Abstract
In “The Immorality of Punishment”, Michael Zimmerman attempts to show that punishment is morally unjustified and therefore wrong. In this response, I focus on two main questions. First, I examine whether Zimmerman’s empirical claims—concerning our inability to identify wrongdoers who satisfy conditions on blameworthiness and who might be reformed through punishment, and the comparative efficacy of punitive and non-punitive responses to crime—stand up to scrutiny. Second, I argue that his crucial argument from luck depends on claims about counterfactuals that ought to be rejected. I conclude that though his arguments are powerful, they fall short of his ambitious aim of demonstrating that punishment is always seriously wrong.
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Notes
Let me point out another mistake Zimmerman makes. He claims that aversion therapy can only produce a “cure”—the quotation marks are his—for criminal behavior if such behavior is the product of an individual pathology rather than social conditions. But either this claim merely concerns how we ought to describe successful aversion therapy or it is false. It turns on how we ought to describe successful aversion therapy if Zimmerman’s point is that if criminal behavior is not a product of individual pathology, then successful aversion therapy should not be called a “cure”. That might be true, but irrelevant to whether it is justified on the basis of the social good it delivers. It is false if the claim is meant to be that aversion therapy can’t work unless criminal behavior is the product of an individual pathology rather than social conditions. Social conditions may produce a disposition toward criminality in certain individuals (indeed, it is overwhelmingly likely that this occurs); aversion therapy may produce a contrary disposition. That is all that needs to be true.
Zimmerman’s presentation of this challenge will be found unsatisfactory by many philosophers. As he sets it out, the challenge from determinism can be expressed as the claim that if determinism is true, how agents act is inevitable, and if an action is inevitable “then it’s not in the control of the person who performs it” (100). But most incompatibilists accept that determinism is compatible with some kind of control over our actions; they deny only that we can have what Randolph Clarke (2003) has called “freedom-level control.”.
At this point, philosophers like Arpaly (2002), Smith (2005) and Sher (2009), who deny that control is a necessary condition of moral responsibility, may sense an opportunity to go on the attack against Zimmerman. Zimmerman maintains that (a) control is a necessary condition of moral responsibility; (b) luck, situational and resultant, is irrelevant to moral responsibility because someone’s culpability cannot depend on factors they do not control; and (c) agents may be morally responsible for being such that they would have freely performed an action, had luck not prevented them. These three propositions seem of dubious consistency, because, as Zimmerman acknowledges, agents do not control whether they are such that they would have performed a particular action, if not for luck. So proposition (c) seems to be in tension with proposition (a). I am myself uncertain how big a problem this is for Zimmerman (and perhaps for me); I shall say no more about it here.
I give an account of constitutive luck in Levy 2011 (pp. 33–34).
Might Zimmerman attempt to resuscitate the argument, substituting ‘absence of control’ for ‘luck’? I doubt this will succeed, for the reasons he himself gives: it is simply not plausible that moral responsibility requires total control over all the conditions necessary for an action (John Martin Fischer has called the requirement of total control “metaphysical megalomania” Fischer 2006: 116).
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Acknowledgments
I would like to thank Massimo Renzo for helpful comments on a draft of this paper. This work is supported by a generous grant from the Australian Research Council.
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Levy, N. Zimmerman’s The Immorality of Punishment: A Critical Essay. Criminal Law, Philosophy 9, 103–112 (2015). https://doi.org/10.1007/s11572-013-9217-x
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DOI: https://doi.org/10.1007/s11572-013-9217-x