In the recent literature a number of free will skeptics, skeptics who believe that punishment is justified only if deserved, have argued for these two points: first, that the free will realist who would justify punishment has the burden of establishing to a high level of certainty - perhaps beyond a reasonable doubt, but certainly at least by clear and convincing evidence - that any person to be punished acted freely in breaking the law; and, second, that that level of (...) evidence is simply not there. In this paper I make two parallel points against a quarantine theory of criminal justice. First, the free will skeptic who would justify universal criminal quarantine is also faced with a burden of proof, the burden to establish to a similarly high level that no human being ever acts freely. Second, there is not sufficient evidence for that conclusion either. I believe that the quandary that this creates for criminal justice can be resolved by distinguishing the methods associated with a particular approach from the approach itself: if our choice is between the methods of punishment and the methods of quarantine, the methods that constitute punishment are, I would argue, morally preferable to those that constitute quarantine. (shrink)

One of the most frequently voiced criticisms of free will skepticism is that it is unable to adequately deal with criminal behavior and that the responses it would permit as justified are insufficient for acceptable social policy. This concern is fueled by two factors. The first is that one of the most prominent justifications for punishing criminals, retributivism, is incompatible with free will skepticism. The second concern is that alternative justifications that are not ruled out by the skeptical view (...) per se face significant independent moral objections. Yet despite these concerns, I maintain that free will skepticism leaves intact other ways to respond to criminal behavior—in particular preventive detention, rehabilitation, and alteration of relevant social conditions—and that these methods are both morally justifiable and sufficient for good social policy. The position I defend is similar to Derk Pereboom’s, taking as its starting point his quarantine analogy, but it sets out to develop the quarantine model within a broader justificatory framework drawn from public health ethics. The resulting model—which I call the public health -quarantine model—provides a framework for justifying quarantine and criminal sanctions that is more humane than retributivism and preferable to other non-retributive alternatives. It also provides a broader approach to criminal behavior than Pereboom’s quarantine analogy does on its own. (shrink)

Pereboom and Caruso propose the quarantine model as an alternative to existing models of criminal justice. They appeal to the established public health practice of quarantining people, which is believed to be effective and morally justified, to explain why -in criminal justice- it is also morally acceptable to detain wrongdoers, without assuming the existence of a retrospective moral responsibility. Wrongdoers in their model are treated as carriers of dangerous diseases and as such should be preventively detained (or (...) rehabilitated) until they no longer pose a threat to society. Our main concern in this paper is that Pereboom and Caruso adopt an idiosyncratic meaning of quarantine regulations. We highlight a set of important disanalogies between their quarantine model and the quarantine regulations currently adopted in public health policies. More specifically, we argue that the similarities that Pereboom and Caruso propose to substantiate their analogy are not consistent—despite what they claim—with the regulations underlying quarantine as an epidemiological process. We also notice that certain quarantine procedures adopted in public health systems are inadequate to deal with criminal behaviors. On these grounds, we conclude that Pereboom and Caruso should not appeal to the quarantine analogy to substantiate their view, unless they address the issues and criticism we raise in this paper. (shrink)

Some contemporary philosophers maintain we lack the kind of free will that makes us morally responsible for our actions. Some of these philosophers, such as Derk Pereboom, Gregg Caruso, and Bruce Waller, also argue that such a view supports the case for significant reform of the penal system. Pereboom and Caruso explicitly endorse a quarantine model for dealing with dangerous criminals, arguing that while not responsible for their crimes such criminals should be detained in non-harsh conditions and offered the (...) opportunity for rehabilitation. Waller does not explicitly endorse the quarantine model, but his view is similar in significant respects. I argue that such views can too easily lead to the endorsement of legal policies which would result in more frequent punishment of innocent persons for crimes they have not committed. Thus, we should have deep moral reservations about such views. (shrink)

This article compares the quarantine model of criminal justice advocated by Derk Pereboom and Gregg Caruso with the corrections model of criminal justice advocated by Michael Corrado. Both of these theories are grounded on the presumption that persons lack desert-grounding free will. It is argued that on this presumption there is no reason to believe that Michael Corrado’s corrections model is any better than the quarantine model.

