Retributive punishment: Does Christian Gutierrez “deserve” to be jailed?

I was a bit disturbed by a few of the comments about yesterday’s post on Christian Gutierrez, a 19 year old Hawaiian resident (now a New York University student), who is to be sentenced today for the brutal slaughter and torture of at least 15 Laysan albatrosses on Oahu. The comments that most distressed me were that Gutierrez “deserved” the punishment, with some of the comments explicitly taking a retributivist stand: “Gutierrez deserved to be punished simply because he did a bad thing.”

If you’re a determinist about behavior and a consequentialist about punishment, as I am, then you punish people only if it’s for the good of society. (My view is that at the moment of the slaughter, Gutierrez had no “choice” to not kill the birds.)

And there are three social goods to come from punishments like incarceration: deterrence of others, sequestration of someone who could be dangerous to society, and reformation of a criminal so he doesn’t repeat his offense when freed.  All three of these apply to Gutierrez: jailing him will probably deter others who want to kill wild animals, people who do that tend to be murderous psychopaths who could kill again (maybe people next time) and so need to be put away, but such people may be susceptible to reformation—though the last possibility isn’t really met in the American prison system (pity!), and real psychological treatment doesn’t even work for some kinds of people.

If none of these reasons obtain, there’s no reason to imprison anyone; or can you give me one? But surely deterrence and sequestration apply in most cases—though not capital punishment, which data show isn’t a deterrent.  And if no social good results from imprisonment, in what sense would Gutierrez still “deserve” to be imprisoned? To satisfy a sense of vengefulness? That, to me, is not a good reason, for it caters to our baser instincts—the same instincts and feelings that make people favor executions. So, if Gutierrez can be reformed, poses a danger to society, or can be a deterrent to others, yes, he “deserves” punishment. But he doesn’t deserve it just because he needs to be “paid back” for what he did.

We’ll know in a few hours if Gutierrez will be going to jail.

159 Comments

  1. jwthomas
    Posted July 6, 2017 at 10:03 am | Permalink

    I agree.

  2. Gary Allan
    Posted July 6, 2017 at 10:04 am | Permalink

    Yes, someone who does that to animals may move on to people if not strongly deterred

  3. Posted July 6, 2017 at 10:04 am | Permalink

    I entirely agree with your comments about imprisoning someone just to satisfy a sense of vengeance being unacceptable. He does deserve to be imprisoned, but for the reasons you indicate, not for anything to dow tih vengeance.

  4. Joshua S
    Posted July 6, 2017 at 10:16 am | Permalink

    I’ll play devil’s advocate for a moment: society’s need to ‘punish’ wrongdoing may be brutish and primal, but it cannot merely be wished away or untrained. We are often fortuitous that it aligns with the more noble uses of criminal justice (as mentioned in the posting), but satisfying this craving for moral ‘retribution’ serves a useful purpose itself: appeasing the human population’s baser instincts. Perhaps we wish such instincts did not exist, but express themselves they shall, and we’d best channel it as best we can lest it emerge somewhere else.

    • sensorrhea
      Posted July 6, 2017 at 11:08 am | Permalink

      With determinism the desire to punish the guilty is also not a choice, so what are we talking about?

      • Posted July 6, 2017 at 4:39 pm | Permalink

        …so what are we talking about?
        I think it has something to do with being human beings in a civil society whilst protecting a set of values that make it so.
        Overriding primal urges of the cognitive processes that look something like and reason and rationality.

    • Colin McLachlan
      Posted July 6, 2017 at 12:04 pm | Permalink

      Perhaps we wish such instincts did not exist, but express themselves they shall, and we’d best channel it as best we can lest it emerge somewhere else.

      Fair point. If the retribution is perceived as inadequate, then vigilantes may feel compelled to take the law into their own hands.

      • Dragon
        Posted July 6, 2017 at 1:58 pm | Permalink

        Or more in keeping with the context of determinism:
        “…then vigilantes may have no choice but to take the law into their own hands.”
        And society will need to temporarily separate the vigilantes from society to protect others.

  5. YF
    Posted July 6, 2017 at 10:17 am | Permalink

    As usual, the Scandinavians have it right- they are perhaps the most enlightened members of our species.

    https://www.economist.com/blogs/democracyinamerica/2011/07/norwegian-v-american-justice

  6. Posted July 6, 2017 at 10:25 am | Permalink

    I disagree somewhat with your position about the penalty the court should impose. I do not believe Mr Gutierrez should serve any more time than he already has. Not for *this* crime. I do think he should be convicted of the highest offense that is applicable and that he should be forced to pay full retribution and penalties. But I feel his sentence should be suspended. The conviction will follow him the rest of his life; he will pay a very high price. But prison will destroy him. That’s what American prisons do to people.

    HOWever… neither I nor anyone here know much about this case other than what’s been reported. We simply don’t know his state of mind at the time of the crime, who this man is or what kind of factors, mitigating or aggravating, the court might weigh when imposing the sentence. But on the face of it, prison for a 19 year old man with (apparently) no criminal history for joining in the slaughter of Albatrosses is a penalty that does not fit the crime.

    IMO.

    • Posted July 6, 2017 at 10:52 am | Permalink

      There are facilities where they can send Gutierrez that won’t destroy him. And I think he should pay a very high price as a deterrent. I’ve rarely seen anybody go to jail for killing wild animals, no matter how illegal or horrific. (It does happen.)

      • Posted July 6, 2017 at 5:41 pm | Permalink

        I wanted to say this yesterday but didn’t as we have little information. In answer to this post i submit this.
        He should be placed somewhere away from career criminals and i would add but this will not happen… made to study the research conducted by the research team, down to the individual birds and their names.
        I feel if there is any empathy left in Gutierrez he will get some chance of raising it to the surface.
        The research head should have a say at his release, if s/he consent to this, showing the set back he caused and any positives that may have occurred since his murderous rampage.
        This should be hard hitting as not to concede he has done nothing wrong but with some leeway to his reforming himself (if this occurs) and recognising this.
        Otherwise he needs to be closely watched this Christen Gutierrez.

    • Colin McLachlan
      Posted July 6, 2017 at 12:07 pm | Permalink

      But prison will destroy him. That’s what American prisons do to people.

      That’s an argument for prison reform, not for letting him off a prison sentence.

      • Wunold
        Posted July 7, 2017 at 2:58 pm | Permalink

        It is an argument against putting people into prisons before a prison reform is done, especially people like Gutierrez who didn’t hurt people (yet) and may be remediable with proper psychological care.

    • Posted July 6, 2017 at 1:07 pm | Permalink

      “But prison will destroy him. That’s what American prisons do to people.”

      No, not to everyone. There are those who learn how to be far more successful criminals from their time in jail.

    • Jeff Harvey
      Posted July 12, 2017 at 12:23 pm | Permalink

      I don’t agree. Where do you draw the line? The youngsters who committed this heinous crime – and it is a crime – exhibit sociopathic tendencies. They are essentially sick. At the very least they need to be psychologically treated. Expulsion from New York University? Absolutely. The oldest perpetrator is a danger to society. They knew exactly how rare and special these birds were and they committed this vile act despite that. They are despicable and a simple slap on the wrist will not suffice.

  7. TJR
    Posted July 6, 2017 at 10:26 am | Permalink

    If he poses a dancer to society then he certainly should be jailed.

    Interpretive Dance – Just Say No.

  8. Taz
    Posted July 6, 2017 at 10:26 am | Permalink

    Legal and philosophical viewpoints are one thing, emotional reaction is another. If I served on his jury I would follow the law, but I make no bones about the fact that in my opinion people who torture animals can fuck off and die.

