Should the police have more discretion?

Police discretion is a contentious issue, particularly around the topic of racial discrimination. The issue is usually framed in terms of equality before the law vs. police effectiveness (I.e. should police have the discretion to employ questionable tactics if those tactics are effective). While this is an important conversation  In this paper I want to explore a radically different interpretation of the significance of police discretion explored in a very interesting paper called ‘Better living through police discretion’, written by Harold E. Pepinsky and published in1984 (download link).

Pepinsky proposes five features of police discretion that he thinks are generally overlooked. The five features are:
1 – police accountability requires discretion
2 – discretion consists of unexplained variation in police decision making
3 – it does not contribute to the already existing class bias in policing
4 – discretion is increased by the imposition of laws, regulations, and rules that set out to curtail discretion
5 – Creating police discretion is necessary for reducing the injustice of policing

I will explore these points in order.

1 – Police accountability requires discretion
Pepinsky’s point here is quite simple: people can only be responsible if they have choices (which he defines as having the ability to do otherwise). Otherwise they are being held responsible for the decisions of those others who regulate their behaviour. The police therefore cannot be responsible to the public if they do not have options in their conduct.

2 – Discretion consists of unexplained variation in police decision making
Some may find Pepinsky’s claim here controversial. The key argument that he is making is that the police only have discretion if their actions are not readily explainable. He provides an example of officers dispatched to instigate a report. Supposedly it was up to officer discretion as to whether an incident required a report. What the investigation found, however, was that the vast majority of officers would only file a report if the dispatch had identified a specific crime. Pepinsky therefore concluded that these officers did not have discretion.

3 – Discretion does not contribute to the already existing class bias in policing
The key to this claim is that the police as an institution are already heavily class biased. This is true in a number of ways, but the most interesting one is probably Pepinsky’s critique of who gets policed in society. The key factual claim he makes is to contest the generally accepted belief that poverty causes crime, and that lower class crime causes more harm than upper class crime. If these assumptions are false, then there is a great deal of explained variation when it comes to the policing of the wealthy and the poor – the poor are policed because the wealthy are in power. Further, Pepinsky thinks that it is a political impossibility that the police will be regulated so as to police the rich and poor equally. It is therefore benecial to increase police discretion (as he has defined it) because that entails reducing the explanatory power of race and class when it comes to police conduct.

4 – Discretion is increased by the imposition of laws, regulations, and rules
This is probably Pepinsky’s oddest point. The basic claim is that introducing new laws makes it harder to predict police behavior. The reason this is the case is because customs (our habitual modes of conduct) make it easy for others to predict how people will behave (or at least agree upon how people should behave). When rules are introduced to regulate police behaviour, this disrupts previously established customs and standards. For a notable period of time after the introduction of new regulation, police discretion is increased due to uncertainty on the parts of both police and those responsible for enforcing regulation on the police.

4.5 – Increasing policing does not increase safety
Before getting into point 5, I want to quickly outline a crucial sub-point. Pepinsky proposes that increasing law enforcement does not significantly increase the safety of citizens. This point rests on A) the vast well of unaddressed crime that the police can never hope to address, and B) the highly harmful acts of high class criminals that are likely never to be prosecuted however many officers we put on the streets. Note, however, that this does not mean that we can simply decrease law enforcement. For though the increase of law enforcement may not have increased safety, its removal will increase the perceived opportunity for crime and disorder.

5 – Creating police discretion is necessary for reducing the injustice of policing
The above four points ultimately feed into Pepinsky’s argument that the way to reduce the injustice of policing is to increase police discretion. The shape of the argument is essentially this: given that police enforcement is almost inevitably unequally distributed, and increasing it does not generally increase the safety of society, we should increase police discretion to not enforce the law. In practice, Pepinsky proposes this would entail giving police the discretion to negotiate standards of conduct locally. Crucially, this means giving citizens the right to decide when to call upon police power. The ultimate goal would be to increase the degree to which problems can be solved without hard law enforcement, and to gradually ease citizens into managing situations without calling upon law enforcement so that it later becomes possible to decrease levels of enforcement without leaving a void.

