Wednesday, July 25, 2012

Should punishment be about retribution or deterrence?

Who's in Charge? By Michael S. GazzanigaOne of the things I found particularly interesting in ‘Who’s in Charge?’ by Michael Gazzaniga, is experimental evidence suggesting that people who believe they have free will tend to be better behaved than those who believe in determinism. People who don’t believe they have free will are apparently less likely to control their impulses to act selfishly or aggressively. This might be an instance where a little knowledge can be a dangerous thing.

The main point made by Gazzaniga – who is referred to as the father of cognitive neuroscience – is that individual responsibility is a dimension of life that cannot be illuminated by analysing single brains in isolation. In isolation, single brains seem to be governed by unconscious intentions – awareness comes after the event. Individual responsibility comes from social exchange. If we want to understand how individuals are responsible for their actions we need to look at the whole picture of a brain interacting with other brains.

Readers who are interested in a general overview of the book should read the review by Benedict Carey in the NYT.

Gazzaniga discusses the question of whether punishment should be retributive or utilitarian near the end of his book. Retributive justice is concerned primarily with giving criminals the punishment they deserve – the crucial variable is the degree of moral outrage the crime engenders. Utilitarian justice is concerned primarily with the future good of society. The author suggests that means it is concerned with deterrence, incapacitation (e.g. jailing criminals to prevent them from re-offending) and rehabilitation.

The interesting point is that although many people label themselves deterrists rather than retributivists, when it comes to actually handing out punishments self-labelling counts for little – people have a strong tendency to behave as retributivists. Irrespective of what they say, they tend to punish for harm done even when there is little likelihood that the person will re-offend in future.

Gazzaniga suggests that retributive justice has deep moral foundations in human evolution. We can use abstract consequentialist thinking when faced with abstract questions of public policy, but we resort to fairness judgements when faced with an individual who is to be punished.

For example, should harsh sentences be applied to minor offences to increase the deterrence effect? If you think about it in abstract terms, sending a person to prison for a relatively minor first offence (e.g. low range drink driving) might seem likely to increase the sum total of human happiness by deterring others from an anti-social behaviour that endangers human life. But would it be fair to hand out punishments that are disproportionate to the additional risks involved in particular instances?

Consider a more extreme example. Should judges make an example of celebrities by giving them greater punishment for minor offences? Since the punishment of celebrities would receive greater publicity it could be expected to have a greater deterrent effect, but in my view it would still be unfair.

Does utilitarianism necessarily imply that it is OK to impose unfair sacrifices on individuals for the future good of society? No. Some people who subscribe to utilitarianism, as a theory of normative ethics which views human happiness as the fundamental value judgement or ultimate criterion, consider the best test of actions or rules of action to be the extent to which they promote social cooperation. For example, Henry Hazlitt argued that ‘for each of us social cooperation is the great means of attaining nearly all our ends’. He noted that social cooperation ‘has the great advantage that no unanimity with regard to value judgements is required to make it work’. It enables the disparate goals of different individuals to be reconciled and harmonized. (‘The Foundations of Morality’: 35-36).

Leland Yeager has argued:
‘Regardless of just what plausible interpretation we give to happiness, social cooperation is prerequisite to its effective pursuit. Lying, cheating, and stealing subvert happiness because they subvert the prerequisite cooperation. Telling the truth, keeping promises, and respecting other people’s rights and property are conducive to cooperation. We come to believe propositions like these through factual and logical analysis of what conditions help individuals pursue their own diverse goals effectively’ (‘Ethics as Social Science’, 2001: 83).

Yeager also makes the point:
‘Emphasis on voluntary cooperation warns against imposing unfair sacrifices on individuals for the supposed greater good of a greater number’ (p. 82).

This line of reasoning suggests to me that if social cooperation is the objective we should be seeking retribution i.e. giving criminals the punishment that they deserve – even if we are sufficiently civilized not to seek pleasure from their suffering.

Michael Gazzaniga comes to a similar conclusion in looking at the issue from an evolutionary perspective. He suggests that humans have evolved to cooperate on a massive scale with unrelated others partly by punishing noncooperators. He leaves us to ponder: ‘If we don’t incapacitate the offenders, will the noncooperators take over and society fall apart?

