retributive justice Archives - Prindle Institute

July 17, 2023July 17, 2023

Is Murder Really Worse Than Polluting?

In a May 25th decision, Sackett v. Environmental Protections Agency, the U.S. Supreme Court placed further restrictions on the regulatory powers of the federal government. It has been longstanding practice that under the Clean Water Act the Environmental Protection Agency can regulate wetlands connected to navigable waters. But the recent 5-4 decision now requires “continuous surface connections” between regulatable wetlands and navigable waters, disregarding groundwater pathways.

This is obviously a victory for industries most likely to pollute waters – mining, construction, ranching, etc. – but more broadly it highlights the separation between two very different legal regimes. One governs the actions of corporations and white-collar through administrative agencies, regulations, and fines. The other involves the more familiar legal regime of cops, imprisonment, and even executions.

Criminal prosecution for harms such as pollution does occur, but is generally of a lesser order. The most severe penalty under the Clean Water Act is “knowing endangerment” – if, for example, a business owner ordered deadly chemical waste dumped in a river they knew was used as drinking water. The maximum penalty for knowing endangerment is 15 years in prison and a $250,000 fine.

But is polluting a river, with chemicals possessing the power to kill someone, a lesser crime than murder? (Even if one generally rebukes the American criminal justice system, the inconsistency can be an independent concern.) Should we, if we strive to be consistent in matters of justice, allow for harsher penalties?

One way to think about what severity of punishment would be justifiable is via theories of punishment. These attempt to justify the use of punishment in society. The two most common justifications deployed are consequentialist or retributivist.

Consequentialist theories of punishment – namely deterrence, incapacitation, and rehabilitation – justify punishment as a means of achieving specific social aims. Deterrence theories justify punishment on the basis of discouraging further crimes. Incapacitation theories argue punishment is justified to remove harmful elements from society. Rehabilitation theories explain punishment as a process to reform the criminal and reintegrate them in society. As the aim of consequentialist theories is to produce certain outcomes, the form of punishment depends on the most effective means for achieving the social goal.

Take deterrence as an example. It is sometimes assumed a harsher punishment is a stronger deterrent, but evidence indicates the primary deterrent is often the likelihood of being caught. Therefore even for very serious crimes a staunch deterrence theorist may not care how severe the punishment is, as long as it is rigorously enforced (which, incidentally, seems not to be the case with environmental crimes).

Retributivism is the approach to punishment where questions of proportionality between crimes and their punishments is most significant. It is also the dominant theory in the American legal system. The idea behind retributivism is not to achieve a specific social good or prevent harm, but ensure criminals get what they deserve. This has enormous psychological appeal, although philosophers have struggled to establish a clear basis for the intuition that crimes “deserve” punishment. What exactly does it mean for punishment to “fit” the crime?

Retributivism often holds that punishments should be fair or proportionate. Tax fraud, for example, probably shouldn’t merit death. But does this suggest there are retributivist grounds for claiming crimes like assault, mugging, or murder deserve a harsher punishment than knowingly disposing of toxic chemicals in a river used for drinking? It may depend on the exact details of the harm caused. We generally punish murder more severely than assault, and assault more seriously than shoplifting. On this analysis, large-scale crimes such as polluting a river should have extremely severe punishments. For more distant harms, say a cancer diagnosis 10 years after the disposal of chemical waste, it may be challenging to tie the crime to the particular harm. But this is a prosecutorial challenge and does not concern what punishment is in principle deserved.

What about violence? Violent crimes are often distinguished from non-violent crimes, with violent crimes meriting harsher sentencing. Is a crime like dumping toxic waste in a river less severe because it is less violent? One challenge to this is that violence is often simply a proxy for harm caused, where bodily harm is treated as more severe than, say, monetary loss. But environmental crimes can cause bodily harm. Presumably poisoning someone to death is not a lesser crime than stabbing someone to death, even if it is nonviolent.

A further question is whether harms “add up.” Is stealing 100 dollars from 100,000 people worse than murdering one person? If harms compound in any way, then crimes with very widespread effect, such as environmental crimes, high-level political corruption, and financial crimes, could be among the most severe of all crimes even if their per-person impact is small.

As for arguments in favor of less severe sentencing for crimes such as pollution, perhaps the best defense concerns intent. When someone engages in financial shenanigans or dumps toxic waste in a river, their intent in most cases is not, presumably, to cause harm. By contrast, with a murder or assault the harm is often the central aim. The question that emerges is whether callous indifference to the harm caused is preferable to intentionally seeking to cause harm. Such judgments are hard to make, but even if preferable to an overt intent to harm, indifference to harming others is not a particularly exculpatory state of mind.

There is also a notable inconsistency here. In the United States there exists the practice of felony murder, where if someone dies during the course of a felony (e.g., a robbery), the defendant can also be charged with murder. For example, a lookout in a robbery was charged with murder after cops responding to the robbery accidentally killed someone. This practice is unsurprisingly controversial, but if it exists for crimes like robbery where there was no intent to kill, then it should logically exist for dangerous environmental crimes as well.

Overall, the retributive case for lesser punishment for environmental crimes is not compelling. If anything, on a retributive analysis, the punishments for large-scale crimes should be exceptionally severe. Beyond philosophical analysis, there are two other plausible explanations for asymmetries in crime and punishment.

First, our sense of justice thrives on the visceral. We are shocked at crimes of singular brutality and cruelty with identifiable (and sympathetic) victims. It is well established that we can quickly go numb to widescale harms. And yet, our society is dominated by large institutions. And it is those ensconced in the upper echelons of these institutions who have the most capacity to cause harm, even if they are very far removed from the consequences. The obfuscation of climate change by fossil fuel companies is the biggest, although far from the only, example. We psychologically struggle with more abstract crime with more diffuse consequences.

Second, is the unequal distribution of power in society. It is in the interest of the mugger to have minimal sentences for mugging and the coal executive to have minimal sentences for polluting. But there is a vast difference in their ability to shape the law.

Together, these two considerations often confound what should otherwise be a more straightforward question.

November 2, 2022December 14, 2022

Justice versus Care in ‘Tales of the Jedi’

The recently released Tales of the Jedi fills in gaps to the narratives of both Count Dooku and Ahsoka Tano. This may seem odd at first. The two characters, as far as we know, never met and their two storylines do not intersect in these six animated entries into the canon. But taken as a whole, these episodes provide a comparison and contrast along two different themes. The first, surface-level, theme is how these two Jedi react to their experiences of institutional corruption. Both of them leave the Jedi Order. But there the similarities end. Dooku joins Darth Sidious and leads the Separatists against the Republic during the Clone Wars. Ahsoka attempts to live a simple life in hiding during the rise of the Empire, but eventually returns to action under the guise of Fulcrum, a messenger for the Rebel Alliance in the years before the Battle of Yavin.

It is the second theme, however, which is more philosophically interesting. This theme is the contrasting moral outlooks of Dooku and Ahsoka. Dooku falls into the category of someone who views morality through the lens of justice while Ahsoka arguably adopts a care perspective when making her choices.

To understand this second theme requires understanding the work of Carol Gilligan, a psychologist, and how it has influenced the development of Care Ethics. Many textbooks used in an introduction to ethics course include a chapter on feminism and care ethics. Sometimes this discussion falls under discussions of ethics and gender. Care ethics is often contrasted with traditional theories in the sense that traditional theories assume (a) that a moral theory requires that judgments are impartial and universal and (b) that morality works to regulate the behavior of interacting strangers. Care ethics is said to reject both assumptions. First, moral judgments are focused on the personal and particular. Second, that morality includes strengthening relationships between persons who know each other well.

So, what does a justice-oriented moral outlook entail? According to Carol Gilligan’s work, initially collected in her book In a Different Voice, one feature is that those who adopt the justice view see morality as a system to regulate the behavior of strangers.

Each person is a separate, distinct, independent individual and everyone is a threat to each other’s individuality. Threats, of course, imply violence. As Lawrence Hinman points out, traditional moral theories which adopt this justice outlook “can be used to justify violence.” Dooku’s stories illustrate this point.

According to the audiobook Dooku, Jedi Lost, he was abandoned by his family and sent to live with the Jedi Order because his father believed his son was a freak, an “other,” an outsider. In other words, Dooku’s life begins not with family, but with isolation and abandonment reinforcing this ethic of strangers.