    • wendell read
      Posted July 6, 2017 at 10:44 am | Permalink

      If you believe in free will, your emotional reaction is justified. If you do not believe in free will then you should do all you can to bring your emotional response into harmony with your beliefs.

      • Posted July 6, 2017 at 11:55 am | Permalink

        I don’t see why one needs free will to justify one’s emotional reaction to a horrific crime. Perhaps if I had free will I should do what you say, but in a deterministic universe I will react in accordance with my instinctual and learned behavioral patterns, or so free-willers tell me.

        • Posted July 6, 2017 at 11:59 am | Permalink

          I meant–or so no-free-willers tell me.

        • Wunold
          Posted July 7, 2017 at 3:07 pm | Permalink

          In a deterministic universe, telling you to second-guess and maybe restrain your emotional response might lead you to second-guess and maybe restrain your emotional response.

          So, for an determinist it makes sense to tell you things that might alter your behaviour even if you are not “free” to do so.

          • Posted July 7, 2017 at 6:48 pm | Permalink

            That can only happen if the other party tells me something I don’t already know.

            • Wunold
              Posted July 8, 2017 at 2:23 am | Permalink

              It can strengthen or expand your knowledge, or give it another connotation. Peer groups and filter bubbles work that way. This may alter your behaviour if your knowledge or conviction gets pushed over a certain threshold.

              Even a backfire effect can lead to (oppositional) acts your conviction wasn’t high enough for until then.

              Besides, your opposite often can’t (exactly) know what you know. And even if so, details can matter.

      • Taz
        Posted July 6, 2017 at 12:08 pm | Permalink

        No matter what your philosophical outlook (or beliefs), it’s entirely rational to have a visceral reaction to horrific acts. I think such a reaction is good, even necessary, for us to function as a society.

        • rickflick
          Posted July 6, 2017 at 5:53 pm | Permalink

          Yet the better we get at avoiding acting on our visceral reactions, the more civilized we become. Long ago societies were pretty brutal in dealing with bad actors. It was fully visceral. Criminals were tortured and hung in public as entertainment. We’ve come a long way, in part because we recognize that no one really chooses their condition and their behavior. In part because we recognize that “there, but for the grace of Ceiling Cat go I”.

          • darrelle
            Posted July 6, 2017 at 7:01 pm | Permalink

            I’d add that in part because enough people came to the realization that normalizing things like brutality and vengeance breeds more of the same.

          • Taz
            Posted July 6, 2017 at 7:10 pm | Permalink

            I guess you could call their reactions visceral, but what I was referring to is revulsion. I don’t think people long ago tortured criminals because they were more repulsed by their crimes more than we are. It was, as you say, entertainment. Human society was more brutish all the way around. Torturing animals was also considered good entertainment.

  9. Posted July 6, 2017 at 10:29 am | Permalink

    I think JAC is a little vengeful on vengeance. Perhaps some euphemism is in order which may soften the term, i.e., incarceration might well provide a societal rationale that justice has been accomplished, at least a little bit. In my experience, justice is in short supply in the view of many, including judges (like me), lawyers, and the general populace. That doubt might be a bit more balanced that such hideous acts call upon some degree of retribution and the jerk not be patted on the but in light of the shortcomings of his mind or upbringing.

  10. Posted July 6, 2017 at 10:30 am | Permalink

    Once one sees through the illusion of freewill, one soon abandons, or is no longer to reconcile the notion of ‘deserving’.

    • Pliny the in Between
      Posted July 6, 2017 at 10:39 am | Permalink

      I agree with both this and our host’s statements. ‘Deserving, retribution and punishment’ seem more in line with theology and notions of free will than with deterministic humanism.

    • Pliny the in Between
      Posted July 6, 2017 at 10:43 am | Permalink

      Also, it’s a lot more than semantics to substitute sequestration (rational societal approach requiring humane treatment) for punishment (ie., the US prison system). It’s a state of mind similar to modern views about mental illness vs the weak character/demon possession of times past.

    • Posted July 6, 2017 at 10:52 am | Permalink

      It’s really just a matter of how one interprets “deserve”.

      Cambridge Dictionaries: “Deserve”: “to have earned or to be given something because of the way you have behaved or the qualities you have”.

      So one interpretation of “deserve” is “to be given something because of the way you have behaved”.

      And that meaning is in line with Jerry’s desire to punish for deterrence. One can ditch the theological interpretations of these terms and adopt sensible ones, without abandoning the term itself.

      Would you also want to abandon a usage such as: “after your performance over the last year, you deserve a pay rise”?

      Or: “The proposals that you have put forward deserve serious consideration.”

      Or: “He was a good strong leader, she said, who deserved his party’s unreserved support.”

  11. busterggi
    Posted July 6, 2017 at 10:31 am | Permalink

    Deterrence – doubtful, it’ll probably just future perpetrators more cautious about being caught.

    Reformation – I don’t think psychopaths can be reformed.

    Sequestration – bingo! keep the dangerous ones away for the safety of society.

    • Posted July 6, 2017 at 1:10 pm | Permalink

      Such acts also give inspiration to copycat acts of violence.

  12. Posted July 6, 2017 at 10:31 am | Permalink

    Suppose we have strong justification to believe that punishing Gutierrez’s mother will satisfy the goals of deterrence and reformation; and keeping her hostage would be as effective as sequestration (maybe he really cares a lot about his mother). If we have evidence that this will be more effective in those goals, is there any reason not to punish her? What if she gladly volunteers to receive the punishment on his behalf? I would say that Christian Gutierrez deserves to be the subject of punishment in a way that his mother does not. Proxy punishments do happen in our justice system, and they are arguably effective at deterrence and reformation. Should they be supported if they work?

    • Posted July 6, 2017 at 10:41 am | Permalink

      “Should they be supported if they work?”

      Of course not. Just because something works doesn’t make it right. Incarcerating someone, even voluntarily, for the crimes of another goes against the very foundations of a civil society.

      There are no perfect solutions but this one, I think, is much worse. We humans are very proud of our civilization, but the truth is we have hold on it with a greased rope. Sadly history has shown it doesn’t take much to lose our grip and it escapes altogether, even if temporarily. Disconnecting imprisonment with criminal activity is only adding more grease.

      • Posted July 6, 2017 at 10:50 am | Permalink

        “Just because something works doesn’t make it right.” But the whole crux of PCC’s argument is that punishment is justified if it works, not because it is (or isn’t) deserved.

        • Posted July 6, 2017 at 10:57 am | Permalink

          I do understand PCCs point. I don’t think he meant that all solutions that (might) work are justifiable. I think your solution is a bad one, for the reasons I cited.

          • Posted July 6, 2017 at 11:13 am | Permalink

            Your reasons were circular. I’m asking why proxy punishments are unjustifiable. What, if not efficacy toward social goals, are the criteria that exclude proxy punishments?

            • Posted July 6, 2017 at 11:23 am | Permalink

              Circular? How so? Here’s my reason; “Disconnecting imprisonment with criminal activity” undermines a foundational basis of civilization. Where does it arc back on itself?

              Please explain as I don’t see it.

              • Posted July 6, 2017 at 12:05 pm | Permalink

                It’s circular because I’m literally asking you what is that foundational basis and why. The connection between individual action and punishment literally is what “deserve” means.

              • Posted July 6, 2017 at 12:41 pm | Permalink

                I see now what you are saying, cjwinstead, though I still don’t see it is as circular. I think you missed what I was saying. I apologize if I was unclear. Let me try again, then I’ll leave it at that.

