Snead objects to outcome-based justice. He summarized all of the arguments for it,
All right then, let's look at what words Snead puts into the mouth of the judge, who he apparently takes to represent the advocates for outcome-based justice.
The only question you are to answer is this: is this defendant likely to present a future danger to others or society? You should treat every fact that suggests that he does present such a danger as an aggravating factor; every fact suggesting the contrary is a mitigating factor.
Surely the defendant's own future danger to society is not the only relevant question. A system of deterrence is a system that attempts to guarantee, ahead of time (it must do this is in order to deter crime) that if someone commits a crime, then he will be punished. The prospect of being punished will deter the would-be criminal. That's what deterrence is. In such a system, a person who goes ahead and commits a crime will be punished. It does not matter whether he himself will commit additional crimes after his initial crime. That's irrelevant to the deterrent mechanism. That person's own "future danger to others" is of no special interest.
Deterrence does, of course, look to the future, because it attempts to guarantee that if a person commits a crime then he wil be punished (and, knowing this ahead of time, he will hopefully be deterred). But once the deterrent system is in place and someone goes ahead and commits a crime, that future has arrived, and the person will be punished. The additional, farther future, in which the person might or might not commit additional crimes, has little bearing on this.
Matters of ’desert,’ ‘retributive justice,’ or proportionality in light of moral culpability are immaterial to your decision. Ladies and gentlemen, this is the year 2040. Cognitive neuroscientists have long ago shown that ‘moral responsibility,’ ‘blameworthiness,’ and the like are unintelligible concepts that depend on an intuitive, libertarian notion of free will that is undermined by science.
It is only incompatibilists who believe that moral responsibility and blameworthiness depend on libertarian free will. What we ought to have done in response to science is discard incompatibilism and kept moral responsibility and blameworthiness, rather than retaining incompatiblism and discarding these key concepts which serve essential roles in deterring harms against ourselves and our families and friends.
Any system of deterrence must necessarily make decisions about who to punish, when, under what circumstances. This is not an illusion. This is a need. And in order to meet this need, we need concepts such as moral culpability. Moral culpability defines a category into which we place some people and not others, for the purpose of deciding whether to punish them. We need this category, because we need to make decisions about when to punish and when not. This is neither a luxury nor an illusion.
Nor is the real world (as opposed to philosopher's) concept of moral culpability based on philosophers' illusions. The people we blame simply are the people we have decided to punish. As for why we decided to punish them and not others, the function of punishing some and not others is, of course, to minimize crime, to protect ourselves. Granted, our specific decisions may not be optimal. But neither are they random or insane or based on philosophers' delusions.
Any system of deterrence is going to have to classify people in order to decide how to deal with them, and so it will inevitably have the concept of blame. A different word might be used, but it will come to the same thing.
For example, if someone commits murder, then we blame the murderer for the death - which is to say, we have placed him in the category of people to punish on account of the death. Why have we done this? Because the policy of punishing people who commit murder deters murder which in turn reduces the probability of our own untimely death. No appeal to libertarian free will is necessary for any of this. All that's necessary is the fact that the policy of punishing murderers deters murder. This is not to say that we are necessarily consciously aware of any of this. All we might be consciously aware of might be outrage, desire for revenge, and the like. This doesn't negate that the function of the outrage, of the vengefulness, is to deter crimes committed against us and our family, allies, etc.
Of course as a result of living together we have developed complex moral and legal systems for deciding who to blame for what. The ultimate function of those systems nevertheless remains essentially simple: it is to deter and thus to prevent harms to ourselves and to those we care about. It's not surprising that something so simple - deterring harm - should give rise to a mechanism so complex - our moral and legal systems. Similarly, the function of a car is very simple, but the mechanism of a car is fantastically complex.
Actually it's not quite so simple. The flip side to deterring harms is that we want to avoid being too much of a danger to others on account of being too aggressive in punishing those who wrong us. If we're too aggressive, we'll get ourselves killed by our peaceful neighbors who are afraid of us. So the function is not merely to deter harms but, more fully, to strike an optimal balance between deterring harms and not committing harms.
However, the state system of justice throws that balance all out of whack, because the state is too powerful to be worried about the consequences of being either too aggressive or not aggressive enough. That's a whole other topic.
Such notions are, in the words of two of the most influential early proponents of this new approach to punishment, ‘illusions generated by our cognitive architecture.’
Rather, these are all aspects of our current deterrent system. They are not "illusions" generated by our cognitive architecture; the argument that they are mere illusions depends on free will incompatibilism, which ought to be rejected in light of psychology and neuroscience.
This would be a good post in its own right.
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.)