Reflection

It is evident, on this review, that Pepinsky’s argument does not purely pertain to discretion – his argument crucially rests on the assumption that policing is inevitably class-biased and he is primarily oriented towards decreasing enforcement for this reason. That being said, he constructs a very interesting account of what police discretion entails, and how expanding it (in certain ways) could lead to the improvement of society. I do wonder whether discrimination would just be shifted from central government to local powers, but I am inclined to agree with his argument that the notion that increasing enforcement will necessarily decrease crime is fallacious, and also agree that policing is heavily class-biased.

Let me know what you think!

CreativePhilo

via Blogger http://ift.tt/2owKZH3

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Police discretion, law, and social norms

My girlfriend recently told me about an interesting difference between English and German. German has two words for ‘the same’ that differentiates between ‘the same category’ and ‘the same thing’. In English, the particular kind of ‘same’ being indicated can only be understood in context. For example, if I were to say ‘Doug and I own the same dog’ it is textually unclear whether we own the same type of dog, or whether we own a dog together. However, context will usually clarify the meaning. In the previous example, my relationship to Doug will usually indicate which is meant: if we are housemates or partners than I probably mean that we own a dog together, but if we’re just friends than I probably mean that we own the same type of dog. German speakers, interestingly, have essentially the opposite problem: the word is textually clear, but can be contextually confusing because people often use the wrong form. In other words, in English clarity depends on people’s ability to pick up on contextual clues, while in German clarity requires a mastery of the rules of the language.

I think that this provides an interesting anecdote to help explain another idea that I have been working on recently, namely, that making rules more specific often does not necessarily make them clearer. This is especially important at the convergence point between law, the police, and citizens. I want to propose roughly the following: first, societal practice is an interface of law and custom, and second, making laws more specific cannot overpower culture.

First point: societal practice is a synthesis of law and culture. Basically what I am proposing is that law cannot be so specific as to eliminate ambiguity. That is not to say that law is meaningless. Look again to the above example: in English ‘the same’ is ambiguous, but within very specific parameters. Laws outline the space to be interpreted. The remaining work to transition law to practice is achieved through contextual cultural understanding (e.g. if a law said ‘a couple must live in the same house to receive housing benefits’, context clarifies the ‘same’ that is being used).

There are other factors beyond the linguistic at play. For example, the police have limited resources, and they must make decisions as to how resources should be allocated. Theoretically resource allocation could be built into law, but in practice this would probably be unfeasible.

A final note on this point: society is comprised of many cultures (and even within a single ‘culture’ there can be significant disagreement over norms and meaning). The values and interpretations of the police are not universal. In the UK, most officers are white men, and this will inevitably have an impact on the way in which law is culturally interpreted. This has led some to argue for decreasing police discretion (e.g. police in the USA should be more heavily regulated in order to prevent them from disproportionately harming blacks and other minorities). This leads into my next point.

Second point: it is difficult for law to eliminate cultural features of police decision making. I could provide many reasons, but the one I want to focus on is the issue of complexity. As many philosophers have proven, precision does not necessarily improve comprehension. Indeed, the more precise language becomes, the more difficult it becomes to understand. That is not to say that we should not try to be precise. Whether in philosophy or nuclear physics, precision is often a very admirable. What I would say, though, is that precision is exclusionary: it requires study, training, and expertise. Furthermore, most of the activities I have listed are not time urgent. Police officers, however, are not law experts. They have a working knowledge of law, but they are not scholars or researchers. Furthermore, they must often make decisions quickly, and with increasingly low resources. Increasing the specificity of law is therefore very likely to increase both citizen and officer confusion as to what the law actually states. This can potentially have the paradoxical affect of increasing officer reliance on cultural norms, while decreasing agreement among officers on whether officers are acting appropriately (I speak very briefly here of ideas argued for by Pepinsky, read here).

As always, let me know what you think,

CreativePhilo

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Are Pets Slaves?

Are pets our slaves? Initially it may seem that this question demonstrates some kind of category error – perhaps a being can only be a slave if it meets some requisite level of intelligence. I will therefore divide the issue into two parts: first, what is a slave, and second, do pets fit the definition.