One of the most frequently voiced criticisms of free will skepticism is that it is unable to adequately deal with criminal behavior and that the responses it would permit as justified are insufficient for acceptable social policy. This concern is fueled by two factors. The first is that one of the most prominent justifications for punishing criminals, retributivism, is incompatible with free will skepticism. The second concern is that alternative justifications that are not ruled out by the skeptical view (...) per se face significant independent moral objections (Pereboom 2014: 153). Despite these concerns, I maintain that free will skepticism leaves intact other ways to respond to criminal behavior—in particular incapacitation, rehabilitation, and alteration of relevant social conditions—and that these methods are both morally justifiable and sufficient for good social policy. The position I defend is similar to Derk Pereboom’s (2001, 2013, 2014), taking as its starting point his quarantine analogy, but it sets out to develop the quarantine model within a broader justificatory framework drawn from public health ethics. The resulting model—which I call the public health-quarantine model (Caruso 2016, 2017a)—provides a framework for justifying quarantine and criminal sanctions that is more humane than retributivism and preferable to other non-retributive alternatives. It also provides a broader approach to criminal behavior than Pereboom’s quarantine analogy does on its own since it prioritizes prevention and social justice. -/- In Section 1, I begin by (very) briefly summarizing my arguments against free will and basic desert moral responsibility. In Section 2, I then introduce and defend my public health-quarantine model, which is a non-retributive alternative to criminal punishment that prioritizes prevention and social justice. In Sections 3 and 4, I take up and respond to two general objections to the public health-quarantine model. Since objections by Michael Corrado (2016), John Lemos (2016), Saul Smilanksy (2011, 2017), and Victor Tadros (2017) have been addressed in detail elsewhere (see Pereboom 2017a; Pereboom and Caruso 2018), I will here focus on objections that have not yet been addressed. In particular, I will respond to concerns about proportionality, human dignity, and victims’ rights. I will argue that each of these concerns can be met and that in the end the public health-quarantine model offers a superior alternative to retributive punishment and other non-retributive accounts. (shrink)

In some jurisdictions, the institutions of criminal justice may subject individuals who have committed crimes to preventive detention. By this, I mean detention of criminal offenders (i) who have already been punished to (or beyond) the point that no further punishment can be justified on general deterrent, retributive, restitutory, communicative or other backwardlooking grounds, (ii) for preventive purposes—that is, for the purposes of preventing the detained individual from engaging in further criminal or otherwise socially costly conduct. Preventive (...) detention, thus understood, shares many features with the quarantine measures sometimes employed in the context of infectious disease control. Both interventions involve imposing (usually severe) constraints on freedom of movement and association. Both interventions are standardly undeserved: in quarantine, the detained individual deserves no detention (or so I will, for the moment, assume), and in preventive detention, the individual has already endured any detention that can be justified by reference to desert. Both interventions are, in contrast to civil commitment under mental health legislation, normally imposed on more-or-less fully autonomous individuals. And both interventions are intended to reduce the risk that the constrained individual poses to the public. Yet despite these similarities, preventive detention and quarantine have received rather different moral report cards. (shrink)

There are several well-established theories of criminal punishment and of its justification. The quarantine model (advocated by Pereboom and Caruso) has recently emerged as one of the most prominent theories in the field, by denying the very idea of criminal justice. This theory claims that no one ought to be criminally punished because fundamentally people do not deserve any kind of punishment. On these grounds, the quarantine model proposes forms of incapacitation based on public safety considerations. (...) In this article, we briefly review a series of objections raised against the quarantine model and propose some new or revised arguments, which are aimed at showing its inconsistencies and weaknesses. These arguments are related to (a) the lack of a reliable way of determining who is dangerous and the consequent need to make judgments about confinement based on probabilities, and (b) the prospect that the quarantine model may encourage certain crimes. Given the arguments we present in this paper, the quarantine model proves to be less solid, humane, and desirable than its proponents claim. (shrink)

Within the criminal justice system, one of the most prominent justifications for legal punishment is retributivism. The retributive justification of legal punishment maintains that wrongdoers are morally responsible for their actions and deserve to be punished in proportion to their wrongdoing. This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. Introducing six distinct reasons for rejecting retributivism, Gregg D. Caruso contends that it is unclear that agents possess the kind of free (...) will and moral responsibility needed to justify this view of punishment. While a number of alternatives to retributivism exist - including consequentialist deterrence, educational, and communicative theories - they have ethical problems of their own. Moving beyond existing theories, Caruso presents a new non-retributive approach called the public health-quarantine model. In stark contrast to retributivism, the public health-quarantine model provides a more human, holistic, and effective approach to dealing with criminal behavior. (shrink)

