Criminal quarantine fails as an ethical theory

By Aristophanes


As a hard incompatibilist, contemporary philosopher Derk Pereboom believes moral responsibility, and the sort of free will necessary for such culpability, is incompatible with both determinism and indeterminism. Because one or the other must be true, it is impossible for us to be morally responsible. This presents a problem for our legal system: If criminals are not morally responsible for the crimes they commit, how are we to justify punishing them?

For this particular worry, Pereboom suggests we turn to the rationale of quarantine; in place of an infectious subject, we would substitute a dangerous criminal to be cordoned off from society. This system would be just, provided criminals’ lives behind bars are not substantially worse than their previous freedom in the open world. Such a revised mode of punishment, or “funishment,” as some call it, could be implemented with only a moderate increase in correctional funding.

However, critics claim that Pereboom’s system of criminal incapacitation is both counterproductive and infeasible. In a separate commentary, Saul Smilansky argues that pleasurable quarantine would greatly reduce the deterrent nature of the modern justice system. If committing a serious crime condemned one to a lifetime of all-expense paid comfortable living, the number of crimes committed might correspondingly increase, he says. This would create a system unable to support itself both ethically and monetarily.

In this article, I will address the apparent shortcomings of Pereboom’s incapacitation theory, using them as a basis to explain why hard incompatibilism is not only consistent with but in fact supports utilitarianism; this is an issue because Pereboom’s system is starkly anti-utilitarian.

First, I will provide a short overview of the theory as Pereboom presents it in his book Free Will, Agency, and Meaning in Life.

Next, I will address a two-pronged counter to the theory, supporting assertions that pleasurable quarantine both reduces the beneficial deterrence-factor of the current legal system and is also virtually impossible to institute in the real world. In turn, these assertions will serve as a foundation upon which I will argue against the wedding of hard incompatibilism with any system of punishment-justification aside from general utilitarianism, which Pereboom’s theory, being in nature anti-utilitarian, decidedly is not.

Finally, I will conclude with a few thoughts on Pereboom’s apparent optimism, and whether his theories actually give him sufficient reason to be so cheery.


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Quarantine theory

Pereboom’s theory draws an analogy between dangerous criminals and carriers of infectious diseases. If we are justified in isolating the latter from society in certain instances, even though they might not be responsible for their condition and the danger such a condition poses to society, so too should we be justified in isolating the former who, likewise, are not at fault for their own condition, an “ailment” that also presents a societal threat. The more severe the potential danger a certain criminal poses, the more extreme an isolation can be justified.

However, an added complication is that criminals in Pereboom’s world, one where hard incompatibilism is true, are necessarily innocent of wrongdoing, as all people in that world lack moral responsibility. This makes the criminals as much victims of institutionalized punishment as their victims are victims of crime itself, and we are generally unable to justify punishing someone for an act they are not morally responsible for.

Pereboom believes his quarantine theory provides the best solution to this worry, but that it must, as quarantine often does, go hand-in-hand with treatment; prisons in which the morally innocent criminals are kept should not provide for lives substantially inferior to those on the outside world, as this would constitute a harm. They should, instead, provide for lives as normal as realistically possible. Today’s prisons by and large accomplish no such goal, and would need to be vastly improved to function as they should in Pereboom’s justice system.

Pereboom’s argument, as I take it, is sketched below.

P1.  If hard incompatibilism is true, then no one can have moral responsibility

P2.  Hard incompatibilism is true

P3.  From P1 and P2, no one can have moral responsibility

P4.  From P3, criminals are not morally responsible for their crimes

P5.  If one is not morally responsible for an act, one is innocent in regards to it

P6.  From P4 and P5, criminals are innocent of wrongdoing

P7.  We cannot justify punishing those who are innocent of wrongdoing

P8.  From P6 and P7, we cannot justify punishing criminals

P9.  Criminals harm a society when they are allowed to freely live within it

P10.  From P9, isolating criminals from society will reduce the harm society incurs from criminal acts

P11.  Isolation does not entail punishment if the isolation is roughly as pleasurable as non-isolation

C.  From P8, P10 and P11, to reduce the harm society incurs from criminal acts we should isolate criminals from it, but this isolation should be roughly as pleasurable as non-isolation

In the next section, I will show that Pereboom fails to justify P10, an argument aided by material from Smilansky. I will also share my thoughts on P7, a premise I take to be false if hard incompatibilism is true. In such a world, we can indeed justify punishing the morally innocent, thereby dismantling one of the greatest barriers to acceptance of utilitarianism-style theories.