What is a slave? Initially it seems like a slave is someone who is bound against their will – a person forced to work for another. Slavery, in other words, is forced labor. However, on reflection, this seems like a problematic definition. For I think we would usually say that even a willing slave is still a slave. It doesn’t matter whether the slave consents because they enjoy their life – even if they are pampered and given a good life, they remain bound to service. I think my meaning can be clarified through analogy to the definition of a prisoner. I think that a prisoner is commonly understood as someone whose choices are restricted by circumstance: a prisoner is imprisoned by virtue of their limitations, not their subjective (i.e. personal) experience of their confinement. What is the difference between a prisoner and a slave, then? I propose the difference is the intention or reason that the
subject (prisoner or slave) has their movements restricted. Note that I use restricted here in a rather non-standard sense – I would include forced labor as a restriction because it is an imposition on the slaves liberty. A prisoner has his or her movements restricted as punishment or out of practicality (depending on whether the jailer is moved by forward or backward looking concerns. A slave has his or her movements restricted in order to benefit their owner. This does leave an ambiguity still hanging which I did not expect: how do we differentiate between the use of a slave and of forward looking imprisonment? Does not the utilitarian jailer use her prisoner in some sense? I’m unsure how satisfactory a distinction can be drawn, except to maybe suggest slaves are enslaved for positive projects whereas prisoners are imprisoned for negative ends (i.e. stopping future crime). The slave is a tool towards an end, whereas a prisoner is an obstacle towards the achievement of an end.

So, a slave is someone who has their possible actions restricted in order to complete positive projects or ends of the slaver. However, at the beginning I also noted that intelligence was an important feature of the issue. We obviously do not think that a shovel or a rake is a slave. Only beings can be enslaved. What is the essential mental apparatus that makes this the case? We have already determined that it is not mental suffering that makes one a slave or a prisoner, so what? I think the answer is simply that only beings have choices that can be limited. It is not that a slave or prisoner wishes to choose otherwise, but that their options are artificially limited at all.

So what of pets. Are pets slaves? We restrict their movements for our own ends (the enjoyment of having a pet). They seem to fit within the definition that I have set out. The only puzzle, it seems to me, is whether pets can have their option sets limited in the same way that we humans can. Here I will invoke an argument of Peter Singer in which he draws the comparison between lower functioning humans and animals, the question being whether we can draw a meaningful moral distinction between the two. I am inclined to agree with Singer’s conclusion that we cannot, meaning if one of them is a slave then it seems that the other is as well. In other words, if one of them can count as enslaved, so can the other.

So, our pets are our slaves. Let me know what you think!

Thanks for reading,

CreativePhilo

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Elected Responsibility

Now that Canada has a new government, I’m going to dedicate this post to exploring the moral responsibilities of elected officials. Elected officials are in a bit of an odd spot, morally speaking, because they must factor into account the moral weight of their responsibilities to the citizens that elected them even when the expectations of those citizens run counter to their own moral precepts. That is to say, I believe that being elected carries a notable moral burden to represent those that elected them, and it seems quite easy for a politicians moral responsibility towards those that elected them to come into conflict with their own moral beliefs. What this entails, however, can be difficult to parse, and this post will examine what exactly this responsibility entails, as well as how far the responsibility extends.

What is the nature of a politician’s moral responsibility towards those that elect them? I think that the key word or concept is that a politician is a representative: they are to represent the interests and beliefs of their constituents. There are two immediate problems with this, those being paternalism and minorities. First, should a politician represent their constituents expressed interests, or can she act as she sees best for the people. If we believe in the acceptability of paternalism then a great deal of the complexity is eliminated from this topic: the responsibility of a politician seems analogous to the responsibilities of a caretaker or parent – by taking up political responsibility the politician takes on duties to look after the well-being of their constituency. However, this paternalistic interpretation should be considered cautiously, since it is rather contrary to the spirit of democracy. For paternalism necessitates the assumption that certain people know what is best for others better, but democracy seems to assume that the electorate should have a say in their governance (at least on its face). There is a great deal more to say on paternalism, but I will not examine it any further here. The issue of minorities is more challenging, because it gets at a problem that democracies regularly struggle with: does a government represent the people, or just the majority? It is often the case that an elected offical has but one vote to represent the nuanced variety of opinions that they represent. On the other hand, it seems that they still bear the responsibility of advocacy for and attentiveness towards their constituents. The resolution of majorities and minorities seems like it must ultimately come down to judgement calls of the elected offical: for example, they may decide that it is important to speak for a cultural minority, but disregard, say, flat-earthers.

