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Preface ix Introduction 1 CHAPTER 1: The Problem of Responsibility 11 CHAPTER 2: The Problem of Punishment 27 CHAPTER 3: Foundations of a Kantian Retributivism 49 CHAPTER 4: Assessing Re

THIRD EDITION

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RESPONSIBILITY AND PUNISHMENT

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© 2006

Diane Bellotto Corlett

Preface ix

Introduction 1

CHAPTER 1: The Problem of Responsibility 11

CHAPTER 2: The Problem of Punishment 27

CHAPTER 3: Foundations of a Kantian Retributivism 49

CHAPTER 4: Assessing Retributivism 71

CHAPTER 5: Forgiveness, Apology, and Retributive Punishment 107 CHAPTER 6: Capital Punishment 131

CHAPTER 7: The Problem of Collective Responsibility 147

CHAPTER 8: Corporate Responsibility and Punishment 165

CHAPTER 9: Collective Wrongdoing, Reparations, and Native Americans 183

Conclusion 227

List of Sources 231

I am grateful to Joel Feinberg and Keith Lehrer for incisive comments on an early version of the contents of Chapter 4 I am grateful to Feinberg, Margaret Gilbert, Lehrer, James Nickel, and Burleigh Wilkins for helpful comments on earlier sections or drafts of Chapter 7 A section of this chapter was presented at the Conference on War, Collective Responsibility, and Inter-Ethnic Reconciliation, University of Belgrade, Belgrade, Yugoslavia, 27 June 1998 Another section

The contents of this book represent nearly twenty years of studying and assessing critically philosophical work in the areas related to responsibility and punishment theories Certain chapters or sections of chapters of this book contain materials that I have contributed to various philosophy journals or other sources For example, the contents of Chapter 3 consists of a revised version of

an essay by the same title published in The Southern Journal of Philosophy to

which thanks are expressed for the use of it herein Substantial sections of

Chapter 4 consist of my essay, “Making Sense of Retributivism,” Philosophy,

76 (2001), pp 77-110, and gratitude is expressed to the Royal Institute of Philosophy, London, and Cambridge University Press, for use of it here Chapter 5 is a revised version of an article having the same title forthcoming in

the American Philosophical Quarterly, and gratitude is expressed to North

American Philosophical Publications, Inc., for kind permission to use the contents of that article herein The content of Chapter 7 is a revised version of

“Collective Moral Responsibility,” in A Jokic, Editor, From History to Justice

(New York: Peter Lang Publishers, 2001), pp 305-18 The contents of Chapters

7-8 are essentially revised forms of articles by the same titles from the Journal

of Social Philosophy, and gratitude is expressed to Blackwell Publishers for use

of both articles in this book Chapter 9 contains substantial material from

“Reparations to Native Americans?” in A Jokic, Editor, War Crimes and

Collective Wrongdoing (London: Blackwell Publishers, 2001), pp 236-69 I am

thankful to Blackwell Publishers for use of that material in this work The “List

of Sources” represents a comprehensive list of sources I have consulted over the years in my writing and revision of this book I have made every attempt to give credit where credit is due concerning the ideas presented herein where ideas have, as far as I can discern, originated with authors other than myself I beg the apologies of those philosophers whose work was not consulted or cited that pertains to the issues dealt with in this book I have, however, made an ardent attempt to consult as many philosophical sources as possible that concern responsibility, punishment, and related topics

was presented to The Serbian Philosophical Society, 1 July 1998 I am grateful

to the participants of each session for their valuable comments, especially those from Jovan Babic, David Cooper, Aleksandar Jokic, Natalija Micunovic, Michael Slote, and Svetozar Stojanovic For helpful comments on versions of Chapter 9, I am grateful to Robert Audi, Bernard Boxill, Anthony Ellis, Gilbert, Richard W Miller, Jan Narveson, Nickel, Rodney C Roberts, Slote, and Wilkins for incisive comments on earlier drafts of this chapter Parts of this chapter in earlier draft forms were presented at the Canadian Society for the Study of Practical Ethics, Canadian Learneds Society, 1997, and at the Conference on War Crimes: Legal and Moral Issues, University of California, Santa Barbara,

1997

I am grateful to Ishtiyaque Haji who provided critical insights on the First

Edition of this book by his supportive assessment of it in Mind, 111 (2002), pp

847-52 I am also grateful to The Royal Institute of Philosophy in London for

the adaptation of part of my “Making More Sense of Retributivism,” Philosophy,

78 (2003), pp 277-85, on the nature of desert to the discussion of desert in Chapter 4 of this edition For final proofreading and indexing of this edition, I owe thanks to Eduardo Salazar and Fernando Serrano

This edition features an updating of material on responsibility theory, a revision of some of the principles of proportional punishment in the defense of

my own version of retributivism, some revisions concerning my conception of desert in light of recent philosophical work done on desert theory, a complete re-writing of the chapter on forgiveness and mercy in light of recent work done

in this area, and a new chapter devoted to capital punishment All in all, strong efforts have been made to address many of the issues found in the most recent philosophical literature on responsibility and punishment

To those who might find the contents of this book, in whole or in part, worthy of their philosophical reflection and critical scrutiny, I express my sincere gratitude, in advance, to you

J Angelo Corlett

San Diego, CA

Autumn, 2005

Few social problems today seem to cause as much dissension among people as the problem of punishment As crime rates soar in various countries around the world such as the United States of America, some of the republics of the former Soviet Union, Brasil, Colombia, the United States of Mexico, and the United Kingdom, reports of violent crimes have become commonplace What should

be done in order to solve the problems associated with crime? A comprehensive answer to this question is not offered in this book For such an answer would not only involve providing answers to an array of sociological and psychological questions about human behavior and motivation, and how to counter-balance the myriad of motives concerning why criminals commit wrongful deeds, but it would entail a plausible theory of how we ought to act, and why, so that crimes can be effectively minimized These and other queries concerning the solution to the problem of crime are beyond the scope of this book Rather, this book is primarily concerned with some of the problems of responsibility and punishment, and it makes no pretensions as to how the problems of crime ought to be solved.1 Since crime is a fact of life in every sizeable society, this project takes on the task of analyzing philosophically the natures and justifications of responsibility and punishment For if the problem

of crime itself cannot be solved, the least we owe ourselves is a proper understanding of how best to respond to some crimes, and plausible reasons why punishment is either justified or obligatory to the extent that it is inflicted

on responsible agents

The cluster of philosophical issues that constitute the problem

of punishment has posed challenges to philosophers and legal scholars

2

John Rawls’3 invaluable distinction, echoed by Stanley Benn4 and

1 Obviously, there is a sense in which punishment may to some extent and in some cases deter crime, thereby serving as a partial solution to the crime problem However, I construe punishment in terms of the state's response to crime, rather than as a preventative solution to it.

2Anthony M Quinton, “Punishment,” Analysis, 14 (1954), pp 133-142 [ cited in Joel Feinberg,

“On Justifying Legal Punishment,” in Carl J Friedrich, Editor, Responsibility (New York:

The Liberal Arts Press, 1960), p 161, note 5].

3 John Rawls, “Two Concepts of Rules,” The Philosophical Review, 64 (1955), pp 3-13 Pagination for purposes of this book is found in John Rawls, Collected Papers, Samuel

Freeman, Editor (Cambridge: Harvard University Press, 1999), pp 20-46.

4 Stanley Benn, “An Approach to the Problems of Punishment,” Philosophy, 33 (1958),

pp 325-41

1

for generations, and includes such matters as Anthony M Quinton’s and

H L A Hart,5 respectively, between the justification of the institution of punishment and the justification of particular forms of punishment Under this twofold distinction of questions concerning punishment fall a number of other important queries, such as “What is the nature of punishment?” “What is the function of punishment?” “What is the legal justification of punishment?”

“What is the moral justification of punishment?” “How ought punishments to

be meted out?” These questions, taken cumulatively, constitute questions that some have argued are required for a theory of punishment.6 Providing answers

to these and related questions concerning the problem of punishment not only reveals a conundrum of philosophical theories that compete with one another to answer plausibly the problem of punishment, but they also show how dependent at least some of the these punishment-related issues are for their answers on the concept of responsibility

Although much has been gained in the history of philosophical discussions regarding responsibility and punishment, there remain some basic confusions

In recent years, for instance, many philosophers have launched attacks against retributivism Such critical discussions include the objections that retributivism

is uniquely problematic in that it relies essentially on the dubious notion of desert, and that retributivism faces the unique difficulty of devising an adequate theory of proportional punishment To be sure, others have even argued or implied that retributivism is implausible because it fails to account for the ideas

of forgiveness and mercy, while still others seem to condemn retributivism because it entails, they believe, some notion or other concerning vengeance These are among the most important objections to retributivism, and each requires careful consideration in order to establish the status of retributivism’s overall plausibility as a theory of punishment

In the interest of philosophical charity and fairness, I seek to defend a version of retributivism that might rightly be termed “Kantian” in that it draws significantly, though not entirely, from some of Immanuel Kant’s words on punishment I argue that some of the previously mentioned objections to retributivism misattribute to retributivism some feature or other that retribu-tivists neither do not nor need not hold This is surely the case, for example, regarding the assumption that retributivism entails vengeance, that is, if Joel

Feinberg’s7 and Robert Nozick’s incisive distinction between retribution and vengeance is plausible.

