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11/16/2011

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//According to Pierce, what Penn State deserves should be determined long after the offenses and not by a set of principles or even a jury--but by the victims.//

I'm not sure that's a perfectly apt description of what Pierce is saying. I don't think he's saying that the victims should get to decide how much compensation they get, or whether the whole shebang is shut down, or anything like that. He seems to me to simply be saying that what they are doing *now* is morally offensive. He is saying that they should not be publicly praying for the victims, but instead standing beating their breasts saying "mea culpa; mea culpa; mea maxima culpa" until the victims say they're satisfied with the acts of contrition they have made. (Sorry -- the references to the Catholic Church in the story activated certain neurons, I guess.)

So I don't think that what they deserve is "being determined long after the offences", but rather that their offences make it unsuitable for them to behave in certain ways in the future -- ways that (in Pierce's opinion) compound the offence against their victims. Such behaviour, I suppose, must be avoided until it no longer compounds the offence -- essentially until the victims say it's OK.

Now whether that's more in keeping with "our current theories of desert" I cannot say, because I really don't understand this thing you guys call "desert".

'Determine' can mean a couple of things:

(1) make it the case

(2) judge ("4a: to find out or come to a decision about by investigation, reasoning, or calculation " [Webster's Ninth Collegiate Dictionary])

Leave it to the victims to judge when justice has been done. That might be what Pierce is saying. No conflict there with the idea that the culpability of the offender is what makes it the case that a certain sanction is deserved.

Mark,

Good point, your interpretation might be right. I take him to be saying though that there might be tangible effects to the football program, the university endowment, etc. The victims, according to Pierce, get to decide when they can focus on those things and put this horrible episode behind them. As for not knowing what desert means, join the club. As Michael McKenna likes to say, that's the elephant in the room that no one likes to talk about.

Randy,

You're right, although (2) seems implausible since Pierce would then be claiming that the victims have some special epistemic access to the true principles of justice, at least as they apply to this case. And no one else does. Why would that be? I guess one could argue that only they know how much suffering Sandusky caused. But I don't think that's Pierce's point, though I suppose it could be.

This comment does not address the specific points raised in the post and comments.

But I thought I'd mention that the horrific events at Penn State (IF they are as they are alleged to be, and I'm sure that more will be coming out over time--more allegations and perhaps more information as to their veracity, which, of course, we cannot simply assume from the start), then this suggests that there's a lot of truth to something like situationism.

Right?

Tamler observes: "As for not knowing what desert means, join the club."

Just stating what seems to me obvious about desert, which likely means some of the following will be obviously wrong to some on this list:

The victims (and perhaps most onlookers) want retribution, and they believe it’s justified on the basis of something beyond their own desire to see the offenders punished. Punishment is justified, they believe, because the offenders deserve punishment, and desert accrues because, for instance, the offense was intentional, avoidable, done in one’s right mind, etc. In addition, punishment is often thought to be deserved because the offender is bad or evil: desert tracks character, especially if character is perceived as primarily one’s own creation.

The claimed existence of an offender’s desert specifically functions to justify *non-consequentialist* punishment: we should punish on grounds of desert independent of any other considerations. Same goes for being morally responsible. If we are MR, then we are thought subject to specifically non-consequentialist punishment.

Desert, at least in the law, is thought to be proportionate to the offense, such that it can limit punishment. If punishment were simply left up to the victims (“until the raped children themselves decide that justice has been done”), offenders might be made to suffer excruciating torments indefinitely – the stuff of revenge fantasies. This is one way in which Pierce’s suggestion is inconsistent with some theories of responsibility and desert.

Of course it isn’t clear there *is* something – this thing called desert – independent of our judgment that an offender should be punished, where that judgment tracks their rationality, reasons responsiveness, character, etc. The existence of desert is cited as a justification for this judgment, when in fact it simply *names* this judgment. To claim someone deserves punishment is no more than to say he should be punished non-consequentially. If so, then if we are asked to justify non-consequentialist punishment, we can’t do so by saying the offender deserves it.