This isolation and separateness is reinforced in Tales of Jedi, where the first two stories involve Dooku arriving on distant unnamed planets to resolve criminal activities. Each time, Dooku arrives as an outsider, separate and isolated from those with whom he interacts, including the other Jedi who accompany him. In the episode entitled “Justice,” we never learn the names of the villages living in destitution due to the policies of their absent representative, heightening the sense of impersonal interactions and isolation. In such a climate of separateness and desperation, everyone is interested in forcing a just resolution. To restore a sense of justice, the villagers resort to violence by kidnapping Senator Dagonet’s son. Dooku, when he arrives, makes his intentions clear by threatening violence when he puts his lightsaber on the table in the local tavern. Senator Dagonet similarly prepares for and uses violence by bringing soldiers with him to resolve the situation.

Moral problems, in other words, are resolved through enforcing, perhaps violently, the rights of individuals.

Similar events happen in the second Dooku story “Choices” — citizens react violently to a corrupted senator. This corruption, from the point of view of justice, means that truth, peace, and a order are threatened. But these are all impersonal values, values that do not refer to the lives of individual people, but refer to structural features of the political and social world. When Dooku laments in “The Sith Lord” that his service to Darth Sidious involves a betrayal of everyone he knows, Sidious replies, “you have been loyal to a greater cause” which suggests again the impersonal nature of a justice-oriented outlook. Furthermore, such betrayals are the price of individual freedom, the central personal value of the justice outlook. Not only has Dooku been instrumental in creating the Clone Army, hiding its origin, but he played a role in the death of his former Padawn, Qui-Gon Jinn, and is forced to kill Master Yaddle who has discovered Dooku’s betrayal. In other words, in pursuit of justice and other impersonal values, many of those close to us suffer harm.

Ahsoka Tano’s narrative in many ways is the complete opposite of Dooku’s. Instead of remaining aloof and even breaking bonds, Ahsoka’s story is about how bonds are created, strengthened, and rebuilt. Her eventual return to her calling as a protector thereby exemplifies the care outlook.

Care, as developed by Gilligan and many subsequent writers, begins with a view that individuals are defined by their relatedness and interdependence, not isolation. It notes that most of our interactions, including moral ones, involve people with whom we are familiar — friends and family.

Emotion and dialogue, not reason and violence, are the key to resolving moral conflict.

Ahsoka’s story begins not with abandonment, but with love and community in the episode “Life and Death.” The episode begins with Ahsoka’s birth, her father Na-kil, announcing to the whole village “She’s here!” and Ahsoka receiving her name from her mother Pav-ti in front of the matriarch Gantika and other women of the village. The whole opening scene, in other words, is about welcoming one into a community and immediately building bonds by sharing names and witnessing important events communally. It then moves forward a year when Pav-ti takes Ahsoka on a kybuck hunt. It is made clear by Pav-ti that this is important because the custom of the hunt connects Ahsoka with her culture and her ancestors, provides food for the whole village, and thus reaffirms the care-oriented outlook of connectedness. The events of the hunt lead Gantika to realize that Ahsoka is a Jedi and thus must leave her community of birth for a different community. This represents not a loss for the village, but a point of pride and thus a joyful, not a fearful, entry of Ahsoka into the wider galaxy.

Even though as a Jedi during the Clone Wars Ahsoka must constantly be involved in violent events, the episode “Practice Makes Perfect” is about personal relationships and growth. Instead of peace and order, it is about self-sufficiency, individual safety and avoidance of suffering. Anakin creates a skill test for Ahsoka, not against droids, but against Captain Rex and his squad. This grueling test, that it takes Ahsoka months to pass, involves Ahsoka defending herself against attacks from the clones. Anakin describes his motivation as follows:

I want this to be difficult. This is about life and death. And as your Master, I’m responsible for you. The best way I can protect you is to teach you how to protect yourself. And if you can hold off Rex and the boys, you’ll be ready for anything on a battlefield.

In other words, the motivation is born of a personal relationship, an interconnection. Its purpose is not to save the galaxy through structural peace and order, but to help Ahsoka develop so that she can be safe through her own actions. In a blink-and-you-miss-it moment, the test starts with Ahsoka using only one lightsaber. By the end of the episode she has matured in her development of the defensive Form 5 to use the two-saber Shien variant. In other words, Ahsoka has been helped by Anakin in her development into the self-sufficient Jedi we all know and love. One who, with Rex’s help, is able to survive Order 66 in a battle with a squadron of clones.

But Ahsoka did not stay a Jedi. Despite being cleared of the bombing by fellow Jedi Barris Offee in the season five of the Clone Wars, Ahsoka left due to what she felt was a violation of the relational values of trust and loyalty. She, however, maintains those values even in exile. Despite the personal danger, she attends Padme’s funeral on Naboo in the Episode “Resolve.” It is here that Bail Organa gives her a commlink to contact him if needed. In his last lines of dialogue, spoken to troopers but meant for her, he reminds her that she can’t stay isolated: “It’s easy to get lost with all that has happened. Still, we have a duty. Don’t we? An obligation to uphold, when we’re able … And if you should ever need anything, please contact me.”

But it is years before this call of obligation is heeded. Hiding out as an itinerant farm worker named Ashla, Ahsoka reveals her identity by using the force to save another worker, an unnamed girl, from injury.

Again, the theme of personal protection and concern for the well-being of other individuals is dominant in Ahsoka’ care-oriented outlook.

This reveal leads another worker to contact the Empire of Ahsoka’s existence, bringing an Inquisitor to the community to hunt her down. The result is the death of all the other farmers except the girl, her brother (the betrayer), and their father. In witnessing how her mere existence puts the lives of others in danger, Ahsoka decides to reconnect with Bail Organa. First, she wants to help the remaining farmers to safety. But also, because she realizes she can no longer remain isolated. She realizes that morality requires her to form new, meaningful relationships, or at least rekindle old ones. Thus, Ahsoka joins the budding Rebel Alliance.

Tales of the Jedi lays out concrete versions of these different approaches to morality. It expresses the justice-oriented approach through a disconnected, impersonal, male villain. This outlook leads to many negative consequences including a galactic war, all of which suggest the episodes are an argument against a justice-oriented moral outlook. But it doesn’t merely say something is wrong with this approach. It offers an alternative. Through the story of a female, non-human hero, whose life is defined by her connections to others and concerns for the embodied suffering of those others, we get an argument for the care-oriented approach to morality.

May 20, 2022December 14, 2022

Justice and Retributivism in ‘Moon Knight’

photograph of 'Moon Knight' comic cover featuring an illustration of a superhero in a jump pose with a black suit and cape

This article contains spoilers for the Disney+ series Moon Knight.

In Disney’s Moon Knight, two Egyptian Gods advocate for two very different models of justice. Their avatars, of whom the titular character is one, are the humans tasked with doing the Gods’ bidding. Konshu is the beaked God of vengeance who manipulates his avatars to punish wrongdoers. His form of justice depends on the concept of desert — people should be punished for the choices that they make after, and only after, they have made them. Throughout the series, the main antagonist, Harrow (who was, himself, once Konshu’s avatar) attempts to release the banished alligator God Ammit. Ammit has the power to see into the future; she knows the bad actions that people will perform and instructs her avatars to punish these future wrongdoers preemptively, before anyone is harmed by the bad decisions.

As is so often the case with Marvel villains, the mission shared by Harrow and Ammit is complicated.

The struggle involved between the two Gods is not a battle between good and evil (neither of them fit cleanly into either of those categories). Instead, it is a conflict between competing ideologies. Ammit and Harrow want to bring about a better world. The best possible world, they argue, is a world in which the free will of humans is never allowed to actually culminate in the kinds of actions that cause pain and suffering. If people were prevented from committing murders, starting wars, and perpetrating hate, there would be no victims. The reasoning here is grounded in consequences; the kinds of experiences that people have in their lives are ultimately what matters. If we can minimize the kinds of really bad experiences that are caused by other people, we should.

Nevertheless, viewers are encouraged to think of Konshu’s vision of justice as superior; Mark and Steven spend six episodes trying to prevent Harrowing from reviving Ammit. The virtue of Konshu’s conception of justice is that it takes the value of the exercise of free will seriously. The concept of reward is inextricably linked to the concept of praise and the concept of blame is similarly linked to the concept of punishment. People are only deserving of praise and blame when they act freely; free will is a necessary condition for praise or blame to be apt. A person is only praiseworthy for an action if they freely choose to perform it, and the same is true with blame. Ammit’s form of justice doesn’t respect this connection, and the conclusion the viewer is invited to draw is that the God therefore misses something central about what it is that fundamentally justifies punishment.

