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05/05/2015

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Fascinating case to consider Katrina--thanks! I want to think more about it, but I'll report my initial reaction about the case, based on my first-person experience of being obsessive about knowing where my kids are supposed to be, when I'm responsible for them, and where I need to be. The idea of failing to consider (or check) whether my kids might end up at my house before I carry out the significant planning for a trip to Vegas strikes me as morally repugnant. Bert is an irresponsible jerk. He deserves to be punished (given the facts you've reported to us).

I put my reaction in these strong terms to highlight two features of the case we should consider more. The first you raise, regarding whether we are more responsible for lapses that have potentially more significant negative outcomes. I think the answer is yes, because of the tracing condition you mention. We are rightly expected to think more about, and shape our habits of considering outcomes, situations that we are much less likely to cause bad outcomes if we were to lapse. (Raising kids has also made me realize that the most common blaming statement we make is "You knew [or should have known] better!")

The second issue is how this sort of case seems to exemplify Knobe-style effects. My intuition is to say that Bert knowingly abandoned his kids, but I know that in a standard sense of 'knowingly' (the one Levy seems to be using), that's false. I know my intuition is shaped by the moral features of the case, but I don't know whether this should be considered some sort of error or rather a manifestation of the social development of a concept ('knowingly') that we use (appropriately) to express moral views.

Great post Katrina! Given my affinity for Levy's consciousness thesis, I would be inclined to say that Bert is not morally responsible in the basic desert sense (the backwards-looking sense). I acknowledge forwards-looking moral responsibility here, but an interesting question (at least to me) would be: how much punishment would be licensed on such a forwards-looking account? Assume that Bert made an honest mistake and that this was a one-time slip, I wouldn't think forwards-looking MR would be enough to justify taking his children away or revoking his shared custody. I'm curious, however, to hear what others think.

I'm also curious to know whether you are willing to deny basic desert moral responsibility in this case. From the last couple paragraphs it sounds like you are. Is that correct? Does that mean you accept the consciousness thesis? [Levy and I would be glad to hear that!]

Hi Gregg! I am not so willing. I will discuss this in detail in my next post. (Trying to keep 'em short!)

I'm interested to hear how you think one would determine amount of punishment given purely forward-looking aims. It seems so difficult to decide how much punishment is necessary to have a deterrent effect (specific or general). And Bert hardly needs to be incapacitated.

I would advocate for a forward-looking conception of moral responsibility grounded in future protection, future reconciliation, and future moral formation. I don't have an easy answer for what exactly that licenses in this case. Under your description, Bert was unaware of the moral significance of his laps, so I would presumably be less concerned with the future protection of his children (again assuming that this was an honest lapse, not representative of a deeper character flaw, something he was truly unaware of, etc.). Perhaps, though, some sanctions would be justified on the ground of future moral formation and reconciliation. These sanction, however, would be non-punitive I think.

Hi, Katrina. This is akin to -- or perhaps outright a case of (I'll come back to this below) -- strict liability, the justification for which is pragmatic and forward-looking (encouraging people to pay attention to whether the meat they sell is tainted, say, or the person they are about to have sex with is not underage), but the punishment for violations of which is retributive. The possible deterrent effect you cite is explicitly keyed to the possible work done by the *threat* of punishment, not the punishment itself, so there would remain a justificatory gap: if the threat didn't deter Bert, we could meet the deterrent justification merely by giving Bert a stern warning about what would happen if he did it again.

Strict liability has a (pragmatically justified) place in the law, but it really doesn't have a place in our interpersonal morality exchanges. Of course, Bert's may well not be a case of strict liability after all: as long as a reasonable person would have known that his kids were at the house, that may be enough to nail him (in virtue of the requisite mens rea). And there are resources available to cite him as morally responsible too on, e.g., Smith's rational control view and McKenna's conversational/quality of will view (he talks about a case exactly like this). It depends on the nature of quality of will, of course, but that an action expresses one's poor quality of regard toward someone does not mean it has to be causally dependent on any particular desire/care/judgment. Looking forward to what you'll say about moral responsibility, therefore.