Punishment involves the intentional infliction of harm and suffering. Both of the most prominent families of justifications of punishment – retributivism and consequentialism – face several moral concerns that are hard to overcome. Moreover, the effectiveness of current criminal punishment methods in ensuring society’s safety is seriously undermined by empirical research. Thus, it appears to be a moral imperative for a modern and humane society to seek alternative means of administering justice. The special issue of Diametros “The Abolition of (...) Punishment: Is a Non-Punitive Criminal Justice System Ethically Justified?” was brought into life precisely to give the authors a platform for such progressive inquiries. And it is now safe to say that this platform has been put to excellent use, since Valerij Zisman, Alexander Stachurski, Giorgia Brucato, Perica Jovchevski, Sofia M. I. Jeppsson, Stephen G. Morris, Benjamin Vilhauer, John Lemos, Saul Smilansky, Elizabeth Shaw, Mirko Farina, Andrea Lavazza and Sergei Levin have presented such thought-provoking texts that they are bound to set the stage for debate in the years to come. This article is an introduction to this special issue and to the authors’ papers. (shrink)

This chapter outlines six distinct reasons for rejecting retributivism, not the least of which is that it’s unclear that agents possess the kind of free will and moral responsibility needed to justify it. It then sketches a novel non-retributive alternative called the public health-quarantine model. The core idea of the model is that the right to harm in self-defense and defense of others justifies incapacitating the criminally dangerous with the minimum harm required for adequate protection. The model also draws (...) on the public health framework and prioritizes prevention and social justice. It is argued that not only does the public health-quarantine model offer a stark contrast to retributivism, it also provides a more humane, holistic, and effective approach to dealing with criminal behavior, one that is superior to both retributivism and other leading non-retributive alternatives. (shrink)

The quarantine model, recently proposed by Pereboom and Caruso, is one of the most influential models developed to date in the context of criminal justice. The quarantine model challenges the very idea of criminal punishment and asserts that nobody deserves punishment on a fundamental level. Instead, in order to deal with offenders, it proposes a series of incapacitation measures based on public safety concerns. In this article, we examine several objections to the quarantine model that (...) demonstrate how, in our view, it can be improved. These mainly pertain to (2.1) the difficulty of reliably identifying dangerous individuals and consequently the need to base confinement decisions on probability, and (2.2) the potential for the quarantine model not to properly deter certain crimes. Three additional objections are raised with respect to (3.1) the rights that are potentially suppressed in the quarantine model; (3.2) the role of “genetic justice”; and (3.3) the difficulty it faces accommodating reasons-responsiveness. Whereas these objections do not constitute knock-down arguments against the quarantine model, they highlight issues that invite closer scrutiny, at least if it is to be considered as a credible framework for the development of viable policies in criminal justice. (shrink)

There are a number of important links and similarities between public health and safety. In this extended essay, Gregg D. Caruso defends and expands his public health-quarantine model, which is a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. In developing his account, he explores the relationship between public health and safety, focusing on how social inequalities and systemic injustices affect health outcomes and crime rates, how poverty (...) affects brain development, how offenders often have pre-existing medical conditions (especially mental health issues), how involvement in the criminal justice system itself can lead to or worsen health and cognitive problems, how treatment and rehabilitation methods can best be employed to reduce recidivism and reintegrate offenders back into society, and how a public health approach could be successfully applied within the criminal justice system. Caruso's approach draws on research from the health sciences, social sciences, public policy, law, psychiatry, medical ethics, neuroscience, and philosophy, and he delivers a set of ethically defensible and practically workable proposals for implementing the public health-quarantine model. The essay begins by discussing recent empirical findings in psychology, neuroscience, and the social sciences that provide us with an increased understanding of the social and neurological determinants of health and criminal behavior. It then turns to Caruso's public health-quarantine model and argues that the model provides the most justified, humane, and effective approach for addressing criminal behavior. Caruso concludes by proposing a capability approach to social justice grounded in six key features of human well-being. He argues that we cannot successfully address concerns over public health and safety without simultaneously addressing issues of social justice—including the social determinants of health (SDH) and the social determinants of criminal behavior (SDCB)—and he recommends eight general policy proposals consistent with his model. (shrink)

In 2020, after the first Covid-19 lockdown, several countries implemented a policy of contact tracing and self-isolating for individuals who crossed borders or came into contact with infected people. To enforce these restrictions, some states imposed very harsh monetary penalties for people who violated them. Behind these harsh fines lies an instrumental rationale. They allow the state to avoid implementing a system of labor-intensive and costly surveillance and enforcement. In this article I argue that such severe penalties are extremely unjust. (...) In order not to expose citizens to the risk of being excessively fined, governmental institutions should instead intensify controls. I argue that they owe it to their citizens to increase the surveillance of compliance with self-isolation obligations. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is (...) not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

Précis of Rejecting Retributivism: Free Will, Punishment, and Criminal Justice (2022).