I was aware that I was being provocative in coming out in favour of retribution, when the point I was really trying to make is that justice should be primarily about fairness rather than deterrence. (As I acknowledge in response to a comment from kvd, however, there is an element of deterrence involved in fair punishment.) Retribution may mean giving people fair punishment but it can be mistaken for vengeance. Jim Belshaw had an interesting post yesterday about vengeance - which I largely agree with.

Comments from TBT (below) prompt me to acknowledge that I hope that evolution in public perceptions of fairness might enable able us to move further towards some kind of restorative system of justice. 


Thought Bubble Ten said...

But why *punishment* to begin with???

Anonymous said...

Winton your heading sort of implies an either/or view, whereas I've always thought of 'justice' as a mixture of both.

And, as usual with me, going off in a slightly different direction, I'd say the biggest (probably unsolveable) problem in our justice system is the regular inconsistency seen in penalty - not just between different categories of crime, but as meted out for what seems the exact same misdeed.

Note that by 'problem', I mean that which sometimes leads to a lessening of respect for our system of justice.

Anonymous said...

(Comment above by kvd. Apologies.)

Winton Bates said...

TBT: Welcome back! There are two answers I can give to your question. I think you might find the second more persuasive, but I feel that you should also be given the opportunity to consider the first.

The first relates to human nature and evolution. The desire to punish those who act unfairly is deeply ingrained in human nature. Experimental evidence shows that many humans are even prepared to make personal sacrifices in order punish those whom they consider to have acted unfairly. This serves a purpose in terms of behaviour modification and possibly improving the gene pool (by preventing humans with extreme anti-social tendencies from becoming our ancestors).

The second is an appeal to reason. Some people don’t seek retribution when they have been wronged, perhaps because they have learned to ‘turn the other cheek’ or because they just know that retribution will not give them any satisfaction. The question is whether society would be better if everyone refrained from seeking to punish those who have wronged them. I don’t think so. I don’t want to downplay the power of forgiveness, but as a rule I don’t think it is possible to discourage bullying, for example, just by forgiving bullies. The threat of punishment generally seems to be necessary to get bullies to change their ways and to prevent them from harming other people.

Winton Bates said...

kvd: I see your point. Many of us argue that we seek retribution in order to deter crime and take criminals out of circulation. Michael Gazzaniga would probably say that is an ex poste rationalization by the interpreter module in our brains. In my case that rationalization is suspect because I sometimes support retribution when it serves no purpose in terms of crime prevention. For example, I feel that people who committed horrific war crimes 70 years ago should be tried for their crimes, even though this is unlikely to have any effect on the future incidence of crime. I would like to see them acknowledge guilt and express remorse.

Regarding inconsistency of penalties, I have been told that it isn’t as great as it appears to be. The argument is that if we knew the circumstances, we wouldn’t see inconsistency. I don’t know. Some judges certainly seem to have a reputation for being more severe/lenient than others.

A related point concerns the difficulty of following some rules that seem desirable from a deterrence perspective. There has been experimentation in the US (and in the Northern Territory I think) with a ‘three strikes and you are out’ rule. The idea is to send habitual criminals away for a long time. It may make sense when you think about it in abstract terms, but seems most unfair at the third strike when people who seem to be barely responsible for their actions may be sent to jail for a long time for minor theft.

Thought Bubble Ten said...

The thing that humans claim gives them *superiority* over other animals is their/our ability to override the so-called hard-wired evolutionary traits.

Not only are we capable of seeking extreme forms of retribution, we are also capable of demonstrating 'extreme' forms of selflessness.

In many cases, punishment is meted because the punisher can. A parent smacks a child because s/he physically can. In this instance, is a parent that different to a bully?

If the child were as big and strong or bigger and stronger than its parent, punishment, certainly of a physical nature, would be unlikely!

Yes, our immediate reaction to a wrongdoing may be to seek retribution, but surely we can, and for our greater good, must explore better ways of responding to what is always the result of a loss of control/reason.

When all is said and done, I think the test to which all our actions and reactions need to be sunjected to is this:

What is our motivation?