This leads into another issue – are the electorate electing someone to enforce certain beliefs, or are they electing a person that they trust to make good decisions? The answer will likely not be uniform. It is tempting to say that the answer depends on what a politician promises, if a constituency elects a clearly proclaimed feminist then they cannot reasonably expect that she will ban birth control. However, the electorate is limited in the choices they can make: they can only vote from a small selection of candidates, which inevitably means that no candidate will fully embody the beliefs of any constituents. This certainly makes it strategic to compromise one’s own beliefs to get votes, but it also raises the question of whether such compromising also has moral elements: should candidates seek to offer platforms in order to provide greater choice to constituents?

One particular feature of the Canadian system that I also wanted to mention is the fact that we do not elect our prime ministers to be prime minister – instead our prime minister is determined by the party with the greatest number of seats. This renders the representative responsibilities of the prime minister and MP’s even more difficult to discern because it makes individual votes play double duty – voters are simultaneously selecting who they want to represent their local area and who they want to represent their country. These desires do not necessarily align.

Those are my thoughts for the moment, let me know what you think,

Thank you,

CreativePhilo

via Blogger http://ift.tt/1PEJAsi

In Defence of Mulcair’s Stance on the Niqab

The primary purpose
of this blog is to allow me to explore philosophical issues in a
relaxed way: I do not struggle overmuch with research or even making
a specific point, instead I take my posts as an opportunity to
explore interesting ideas outside of the rigor of academic
philosophy. This post, however, is going to be a little bit
different. I have been paying a great deal of attention to the
upcoming election, and I have decided to write a researched
examination of Mulcair’s support of the September 15th
Federal Court’s ruling that the Conservative legislation that
citizenship oaths must be taken with face uncovered violated the
Citizenship Act (link
to article
, link
to Citizenship Act
). I will note that I do not think that the
niqab should be an election deciding issue, but, if this
poll is to be believed, 82% of Canadians disagree with Mulcair (and
myself) on whether it should be permitted in citizenship ceremonies,
so the topic is certainly worth exploring.

I will begin by
examining the recent history of the niqab in Canadian politics
leading up to Mulcair declaring support for the court ruling, after
which I will explore the ethics involved in the discussion. In 2011,
conservative immigration minister Jason Kenney implemented a ban on
face coverings during citizenship ceremonies (link),
on the basis that citizenship ceremonies are ‘public declaration that
you are joining the Canadian family and it must be taken freely and
openly.’ This ban was challenged in 2014 by Zunera Ishaq. Ishaq was
willing to remove her niqab in a private ceremony, but did not want
to be forced to remove it in a public ceremony (wiki
link
, bottom of article). Though I have not thoroughly verified
this, the wiki article also says that roughly 100 people are affected
a year by the head covering ban. The Federal Court ruled in Ishaq’s
favour and overturned the conservative law against the niqab on the
basis that it violated the Citizenship act. The conservative
government appealed, but the Court of Appeal upheld the Federal
Court’s initial decision. Reaching the end of this story, the topic
of the Niqab then arose in the french leadership debate on September
24th, in which Mulcair declared his support for the court
(‘the courts have spoken’, and ‘They’re there to defend your rights,
including freedom of religion’, link)
and the court’s ruling (‘let me be clear: No one has the right to
tell a woman what she must — or must not — wear.’ link).
This, apparently, has led to a significant shift of support away from
the NDP, especially in Quebec. As I have already linked above, the
polls suggest that Canadians almost universally side with the
conservatives on this issue (again, 82%).

Though there are
certainly some details left to be filled in, I think this is a fairly
complete account of the recent discussion that has occurred on the
niqab. We therefore come to the second part of this article. Why do
Canadians oppose the niqab in citizenship ceremonies, and why does
Mulcair support it? In my perusal of forum comment sections, I have
found three major themes as to why Canadians oppose the niqab. The
first theme is that of security: some Canadians fear that the
identity of new citizens are being improperly verified. The second
theme pertains to the rights of women: some see the niqab is seen as
a symbol or tool for the subjugation of women. Finally, the third
theme is that of culture: if someone is going to become a Canadian
citizen then they should conform to Canadian standards and values.
Mulcair’s position, as some of the quotes I have already referenced
demonstrate, seems to be essentially that women should have the
liberty to wear the niqab in the ceremony. As far as the first fear
of improper confirmation of citizenship goes, all of my research
suggests that there is nothing to be concerned about – all new
citizens have their identities verified before the citizenship
ceremony (there are many articles like this).
I will therefore only be examining the other two themes more closely.