                I was addressing whether your solution is a good one, not that it is inconsistent with what PCC suggests about effectiveness. My criticism of your point is orthogonal to the questions of determinism.

                You asked my why I thought proxy punishments are unjustifiable. I see disconnecting imprisonment with criminal activity as antithetical to civilization because a stable society is, in part, predicated on some sort of system of fairness and justice when transgressions occur. Even chimpanzee societies are careful to maintain a sense, appropriate to them, of fairness and justice for their transgressions. It is a key component of any human society and even among some non-human ones.

                Proxy punishments may, in fact, be effective as deterrents or may even be seen as a “deserved” punishments for crimes. You may use those terms any way you wish – they are not germane to MY argument.

                In another comment you mention some forms of proxy punishment. Most of the proxy punishment you refer to are civil offenses so don’t involve prison time or other forms of incarceration. The few that are criminal are carved out of our civil rights just as exceptions to, say, the 1st amendment are carved out – very precisely and very narrowly, precisely because our legal system is predicated on the idea that only those guilty of committing a crime get punished. If it is possible to be incarcerated for a crime some one else committed, it undermines the basis of our legal system by destroying the connection between the crime and the punishment. This is why wrongful convictions are so bad and do so much damage to our society. It is distressing already that so many are wrongfully convicted; adding proxies to our prisons – people we know didn’t commit the crime- only worsens the problem.

                This is why “proxy punishment” is a bad idea, irrespective of concepts of determinism.

          • Posted July 6, 2017 at 12:41 pm | Permalink

            cj wasn’t proposing that the mother be punished. He was making a reductio to show that the idea of deserving something probably can’t be abandoned.

        • darrelle
          Posted July 6, 2017 at 11:33 am | Permalink

          But you are making the assumption that that was PCCs only criteria for justification of a punishment when there is no obvious reason in what he wrote, or has written in the past on the relevant issues more generally, to make that assumption. I’ll bet all day long that PCCs answer to your question would be “no.”

          • Posted July 6, 2017 at 12:02 pm | Permalink

            I’d love to hear those other criteria spelled out. I’m making no assumptions, just working with what’s given.

          • Gregory Kusnick
            Posted July 6, 2017 at 12:18 pm | Permalink

            I suspect you’re right that Jerry’s answer to cj’s question about proxy punishment would be “no”. But that still leaves us wondering how he gets to that answer from determinism plus consequentialism.

            • Craw
              Posted July 6, 2017 at 1:47 pm | Permalink

              Exactly. Revealing hidden assumptions and seeing if they cause problems.

          • Posted July 6, 2017 at 12:34 pm | Permalink

            Well, regardless of what other unmentioned factors might be included in PCC’s calculus, the idea of deserving something (or not) isn’t undone by determinism. “Deserve” is simply a word we use to facilitate talking about a certain type of circumstance.

            • darrelle
              Posted July 6, 2017 at 1:17 pm | Permalink

              I reread the OP with your comment in mind. I think you may have misinterpreted what Jerry wrote. Of course I may have, and/or I may be misinterpreting you.

              I’m pretty sure Jerry was not arguing that determinism invalidates the concept of deserving or trying to redefine it in any particular way. He seemed to simply be giving examples of bad reasons and good reasons that criminals may be considered to deserve imprisonment. That criminals don’t deserve to be imprisoned because it satisfies our baser instincts but that if imprisonment were effective at reforming them, preventing them from posing further danger to society or as a deterrent, then they would deserve imprisonment. He doesn’t seem to be denying the concept of deserving.

              • Gregory Kusnick
                Posted July 6, 2017 at 2:54 pm | Permalink

                Jerry wasn’t just listing a few good examples of when punishment is justified; he clearly meant his list to be exhaustive:

                “If none of these reasons obtain, there’s no reason to imprison anyone”

              • Posted July 6, 2017 at 9:02 pm | Permalink

                Of course I don’t know for sure unless he clarifies, but all those scare quotes around the word suggest to me that he doesn’t think desert is a legitimate idea.

              • darrelle
                Posted July 7, 2017 at 7:29 am | Permalink

                Gregory,

                I can’t argue with that, but what I was intending to point out is that I don’t think Jerry was saying that the concept of “deserving” was invalid, which is what musical beef seemed to be saying.

            • Craw
              Posted July 6, 2017 at 1:35 pm | Permalink

              ” the idea of deserving something (or not) isn’t undone by determinism. “Deserve” is simply a word we use to facilitate talking about a certain type of circumstance.”

              Indeed. So is “free will”. Just because the theists get this wrong doesn’t mean we have to.

      • Craw
        Posted July 6, 2017 at 1:12 pm | Permalink

        You are not answering cjwinstead’s argument. Coyne asserts that punishment is justified by and only by X,Y and X — that is NOT by traditional notions of culpability or guilt. But what if punishing the mother produces the same or stronger effects under X, Y and Z? Why shouldn’t we punish her?

        Well, we know the answer. She isn’t guilty of anything. But that means “you punish people only if it’s for the good of society” is wrong.

        • Posted July 6, 2017 at 3:44 pm | Permalink

          Thank you for your response – your comment is clear but I wasn’t addressing cjwinstead’s arguments about PCC’s position.

          I was addressing this; “Proxy punishments do happen in our justice system, and they are arguably effective at deterrence and reformation. Should they be supported if they work?”

          I responded (evidently unclearly) that they should NOT be supported but not because of reasons having to do with the arguments here today about determinism. See my comments elsewhere.

    • Ken Kukec
      Posted July 6, 2017 at 10:56 am | Permalink

      To what are you referring when you say “proxy punishments” occur under our justice system?

      • Posted July 6, 2017 at 12:01 pm | Permalink

        The simplest examples are laws which hold parents liable for actions of their children, as in illegal file sharing cases where parents are unaware of the activity. Could argue lots of other examples, like the extent to which service providers are responsible for third party crimes that leverage their service. The mechanisms are a mix of civil and criminal liabilities designed to induce one party to monitor/restrain another, or to induce self-restraint based on how actions may implicate their associates.

        • Ken Kukec
          Posted July 6, 2017 at 12:46 pm | Permalink

          I think all these cases involve civil rather than criminal liability. Our criminal justice system is chary to impose criminal sanctions in such circumstances.

          In any event, such cases all involve a finding of some “fault” on the part of the party upon whom liability is being imposed (made at that party’s trial) — a finding, in the circumstances you describe, that the party failed to supervise or regulate to prevent the harm by the primary wrongdoer. As such, they are not “proxy punishments,” in which one party is simply substituted for another party at the time of sentencing (as in your hypothetical about Gutierrez’s mother).

          • Craw
            Posted July 6, 2017 at 1:17 pm | Permalink

            He is making a logical objection to Coyne’s exclusion of culpability from the list of what justifies punishment. If culpability does not matter, and punishing the mother works *better* according to Coyne’s criteria, then why shouldn’t we punish her? Something must be *missing* from Coyne’s criteria. I suggest it is guilt or culpability.
            But once you admit culpability into the critera it is no longer a strictly consequentialist argument.

            This is a devastating objection.

            • Ken Kukec
              Posted July 6, 2017 at 2:13 pm | Permalink

              I’m not making a consequentialist argument. I’m not even criticizing cjwinstead’s objection to consequentialism. I’m merely pointing out that his/her contention that our justice system currently ever permits “proxy punishments” is wrong.

