Moore's Method: Does it Mean What He Thinks it Means?

In the first two posts of this series I sketched out Moore's methodology and why he thinks the retributive emotions are virtuous.  (See the end of this post for a quick summary.)   I haven't given my own position on all this yet--that's what this post is for.   I like Moore's methodology (without his unnecessary metaethical assumptions) but I do not think it means what he thinks it means.   I'm going to argue that Moore's approach leads to principles of punishment that bear more resemblance to restorative or corrective theories punishment than the standard retributivist model that Moore favors. 

First things first: what's the standard retributive model?  Moore believes that punishments are justified when the wrongdoers receive the punishment they deserve.  A deserved punishment is one that's proportionate to the offender’s culpability.  Culpability has two components: (1) the severity of the wrong, and (2) the blameworthiness of the criminal.  Victims are merely a vessel for determining the severity of the wrongdoing.  Their own desires and sentiments about the punishment are excluded from the punishment equation.  The deserved punishment rests entirely on the offender’s culpability.

To see why Moore's method doesn't yield the standard model we have to apply it a wider range of cases than Moore does.  Moore gives a bunch of examples of cases in which our particular judgments seem to accord with the retributivist principle.  Each of them involves either murder or rape and often both.  Quoting from a newspaper column, Moore relates the story of a man who finds a woman and her children on the side of the road with a flat tire.  He then rapes her, beats her to death with a tire iron, and drowns her three small children.  He later claims he "hasn't been losing sleep over his crimes."  In another of Moore's examples, a military man and his companion picked up a woman in Anchorage, Alaska, and proceeded to beat and rob her, and then rape her four times.  The man also "forced her to perform fellatio" on his companion.  The judge inexplicably gave the man the minimum sentence of one year, hoped he could stay in the military rather than serve time, and said that he would have no problem if the defendant was paroled on the first day of his sentence.   Moore also turns to fiction for particular gruesome cases, including Dostoevsky's account in the The Brother's Karamozov of a nobleman who releases his dogs to tear apart a small boy in front of the boy's mother's eyes. 

Now according to Moore, when we hear about such cases, we judge that the offender should suffer for their crimes, independent of any consequentialist benefits that may arise from the punishment.  That's probably true.  The problem that is that Moore cherry-picks cases that are unusually suitable for his purposes.  All of Moore's cases of wrongdoing are at the extreme end of the brutality and viciousness spectrum.  The offenders are unrepentant and believe they should be released with little or no punishment.  Our judgments would likely be more nuanced and ambivalent for lesser crimes and for crimes for which the offenders expressed deep remorse. More importantly for my purposes,  he chooses cases where there is little or no opportunity for restitution.  Thieves can return their stolen goods, vandals can work to repair the damage they've caused, but murderers can't bring back their victims.  This works to Moore's advantage because he wants to rule out what he calls "corrective" theories of punishment that focus on restitution and restoration.

Corrective theories are a threat to Moore's preferred theory of pure retributivism because judgments that favor restitution are motivated by emotions that are at least as virtuous as the ones that support retributivism.   Non-neurotic feelings of guilt typically make us want to apologize, make amends, to repair as best we can the damage we have done.  Moore grants this to a degree but claims that the corrective view “puts too nice a face on our guilt feelings.”  These feelings, he writes, "do not only generate a judgment that we ought to make amends in this compensatory way.  Rather...—and this is what troubles many critics of guilt as an emotion--to feel guilty is to judge that we must suffer."  (p. 148).  As evidence, he describes yet another case of uncommon brutality: the well-publicized murder of Bonnie Garland who was hammered to death by her boyfriend Richard Herrin.   Herrin famously objected to a sentence of longer than one year for this crime.  Moore writes that we can see "plainly" how inadequate the reparative impulse would be "if we imagine ourselves having made provisions for Bonnie’s family, comforting them in any way possible, and feeling that our debt for killing her had been paid." (p. 148)

Moore is obviously right that comforting Bonnie’s family wouldn't make up for this type of crime.  But it certainly doesn’t follow that the urge for restitution—especially restitution that involves a kind of suffering—is a minor or unimportant part of the virtuousness of guilt feelings.  Hammering someone to death is thankfully not the most common kind of wrongdoing.   For most cases of wrongdoing, restitution or making amends for seems far more virtuous than an unproductive form of self-flagellation.  Imagine that a college student, home for Thanksgiving, gets drunk and throw rocks through his high school physics teacher's windows.  The next day he feels remorseful and confesses his crime.  Rather than turn him in to the police, the physics teacher asks him to repair the windows and pay some money for the extra heating cost.   The student refuses because "that would put too nice a face on his guilt feelings."  Instead he allows the teacher to pay for her own repairs and turns himself in to serve a 30 day jail sentence.  He then feels that the debt is paid.  Now the retributive outcome seems less just, and the emotion that led to it less virtuous. 