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Free Will’s Value: Criminal Justice, Pride, and Love by John LemosJohn DavenportLEMOS, John. Free Will’s Value: Criminal Justice, Pride, and Love. New York: Routledge, 2023. 284 pp. Cloth, $160.00It is a pleasure to read John Lemos’s latest work on moral free will, understood as the control needed for us to be morally responsible in “the just deserts sense.” Lemos is a clear writer who carefully lays (...) out the positions that he reviews and critiques. This book would be wonderful as a main text in a graduate seminar: The first six chapters critically address most of the main theories and moves in this wide field during the last twenty to twenty-five years, providing a very helpful overview while setting up Lemos’s own position. He advances an “indeterministic weightings” version of leeway-libertarianism about moral freedom that builds on both Robert Kane’s event-causal account and Robert Nozick’s older account of fixing the weight of practical considerations in the moment of choice. Lemos’s new account significantly refines the position that he defended against hard incompatiblism in his 2018 book. [End Page 721]Free Will’s Value also discusses responsibility in applied contexts, such as criminal justice and loving relationships. There are two chapters arguing that hard incompatibilists cannot save the “just deserts” aspect of criminal punishment or explain all the wrongness of taking the liberty of innocent persons mistakenly convicted. Their “public health quarantine” account of criminal justice will be utilitarian, and thus have a hard time justifying the beyond-reasonable-doubt standard for conviction. And, building on the critiques of compatibilism that he develops partly from Derk Pereboom and Bruce Waller, Lemos includes three chapters arguing that “axiological/pragmatist reasons” provide more evidence for libertarian free will than psychological evidence alone can.The final chapter in particular offers a novel argument that valuable sorts of interhuman loves need to involve self- or character-forming initiatives that are not primarily determined by factors beyond our control. The intrinsic value of some types of love, such as deep friendships—including romantic friendships—involve their being autonomous (my term), which in turn requires a kind of leeway-control. This involves arguing that “our will, effort, or a decision to love” is important to values achieved in sustaining loving relationships.Lemos’s own theory contends that Kane’s account of “self-forming actions” (SFAs) and “willings” (SFWs) in terms of dual “tryings” (or decisions) to do A or B in a fraught situation suffers from the “phenomenological problem” stated by Laura Ekstrom and Marc Balaguer, namely, that we do not normally experience fraught choices as involving such opposed tryings. This is even more evident, I believe, if we consider choices involving three or more salient options. Lemos is not convinced by Kane’s reply that the dual or multiple simultaneous efforts are usually unconscious, because he thinks responsibility for unconscious mental processes will (normally) trace to patterns of conscious choices made earlier in life. In fact, unconscious efforts, Lemos says, cannot meet even “plausible minimal compatibilist standards of responsibility” for elements of agency.I’m not convinced by this last claim, because it seems that an unconscious choice, C, could be responsive to (or counterfactually guided by) reasons relevant to C that the agent has considered in the past. Perhaps the problem is that “trying” is normally associated with attempting to act on an intention, but Kane uses it to describe the more elusive processes of agency involved in forming an intention via decision in the face of competing relevant options, which thereby incorporates motives into the intention. This sheds light on the further problem that it appears irrational to try to do multiple incompatible things at once. Pace Lemos, I think that Kane is right that “will-settling” is a special context in which it is not irrational for a single person’s agency to be engaged along dual pathways. Even if we do not call this “trying,” the agent’s interactions with the salient options are not like those of a detached spectator; they are volitional as well as evaluative. [End Page 722]Lemos’s account recognizes three loci... (shrink)

This chapter outlines six distinct reasons for rejecting retributivism, not the least of which is that it is unclear that agents possess the kind of free will and moral responsibility needed to justify it. It then sketches a novel non-retributive alternative called the public health-quarantine model. The core idea of the model is that the right to harm in self-defense and defense of others justifies incapacitating the criminally dangerous with the minimum harm required for adequate protection. The model also (...) draws on the public health framework and prioritizes prevention and social justice. It is argued that not only does the public health-quarantine model offer a stark contrast to retributivism, but it also provides a more humane, holistic, and effective approach to dealing with criminal behavior, one that is superior to both retributivism and other leading non-retributive alternatives. (shrink)