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Problems with criminal incapacitation

Saul Smilansky, a compatibilist, believes Pereboom’s incapacitation system would severely weaken the deterrent nature of the current criminal justice system. When imprisonment is not pleasurable, it encourages criminals to think twice about committing illegal acts. However, if imprisonment were just as pleasurable as not being imprisoned, what would remain to dissuade a potential lawbreaker from committing a crime which offers much to gain if successful and little to lose (or even a bit to gain) if caught? Without the threat of systematic punishment against criminal actors, crime would likely increase.

Now, this is not to say that overly severe punishment is desirable, either. Pereboom believes the prison system should exist to both contain and rehabilitate criminals. As he points out, many countries, such as Norway, do this quite well. Perhaps it is not a coincidence that Norway’s crime and recidivism rates are much lower than those of the United States, where prison sentences are more punishment-oriented.

But what Pereboom calls for is more extreme than Norway’s current system. To the extent that such a thing is possible, Pereboom would have us reduce the punishment-apparatus of the penal system down to a bare minimum, destroying the largely universal societal desire to not be imprisoned.

And even if Pereboom were not so demanding — maybe by limiting his reformation to a slight increase in the humaneness of prison life — he would not, by his own rules, be doing justice to the components of his philosophy. After all, these men and women, criminals they might be, are utterly innocent of all wrongdoing. There is no punishment, no matter how humane, they ought to suffer if we strongly adhere to the maxim in P7: we cannot justify punishing the innocent.

The depletion of the deterrent feature of criminal justice raises another concern: general feasibility. The argument, supported by Smilansky, goes that if prison were truly as pleasurable as the outside world, then many more crimes would be committed. If more crimes are committed, all else being equal, the prison population will increase. And if the deterrent feature is degraded to the degree it seems it would be under Pereboom’s system, not only would the prison population increase, but it would balloon out of control.

Go ahead and factor in the increased per-prisoner cost of such a pleasurable reality along with an increase in the gross number of those living inside such facilities, and the increase in our prison costs would be enormous. Taxes would go up, and, further, fewer people would be able to pay taxes in the first place, as a greater proportion of the population would be behind bars. This spells doom for a real-world fiscal justification of Pereboom’s incapacitation-focused prison system.


A self-defeating outcome

Pereboom developed his system of quarantine in an effort to bypass the philosophical taboo of allowing for the punishment of innocent people, a group which, if hard incompatibilism is true, encompasses everyone. Ironically, his system not only allows for punishing the morally innocent residents of a society, it would actually increase the amount of punishment they must endure.

In this manner, Pereboom’s theory fails both in theory and in practice. If we take Smilansky’s very reasonable predictions to be true — namely, that Pereboom’s quarantine system, all else being equal, would result in an overall increase in crime — we can reason to a conclusion in which the incapacitation theory does in fact support punishment, and to quite a substantial degree. However, it is the non-criminals as opposed to their lawbreaking compatriots who are being punished, and the overall level of harm caused by the quarantine system is greater than that caused by either the current system or a utilitarian-based alternative.

Say we adopt Pereboom’s theory tomorrow, so that the authorities fully adhere to every provision. Our prison population will grow, but so too will the number of criminals not yet incapacitated. We can assume that, if the number of criminals grows, the number of victims will also increase. The indirect outcome of criminal quarantine on such a wide scale is that those who are not quarantined are those who endure the punishment; harm is displaced, with law-abiding citizens picking up the tab. This effect would not occur with the quarantining of infectious disease carriers, a key difference that highlights a fault in Pereboom’s chosen analogy.