          • Posted July 6, 2017 at 2:43 pm | Permalink

            1, They are not strictly civil cases. 2, I would argue that civil liabilities are setup to serve as punishment (at least sometimes). 3, Our system a moderately high tolerance for punishing innocent people, as evidenced by the paltry compensation for exonerated people; you could call those cases honest errors, but the truth is that the system benefits by punishing *someone* even if it’s the wrong person. 4, Beyond “the system,” in broader society the parents and families of criminals are socially punished, often harassed by strangers for years. Most of these cases do involve a finding of “fault” or liability, but those words are hardly distinguishable from “deserves.”

            • Ken Kukec
              Posted July 6, 2017 at 4:07 pm | Permalink

              I’m not sure what criminal case(s) you have in mind, but if you’d care to cite one, I’d be happy to respond. In any event, neither civil nor criminal liability can be imposed on an individual except after that individual’s own trial at which the individual was found personally culpable based on that individual’s own conduct.

              Further, the purpose of civil liability is not to punish but to compensate — to put the harmed person in the exact same economic position he or she would’ve been in had the act(s) giving rise to liability not occurred. (The only exception to this is the rare instance in which “punitive damages” are allowed. Such cases require a finding that the defendant have willfully inflicted direct harm upon the plaintiff — for example, the treble damages allowed in civil fraud cases.)

              The reason compensation for the wrongly convicted is paltry isn’t that we have a high tolerance for punishing the innocent, but because the government (state and federal) enjoys sovereign immunity from liability, except to the limited extent it waives it. That’s why damage awards against the government tend to be paltry in all kinds of cases, not just those brought by the wrongfully convicted. (Plus, a wrongful conviction action generally requires that there have been misconduct by the prosecution; you can’t sue the jury for reaching the wrong result.)

              I don’t know what you mean by the system “benefiting” from punishing the wrong person. My own experience suggests that such cases bring disrepute upon the system (although a measure of renewed respect tends to come where the system ultimately exonerates the innocent).

              Finally, family members sometimes suffer disapprobation due to all manner of scandalous misconduct by their relatives; it’s hardly limited to criminal conviction. Since, as you say, this occurs “beyond the system,” it hardly qualifies as an instance of “proxy punishment” being imposed on the innocent by our system of criminal justice.

              • Posted July 6, 2017 at 6:41 pm | Permalink

                We could debate these points at length, but I think it’s a digression from the topic of moral foundations. For the moral question, and specifically the question of whether something is “deserved,” it doesn’t matter that government is specifically the agent meting out the punishment.

    • Gregory Kusnick
      Posted July 6, 2017 at 11:29 am | Permalink

      Excellent point. Prioritizing consequentialism over any notion of desert seems to lead in the limit to the idea that we needn’t bother identifying the actual perpetrator of a crime if we can find some luckless citizen whose conviction and punishment can plausibly be shown to achieve just as much social good through deterrence.

      The fact that most people recoil at this proposal suggests that desert does have a meaningful role to play apart from retribution. Dennett has argued that in order to be effective, the rule of law must be roughly congruent to our innate sense of justice; otherwise people lose respect for it and work to overthrow it.

      • Posted July 6, 2017 at 1:31 pm | Permalink

        Excellent point. Prioritizing consequentialism over any notion of desert seems to lead in the limit to the idea that we needn’t bother identifying the actual perpetrator of a crime if we can find some luckless citizen whose conviction and punishment can plausibly be shown to achieve just as much social good through deterrence.

        In your example, the State punishing some luckless citizen would itself constitute a criminal random act of terrorism — exactly the problem one is ostensibly attempting to solve.

        b&

        >

        • Craw
          Posted July 6, 2017 at 1:45 pm | Permalink

          Actually there’s a further problem there too. If the notion of “deserves” is empty then you cannot say the random guy on the street does not deserve sudden incarceration. Of course that’s absurd.

        • Gregory Kusnick
          Posted July 6, 2017 at 3:03 pm | Permalink

          If it can be shown to produce a net positive outcome, then how is it a problem (on Jerry’s view that only consequences are relevant)?

          • Posted July 6, 2017 at 3:35 pm | Permalink

            But if the premise that random acts of brutality are something bad that we must protect against, increasing the number of random acts of brutality most obviously produces a net negative outcome….

            Maybe you could construct some better example…?

            b&

            >

            • Gregory Kusnick
              Posted July 6, 2017 at 4:51 pm | Permalink

              I never said proxies should be chosen at random; I said they could be chosen to maximize net social good.

              Nor did I say anything about brutality. Suppose we succeed in reforming our penal system to be more humane along the Scandinavian model. It could still be the case that locking somebody up, even if it’s the wrong guy, would produce measurably greater social good than letting the crime go conspicuously unpunished.

              I think we agree that this would be a bad idea, but I claim that its badness has nothing to do with “random acts of brutality” but rather stems from our innate sense of fairness and desert.

    • Posted July 6, 2017 at 1:15 pm | Permalink

      If she volunteers, and we know that there are better outcomes, I’d say “yes, by all means.” The argument against it, if you concede better outcomes for deterrence, etc. is that it would be a worse outcome for society because no one wants to live in a society in which you could be locked up for someone else’s crime. But if that’s not an option, if it only applies to volunteers, than I don’t see what’s wrong with it. In fact, I suspect that anyone who disagrees probably does so only because of a desire to punish the perpetrator.

      • Posted July 6, 2017 at 2:33 pm | Permalink

        Why does volunteering matter? Guilty people usually don’t volunteer. But we can justifiably punish them to serve the goals of deterrence, protection and rehabilitation. Suppose the mother did not volunteer. What is the reason why we shouldn’t forcibly punish her if it would serve the same ends?

        • Posted July 7, 2017 at 7:52 am | Permalink

          Again, it is because no one wants to live in a world in which any innocent person could be locked up “for the greater good.” That’s not a utopia; that’s hell. No one wants to be locked up involuntarily. “Guilty people don;t volunteer” yes, but we are talking about locking up innocent people.

          • Posted July 7, 2017 at 8:46 am | Permalink

            You’re begging the question. PCC’s view so that there’s no authentic concept of “guilt.” If that’s true then the concept of “innocent” is equally vacant. The question isn’t about what kind of world people want to live in (that’s an empirical question of public opinion that could change), the question is what’s the right or best (or maybe least worst) way to think about guilt and punishment. Obviously I don’t think we should lock up innocent people, because I think only the guilty “deserve” to be punished and everyone else should enjoy total protection of their basic rights and freedoms. I just don’t see how this can be logically reconciled with PCC’s stance that punishment is justified strictly by deterrence, protection and reform; “guilt” doesn’t enter into it.

            • darrelle
              Posted July 7, 2017 at 10:47 am | Permalink

              “PCC’s view so that there’s no authentic concept of “guilt.””

              I am not sure if you’re intent is merely to postulate hypotheticals for examination as an exercise or if you are arguing about what you understand Jerry’s actual views to be, so this may not apply. But . . ., Jerry has clarified numerous times that, as he puts it, he thinks “responsibility” is a valid concept but that “moral responsibility” is not. He usually adds that he thinks “moral” adds nothing to “responsibility” unless one accepts dualism*. Given that he is fine with “responsibility” I don’t think your apparent claim here, that Jerry’s view is that there’s no authentic concept of guilt, is accurate.

              * Of course many people that also don’t accept dualism have disagreed with Jerry on that.

              • Posted July 7, 2017 at 11:00 am | Permalink

                I’m not arguing about what Jerry would or wouldn’t say, I’m interrogating the logical implications of his stated views on responsibility. It’s not sufficient to say “he has said X” if “X” doesn’t fill in the logical gap. The question is at the foundation of punishment: if no one “deserves” to be punished since nobody has any free will, then what exactly is the difference between someone who can be punished compared to someone who must not be punished?