As philosophical and scientific arguments for free will skepticism continue to gain traction, we are likely to see a fundamental shift in the way people think about free will and moral responsibility. Such shifts raise important practical and existential concerns: What if we came to disbelieve in free will? What would this mean for our interpersonal relationships, society, morality, meaning, and the law? What would it do to our standing as human beings? Would it cause nihilism and despair as some (...) maintain or would it rather have a humanizing effect on our practices and policies, freeing us from the negative effects of belief in free will? In this chapter we consider the practical implications of free will skepticism and argue that life without free will and basic desert moral responsibility would not be as destructive as many people believe. We argue that prospects of finding meaning in life or of sustaining good interpersonal relationships, for example, would not be threatened. On treatment of criminals, we argue that although retributivism and severe punishment, such as the death penalty, would be ruled out, preventive detention and rehabilitation programs would still be justified. While we will touch on all these issues below, our focus will be primarily on this last issue. -/- We begin in section I by considering two different routes to free will skepticism. The first denies the causal efficacy of the types of willing required for free will and receives its contemporary impetus from pioneering work in neuroscience by Benjamin Libet, Daniel Wegner, and John-Dylan Haynes. The second, which is more common in the philosophical literature, does not deny the causal efficacy of the will but instead claims that whether this causal efficacy is deterministic or indeterministic, it does not achieve the level of control to count as free will by the standards of the historical debate. We argue that while there are compelling objections to the first route—e.g., Al Mele (2009), Eddy Nahmias (2002, 2011), and Neil Levy (2005)—the second route to free will skepticism remains intact. In section II we argue that free will skepticism allows for a workable morality, and, rather than negatively impacting our personal relationships and meaning in life, may well improve our well-being and our relationships to others since it would tend to eradicate an often destructive form of moral anger. In section III we argue that free will skepticism allows for adequate ways of responding to criminal behavior—in particular, incapacitation, rehabilitation, and alternation of relevant social conditions—and that these methods are both morally justified and sufficient for good social policy. We present and defend our own preferred model for dealing with dangerous criminals, an incapacitation account built on the right to self-protection analogous to the justification for quarantine (see Pereboom 2001, 2013, 2014a; Caruso 2016a), and we respond to recent objections to it by Michael Corrado and John Lemos. (shrink)

I defend a deontological social contract justification of punishment for free will deniers. Even if nobody has free will, a criminal justice system is fair to the people it targets if we would consent to it in a version of original position deliberation (OPD) where we assumed that we would be targeted by the justice system when the veil is raised. Even if we assumed we would be convicted of a crime, we would consent to the imprisonment of violent (...) criminals if prison conditions were better than the state of nature but deterring enough to prevent the state of nature. And even if we assumed we would be accused of a crime, we would consent to an evidentiary standard low enough to allow a conviction rate sufficient to prevent the state of nature. After explaining this justification, I contrast it with the public health quarantine justification defended by Derk Pereboom and Gregg Caruso, and argue that it provides a stronger response to the using criminals as mere means objection. (shrink)

The aim of this article is to set out a theory for treatment of criminals that rejects retributive justification for punishment; does not fall afoul of a plausible prohibition on using people merely as means; and actually works in the real world. The theory can be motivated by free will skepticism. But it can also be supported without reference to the free will issue, since retributivism faces ethical challenges in its own right. In past versions of the account I’ve emphasized (...) the quarantine analogy for incapacitation together with the value of rehabilitation and reintegration. Here I pay special attention to the permissibility and the limits of general deterrence. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is (...) not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

Hard incompatibilism is a view about free will and moral responsibility that has been developed and defended by Derk Pereboom for almost three decades (Pereboom 1995, 2001, 2014). Succinctly put, hard incompatibilists argue that we do not have free will because, whether determinism is true or false, we are subject to the freedom-undermining effects of causal luck (i.e. causal factors beyond our control). In recent years, Gregg Caruso has become a vocal advocate of hard incompatibilism, and he rests his “public (...) health-quarantine model” and its non-retributive approach to criminal behavior squarely on the foundation of Pereboom’s free-will metaphysics (e.g. Caruso 2012, 2014, 2021, 2022; Pereboom and Caruso 2018, 2022; Dennett and Caruso 2021). More recently, biologist and science popularizer Robert Sapolsky has raised the public profile hard incompatibilism by claiming to endorse this position in his best-selling book Determined: A Science of Life Without Free Will (2023). -/- In this book, I offer a refutation of hard incompatibilism and all instances of constructive incompatibilism. In short, I argue that two central central explanatory tenets of hard incompatibilism are in tension with one another, making it impossible for someone to argue for one without undermining their defense of the other in the process. I then point out that the arguments against hard incompatibilism also undermine Neil Levy's luck-pincer impossibilism (2011). Along the way, I explain why Robert Sapolsky is not a hard incompatibilist and is actually committed to the falsity of hard incompatibilism. In closing, I propose a way for skeptics like Caruso and Sapolsky to maintain their skepticism without any type of constructive incompatibilism as the foundation. -/- [Building from the arguments in "The Problem of Free Will: An Abductive Approach", "Free Will, Self-Creation, and The Paradox of Moral Luck," and "(In)compatibilism"] -/- . (shrink)