The suggestion is that retributivism — the view that those who have chosen to do bad things should “get what they deserve” — is the theory of punishment that we should adopt in light of the extent to which it emphasizes the importance of free will.

But it isn’t that simple, in the MCU or in the real world. Later episodes of the series explore the theme of mitigating circumstances, and the viewer is left to wonder: are all circumstances mitigating? In episode 5, Marc and Steven travel to an afterlife and, at the same time, through their own memories. As viewers have likely suspected, Marc has dissociative identity disorder, and Steven is a personality he created to protect him from the abuse that he suffered at the hands of his mother. In childhood, Marc and his little brother Randall went to play in a cave together and rising waters resulted in Randall’s drowning. Marc’s mother never stops blaming him for the death and takes it out on him until the day that she dies. It is clear that Marc has carried a significant sense of guilt along with him all of his life. Steven assures him, “it wasn’t your fault, you were just a child!”

The actions that young Marc took might appear to be chosen freely; he went to the cave with his brother despite the fact that he knew doing so was dangerous. Yet it does seem that Steven is correct to suggest that the inexperience of youth undermines full moral responsibility. The same is true with at least some forms of mental illness. If the trauma of Marc’s past has fractured his psyche, is he really responsible for anything that he does, either as Marc or as Steven?

The kinds of factors that contribute to who a person becomes are largely outside of their control.

No one can choose their genetics, where they are born, who their parents are, the social conditions and norms that govern who it is deemed “acceptable” for them to be, whether they are raised in conditions of economic uncertainty, and so on.

Many factors of who we are end up being largely a matter, not of free will, but of luck. If this is the case, it is far from clear that, as viewers, we should be cheering for Konshu’s model of justice to win in the end. Anger and resentment are common sentiments in response to wrongdoing, but retributive attitudes about justice often create barriers to experiencing emotions that are even more important — forgiveness, compassion and empathy. Existence on the planet is not one giant battle between good and evil; explanations for behavior are considerably messier and more complicated.

Moon Knight’s story has only just begun, and the philosophical themes promise to be rich. With any luck, they’ll motivate us to think more critically about justice in the real world. Even if we could see into the future, there are good arguments against pursuing Ammit’s strategy — it seems unfair to punish someone to prevent them from doing something wrong (the metaphysics of time are kind of sketchy there, too). Konshu’s strategy — a heavily retributivist strategy — closely resembles the one we actually follow in the United States; we incarcerate more people than any country in the world. Our commitment to giving wrongdoers “what they deserve” may stand in the way of more nuanced moral thought.

September 10, 2020April 28, 2023

Under Discussion: Law and Order, Human Nature, and Substantive Justice

black-and-white photograph of lady justice

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Law and Order.

For many, the end of this week marks the passage of a six-month period of American history characterized by throbbing dystopian existential dread. The pandemic has been the score to a dark production that, when the spotlight was hot, turned out to be a series of character studies that no one asked for nor were particularly interested in watching. With hundreds of thousands dead and millions more left with lives permanently affected by the virus, the richest among us have become much richer not just during the pandemic, but because of it, and many who were thriving at the start of this year now find themselves evicted from their homes with nowhere to go. What’s more, police brutality and systemic injustice have packed our streets with protesters demanding meaningful change. Looting and rioting have occurred, which has motivated the federal government to respond with force not just against people violating the law, but against reporters and peaceful protestors as well. Against this backdrop of chaos, the President of the United States clenches his fist and calls for “law and order.”

In Plato’s Republic, Glaucon, one of the characters in the dialogue, provides a justification for the existence of laws that paints a grim picture of human nature. He argues that being unjust is in everyone’s interest, presumably because doing so allows a person to satisfy all of their desires. However, in a world populated by other individuals possessed of strength and skill, no single individual can get away with being unjust all of the time. This is why laws are necessary. Glaucon says, “When men have both done and suffered injustice and have experience of both, not being able to avoid the one and obtain the other, they think that they had better agree among themselves to have neither; hence there arise laws and mutual covenants; and that which is ordained by law is termed by them lawful and just.” If Glaucon is right, we are all, at our core, interested in promoting our self-interest, and we relinquish our ability to do so only so that we won’t be harmed by others attempting to do the same. Without the strict enforcement of the laws, we will inevitably descend into division and outright battle with one another — it’s in our very nature to do so.

If this is the right way of viewing things, then the state is justified in acting forcefully to protect us from ourselves and from each other. The government is the only entity preventing us from tearing one another apart for our own selfish reasons. When people call for law and order, they are calling for governmental intervention against perceived danger at the hands of people who they view as scarcely more civilized than beasts. One important corollary of this kind of view of law and order is that executing the law, whatever that law might be, is just.

There are a number of serious problems with this theory regarding the relationship between law and justice. First, some laws are morally and rationally indefensible. In these cases, the cry for “law and order!” is a cry to violate rights or to bring about a worse rather than a better state of affairs. For example, when slaves that escaped from captivity were returned and punished when captured, technically demands for “law and order” were being satisfied. This example highlights the need for a more substantive account of justice according to which just laws are not just agreements between self-interested persons, but instead are designed to promote some objective good or to prevent some objective harm.

Second, this kind of demand for “law and order” doesn’t do anything to ensure fairness in practice. This is because the entities that people are inclined to describe as “beastly” and “threatening” are determined by prejudices and tribalism. Calls for “law and order” tend to be demands to prevent or punish certain kinds of crimes committed by certain categories of people — usually poor people and members of minority populations. People don’t want to see vagrancy, public intoxication, and petty crimes on their streets, but they don’t make much of a fuss about corporations violating environmental regulations in ways that endanger the health of members of nearby communities and create unsafe living conditions for future generations. People want crimes against property to be punished but aren’t up in arms about the losses people experience due to insider trading and other kinds of white-collar crime. People want populations that they view as “scary” out of their neighborhoods, but they aren’t concerned about whether individuals and institutions doing significantly more harm end up getting away with it. Corporations and men in suits don’t tend to frighten people.

People who demand “law and order” often want proportional retributive justice for the members of the groups that they find threatening. The more power, wealth, and privilege a person has, the less likely they are to be punished severely. For example, consider Felicity Huffman, a rich actress who committed fraud to get her daughter into a good college. She was sentenced to 14 days in prison. For rich people who can afford good representation, the criminal system is a revolving door — they are out before they even have time to process the fact that they were in. Privileged populations almost never face society’s most serious punishments. As Supreme Court Justice Ruth Bader Ginsburg famously said, “People who are well represented at trial do not get the death penalty.” Good representation is expensive.

At the end of the day, if “law and order” is just a social construction that people agree to protect their own interests, then the entities with the most power in society will see to it that the laws end up protecting their interests first and foremost. After all, we don’t all actually consent to the laws. Many citizens are politically disenfranchised because of their life circumstances. Representatives rarely end up actually speaking for these people.

The picture of human nature according to which we are each self-interested individuals protecting ourselves from harms caused by other self-interested individuals is psychologically impoverished. We are beings that can and do care about others. We are capable of empathy and altruism. Our criminal justice system could be a real justice system, where that term means something more than shallow retributivism. To protect the well-being and basic dignity of all people, the call should not be for “law and order!”, but for “Justice!”, which is rarely the same thing.

August 26, 2020December 14, 2022

Wildfires and Prison Labor: Crisis Continues to Expose Systemic Inequity

photograph of lone firefighter before a wildfire

As around a dozen wildfires continue to grow in California, the smoke has reached Nebraska. The two major wildfires that are occurring in Northern California are the second- and fourth-largest fires in state history. The status of Big Basin Redwoods State Park, California’s oldest, is changing daily. The oldest trees have seen many fires, but the current threat has been particularly devastating. California Governor Newsom has asked for help from as far away as the east coast of Australia in order to gather more firefighters.

Reaching out so broadly is a result of how central the issue of sufficient firefighters has become. State prison officials shared at a press briefing that due to COVID-19 quarantining and early release measures, California was unable to use its usual contingent of incarcerated firefighters during this year’s wildfire season.