8

It is also disingenuous to think that retributivist theories of punishment cannot accommodate the concepts of forgiveness and mercy and are therefore problematic on moral grounds It is certainly conceptually possible to hold, for instance, that the state has a right and imperfect duty of justice to punish criminals, while at the same time argue that the state can exercise forgiveness and mercy toward criminals under certain circumstances of justice One important question such a theory would face is how seriously it takes moral and legal responsibility of individuals and collectives But we must never presume that forgiving a person, criminal or not, is always the right thing to do

Perhaps the greatest confusion in responsibility and punishment theories seems to be the assumption that retributivism suffers uniquely from the often perceived “malady” of being based substantially on the controversial notion of desert However, there seems to be no plausible positive theory of punishment

that would not base itself on the concept of desert For if it did not, then it

would be subject to the problem of justifying the state’s inflicting hard treatment on innocent persons, i.e., those who do not deserve hard treatment In Rawls’ words, it would justify the infliction of “telishment” (e.g., punishment

of innocent persons).9 So whatever turns out to be the most (and adequately) plausible analysis of the nature of desert seems to be foundational to any plausible positive theory of punishment And if there are difficulties with the

notion of desert, they do not plague retributivist theories alone What theory of

punishment, in other words, would dare insist that desert is not essential to who

is and who is not rightly punishable? The real question about desert is not whether or not it is crucial to a plausible theory of punishment, but precisely what is the nature of desert? To this end, I proffer my own analysis of desert as moral responsibility coupled with proportional punishment The details of this concept are worked out in Chapter 4

Similar things might be said of the objection to retributivism concerning proportional punishment It is a grand confusion indeed to think that only retributivists face the daunting challenge of having to provide a plausible account of proportional punishment Of course, what counts as proportional punishment is linked to the idea of desert For the extent to which a criminal

7Joel Feinberg, Editor, Reason and Responsibility (Belmont; Dickenson Publishing Company,

Inc., 1965), pp 296-99

8 Robert Nozick, Philosophical Explanations (Cambridge: Harvard University Press, 1981), pp

366-68 The more general point that punishment is not revenge is made in Ted Honderich,

Punishment, Revised Edition (London: Penguin, 1976), p 14

9 Perhaps what Rawls has in mind here are the words of F H Bradley: “Punishment is

punishment only where it is deserved” [F H Bradley, Ethical Studies, Second Edition

(Oxford: Oxford University Press, 1927), pp 26-7]

ought to be punished should always be a matter of what she deserves, as opposed to what she does not deserve Moreover, it is interesting to note that retributivists such as Kant have not directly devoted as much of their writing to the problem of proportional punishment as the utilitarian Jeremy Bentham Clearly, any positive theory of punishment, retributivist or not, must concern itself with the nuances of proportional punishment As with the concept of desert, so with the concept of proportional punishment: the question is not so much whether or not a theory of punishment ought to provide an account of proportional punishment Rather, the more important question is which analysis

of proportional punishment is most plausible, and why? Furthermore, can retributivist theories of punishment be made congruent with the most plausible account of proportionality? In Chapter 4, I discuss some issues of proportional punishment, and provide a set of principles that are designed to serve as a propadeutic to thinking about proportional punishment from a retributivist standpoint

Having noted some of the clarificatory contributions of this book, I now turn

to a summary of the general flow of argument herein The basic argument of this book will be that the anti-retributivist arguments considered herein either commit a straw person fallacy, refuting a version of retributivism that is so extreme that not even Kant (in the minds of most philosophers, a paradigmatic retributivist) would subscribe to it, or that such objections count equally against every positive theory of punishment (or both) After warding off some of the most important criticisms of retributivism, I set forth a Kantian version of it that, though somewhat less stringent than Kant’s in at least some vital respects, nonetheless evades the objections typically raised against retributivist theories Indeed, the concept of desert as responsibility and proportional punishment forms the basis of my version of retributivism In fact, these concepts form the

basis of any plausible theory of punishment! Another consequence of my

argument is that if it is plausible, it reveals a striking fact about much of what has transpired in punishment theory in recent decades of philosophical analysis More specifically, in Chapter 3 I argue by way of primary textual evidence that Kant is not as “pure” a retributivist (of the anti-utilitarian variety) as many think he is Instead, he makes, at least by way of implication, a key concession

to considerations of social utility in his view of what justifies both the institution and particular forms of punishment If this is true, then it is incorrect

to state, as many do, that Kant is the arch-defender of the narrowest or purist kind of retributivism as an anti-utilitarian view of punishment Kant, then, seems to be more of a retributivist of a “mixed” or impure type And classifications of Kant into the pure retributivist camp are simplistic readings of the entirety of what Kant wrote about punishment

Subsequently, I argue that the same conditions of responsibility in individual cases are precisely the same ones that serve as the basis of collective

responsibility for purposes of morality and the law I consider and ultimately reject proposals that collective responsibility can accrue to aggregates or random collectives in favor of a position that collectives are rightly held accountable for their harms to the extent that they are conglomerates with decision-making structures and the like Not only, then, does my analysis uniquely place moral responsibility theory at the heart of what justifies punishment (normatively speaking), it extends the analysis of responsibility and punishment to certain kinds of collectives All the while, my theory of punishment reflects a uniquely nuanced Kantian version of retributivism

My theory of retributive punishment provides answers to some important questions about punishment, questions pertaining to the nature of punishment, its justification, the conditions of criminal responsibility, and some related matters For instance, insofar as the justification of the institution of punishment is concerned, the reason why the state ought to punish is because offenders deserve it What does it mean to say that an offender deserves punishment? It means, concisely, that to the extent that an offender is responsible for her offence, she should be punished in proportion to her harm to others What does it mean to say that an offender is responsible for her harm

to others? It means, generally, that she was at fault in acting, failing to act

or attempting to act wrongfully and harm others, and that she has done so intentionally, knowingly, and voluntarily And it is the extent to which she acts

in these ways that she may and ought to be punished for her wrongful harm to others

However, offenders ought to be punished, but they ought not to be punished disproportionately to the harm they have wrongfully caused to others This is not intended to advocate a strict or exact proportionality between criminal harms to others and punishments Instead, my theory of punishment, not unlike Kant’s, holds to an approximate proportionality concerning punishment But principles to guide proportional punishment are needed, and I provide and explore the plausibility of a number of such candidate principles A handful of such principles are articulated, discussed and some are accepted as being worthy of being adopted by a reasonably just legal system This deontological feature of my theory of punishment makes even more obvious its Kantian influence

Subsequent to proffering a defence of a Kantian retributivism, I explore the nature and plausibility of forgiveness and mercy Some different conceptions of forgiveness are evaluated critically until a reasonable understanding of the possible nature and function of forgiveness and mercy in a legal system emerges A new “offender-centered” analysis of the nature of forgiveness is

explicated in terms of the concept of an apology Forgiveness requires a

genuine apology, though a true apology in no way makes forgiveness necessary

from the moral standpoint Forgiving is something altogether different Anyone

can forgive others as s/he pleases But this in no way entails forgiveness The words and even actions of forgiving oneself or others are not performatives, as

is sometimes thought by certain philosophers who espouse quasi-religious metaphysical beliefs about forgiveness and reconciliation As philosophers,

we must not presumptuously assert that forgiveness aims at or entails ciliation Nor ought we ever to assume without adequate argument that forgiving self or others is in itself morally virtuous Such assumptions beg important questions against punishment itself, or against certain kinds of punishments

recon-In Chapter 6, I set forth a basic argument in favor of capital punishment I then raise several objections to it In the end, it will be argued that the demands

of responsibility and proportionality require capital punishment in particular

cases That is, to the extent that an offender illicitly takes the life of another

agent and to the extent that she does so while satisfying strongly each of the conditions of responsibility, that is the extent to which she deserves capital punishment Under such circumstances, to not punish her with death would be

to ignore considerations of responsibility and proportionality, e.g., desert Indeed, it would be unjust

With the notion of collective responsibility in place, in Chapter 8 I set out to apply this analysis to cases of corporate-collective harmful wrongdoing Of course, in cases of collective harmful wrongdoing the range of what the state can and ought to do is different in kind than with individual harmful wrongdoings Although certain responsible corporate-individuals might be imprisoned (even put to death, on my view) for harms they have caused to others wrongfully, the collective to which the most guilty members belong is subject to be forced to pay compensation for damages, assuming that it is truly responsible for a wrongdoing Its deeper pockets become the state’s target of retribution Thus the category of punishment takes on a broader meaning as it pertains to the corrective justice of collectives such as corporations While corporate veils can and sometimes should be pierced in order to punish certain corporate-individuals most directly responsible for harmful wrongdoing, the