A growing number of theorists have launched an epistemic challenge against retributive punishment. This challenge involves the core claim that it is wrong (intentionally) to inflict serious harm on someone unless the moral argument for doing so has been established to a high standard of credibility. Proponents of this challenge typically argue that retributivism fails to meet the required epistemic standard, because retributivism relies on a contentious conception of free will, about whose existence we cannot be sufficiently certain. However, the (...) scope of the epistemic challenge should not be limited to doubts about free will or retributivism. In this article, I argue that the epistemic challenge should be expanded beyond the original focus on justifications of punishment. By “expanding the epistemic challenge” I mean demanding that other purported justifications for serious (intentional) harm be held to a high standard of credibility. To provide a focus for the argument, I will concentrate on the “Public Health Quarantine Model” defended by Gregg Caruso, but my arguments have wider implications beyond this model. A growing number of “abolitionist” theorists believe that punishment is wrong in principle. If retributive punishment, or punishment in general, were abandoned, we would need to ask, “how else should we respond to crime?”. My arguments suggest that all such abolitionists will have to face the same epistemic standard as penal theorists if they wish to replace punishment with the intentional imposition of non-punitive severe coercive measures. (shrink)

I defend a deontological social contract justification of punishment for philosophers who deny free will and moral responsibility (FW/MR). Even if nobody has FW/MR, a criminal justice system is fair to the people it targets if we would consent to it in a version of original position deliberation where we assumed that we would be targeted by the justice system when the veil is raised. Even if we assumed we would be convicted of a crime, we would consent to (...) the imprisonment of violent criminals if prison conditions were better than the state of nature but deterring enough to prevent the state of nature. (shrink)

While punishment is a longstanding object of philosophical scrutiny, other controversial aspects of the justice system, such as policing, have flown under the radar. In this paper, we consider possible reasons why philosophers interested in crime and punishment have neglected policing. We make the case for a broader account of the political morality of the justice system, with a particular emphasis on policing. We sketch the outlines of an egalitarian version of such a theory, highlighting parallels between policing and the (...) welfare state. Finally, we turn to recent calls for police abolition. Evaluating such radical claims requires, we argue, going beyond the traditional confines of the philosophy of punishment and considering a more holistic and interdisciplinary theory of criminal justice. (shrink)

We have argued here that to attribute criminal responsibility to psychopathic individuals is to ignore substantial and growing evidence that psychopathic individuals are significantly impaired in moral understanding. They do not appear to know why moral transgressions are wrong in the full sense required by the law. As morally blameless offenders, punishment as a basis for detention cannot be justified. Moreover, as there are currently no successful treatment programs for psychopathy, nor can detention be justified on grounds of treatment. (...) Instead, we argue detention on the grounds of self- defence, due to the severe and continuing threat posed by the psychopathic criminal. (shrink)

We address the issue of whether, why and under what conditions, quarantine and isolation are morally justified, with a particular focus on measures implemented in the developing world. We argue that the benefits of quarantine and isolation justify some level of coercion or compulsion by the state, but that the state should be able to provide the strongest justification possible for implementing such measures. While a constrained form of consequentialism might provide a justification for such public health interventions, (...) we argue that a stronger justification is provided by a principle of State Enforced Easy Rescue: a state may permissibly compel individuals to engage in activities that entail a small cost to them but a large benefit to others, because individuals have a moral duty of easy rescue to engage in those activities. The principle of State Enforced Easy Rescue gives rise to an Obligation Enforcement Requirement: the state should create the conditions such that submitting to coercive or compulsive measures becomes a fundamental moral duty of individuals, i.e. a duty of easy rescue. When the state can create such conditions, it has the strongest justification possible for implementing coercive or compulsive measures, because individuals have a moral duty to temporarily relinquish the rights that such measures would infringe. Our argument has significant implications for how public health emergencies in the developing world should be tackled. Where isolation and quarantine measures are necessary, states or the international community have a moral obligation to provide certain benefits to those quarantined or isolated. (shrink)

This book offers a critical examination of those theories and advances a new argument for punishment's justification, calling it the 'duty view'.