The failure to address land management issues and the increasingly dire effects of climate change have led to the disastrous fire seasons both this year and in the recent past. However, the reliance on dangerous work being done by underpaid and under-protected incarcerated people in order to ensure the safety of others and conserve precious resources is a part of a systemic trend.

The US has more people in prison — in absolute numbers as well as by percentage of the population — than any other country on earth. This statistic alone should give us pause and encourage us to reflect on the purpose of isolating such a large amount of our population. But this year, our handling of the pandemic and, now, these wildfires highlights further issues with mass incarceration, beginning with the justification for imprisoning so many members of your population in the first place.

Society could be aiming at a few different goals when it takes people from society and places them in prison for violating the law. One goal might be sanctioning citizens that have “harmed” society based on a somewhat loose notion of “just deserts”: the individual has done wrong so they deserve punishment, and isolation is seen as the appropriate form of that punishment. Other justifications of incarceration as punishment are based on deterrence: by isolating someone who violates the law, we hope to make it less likely that this person or others — who are aware of the incarcerating policy — will do so again in the future. Incarceration could also be construed as means to rehabilitate someone who has not performed to the standards that the law suggests society deems necessary. In this case, the isolation is supposedly meant to be a constructive time to become able and willing to conform to societal standards more adequately in the future. Finally, incarceration could be a way of isolating someone from society to prevent further harm. (A version of justice that doesn’t fit this model is “restoration,” which focuses on the effects of violating a statute and allows those harmed by the violation to initiate a process where there is opportunity to share concerns, make amends and future plans, and potentially forgiveness, in hopes of healing the part of society that was in fact impacted by the violation).

Most regard the standards for our penal system to be a mix of these goals. A prison sentence might make sense as a mix of deterrence and rehabilitation in a particular case of sentencing, or in the mind of a particular legislator. When considering the labor that those who are serving sentences in prison perform, however, the justification for their punishment plays a crucial role in determining what conditions are appropriate.

Those in favor of the starkly different working conditions for non-incarcerated employees and prison labor use a variety of explanations. Appeals to the need to maintain facilities and rationale of providing job training for people who eventually will “reenter society” are the strongest justifications for employing incarcerated people. However, from these considerations, the working conditions and pay structure that exist today in US prisons do not follow. From the justifications for incarceration as a form of punishment, it is unclear why the human rights protections that guarantee safe working conditions and fair wages would be forfeited along with the freedom of movement that the punishment itself constitutes. For rehabilitation purposes, working while in prison can aid the transition once released, but differentiated pay scales and lax safety protocols appear punitive and demand human rights attention. For the retributive (“desert”) model, the presumption that someone deserves worse or inadequate working conditions on the basis of being incarcerated would need to be considered along with their original sentencing.

Further, the working conditions and wages that make up the structure of prison labor create a market designed to exploit the incarcerated. People in government-run correctional facilities perform jobs that are necessary for the prison to function, but do so without labor protection or the possibility of unionizing. And they do so for a fraction of what those performing the same tasks outside of prisons would earn. As a prison laborer, often the guarantee of safe working conditions simply does not apply.

The disparities in pay and working conditions for incarcerated employees creates an exploitative market, where prisons are incentivized to keep costs low and private businesses can reap great benefit. This economic structure does not simply exploit a marginalized incarcerated population, but, given the structural racism in the US justice system, further imbalances racial inequalities in a society already saturated by racist institutions.

Further, there are a variety of incarcerated employees who perform manufacturing jobs outside the prison, manufacturing products that are sold to government agencies and corporations. This work can include answering calls in a phone bank, constructing furniture, warehouse work, farm work, and, in California, front-line firefighting. The fire season and the pandemic have laid bare the living and working conditions in our prisons.

Throughout the pandemic, the cramped living conditions and poor quality of healthcare have put prisons at particular risk of experiencing a COVID-19 outbreak. Calls to attend this heightened danger have been neglected throughout the national emergency. In California, the nature of the pandemic has led to shutdowns across many of the prisons, making the incarcerated firefighters unable to respond to fires.

What this has meant for this record-breaking year in California is that they cannot rely on the state’s “primary firefighting ‘hand crews.’” According to the Sacramento Bee, “Inmate crews are among the first on the scene at fires large and small across the state… Identified by their orange fire uniforms, inmates typically do the critically important and dangerous job of using chainsaws and hand tools to cut firelines around properties and neighborhoods during wildfires.”

The owners of the prisons actively market their workers to private businesses, emphasizing the low wages their employers would be able to pay, how many have “Spanish language skills,” and how this labor pool is one of the “best kept secrets.”

In 2018, there was a three-week nationwide strike over the work conditions in prisons. Prisons are paying incarcerated people less today than they were in 2001. Prison jobs are unpaid in Alabama, Arkansas, Florida, Georgia, and Texas, and maximum wages have been lowered in at least as many states. Further, in many states the wages that incarcerated employees earn do not accurately reflect “take-home” pay; prisons deduct fees (like garnished wages) for what prison laborers have cost them during their stay. Because it costs money to incarcerate people, the claim goes, their wages should contribute to the running of the prison. As Vox reports, “Most prisons also deduct a percentage of earnings to help cover a prisoner’s child support payments, alimony, and restitution to victims. But at 40 cents an hour, that seems impractical.”

There is no getting around the fact that hiring incarcerated employees is a cost-saving measure. It’s estimated that the “Conservation Camp Program, which includes the inmate firefighters, saves California taxpayers tens of millions of dollars a year. Hiring firefighters to replace them, especially given the difficult work involved, would challenge a state already strapped for cash.” As the Managing Editor at Prison Legal News told Newsweek, “Prisons cannot operate without prison labor. They would simply be unaffordable.” So, incarceration in its current state requires exploitation and unethical labor practices that we wouldn’t accept outside of prisons, and are inflicting disproportionately based on systemically racist institutions.

There is also the option that doesn’t seem to get enough attention: If incarceration costs so much, wouldn’t it be cheaper to have less incarceration?

July 20, 2020December 14, 2022

To Requite, To Restore, or To Deter: Punishing Amy Cooper

photograph of empty courtroom from Judge's perspective with gavel in foreground

On May 25, Amy Cooper called the cops on Christian Cooper after he asked her to leash her dog in Central Park. Video of their interaction sparked further debate about racial bias and police brutality, and also led to the renewed pressure to pass a NY State bill banning race-based 911 calls. Amy Cooper was fired from her job, had her dog temporarily confiscated, personal history exposed, and became a household name as one of the many faces representing the white “Karen” complex. She released a subsequent apology in The New York Times, but also immediately hired a defense attorney when she was officially charged with filing a false police report. However, on July 14, Christian Cooper announced he would not be cooperating with Manhattan District Attorney’s Office. In an opinion piece in The Washington Post, Cooper concluded that he must “err on the side of compassion and choose not to be involved in this prosecution.” His announcement shocked many and raises further questions about the purpose of punishment and the criminal justice system at large.

Why should we punish “bad actors?” Is the purpose of criminal law to deter crime, to punish perpetrators, or something else? And should prosecutors listen to victims when deciding whether to pursue charges?

Within the theories law and punishment, there are two major answers to the question of the purpose of criminal law: retribution and deterrence. The retributive approach to punishment and criminal justice is the belief that people who do the crime, should serve time. Under retributive theory, perpetrators should be punished regardless of the future consequences. Retributivists believe that the goal of punishment is ultimately to give people what they deserve. Retributivism therefore is inherently backward looking in its justification of punishment. The utilitarian approach to punishment, however, purports that the purpose of punishment is to deter future crime, both by the perpetrator and potential future bad actors. The goal of deterrence-based punishment is positive outcomes for society as a whole, and it is inherently forward-looking in its justification and goals. Both of these approaches to punishment can be used to answer whether or not Amy Cooper should be prosecuted.

In his explanation, Christian Cooper concludes that neither the retributive nor the utilitarian approach to punishment logically justifies Amy Cooper’s prosecution. In terms of retribution, Christian believes that Cooper has already gotten what she deserves. He explains that he believes “in punishments that are commensurate with the wrongdoing.” Cooper sees Amy losing her job and reputation as sufficient punishment for her crime, and even suggests she has little more to lose. He also argues there is little to be gained by punishing Amy Cooper further since the issue of racial bias against black and brown folks is a “long-standing, deep-seated racial bias” which “permeates the United States” and cannot be solved through one symbolic prosecution. He believes that charging Amy Cooper not only does little to solve the racial bias but may in fact cause a different problem because it “lets white people off the hook” from more deeply examining the ways in which they engage with and perpetuate racism. As Cooper explains, “They can push for her prosecution and pat themselves on the back for having done something about racism, when they’ve actually done nothing.” Cooper also points out that the social consequences of her actions might serve as the ultimate deterrence to many. He contends that, “if her current setbacks aren’t deterrent enough to others seeking to weaponize race, it’s unlikely the threat of legal action would change that.” Prosecution is no guarantee of securing positive consequences; it will not deter others who fail to see themselves as holding racial bias. In fact, Cooper argues, there is the potential for her prosecution to backfire and contribute to the continued apathy and unprobed racial bias of white people.