In Chapter 7 the shift turns to matters of collectives What is a collective? Ought certain of them to be held accountable for what they do to harm others wrongfully? If so, under what conditions should they be held responsible, and why? I set forth and defend the first full-blown philosophical analysis of the nature of collective (moral) responsibility The basic conditions of collective moral responsibility parallel those of individual moral responsibility, and there

is an important distinction drawn between the question of whether or not decision-making collectives typically do satisfy such conditions (and, if so, to confusion in responsibility theory results from not respecting this distinction what extent) and the question of whether or not they can be re-made too Much

corporation qua corporation cannot be punished physically (in the strict sense

of “punishment”), but instead must be forced to pay compensatory damages But what about states? Should they be held accountable for the atrocities they commit against others? Recent cases of state harms to others concern Serbians and Albanians, and even U.S soldiers and Albanians These cases raise the issue of war crimes and reparations for such crimes Other historical instances of where states have been held accountable for war crimes and crimes against humanity include Nazi Germany’s genocide of millions of Jews, homosexuals, and others deemed “undesirable” by the Nazi regime These crimes, along with the examples of when the U.S permitted, even encouraged, generations Millions of such persons were killed and tortured in those tragic incidents, yet no reparations have been paid to African Americans,10 and very little has been done to adequately compensate Native Americans for the holocaust and land theft that took place in many instances by the U.S government It is this latter case that forms the focal point of Chapter 9 where the case for reparations to Native Americans is set forth Several objections to such compensatory justice are considered and then rejected for a variety of reasons In the end, some policies of reparations to Native Americans are outlined, each one rejected as being inadequate as a mode of compensation None comes close to proportional compensation for the harms done Indeed, one is left with the realization that, though considerable means of compensation

to Native Americans and African Americans might become realized in a state which genuinely respects those against whom it has engaged in genocidal acts,

it is transparent that the U.S was not, is not, and is unlikely to become such a rights-respecting society when it comes to its paying the tragic debts that it owes to the millions of the descendants of those murdered by U.S armed forces In this respect, the U.S seems to qualify as what Rawls terms an

“outlaw state.”11

In sum, this book discusses philosophically the concept of punishment in a manner that binds it inextricably to that of responsibility As a version of retributivism gradually emerges, it becomes clear that the concept of responsi-bility forms the basis of the content of desert claims in criminal justice contexts But responsibility also serves as the ground for sentencing for the same retributivist, as criminals are to be punished to the extent that they wrongfully harm others, and (when possible) in similar ways that they harm others In other words, criminals are to be punished in proportion to their wrongful harms to

10 For a discussion of this point, see Roy Brooks, Editor, When Sorry is Not Enough (New York: New York University Press, 1999), Parts 6-7; Randall Robinson, The Debt (New York:

Dutton, 2000)

11 John Rawls, The Law of Peoples (Cambridge: Harvard University Press, 1999)

the enslavement of millions of Africans and thousands of Native Americans for

others wherein by “harms” is meant to include actions, omissions and attempted actions And this holds true both for individual criminals as well as corporate or based on the dual concepts of responsibility and proportionality When I say, for instance, that Susan Smith (the South Carolina mother who was found guilty of the murder of her two infant children by drowning them in a lake by way of locking them in her automobile, strapped to the back seat) deserves capital punishment because she murdered her two children, I mean that she is

sufficiently responsible (ceteris paribus) such that some form of capital

punishment is what would be proportional treatment for what she did to the children, and to others

The contributions that this book seeks to make to both responsibility and punishment theories include the following First, although this project does not intend to make a contribution to contemporary moral responsibility theory itself, it seeks to conjoin directly and substantively the discussion of moral responsibility theory to punishment theory.12 In so doing, it suggests the broadening of the analysis of moral responsibility to include the concept of epistemic action (e.g., acting knowingly) in order to make it applicable to U.S (and perhaps to other) legal contexts of punishment I argue that the complex notions of criminal responsibility can be articulated more deeply in terms of the metaphysics of moral responsibility theory Second, this book analyzes the nature of desert in terms of the fundamental concepts of responsibility and proportional punishment Third, it provides a novel and morally challenging analysis of the nature of an apology, one which serves as a necessary condition

of forgiveness, a forgiveness which is under no circumstances morally obligatory

My distinction between forgiving and forgiveness demonstrates the differences between my analysis of forgiveness and other conceptions of what is often claimed to be forgiveness, but is really a form of forgiving Fourth, this project seeks to set straight the main issues pertaining to the morality of capital punishment Fifth, this book seeks to provide and defend a new analysis of collective responsibility that is applicable to U.S law and perhaps to other legal systems, both in terms of corporate-collective harmful wrongdoing and crimes committed by states against others Substantial philosophical energy is devoted

to the matters of compensatory damages owed by corporate-collectives that are,

12 Perhaps it is arguable that the very placing of the basics of moral responsibility theory, a genre

of philosophical-ethical literature which has been grounded in metaphysical concerns about human freedom and unfreedom, into the context of collective moral and legal responsibility theories is itself a contribution to moral responsibility theory and to punishment theory in general If so, I gladly accept my making this contribution both here and elsewhere However,

my claim is simply that I do not intend to make a contribution to (individual) moral responsibility theory or to punishment theory at the level of specific argumentation and analysis

other decision-making collective offenders The concept of desert, then, is

say, criminally negligent or otherwise liable for harms, and countries which are responsible for criminal wrongs against others Indeed, perhaps no other philosophy book on punishment from a Western perspective devotes so much attention to matters of corporate responsibility and punishment (compensation),

as well as to the problem of reparations

THE PROBLEM OF RESPONSIBILITY

The purpose of this chapter is to establish the conceptual framework for, and articulate some of the pivotal assumptions of, this book It attempts to set the stage for the analyses and arguments that follow, pointing the reader in the basic direction in which the philosophical discussion will ensue It contains some general remarks about the metaphysics of human action, and concludes with a concise sketch of what is meant by “moral responsibility,” a conception which can and ought to undergird legal conceptions of criminal (liability) responsibility

To be sure, some crucial questions of punishment are quite contingent on answers obtained from moral responsibility theory For example, that a criminal qualifies as punishable depends in part on the extent to which she committed (or failed to commit or attempted to commit, as the case may be)1 a harmful

wrongdoing responsibly, which at least means that she acted knowingly,

intentionally and voluntarily Moral responsibility theory has focused

sign-ificantly and directly on the nature of a moral agent's acting intentionally and voluntarily and the extent to which that would make one a morally responsible agent.2

Traditionally and philosophically speaking, it is held that a moral agent is properly construed as a morally responsible one (liable to praise or blame, reward or punishment) to the extent that she is a voluntary agent Generally, to

be a voluntary agent, one must, on the traditional view, be able to do otherwise

even in a context of voluntariness-reducing factors.3

The concepts of responsibility and punishment are related They imply each other, though perhaps not in a strictly logical sense The notion of punishment implies that if criminals are to be punished, then they must be responsible agents, contrary to an act utilitarian theory of punishment Thus responsibility

is at least a necessary condition of punishment Moreover, unless one is a punishment skeptic of the abolitionist variety, it would appear that whatever is plausibly argued of the nature and scope of legal responsibility ought to imply

3 For a discussion of a range of voluntariness-reducing factors, see Joel Feinberg, Harm to Self

(Oxford: Oxford University Press, 1986)

11

something about the punishability of a criminal, given the facts of the case It would appear, moreover, that legal responsibility ought to be construed in such

a manner that it is congruent with the nature of moral responsibility such that a general account of responsibility is co-terminus with the grounds that would morally justify the state’s right and/or duty to punish criminals But as Joel Feinberg points out:

Determining legal responsibility in problematic cases often

comes down to the questions of who ought to pay or who ought

to be punished and how much These questions are rendered

problematic by conflicting interests and principles of justice,

and the answers to them usually depend on what the judge

takes to be the “ends” or “purposes” of compensation or

Without attempting to resolve or even address the several intricate and worthwhile issues argued in moral responsibility theory during recent years, I will bring together in this chapter some of the important features of what a plausible (positive) account of responsibility would entail One assumption here

is that moral truth is determined by what the balance of human reason tells us about matters of responsibility, and that whatever the most plausible moral responsibility theory tells us about the nature of human accountability (praiseworthiness or blameworthiness) is what the criminal law ought to embrace, at least as much and as well as would be reasonable and practicable Here I want to focus on the more serious kinds of cases of responsibility rather than the minutia of culpable actions Furthermore, when I use the phrase

“action” and its cognates, I mean to use this as shorthand for actions, omissions (negligence) or attempted actions, as the case may be For if (positive or negative) responsibility accrues at all, it accrues to us on the basis of omissions and attempts as well as actions With Jeffrie G Murphy, I further assume that it

4 Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), p 27

5 Feinberg, Doing and Deserving, p 37

is an illusion ” However, the fact that the boundaries of moral responsibility

is the legitimate business of the state to punish by way of the criminal law.6Finally, I assume that actions are those doings or doing-related events that are motivated or are the result of our wants and desires.7 Each of these claims deserves intricate and rigorous philosophical attention However, none will receive attention in this book