That's right; let's immediately “wound” the whole Pennsylvania State University student body and all of its employees. Who needs a trial? In fact, let's go even further and opprobriate that institution and all associated with it for the next 2 generations. Allow no one who sets foot on its campus during that time to so much as smile. Make sure, though, that no one gets carried away and asks whether the licentiousness so prevalent in the rest of our society has anything to do with breeding monstrosities.


John, why do you say that situationist theories gain support? Because of how
the institutional element seemed to influence people who engaged in the cover up?

Tom,

You write: "To claim someone deserves punishment is no more than to say he should be punished non-consequentially."

I used to agree with this and still do to an extent. The problem is that it makes it's ambiguous about how the punishment comes about and who should administer it. It makes it sound like the universe owes the person a punishment. That's certainly how some retributivists see desert (Kant, Hegel, contemporary ones like Michael Moore)--but we don't have to see desert that way. What we deserve can consist of an interaction between particular offenders and victims, and so the principles can be different, depending on the people involved. In other words, desert can retain its non-consequentialist element but lose its impartiality. (Hey, that's weird--that's in line with my new project! What a coincidence.)

Re: the proportionality claim. You're right that the law (and most theories) require that punishment be proportional to the offense. But retributive theories are notoriously unable to figure out how that proportionality is determined. Also, let's not strawman Pierce or anyone who is in his corner. The claim that the victims should have some say in determining the punishment doesn't entail that any punishment would be appropriate. Nobody is suggesting that the people involved should suffer eternal excruciating torment.

Robert, the strawman remark goes double for you. Who's suggesting that no one who sets foot on campus should never smile? Or anything like that?

Tamler,

What does "keep the wound open" mean but renounce all attempts at normalcy? Who would want to do anything enjoyable in the vicinity of a festering sore? I think you know that I meant to caricature Pierce, but where WOULD he draw the line? What exactly would he have PSU forgo in order to atone? Furthermore, why should Sandusky's victims want to see anyone but him and those who allowed him to perpetrate his crimes suffer in any way? I myself would be insulted if anyone suggested that I had indiscriminately assigned blame upon being wronged, lashing out at anyone and everyone who was in the vicinity of the offense.

"Who would want to do anything enjoyable in the vicinity of a festering sore?"

You must not have seen the David Cronenberg movie 'Crash.'

"[W]hy should Sandusky's victims want to see anyone but him and those who allowed him to perpetrate his crimes suffer in any way?"

I think Pierce's point here is that there's no way of punishing the people involved without harming the institution as a whole. Isn't that the case with most crimes that involve a cover-up at the institutional level? And it seems like this runs pretty deep, the more the details are revealed.

As for where to draw the line, I agree that's a tough question, probably impossible to determine with any precision. But like any sorites case, that doesn't mean there isn't a line somewhere between defensible boundaries.

Tamler,

Yes, and maybe I don't know what I'm talking about (why change here?), but I was at first aghast and wondering how anyone could fail to report these horrible events (assuming that what is alleged did take place). But then that's the whole point of the situationist literature: people do things, or fail to do things, that are appalling and seem to go against everything that is required by good moral character, based on pressures from particular contexts/situations. Here it seems--just assuming that what is alleged is true--that the pressures to conform with what is in the interest of the institution, and one's own job security, trumped good moral reasons.

"Punished non-consequentially" (quoted) gets exactly one google hit -- this page. (Take the hyphen out and you get no hits -- instead it searches "punished inconsequentially", which I'm pretty sure is not the same thing. Unquoted it gets lots of interesting hits, but I can't pick out one that explains the phrase.)

Please, sir! What does it mean?

Thank you for responding Tamler, but I'm going to have to respectfully disagree with your exegesis of Pierce. (though you should know that I was entirely schadenfreude free during The Collapse). I read him as saying that even if there was some "way of punishing the people involved without harming (PSU) as a whole," justice wouldn't be served unless the entire institution also performed self-abnegation in perpetuity.

Tamler,

Interesting. Some questions, should you care to elaborate:

Perhaps you could explain with an example or two how “What we deserve can consist of an interaction between particular offenders and victims, and so the principles can be different, depending on the people involved.” Is there a meta-principle that regulates how the principles vary?