Maybe this crime is too mild to count as much of an objection to Moore's view.  So consider this case of Conor McBride, described in a fantastic recent NYT Magazine article.  

At 2:15 in the afternoon on March 28, 2010, Conor McBride, a tall, sandy-haired 19-year-old wearing jeans, a T-shirt and New Balance sneakers, walked into the Tallahassee Police Department and approached the desk in the main lobby. Gina Maddox, the officer on duty, noticed that he looked upset and asked him how she could help. “You need to arrest me,” McBride answered. “I just shot my fiancée in the head.” When Maddox, taken aback, didn’t respond right away, McBride added, “This is not a joke.”

About an hour earlier, at his parents’ house, McBride shot Ann Margaret Grosmaire, his girlfriend of three years. Ann was a tall 19-year-old with long blond hair and, like McBride, a student at Tallahassee Community College. The couple had been fighting for 38 hours in person, by text message and over the phone. They fought about the mundane things that many couples might fight about, but instead of resolving their differences or shaking them off, they kept it up for two nights and two mornings, culminating in the moment that McBride shot Grosmaire, who was on her knees, in the face. Her last words were, “No, don’t!”

Ann Grosmaire died in the hospital four days later.   According to Florida State law, the crime of first degree murder typically carries a life sentence or (if there are aggravating factors) the death penalty.  However, the prosecutor can also charge the victim with a lesser crime such as manslaughter which carries a much lighter sentence.  In the weeks after the crime, the parents of the victim and offender had met at the hospital and become close.  Before the trial the Grosmaires asked the prosecutor if they could do a restorative justice conference with the defendant Conor McBride and his parents.  There had never before been a restorative conference in Florida for such a serious claim but since the parents of the victim had requested it, Jack Campbell, the prosecuting attorney agreed. 

Normally, a restorative justice circle is supposed to conclude with a consensus about the punishment, but in this case the prosecutor said he would only give serious consideration to the requests in determining his plea offer.   When Conor McBride spoke, he described the crime and surrounding circumstances in harrowing detail.   He did not shirk responsibility in any way.  His account was even worse than the Grosmaires imagined. 

As Conor told the story, Andy’s [Anne's father] whole body began to shake. “Let me get this right,” he said, and asked Conor about Ann being on her knees....Conor answered, clarifying precisely how helpless Ann was at the moment he took her life.    

After each member had spoken, the time came to suggest a punishment.  Before the conference the Grosmaires had indicated that they would ask for a light sentence of five years.  But after hearing Conor's story, they asked for higher sentences: Kate Grosmaire suggested five to fifteen years.  Andy suggested ten to fifteen years.  The McBrides agreed with Andy about the higher sentence.  Conor did not suggest a sentence because "he did not think he should have a say."  In most restorative justice meetings, a judge will issue a decision that matches the consensus if one is reached.  But in this case, Jack Campbell only promised that he would take the opinions into account in determining the plea offer.  And Campbell did, offering a plea of twenty years in prison with five years probation, a sentence considerably lighter than most homicides of this kind.    He justified the lower sentence by appealing to the victim's family's wishes.

Here I'd wager that our particular judgments favors the restorative outcome over the retributive one.   And I think the emotions that lead to this judgment are virtuous.  If I'm right, then even our judgments about homicides can't be explained by a principle of pure retributivism.   This is a long post so I'll stop: in the next post, I'll explain why I think the emotions leading to this judgment are more virtuous than the ones leading to the standard model.   But for now, what do you all think--am I right that our particular judgments favor restorative or corrective outcomes in a lot of cases?