While Christian Cooper believes prosecuting Amy Cooper isn’t justified on retributive or consequentialist grounds, his sister Melody Cooper has a different perspective. In a recent tweet she explains that she believes that the potential for deterrence is simply too beneficial to ignore. Melody agrees with her brother’s argument that policing must change, she also believes that because “People are getting hurt and killed in the meantime” that “if there’s a chance to send a message to other white women they can’t and shouldn’t put black people at risk in this way, it should be done.” To Melody, and those who agree with her, the potential deterrence generated by prosecuting Amy Cooper outweighs all else. She references the very real consequences of interactions between Black people and the police, and the phone calls that precede them. Melody clearly favors the traditional utilitarian approach to punishment in which deterrence and positive outcomes are the highest goal of the criminal justice system.

While Melody and Christian clearly disagree on Amy’s prosecution, another question still remains: should the prosecuting attorney take Christian Cooper’s perspective into account when deciding whether to pursue charges? Neither retributive nor utilitarian approaches to justice necessitate acknowledging the victim’s perspective in determining punishment. However, there is another theory of criminal justice which would center Christian’s perspective and cooperation as the victim of a crime: restorative justice. This approach aims neither to produce the best outcomes nor to give perpetrators what they deserve, but rather intends to repair the harm caused by crime. In a restorative justice system, Christian Cooper’s desire for Amy Cooper not to be sentenced would hold far greater weight than in a retributive or utilitarian system. An article in The Indypendent by Kiara Thomas argues that a restorative justice approach would be the best approach in this situation, since it is not only about harm caused between two people, but represents larger harms such as racism, police violence, and white privilege. This approach might also address the issue of deterrence, since restorative justice has been shown to decrease the likelihood of repeat offense on the part of perpetrators.

Amy Cooper’s first court date is October 14. Despite Christian Cooper’s lack of cooperation, experts predict Amy Cooper will still be successfully prosecuted due to the stark video evidence against her. Whether or not this is immoral depends on what one views the purpose of criminal law to be: to requite, to restore, or to deter.

April 1, 2020December 14, 2022

Re-Thinking Mass Incarceration: COVID-19 in Jails and Prisons

photogaph of barbed wire around prison building

More people per capita are incarcerated in the United States than in any other country in the world—698 out of every 100,000 people are currently incarcerated. Many jails and prisons in the United States are overcrowded. This means that the number of people they have detained exceeds their safe carrying capacity both in terms of space and resources. As the COVID-19 threat intensifies, people across the planet are being strongly encouraged, and in some cases ordered, to stay at home and to practice social distancing. This advice is impossible to follow in a jail or a prison, especially one that is overcrowded. At the time of this writing, hundreds of inmates and prison staff have tested positive for COVID-19.

Conditions in jail and prison are far from ideal for preventing and responding to infectious disease. To fight the spread, people are being asked to wash their hands regularly. Detention facilities are often set up in such a way that regular hand washing is not easy. In many institutions, hand sanitizer is considered contraband because of its high alcohol content. Inmates found in possession of it face disciplinary action. The same bathrooms are used by many people, and toilet paper and tissue are limited. To complicate matters, healthcare services in detention facilities are often shorthanded and of poor quality. These elements of detention environments create extremely unsafe conditions not only for incarcerated people, but also for staff at those institutions.

In response to these concerns, authorities at both state and federal levels have ordered the release of incarcerated individuals. On March 27th, Attorney General William Barr directed the Federal Bureau of Prisons to release some of their prisoners that are sick or elderly, depending on the nature of their crimes and their record of behavior while incarcerated. He asked federal prisons to consider whether confinement at home might be the best option for these prisoners.

State systems are also taking steps to reduce the number of prisoners at their facilities. For example, in Utah, prison officials are expected to release at least 80 inmates by Thursday, April 2nd. They are focusing their attention on people whose parole or release dates were set to take place in the next few months.

The COVID-19 crisis in United States detention facilities highlights a troubling fact about the criminal justice system in the United States. Across the country, 555,000 people are detained in prison who have been arrested but not convicted of any crime. What’s more, 25% of people in jails are being held for low-level offenses like jaywalking or sitting on the sidewalk. The average cost of bail in the United States is $10,000, and those who remain in jail until their trials are people who cannot afford to pay that bail. In the current context, the result is that poor people who are arrested but who have not yet had their day in court are forced to remain in an environment in which social distancing is impossible. Many of these people may well be innocent of the crime for which they are accused.

Some states are taking preventative action to reduce the number of people being held in jail during the COVID-19 emergency. For example, in the case of misdemeanors, officers across the country are being asked to give citations rather than make physical arrests.

Critics of the decision to release inmates argue that, at the very least, victims of accused or convicted persons should be made aware of the release before it happens. After all, in at least some cases, the released individuals might pose a threat to the person they victimized. Some argue that victims have a right to secure conditions in which they feel safe before inmates are released. One ready response to those that have these concerns is that most of the people who are being selected for early release are non-violent offenders, or offenders who for reasons such as age or infirmity are unlikely to perpetrate a violent crime upon release.

Many applaud the decision to release incarcerated individuals but are concerned that the process isn’t moving anywhere near quickly enough to prevent the spread. The delay that notification of victims would cause could make the situation much worse.

Others are concerned that release of convicted criminals and those arrested under suspicion of committing a crime is a miscarriage of justice and may constitute a significant threat to public safety. A pandemic doesn’t nullify the crimes that were committed, and criminals shouldn’t get off easy because we’re going through an international emergency.

In response, some argue that this line of thought expresses a purely retributivist attitude toward criminal punishment. This attitude is tremendously common in the United States, but there are good reasons to think that it is misguided. In an ideal world, our response to criminal behavior shouldn’t simply be to put offenders in prison and throw away the key; instead it should be guided by more holistic and evidence-based considerations about what would be best both for the offender and for society at large. People who commit crimes are still human beings deserving of moral consideration and concern.

People who commit crimes do so with full awareness that there might be legal consequences. That said, the decision to commit a crime does not translate into a decision to be locked up in close quarters with people who carry a deadly infectious disease. No person deserves that; it’s inhumane. If all goes well, we’ll deal with the spread of COVID-19 in jails and prisons as best we can. Going forward, we are morally obligated to take preventative and proactive measures for dealing with this kind of thing in the future, knowing full well that prison populations are hotbeds for the spread of infectious disease.

Finally, our response to COVID-19 highlights something significant about criminal justice policy in this country—mass incarceration is not a practical necessity. There are steps that we can take to incarcerate fewer individuals. We know this because we are currently taking those very steps. This pandemic has the potential to teach us many lessons. With any luck, it will cause our culture to be more reflective about our incarceration practices.

November 19, 2019December 14, 2022

Cruel and Unusual Reasoning? Some Recent SCOTUS Decisions on the Eighth Amendment

Yellow and white corridor with metallic doors of cell rooms in old prison

Between October 2 and October 24, 2002, ten people were killed and three others injured by John Allen Muhammad and Lee Boyd Malvo. This series of attacks, referred to as the D.C. Sniper Attacks, were executed within the I-95 corridor around Northern Virginia, Baltimore, and Washington, D.C. While John Allen Muhammad was executed by lethal injection in 2009, Lee Boyd Malvo was sentenced to life without parole in Virginia and six life sentences in Maryland.

Malvo, however, is now appealing his Virginia life sentences in the Supreme Court of the United States (SCOTUS), relying on that court’s 2016 ruling that recent constitutional bans on mandatory life-without-parole sentences for juvenile offenders are to be applied retroactively. The constitutional ban on such sentences was itself enacted in 2012 as an extension of a 2010 ruling that found mandatory sentences of life without parole for juvenile offenders to be in violation of the Eight Amendment ban on cruel and unusual punishments.

