In this paper I propose a form of free will fallibilism. Unlike the free will realist who is fully persuaded that we have sufficient evidence of freedom to justify holding individuals morally responsible for what they do and imposing punishment, and unlike the free will skeptic who is fully persuaded that we do not have enough evidence to believe that we face a future of open alternatives, the free will fallibilist will believe that we have enough evidence to justify a (...) belief in freedom for some purposes but not for others. Along the way I argue that deliberation-compatibilism of the sort recently defended by Pereboom is subject to a very familiar sort of counterexample. The question that concerns me the most is whether punishment—this brutal institution that disposes of the lives of countless of our most vulnerable citizens—can be justified. I think it cannot, precisely because there is not sufficient evidence that human beings are free to choose between branching alternatives and so deserve to be treated like that. At least, if there is such justifying evidence it is more or less completely balanced by evidence that all events including human actions have causes. Moreover, I find compatibilism utterly unpersuasive. At the same time, I believe that I am a free agent; what I do is in large part up to me. I believe that the explanation of action cannot be reduced to causal explanation, and I believe that the logic of action requires a notion of branching time. I have two pictures of the universe; which of the two pictures I may rely upon will depend upon just what it is that I intend to do. Between the problem that preoccupies me, punishment, and my day-to-day choices, there is a wide gap. There are a lot of choices that, on the axis of justification, fall in between the two, many of them choices about how to treat those around us: whether to snub a friend who has insulted me, whether to castigate her, whether to reward a kind act with praise. Where to draw the line is a topic for another paper. The only principle that right now seems to me firm enough to act upon is this: the greater the likelihood of doing harm, the less likely the choice is to be justified. (shrink)

In the recent literature a number of free will skeptics, skeptics who believe that punishment is justified only if deserved, have argued for these two points: first, that the free will realist who would justify punishment has the burden of establishing to a high level of certainty - perhaps beyond a reasonable doubt, but certainly at least by clear and convincing evidence - that any person to be punished acted freely in breaking the law; and, second, that that level of (...) evidence is simply not there. In this paper I make two parallel points against a quarantine theory of criminal justice. First, the free will skeptic who would justify universal criminal quarantine is also faced with a burden of proof, the burden to establish to a similarly high level that no human being ever acts freely. Second, there is not sufficient evidence for that conclusion either. I believe that the quandary that this creates for criminal justice can be resolved by distinguishing the methods associated with a particular approach from the approach itself: if our choice is between the methods of punishment and the methods of quarantine, the methods that constitute punishment are, I would argue, morally preferable to those that constitute quarantine. (shrink)

A considerable body of evidence now documents, beyond reasonable doubt, biological and health risk factors for crime and violence. Nevertheless, intervention and prevention efforts with offenders have avoided biological interventions, in part due to past misuses of biological research and the challenges that biological predispositions to crime raise. This article reviews the empirical literature on two biological intervention approaches, omega-3 supplementation and transcranial direct current stimulation. Emerging research on these relatively benign interventions suggests that increased omega-3 intake through dietary intervention (...) and prefrontal upregulation using non-invasive brain stimulation may show some initial promise in reducing antisocial behavior. The ethical issues related to mandated and offered biological interventions within the criminal justice system are discussed. (shrink)

Much of the recent philosophical discussion about free will has been focused on whether compatibilists can adequately defend how a determined agent could exercise the type of free will that would enable the agent to be morally responsible in what has been called the basic desert sense :5–24, 1994; Fischer in Four views on free will, Wiley, Hoboken, 2007; Vargas in Four views on free will, Wiley, Hoboken, 2007; Vargas in Philos Stud, 144:45–62, 2009). While we agree with Derk Pereboom (...) and others that the compatibilist’s burden should be properly understood as providing a compelling account of how a determined agent could be morally responsible in the basic desert sense, the exact nature of this burden has been rendered somewhat unclear by the fact that there has been no definitive account given as to what the basic desert sense of moral responsibility amounts to. In Sect. 1 we set out to clarify the compatibilist’s burden by presenting our account of basic desert moral responsibility—which we call retributivist desert moral responsibility for purposes of clarity—and explain why it is of central philosophical and practical importance to the free will debate. In Sect. 2 we employ a thought experiment to illustrate the kind of difficulty that compatibilists of any stripe are likely to encounter in attempting to explain how determined agents can exercise the kind of free will needed for retributivist desert moral responsibility. (shrink)

