Q&A: Prison, Punishment, and Determinism
Prison, Punishment, and Determinism
Question
Hello Rabbi,
I saw that you wrote in your book The Science of Freedom that according to the deterministic worldview there is no place for prisons. Even so, I didn’t see a reason for that there besides the example of a drill that operates causally, and therefore we wouldn’t punish it if it stopped working (I haven’t finished the book, so maybe there’s another explanation later on, so apologies in advance).
First of all, I’ll explain why, as I understand it, prisons exist at all. I’ll quote Wikipedia (Imprisonment): "Imprisonment serves four purposes: incapacitation, deterrence, punishment, and rehabilitation. The ability to imprison a person as punishment is intended to prevent the possibility of crimes being committed. Therefore, prisons are part of the punishment of people who transgress legal boundaries. Prisons also protect society by removing from it those people who may pose a risk to others. Prisons also have a rehabilitative role, in that during the period of incarceration attempts are made to change the nature of the incarcerated, thereby reducing the likelihood that they will commit crimes again after being released."
Incapacitation, deterrence, and rehabilitation are considerations that exist even if a person lacks free choice (deterrence is also a valid consideration in other punishments that are not imprisonment). Regarding the drill: incapacitation — indeed, it is customary to remove broken drills from society; we don’t put them in prison, but we do throw them in the trash. deterrence — there is no room for deterrence in the matter of punishing drills; drills will not be deterred if they are punished or if other drills are punished, and that will not cause them to work better (unlike human beings). rehabilitation — this too is customary, though it isn’t called “rehabilitation” but “repair.”
The only consideration that seems not to exist is “punishment.” To explain better, I’ll again quote Wikipedia (Punishment — the purposes of punishment): "Punishment is supposed to deter the rule-breaker from repeating the act, and also serve as an example to deter other potential offenders. Another reason for punishment is the intuitive sense of justice, which holds that the offender should be harmed in proportion to the harm he caused society*."
Again we see deterrence and another factor, namely “the sense of justice” (sometimes one hears claims like: "The criminal deserves to suffer after what he caused"). Seemingly, there is no justice in punishing a criminal if he is not “guilty” of the crime and his actions were decreed from the creation of the world (he doesn’t deserve it), and here the criminal resembles the drill. But here too there is a clear difference between a drill and a person: while most people have a sense of justice according to which criminals should get what they deserve (I don’t, but that doesn’t matter for the discussion), I’ve never heard of people who think there is justice in punishing drills. So this argument too is not valid: if people are sent to prison in order to satisfy the sense of justice that some people have, it makes no difference whether a person has free choice or not. The question is whether it is just in their eyes (the judge, the legal system, the public) to punish him, and therefore if they think a person has free choice and that it is just to send him to prison, then that is indeed a reason (though in my opinion not the best one) to do so whether he has free choice or not.
*I would like to note that I see another reason to harm the offender in proportion to the damage he caused society: if he suffers and understands the harm he caused, that may lead him not to reconsider the rightness of his actions and to repent no, that should be: and not to repeat them and to repent (here too it doesn’t matter whether he has free choice).
I’d be happy if you could enlighten me.
Answer
I no longer remember that passage, but my main claim is about punishment and judgment, not specifically imprisonment. Moreover, even sending someone to prison is not done when the defendant acted מתוך an impulse he could not overcome or under circumstances beyond his control. But determinists claim that this is always the case.
In general, I explained there that one could answer that judges and society too act against their will, and therefore sending someone to prison is also not done because of one justification or another. So I am speaking mainly about the justification for condemnation and judgment.
Discussion on Answer
And the very concept of “justification” is also impossible in deterministic terms.
If that’s what you think, then you really are not judging or condemning. I’m speaking to someone who does think he is judging and condemning. It’s all explained in the fourth notebook in Part 3. By the way, determinism too was accepted by deterministic tools (or perhaps by others, and you are compelled to think that way).
I’m not knowledgeable about the legal system, and I don’t know what happens in practice and whom they decide to punish and whom not to. But in any case I can see reasons not to punish a person who committed a crime under circumstances beyond his control, because:
Deterrence — deterrence won’t help. Even if he commits a crime again, it will probably be under circumstances beyond his control, so deterrence won’t help.
Serving as an example to others — there are enough examples. People understand that the situation is different with the mentally ill, and therefore they are not punished, but if they themselves commit a crime they may be punished. As for other mentally ill people — there is no point in making an example of him for them; it won’t help.
Rehabilitation — there is nothing to rehabilitate; the person is not “evil” / it is impossible to rehabilitate him because the person cannot control his impulses.
The intuitive sense of justice — I don’t know exactly what it says, but it seems to me that most people think it is unjust to punish insane people who are not responsible for their actions, or at least think it is less just than punishing a person who is not insane.
At the same time, it may be worthwhile to imprison him anyway in order to protect the public (incapacitation). One has to discuss each case on its own merits: whether the suffering caused to him by imprisonment is worth the harm that will be prevented to the public, or not.
Determinists do indeed claim that a person is never responsible for his actions, but still the situation is not similar to that of a criminal with mental disorders.
An ordinary person can be persuaded to act differently, for example through punishment that can deter him. But an insane person cannot be persuaded, because he does not act rationally, so there is no logic in punishing him; the matter resembles punishing a drill — the insane person, like the drill, will not change his actions if we punish him.
Although all people act out of an irresistible impulse or under circumstances beyond their control, it is still possible to restrain these impulses by creating other impulses on the other side — for example, the desire not to sit in prison, which can overcome the desire to steal, and then the person will not be able to commit the crime (it will not be under his control; he will have an irresistible impulse to remain free / not be punished). By contrast, mentally ill people cannot be influenced in this way; a kleptomaniac’s impulse to steal will be stronger than the impulse to remain free, and therefore deterrence will not help in that case.
That doesn’t seem right to me at all. Even an insane person can be deterred, that is, reprogrammed. In any case, there is no one-to-one connection between this and insanity (it depends on the type).
A. If so, then why in your opinion are insane people who can be deterred not punished?
B. And why, if people in general do not have free choice, is that a reason not to punish them?
A. Because they don’t deserve it. Punishment comes in response to guilt.
B. I didn’t say there is no reason to punish them, only that there is no reason to judge them. In that case, the punishment would amount to reprogramming.
A. Why does punishment come in response to guilt? I quoted Wikipedia: “Punishment is supposed to deter… serve as an example… the intuitive sense of justice…” Guilt is not mentioned, and I didn’t see that you disagreed earlier with the quote from Wikipedia (maybe it is part of the intuitive sense of justice?).
B. I didn’t understand — you want to punish them without a trial? And what is wrong with punishment that amounts to reprogramming (deterrence)?
A. You can quote as much as you like. That is the fact, and that is the explanation I am offering for it. If you focus more carefully, the sense of justice is of course connected to guilt. In general, since you wrote that you are not knowledgeable about law, I’ll just tell you that very often in the theoretical literature several different approaches are presented, but in practice there is one dominant governing approach. That is the case in many branches of law, and also in the theory of punishment.
B. There is nothing wrong with it. Except that, as I showed empirically in the field, punishment is not only that.
I am talking about facts and their explanation, not about declarations and assumptions and assessments regarding the general purposes of punishment.
But condemnation and judgment too are done out of determinism.