NOV 16

23: NOV 16. 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"

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?

• 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.

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 appetite 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: 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 -- Can't be impulse control. porn at home, but not at work. He must have known that it was wrong. Tourette's can be circumstantially triggered even though it is clearly neurological. Poignant exchange with Janet about staying in the relationship. Kluwer-Bucy. Months before sentencing. Medication makes him normal, but eliminates his libido. 5 yrs. - home arrest. Judge ackn. prosecutor's point. You could have asked for help. (Reflect on this a bit.) 26 months federal prison 25 months of house arrest. 2008-2010.

• 4 minute discussion questions: Do you agree with prosecutor's Vartan's point? Why or why not? What would your sentence have been?

• Segment 2: Blame - person or brain.

• Nita Frahany - neurolaw professor (law and philosophy!). Might be lots of cases. (argument: isn't this just like blame everything else for what you do wrong? Isn't it too easy?). Thought experiment: deaf person, 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 will 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. Blameworthiness might be the wrong question. Person vs. biology doesn't really make sense anymore. The "choosey" part of the brain (the homunculus!). 36:00 minutes. Funny exchange. Self-modification comes up. The choosey part is also part of the brain.
• Claim: Legal system should drop moral blame. Adopt utilitarian approach. Predict recidivism. Point system exists for sex offenders. Better than people "unguided judgement" (50% accurate). Point system 70%. Currently there is appearance bias for example from juries. [Mention controversies over sentencing algorithms.]
• A point system might be very predictive, but you might not want to convict someone of a future crime. Would it be?
• Nita Frahany - Blame might serve social function of articulating norms.

• 4 minute discussion questions: Frahany thinks there are lots of cases of the criminal justice system punishing unfairly. Are you persuaded? If so, does a utilitarian approach (with or without the point system) make sense?

• Segment 3: Dear Hector

• Bianca Giaver (producer) - Hector Black. Hector's backstory - joins civil rights movement, moves South, adopts Patricia, a neglected child. Patricia's story (becomes a beautiful and productive person) -- Patricia is murdered and raped by Ivan Simpson. Hector considers whether he wishes the death penalty for him. Hector's statement -- 48min. Writes a letter of forgiveness to the murderer. Ivan's story - son of schizophrenic mom, beat him, horror. Do we still blame Ivan Simpson the same way. Hector tells his story. Many letters exchanged. A strange bond. Hector has self-doubts - sending care packages to Ivan???. (Maybe he's just a weird guy.)
• Ivan tells the original story of Patricia's murder. Ivan abused. Mom tries to drown Ivan and two other children. Ivan hears a voice that sometime comes to him. Commits the murder. Can't make sense of it.

• 4 minute discussion questions: Does Ivan's story change your view of the kind of threat he poses -- one from choosing evil/failing a responsibility vs. compulsion? (Go back to the thought experiment on praise and blame.)