No one is responsible for their conduct because free will is an illusion, say some skeptics. Even when it seems that we have several options, we only have one. Hence, says the free will skeptic, we should reform our practices which involve responsibility attributions, such as punishment and blame. How seriously should we take this doctrine? Is it one that we could live by? One thorn in the side of the skeptic concerns deliberation. When we deliberate about what to do—what (...) film to go see, whom to befriend, which doctrine to follow—we must presume that our options are open to us. But then, every time that skeptics deliberate, they presume something which is incompatible with their doctrine, i.e. that they have several options. In a word, skeptics cannot deliberate qua skeptics. Some philosophers have responded that deliberators don’t have to presume that their options are open; they only have to presume that their choice will be efficacious. I argue that this proposal uses resources which, if they are available and successful, can be employed to refute skepticism. The upshot is that free will skeptics are pushing for a doctrine that is either false or in tension with deliberation. (shrink)

This article focuses on justified responses to “immoral” behavior and crimes committed by patients undergoing neuromodulation therapies. Such patients could be held morally responsible in the basic desert sense—the one that serves as a justification of severe practices such as backward‐looking moral outrage, condemnation, and legal punishment—as long as they possess certain compatibilist capabilities that have traditionally served as the quintessence of free will, that is, reasons‐responsiveness; attributability; answerability; the abilities to act in accordance with moral reasons, second‐order volitions, or (...) Deep Self. Recently leading compatibilist neuroethicists added the condition of not feeling alienated from desires motivating a person's action. This article argues against such attempts to determine conditions under which patients undergoing neuromodulation should be subject to negative reactive attitudes and legal punishment. Compatibilism should not be used to justify basic desert moral responsibility and legal punishment. Instead, a new way of thinking about the function of moral responsibility attribution is proposed for patients with neuromodulation. Their compatibilist capabilities should serve as important indicators for determining appropriate, forward‐looking courses of action, such as quarantining and restorative treatment, to ensure the public safety and well‐being of the patients. (shrink)

The aim of this article is to set out a theory for treatment of criminals that rejects retributive justification for punishment; does not fall afoul of a plausible prohibition on using people merely as means; and actually works in the real world. The theory can be motivated by free will skepticism. But it can also be supported without reference to the free will issue, since retributivism faces ethical challenges in its own right. In past versions of the account I’ve emphasized (...) the quarantine analogy for incapacitation together with the value of rehabilitation and reintegration. Here I pay special attention to the permissibility and the limits of general deterrence. (shrink)

Pereboom and Caruso propose the quarantine model as an alternative to existing models of criminal justice. They appeal to the established public health practice of quarantining people, which is believed to be effective and morally justified, to explain why -in criminal justice- it is also morally acceptable to detain wrongdoers, without assuming the existence of a retrospective moral responsibility. Wrongdoers in their model are treated as carriers of dangerous diseases and as such should be preventively detained (or rehabilitated) until they (...) no longer pose a threat to society. Our main concern in this paper is that Pereboom and Caruso adopt an idiosyncratic meaning of quarantine regulations. We highlight a set of important disanalogies between their quarantine model and the quarantine regulations currently adopted in public health policies. More specifically, we argue that the similarities that Pereboom and Caruso propose to substantiate their analogy are not consistent—despite what they claim—with the regulations underlying quarantine as an epidemiological process. We also notice that certain quarantine procedures adopted in public health systems are inadequate to deal with criminal behaviors. On these grounds, we conclude that Pereboom and Caruso should not appeal to the quarantine analogy to substantiate their view, unless they address the issues and criticism we raise in this paper. (shrink)

Some contemporary philosophers maintain we lack the kind of free will that makes us morally responsible for our actions. Some of these philosophers, such as Derk Pereboom, Gregg Caruso, and Bruce Waller, also argue that such a view supports the case for significant reform of the penal system. Pereboom and Caruso explicitly endorse a quarantine model for dealing with dangerous criminals, arguing that while not responsible for their crimes such criminals should be detained in non-harsh conditions and offered the opportunity (...) for rehabilitation. Waller does not explicitly endorse the quarantine model, but his view is similar in significant respects. I argue that such views can too easily lead to the endorsement of legal policies which would result in more frequent punishment of innocent persons for crimes they have not committed. Thus, we should have deep moral reservations about such views. (shrink)