It is worth noting,
initially, that there is significant room for overlap between the
second and third theme. Those who oppose the wearing of the niqab in
citizenship ceremonies because they view it as a tool of oppression
are also necessarily taking the stance that new citizens should not
support the oppression of women, that is, they should adopt to the
Canadian norm. Therefore the second theme seems more accurately to be
an offshoot or variant of the third theme. The second theme, however,
is explicitly moral. I shall therefore redraw the distinction between
the second and third theme as pertaining to moral and amoral
(non-moral) arguments.

The second theme is
therefore opposition to the niqab on the basis that it immorally
subjugates women. Is this correct? I would argue that, for the matter
at hand, the issue the morality of the niqab is irrelevant to a
liberal society such as our own. Though it may be a tool or symbol of
oppression, wearing the niqab is a matter of choice: if wearing the
niqab does not cause harm to anyone, it is not clear on what basis it
can be banned. One response that might be made is that the Canadian
government somehow endorses the subjugation of women through
permitting the niqab in the citizenship ceremony. To me this seems
false: allowing the niqab in citizenship ceremonies seems to support
the subjugation of women as much as my belief in free speech commits
me to being a pro-lifer (note: CreativePhilo is not a pro-lifer). It
seems the only avenue left if one is to oppose the niqab on moral
grounds is to lessen one’s commitment to liberalism (by which I mean
the belief that people should be able to do what they want, as long
as they are not causing harm to others). Liberalism may have its
limits, but I do not think we find such a limit when it comes to the
niqab.

The third theme,
that of aesthetics, more or less falls with the second. For, I hope,
most Canadians consider liberalism a more crucial aspect of Canadian
identity than dress-code. I will make a final note on my own views on
Canadian identity. In many ways we define ourselves in opposition to
our southerly neighbors: when it comes to multiculturalism the
traditional schism is to say that the US is a melting pot that makes
everyone the same, while Canada is a mosaic. I do believe that this
distinction is drawing our attention to something important.
Multiculturalism has historically been key to Canadian identity, in a
way that seeks to celebrate rather than suppress differences.


Thank you for
reading,

 CreativePhilo (Ryan
Workman)