Comments

[Robert Allen]

That cowardly SOB deserves to spent the rest of his life behind bars doing hard labor. Now go ahead and tell me why I'm less virtuous than those calling for a much shorter sentence. I don't care what the victim's family had to say; in fact, their feelings and judgments shouldn't even matter. It is only what Justice demands that counts and it's not even clear that in their state of mind they could appreciate what that amounts to. 'Let the punishment fit the crime' entails an objective standard, not something subject to the differing opinions of a community's members. The Catholic church teaches that there are 4 things that cry out to Heaven for vengeance: willful murder, sodomy, oppression of the poor, and defrauding laborers of their wages. Again, I see NOTHING vicious in holding this sentiment and no here has given me any reason to change my mind.

[David Shoemaker]

Tamler: Interesting. Could you say something more, though, about why you think the Conor McBride case is an example of restorative, rather than retributive justice? Why couldn't Moore insist that it remains an example of the latter, just with the victim's family being in a better position to determine (or perhaps more plausibly, *identify*) the degree of Conor's culpability?

[Tamler Sommers]

Robert, I will but next post.

David, yeah, Moore is explicitly against allowing victims to have any say at all. Here's a quote from a 99 paper.

"In a truly victim-oriented system, if a wrongdoer has the good luck to injure one of those new testament types, instead of one of the old testament types, then that wrongdoer is going to receive less punishment—because he is always going to get the turn-your-other-cheek forgiveness response from his victim."

Restorative approaches allow for the victims to have a say even though wrongdoers of equal culpability may be punished differently. The standard retributive model doesn't allow for that. If the Grosmaires had been "old-testament types" and not requested a restorative conference, McBride would have received a much higher sentence.

Of course, the sentence still has some retributive elements but I think that's true of most restorative outcomes (if understood properly).

[David Shoemaker]

OK, good. But then a Moorian (if not Moore himself) could still take on board the recommendations of the victims' family insofar as, perhaps, they are somehow better placed to identify the actual relevant degree of culpability, right? (Also, a minor technicality: your quote from Moore doesn't eliminate allowing victims to have ANY say; it's just targeted at a "truly victim-oriented system," which, I gather, is one in which ONLY victims have a say. His view on this point thus sounds like a straw man to me.)

[Ryan Lake]

I find the restorative justice approach very attractive, at least for many kinds of crimes, and I think you're right that in many cases our judgments, motivated by virtuous emotions, favor restorative outcomes. Letting the victim have a say in the nature and severity of the punishment makes a lot of sense, and in a lot of cases seems much more just than letting a detached third party assign a punishment. I can understand Moore's worry that restorative justice will lead to unequal punishments for equally culpable offenders, but we already have that anyway - and I'd rather have any inequity depend on wishes of those who have actually been harmed (and of course, inequity can be constrained by minimum and maximum sentencing standards).

However I do find the idea of restorative justice in cases of murder rather odd. In such cases the main victim - the one who hasn't been killed - is not there to speak on his or her own behalf. There is nothing the offender can do to make it up to the victim, and we can't really know how the victim would want the offender to be treated. I get that the family members are also harmed by the crime, and so they are also in some sense victims, but I'm not sure why they should get so much of a say that someone like Conor, who murders a helpless woman in cold blood, could wind up with a light sentence.

[Tamler Sommers]

Dave, I don't think Moore represents a straw man form of retributivism at all--most retributive theories give no role to the victim beyond the information they can provide about the severity of the crime and the criminal's blameworthiness. It's only recently that a small minority of retributivists (like Jeffrie Murphy) have started to question the marginalization of victims--but it's rare to find that in a theory at all. Also, even restorative approaches don't give the victim the ONLY voice in the sentencing process. There are always upper limits set by third party/mediator and sometimes lower limits as well... As I said, there are retributive elements in restorative approaches--I take them as setting these upper and lower limits.

Ryan, Yeah that's a tough issue, I struggle with it as well. As you say, we can't know what the victim would have wanted so that can't really play any kind of role. But the parents are victims too, losing your child at a young age must be about the worst thing that could happen to a parent. So I think they should be given some say though not as much perhaps as a living victim (e.g. of a violent assault).

[Robert Allen]

Why should it matter what the victim or any other concerned party would have wanted? Maybe the victim was suicidal. Perhaps his family wanted him dead. Yours is a recipe for arbitrariness, compassion run amok. We have objective, community wide criminal sentencing guidelines because justice demands that like cases be treated alike.

What also seems lost here is the sense of moral outrage. As I said, some crimes cry out for vengeance; we are sacrificing an important part of our humanity if our reactions fail to correspond to the grievousness of certain matters. (The most riveting film I ever saw, Judgment at Nuremberg, makes this point perfectly clear.) I'm all for rehabilitation, but not at the expense seeing to it that those who commit heinous crimes get what they have coming.