DESIDERATA OF A THEORY OF RESPONSIBILITY

In order to guide our philosophical thinking about responsibility, it is helpful

to consider various desiderata of a plausible theory of responsibility Desiderata

of a plausible theory of responsibility include the following First, it is desired

that such a theory have a purpose, for instance, to serve as part of the

foundation of the elucidation of a theory of punishment This is certainly the point of my treatment of responsibility Without a purpose or aim, philosophical analyses seem often to be lost or even pointless.8 Thus there needs to be an aim

of a responsibility theory, preferably an explicit one

Second, it is desirable that a plausible theory of responsibility set forth and

defend the conditions under which an agent is rightly held accountable, even

punishable, for her actions In so doing, a theory of responsibility serves the function of grounding a theory of punishment’s justification

Third, it is desired that a theory of responsibility distinguish between the

different uses and senses of “responsibility” in order not to conflate such uses

and senses It is crucial to keep in mind that it is a specific but complex kind of responsibility that is the foundation of justified punishment

Fourth, it is desired that a theory of responsibility respect the distinction

between moral and legal responsibility.9 What amounts to moral responsibility and what amounts to legal responsibility are in many respects congruent with one another However, there are cases in which, say, criminals are legally responsible for actions for which they would not be morally responsible The legal category of strict liability serves as one obvious instance along these lines

6 Jeffrie G Murphy, Retribution Reconsidered (Dordrecht: Kluwer Academic Publishers, 1992), punishment ought to provide a moral justification of the state’s right to punish offenders [R A Duff, Punishment, Communication, and Community (Oxford: Oxford University Press,

2001), p 25

7 Alvin I Goldman, A Theory of Human Action (Princeton: Princeton University Press, 1970) Of

course, there is a wealth of philosophical literature challenging this sort of analysis of the nature of human action But a discussion of this analysis is beyond the scope of this project

8 Keith Lehrer, Theory of Knowledge, Second Edition (Boulder: Westview Press, 2000), p 7

9 For a discussion of legal and moral concepts of responsibility, see Peter Cane, Responsibility in Law and Morality (Oxford: Hart Publishing Company, 2002) For a review of Cane’s book, see J Angelo Corlett, “Review of Cane, Responsibility in Law and Morality,” Mind, 112

(2003), pp 328-31

p 15 I do recognize, as R A Duff insightfully notes, that a comprehensive theory of

For purposes of public safety the law sometimes holds responsible those who have the power to effect change given their role responsibility for something, even though they have little or no causal connection to a particular untoward event the harms from which the law seeks to protect citizens

Not only are there cases of legal responsibility that do not amount to moral responsibility, there are instances where one is morally responsible for something that the law, for whatever reasons, refuses to disallow by way of legislation An example would be categories of conduct that fall under the rubric of “there ought to be a law!” But for whatever reasons, there is no law prohibiting such conduct Perhaps one might argue that smoking in public ought to be made illegal (because it wrongfully harms others by setting back their legitimate interest in good health), in which case those who smoke would

be held legally responsible for their wrongdoing However, as things currently stand, smoking is banned only in particular regions (in the U.S., for instance, in California), and only inside public buildings and within a short distance from such buildings Thus there are instances of legal responsibility that do not add

up to moral responsibility, and there are, it might be argued, cases of moral responsibility that are not supported by law Furthermore, there are essentially hard cases in which morality and the law conflict.10

THE USES AND CONTEXTS OF “RESPONSIBILITY”

What are the different uses of “responsibility,” and what are the contexts of responsibility? Black’s Law Dictionary11 defines “responsibility” as “liability…a person’s mental fitness to answer in court for his or her actions…” and

“liability” as “The quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment.” Most of these aspects of responsibility are captured in ordinary usage, where “responsibility” and its cognates are used to refer to a variety of things At times “responsibility” is used to refer to obligations or duties one has, such as when “She is irresponsible” or “You cannot be trusted because you are not responsible” is uttered Moreover, university professors have professional roles that hold them accountable for certain behaviors in

10 An example of such a hard case, in U.S law, would be whether or not the First Amendment to the U.S Constitution ought to protect hate speech For a philosophical discussion of this problem, see J Angelo Corlett and Robert Francescotti, “Foundations of a Theory of Hate

Speech,” Wayne Law Review, 48 (2003), pp 1071-1100

11 Bryan A Garner, Editor in Chief, Black’s Law Dictionary, Seventh Edition (St Paul: West

Group, 1999)

certain situations as defined by institutional rules These are examples of the

duty use of “responsibility.”12

Moreover, there is the causal use of “responsibility.” I am responsible for an

outcome in the causal use if my action is in some significant way the result of what I did, failed to do or attempted to do or if what I did, failed to do or attempted to do was a contributory cause of that outcome We often assign causal responsibility to events (economic problems in society, winning athletic competitions, etc.) or persons (public officials, athletes, etc.) To say that I am responsible for a certain outcome in the causal use constitutes a “straightforward ascription of causality.”13

There is also the praise use of “responsibility.” This use of “responsibility”

places a moral judgment on its subjects Unlike the duty or causal uses of

“responsibility,” the praise use ascribes accountability to someone for what she did, where what she did was praiseworthy For example, when I say, “You are responsible for saving the drowning child!” I am ascribing to you an accountability for your heroic action for which you should be praised and perhaps rewarded

Moreover, there is the blame use of “responsibility,” the use of the

expression that attributes accountability to those who are blameworthy for what they do The blame use of “responsibility” is exemplified in the accusation,

“Former U.S president Andrew Jackson is significantly responsible for the attempted genocide (though not merely attempted genocide, as his actions actually led to the murders of thousands) of Native Americans in the U.S ”14

13 Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), p 130

14 Indeed, this is an example where blame and role uses of “responsibility” are conjoined For it was by virtue of his role as Commander-in-Chief of the U.S Army that Andrew Jackson was responsible for the carrying out of part of his campaign promise to commit genocide against

12 Hart calls this “role responsibility” {See H L A Hart, Punishment and Responsibility

(Oxford: Oxford University Press, 1968), Chapter 9 [Compare Kurt Baier’s notion of responsibility” in Kurt Baier, “Guilt and Responsibility,” in Peter A French, Editor,

“task-Individual and Collective Responsibility (Cambridge: Schenkman Publishing Company,

1972), p 52] This notion of responsibility is also captured by R S Downie when he writes:

“When collectives act individuals act, but those individuals act in roles whose capacities are

defined by the nature of the collective Individuals are authorized by their collectives to

act in certain ways, depending on the function of the collective” [See R S Downie,

“Responsibility and Social Roles,” in Peter A French, Editor, Individual and Collective Responsibility (Cambridge: Schenkman Publishing Company, 1972), p 70] I do not,

however, wish to imply that there are not important distinctions between this duty use of

“responsibility” and the duties that are implied by rights (given the correlation, however imperfect, between rights and duties) Surely the duty I have in virtue of my role or position is not necessarily implied by another's having a right, moral or otherwise, that holds against me

at that time Nor do I wish to discount the important distinctions that have been made between

duties and obligations [See Richard B Brandt, “The Concepts of Obligation and Duty,” Mind,

73 (1964), pp 374-93; E J Lemmon, “Moral Dilemmas,” The Philosophical Review, 71

(1962), pp 139-58]}

Native Americans in that they stood in the way of “Manifest Destiny.”

It is assumed that the person who is responsible in the blame use of the term is one who, if certain other conditions are satisfied, is a candidate for moral censure and/or punishment and that they are at fault in what they did Thus to say that one is responsible for an outcome in the blame use amounts to an

“imputation of fault.”15 Similarly, when I say, on self-reflection, that I am morally liable for an outcome, I mean that the weight of moral reasons supports the claim that I am to be held liable to punishment or sanction for my part in causing the outcome Barring strict liability, then, liability responsibility seems

to entail, at least in most cases, causal responsibility

Finally, there is the liability use of “responsibility.” This is closely related to

the blame use However, an outcome might be “one’s fault,” yet one is not subject to sanction for it, given, say, that the amount of damage or harm in the given case is negligible The liability use describes someone who is punishable,

an appropriate candidate for punishment or compensation due to negligence When I say that “Former U.S president Andrew Jackson is significantly responsible for the attempted genocide of Native Americans in the U.S.,” I mean that he ought to have been punished severely for his actions (assuming due process, of course).16

I have ascribed liability17 to Jackson

It is clear that various uses of “responsibility” may be linked in a single use, such as when I say that “Various executives of the large U.S.-based tobacco companies are responsible for deceiving the U.S public and profiting unjustly from such deception.” Here the causal, blame and liability uses of “responsibility” are combined Or, when I say, “You acted responsibly,” I may be combining the duty and praise uses of “responsibility.”