via Blogger http://ift.tt/1Lu5BJq

In Defene of Mulcair’s Stance on the Niqab

The primary purpose
of this blog is to allow me to explore philosophical issues in a
relaxed way: I do not struggle overmuch with research or even making
a specific point, instead I take my posts as an opportunity to
explore interesting ideas outside of the rigor of academic
philosophy. This post, however, is going to be a little bit
different. I have been paying a great deal of attention to the
upcoming election, and I have decided to write a researched
examination of Mulcair’s support of the September 15th
Federal Court’s ruling that the Conservative legislation that
citizenship oaths must be taken with face uncovered violated the
Citizenship Act (link
to article
, link
to Citizenship Act
). I will note that I do not think that the
niqab should be an election deciding issue, but, if this
poll is to be believed, 82% of Canadians disagree with Mulcair (and
myself) on whether it should be permitted in citizenship ceremonies,
so the topic is certainly worth exploring.
I will begin by
examining the recent history of the niqab in Canadian politics
leading up to Mulcair declaring support for the court ruling, after
which I will explore the ethics involved in the discussion. In 2011,
conservative immigration minister Jason Kenney implemented a ban on
face coverings during citizenship ceremonies (link),
on the basis that citizenship ceremonies are ‘public declaration that
you are joining the Canadian family and it must be taken freely and
openly.’ This ban was challenged in 2014 by Zunera Ishaq. Ishaq was
willing to remove her niqab in a private ceremony, but did not want
to be forced to remove it in a public ceremony (wiki
link
, bottom of article). Though I have not thoroughly verified
this, the wiki article also says that roughly 100 people are affected
a year by the head covering ban. The Federal Court ruled in Ishaq’s
favour and overturned the conservative law against the niqab on the
basis that it violated the Citizenship act. The conservative
government appealed, but the Court of Appeal upheld the Federal
Court’s initial decision. Reaching the end of this story, the topic
of the Niqab then arose in the french leadership debate on September
24th, in which Mulcair declared his support for the court
(‘the courts have spoken’, and ‘They’re there to defend your rights,
including freedom of religion’, link)
and the court’s ruling (‘let me be clear: No one has the right to
tell a woman what she must — or must not — wear.’ link).
This, apparently, has led to a significant shift of support away from
the NDP, especially in Quebec. As I have already linked above, the
polls suggest that Canadians almost universally side with the
conservatives on this issue (again, 82%).
Though there are
certainly some details left to be filled in, I think this is a fairly
complete account of the recent discussion that has occurred on the
niqab. We therefore come to the second part of this article. Why do
Canadians oppose the niqab in citizenship ceremonies, and why does
Mulcair support it? In my perusal of forum comment sections, I have
found three major themes as to why Canadians oppose the niqab. The
first theme is that of security: some Canadians fear that the
identity of new citizens are being improperly verified. The second
theme pertains to the rights of women: some see the niqab is seen as
a symbol or tool for the subjugation of women. Finally, the third
theme is that of culture: if someone is going to become a Canadian
citizen then they should conform to Canadian standards and values.
Mulcair’s position, as some of the quotes I have already referenced
demonstrate, seems to be essentially that women should have the
liberty to wear the niqab in the ceremony. As far as the first fear
of improper confirmation of citizenship goes, all of my research
suggests that there is nothing to be concerned about – all new
citizens have their identities verified before the citizenship
ceremony (there are many articles like this).
I will therefore only be examining the other two themes more closely.
It is worth noting,
initially, that there is significant room for overlap between the
second and third theme. Those who oppose the wearing of the niqab in
citizenship ceremonies because they view it as a tool of oppression
are also necessarily taking the stance that new citizens should not
support the oppression of women, that is, they should adopt to the
Canadian norm. Therefore the second theme seems more accurately to be
an offshoot or variant of the third theme. The second theme, however,
is explicitly moral. I shall therefore redraw the distinction between
the second and third theme as pertaining to moral and amoral
(non-moral) arguments.
The second theme is
therefore opposition to the niqab on the basis that it immorally
subjugates women. Is this correct? I would argue that, for the matter
at hand, the issue the morality of the niqab is irrelevant to a
liberal society such as our own. Though it may be a tool or symbol of
oppression, wearing the niqab is a matter of choice: if wearing the
niqab does not cause harm to anyone, it is not clear on what basis it
can be banned. One response that might be made is that the Canadian
government somehow endorses the subjugation of women through
permitting the niqab in the citizenship ceremony. To me this seems
false: allowing the niqab in citizenship ceremonies seems to support
the subjugation of women as much as my belief in free speech commits
me to being a pro-lifer (note: CreativePhilo is not a pro-lifer). It
seems the only avenue left if one is to oppose the niqab on moral
grounds is to lessen one’s commitment to liberalism (by which I mean
the belief that people should be able to do what they want, as long
as they are not causing harm to others). Liberalism may have its
limits, but I do not think we find such a limit when it comes to the
niqab.
The third theme,
that of aesthetics, more or less falls with the second. For, I hope,
most Canadians consider liberalism a more crucial aspect of Canadian
identity than dress-code. I will make a final note on my own views on
Canadian identity. In many ways we define ourselves in opposition to
our southerly neighbors: when it comes to multiculturalism the
traditional schism is to say that the US is a melting pot that makes
everyone the same, while Canada is a mosaic. I do believe that this
distinction is drawing our attention to something important.
Multiculturalism has historically been key to Canadian identity, in a
way that seeks to celebrate rather than suppress differences.
Thank you for
reading,
CreativePhilo (Ryan
Workman)

via Blogger http://ift.tt/1Pfo4Jl

Are Deserts Earned or Revealed?

