Abstract
Michael S. Moore is a whole-hearted retributivist. The triumph of Mechanical Choices is that Moore provides a thoroughly physicalist, reductionist-friendly, compatibilist account of the features that make persons deserving of blame and punishment. Many who embrace scientific accounts of psychology worry that from this perspective the grounds for desert disappear; but Moore argues that folk psychological accounts of responsibility—such as those found in the criminal law—are either vindicated or not implicated by science. Moore claims that criminal punishment can be justified by looking solely to moral desert, couched in folk terms. In this paper I argue that interpersonal blame and punishment and criminal blame and punishment hold people responsible in the same sense, and that directed moral blame in both forms aim to communicate something to the wrongdoer and generate a backward-looking or retributive good. However, contra Moore, I will argue that instrumental aims are also important to justifying methods and degree of punishment within both realms.
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Notes
Thank you to Alec Walen for this description of Moore’s position.
“The distinctive aspect of retributivism is that the moral desert of an offender is a sufficient reason to punish him.” Moore, M. (1997). Placing blame: a general theory of the criminal law, Oxford University Press (p. 88).
Ibid. (p. 91).
Moore has indicated some doubts that this is the case (personal communication). But as I will show, his own theory of criminal responsibility indicates that—in general—the same things make us both responsible in the interpersonal and criminal realms; and that what we deserve is directed blame and, in some cases, hard treatment.
Some, including Gary Watson, hold that different types of responsibility track quality of will versus culpable wrongdoing (attributability tracks quality of will and accountability tracks culpable wrongdoing) (Watson 1996). Under this sort of schema, I am interested in accountability responsibility here.
Moore seems to admit that although he claims desert is sufficient to punishment, other intrinsic goods might be considered or relevant—desert is sufficient within “some limited set of conditions” Moore, M. (1997). Placing blame: a general theory of the criminal law, Oxford University Press. This claim makes Moore’s account of criminal punishment as an intrinsic good seem somewhat similar to McKenna’s claim that directed blame can be justified as an extrinsic good. That is, Moore’s conditions might entail the same sort of moral community McKenna thinks is necessary for directed blame to deliver a good robust enough to justify the harm of directed blame. McKenna, M. (2019). "Basically Deserved Blame and its Value." Journal of Ethics and Social Philosophy 15(3): 255–282.
Some may need convincing that a world with blame, shame, guilt, and grief is better than one without them. To try to convince such a person, I would say something like this: To be human is to be able have a range of human experiences, good and bad; and to have the ability to consider, reflect, and plan based upon those experiences. A world where we can take a drug to numb ourselves so we don’t have painful or harmful experiences like shame or grief would not be a world that was better for creatures like us. There has been some discussion of this in the Neuroethics literature. "Enduring questions and the ethics of memory blunting." Journal of the American Philosophical Association 3(2): 227–252.
Some philosophers may worry that my reporting sexual harassment triggers formal punishment, and thus ought not to be considered an informal sanction. We can imagine that no legal, and only professional, consequences follow from my report. However, the line between formal and informal punishment is murky. For the purposes of this paper, I’m only really interested in two forms of punishment (although there are no doubt many different forms that might be parsed): criminal, and non-criminal, or what I am calling “informal.”.
Michael McKenna focuses on this dialogical aspect of blaming in Mckenna (2012). Anneli Jefferson thinks that if the dialogical or conversational aspect is lost we may not want to call our blaming reactions reactive attitudes at all. It may be the case that the threat of punishment is essential to the nature of reactive attitudes if it is necessary to them being received in a certain way (personal correspondence).
Interestingly, the criminal justice system is designed so that verdicts and punishments are public; but an offender’s attitude toward these verdicts and punishments—say, defiance or remorse—are not. This is surprising if Duff is right that criminal punishment aims toward repentance: One would think the law would benefit from having information about this repentance (or not) made public. The vast majority of criminal cases are pled out, so the public record contains just a plea and sentence; where there is a trial most criminal defendants take the fifth and do not testify. Even at sentencing defendants are rarely heard from.
See Weishaupt v. Commonwealth of Virginia., 315 S.E.2d 847 (1984), where the Supreme Court of Virginia rather weakly concluded that “There may, I think, be many cases in which a wife may lawfully refuse intercourse, and in which, if the husband imposed it by violence, he might be held guilty of a crime.”.
Patterns of criminal arrests, prosecutions, and punishments can also have the effect of loosening or diluting moral norms. One might argue that this is the effect of the lack of arrests, prosecution, and punishment of so-called “simple rape” where force and resistance are not required.
I once spent almost an hour listening to prosecutors debate whether a cell phone could count as a weapon under a statute when it was used to break a domestic violence victim’s nose.
We might even hope that this punishment could be compassionately applied, with the best interests of the offender and the moral community in mind.
To make matters even more complicated, we might want to consider the harm caused by a punishment not just to the offender, but to his larger community (e.g. the loss of support to the offender’s family; the loss of the offender’s contributions to their community, etc.).
Thank you to Doug Husak for making this comment on an earlier draft.
For a more detailed discussion of the way in which criminal punishment might support instead of hinder moral agency, see Sifferd, K. (2018). Virtue Ethics and Criminal Punishment. From Personality to Virtue. J. Webber and A. Masala, Oxford University Press.
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Acknowledgment
The author is grateful to Douglas Husak, Alec Walen, Michael McKenna, and Anneli Jefferson for comments on earlier drafts of this paper. Thanks also to the attendees of Rutgers University's Institute for Law and Philosophy's symposium on Michael Moore’s book, Mechanical Choices; and finally, to Michael himself for both inspiring and challenging my ideas about blame and punishment.
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Sifferd, K.L. Deserving Blame, and Sometimes Punishment. Criminal Law, Philosophy 18, 133–150 (2024). https://doi.org/10.1007/s11572-023-09668-6
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DOI: https://doi.org/10.1007/s11572-023-09668-6