                In addition to proxy punishment, there are other examples like predictive intervention, where some predictive analytics are used to identify “probable” future criminals and abridge their rights or freedoms in some way (which I consider to be the same thing as “punishment”) before they commit any crimes. If the analytics are good and the interventions are highly likely to deter, protect and reform, then aren’t predictive interventions justified? Does the factual innocence of those people really matter? Why? (And the answer can’t just be “because we want it to matter” or “we have stated that it matters,” there has to be some explanation as to why we should think it matters.)

              • darrelle
                Posted July 7, 2017 at 11:14 am | Permalink

                At least one of his clearly stated views directly contradicts a view that you attributed to him. I was simply pointing that out.

                If you are simply debating hypothetical “what ifs,” well carry on. But if you intended to make a claim about Jerry’s views, as you appear to have done per the quote I highlighted, it seems appropriate to point out that your claim isn’t correct.

              • Posted July 7, 2017 at 11:21 am | Permalink

                I’m not sure where he has explained the distinction between “moral responsibility” and unqualified “responsibility.” He has stated many times that no one “deserves” to be punished, and that punishment is justified by the three criteria stated in this post. He is certainly allowed to say that innocence matters, but without further explanation it strikes me as contradictory to his other stated views on punishment. People are allowed to hold contradictory views, and I’m not misrepresenting anything by extrapolating logical implications of statement A even if they disagree with statement B made by the same person. The whole point is to highlight a contradiction.

              • darrelle
                Posted July 7, 2017 at 12:04 pm | Permalink

                I get that. I’m not trying to say you are misrepresenting Jerry or anything like that. I’m simply saying that Jerry has said much more about this in many other articles he has posted on WEIT about free will and the implications that determinism has for our criminal justice systems. I realize that you may not have been aware of the information and don’t expect you to have researched it. I was simply offering you further information that perhaps you weren’t privy too.

                I don’t expect you to take it as gospel based on my word. If it’s of enough interest to you I’m sure that if you searched WEIT for articles on free will and determinism, then searched those articles for “moral responsibility” you can verify this fairly quickly.

                Note, I am also not trying to say or imply that this invalidates your examination of these issues in a general sense.

              • Posted July 7, 2017 at 12:28 pm | Permalink

                Okay… I’ve been following the site for a few years and read Sam Harris’s work on the subject. I haven’t found in any of it a specific, complete accounting for why innocence should matter. This isn’t just my argument either, it’s a well known problem in the philosophy of criminal justice.

              • Posted July 7, 2017 at 12:35 pm | Permalink

                The whole idea of a crime is that a particular individual (alone, working with a group, whatever) has committed some sort of transgression, and we need some sort of societal infrastructure to address such phenomena.

                If a person is innocent, then the person isn’t part of the phenomenon and is utterly irrelevant to the crime.

                Almost everything ever done in response to a transgression would itself be considered a transgression if not done in an official context. So, if society transgresses against somebody who has not committed any transgression, society is itself committing a crime.

                Now, you can argue whether or not the responses to a transgression should be onerous enough to themselves be viewed as transgressions in some other context. But you can’t get around the fact that, if it’s bad for a person to do whatever it is without official authority, it’s just as bad for society to do it against an innocent person.

                Cheers,

                b&

                >

              • Posted July 7, 2017 at 5:04 pm | Permalink

                Everyone in a society is “part of the phenomenon” of crime. A crime is basically any behavior that is undesirable enough to warrant use of force to prevent or reconcile. If society directs that use of force against “innocent” people, and most in society accept that practice, then how can you say it’s bad for society? How can you say society has committed a crime unless you attach some retributive significance to whether a person is guilty or innocent?

              • Posted July 7, 2017 at 5:16 pm | Permalink

                I’m sorry, but I literally can’t make sense of your post. Clearly, not everybody in society is a criminal or a victim, and I can’t imagine a modern society that would even momentarily seriously consider punishing the innocent.

                Whatever you’re arguing for, it’s so far disconnected from reality as I or anybody else I know understands it that you might as well be making hypothetical arguments about whether a Star Destroyer would be faster than the Enterprise.

                Cheers,

                b&

                >

              • Posted July 7, 2017 at 5:26 pm | Permalink

                To say that a person “is a criminal” is an inherently retributive concept. The whole point of Jerry’s argument is that we aren’t justified in punishing people solely because they have committed crimes. Their factual guilt or innocence is immaterial. All that matters is the prospect of preventing future harm. This is Jerry’s argument as far as I understand it. You (and I) really want innocence to matter but in Jerry’s rubric there simple isn’t a place for it. If you make an exemption from punishment based on innocence, that’s exactly the same as saying the guilty “deserve” to be punished, and it unravels the whole case that Jerry has tried to make. As I said before this isn’t just my personal argument, it’s a basic problem discussed at length in the literature, and there’s a terse overview here.

      • Gregory Kusnick
        Posted July 6, 2017 at 2:50 pm | Permalink

        If volunteer proxies are ethically acceptable, how about paid volunteers? I do the crime, you do the time, for which I reward you handsomely when you get out, and society benefits from seeing someone punished. Win-win-win. Are you OK with that?

        • Posted July 7, 2017 at 7:48 am | Permalink

          #1 – If it is, as stated in the original example, *more effective* at preventing recurrence and at deterrence, then I have no problem with it.

          #2 – I don’t think “society benefits from seeing someone punished.” In this particular case, society would benefit from less crime because this following this course is *more effective* at crime prevention, than locking up the guilty person.

          • Gregory Kusnick
            Posted July 7, 2017 at 10:53 am | Permalink

            By “society benefits” I mean that, all else being equal, people would rather live in a society where justice is seen to be done (making them feel safe) than in one that gives the appearance of lax enforcement (making them feel unsafe).

            • Posted July 7, 2017 at 11:12 am | Permalink

              But isn’t it obvious from the responses that a non-trivial number of people don’t want to live in the society you describe? People who consider your thought experiment horrific in every aspect? Indeed, what sane person would want to live in a society where they themselves might randomly be punished just to sate the collective bloodlust?

              So, either your particular example is not one that illustrates whatever point you’re trying to make, or you’ve got to convince people that this madness you propose is desirable.

              Cheers,

              b&

              >

              • Gregory Kusnick
                Posted July 7, 2017 at 12:33 pm | Permalink

                I thought it was clear that I don’t want to live in the kind of society I describe, and that I’m not proposing it as something desirable. Like cj, I’m trying to figure out how people who reject any notion of desert justify their horror at the prospect of punishment by proxy.

      • Posted July 6, 2017 at 9:23 pm | Permalink

        Hmm. How is deterrence supposed to work if it’s not the perpetrator that’s punished?

        • Posted July 7, 2017 at 7:43 am | Permalink

          I have no idea. It’s not realistic; it’s just a thought experiment. I was going along with the stated conditions and that it was known to be more effective in this particular thought experiment.

  13. Posted July 6, 2017 at 10:37 am | Permalink

    I agree with your thinking in every respect. Yet, like most of your readers, I felt anger and revulsion when I read what Gutierrez had done, and I had a “gut reaction” — I, too, wanted him to suffer. There’s an almost universal human response to some event that outrages our sense of order — we want violent retribution. I know I’m treading into the fraught territory of evolutionary psychology here, but I wonder if that’s an adaptive trait of social animals? What happens to a wolf who transgresses the social order of his pack? He gets a nip, or worse. I imagine monkeys “enforce” the rules of their societies with corporal punishment as well. They certainly don’t engage in discussions about rehabilitation.