In naturalizing desert, you keep the non-consequentialist (retributive) element, but say it loses impartiality. Am I right that the non-consequentialist element derives from what the victims want: they believe the offender should suffer irrespective of other considerations? And is the reason impartiality ends because justifiable punishment, on this account, is partial to the victims’ particular desires?

Maybe this account solves the proportionality problem too: retribution should be proportional to the victims’ desires for it. But this can’t be right since you say “that the victims should have some say in determining the punishment doesn't entail that any punishment would be appropriate.” What then constrains/limits retribution (non-consequentialist punishment) on your view?

Tom, thanks, I wish I could elaborate more. Here's the best I can do now. As a model, think of non-criminal offenses, the kind that happen every day. Offending someone at a party, cheating on a spouse or partner, reneging on a commitment, accidentally damaging someone's property. What should happen to the offender in those cases? It seems to me that consequentialist considerations matter, but they don't entirely determine what should happen. Other things to take into account include a general sense of what the fair outcome would be, along with the desires of the offended party. Best case: offender and offended party work it out between themselves. But if not, the offendee's desires should be a consideration. And of course, different offenders and offendees might agree on different outcomes for the same offense. But as long as the outcomes are within certain boundaries, we'd still call it just. There's no cry for perfect consistency in those cases. If a third party complains, the people involved will tell them to mind their own damn business. And rightly so.

So to answer your question in very broad terms, yes, I think the victims' desires and actions bear on the appropriate punishment but they do not determine it. My working idea is that consequentialist considerations along with a general sense of fairness (e.g. what we find in theories of responsibility) set boundaries for the what the just outcome would be. Within those boundaries, it's perfectly just and appropriate for victims' desires and attitudes to influence the final verdict. Again, that's what happens in everyday life and no one complains or calls it unfair or unjust. It also happens in tort law. But for some reason, when it's a crime, the state or the universe becomes the offended party rather than the individual victim.. Why should that be?

The part of this you'll like: my motivation to include the victims stems in large part from belief that the retributivism of e.g. Kant, Hegel, Morris, and Michael Moore is indefensible. But they all leave out the victim and focus only on offenders and their personal culpability to determine just-deserts. So maybe there's another way...

Thanks Tamler. You put a lot of weight on a "general sense of fairness." If we think of moral intuitions as essentially traits of social creatures, then the general sense of fairness points to the fact that it isn't just the particular victims that are violated, but the wider tribe of which they are a part. It gets destabilized. Onlookers who empathize and react as do the victims help to stabilize things by playing a role in keeping offenders in line. But of course the victims, being most motivated, will be the prime movers in stitching up the social fabric, and onlookers will likely feel that victims' desires should carry a lot of weight in determining what's just in particular cases, as you suggest. The retributive intuition that offenders deserve punishment independent of any other consideration has a natural function: to make punishment very probable.

But as we know from your work on honor cultures and escalation of tit for tat reprisals, the local general sense of fairness can place virtually no limits on what's perceived as deserved punishment. Retributive emotions can completely take over and become destabilizing themselves. The rule of law works to keep them in check using abstract principles, e.g., the idea of proportional punishment administered by the impersonal state. The more serious the crime, and thus the reactivity of victims, perhaps the greater the need for a principled limitation on their pursuit of perceived just deserts. But the idea of desert is retained, since it comports with our retributive instincts (what the victims primarily want) and helps ensure the "implacability of the law" as I think Pinker put it.

All this said, our general sense of fairness (if not our immediate reactive emotions) might be sensitive to what we take to be the facts about human agency. As John has noted, situationism can condition our view of the Penn State offenders, as can appreciating the role of other causal factors. A culture in which a science-based understanding of ourselves became the norm won’t eradicate our instinctive retributivism, but it might lead us to think outside the box of punishment (and radically revise that box) when it comes to stitching up the social fabric.

Hmmm. Tamler says, "retributivism of e.g. Kant, Hegel, Morris, and Michael Moore is indefensible. But they all leave out the victim and focus only on offenders..."

I'm not sure this is correct, though; I would have thought that a retributivist would need to focus at least in large part on what happens to the victim in order to figure out just how bad the relevant behavior was, and thus, how much punishment the offender deserves. I recall that Nozick had a "matching" view, according to which part of the message of retributive punishment is, "See, what you did was THIS bad." And, of course, that is: what you did TO THE VICTIM was THIS bad," or something like this.