Just so you know the extent of what you are dealing with, Tamler, when you set out to explicate my viciousness, I should say that one of the things that drew me Roman Catholicism was its sure promise that unrepentant malefactors would eventually 'get theirs'. I was completely sold on it when I read that a Doctor of the Church, St. Thomas Aquinas, even goes one step further and assures us that the elect would be allowed to see the damned, including Satan himself, writhing in agony. (I was kinda hoping he'd say that they got to inflict a little pain themselves, but good enough.) Forget about the consolations of philosophy or even a workers' paradise, I thought to myself, this stuff provides true comfort: 'Blessed are they that hunger and thirst after justice: for they shall have their fill' (Matthew 5:6).

[Bruce Waller]

Tamler, great series of posts; I would have responded to an earlier one, but fortunately Derk and Gregg were quicker than I, and made the points I would have made, except that they made them much more clearly than I could have done. We corresponded long ago about the legitimacy of “victims impact statements,” and you had a more favorable view of them than I did, which surprised me; but now I think I have a better understanding of your view. You are seeing them in a restorative justice context, and in that context I would agree that they are legitimate and beneficial; but while I understand why (in discussing Moore) you are focusing on the victim concerns in discussing restorative justice, that is – as you already know – a relatively small part of the restorative justice system. Restorative justice focuses on restoration of the entire community, to the greatest degree possible; the victim, certainly; but also the assailant, as well as the community itself. In its ideal form, restorative justice examines the society and its structure to seek out why this person is committing this destructive act, and how the community itself needs to change to prevent this sort of act from occurring in the future. For example, if we place Robert Harris in the restorative justice setting, we want to do what we can to lessen the suffering of the families of the two boys he killed. Nothing will be adequate; but at the very least we can take seriously the terrible wrong they have suffered, acknowledge their suffering, and resolve to take the most effective steps we can to prevent such wrongs recurring in our society. Part of that would involve fixing the juvenile justice system, so that offenders like Robert are not brutalized when placed in that system; another would involve better schools and special ed programs, so that children with speech impediments would get special help rather than severe teasing; another would involve recognizing the danger signs (torture of animals) much earlier and taking them more seriously and getting troubled children into effective psychological treatment programs; and finding ways to rescue abused children from violent and abusive homes, and rescuing their mothers from the violent abuse of their husbands, and ending the cycle of violence running from Robert’s father to Robert, and so on. That seems a better way of showing that we regard the crimes seriously than by strapping Robert to a gurney and killing him. In that context, hearing the voices of the victims and their families is a very important part of the process. BUT, if we stick with our current retributive system of justice – the one Moore celebrates – then in that context, victim impact statements seem to me make an unfair system even more unfair. If someone murders a friendless drifter, then there will be no one to say how terrible this crime was (or if there is someone to speak, that person is likely to be comparatively inarticulate); but if someone murders a popular teacher with a beautiful family, then eloquent colleagues and charming family members can move us to favor much harsher penalties. But from WITHIN the retributive system, it seems particularly unfair to punish more harshly for killing one of the beautiful people than for killing someone considerably less attractive (of course, if I were one of the beautiful people, I might have a very different perspective).

[Tamler Sommers]

Bruce, I didn't mean this to be a defense of victim impact statements. (I don't think I've mentioned them once, have I?) And I don't just think that this is about hearing the victims' voices. It's about bringing the victim and offender together. That can also have profound effects on the offender too.

As for the Robert Harris example, well yeah, we absolutely have to fix our juvenile justice system. It's horrific. Many of them are just factories for producing hardened criminals. But again, I'm not sure how that points affects my criticism of Moore here... Can you clarify?

[Mark Young]

//A deserved punishment is one that's proportionate to the offender’s culpability.//

Isn't it possible that a deserved punishment is *also* inversely proportional to the offender's contrition or remorse. That would explain why the man who wasn't losing any sleep over his actions seems to be in need of particularly severe punishment, and why Moore makes a point of choosing unrepentant villains. It would also explain why Conor McBride's lesser sentence seems more just for him than the standard sentence does, and yet not in any way rely on the views of his victims-once-removed.

(Or Conor's reduced sentence could possibly seem more just because the standard sentence itself is unjust. Not saying it is, but it's a view that many here have expressed sympathy for, and so it may play a role in our intuitions.)