There are additional distinctions among the uses of “responsibility:”18

retrospective, prospective, and tout court Of these three, I am primarily

concerned with retrospective responsibility, or responsibility for what one did

in the past and/or for what one is doing in the present But as Joel Feinberg reminds us, I can be responsible for something where “something” is located in the future, which at times can be understood in terms of liability.19 Finally, I can be responsible “on balance,” which either ascribes or describes my

excellence of character This is responsibility tout court, where I am a responsible person, not necessarily responsible for anything.20

15 Feinberg, Doing and Deserving, p 136

16 Hart refers to this use of “responsibility” as “liability responsibility” (See Hart, Punishment and Responsibility, Chapter 9)

17 Feinberg, Doing and Deserving, pp 136-39

18 For an alternative categorization of responsibility types, see Baier, “Guilt and Responsibility.”

19 Joel Feinberg, “Responsibility for the Future,” Philosophy Research Archives, 14 (1988-89),

pp 93-113

20 Joel Feinberg, “Responsibility Tout Court,” Philosophy Research Archives, 14 (1988-89), pp

74-92

Not only are there different ordinary language uses of “responsibility,” there

are different contexts of responsibility There is legal responsibility, which is

when one is properly judged responsible for something according to the rules of

a legal system U.S law, for instance, has different conditions for criminal responsibility than it does for tort liability Since this book is primarily concerned with responsibility and punishment for crimes, an (albeit rather concise) account of criminal responsibility is helpful

The elements of criminal responsibility include: actus reus (a voluntary physical or bodily act, omission or attempt by the defendant); mens rea (the

defendant’s intent or state of mind at the time of the act, omission or attempt);

concurrence between the defendant’s actus reus and mens rea; and a harm

caused by the defendant’s act, omission or attempt Some crimes, such as receipt of stolen property, require proof of “attendant circumstances” as well

Of course, mens rea is not required in cases of strict liability Whereas the mens

rea element is often one of general intent or a defendant’s awareness of all

factors (e.g., attendant circumstances) constituting a crime, there are numerous instances of “specific intent” crimes: solicitation, attempt, conspiracy, first degree premeditated murder, assault, larceny, robbery, burglary, forgery and embezzlement come to mind here Some statutes require that a defendant act purposely and/or knowingly By “purposely,” the law means that a defendant acts such that it is her conscious object to engage in certain conduct or cause a certain result By “knowingly,” it means that a defendant is aware that her conduct is of that nature or that particular circumstances exist She acts knowingly with respect to the result of her conduct when she knows that her conduct will at least very likely cause such a result This concise outline of criminal liability in U.S law will suffice for my aim in showing some of the vital connections between criminal responsibility and moral responsibility

MORAL RESPONSIBILITY While it is true that no comprehensive general account of responsibility can

be complete without an account of legal responsibility,21 it is also true that such

an account would be incomplete lacking an account of what makes one morally responsible For what makes one morally responsible is a matter of what the balance of human reason “decides” and is not contingent on social convention

as are notions of legal responsibility In this way, moral responsibility is an ontologically prior notion, and serves well as our guide to who deserves to be punished for some wrongful and harmful outcome So while a plausible account

of responsibility for purposes of determining deserved punishment does well to

be informed by conceptions of legal responsibility, moral responsibility theory

21Cane, Responsibility in Law and Morality, p 28

must guide our thinking concerning who ought to be punished, and why and

how For social conventions in law are often incorrect, influenced by an array

of factors such as racism, sexism, greed, etc But moral responsibility, being non-institutional, is governed by reason (and moral intuition) alone

Moral responsibility, on the other hand, accrues when the balance of human

reason entails or implies that one is accountable (in either a blame or praise use) for an outcome For example, if I am walking on a beach and, being a good swimmer, chance across a drowning child, but I do not make an effort to increase significantly the probability of the child’s being saved, I am morally responsible (in the blame use) for the child’s welfare in that situation For I have violated the moral rule, call it “Good Samaritanism:” A moral agent is morally obligated to do whatever she can do to save an endangered stranger's life to the extent that her performance of such an action does not place her at genuine and significant risk (of harm or of life).22 In many jurisdictions in the U.S., anti-Bad Samaritan laws are in effect such that legal and moral responsibility on such matters coincide one with another But there are other instances where legal and moral responsibility are incongruent (for whatever reasons), as noted above In any case, I follow Peter Cane’s position that the relationship between law and morality is “symbiotic,” and that just as moral responsibility theory can and does inform us of the way legal responsibility ought to be articulated and conceptualized, so too can conceptions of legal responsibility serve as a rich reservoir of clarity concerning conceptions of moral responsibility, objectively construed.23 After all, “…when courts develop rules and principles about responsibility, they are engaging in essentially the same reasoning processes as people use in the moral domain when developing rules and principles about responsibility,”24 and “…the criteria of good legal reasoning and of good moral reasoning about complex concepts are essentially similar in many respects.”25

Moral responsibility theory provides a non-institutional analysis of the nature of responsibility such that determinations of responsibility in the law might be made reasonably, given the complex array of factors in a case But even if it turned out to be true that the institution of punishment is justified, morally speaking, it would not follow that offenders ought to be punished For

it might be true that, all things considered, no one is sufficiently responsible for their actions such that it is justified for the state to inflict hard treatment on

them Thus they would be excused, or their actions would be so mitigated that

22 For discussions of this sort of an example, see Joel Feinberg, “The Moral and Legal

Responsibility of the Bad Samaritan,” Criminal Justice Ethics, 3 (1984), pp 56-69; John Kleinig, “Good Samaritanism,” Philosophy and Public Affairs, 5 (1976), pp 382-407

23 Cane, Responsibility in Law and Morality, pp 12-6

24 Cane, Responsibility in Law and Morality, p 16

25 Cane, Responsibility in Law and Morality, p 21

punishment would not be justified Of course, this would also imply that no one ought to be praised or rewarded for what they do well or rightly And it is something akin to this latter claim and reasoning which leads John Rawls and many other philosophers to argue that the notion of desert is empty.26According to Rawls, the social contexts into which we are born are not the results of our desires and wants, and so it is problematic to think that we are deserving of what results from our being born into, say, social and/or economic privilege or the lack thereof Rawls’ reasoning is poignant as it directs our philosophical attention to a fact of sociology, namely, that our starting points in life are largely determined such they are to a significant extent beyond our control As Rawls himself writes, the “inequalities of birth and natural endowment are undeserved.”27 They are undeserved because they are determined arbitrarily And since our formative years are then largely determined in at least this sociologically arbitrary sense, how can we be said to deserve this or that, except, if at all, in some highly limited way? Would not this kind of sociological determinism vitiate attributions of moral responsibility that might lead to punishment in cases of significantly harmful wrongdoing?

Of course, there are other senses in which we may be determined besides sociologically We can be determined economically, or we can be determined biologically, and each in either positive or negative ways Or, we can be determined ideologically in the sense that our values are taught to us at early ages, and those values to some extent determine how we think and often how

we act So there are a number of ways in which we are subject, to one degree or another, to forces somewhat beyond our control I say “somewhat” here because it is a metaphysical issue as to whether or not we are determined fully,

or partially, or not at all This philosophical debate about human freedom has been taking place since the beginnings of philosophy And I assume for the sake of this larger project that cognitively normal agents are at least sometimes significantly free to choose and act (or not act, or attempt to act) in some contexts However, I will now take some time to outline some of the basic moves of the debate concerning moral responsibility in an effort to arrive at an analysis of the nature of responsibility, the conditions of which are rather congruent with the elements of criminal liability

LIBERTARIANISM, DETERMINISM, AND COMPATIBILISM

There are at least three basic theories or metaphysics about human freedom

One theory is that of metaphysical libertarianism I take this view to be that some events are not determined It is the logical contradictory of determinism,

26 Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), pp 100-04

27 Rawls, A Theory of Justice, p 100

which I take to be the view that all events, even human actions and choices, are completely determined By this it is meant, roughly, that given what preceded

it, a particular event is inevitable Although there are a number of different metaphysical analyses of the nature of determinism,28 simple determinism is that view which holds that all of our doings are caused by something other than ourselves, such that we lack significant control over everything we do From this position we might derive the following argument regarding moral

responsibility that I shall dub the Argument for Non-Responsibility:

(1) Moral responsibility requires that we are at least sometimes able to do otherwise than what we do;

(2) Being able to do otherwise than what we do requires our

having essential control over what we do;

(3) Our having essential control over what we do requires that

we have the ability to do otherwise;29

(4) But we lack the ability to do otherwise because all of our

actions are determined such that we lack essential control

over them;

(5) Therefore, we are not morally responsible for what we do

The Argument for Non-Responsibility is part of what motivates the traditional view of human freedom and responsibility To the extent that humans lack the ability to do otherwise, they also lack freedom sufficient to qualify as morally responsible agents But this line of reasoning has been challenged in recent years by Harry G Frankfurt, and his proposed counter-examples to the Principle of Alternate Possibilities have received a tremendous amount of well-deserved philosophical attention.30 Frankfurt’s argument is

28 John Martin Fischer, The Metaphysics of Free Will (London: Blackwell, 1994); Ted Honderich, How Free are You?: The Determinism Problem (Oxford: Oxford University Press, 1993); Keith Lehrer, Editor, Freedom and Determinism (New Jersey: Humanities

Press, 1966); Keith Lehrer, “‘Can’ in Theory and Practice: A Possible Worlds Analysis,” in

Myles Brand and D Walton, Editors, Action Theory (Dordrecht: Reidel, 1976), pp 241-70;

“Cans Without Ifs,” Analysis, 29 (1968), pp 29-32 For a general introduction to this problem, see Laura W Ekstrom, Free Will (Boulder: Westview Press, 2000)

