Outcome-based justice argues that we should give up playing the blame game, because neuroscience keeps finding more and more proofs that things are "not our fault". Instead, we should write laws that deter crime.
That strikes me as confused. Blame just is an aspect of our already-existing, inborn deterrent system. Saying we shouldn't blame and instead deter, is like saying we shouldn't deter and instead deter. It doesn't make sense. Maybe what you want to say is that we should deter better. Okay, I can buy that. But it's just confusing to put it in a way that essentially reads, instead of deterring, let's deter.
But the more we learn about psychology and neuroscience, the further responsibility recedes into the distance.
My deep suspicion about this is that psychology and neuroscience really say no such thing. It is, rather, the interpretation of psychology and neuroscience by free will incompatibilists which says such a thing. Now that is perfectly predictable. Can anyone doubt that those who believe free will is incompatible with determinism will, as science uncovers more and more of the causal structure of behavior, conclude that there is less and less scope for free will and therefore less and less basis for moral blame?
The Wrath of Kahneman describes a study which asked whether people punish others in order to deter crime, and concluded, No. People are doing something else.
I have my doubts about such a conclusion. Let's take a look at the quoted paragraph.
Previous research suggests that people’s judgments about punitive damage awards are a reflection of outrage at the defendant’s actions rather than of deterrence.
I'm not entirely sure what to make of that. It's a bit like saying, people put gas in their cars in order to fill up the tank rather than in order to travel long distances. The function of the car is to travel long distances, and the biological function of outrage is (presumably) to deter.
I think they would be on much firmer ground if they said something like, outrage (i.e. our intuitive reaction to crime) is not well adapted to the modern society, and so it leads to suboptimal deterrence which for example does not take into account ease of detection. That would not be very surprising, as outrage presumably evolved in close knit communities with essentially little problem with detection, etc.
Or maybe what they mean is that people do not consciously attempt to optimize crime deterrence. That's no surprise. Similarly, animals do not consciously attempt to produce offspring. We have psychological mechanisms such as outrage and lust which cause these things to happen anyway. But the fact that we do not consciously attempt to optimize crime deterrence is not all that tightly related to the fact that we do not optimize well. It's entirely possible for someone to consciously try to do something and do it badly. Conversely, we might do well something that we do not consciously intend - for example, having babies, which most animals do well enough without consciously intending to.
That strikes me as confused. Blame just is an aspect of our already-existing, inborn deterrent system. Saying we shouldn't blame and instead deter, is like saying we shouldn't deter and instead deter. It doesn't make sense.
Exactly, and I should mention that this confusion about blame occurs in other areas. For example, in praising Coase's famous theorem, some people think they've identified a brilliant reason to discard the concept of blame in favor of a Pareto-superior method of social rules. When you point out that a system of pure Coasean bargainin...
Why do those words go together?
Society - and for once, I'm using this term universally - teaches that, if you committed a crime, you should be punished.
But in some societies, we have an insanity defense. If you had a brain condition so that you had no - here it's a little vague - consciousness, or moral sense, or free will, or, well, something - then it would be cruel to punish you for your crime. Instead of going to prison, you should be placed somewhere where you can't hurt anybody, where professional physicians and counselors can study your case and try to reform you so that you can rejoin society.
Wait - so that isn't what prison is for?
No. Prison is to punish people. Is it any wonder that prison doesn't reform people, when we don't want it to reform them? Most people would be upset if prisoners could go in on Friday, and emerge, rehabilitated, on Sunday. When people say, "It would be cruel to punish people who aren't responsible for their actions", they are implicitly saying, "Prison is necessarily cruel; and that's good, because we should be cruel to criminals who are responsible for their actions."
But the more we learn about psychology and neuroscience, the further responsibility recedes into the distance.
Outcome-based justice argues that we should give up playing the blame game, because neuroscience keeps finding more and more proofs that things are "not our fault". Instead, we should write laws that deter crime.
You might think this is what we already try to do. But it isn't! Witness this confused article from the Brookings Institute, Cognitive Neuroscience and the Future of Punishment by O. Carter Snead. Snead objects to outcome-based justice. He summarized all of the arguments for it, yet managed to completely miss their point, concluding where he started from, saying that outcome-based justice is obviously bad because it could lead to being cruel to people who didn't deserve it. (Instead of only being cruel to the people who do deserve it, which is obviously what we want to do.)
Snead understands that outcome-based justice deters crime:
You might expect that Snead goes on to explain why these laws are bad things. But he doesn't! He assumes we can all see that these are obviously bad things.
The Wrath of Kahneman describes a study which asked whether people punish others in order to deter crime, and concluded, No. People are doing something else.
One theory is that people are trying to be fair. Everyone should get the same chances; everyone should get the same punishment for the same crime. John Rawls argues this explicitly in Justice as Fairness: Justice should not be utilitarian, but should instead be fair.
I believe Rawls' view is also the popular view of what "justice" means. And, I will argue in a later post, it is part of a pattern showing a deep divide between two different ways of using the word "ethics".
ADDED: Constant made the point that, while one part of outcome-based justice is preventing future harm from the criminal on the dock, another part is deterring harm by other criminals. This latter part does not benefit from punishing criminals who cannot be deterred. Thus, to optimally punish both criminals who can and cannot be deterred, the law requires a concept of moral culpability, and should punish criminals who can't be deterred more lightly. This is a better origin story for the linking together of morality and free will than the just-so story I'd come up with, so I plan on stealing it for my next post. (SilasBarta may have been trying to make the same point, but I found his comments impenetrable.)
(This post is laying groundwork for two other posts that will go in different directions, neither of which concerns justice.)