As for the putative window breaker--- You quote Moore as saying that the guilty feelings "do not *only* generate a judgment that we ought to make amends" (emphasis added). On that view the purely retributive punishment is deficient in that no amends were made, but a purely restorative response would likewise be unjust. Maybe the guy just *likes* repairing windows and doesn't mind paying a few bucks (for "heating", wink wink) for the privilege. Would the purely restorative response seem just then? Or maybe the guy is rich, and he doesn't care about the cost of paying someone else to fix the window. Would that *purely restorative* response seem just? The reason that having the guy fix the window and pay for the heating seems just (I say on behalf of Moore) is that it seems like it *is* making him suffer. (It's a small amount of suffering -- proportional to the crime, I'd say. Thirty days for breaking a window seems disproportionate to me -- but perhaps not disproprtionate for someone who breaks a window and refuses to make amends.)

[Mark Young]

PS: Moore might insist that he spend a nite or two in the jug as well -- and that does not seem the least bit unjust to me.

[Bruce Waller]

Hi Tamler,
Sorry, should have made that much clearer. Actually, I took myself to be agreeing with your view. The "victim impact" stuff goes back a couple of years: I had sent you a note saying how much my seminar students and I had enjoyed using your Very Bad Wizard (if anyone is looking for a great secondary book for a free will seminar, I highly recommend it). In the course of a brief email discussion, as I vaguely recollect, you mentioned something about allowing crime victims to speak before sentencing, which I regarded as a type of victim impact statement; and I thought your recent post elucidated your view: having victims involved in the restorative justice process is great; but it does not follow that they should be allowed into standard retributive settings. But anyway, that's another issue, and my recollection of this may be totally wrong; I was very interested in (and very opposed to) the whole "victims rights" movement, of which victim impact statements were a part. So maybe it was someone else.
But the reason I mentioned Robert Harris is because so many people who object to some elements of the restorative justice system object that those who commit crimes may get insufficient punishment, which may seem as if the crime victim is not being taken seriously (and that would certainly be the case if we were talking about the lack of punishment of those who attacked civil rights workers, for example; and the conclusion -- from within the retributive position -- in those cases would be that attacks on such people shouldn't be taken seriously, and that is indeed a terrible thing). Perhaps that's Ryan's concern? But if we are instead operating within the restorative justice system, then one way we show we are taking crimes and their victims very seriously is by making genuine efforts to fix the problem and prevent further crimes of the same sort against other people; in a restorative justice system that is run well, the problems leading to the violent crimes committed by Robert Harris would be taken very seriously indeed -- showing that the suffering of the crime victims, past and possible future, is a very important consideration. And those sentiments seem much more attractive to me -- to get back to your original question -- than natural but problematic retributive sentiments.

[Tamler Sommers]

Mark, thanks--I obviously didn't make one thing clear enough. I'm not arguing for a "purely restorative approach." As I say to Dave in the comments, restorative justice (at least my preferred version)contains retributive elements. The retributive elements set the limits within which restorative justice can operate. Even if the Grosmaires had asked for no jail time beyond what he already served, the prosecutor would rightly have still given McBride a significant prison term. The justification for that lower limit of punishment (whatever it is) is rooted in retributive justice. The standard retributive model IS purely retributive, however, and explicitly rejects anything influencing the punishing beyond the wrongdoer's culpability. Standard retributivists, as far as I can tell, are split on the question of whether remorse is part of culpability. But I take that to be an independent question since it still doesn't involve the victims.

[Tamler Sommers]

Hi Bruce,

OK, I see. Yeah, it's not so much that my views have been clarified--it's more that they've changed since that email exchange we had. While I still strongly favor involving the victim in the criminal justice process, I think VIS are a poor way of doing so. I'll say a little about why in my next and last post. Where we still probably disagree (not surprisingly) is on the issue of whether the retributive sentiments should play any role at all. I think they should--and one element of the kind of RJ that I favor is that it could still lead to harsh punishment in certain cases. But that wouldn't be due to the decision of outsiders to the conflict, the judge, jury or (even worse) rigid sentencing guidelines....

And I agree with you that we ought to work hard to improve conditions that lead to criminal behavior, and help prevent future crimes of that nature. think that's all we should do. But truly taking the victims seriously requires that we do something more as well, that we focus on the wrong itself
independent of any consequential benefits that may come from doing so.