Originally published: Oxford: Clarendon, 1997.

After an initial discussion (§i) of what a theory of criminal law might amount to, I sketch (§ii) the proper aims of a liberal, republican criminal law, and discuss (§§iii–iv) two central features of such a criminal law: that it deals with public wrongs, and provides for those who perpetrate such wrongs to be called to public account. §v explains why a liberal republic should maintain such a system of criminal law, and §vi tackles the issue (...) of criminalization—of how we should determine the proper scope of the criminal law. (shrink)

This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to (...) the lawmaker. (shrink)

Gideon Yaffe presents a theory of criminal responsibility according to which child criminals deserve leniency not because of their psychological, behavioural, or neural immaturity but because they are denied the vote. He argues that full shares of criminal punishment are deserved only by those who have a full share of say over the law.

Legal theorists have characterized physical evidence of brain dysfunction as a double-edged sword, wherein the very quality that reduces the defendant’s responsibility for his transgression could simultaneously increase motivations to punish him by virtue of his apparently increased dangerousness. However, empirical evidence of this pattern has been elusive, perhaps owing to a heavy reliance on singular measures that fail to distinguish between plural, often competing internal motivations for punishment. The present study employed a test of the theorized double-edge pattern using (...) a novel approach designed to separate such motivations. We asked a large sample of participants (N = 330) to render criminal sentencing judgments under varying conditions of the defendant’s mental health status (Healthy, Neurobiological Disorder, Psychological Disorder) and the disorder’s treatability (Treatable, Untreatable). As predicted, neurobiological evidence simultaneously elicited shorter prison sentences (i.e., mitigating) and longer terms of involuntary hospitalization (i.e., aggravating) than equivalent psychological evidence. However, these effects were not well explained by motivations to restore treatable defendants to health or to protect society from dangerous persons but instead by deontological motivations pertaining to the defendant’s level of deservingness and possible obligation to provide medical care. This is the first study of its kind to quantitatively demonstrate the paradoxical effect of neuroscientific trial evidence and raises implications for how such evidence is presented and evaluated. (shrink)

Various authors debate the question of whether neuroscience is relevant to criminal responsibility. However, a plethora of different techniques and technologies, each with their own abilities and drawbacks, lurks beneath the label “neuroscience”; and in criminal law responsibility is not a single, unitary and generic concept, but it is rather a syndrome of at least six different concepts. Consequently, there are at least six different responsibility questions that the criminal law asks—at least one for each responsibility concept—and, (...) I will suggest, a multitude of ways in which the techniques and technologies that comprise neuroscience might help us to address those diverse questions. In a way, on my account neuroscience is relevant to criminal responsibility in many ways, but I hesitate to state my position like this because doing so obscures two points which I would rather highlight: one, neither neuroscience nor criminal responsibility are as unified as that; and two, the criminal law asks many different responsibility questions and not just one generic question. (shrink)

A common criticism of the use of algorithms in criminal justice is that algorithms and their determinations are in some sense ‘opaque’—that is, difficult or impossible to understand, whether because of their complexity or because of intellectual property protections. Scholars have noted some key problems with opacity, including that opacity can mask unfair treatment and threaten public accountability. In this paper, we explore a different but related concern with algorithmic opacity, which centers on the role of public trust in (...) grounding the legitimacy of criminal justice institutions. We argue that algorithmic opacity threatens the trustworthiness of criminal justice institutions, which in turn threatens their legitimacy. We first offer an account of institutional trustworthiness before showing how opacity threatens to undermine an institution’s trustworthiness. We then explore how threats to trustworthiness affect institutional legitimacy. Finally, we offer some policy recommendations to mitigate the threat to trustworthiness posed by the opacity problem. (shrink)

Catholic doctrine’s strict prohibition on abortion can lead clinicians or institutions to conscientiously refuse to provide abortion, although a legal duty to provide abortion would apply to anyone who refused. Conscientious refusals by clinicians to end a pregnancy can constitute murder or reckless homicide under American law if a woman dies as a result of such a refusal. Such refusals are not immunized from criminal liability by the constitutional right to the free exercise of religion or by statutes that (...) confer immunity from criminal homicide prosecution. Core principles of the rule of law require the state to protect the lives of all persons equally and to place the life and health of persons above any the interests of providers have in moral integrity or in respecting the moral status of prenatal humans. In some states criminal liability related to conscientious objection also applies to corporate hospital officials. (shrink)