David, such a fantastic response, one that alludes to much of what I will say in my next two posts. I wonder about your jump to strict liability - I'm going to talk about about the case in terms of negligence. Negligence is a mens rea standard, but a weird one of course, because it doesn't require any conscious mental state with regard to the criminal harm, unlike recklessness, which is conscious disregard of the risk.

Hi, Katrina,

Assuming he was telling the truth about forgetting, I would agree that the knowledge that he had to take care of his kids that weekend was probably in Bert's cognitive system, but I would say that the knowledge that he was leaving them alone for 24 hours or more very probably was not, and so legally - as I understand the term "knowingly" -, he wasn't guilty.
However, I think that's a problem with the law. In my assessment, Bert behaved immorally and deserved to be punished for that, though his behavior would have been more immoral if he had done it knowingly.

With regard to "one off" lapses, I tend to agree with you, with the potential caveat that I think it's the degree of harm that should have been expected given the information available to the agent what counts from a moral perspective (i.e., non-moral practical reasons aside), rather than actual harm (but I say it's a "potential" caveat because you also say "where there are good/important reasons to remember", which suggest an approach based on the information available to the agent rather than actual harm).

As an aside, I think another difficulty with the law is the sharp line that makes a difference between zero punishment and potentially considerable prison time in cases that are morally almost identical (e.g., 23 hours 50 minutes vs. 24 hours 10 minutes), though that's an example of a much more widespread issue - i.e., not just a problem for this particular law. I think a gradual scale would be much more just, but I know there are practical difficulties.

Readers might be interested in the following paper by Matt Doucet on weakness of will attributions. Though this is on a slightly different topic, there are a few strongly overlapping themes. They find that non-psychological features such as failing to form important commitments is a big trigger for weakness attributions. Second, as Eddie was suggesting above in this case, they also find that attributions are sensitive to badness of the outcome. Of course there's probably sure to be a lot of differences between evaluating weak will and responsibility, but these data definitely seems like some evidence consistent with Katrina's view.

http://link.springer.com/article/10.1007%2Fs11229-014-0508-0

Katrina, one thing that bothers me about Bert's case is that he and his ex shared custody. To my mind that also entails some sort of shared responsibility (and this would hold so long as some sense of responsibility was relevant here) . The fact that the mom left the kids but may not have tried to confirm her ex's take-over of the kids bothers me. Did she attempt to do so (say at least by leaving a message on his machine at home that he may not have heard due to his lapse)? That would make a huge difference in my assessing Bert's culpability, and absolving her. Say that she didn't do that but also knew that he was prone to some lapses of memory in the past (anniversaries, etc.). Then her share of being responsible would accrue in another way (to my mind). Handing over children for temporary custody does not as a matter of fact absolve a parent of at least trying to establish that even typical past circumstances have obtained.

(An aside on mens rea. It seems to me that statutes that do not mention a mens rea component may import it through the back door of prima facie neglect. Namely, certain conduct like driving safely requires due attention to the task (and maybe not even conscious attention, but as Neil says of effectively grooved and intentional-style non-conscious systems that have not been over-ridden by other conscious distractions like texting), and so swerving and striking a curb may be prima facie evidence of the failure to drive attentively, absent bad involuntary spasms, a spider-bite, or some such. So the mens rea component is some failure to embody proper intent--the intent to drive safely. I'm not talking case law here--just what seems to me to be a philosophical mens rea account of negligence.)

Interesting discussion. I think that it is quite often difficult to know to what extent an agent was morally responsible for something she did. However, do lapses really raise any special epistemic problems? I can't see why they would.

Suppose, for the sake of argument, some quality-of-will account of moral responsibility. Now suppose that Bert hits one of his kids. It doesn't seem as if he had a psychological breakdown where he did not really know what he was doing, and it doesn't seem as if his arm just had a spasm. The best explanation as to why he hit the kid is that he wants to hurt her, and so he is blameworthy for the action.
Now suppose instead that Bert forgets about his kids. It doesn't seem as if he was under such extreme stress that he just couldn't think straight, and it doesn't seem as if he has a serious memory problem. The best explanation as to why he forgot about his kids is therefore that he doesn't care much about them, and so he is blameworthy.

