Overpunishment and the Punishment of the Innocent
The deep, pervading sense is that punishing innocent people is abhorrent. We also have evidence indicating that the overpunishment of guilty people –
punishing them more than they morally deserve for the crimes they are convicted of – is a widely prevalent practice in many western countries, such as the US. Morally, overpunishment (OP) seems to be equivalent in terms of the injustice it involves to the punishment of the innocent (POI). This suggests a radical inconsistency: we acquiesce in and seem hardly troubled by practices (OP) that seem to be morally equivalent to other practices (POI) we hold to be abhorrent and go out of our way to prevent. So what are we to make of this? I explore the predicament, and conclude that, for strong and diverse moral reasons, the punishment of the innocent and the overpunishment of the guilty are not morally equivalent.
Overpunishment and the punishment of the innocent. Analytic Philosophy. https://doi.org/10.1111/phib.12235
Black Magic and Respecting Persons - Some Perplexities
Black magic (henceforth BM) is acting in the attempt to harm human beings through supernatural means. Examples include the employment of spells, the use of special curses, the burning of objects related to the purported victim, and the use of pins with voodoo dolls. For the sake of simplicity, we shall focus on attempts to kill through BM. The moral attitude towards BM has not been, as far as we know, significantly discussed in contemporary analytic philosophy. Yet the topic brings up interesting questions and poses challenges, raising perplexities and occasionally even reaching the level of paradoxes. Ideas of respecting persons, in particular, will be seen to be challenged by this form of magic. The notion of respecting persons will be treated here broadly and pluralistically. Indeed part of the interest in the discussion will be the unfolding of the diverse ways in which this term needs to be understood, and the contrasts between its various uses. Often, as we shall see, respect for persons and disrespect for them, in different senses, will co-exist, and the dilemma will be one where avoiding some forms of disrespect will involve us in disrespect in other senses.
(Saul Smilansky and Juha Räikkä) "Black Magic and Respecting Persons - Some Perplexities", Ratio 33 (2020): 173-183.
Pereboom on Punishment - Funishment, Innocence, Motivation, and Other Difficulties
In 'Free Will, Agency, and Meaning in Life', Derk Pereboom proposes an optimistic model of life that follows on the rejection of both libertarian and compatibilist beliefs in free will, moral responsibility, and desert. I criticize his views, focusing on punishment. Pereboom responds to my earlier argument that hard determinism must seek to revise the practice of punishment in the direction of 'funishment', whereby the incarcerated are very generously compensated for the deprivations of incarceration. I claimed that funishment is a practical 'reductio' of hard determinism. Pereboom replies, but I claim that he misses a key component of my 'reductio', the idea that moving in the direction of funishment will considerably weaken the deterrence of potential criminals so that hard determinism becomes self-defeating in practice. Beyond the challenge of funishment, I raise various other difficulties with Pereboom's model, concerning its deeply unintuitive implications, the harm it does to the motivation of potential criminals, its weakness in resisting utilitarian-like dangers, and more. Our conclusions should lead to a re-evaluation of the compatibilist interpretation of moral life, as a richer, more plausible, and safer interpretation than hard determinism. This needs to be combined with a true hard determinist acknowledgment of the deep injustice and tragedy involved in punishment in light of the absence of libertarian free will. Such a complex view will come closer to doing justice to notions of justice, morality, and decency.
Criminal Law and Philosophy: An International Journal for Philosophy of Crime, Criminal Law and Punishment
"Pereboom on Punishment - Funishment, Innocence, Motivation, and Other Difficulties", Criminal Law and Philosophy, symposium on Derk Pereboom's Free Will, Agency, and Meaning in Life, 11 (2017): 591-603.
Parfit on Free Will, Desert, and the Fairness of Punishment
In his recent monumental book On What Matters, Derek Parfit argues for a hard determinist view that rejects free will-based moral responsibility and desert. This rejection of desert is necessary for his main aim in the book, the overall reconciliation of normative ethics. In Appendix E of his book, however, Parfit claims that it is possible to mete out fair punishment. Parfit?s position on punishment here seems to be inconsistent with his hard determinism. I argue that Parfit is mistaken here, in a way that leads him to unjustified optimism about the possibility of fair penalization. Insofar as we take the free will problem seriously, we cannot reconcile a belief in the absence of desert with a belief in the fairness of penalization.
The Journal of Ethics
"Parfit on Free Will, Desert, and the Fairness of Punishment", Journal of Ethics, special issue on moral responsibility, 20 (2016 ): 139-148.
