As we grow up, it really feels like we make choices as first movers. It feels like I decided to drink coffee this morning in a way that was not simply the result of atoms crashing into each other in ways determined long before my birth (or determined by physical laws and random subatomic behavior). But rather than make an argument here about free will directly, I instead ask how confident you are that we have free will. Keeping in mind that no one has defended free will to widespread satisfaction over the last several hundred years, it seems hubristic to believe in free will with very high levels of confidence. Consider then your percent confidence that we have free will and make a little note to yourself about it.
Now assume that we really do have the sort of free will that can generate moral responsibility. How confident are you that we ought to respond to moral wrongdoing by punishing/making wrongdoers suffer? Is it not possible that harming someone who harms others fails to improve the situation? Is it not possible that our urges to make wrongdoers suffers are misdirected, just like many other urges that we learn to control? Consider your confidence, then, assuming that we have free will, that wrongdoers deserve to be punished/suffer for their wrongdoing and write it down.
When we punish, we mostly only consider offenders' recent criminal deeds for which they stand formally accused. We give relatively little consideration to what they deserve across their entire lives. Some people may have suffered so much, one might think, that additional suffering only pushes their situations further from what they deserve rather than closer. Or, they may have done so many good deeds that we would more accurately give them what they deserve by not punishing them than by punishing them. Would it be better to consider what people deserve by considering their whole lives rather than just their criminal history? Taking the propositions in the prior paragraphs as given, note your confidence that it is possible and sufficiently practical to assess the relevant background history of a defendant’s deeds and life circumstances in order to assess what he deserves.
In order to punish under a relatively pure version of retributivism, you need to believe all three of these propositions (i.e., that people can be morally responsible, they deserve punishment/suffering for their wrongdoing, and we have the right data to measure desert). So we can express your confidence in the conjunction by multiplying (because I asked you to consider the probabilities conditioned on the truth of prior propositions). If you were relatively confident in each proposition, say 90% confident, your maximum confidence in the conjunction is .9 *.9 *.9 = 73%. Is that good enough to punish someone? Well, if forensic evidence yielded 73% confidence that a defendant committed some crime, would that be high enough to convict and punish? No need to decide yet. In Punishment and Moral Risk, I walk through nine propositions that one must believe to retributively punish a particular offender. As you can imagine, if you're realistic in your estimates, confidence in the conjunction drops rather quickly.
But how confident must retributivists be that punishment is justified? If they're less than 50% confident, then they believe it more likely the person does not deserve retributive punishment than that he does. But a 50% requirement seems far too low. Most retributivists believe in the beyond-a-reasonable-doubt (BARD) standard. The values underlying that standard seem to reflect the view that it is far worse to punish someone who ought not be punished than fail to punish someone who ought to be. So, though I can't give you an exact number, the values underlying retributivist commitment to BARD suggest retributivists should be rather demanding in their overall confidence that a person deserves to be punished. I claim that, given reasonable ways of filling in the nine propositions I offer, retributivists (of relatively pure varieties) will generally lack sufficient confidence to actually punish a particular offender.
I'm pleased to report that the Illinois Law Review will be publishing an online symposium early next week that responds to the claims I make in the paper. More about that and the five contributors to it next week when the symposium is published!
P.S. Last week, I wrote a post on the "bumpiness" of criminal attempts which took issue with some of Doron Teichman's claims on the subject. I thank him for his thoughtful reply in the comments to that post. (This post originally appeared at Prawfsblawg.)
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