APR 15

24: APR 15. Unit Six: Moral Responsibility and Criminal Justice

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 can be held responsible, in some fashion, for their actions. Two main kinds of moral responsibility are "desert-based or "moral desert" moral responsibility" (db-MR) and "accountability moral responsibility" (accountability).

• Moral desert Responsibility (db-MR) -

• Def: You "morally deserve" praise and blame because: a) you did (or failed to do) something that you knew you were expected to do or not do and b) you were capable of doing or not doing. In the case of violating the law, it follows that you are blameworthy and deserving of punishment. This includes the idea that we ought to punish you and if we don't, we might be doing something morally wrong. Typically, retributive punishment is a pain (from fines or incarceration) proportional to offense. (We are interested in law breakers, but the same analysis could apply to "deserving praise".)

• You might deserve blame for failing any of a wide range of expectations. Expectations can come from friends and family, from social norms, or from the law. Examples: Your partner expects you to call if you are late for dinner (they should accept responsibility), you deserve to be treated civilly by others, you worked a shift and deserve to be paid. You failed to observe the speed limit and you deserve a ticket. Notice how different these contexts are. You can blame someone without believing that they deserve punishment, but when we use the term db-MR in the legal context, we do mean that you deserve a painful punishment proportional to the crime.

• Accountability Moral Responsibility -

• If we just want to understand why someone failed in their responsibility and, importantly, whether they will do it again, we might ask them to give an "account" of their behavior and thinking ("What were you thinking!?") Giving an account for having done or failed to do things we normally expect of others can be done quite apart from holding someone blameworthy (even if we might use the term "blame" in ordinary language). This might be an important distinction if you become a skeptic about moral responsibility as a result of this unit. Accountability MR is typically focused on understanding potential threats to society from an offender and, where possible rehabilitating offenders. Accountability MR may include accepting restrictions on one's liberty, from incarceration to probationary restrictions, but it does not entail "deserving to be punished by infliction of pain proportional to the crime".

• Main PointYou can still have accountability MR without db-MR. Is accountability enough? Why/why not?

• 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...) or deficits and challenges that you have that you did nothing to deserve (having epilepsy, a substance abuse problem, anger issues, etc.). If you decide that you don't deserve to be blamed (or blame others) for things that are morally arbitrary, then you might prefer “accountability responsibility” to "db-MR".

• 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? She 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? The Judge's additional point? Why or why not? Consider other fact patterns / cases. Are there cases where "could have asked for help" doesn't carry weight? This one? What would your sentence have been, especially in light of the anti-libido meds? (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?’’’