    Of course, we hoomins can engage in such discussions, and I think it behooves us to do so, because if we want to have safer, happier lives, we’d better find solutions that work, not just fall back on our primitive impulses — and that means we have to use science.

    There was a fascinating article in the June, 2017 issue of The Atlantic about new ways to deal with young psychopaths. It turns out that punishment doesn’t help, because psychopaths really don’t seem to be fazed by pain or privation — they just go right back to their old behaviors (and escalate them). What does seem to work remarkably well is to reward good behavior. It doesn’t “cure” them, but it helps them take control of their impulsiveness.

  14. Richard
    Posted July 6, 2017 at 10:38 am | Permalink

    I think because it makes us feel good is a good enough reason.

    Imagine someone rapes and kills a child. If you know that he’s gone impotent and is therefore unlikely to offend again, do you tell the girl’s parents “don’t be mad that this guy who raped your daughter is now free and living a comfortable life. We know he won’t offend again, wake up and stop being so vengeful!”

    This instinct that people “deserve” certain things is natural and healthy, usually leading us in a positive direction. I’d go as far as saying a person without those instincts would be horrifying.

    • Ken Kukec
      Posted July 6, 2017 at 11:09 am | Permalink

      “[B]ecause it makes us feel good” is not “a good enough reason.” If a loved one of mine were raped, what would make me feel good would be to present the victim with the perp’s genitalia in a pickle jar of formaldehyde.

      But I would not want to live in a society that meted out that kind of “justice.”

      • Richard
        Posted July 6, 2017 at 11:24 am | Permalink

        It’s a strange version of utilitarianism that takes into account the feelings of the guilty but not those of their victims or the wider society.

        • darrelle
          Posted July 6, 2017 at 11:48 am | Permalink

          I think people who say things like this aren’t getting what people like PCC and Ken are describing. I’m quite sure they are not suggesting the feelings of the victims should not be taken into account. Frankly, that would be a ridiculous claim.

          Not having a retributive justice system isn’t about taking the feelings of guilty criminals into account, it’s about taking into account everyone else’s feelings. In both the short term and the long term. A short term example is the impact execution has on the people tasked with doing the deed. A long term example is devising our institutions in such a way that they foster evolving into that better society that most people want to live in. Vengeance addiction isn’t very conducive to that, going by history.

          There is no logical or practical reason that we can’t do that and also not only take into account victims’ feelings, but do a better job of it at the same time.

        • Posted July 6, 2017 at 9:31 pm | Permalink

          Ken is not advocating taking into account the feelings of the guilty.

  15. rickflick
    Posted July 6, 2017 at 10:42 am | Permalink

    Completely agree. It’s revealing however that the emotional, “An eye for an eye”, attitude seems ingrained in human beings. Perhaps anger and vengeance is written in our DNA. Maybe it had a survival benefit at one time – like keeping enemies at a safe distance based on fear of of another’s vengefulness.

    • Ken Kukec
      Posted July 6, 2017 at 11:14 am | Permalink

      It’s the dark inverse of the golden rule — do unto others as they have done to those you care about.

      • rickflick
        Posted July 6, 2017 at 5:38 pm | Permalink

        Don’t get mad get even.

  16. Posted July 6, 2017 at 10:43 am | Permalink

    First, it is of vital importance that you should design a criminal justice system that you would want to yourself be subjected to. Including if you were found guilty!

    Overwhelmingly, people would want at least a basically humane standard of living for themselves — a clean, sheltered, safe environment with healthy food and some way to pass the time. It needn’t be luxurious, but it shouldn’t be onerous.

    Remember: this is for you yourself, not for some sicko criminal whom you despise.

    At the same time, it is just as important that you selfishly consider how best to get the most out of that person in the future for society. Which does not mean slave labor…but rather turning that person into somebody who’s going to pay the most possible in taxes upon release. Which means mental health treatment, education, and job training.

    And, obviously, prudence dictates providing health, education, and jobs to everybody before they run afoul of the law….

    Cheers,

    b&

    • Kevin
      Posted July 6, 2017 at 11:05 pm | Permalink

      Least advantaged perspective. I do wish criminal justice systems were designed as if we all had to be subjected to them.

  17. tubby
    Posted July 6, 2017 at 10:49 am | Permalink

    He and his friends beat animals that would neither escape nor defend themselves to death for the entertainment value of killing easy targets. He bragged online and in person about it, and kept trophies he obtained by mutilating the corpses. If an intervention of some sort isn’t made, and he gets a suspended sentence and a wiped record, then I suspect he will move on to more exciting targets.

    • Posted July 6, 2017 at 11:04 am | Permalink

      I do not like grammar nazis and typo flamers but I must say I chuckled at this phrase; “…animals that would neither escape nor defend themselves to death …”

      Defending oneself to death is a rather profound failure, I should think.

      I am sorry (but only just a bit) to make fun of your post, especially ass I routinely make similar bloopers.

      • tubby
        Posted July 6, 2017 at 11:11 am | Permalink

        I cannot English, but it’s not my fault- I blame my lack of free will!

    • Filippo
      Posted July 6, 2017 at 2:22 pm | Permalink

      I contemplate what I would have done had I found myself suddenly transported to the scene of this vile massacre, in possession of a variety of physical objects which could be used – at a reasonable self-protective distance – if unavoidably necessary, to stop the noble Mr. Gutierrez’s killing spree. I’d like to think that I would first talk to him, appealing to the better angel of his nature, nicely asking him to please stop. How may innocent creatures would have to be sacrificed as a consequence of my repeated entreaties before I finally laid into him, hopefully with the least force necessary?

      He pleaded “nolo contendere.” Who does he think he is – Spiro Agnew or a corporation? Did he use “youth” as a defense? Has he been described as a “troubled” youth?

  18. Christopher L Easterday
    Posted July 6, 2017 at 10:52 am | Permalink

    Guitierez, according to his Facebook page, is a resident of Mexico, and wad studying medicine at NYU. I doubt this is his first act of wanton cruelty. He should be jailed, clearly.

    • Posted July 6, 2017 at 11:06 am | Permalink

      *blink* *blink*

      Did you just suggest that residents of Mexico are likely to commit acts of “wanton cruelty”?

      Would you care to explain yourself?

      • Christopher L Easterday
        Posted July 6, 2017 at 1:38 pm | Permalink

        I tend to look for the FB accounts of those accused or convicted of violent crimes. So, no, I was simply clarifying that he appears to have been a visitor to, not a resident of, Hawaii. You must agree that it’s pretty creepy that he was (is?) studying meducine. “Do no harm?”

        • Posted July 6, 2017 at 3:47 pm | Permalink

          *whew* I’m glad I was wrong about you! One of the reasons I like to come to WEIT is that so few trolls reside here. I was worried one had crawled in. Thanks for your explanation.

          • Christopher L Easterday
            Posted July 6, 2017 at 4:53 pm | Permalink

            I’m embarrassed by my typos. And I’m embarrassed to have appeared Drumpfian in any manner.

  19. Posted July 6, 2017 at 11:08 am | Permalink

    Sequestration is overrated. It is often said that criminals when locked up are therefore involved in crime. From what I have heard about conditions in prisons,especially US prisons, this is just not true. It is just that most crime inside prison, short of murder, does not get officially reported.

    Interesting point about the urge to punish. As I understand it, one suggestion is that the urge to punish is an adaptation to deter cheats and freeloaders. Likewise hostility to those in whom the urge to punish is weak, since before the emergence of law enforcement agencies, they would not have been doing their share of the difficult and dangerous job of punishing. You need this double tier for an evolutionarily stable situation.