First paragraph: Some reasons for action are relational. I have a relational reason to Φ when I have reason to Φ in virtue of a relationship in which I stand, or a role that I fill; absent that relationship or that role I would not have that reason to Φ ; others who do not stand in that relationship or fill that role do not have that reason to Φ . I have a relational reason to feed this child -- (...) that he is my child: absent that parental relationship, I might still have a reason to feed him, as might others who are not his parents -- for instance that he is starving; but absent that relationship, I would not have and others cannot have that specific relational reason to feed this child. I have a relational reason to respond to this person's philosophical queries -- that she is my student: absent that pedagogical relationship, I might still have reason to respond to her questions, as might others who are not her teachers -- for instance that it is good to help such seekers after philosophical insight; but absent that relationship, I would not have and others cannot have that specific relational reason to respond to her queries. I have relational reason to pay John ￡10 -- that I borrowed it from him and promised to repay him today: absent that promissory relationship I might still have, and others might have, reason to give him ￡10 -- for instance that he is impoverished and I am (or they are) rich; but absent that promissory relationship, neither I nor others could have that specific relational reason to give him ￡10. (shrink)

Medical quarantines often threaten the civil rights of the persons whom they confine. This might happen in two ways. First, quarantines might inflict harsh conditions on their occupants; and, second, quarantines might be imposed in an arbitrary or indeed discriminatory manner. These concerns, moreover, are anything but fantastic. Infectious diseases, particularly in epidemic forms, commonly trigger retributive and discriminatory instincts, so that actual quarantines often impose inhumane, stigmatizing, or even penal treatment upon persons who are confined based on caprice or (...) even prejudice.But quarantines that impose no gratuitous hardships and that are applied pursuant to orderly and non-discriminatory procedures are theoretically possible and also practically available. And such well-run quarantines, especially when they are employed to combat epidemic diseases, cannot plausibly be said to violate the civil rights of the quarantined. Even the staunchest civil libertarian must accept that one person's liberty may be restricted when this is necessary for preventing harm to another. (shrink)

This handbook consists of essays on contemporary issues in criminal law and their theoretical underpinnings. Some of the essays deal with the relationship between morality and criminalization. Others deal with criminalization in the context of specific crimes such as fraud, blackmail, and revenge pornography. The contributors also address questions of responsible agency such as the effects of addiction or insanity, and some deal with punishment, its mode and severity, and the justness of the state’s imposition of it. These chapters (...) are authored by some of the most distinguished scholars in the fields of applied ethics, criminal law, and jurisprudence. (shrink)

Recent research has detailed the use of neuroscience in several jurisdictions, but Australia remains a notable omission. To fill this substantial void we performed a systematic review of neuroscience in Australian criminal cases. The first section of this article reports the results of our review by detailing the purposes for which neuroscience is admitted into Australian criminal courts. We found that neuroscience is being admitted pre-trial, at trial, and during sentencing. In the second section, we evaluate these applications. (...) We generally found that courts admit neuroscience cautiously, and to supplement more well-established forms of evidence. Still, we found some instances in which the court seemed to misunderstand the neuroscience. These cases ranged from interpreting neuroscience as “objective” evidence to admitting neuroscience when the same non-neuroscientific psychiatric evidence would be inadmissible for being common sense. Furthermore, in some cases, neuroscientific evidence presents a double-edged sword; it may serve to either aggravate or mitigate a sentence. Thus, the decision about whether or not to tender this evidence is risky. (shrink)

With its express intention ‘to put an end to impunity’, the International Criminal Court (ICC) faces a substantial challenge in the shape of conditional amnesties granted in future national truth commissions (TCs)—a challenge that invokes fundamental considerations of criminal justice ethics. In this article, I give an account of the challenge, and I consider a possible solution to it presented by Declan Roche. According to this solution the ICC-prosecutor should respect national amnesties and prosecute and punish only those (...) perpetrators who have refused to cooperate with the TC. I argue, however, that this compromise is untenable. As a general rule, if we justify the ICC on grounds of deterrence we should not accept conditional amnesties granted in national TCs. (shrink)

Moral and legal philosophy are too entangled: moral philosophy is prone to model interpersonal moral relationships on a juridical image, and legal philosophy often proceeds as if the criminal law is an institutional reflection of juridically imagined interpersonal moral relationships. This article challenges this alignment and in so doing argues that the function of the criminal law lies not fundamentally in moral blame, but in regulation of harmful conduct. The upshot is that, in contrast to interpersonal relationships, the (...) criminal law cannot lose its standing to blame through institutional analogues of hypocrisy, complicity, and meddling. Rather, certain forms of structural and severe historical and contemporary injustice point to the question of the overall legitimacy of state authority. (shrink)