In Pereboom’s world, the legally innocent would be punished in a disproportionately larger sense than they are under the current legal system, whereas criminals would receive protection. If hard incompatibilism is true, this is not an issue in itself, as all people are equally, and completely, morally innocent, whether they are hardened criminals or law-abiding citizens.

What is problematic, however, is that a system of pleasurable criminal quarantine increases the total amount of harm in a society, and does not, as Pereboom believes, do away with institutionalized punishment altogether. Rather, institutionalized punishment is offset so that it harms an even greater number of people, albeit somewhat indirectly. Although this unintended result of mass punishment triggered by actions of the state justice system is not quite as direct as, say, legally prescribed punishment, it is nevertheless entirely foreseeable and preventable, and thus not properly forgivable.


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Conclusion

If criminal quarantine is unjustifiable given the truth of hard incompatibilism, as I believe this article has shown, Pereboom is in a quandary. To accept that we are not free and to necessarily conclude that our current legal system is massively unjust is to resign oneself to a view of inescapable tragedy; Pereboom has reason to be quite frustrated.

The only legal system we can accept as just under these circumstances is one in which everyone is morally innocent but some are still punished for the good of all despite their inability to truly deserve such treatment. Yet even if everyone agreed that moral desert does not exist, we might still be unable to willfully adopt such a system in reality due to our deeply ingrained sense of necessary retributivism. We continually hold that criminals are morally guilty and law-abiding citizens morally innocent, and this leads us to a system in which the morally innocent are punished for the good of others who are equally morally innocent in a manner that does not provide for the greatest good.

The solution is to turn to a fully utilitarian-style system of punishment. Here, one major objection has traditionally been that such a system mandates punishing the innocent in certain scenarios. But if everyone is equally innocent, and we cannot do away with punishment altogether, this worry disappears. One might balk at such an outcome, but, if hard incompatibilism is true, and we refuse to punish a non-criminal, we are allowing a greater deal of harm to befall others who are also innocent — and equally so.

Besides, such scenarios where punishing a non-criminal would provide more utility than punishing a criminal are few and far between. Our current justice system as it stands will sometimes punish the innocent — for example, when a jury misreads a situation and comes back with a guilty verdict for an innocent man, a common storyline of many Netflix documentaries — but, despite these momentary failings, the entire system as a whole is certainly justifiable on account of the good it accomplishes for a great number of people.

So it goes with utilitarianism, which is justifiable for the good it produces and is only defeated by its disregard of moral desert. In a world where hard incompatibilism is true and moral desert does not exist, a utilitarian-justified system would be superior, certainly, to the obtuse and costly system that comes with Pereboom’s theory of quarantine. It would also function much like the system we currently have, as rare is the case when punishing a non-criminal enhances utility.

If Pereboom were to accept this incorporation of utilitarianism, he could at last fully justify the punishment of criminals within the narrow metaethical bounds of a hard incompatibilist domain, in turn supporting a system of institutionalized punishment similar to those we use today. In such a case, he would actually have good reason to be rather optimistic.


References

Pereboom, Derk. “A Defense of Free Will Skepticism: Replies to Commentaries by Victor Tadros, Saul Smilansky, Michael McKenna, and Alfred R. Mele on Free Will, Agency, and Meaning in Life.Criminal Law and Philosophy (2017): 1–20. 03 February 2017. Web.

Pereboom, Derk. “Chapter 7: Free Will Skepticism and Criminal Behavior.” Free Will, Agency, and Meaning in Life. Oxford: Oxford University Press, 2014. 153–174. Print.

Smilansky, Saul. “Pereboom on Punishment: Funishment, Innocence, Motivation, and Other Difficulties.” Criminal Law and Philosophy (2016): 1–13. 03 May 2016. Web.

Tadros, Victor. “Doing Without Desert.” Criminal Law and Philosophy (2016): 1–12. 27 May 2016. Web.


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