  20. Torbjörn Larsson
    Posted July 6, 2017 at 11:09 am | Permalink

    Retributivists are punished by statistics, since the marginal utility of punishment disappears very quickly, something like a year for imprisonment.

    [In this case the perpetrators were not the adult age of 18 and should punished by something else than closed prison, that is for adult crimes.]

    By the way, I like the famous finger typo that Gutierrez possibly “poses a dancer”. One can argue that it is its own punishment, except that Trump shows that some posers do not care.

  21. Posted July 6, 2017 at 11:10 am | Permalink

    Instead of “deserving”, how about “teaching him a moral lesson”? This is justice, not revenge. He needs to know that he has committed an atrocity that is condemned by society as well as being illegal. Do criminals “deserve” punishment of some kind? Of course they do! But vengeance and retribution are the wrong reasons, at least for public justice (crimes of passion committed by individuals use these reasons).
    So yes, he “deserves” to be punished severely because he needs to be made aware of the severity of his crime. I think most people consider this to be the definition of the word “deserving”, not vengeance.

  22. Stephen Barnard
    Posted July 6, 2017 at 11:10 am | Permalink

    This post is really about the social implications of determinism, and in particular the punitive judicial decisions highlighted by the Christian Gutierrez case.

    For the life of me, and I’ve heard the arguments, I can’t make sense of “deterrence” from a determinist stance. The very notion of deterrence is that a potential miscreant considers his actions in light of the punishment, and makes a choice. “Deter” derives from Latin, literally meaning “frighten”. This is outright dualism.

    • JonLynnHarvey
      Posted July 6, 2017 at 11:33 am | Permalink

      Same Latin root as “terror”

    • Ken Kukec
      Posted July 6, 2017 at 11:33 am | Permalink

      Why is “deterrence” any more inconsistent with the determinism than any other form of “learning”?

      First time I tuned up a car, I made the mistake of grabbing a live spark-plug wire (and got a heck of a shock). I was deterred from ever trying that trick again. I’m pretty sure my buddies standing around the engine laughing at me were deterred from trying it themselves, too.

      Don’t see anything there that’s inconsistent with determinism, do you?

      • Stephen Barnard
        Posted July 6, 2017 at 7:32 pm | Permalink

        One could make an argument that any form of “learning” is inconsistent with determinism, but I’m not making that argument.

        I’m arguing that the entire rationale for deterrence is inherently dualist, assuming libertarian free will.

        • darrelle
          Posted July 7, 2017 at 8:16 am | Permalink

          I understand what you are saying, but I’m not sure I understand your reasoning. Assuming that libertarian free will is bogus a plausible (to me) explanation for how deterrence could be effective is as follows.

          Brains are complex computing devices that make decisions based on myriad inputs, conscious and unconscious, and per their hardware and software configurations. Analogous to computers, but more complex. Knowing that certain behavior very often results in jail time, fines and/or negative social repercussions is an input. It is conceivable that this input would cause some brains to calculate a “no let’s not do that” output some of the time when computing whether or not to engage in illegal behavior. The only way to determine efficacy is to look at actual data.

          • Stephen Barnard
            Posted July 7, 2017 at 8:31 am | Permalink

            I’m not arguing about how deterrence MIGHT work under determinism, and I’m not taking a position on free will. I’m talking about how we, as a society, THINK deterrence works. It’s dualist thinking and not compatible with determinism. This isn’t unlike how we all (determinist or not) behave in everyday life, as though libertarian free will were an obvious fact.

            • darrelle
              Posted July 7, 2017 at 8:58 am | Permalink

              Ahh, okay. I understand what you are saying now.

    • darrelle
      Posted July 6, 2017 at 11:51 am | Permalink

      Maybe think of it as conditioning rather than choosing. Like Pavlov with his dogs.

      • Posted July 6, 2017 at 9:37 pm | Permalink

        Conditioning to make a certain choice.

        Discuss!

        • darrelle
          Posted July 7, 2017 at 7:33 am | Permalink

          I think I need some conditioning first.

  23. JonLynnHarvey
    Posted July 6, 2017 at 11:33 am | Permalink

    I think that retribution and revenge are related but slightly different concepts, and within certain bounds are valid.

    Revenge implies vindicating the rights and dignities of the wronged party (the albatrosses), to assert through actions that society protects them.

    Retribution implies restoring a sense of balance and harmony to society as a whole. It involves payment of a dept owed.

    CG has placed himself (freely??) in the service of impulses which destroy the integrity of our social fabric. The restoral of that fabric requires that he be punished.

  24. Siggy in CR
    Posted July 6, 2017 at 11:42 am | Permalink

    I wouldn’t be so quick to throw out the idea that satisfying the public’s desire for justice, which often amounts to nothing more than vengeance, is a worthy goal. While I agree that in an ideal world people wouldn’t want to punish for punishment’s sake, we don’t live in that world. And a criminal justice system that doesn’t satisfy those widely held desires will soon find itself replaced with one that does.

  25. Sean
    Posted July 6, 2017 at 11:51 am | Permalink

    “And there are three social goods to come from punishments like incarceration: deterrence of others, sequestration of someone who could be dangerous to society, and reformation of a criminal so he doesn’t repeat his offense when freed.”

    Another often overlooked factor in retributive punishment is that it has a eugenic effect. Imposing a extra cost on people manifesting harmful behaviors (part of he extended phenotype) will, presumably, drive a society towards self self domestication, effectively.

    • Posted July 6, 2017 at 2:19 pm | Permalink

      Yes, but if that really worked, we in the U.S. would have long since achieved a perfectly harmonious society, instead of keeping millions of people in prison.

  26. KD33
    Posted July 6, 2017 at 12:00 pm | Permalink

    Sorry – I get the determinism arguments but can’t close the deal. If prison is a deterrent for others, it would be for him as well. Also, I view it as an expression of society saying, “we’re pissed off for what you did.” I reserve he right to express my piss-offedness in situations where I’m wronged, or feel the same on behalf of others (albotrosses or not). I do not buy the “base instincts” argument, nor that it’s a slippery slope to capital punishment. (I rarely put much credence in such arguments.) There is a role for this in civilized society.

    • darrelle
      Posted July 6, 2017 at 12:30 pm | Permalink

      But what is the understood definition of free will in this context? If it is compatible with determinism then compatiblists would likely accept the premise. And since incompatiblists agree with compatiblists on the actual phenomena that compatiblists use the term free will as a label for but disagree with the label, then likely at least some incompatiblists would accept the premise too.

      • Ken Kukec
        Posted July 6, 2017 at 3:01 pm | Permalink

        There is no concept more firmly entrenched in our criminal justice system than that of libertarian free will — that at the time a crime was committed, the offender could have chosen to do otherwise. Everything else about our system — from the instructions given to juries, to determinations of blameworthiness, to fixing punishment at sentencing — flows from that premise.

        If we were to abandon our current justice model for one founded in determinism, there might well be some overlap in a few of the considerations that remain relevant (for example, “deterrence”), but our entire justice system would have to be revamped, from stem to stern.

        • Posted July 6, 2017 at 3:48 pm | Permalink

          If we were to abandon our current justice model for one founded in determinism […] our entire justice system would have to be revamped, from stem to stern.

          Not so sure. All you’d really have to change is some of the commentary and a bit of different emphasis. It’s straightforward to find compatibilist interpretations of nearly all the concepts. One can see this because this has happened in some of the European justice systems that have headed down that route.

  27. Posted July 6, 2017 at 12:26 pm | Permalink

    I’d add that there’s “what we should do for this guy?” and what we should try to learn in the limit for the future.