Does inflicting pain on another help minimize the pain we've experienced? Is this why we wish to punish?

Are we so convinced that punishment, whether for retribution or deterrence is the best and only way to handle those who do not know how to live within the bounds of human decency?

To me, that's appealing to the lowest common denominator of what it means to be human.

I'm reminded of Gandhi's wonderful insight: An eye for an eye makes the whole world blind.

Winton Bates said...

TBT: I appreciate your comment. In terms of personal motivation I accept that we should be trying to overcome our desires to retaliate against those who have wronged us, or to take pleasure from the suffering of others – even murderers and rapists. But the central issue that concerns me at the moment is what kind of justice system would best promote social cooperation and enable people to live in peace.

It seems to me that the essential characteristic of such a system is that individuals should be held to be responsible for their actions (to the extent that they are in fact responsible) and that the consequences of actions that infringe the rights of others should deter such actions. When I look around the world, the countries in which those conditions don’t hold are not places where people live in peace. (The other places where people don’t seem to particularly good at living in peace, judging by incarceration rates, are those which seek to criminalize non-conformism and stupidity – but that is another story.)

Thought Bubble Ten said...

Perhaps it may be useful to explore where an *individual* mind begins and ends, if it current science is now questioning...:)

Winton Bates said...

TBT: There is a nice little book, 'Out of Our Minds' by Alva Noe, which I discussed
here about three years ago. Does this relate to what you are suggesting?

Winton Bates said...

Oops, I must have been temporarily 'out of my mind', TBT. The the title of the book is 'Out of Our Heads'.

Thought Bubble Ten said...

Yep, it does... :)

BTW, I remember the response by some people in the home town of the Norwegian, Andres Breivik, who killed several people, when they were interviewed after the masacre.

There was a young couple... the man said something to the effect that this person (AB)was someone from their community, one of their 'products' and that they all needed to think about this, what caused it and how best to deal with it...

I thought it was an enlightened response...

You were 'out of your mind' Winton??? You weren't in mine by any chance, were you??? :)

Winton Bates said...

OK TBT, we do have to try to understand that kind of thing. Our legal system does that to some extent by trying to establish responsibility. But that is only a small part of the issue. By holding individuals responsible we are, in a sense, establishing their normality, which is uncomfortable. Could anyone I know be capable of doing that kind of thing?

BTW, I thought that you were punishing me when you stayed away for so long!

Thought Bubble Ten said...

Actually Winton, I believe we are all capable of these extreme behaviours but most of us, in conjunction/collaboration with the rest of society, have developed self-regulating ways to mitigate such behaviours.

I think that trying to deal with something in isolation, as if it were independent of everything else, or selectively choosing those factors that we deem 'relevant' produces false/incomplete understandings. We may find such understandings attractive because they appear to offer (quick) solutions including the *solution* of punishing the individual...

If I believed in punishment, it would be entirely possible that I punished you (and myself) with my long absence!!!

I've always enjoyed checking in with your thinking and your blogging consistency is something I admire :)

Winton Bates said...

TBT: This might be an appropriate point for me to acknowledge my hope that evolution in public perceptions of fairness might enable able us to move further towards some kind of restorative system of justice.
I think my grandmother might even have approved of that. She didn’t believe in inflicting punishment. She believed in the power of love (with a capital L). But she was able to inflict punishment without even trying; she didn’t have to say or do anything – she only had to look as though she was disappointed. (Perhaps I should consider more frequently how my grandmother might react to the stuff I write ).
I was sorry to see you stop blogging. There must be a story behind all that. Perhaps you will tell us one day - I hope you are still writing poetry.

Thought Bubble Ten said...

Oh, I'm sure grandma would have a look of supreme satisfaction and pride at the stuff you write, Winton!

You might be pleased to know that I've not stopped blogging though I haven't been posting at the site you read me at... ;). That said, I haven't yet given up on it, I'm just waiting for it to feel right again...

Also, I'm still writing poetry which would be almost impossible for me to give up...truth be told, writing in general would be impossible for me to give up. I certainly wouldn't want to!

BTW, have you come across this blog?

Think you might find it useful...