The SCOTUS ruling that mandatory sentences of life without parole, as well as death sentences, constitute cruel and unusual punishment for juvenile offenders, but is not cruel and unusual in general, brings up an interesting question: What does the court consider cruel and unusual? We should also ask, regardless of the SCOTUS opinions on the matter: What do we consider cruel and unusual?

Death sentences are not generally held to be cruel and unusual by the SCOTUS, nor is a death sentence held to be cruel and unusual even in instances when the sentenced person may suffer tremendously. In Bucklew v. Prescythe the court ruled that Russell Bucklew could not demand his death sentence be executed via gas chamber instead of Missouri’s standard pentobarbital lethal injection. Bucklew requested an alternative means of execution due to a rare condition he has which could cause him to drown in his own blood during execution. However the majority opinion, delivered by Justice Neil Gorsuch, argued that the State of Missouri’s interest in concluding pronounced legal sentences in a timely manner outweighed Bucklew’s claims. More specifically, the court stated that Bucklew’s case did not meet the standard set by the so-called “Baze-Glossip test,” which requires that an appeal identifies an available and easy alternative execution method that is very likely to ameliorate what would otherwise be significant suffering.

The court struck a seemingly different tone in Hudson v. McMillian when they opined that a prisoner being beaten by a guard may count as cruel and unusual punishment, even when the prisoner does not suffer lasting injuries. Justice Sandra Day O’Connor, writing for the majority, stated that it was not only the extent of a prisoner’s injury and suffering that mattered, but also the attitude with which the punishment was inflicted by state agents. Despite the apparent differences between the decisions in Bucklew v. Prescythe and Hudson v. McMillian, there is a common thread. Writing for the majority in Bucklew, Justice Neil Gorsuch argued that the mere fact of significant suffering on the part of inmate did not automatically make a punishment cruel and unusual. Rather it is whether the inmate’s suffering is directly intended by the agents of the state. In two separate decisions the attitude of state agents was the predominating consideration over the extent of a prisoner’s suffering.

In the case of death sentences and mandatory life without parole for juveniles, however, the court’s reasoning is that such punishment is cruel and unusual. The 2010 decision in Graham v. Florida stated that sentencing juveniles to mandatory life without parole for non-homicide crimes is cruel and unusual because it doesn’t allow any possibility of releasing convicted people, even when they have demonstrated a commitment to their own rehabilitation. This reasoning was extended to juveniles convicted of homicide in the 2012 Miller v. Alabama ruling. Hence the state of SCOTUS opinion at present is that it is cruel and unusual to foreclose on the possibility that a juvenile offender may reform enough that they should be considered for parole; but that it is not cruel and unusual for an offender to be executed in a fashion that may cause extreme suffering; but that it is cruel and unusual for an offender to be beaten in a way that does not cause lasting injury. Can these views be squared with each other?

To probe this question it is helpful to look at two prominent theories of punishment: utilitarianism and retributivism. The utilitarian theory considers the advisability of punishing a particular offense, or type of offense, in terms of the balance of social benefit to social harm. Questions about whether a punishment will sufficiently deter, incapacitate, or rehabilitate an offender are balanced against the needfulness, efficiency, and cost of that punishment. A punishment may be considered cruel and unusual under such a theory if the social costs outweigh the benefits. For example, sentencing minor offenders to death would greatly erode general freedom and the populace’s acceptance of the legal system. Punishing thieves by chopping off their hands may be effective, and people might even accept it, but less harsh punishments could achieve the same effect. Marijuana possession may be against the law, but it may not be worth trying to deter people from obtaining and using the drug.

Retributivist theories, on the other hand, focus on the concepts of moral desert and fittingness. That is, ensuring that punishments are proportional to offenses. In such theories the concern is more that offenders get what’s coming to them, rather than balancing benefits and detriments to society. In the extreme a retributivist theory promotes the idea of “an eye for an eye.” Hence a person who has killed someone may themselves deserve to be killed. However pronouncing a death sentence for forgery or speeding is not fitting—not proportional—to the offense. Under a retributivist theory a punishment would be cruel and unusual if it were grossly out of proportion to the offense.

In the few cases noted above, clear signs of the utilitarian view are manifested in the state of SCOTUS opinion on capital punishment. In cases like Lee Boyd Malvo’s, the court brings to bear considerations of whether a sentence allows for the possibility of rehabilitation, even when that sentence clearly fulfills deterrent and incapacitating purposes. At the same time cases like Russell Bucklew’s show that the court is also concerned with cost and efficiency. Whether a punishment is cruel or unusual turns out to be a function of a calculation balancing numerous different values. If the final tally in the eye of the court seems out of balance, even grossly so, the example of weighing a variety of factors and decided on a case-by-case basis is a good one.

October 14, 2019December 14, 2022

The Murder of Botham Jean and the Ethics of Forgiveness

On Tuesday October 1, 2019, Amber Guyger was sentenced to ten years in prison for the murder of Botham Jean. Guyger, a former Dallas, TX police officer was off-duty and shot Botham in his own home. She claims to have mistaken his apartment for hers and, believing him to be an intruder, shot Botham. At her sentencing Botham’s brother, Brandt, announced that he forgave Guyger for her crime, and proceeded to hug her in court.

Brandt Jean forgiving his brother’s killer occasioned critical remarks. People argue that Brandt Jean, and other black victims forgiving white attackers, are systemically coerced into forgiveness because public anger from black people and communities is not acceptable to white society. Likewise people argued that Brandt Jean’s forgiveness does nothing, and signifies nothing, about the large-scale problem of violence and discrimination against black people in the justice system of the United States.

What exactly is forgiveness and under what conditions is it appropriate to give it? To answer this it is helpful to look at three separate answers: that forgiveness can be obligatory, that forgiveness can be forbidden, and that forgiveness is always optional. What would it mean for the Jean case for any one of these answers to be true? If forgiveness can be obligatory under some conditions, then what needs to be determined is whether those conditions obtained in the Jean case. If forgiveness is forbidden then Jean’s forgiveness might be inappropriate. Of course, if forgiveness is optional then it is entirely up to Jean whether he decides to forgive Guyger or not.

One prominent tradition committed to an obligation (under certain circumstances) to forgive is the Talmudic scholarship of the philosopher Maimonedes. In the Mishneh Torah he argues that forgiveness is required when the person who has done wrong is sincere in their contrition, has made amends, and has asked for forgiveness. In the Jean case, Guyger expressed regret in court for killing Botham and will begin serving her sentence soon. These two facts make at least a provisional case that she qualifies under Maimonides’ criteria: that is, that those who Guyger has wrong are obligated to forgive here. Botham’s brother himself expressed a sentiment similar to the criteria in the Misneh Torah saying, “If you are truly sorry—I know I can speak for myself, I forgive you.” Moreover he expressed the wish that Guyger not serve any jail time at all. This is an act of what Maimonides calls mechilah, which is forgiveness is the sense of removing a debt.

Importantly, Brandt Jean’s statement implies that there are more people from whom Guyger needs to seek forgiveness. He speaks only for himself, and he was not the only one wronged. The Talmudic tradition is clear that a wrongdoer must seek forgiveness from each and every person that they have wronged. Moreover most views of forgiveness agree that only those who were wronged are in a place to forgive in the first place, meaning that forgiveness is a fundamentally interpersonal thing. This touches on an aspect of many critical remarks surrounding Jean’s forgiveness of Guyger. It should not be mistaken as general absolution for the pattern of police violence against black people, nor put forward as a model of how all victims of police violence should behave. Forgiveness, even if it can be obligatory, is a case-by-case thing.

An alternative to the sort of response found in Maimonides comes from the Roman Stoic philosopher, Seneca. He argues that if a person’s deeds are genuinely worthy of punishment or incurring a debt then to forgo that punishment or debt is unjust. As such Seneca would vehemently object to Brandt Jean’s expressed wish that Guyger not face any jail time at all. Guyger’s action is clearly one that is genuinely worthy of punishment: she killed Botham in his own home. Seneca would view as more apt the reaction of Botham Jean’s father, Bertrum Jean, who said that though he forgave Guyger he wanted to see her receive a longer sentence. This expresses a different form of forgiveness, what Maimonides refers to as selichah. This is, rather than removing a debt, expressing an understanding of the wretchedness of a wrongdoer and their situation. However, this is not the form of forgiveness that is obligatory in Maimonides’ view—only mechilah can be obligatory. Selichah remains optional but represents a significant moral achievement on the part of the forgiver.

