Responsibility problems for criminal justice

It has been argued that empirical science undermines the claim that people can deserve punishment, and that the criminal justice system therefore ought to be radically reformed. Such arguments lose their force if moral responsibility and desert do not depend on what caused the action, but on the agent’s choice. We solve one problem for the justification of the criminal justice system, but create another one; if moral responsibility depends on the offender’s choice, finding out to what extent she was responsible might be very difficult. Our common practice of holding each other responsible for our actions contains elements of character evaluation and pragmatism, i.e., encouraging some behaviors and discouraging others. We also have the idea that people can be morally responsible for what they do in the sense of deserving to be praised for exemplary actions and blamed for bad ones—and even punished, if the action was bad enough. Many philosophers and legal theorists who believe that the primary goal of the criminal justice system ought to be crime prevention rather than the dealing out of just deserts, still argue that the offenders’ desert ought to serve as a restriction on what we are allowed to do in the name of crime prevention; no one must be given more punishment than she deserves (e.g., von Hirsch, 1992; Lippke, 2014). Since no system is perfect, it is inevitable that this principle will sometimes be violated, but we ought to strive for a system that allows us to consistently approximate this ideal. However, if no one were morally responsible for anything, all punishments would be undeserved, and the criminal justice system difficult to ethically justify. Some philosophers and scientists do argue for the non-existence of moral responsibility and desert, roughly along the following lines: Whether an offender was morally responsible for what she did depends on how her action was caused. If it was caused by events beyond her control, she lacks moral responsibility for it. Therefore, she does not deserve to be punished if her crime were caused by, e.g., psychosis, someone slipping a drug into her drink, or someone making an irresistible threat toward her. However, all crimes are ultimately caused by events beyond the offender’s control (e.g., non-conscious events in her brain, genes and environment). Therefore, no one ever deserves to be punished (Pereboom, 2001; Strawson, 2002; Greene and Cohen, 2004; Harris, 2012). If these philosophers are right, any system for dealing with criminals resembling the current one might be ethically unjustifiable. However, this whole argument fails if we deny the initial premise that moral responsibility for an action depends on how it was caused. Some philosophers of law and legal theorists do deny that premise; Morse (2013) and Moore (1997) argue that the law as it stands permits punishing offenders when they are capable of making choices for reasons. Furthermore, there is nothing wrong with the law on this point; the thesis that offenders can deserve punishment for what they have chosen to do can be defended by philosophical argument. Many Kantian philosophers argue that actions can be viewed from two different perspectives; a theoretical one, where we explain why someone did what she did by pointing at causes, and a practical one, where we focus on her choice and her reasons for taking one option rather than another. The claims we make from those different perspectives do not contradict each other. I might have chosen to become a philosopher for the reason that I found philosophy interesting. If a scientist were to discover the neurological causation of interest, it would still be true that I chose a philosophy career for the reason I did. Sincemorality is concerned withmaking the right choices for the right reasons, moral judgments ought to be made from a practical perspective. Whether someone was morally responsible for an action and deserves to be praised, blamed, or punished depends on the choice she made, not the underlying causes (Korsgaard, 1996; Bok, 1998; Dworkin, 2011, pp. 224 and 462; Jeppsson, 2012). I call this thesis “Practical Perspective Compatibilism,” or PPC. According to PPC, many offenders are morally responsible for what they did, and would thus deserve to be punished, since many offenders chose to commit a crime. PPC can also explain why some psychotic, drugged or seriously threatened offenders ought to be excused: in these states, they might very well be bereft of choice. Alternatively, in the case of a serious threat, the offender might have consciously chosen to do the least bad thing in a terrible situation; even if she were morally responsible for this choice we might judge that she did nothing wrong if she, e.g., stole an object because someone threatened to kill her children otherwise, and therefore she ought to go unpunished. It is evident that these excuses do not generalize to all offenders. It is still the case that many offenders choose to commit crimes, and