A Difficulty Concerning Compensation
We sometimes harm people legitimately, by standing in front of them in the queue at the cinema and buying the last available ticket, for instance, or by acting in self-defense. If we harm them illegitimately, however, we ostensibly have a moral obligation to compensate them for the harm done. And the more we harm them, the greater the compensation that, prima facie, we need to offer. But if the harm increases further, at some point we will need to offer less compensation. Yet more harm, and it is quite likely that no compensation at all will be morally expected. In such situations, the greater the harm, the better off we will be, morally, in one important respect. This is morally absurd but, I claim, true, and it does not appear to have received significant philosophical attention. I explore the issue.
Journal of Moral Philosophy: An International Journal of Moral, Political and Legal Philosophy
"A Difficulty Concerning Compensation", Journal of Moral Philosophy 10 (2013 ): 329-337.
Why Moral Paradoxes Matter: ?Teflon Immorality? and the Perversity of Life
"Teflon immorality'' (or TI) is immorality that goes on unchecked -- the wrongdoing is not stopped and its perpetrators, beyond the reach of punishment or other sanction, often persist in their immoral ways. The idea that the immoral prosper has been recognized as morally (and legally) disturbing presumably for as long as humanity has been reflective, and can be found already in the Bible. The reasons behind a great deal of successful immorality are important practically, but uninteresting philosophically. Sometimes, however, we face events that are more interesting philosophically, and Teflon immorality results from oddities such as moral paradoxes and perversions. These, however, have remained largely unnoticed. I will outline a tentative survey of this topic. After showing its pervasiveness and importance, I will briefly reflect on its relevance to the way we should think about morality and about the means to further it, and confront possible objections.
Philosophical Studies: An International Journal for Philosophy in the Analytic Tradition
"Why Moral Paradoxes Matter: ?Teflon Immorality? and the Perversity of Life", Philosophical Studies, 165 (2013 ): 229-243.
Hard Determinism and Punishment: A Practical Reductio
How can hard determinism deal with the need to punish, when coupled with the obligation to be just? I argue that even though hard determinists might find it morally permissible to incarcerate wrongdoers apart from lawful society, they are committed to the punishment's taking a very different form from common practice in contemporary Western societies. Hard determinists are in fact committed to what I will call funishment, instead of punishment. But, by its nature funishment is a practical reductio of hard determinism: it makes implementing hard determinism impossible to contemplate. Indeed, the social practices that hard determinism requires turn out to be morally bad even according to hard determinism itself. I conclude by briefly reflecting upon the implications.
Law and Philosophy: An International Journal for Jurisprudence and Legal Philosophy
"Hard Determinism and Punishment: A Practical Reductio", Law and Philosophy 30 (2011 ): 353-367.
More Prepunishment For Compatibilists: A Reply to Beebee
I have argued that compatibilism has difficulties resisting prepunishment, and that it is thus a much more radical view than is typically presented and perceived. Helen Beebee presented two counterarguments, which I examine.
"More Prepunishment For Compatibilists: A Reply to Beebee", Analysis 68 (2008 ): 260-263.
Prepunishment For Compatibilists: A Reply to Kearns
I have argued that compatibilism cannot resist in a principled way the temptation to prepunish people, and that it thus emerges as a much more radical view than is typically presented and perceived; and is at odds with fundamental moral intuitions. Stephen Kearns has replied, and in the present paper I examine his arguments.
"Prepunishment For Compatibilists: A Reply to Kearns", Analysis 68 (2008 ): 254-257.
Determinism and Prepunishment: The Radical Nature of Compatibilism
I argue that compatibilism cannot resist in a principled way the temptation to prepunish people. Compatibilism thus emerges as a much more radical view than it is typically presented and perceived, and is seen to be at odds with fundamental moral intuitions. The traditional compatibilist stance, according to which determinism does not really change anything, morally, is thereby 'shown' to be false.
"Determinism and Prepunishment: The Radical Nature of Compatibilism", Analysis 67 (2007 ): 347-349.
Control, Desert, and the Difference Between Distributive and Retributive Justice
Why is it that we think today so very differently about distributive and retributive justice? Why is the notion of desert so neglected in our thinking about distributive justice, while it remains fundamental in almost every account of retributive justice? I wish to take up this relatively neglected issue, and put forth two proposals of my own, based upon the way control functions in the two spheres.
Philosophical Studies: An International Journal for Philosophy in the Analytic Tradition
"Control, Desert, and the Difference Between Distributive and Retributive Justice", Philosophical Studies 131 (2006 ): 511-524.