Viewing forgiveness as an optional, but laudable, achievement is to say that forgiveness is a supererogatory act: that is, an act which is morally good but not morally required. The paradigmatic supererogatory act is something heroic—jumping in front of a bullet, for example. When someone does something supererogatory they have “gone beyond the call of duty.” The concept of selichah Maimonides puts forward fits the bill, and generally it’s clear why forgiveness might be treated as supererogatory. Just as it would be overly demanding to require people to risk their lives to save strangers, it would be overly demanding to require a person to forgive someone who caused them tremendous harm or trauma. If a victim can bring themselves to forgive a person who has ever wronged them—as is the case with the Jean family—this could be seen as a sign of a honed moral sensibility and significant effort.

If there are any grounds for thinking Brandt Jean’s forgiveness of Amber Guyer is inappropriate, it could only be that it is unjust to let deserving offenders go unpunished. While Bertrum Jean’s statements are unexceptionable on any of the views of forgiveness presented here, the critical remarks concerning the whole episode also ring true. In the end, as forgiveness is an interpersonal phenomena, no general lessons or absolution are in the offing.

September 4, 2019December 14, 2022

Should We Celebrate the Death of an Enemy?

photograph of unmarked headstone in cemetery

David Koch, one of the infamously influential and wealthy Koch Brothers, died on August 23, 2019. He and his brother, Charles, used the wealth and influence built through Koch Industries to fund Americans for Prosperity. This organization championed fiscally conservative causes like cutting taxes, defunding certain welfare programs, and deregulating industries. It also advocated for socially conservative causes like restricting abortion, impeding the expansion of LGBTQ rights, and funding programs that deny the scientific consensus on climate change. They achieved significant success in their aims through the influence of so-called “dark money” – funding spent by non-profits groups in support of political causes, the sources of which do not have to be disclosed in official reporting.

His death was met with celebration by some, notably talk show host Bill Maher. He said, “I’m glad [Koch]’s dead, and I hope the end was painful.” Maher’s remarks drew criticism from right-wing commentator Sean Hannity, who responded, “The guy you’re talking about and his wife donated $1.3 billion to charity. Until you do that, just keep your big mouth shut.” A tweet by philosopher Rachael McKinnon, on the other hand, argued for the moral permissibility of sentiments in a similar vein to Maher’s. Specifically she argued that it is morally permissible to be happy when a person who has caused extensive harm dies of natural causes. (McKinnon did not address the permissibility of hoping that an evil person should suffer, however.) Are sentiments like Maher’s morally permissible, or is it wrong to celebrate the death of those who are responsible for extensive harm, destruction, or death?

This is not a new question, and is one which has been in the news within recent memory. In 2011, when Osama bin Laden was killed by United States military forces in Pakistan, there was cheering and celebration on the streets in parts of the United States. This reaction set off a series of articles asking the question: were those celebrations morally appropriate? National Public Radio (NPR) news had quotes and interviews from both philosophers (Christine Korsgaard) and members of religious communities (Arsalan Iftikhar and Shmuel Herzfeld) weighing in generally on the side of a negative answer. They argued that celebration is not a morally acceptable response to anyone’s death—not even when the person who died was in large part responsible for actions and institutions which have caused a great deal of harm, destruction, and death.

However, they did indicate that some positive attitude short of celebration may be appropriate. Iftikhar and Herzfeld agreed that relief and gratitude were appropriate attitudes in response to the death of Osama bin Laden. This is in-line with McKinnon’s assertion in her tweet. It can be morally permissible to have some sort of positive attitude about the (impending) death of an enemy. But Korsgaard warned that there is a danger of conflating satisfaction at the defeat of an enemy with slaking a thirst for retribution: “If we have any feeling of victory or triumph in the case, it should be because we have succeeded in disabling him — not because he is dead.”

Retribution is a prominent concept in the discussion of justice. The idea that justice can be achieved through the application of appropriate punishment is called retributivism. It is embodied by statements like, “The punishment should fit the crime.” Those who do wrong deserve to have punishment inflicted on them, and it is good for wrongdoers to get what they deserve. This view can provide a basis for the idea that it is morally appropriate to have and express positive sentiments about a person suffering, provided that their suffering was proportional to their wrongdoing and was the specific result of punishment for that wrongdoing. It is only the context of punishment which makes suffering, an otherwise universally bad thing with negative moral value, a good thing with positive moral value.

Here is where at least Maher’s sentiments fall short of moral propriety. Koch died of natural causes, which cannot be considered punishment without endorsing very specific notions of something like divine justice or karma. Further, returning to Korsgaard’s quote above, there is no sense in which Koch’s death will impede the harm caused by the organizations Koch Industries funds—that is, David Koch was not in anyway “defeated”. All that is left to say about the view is that it approves of something which shouldn’t be approved of—the suffering of another person. McKinnon doesn’t go as far approving of another person’s suffering. Her view about Koch’s death is more along the lines of what Iftikhar and Herzfeld said about bin Laden’s death. When a person who has caused a great deal of harm, destruction, or death dies, feeling some measure of relief is acceptable.

August 15, 2019December 14, 2022

Determinism and Punishment

One summer evening, a friend and I tackled the question of free will and all that it entails. Do we have free will? If we do, how do we know do? If we do not, what are the implications for social and legal norms? My friend, who argued against the existence of free will, posited a scenario in which he was “molecule for molecule” a violent criminal, asking me if he could have chosen to act differently than the violent criminal.

The immediate reaction might be, “No.” How could he have? But this rhetorical device, used by Sam Harris to disprove the existence of free will, is not entirely helpful. It does not prove that we cannot freely choose; it merely shows that if you were “molecule for molecule” someone else you would make the same choice that they made, which is self-evident. It reveals nothing about what you could have done, nor anything about the choices available to you and your ability to choose.

But suppose my friend is correct and we do not have free will. This view coincides with the philosophical doctrine of determinism. Writing for the Stanford Encyclopedia of Philosophy, Carl Hoefer defines determinism as the philosophical belief that “given a specified way things are at a time t, the way things go thereafter is fixed as a matter of natural law.” In other words, a violent criminal such as Davis Bradley Waldroup, Jr. could not have acted differently.

Waldroup engaged in acts of undeniable brutality. An article in The New Statesman describes how he shot his wife’s friend eight times with a rifle before attacking his wife. Waldroup shot her, maimed her, bludgeoned her with a shovel and a machete, and attempted to rape her before she managed to escape. Yet Waldroup was only found guilty of voluntary manslaughter, kidnapping, and attempted murder, partly because his defense team successfully argued that Waldroup possessed a genetic predisposition to violence, preventing him from engaging in the judgment and reflection required for premeditated crimes (for a similar case see Meredith McFadden’s “‘It Wasn’t Me’: Neurological Causation and Punishment“).

Warranted outrage followed from the families of the victims when he was sentenced to a mere 32 years in prison. Waldroup’s wife said the sentence “was not justice.” Many would agree that the punishment was not equivalent to the severity of his wrongdoing; it was not the punishment he deserved. But if Waldroup did indeed possess a violence gene and thus, no free will in this situation, how can we even conceptualize what he deserves? Determinism renders the sentiment “He did not get what he deserved” meaningless and irrelevant. And that is not all.

The most fundamental structures in our daily lives are based on the belief that we are free to choose how to act. While we seek and discover external factors (be they biological or environmental) that influence a person’s decision or even the external factors that brought the individual to a moment of choosing, these explanations do not contradict our conception responsibility. Without the foundation of free will, even the relevance of morality becomes suspect. Either morality cannot exist because people cannot choose to do something right or wrong OR it is already determined that one person will act morally good or morally bad.

Adopting the view that free will does not exist would require a near-revolutionary reform of our justice system. As Luis E. Chiesa of Pace Law School notes, “It is because of this uniquely human capacity to choose to do otherwise that humans can and should be blamed for their crimes.” Our current system, for all of its failings and imperfections in practice, is based on a consort of factors: rehabilitation, deterrence, public protection, retribution, and proportionality of the punishment to the crime. A new justice system capable of accommodating determinism would need to be based not on retribution or what the lawbreakers deserve, but rather solely on concern for public safety, deterrence, and rehabilitation.