Sure, we can think of scenarios where it is a mere coincidence that he both doesn't care much about his kids and forgot about them - for instance, if Bert was put under such extreme pressure that it would cause anyone to break down and forget even the most important things. Likewise, we can think of scenarios where it is a mere coincidence that Bert both wants to hurt his kid and hits her - for instance, if Bert had some kind of breakdown or spasm in his arm. But are there really any special epistemic problems relating to lapses?

Wow, thanks to everyone for the great comments. This is going to be a fun month.

I don’t want to say too much in response, because my next post – I think I’ll put it up on Thursday – will make my views a bit more clear and should answer at least a few of the questions.

But…

Eddy: Yep, Bert was a jerk. As you’ll see in one of my future posts, I’m not sure a tracing condition can actually account for the way our intuitions seem to track level of harm caused. That the harm caused was potential harm to kids makes our sense of “should have known better!” stronger, but I’m not sure that stronger demand for responsible behavior actually means it is more likely that at any point Bert consciously disregarded the risk.
The law’s sense of “knowingly” is really interesting. But I think in general that in the case of an honest lapse, the law probably ought to apply a negligence standard (should have known) and not a knowledge standard.

David: Excellent response, and one that I think suggests much of what I’ll discuss in the next two posts. As I said to Eddy, though, I think Bert’s case may be better understood as a negligence case than a strict liability case. Having said that, the difference between these two standards is not well understood, and I’m going to argue that they both entail a minimum level of moral culpability…hmmm, now I’m wondering if there is any important difference between the two standards at all, from either a legal or a moral responsibility perspective. Food for thought.

Angra: I completely agree that required minimum sentences and a lack of judicial discretion in sentencing are huge problems that lead to unjust sentences. I’ll talk a bit about sentencing later in the month.

Alan: You know, I hadn’t thought much about the ex-wife’s responsibility. I remember getting the sense that she was tired of bearing the brunt of child care while her ex flitted about and skirted his responsibilities, and this time she had just decided “It’s his problem” and left for her weekend away. I think her frustration with Bert was understandable, but she did put the kids at risk when she failed to remind Bert. (She probably feared he would say he couldn’t take him, which would have ruined her weekend.) This may assign some responsibility to her, but does not, in my mind, remove any responsibility from Bert. I’m very interested to hear what you have to say in response to my discussion of negligence next week.

Sofia: Excellent comment. Another case I think is a problem for theories of responsibility that require consciousness are cases of extreme emotional distress (EED), where it seems that prefrontal executive functions go offline or are totally overwhelmed, such that the connectivity Neil says is required for consciousness is broken. Defendants who kill in such a state are found responsible under the law, though in some rare cases their responsibility is diminished to manslaughter. If the person habituated a trait of aggression it seems we might hold this person responsible via tracing conditions. But what if they were just raised in a scary, violent environment, and there was no conscious decision to be aggressive? Then there may be no culpable conscious decision to trace back to. Yet I think the law is right to hold a person who kills under EED responsible. Getting back to your comment, this may mean that both lapse cases and EED cases cause epistemic problems, instead of your thought that neither do.

I'm in agreement with the comments made by Eddy, David Shoemaker, and others but I wonder how this issue relates to HLA Hart's concept of "role responsibility" (Punishment and Responsibility). The example that Hart mentions (if I remember correctly) is a ship captain who is responsible for a wreak even if (to use the language above) he lacks conscious awareness of key aspects of the wreck. In my dissertation, I argued that role responsibility can be tied to moral responsibility through the kind of tracing principle you alluded to above. So I'm interested in reading your future comments on tracing, Katrina!

I will just note that it is extremely unlikely that folk intuitions about moral responsibility are grounded in deterrence, at least if we understand "grounded" in terms of what considerations they are sensitive to. There's lot of data that folk intuitions are almost entirely insensitive to consequentialist considerations, either deterrence or incapacitation; variance is 99% explained by retributivist impulses. Our intuitions are almost certainly *distally* grounded in consequentialist considerations, since it is hard to see how evolution could be sensitive to retribution. But as usual we need to be sensitive to the distal/proximal distinction: what evolved were retributive impulses though why it evolved was independent of such impulses.

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