29 In the literature on moral responsibility, this is referred to as the “Principle of Alternate Possibilities.”

30 For a selection of the fine work on this and related problems of moral responsibility theory, see

Harry G Frankfurt, The Importance of What We Care About (Cambridge: Cambridge University Press, 1988); Necessity, Volition, and Love (Cambridge: Cambridge University

Press, 1999) These collections of Frankfurt’s work contain his most important work on moral responsibility Among the finest works which seek to contribute to the ongoing

discussion of moral responsibility include: Ton van den Beld, Editor, Moral Responsibility and Ontology (Dordrecht: Kluwer Academic Publishers, 2000); John Martin Fischer, The Metaphysics of Free Will (London: Blackwell, 1994); John Martin Fischer, Editor, Moral

proffered by way of a series of counter-examples, some of which attempt to demonstrate, intuitively, that a moral agent can be a responsible one even if she lacks the ability to do otherwise, thus casting doubt on (1) of the traditional Argument for Non-Responsibility What is sufficient for moral responsibility, Frankfurt argues, is that an agent have a higher-order volition to do something, where her wants and desires motivate the action, namely, where she “really wants” to do what she does even though she indeed has no alternative actions open to her at that time In short, he argues that acting freely is sufficient for moral responsibility The ability to do otherwise, then, is not a necessary condition

of moral responsibility, contrary to what has been argued, for instance, by Peter van Inwagen.31 Frankfurt’s theory is an instance of higher-order compatibilism

between both determinism and freedom on the one hand, and determinism and moral responsibility on the other

A Frankfurtian theory of moral responsibility that has gained a solid foothold in the philosophical discussions of moral responsibility is that of John Martin Fischer.32 Fischer’s analysis of moral responsibility is similar to Frankfurt’s in the following way: each posits higher-order volitional control

over one's life as a sufficient condition of moral responsibility Regulative

control is the kind of power a moral agent has to make a difference in the way

the world turns out According to Fischer, however, this control might not be open to us as moral agents On his compatibilist view (doubly compatibilist, that is, between determinism and acting freely, and between determinism and moral responsibility), an agent is morally responsible to the extent that she

has higher-order guidance control over her course in life The nature and

importance of guidance control is articulated by Fischer in the following claims:

e

responsibility Among the finest works which seek to contribute to the ongoing discussion of

moral responsibility include: Ton van den Beld, Editor, Moral Responsibility and Ontology (Dordrecht: Kluwer Academic Publishers, 2000); John Martin Fischer, The Metaphysics of Free Will (London: Blackwell, 1994); John Martin Fischer, Editor, Moral Responsibility

(Ithaca: Cornell University Press, 1986); John Martin Fischer and Mark Ravizza, Editors,

Perspectives on Moral Responsibility (Ithaca: Cornell University Press, 1993); Responsibility and Control (Cambridge: Cambridge University Press, 1998); I Haji, Deontic Morality and Control (Cambridge: Cambridge University Press, 2002); I Haji, Moral Appraisability (Oxford: Oxford University Press, 1998); The Journal of Ethics, 1:1 (1997), pp 1-104; The Journal of Ethics, 3:4 (1999), 275-384; The Journal of Ethics, 4:4 (2000), pp 307-417; The Journal of Ethics, 10 (2006), forthcoming; Robert Kane, The Significance of Free Will (Oxford: Oxford University Press, 1998); Derk Pereboom, Living Without Free Will (Cambridge: Cambridge University Press, 2001); Peter Van Inwagen, An Essay on Free Will (Oxford: Oxford University Press, 1983); R Jay Wallace, Responsibility and the Moral Sentiments (Cambridge: Harvard

See Fischer and Ravizza, Responsibility and Control; and The Journal of Ethics, 6 (2002), pp

The Frankfurt-type cases seem to me to show that one can be

morally responsible for one’s actions, even though one does

not select the path the world will take, among various paths

that are genuinely available; in these cases, suitably filled in,

there is just one path the world will take And what makes the

agent morally responsible is how he proceeds along this single

path More specifically, the agent can exhibit a certain sort of

control - guidance control - even though he lacks regulative

control Guidance control, in my view, is the

“freedom-relevant” condition sufficient for moral responsibility.33

Of course, Frankfurt’s view assumes, as does Fischer’s, that we sometimes have wants and desires such that we can really want to do this or that And I make this assumption for purposes of this book For if we lack this component

of moral life, there is essentially no moral life at all Furthermore, if we do not have desires and wants that are our own, then it would appear that there are no moral selves, and no moral choices for which we can or ought to be held accountable Moral responsibility would be nonsense, and so would normative moral philosophy There would seem to be no good reason, discounting an act-utilitarian one, to hold us accountable for what we do that is either praiseworthy

or blameworthy Although strong moral skeptics are unlikely to be persuaded

by such considerations, my purpose here is not to address meta-ethical concerns

of moral realism versus moral anti-realism, but rather to argue from within a moral realist framework for certain claims about responsibility that are relevant

For me to be morally responsible for what I do such that I am liable to punishment or sanction, it would seem that my causal connection to the wrongful deed, my being “at fault,” my intentionality, voluntariness, and knowledge are each relevant to the degree to which I am accountable for what I did, failed to do, or attempted to do, as the case may be But precisely how does

each one of these factors figure into a general analysis of responsibility, especially the kind that can be used in a reasonably just legal system?

I proffer the following analysis of responsibility for actions, an analysis that can and ought to be used to illuminate the nature of responsibility in criminal justice contexts It is a conception of liability responsibility that makes use of conditions of responsibility that are at work in both moral and legal

responsibility A defendant is responsible for a wrongful act to the extent that

she: (1) is guilty of committing the act, which means that she is causally connected to the wrongful deed; 34 (2) performed the act intentionally, meaning that her action was guided by her wants and beliefs; (3) acted knowingly [But a

defendant may act knowingly (or be an epistemic agent) in one of at least two ways First, she might act knowingly in a direct way, where she knows that what she is doing is what she intends to do, say, rob a bank She knew she was robbing the bank when she did it And there were no significantly ambiguous factors concerning the bank robbery But she might also act knowingly in an indirect way, where she knew that she was robbing the bank, but did not know

or figure that robbing the bank could lead (or likely lead) to the harming of others in the process of the robbery (This point is related to the Scope of

Responsibility Principle, articulated below)]; (4) acted voluntarily, wherein the

causally contributory conduct must have been in some way faulty (i.e., she is

responsible for the harmful outcome in the blame sense);35 and if the harmful

outcome was truly the fault of the individual moral agent, the required causal connection must exist between the faulty aspect of her conduct and the outcome.36 The locution, “to the extent that” implies that responsibility admits

of degrees This implies that, typically, a person is not either wholly responsible

or not responsible at all for an outcome Rather, she is more or less responsible

for it This conceptual point will fit nicely with the requirement of proportional

punishment that also admits of kinds and degrees, as we will see in subsequent chapters

Of course, moral luck figures into all of this rather readily In the law, it might take the form of a criminal’s being born into and raised in a family for which there is little hope, economically speaking, of an opportunity for a decent life.37 When one s life prospects are dim from the start, it is not obvious that one ought to be held fully accountable for what one does This is because under

34Causal responsibility is typically but not always a pre-condition of legal retrospective responsibility, as noted in Cane, Responsibility in Law and Morality, p 36

35 Feinberg, Doing and Deserving, p 222

36 This notion of fault is borrowed from Feinberg, Doing and Deserving, p 222

37 For an account of the influences of economic poverty on human life prospects, see Thomas

Pogge, World Poverty and Human Rights (Cambridge: Polity, 2002) For discussions of such issues in the context of globalization and cosmopolitanism, see The Journal of Ethics, 9:1-2

,

(2005), pp 1-306

such circumstances one lacks sufficient guidance control over her life in general Furthermore, just as we would hardly be impressed by a wealthy heiress’ success in university studies provided that she is a normal cognizer raised in wealth and opportunity, we would hardly want to blame fully those who lack opportunities for basic life prospects when they turn to crime To be sure, poverty alone is no excuse, legally speaking, for crime But certain circumstances of poverty and lack of opportunity might serve as factors of mitigation in sentencing offenders Moral luck, then, tends to vitiate ascriptions

of full responsibility This is true whether the luck is good or bad, or even a mixture of both Perhaps something like this reasoning is what Rawls has in mind in his discussion of the concept of desert, noted earlier in this chapter Thus we can see that moral responsibility theory just is concerned with the analysis of praiseworthy or blameworthy intentional and voluntary actions The philosophical notion of intentional action (as behaving according to the agent’s beliefs and wants, for instance) helps to illuminate what the law refers to as

mens rea and acting with purpose This is especially true with the respective

higher-order compatibilist theories of responsibility, as found in Frankfurt, Fischer and Keith Lehrer,38

for example But these philosophical theories of freedom and responsibility also assist in the illumination of the legal concept of

actus reus insofar as the latter concept assumes a level of voluntariness on

behalf of the agent What the law refers to as “concurrence” and harm are typically assumed to be conditions of moral responsibility Thus we see that the elements of criminal responsibility are captured by at least some aspects of moral responsibility theories Moreover, since intentional and voluntary actions are crucial for determinations of moral and legal liability, what is said plausibly about legal and moral responsibility depends, in the end, on a plausible analysis

of moral responsibility at the levels of intentional and voluntary action However, the law’s requirement (in some cases) that responsible defendants act knowingly could well benefit from a philosophical analysis of the nature of human knowledge After all, it is helpful for legal theorists and professionals to better understand what ought to be meant by claims such as “Susan Smith acted knowingly in killing her children” or that “The Nazi Government acted knowingly in regards to its passing laws and policies which caused the deaths

of millions of persons.” Perhaps one of the next stages in the already philosophically rich area of moral responsibility theory is not only to extend the discussion to matters of collective concern, but to incorporate more fully the epistemic condition of responsibility in order to account more comprehensively for the full range of the nature of moral (and, it turns out, legal) responsibility There is quite a rich philosophical tradition in epistemology the analyses of