Some may wonder how rehabilitation could be retained under this reformed justice system. Is it possible to rehabilitate someone’s behavior if it is determined? It is a worthy criticism. Yet it is possible that some determinists could argue that just as an animal, whose behavior is determined by their nature, can be trained to act in a certain way, a human can be rehabilitated, or trained to behave in a less dangerous way.

Forms of incapacitation, such as incarceration, would exist merely as a means of protecting the public from violent criminals. Lawbreakers who are not violent, such as those who evade taxes, for example, would not need to go to prison as they pose no threat to the safety of the public. Instead, they would need to, if possible, rehabilitate their evasive ways so that they refrain from committing the act again. The only purpose of any other form of legal punishment would be to deter individuals from breaking the law.

Suppose Waldroup’s violent behavior was altered after one day of rehabilitating in prison and he would never again attempt to brutalize another human being. Should he be punished further than the one day in prison for his previous acts of murder and assault? Troubling as it may be, the determinist would say, “No.”

Why should he? His behavior has been changed, he no longer poses a threat. Like a dog who has learned not to pee inside, Waldroup has been trained to no longer behave in that unacceptable and dangerous way. And given that he did not freely choose to kill one woman and severely injure another, the purpose of punishing him is nullified. He deserves nothing because he controls none of his decisions.

Even the well-known determinist Sam Harris points out, “Without free will, sinners and criminals would be nothing more than poorly calibrated clockwork, and any conception of justice that emphasized punishing them (rather than deterring, rehabilitating, or merely containing them) would appear utterly incongruous.”

If free will is an illusion, although I am inclined to believe it is not, there is demonstrable value to living under that illusion. The idea that you and I have control over our actions affects the way we behave and structures the nature of our interactions and relationships. We expect and hope for certain behaviors to be exhibited by the people in our lives. We express disappointment in others when they have done worse than they should have because we believe they could have done better. Just as we express pride or happiness in others when they have done better than they should have because we believe they could have done worse. But blame and praise is utterly irrelevant if you believe others could not have done anything other than what they did.

Let me live under the illusion that I freely chose to write this op-ed and I will let you live under the illusion that you freely chose to read it. And we can both go back to agreeing that some people do not receive the punishment they deserve.

February 25, 2019December 14, 2022

Death by State? The Country Discusses Abolition of Capital Punishment

Many Netflix viewers in recent weeks have familiarized themselves with the details of a set of notorious crimes committed by a criminal executed by the state of Florida in the 1980’s. The Ted Bundy Tapes tells the story of the life and crimes of Theodore Robert Bundy, a depraved serial killer who raped, tortured, and killed women and engaged in necrophilic acts with their bodies. A case like Bundy’s is just the kind of case that motivates supporters of the death penalty in their arguments for the claim that capital punishment is a moral necessity.

The series includes footage of the day Bundy was executed. Thousands of people celebrated outside of Florida State Prison. Street vendors sold electric chair lapel pins and t-shirts that read “Burn Bundy burn!”—a phrase that the crowds chanted at fever pitch while setting off fireworks nearby. Spectators held signs scrawled upon with phrases like “Toast Ted!” and “Crank up Old Sparky!” When asked about the spectacle, Bundy replied, “They’re crazy! They think I’m crazy, listen to all of them!” The scene was not unlike the one that Charles Dickens described witnessing at the execution of François Courvoisier in 1840: “No sorrow, no salutary terror, no abhorrence, no seriousness; nothing but ribaldry, debauchery, drunkenness, and flaunting vice in fifty other shapes … It was so loathsome, pitiful and vile a sight, that the law appeared to be as bad as he, or worse.”

These cases motivate reflection on the role that emotion plays in this most severe of punishments. Emotions spike in response to acts of senseless violence and depravity. If this happens at the level of community spectators, might there also be intense emotion in place at other stages of the criminal proceedings? What level of emotion is appropriate? What kind of emotion is appropriate, and directed toward whom? It may be that moral judgments always involve a certain amount of sentiment. Indeed, some moral philosophers have argued that moral judgments are nothing more than expressions of sentiment. On the other hand, it is uncontroversial that emotions sometimes cloud our better judgment. What’s more, not all emotions are created equal, and empathy may well count for much more than anger.

Public support for the death penalty has diminished significantly over the years, with rates of approval dropping from 80 percent in the 90’s to 56 percent as reported by Gallup in 2018. In the past year, several states have considered repeal of the death penalty. In 2018, abolition was considered by Washington, Utah, New Hampshire, and Louisiana. In 2014, the governor of Washington, Jay Inslee, imposed a moratorium on the death penalty in the state, claiming that its inconsistent and unequal application made retaining the form of punishment morally and legally indefensible. In October of 2018, the Washington Supreme Court ruled that the death penalty, as applied in the state of Washington is arbitrary and capricious and racially biased, and that as such it is inconsistent with Article I, section 14 of the Washington State Constitution. The court made use of a study produced by researchers at The University of Washington titled “The Role of Race in Washington State Capital Sentencing 1981-2014”. The study concluded that “black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.” Earlier this month, the Washington State Senate reinforced the reasoning of the court when they passed a measure to repeal the death penalty. The bill now advances to the House. On February 14 of this year, the proposed repeal of the death penalty in Wyoming failed in the Senate.

The United States has been engaged in a conversation about issues related to state-sanctioned killing as punishment for as long as the nation has existed. Recently, arguments for repeal have focused on racial bias, cost, the proper relationship between the government and its citizens, and the possibility of executing innocent people. Since the reinstatement of the death penalty after a national moratorium in 1973, 165 death row inmates have been exonerated.

One of the central arguments in support of the death penalty has to do with retributive justice—a moral commitment to make sure that a criminal “gets what they deserve.” According to this argument, some crimes—like those that Bundy committed—are so heinous that the perpetrators deserve to lose their lives as punishment. On this view, the death penalty is a basic requirement of justice. One of the primary moral obligations of a state’s criminal justice system is to achieve justice for victims and their loved ones. If this is the case, the state is not merely permitted to execute perpetrators of the most heinous crimes, they are morally obligated to do so. Those that hold this view would likely argue, for example, that if the state of Florida failed to execute Ted Bundy, that failure would count as a serious miscarriage of justice and dereliction of duty.

This argument raises a series of questions, many of which focus on the idea that imposition of the death penalty is not merely permitted, but is actually required. This claim seems to rest on the idea that the obligation that the state owes to victims of crimes is unique and morally privileged. There are considerations that speak in favor of this idea. Many philosophers argue that the feature that makes persons distinct from non-persons is their capacity to make autonomous decisions. When people commit crimes, those crimes almost always involve violations of autonomy. In the most heinous cases—like cases of murder—the crimes involve the annihilation of the person and the autonomy that makes them one. If autonomy is highly valued by our society, as it should be, then perhaps it makes sense to place justice for victims and their families high on the list of moral priorities. Add to this the pain and suffering experienced by the loved ones that the victims left behind, and we are left with a powerful argument for giving special moral consideration to victims. These considerations are paired with a perceived (and possibly real) obligation arising from intuitions both common and strong—it is unfair when bad things happen to good people, and when those bad things are freely caused by a bad person, bad things should happen to that person. One might think that this is an issue of fairness.

Even if the state’s obligations to victims and their families is important, it is worth asking whether those obligations override the State’s other important obligations. Death penalty cases are exceptionally expensive. In earlier discussions of repealing the death penalty, Washington legislators considered the fact that capital cases cost the state at least $1 million dollars more than non-capital cases. Presumably, these funds could be used for other crucial state expenses. Even if we concede that the death penalty achieves justice for the families of victims, does the state’s obligation to achieve that justice really supersede other state obligations? Given that the offender has already been apprehended and faces life in prison, would the money be better spent on schools, roads, or health care?

Another crucial question to resolve is exactly what should count as evidence against the permissibility of the death penalty. Washington made use of research indicating racial bias within the state. Should other states with similar or identical policies and practices take that same study as evidence that their policy is susceptible to racial bias? Or is any policy potentially subject to racial bias and does the moral permissibility of the policy turn on the demographics and attitudes of the particular area in question? Are all states morally obligated to be proactive in conducting research about their own communities?
Should evidence that a single person on death row is innocent count as evidence of the inevitably error-prone nature of the system, and should that evidence suggest that we should abolish the death penalty? How many errors are we willing to let slide?
Lack of agreement on these initial framing questions may explain why the national conversations about this issue have been prolonged and frequently unproductive.