Harming other people is prima facie wrong. Unless we can be very certain that doing so is justified under the circumstances, we ought not to do it. In this paper, I argue that we ought to dismantle harsh retributivist criminal justice systems for this reason; we cannot be sufficiently certain that the harm is justified. Gregg Caruso, Ben Vilhauer and others have previously argued for the same conclusion; however, my own version sidesteps certain controversial premises of theirs. Harsh retributivist criminal (...) justice can only be morally right if the following three propositions are true: Moral responsibility exists, retributivism is right, and we can find out how much punishment offenders deserve for their crimes. Suppose that we initially assign a high credence to each of the three propositions; I assume for the sake of argument that there are good arguments in support of each. Nevertheless, these arguments ultimately depend on intuitions. Since we have philosophical peers whose intuitions differ from ours, we ought to downgrade our credence in each. However, even slightly less credence in each proposition means far less credence in a conjunction of all three. Since the stakes are high and there are morally safer options for a criminal justice system, we ought to dismantle harsh retributivist ones. (shrink)

One way to frame the problem of moral luck is as a contradiction in our ordinary ideas about moral responsibility. In the case of two identical reckless drivers where one kills a pedestrian and the other does not, we tend to intuit that they are and are not equally blameworthy. The Character Response sorts these intuitions in part by providing an account of moral responsibility: the drivers must be equally blameworthy, because they have identical character traits and people are originally (...) praiseworthy and blameworthy in virtue of, and only in virtue of, their character traits. After explicating two versions of the Character Response, I argue that they both involve implausible accounts of moral responsibility and fail to provide a good solution to the problem of moral luck. I close by noting how proponents of moral luck can preserve a kernel of truth from the Character Response to explain away the intuition that the drivers are equally blameworthy. (shrink)

I argue that, each of the following, appropriately clarified to yield a noteworthy thesis, is true. Moral obligation can affect moral responsibility. Obligation succumbs to changes in responsibility. Obligation is immune from changes in responsibility.

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible (...) to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

Skepticism about moral responsibility, or what is more commonly referred to as moral responsibility skepticism, refers to a family of views that all take seriously the possibility that human beings are never morally responsible for their actions in a particular but pervasive sense. This sense is typically set apart by the notion of basic desert and is defined in terms of the control in action needed for an agent to be truly deserving of blame and praise. Some moral responsibility skeptics (...) wholly reject this notion of moral responsibility because they believe it to be incoherent or impossible. Others maintain that, though possible, our best philosophical and scientific theories about the world provide strong and compelling reasons for adopting skepticism about moral responsibility. What all varieties of moral responsibility skepticism share, however, is the belief that the justification needed to ground basic desert moral responsibility and the practices associated with it—such as backward-looking praise and blame, punishment and reward (including retributive punishment), and the reactive attitudes of resentment and indignation—is not met. Versions of moral responsibility skepticism have historically been defended by Spinoza, Voltaire, Diderot, d’Holbach, Priestley, Schopenhauer, Nietzsche, Clarence Darrow, B.F. Skinner, and Paul Edwards, and more recently by Galen Strawson, Derk Pereboom, Bruce Waller, Neil Levy, Tamler Sommers, and Gregg D. Caruso. -/- Critics of these views tend to focus both on the arguments for skepticism about moral responsibility and on the implications of such views. They worry that adopting such a view would have dire consequences for our interpersonal relationships, society, morality, meaning, and the law. They fear, for instance, that relinquishing belief in moral responsibility would undermine morality, leave us unable to adequately deal with criminal behavior, increase anti-social conduct, and destroy meaning in life. Optimistic skeptics, however, respond by arguing that life without free will and basic desert moral responsibility would not be as destructive as many people believe. These optimistic skeptics argue that prospects of finding meaning in life or of sustaining good interpersonal relationships, for instance, would not be threatened. They further maintain that morality and moral judgments would remain intact. And although retributivism and severe punishment, such as the death penalty, would be ruled out, they argue that the imposition of sanctions could serve purposes other than the punishment of the guilty—e.g., it can also be justified by its role in incapacitating, rehabilitating, and deterring offenders. (shrink)