Also, I like the term, "indefensible". Maybe there is a sense in which retributivism is "indefensible"--that is, it cannot be defended by further, more basic intuitions or considerations. Maybe it is in this sense basic or fundamental. That's kind of the way I've always thought of it. I think I'm a retributivist, but I don't think I can defend the driving intuition by anything more basic or fundamental. I recognize that this wouldn't be the standard meaning of "indefensible", but my point is that frequently it seems to be assumed that one has to have a defense of every aspect of one's theory or collection of views--but this is too high a bar.

Happy Thanksgiving to everyone!

I take it what Tamler has in mind is the fact that retributivists usually scale the punishment to the prohibited act itself rather than the amount of harm actually done to the victim and the victims' friends and family by the act. For instance, if two people steal money but one of the victims is poor and the other victim is rich, the retributivist will be sensitive to the fact that the victims were robbed and punish the offenders accordingly. But the offender who stole money from the poor person will not usually be thought to be more deserving of punishment than the one who stole the money from a rich person--i.e., the punishment is for the offense itself, not the actual harm caused by the offense.

Now, that's not to say that a retributivist couldn't scale punishment to the actual harm caused rather than the act committed. It's just to say that usually the focus is on the latter not the former.

Perhaps this is to avoid obvious problems that would otherwise arise. For instance, imagine that because I steal someone's car, they miss out on a once in a lifetime job opportunity. While it makes sense--at least to the retribuitivist--to say that I deserve to be punished for stealing the car, it's not clear that I should additionally be punished for causing the victim to miss out on the job. Once again, it's the moral depravity/offense of the act itself and not the actual harm caused by the act. As such, how the victim feels after the fact is only weakly relevant, if at all, to the decision concerning how much punishment is deserved.

That being said, this illustrates another difference between criminal law and civil law. In the latter case, the pain and suffering caused to the victim is directly and obviously relevant, whereas in the former case, the pain and suffering of the victim is less relevant. Of course, the victims' rights movement represents an attempt to make room in the criminal law for the victims' pain and suffering to be factored into the sentencing determination. So, there's that, too...

That being said, Happy Thanksgiving to all!

Thanks everyone. Sorry for the delayed response, just catching up after thanksgiving.

Tom, I think I agree with almost everything you say. I agree that our sense of fairness will take facts about agency into account. And I have no problem with stricts limits being placed on the influence of victims. There's a lot of value to having laws that designate the type of punishments that are proportional to the particular crimes. But again, there could still be room for victims to have some influence over the verdict within the boundaries designated by law.

John, you're right that retributivists are focus on what happens to the victim but only as a means for determining the degree of harm or wrongdoing caused by the offender. The victims are just vessels, ways of finding out information for determining the offender's personal culpability. Retributivist consider their interests or attitudes independent of this information to be irrelevant, no?

Thomas, you may know more about this than I do, but it seems like the official justification for things like victim impact statements is exactly what John said: that they can give information about the degree of harm caused. That was the reasoning behind Payne v. Tennessee, the decision that overturned the Booth v. Maryland ruling that VIS were unconstitutional in capital crimes. I'm thinking that VIS's can be relevant over and above this.

I think it's important to point out that what we are talking about here is organizational punishment as much as individual punishment. Pierce is talking about the school as an organization, not necessarily the individuals involved. An organization that includes the students, who rioted when an enabler of child rape was fired. I'm not well versed in the ethics of organizations in regards to punishment, but it seems to me that the tradition in the west, practically speaking, is that organizations are not properly punished mostly due to the fact that money, in the form of fines, is one of the sole methods of punishment. That seems wholly inadequate in this case, as in many other similar cases. Firing the people responsible and paying some money most certainly doesn't assuage my moral sense in terms of what the punishment should be, but we all know that is what will in fact happen. In terms of the victims having a say in how long or how harsh the punishment is, I certainly see a far stronger case for that in cases of organizational misdeeds. People should take precedence over structures, even if it never works out like that in day to day life.

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