  28. BJ
    Posted July 6, 2017 at 2:22 pm | Permalink

    Well, my comment yesterday was that he deserved to go to jail because he broke existing laws that can result in jail time, he tortured sentient beings for the sole purpose of making them suffer, and I’m sick of seeing people let off the hook for animal cruelty because we don’t, as a society, really care about animals. Implicit in all of that was the points you bring up here, Jerry: we must prosecute people who break laws like this for the purposes of deterrence, sequestration, and rehabilitation.

    Unfortunately, the rehabilitative element is not commonly found in US prisons. US criminal law is largely retributive, not rehabilitative (unlike, say, many European countries, and particularly the Scandinavian ones).

    I can think of one reason for retributive justice, though it’s not necessarily a reason with which I agree: when someone causes severe trauma for another person (and, by extension, the family/friends/husband/wife, etc.), it can relieve a significant amount of stress and trauma for the victims to know the person is being punished for what they did. The big question is whether the relief that punishing the perpetrator gives to the victims is a social good, or, if it is, whether that social good outweighs the good of being more merciful as a society and demonstrating said mercy. I believe merciful punishment is more important (and I’m not saying merciful as in allowing people who do horrible things to go free or even receive less prison time, but treating them far better in prison and making far better attempts to rehabilitate them). These questions are one of philosophy.

    • Rita
      Posted July 6, 2017 at 3:27 pm | Permalink

      Victims (and their families) don’t react in a uniform manner. Not all victims or families demand retribution.

      • BJ
        Posted July 6, 2017 at 3:39 pm | Permalink

        I didn’t say they do. I said that punishment of perpetrators *can* relieve some stress and trauma for victims.

        • Gregory Kusnick
          Posted July 6, 2017 at 3:54 pm | Permalink

          There are other ways of helping victims deal with stress and trauma that don’t involve doing violence to perpetrators. Perhaps you would agree that we ought to put more effort into such alternatives, and less into punishment for the sake of the victims.

          The doctrine that punishing perps is necessary for victims to “get closure” does them both a grave disservice, in my opinion.

          • BJ
            Posted July 6, 2017 at 3:56 pm | Permalink

            I already did agree. Please read my entire post. I specifically said that I *don’t* agree with the reasoning. Jerry asked if there was another possible reason for imprisoning people beyond the three he gave, and I provided one. I explicitly said that I don’t agree with it regardless, and that I do think there are other ways of doing things and that I support rehabilitative rather than retributive justice, and thus reforming the US prison system.

    • Ken Kukec
      Posted July 6, 2017 at 4:17 pm | Permalink

      The impact a crime has had on its victim(s) — physical, emotional, economic — is a legitimate concern at sentencing, I think. Slaking the victim(s) thirst for retribution is not.

      • BJ
        Posted July 6, 2017 at 4:32 pm | Permalink

        As I said, I don’t personally think it is (or at least that such relief should outweigh the social good offered by a rehabilitative system), I was merely offering an answer to Jerry’s question of whether there exists another possible reason for imprisonment beyond the three he gave.

  29. Rita
    Posted July 6, 2017 at 3:30 pm | Permalink

    Jerry, I’m glad you raised this subject. I was disturbed too, by all the comments talking about what the perpetrator deserved, and I was especially disturbed by those who described in detail exactly what they thought the punishment should be.

  30. Charles Sawicki
    Posted July 6, 2017 at 4:07 pm | Permalink

    Let’s see: Gutierrez had no “choice” to not kill the birds. He should certainly be made to pay the $200,000 damages caused to the research project.
    Since we will probably never understand his motivations and what made him kill,or predict what or who he will kill next, let’s just jail him for a very long time to keep other living creatures safe.

  31. J Cook
    Posted July 6, 2017 at 4:31 pm | Permalink

    I was one of those who feels that people who do things like that should be isolated from society. I think I said something like “he should be in a cage and the key thrown away”.
    An emotional response for certain. As a life long conservationist and wildlife rehabber I felt Gutierrez should be drawn and quartered. Metaphorically.
    Baring that, kept away from animals, all animals, for the rest of his life.

  32. Susan D.
    Posted July 6, 2017 at 5:43 pm | Permalink

    Whether he deserves it or not is beside the point. I can only repeat what I said yesterday. Psychopaths can’t be fixed. He should go to gaol in order to: a) get him off the streets; b) satisfy society’s need for justice to be seen to be done. Then, when he’s out again, he wears, for the rest of his life, an electronic device recording his location so that we will know where he was when something else like this happens.

  33. Stephen Barnard
    Posted July 6, 2017 at 8:15 pm | Permalink

    There’s currently a hotly disputed case, in Texas I believe, about the impending execution of a mentally ill man. These disputes are common. The idea is that if someone is mentally ill they can’t be held accountable for their crime. The same reasoning holds for underage criminals. All this is, of course, ridiculous from a determinist stance. None is more culpable than another, regardless of mental state.

    Prison authorities go to the absurd lengths of putting death-row inmates on suicide watch. If someone who was about to be executed were to harm themselves to the extent that they were mentally impaired, they could get off. If they required extraordinary medical intervention to save their lives before they were to executed, they’d get it. Does anyone else find this absurd?

    I don’t support the death penalty for utilitarian reasons, but sometimes I think the Romans had it right — a warm bath, a sharp blade, and a bottle of spirits.

    • Stephen Barnard
      Posted July 6, 2017 at 8:32 pm | Permalink

      I was too glib in that last remark. The Romans were brutal unless you were an aristocrat, and sometimes that didn’t help.

    • Posted July 7, 2017 at 11:41 am | Permalink

      Sometimes I think that punishment is in the limit otiose for perhaps much the same reasons, Stephen. But when not in such moods, I do think back to Fischer and Frankfurt and the “guidance control” idea – maybe there are some people for which the way to get their guidance control back in check is to punish them. (This does not yield a defense of capital punishment or even necessarily incarceration – the first of which I oppose on other grounds anyway.)

      This does not also, notably, yield any notion of *desert*.

  34. Stephen Barnard
    Posted July 7, 2017 at 8:28 am | Permalink

    I’m not arguing about how deterrence MIGHT work under determinism, and I’m not taking a position on free will. I’m talking about how we, as a society, THINK deterrence works. It’s dualist thinking and not compatible with determinism. This isn’t unlike how we all (determinist or not) behave in everyday life, as though libertarian free will were an obvious fact.

    • Stephen Barnard
      Posted July 7, 2017 at 8:30 am | Permalink

      Oops. Meant to reply to darrelle, not to start a new comment. I’ll repost it in the correct place.

  35. Bob Barber
    Posted July 7, 2017 at 8:43 am | Permalink

    Christian Gutierrez was not alone in killing the birds.

    http://www.civilbeat.org/2017/03/man-takes-plea-deal-in-kaena-point-albatross-killings/

    • Posted July 7, 2017 at 11:27 am | Permalink

      So with our criminal justice system only one has to take the rap, so what is being “learned” from the system is not remorse or rehabilitation, but how to game the system. Two bond together to turn on the other one.

  36. ThyroidPlanet
    Posted July 7, 2017 at 9:06 am | Permalink

    I think whether he deserves it or not is the wrong question.

    He must be locked up because he is dangerous to life.

    Off-topic : I bet Trump voters selected him because they felt he deserves to be POTUS.

  37. Posted July 7, 2017 at 6:17 pm | Permalink

    I mostly agree. I find the concept of people ‘deserving’ to suffer for their crimes problematic. We”d all be better off as a society if we focused on deterrence and rehabilitation rather than vengeance.


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