38 Keith Lehrer, Metamind (Oxford: Oxford University Press, 1990)

which might be used to build a deep theory of criminal responsibility insofar as epistemic action is concerned.39

But there is even more to responsibility than the preceding paragraph

indicates One question to be raised here is the extent of the scope of

responsibility for one’s actions If I drink and drive, am I responsible for, say, endangering the lives of others in a negligent manner?40 That depends on whether or not I acted voluntarily But what sense of “acting voluntarily” is relevant here: acting voluntarily to drink, or to drive, or both? If one is a genuine alcoholic, at least a serious one, then one suffers from a disease that mitigates substantially one’s freedom to, say, not drink Thus one’s drinking is not under sufficient control to hold the alcoholic responsible for drinking This might impair one’s better sense to not drive while drinking, which suggests that

in many cases driving while under the influence of alcohol might deservedly receive a mitigated sentence

However, it might be argued that this is a facile picture of at least some such scenarios of drinking and driving For is it not true that in many cases folk choose freely to begin to drink? Here I do not include cases where adolescents are pressured by intense socialization to do so I have in mind cases where one simply decides to begin to drink, for social reasons, let us say This kind of case lends itself to a particular line of reasoning about responsibility Precisely where ought the line of responsibility to be drawn? What is the scope of responsibility? To be sure, these are difficult questions to answer, even to address However, perhaps a principle can help guide us in our thinking about

such tough cases I propose the following “Scope of Responsibility Principle:”

39 For philosophical accounts of (individual) knowledge, see Robert Audi, Epistemology (London: Routledge, 1998); Roderick Chisholm, Theory of Knowledge, Third Edition (Englewood Cliffs: Prentice-Hall, 1989); Alvin I Goldman, Epistemology and Cognition (Cambridge: Harvard University Press, 1986); Keith Lehrer, Theory of Knowledge, Second

Edition (Boulder: Westview Press, 2000) For philosophical accounts of social or collective

belief and/or knowledge, see J Angelo Corlett, Analyzing Social Knowledge (Totowa: Rowman and Littlefield Publishers, 1996); Margaret Gilbert, On Social Facts (Princeton: Princeton University Press, 1989); Sociality and Responsibility (Totowa: Rowman and Littlefield Publishers, 2000); Alvin I Goldman, Knowledge in a Social World (Oxford:

Oxford University Press, 1999)

40 “When one knowingly creates an unreasonable risk to self or others, one is reckless; when one

unknowingly but faultily creates such a risk, one is negligent” (Feinberg, Doing and Deserving, p 193)

To the extent that I am responsible for X, and to the extent that

I, being a reasonable person can understand, by way of

common sense reflection, that X is likely to cause or lead to Y, I

am responsible also for Y.

This implies that, barring some substantially voluntariness-reducing factors predating my first decision to drink, I ought to be held liable for what I cause as the result of my drinking, directly or indirectly as the principle suggests That I

intend to do only X should be no good reason for my not being responsible for

Y to the extent that a reasonable person by way of common sense reflection

could understand that under the circumstances Y is likely to result from X Of course, one question here is how likely does it have to be that Y would result from or be caused by my doing X And it is precisely such a likelihood that helps determine the level of responsibility that I might have for Y.

If my argument is correct, then we are not responsible simply for what we

do, but also for the indirect harms we may commit If I am not an alcoholic, yet

I drink and drive such that I am negligent in doing so, then I am responsible for the harms I cause

Given the congruence of many of the elements of legal (criminal) responsibility, on the one hand, and moral responsibility, on the other hand, I will proceed to analyze philosophically the concept of responsibility in terms of the points of congruence: intentionality, voluntariness, epistemic action, assuming concurrence and harm caused by the defendant Therefore, I am morally and (should be) legally responsible for some act, omission or attempt to the extent that I am guilty of committing a harmful wrongdoing intentionally, knowingly and voluntarily, and that I am “at fault” in doing so Moral luck and other factors may mitigate, not guilt, but the extent to which I ought to be punished for causing a certain harm prohibited by law

This analysis of responsibility will serve as part of the content of the meaning

of “desert” and its cognates for purposes of the version of retributivism that I set forth and defend in subsequent chapters To say that someone deserves to be punished in a particular way, then, means in part that she ought to be punished according to her degree of responsibility for the wrongdoing she committed For the retributivist, then, the concept of responsibility just is part of the heart of her theory of punishment in that responsibility factors determine

precisely the extent to which a criminal deserves punishment But what is

punishment, and what are the various theories of punishment? What is the most plausible theory of punishment, all things considered? And how ought criminals to be punished? I now turn to these and related questions

THE PROBLEM OF PUNISHMENT

lay the groundwork for a viable conception of responsibility that could be used

in a reasonably just legal system in order to make accurate determinations of blameworthiness and accountability for punishment It seems plausible to argue that whatever the most viable theory of responsibility turns out to be, any plausible theory of punishment must accommodate it For example, if it turns out that determinism is true, then no one would be responsible in the relevant sense and punishable for their deeds, however harmful So an abolitionist theory of punishment would be able to accommodate that supposed fact regarding responsibility On the other hand, let us suppose that some version of compatibilism is the most philosophically plausible theory of the metaphysics

of freedom and determinism underlying our notion of responsibility In this case, a plausible theory of punishment would be some version of non-abolitionism that understands hard treatment of this or that form to be justified

in at least some cases Thus it cannot be overemphasized how important responsibility theory is for punishment theory (and vice versa)

DESIDERATA OF A THEORY OF PUNISHMENT

Just as it was important in the previous chapter to articulate some desiderata

of a theory of moral responsibility a primary purpose of which is to determine who deserves to be punished for harmful wrongdoing, it is also vital to elucidate some of the desiderata of a normative theory of punishment.1

First, it

is desired that a theory of punishment provide a definition of “punishment” so

as to avoid conceptual confusion This leads naturally to a recognition of various senses of “punishment,” from mere imprisonment to physically hard treatment, compensation, among other means of dealing with criminals, each of which would properly constitute punishment For some alleged theories of punishment which are proposed as positive theories (i.e., those which hold that punishment is sometimes morally justified) do not seem to be punishment

1 These desiderata are developed independently of, but share a resemblance to, the “conditions”

of a theory of punishment discussed in Jeffrie G Murphy, “Does Kant Have a Theory of

Punishment?” Columbia Law Review, 87 (1987), pp 510-11

27The main purpose of the previous chapter on moral responsibility theory was to

theories at all, but something else, perhaps even negative theories of punishment (e.g., those which deny that punishment is ever morally justified) Second, it is desired that a theory of punishment respect Anthony M

Quinton’s and John Rawls’ distinction between the justification of the

institution of punishment and the justification of particular forms of punishment.2 For what justifies the former might not justify the latter, for example It might well be the case that it is morally justified to punish criminals, but of the particular forms of punishment available for specific criminal cases, none is morally fitting In any case, it is desired that a theory of punishment say what justifies punishment in both senses

Third, it is desired that a theory of punishment concern itself with corrective

justice, as that is its principal aim This desideratum may seem too obvious to

require mention But it is meant to caution against a theory of punishment’s placing considerations other than those of corrective justice (e.g., distributive justice) at the forefront of concern in punishment

Fourth, it is desired that a theory of punishment set forth the conditions under

which a person qualifies as a punishable agent This is important whether or

not the punishment theory is positive or negative in content It is vital to understand the conditions that, to the extent that they are satisfied (if at all), the agent ought to be punished

Fifth, it is desired that a theory of punishment would be applicable to a

reasonably just legal system This rules out the possibility that a theory of

punishment would be able to be enacted justly by vigilantes For as the third desideratum indicates, a theory of punishment is desirable to the extent that it concerns itself with corrective justice Yet vigilante “justice” is not genuine justice It denies the accused the exercising of her right to due process which is, most would argue, a basic human right Due process, much more than even the most sincere vigilantism, is able to provide a rational, reasonable and fair weighing of evidence in cases tried by judge or jury

Sixth, it is desired that a theory of punishment explain what are the

appropriate punishments for various crimes The principles that would

constitute such an explanation would serve as the grounds for sentencing criminals

To these desiderata might be added R A Duff’s insistence that:

