, allowing us to re-evaluate the "weights" we give to different possibilities.
• The way we actually think about possibility when we are engaged in inquiry is compatible with determinism. Analysis of: "I could have made that putt." Makes sense if you mean "If the world hade been slightly different. In inquiry, and with our big brains, we imagine possible worlds in which the wind didn't blow or I wasn't thinking about my taxes while making the putt. But it doesn't make sense to say, "No, I mean that I could have made the putt in this world!", because you didn't.
• We create real possibilities in the present and future by using reason to replay scenarios and approach them differently. Examples: Improving your social skills, academic skills. If it feels like your "in charge", well, you are. All of these causal forces intersect with you and you happen to have a brain.

• 3. Freedom evolved in us in nature.

• If freedom means avoiding bad outcomes and having lots of real possibilities in your life, then it might be possible to account for that in a deterministic world.
• The evolution of freedom happens through the evolution of the socially evolved behaviors and structures we've been studying. (Dennett's research based isn't as up to date as ours!) Cooperation, culture, accumulated knowledge, complex societies supporting lots and lots of education provide us more freedom than our ancestors.
• Obvious example: Without vaccines we would be less free.
• Contrast with traditional concept of free will: binary, metaphysically opaque. Evolved freedom admits of degrees. Lots of potential implications for responsibility and punishment.
• Implication: We are not all equally free. Freedom is powerful and fragile.
• Implication: You can hold normal people responsible for their behavior, but there's no justification of absolute responsibility here. You can hold people responsible because they are designed to be responsible.

29: DEC 8

Assigned

• Susan Blackmore, "Living Without Free Will" (recommended)

In-class

• Short talk, “From Ethics to Happiness: Turning up the Volume on Values

Blackmore - Living Without Free Will

• Thesis: Free will is an unnecessary illusion that you might be better off getting over. SB grants that many find this an impossible view.

• Cites Wegner (2002): research suggesting that the feeling of agency ("I did it!") might be "post-hoc" attribution.

• ”Inner self is illusion.” Illusion can mean something that isn’t there or something that isn’t what it seems. SB means the latter.

• Blackmore agrees with Dennett's analysis (but thinks his book should be called "Choice Evolves"), but thinks FW is an illusion. Dennett says “free will worth having” is the kind he describes in Freedom Evolves.

• She considers two possibilities: "Living 'as if'" and "Rejecting the Illusion" - favors the latter.

• Living "as if"

• Wegner quote: "virtual agency" is part of a useful mental accounting system. But virtual agency is an illusion created by our brains.
• Patricia Churchland: It's a "user illusion" that you make an uninfluenced, self-conscious choice.
• "Illusionism" can be defended. If you believe bad consequences follow from giving it up....
• Criminal Justice system would be fairer without the illusion of FW. No retribution.

• Stronger position: You can't get rid of the illusion even if you wanted to. "I'm determined to believe in FW."

• "Rejecting the Illusion" -

• 166: "sitting by the fire" example
• William James - getting out of bed on cold morning. Analyze that feeling of "indecision".
• Blackmore 167: going out on a cold night. "...not because "i" made the decision of my own free will. It is because this is the decision that the whole universe came up with for this person under those circumstances."

• Thought experiment to her students: "But if I don't have free will why would I get up in the morning? Why would I do anything?" Go ahead. Try it!

• Blackmore thinks of consciousness more as events than a place in your head where things "enter into conscious awareness". Likewise, maybe, with free will. [Possible criticism: Just because it would be mistaken to believe in the homunculus, it doesn't mean that there are no neural processes that imitate some of it's less exotic functions (like updating us by making this conscious to us - "Oh right, I have a paper to write."). [Arguably, that’s your evolved, “user illusion” homunculus talking.]

• 169: Some of the exercises she asks her students to do. "Am I conscious now?" Sometimes primes them to be more conscious. (Related to mindfulness).

• Morality and Responsibility

• You might think that you would have more regrets giving up FW, but no.
• Wegner: knowing its an illusion gives him a sense of peace. “There are a whole lot of things that I don’t have to worry about controlling because I know that I’m just a little window on a lovely machines that’s doing lots of things.”

• Conversation with her Dad. Maybe FW (or belief in it) makes us "want to be good" (recall Henrich). But we’re not wicked, in general. (“I’m determined to improve the future!”). Her answer, 173: Ultimately we’re designed by evolution to benefit from being good.

• SB's point: All of your motivations to be good (self-interest, reputation, altruism) will still be there after you give up FW.

• Paying Attention

• In meditation, a great deal of "quieting the mind" is about getting the self to shut up so you can pay attention to the mind.

Small group

• Consider Susan Blackmore’s discussion. How far does her advice go for you?

• I’m holding out for Free Will. It doesn’t feel like a user illusion.
• I’ll do the “as if” (like Wegner). It’s a useful user illusion and it works better if you believe in it. Or, it would be dangerous to give up. Or both.
• Some of the benefits of “living without free will” look promising, but I’m not sure. CJ fairness. Appreciation of my nature. That we are designed to benefit from being good.
• Damn straight. I’m giving up free will today!

Concluding Course Comments

• Review of Major Ethics Course Questions

• Short talk, “From Ethics to Happiness: Turning up the Volume on Values