A normative theory of punishment must include a conception

of crime as that which is to be punished Such a conception of

crime presupposes a conception of the criminal law—of its

proper aims and content, of its claims on the citizen Such a

conception of the criminal law presupposes a conception of the

2 See page 1 of this book

state—of its proper role and functions, of its relation to its

citizens Such a conception of the state must also include a

conception of society and of the relation between state and

society.3

However, the factors of this final desideratum, however vital to a comprehensive understanding of crime, punishment, and the law, are clearly beyond the scope of this project, and will not be pursued herein

THEORIES OF PUNISHMENT

Having explored briefly some of the desired features of a normative theory

of punishment, it is time to set forth and assess various sorts of theories of punishment In so doing, other desired features of a normative theory of punishment will be addressed

PUNISHMENT ABOLITIONISM

There exist a variety of competing theories of punishment At one end of the

spectrum lies punishment abolitionism One form of punishment abolitionism is

of the nihilistic variety It denies that punishment (as hard treatment) is a legitimate response of the state to crime This position, which amounts to a negative theory of punishment’s justification, might be held for one or more reasons First, it might be thought that rehabilitation, not hard treatment, ought

to be the state’s proper response to criminal activities A version of this view is that punishment is itself a “crime” and that therapy, not hard treatment, is the state’s proper response to crime.4 Second, it might be argued that criminals do not act sufficiently freely to hold them legitimately accountable for what they

do wrongly A proponent of one way to hold this position is Karl Marx Although Marx states that

From the point of view of abstract right, there is only one

theory of punishment which recognizes human dignity in the

abstract, and that is the theory of Kant This theory,

considering punishment as the result of the criminal’s own will,

is only a metaphysical expression for the old jus talionis; eye

against eye, tooth against tooth, blood against blood .5

he questions whether Immanuel Kant has it right in assuming that criminals

truly act out of free will in a capitalist society If they do not, then punishment

of them is unjustified Since sufficient unfreedom exists in capitalist society,6criminals who act under conditions of capitalist unfreedom should not be punished, given that punishment is justified only to the extent that criminals act

freely in what they do This Marxian argument might be applied to all societies,

not only capitalist ones, using metaphysical determinism as the basis for punishment abolitionism So the Marxian form of punishment abolitionism might take on at least two forms One is a stronger version according to which metaphysical determinism is thought to apply to life in all societies, making punishment unjustified generally A weaker form of the Marxian punishment abolitional stance would hold for capitalist societies only, leaving open the possibility that in non-capitalist or post capitalist regimes freedom and responsibility would obtain generally, hence justifying punishment at least in some cases of criminal wrongdoing In either case, the punishment abolitionist seeks to cast serious doubt on the legitimacy of punishment by challenging the supposition that persons are generally or often sufficiently free to be held accountable for what they do The Marxian form of punishment abolitionism, then, challenges the voluntariness condition of responsibility that was articulated in the previous chapter Since responsibility (as construed in the previous chapter) is necessary for punishment, then the extent to which persons are unfree (in capitalist societies or otherwise) is the extent to which they do not qualify as punishable agents

Thus if punishment abolitionism of this variety is correct, then it would be morally wrong to punish offenders no matter what crimes they commit This claim assumes that act utilitarianism about punishment and responsibility is implausible in its allowing for the punishment of persons who are not guilty so

5 Karl Marx, “Capital Punishment,” in L Feuer, Editor, Marx and Engels: Basic Writings (New

York: Anchor Books, 1959), pp 487-88 Perhaps another proponent of this position is Angela

Y Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003)

6 For discussions of unfreedom in capitalist societies, see George Brenkert, “Cohen on Proletarian

Unfreedom,” Philosophy and Public Affairs, 14 (1985); G A Cohen, “Are Workers Free to Sell Their Labor Power?” Philosophy and Public Affairs, 14 (1985), pp 99-105; History, Labour, and Freedom (Oxford: Oxford University Press, 1988), Chapter 13; “The Labour Theory of Value and the Concept of Exploitation,” Philosophy and Public Affairs, 8 (1979),

pp 338-60; “The Structure of Proletarian Unfreedom,” Philosophy and Public Affairs, 12

(1983), pp 3-33; Jeffrey Reiman, “Exploitation, Force, and the Moral Assessment of

Capitalism: Thoughts on Roemer and Cohen,” Philosophy and Public Affairs, 16 (1987), pp

3-41; John Roemer, “Property Relations vs Surplus Value in Marxian Exploitation,”

Philosophy and Public Affairs, 11 (1982), pp 281-313

long as social utility is maximized, and that any viable theory of punishment must concur with the essentially retributivist dictum that only the guilty should

be punished If punishment abolitionism of this strong variety is correct, then criminals ought not to be punished because they are not (sufficiently) responsible agents Perhaps therapy, or rehabilitation by some other means, or moral education by means other than punishment are proper responses of the state to crimes But punishment, being hard treatment, must be reserved for those who deserve it Since criminals, on this punishment abolitionist view, do not act as responsible (or liable) agents in that they do not act voluntarily, then they ought not to be punished Such criminals act wrongly, to be sure But they

are excused for what they do, bearing no responsibility

punishment It is problematic to think that persons ought to be praised for what they do rightly in such a social order lacking responsibility For if criminals ought not to be blamed and punished for their actions due to their lacking responsibility, then parity of reasoning would dictate that do-gooders ought not

to be praised for what they do because they are equally not responsible Yet this result seems to be counter-intuitive as there seem to be several contexts in which praiseworthiness for deserved awards based on merit, e.g., many of the competitors at Olympic Games and various other athletic competitions, is justified Furthermore, this brand of punishment abolitionism reduces morality

to emptiness For morality relies on several assumptions, one of which is that persons are at least somewhat responsible for some of what they do, fail to do,

or attempt to do, as the case may be If we are not responsible for our doings or actions, then what would make us responsible for anything at all (including positive actions, events, or states of affairs)? What meaning, if any, would the moral life have? In order for the punishment abolitionist of this variety to escape from this slippery slope, there must be an argument as to why no criminal should be punished for lack of her responsibility, but the rest of us in society are indeed held to this or that set of moral rules, assuming that we are responsible for what we do, fail to do, or attempt to do Lacking such argumentation, strong punishment abolitionism seems to fall upon the rocks of corroding moral despair For a proper system of punishment just is a society’s way of holding properly responsible its citizens who are to some extent responsible for their own wrongdoings By “to some extent responsible” I mean that some such persons act, fail to act, or attempt to act in ways such that they are, all things considered, at least partially liable to blame and punishment for

at least some of their harmful wrongdoings Perhaps their sentencing ought to

be mitigated given the facts of their cases But it would not follow that their harmful wrongdoings ought necessarily or always to be excused such that they suffer no punishment whatsoever

It is important to note some implications of this strongly abolitionist view of

There are moderate versions of punishment abolitionism according to which, for instance, the advocacy of the abolition of punishment is limited in scope to, say, capital punishment.7 On such views, it is only certain kinds of punishment that ought to be abolished, for whatever reasons Yet certain other forms of punishment are deemed acceptable or necessary for the maintenance of a decent society

Punishment abolitionists of at least some varieties argue against the practice

of punishment in that it is “barbarous.” Others add that punishment abstracts criminal offenders from the social contexts in which their actions, omissions, and attempted actions ought to be understood, that punishment does not resolve the problems that give rise to criminal activities, and that the state ought to consider ways in which such conflicts between wrongdoers and victims might

be resolved, thereby reconciling the parties each one belonging to the same community The only hope of this reconciliation happening is if both criminals and their victims negotiate justice in open and equal terms of conflict resolution.8

But to refer to punishment as “barbarous” is simply to engage in

ad hominem rhetoric, rather than demonstrating the reasonableness of one’s

point by way of argument Moreover, as we will see in later chapters, an adequate theory of punishment is sensitive to contexts and circumstances of harmful wrongdoings, and must be in order to assess correctly the level and degree of responsibility of offenders That there are broader circumstances of, say, economics and politics that plausibly give rise to or serve as contributory

causes of some wrongdoings hardly suffices to explain why any strong version

of punishment abolitionism is justified Rather, it would serve as reasons for mitigated sentencing for many harmful wrongdoings and excuses for some, but not as excuses for all harmful wrongdoings Furthermore, that the victims of such wrongdoings ought to be reconciled with their perpetrators is an outlandish idea, certainly in need of argumentative support Why in the name of reason would anyone think for even a moment that any victim ought to be reconciled with her offender (except, perhaps, in some religious community)?

A partial answer to this kind of quasi-religious ideology is found in Chapter 5 Finally, as Duff points out, punishment abolitionists of this variety fail to provide a replacement for punishment when indeed proper punishments might even serve at least some of the aims of reconciliation and repair, assuming that such aims are themselves justified on moral grounds.9 Strong versions of punishment abolitionism, then, seem to be implausible, dogmatic ideologies

7 See Chapter 6 for a discussion of whether or not capital punishment is ever morally justified

8

Communication, and Community, pp 32-4

9 Duff, Punishment, Communication, and Community, p 34

These modes of punishment abolitionism are discussed briefly in Duff, Punishment,