Are Deserts Earned or Revealed?
When meting out justice, should we proportion our punishment to criminals’ intentions or the consequences of their actions? In his essay, Criminal Attempts (2003, 77-102), Feinberg proposes that the consequences of a criminal’s actions should be an irrelevant factor when determining their punishment. Whether someone succeeds at realizing their intentions is a matter of chance. Unless we can provide a reason that success is somehow relevant to blameworthiness, Feinberg argues, we are being arbitrary and therefore unjust when we give different sentences to criminals based on chance. I am sympathetic to Feinberg’s goal of reducing arbitrariness, but I am unconvinced that his reformist proposal persuasively succeeds in making justice non-arbitrary. In at least some scenarios the fact that a particular individual attempts a crime seems to be a matter of chance in the same way that succeeding in our intentions is a matter of chance. To the extent that possessing a particular intention is a matter of chance, to escape arbitrariness I propose that Feinberg must rely on the counter-intuitive idea that deserts are character based instead of action based.
Section 1: Feinberg’s argument
Feinberg’s central argument is that a justice system should proportion its punishments to an individual’s intention instead of the consequences of those intentions because the consequence of actions is not relevant to an individual’s blameworthiness. Fienberg takes as given that ‘blameworthiness is normally compounded out of such factors as beliefs, emotions, motives, objectives, and intentions’ (79). It then follows that what a person deserves depends upon these mental features, and we should proportion our punishment to an individual’s intention. Since succeeding in a crime is irrelevant to an individual’s blameworthiness, it is arbitrary to base our punishments on success or failure.
Section 2: Blameworthiness and Character
Before getting to my main argument, I need to explicate further the concept of blameworthiness. I believe that Feinberg speaks somewhat loosely when he states that blameworthiness is compounded out of mental features. Blameworthiness and action are inexorably linked – I think most would agree that the mere contemplation of a crime is not a sufficient condition for blameworthiness. Someone is not guilty of murder the moment they begin plotting a murder. I do not mean this as merely an epistemic point, though it is true that intentions are epistemically unavailable until they are put into action. What I propose is that if we want to attribute responsibility for an action then we need to assume that humans have some kind of enduring element for responsibility to attach to. This feature could be dispositions, or it could be some kind of enduring character. Describing the exact nature of this enduring element is not crucial for the purposes of this essay. For simplicity’s sake I will refer to it as character. Since intentions and thoughts are not obviously selfsame with the actions someone undertakes, it is at least theoretically possible that a person could be unaware of their own hidden character until they are in the midst of an action. This account suggests that when we punish crime that we are really punishing this character that an action reveals, an idea that I will explore further in the next section.
Section 3: Luck of Temptation
It follows from the preceding paragraph that there may be crimes that people with particular characters commit when exposed to temptation: for these kinds of crimes it is a matter of chance that an individual commits them. It seems intuitive to me that these types of crimes exist – it seems to be the definition of a crime of passion. The perpetrator of the crime can even haveconceivably been unaware of their own temptable nature. Imagine two different men come home and discover their spouse with a lover. One man (angry1) becomes enraged and murders both of them, while the other man (calm1) politely asks the lover to leave and proceeds to have a rational conversation with his spouse. It seems quite conceivable to me that both could have been the same epistemic circumstance of not knowing their own character in relation to such circumstance. We can also imagine another man (angry2) who would act as angry1 did if exposed to the same circumstance, but who has had the good fortune of marrying a loyal partner. It then seems to be a matter of chance that angry1’s negative character was revealed, while angry2’s negative character remains hidden.
That certain crimes are committed as a matter of chance reveals an ambiguity in the concept of just deserts: are people blameworthy because of the actions they commit, or are we punishing them for the objectionable character that their act revealed? I will not endeavour to do full justice to this question here, but I do propose that Feinberg’s concern about arbitrariness in justice should drive him towards the latter option. If we fail to acknowledge that some crimes are an interaction between character and circumstance, then we seem to do a conceptual disservice to those we are punishing. The Milgram experiments1come to mind as good evidence that the fact that one individual commits an act rather then another can be a matter of chance. If someone actually committed a murder in a Milgram style scenario, it seems we would be derelict if we did not acknowledge that over half of the population would have done the same
The purpose of this section is to pose the following challenge to Feinberg: for crimes of passion or of extreme circumstance, is it unjust that we only punish those who have the misfortune of being exposed to the temptation to behave badly? It seems that fairness would dictate we should also punish those who are lucky, since they are of equivalent moral character.
A response to my challenge seems readily at hand: though it is unfair and unjust for individuals of the same quality of character to receive disparate deserts, this disparity is not one of our making. One of the ends of our justice system is to make sure that people (specifically criminals) receive their just deserts, but the justice system can not be faulted for not possessing infinite resources. Our epistemic circumstances are such that we can not give people deserts based on their hidden character; we must instead rely on the actual manifestation of character we can observe in their actions. We have not erred if we fail to do that which we are incapable.
Section 4: A Life’s Deserts
Though my previous challenge was resolved without much difficulty, the answer has led to a more significant problem. The issue is this: are deserts deserved at a particular moment in time, or are deserts accrued over the course of a lifetime? In asking this question I am assuming that our character or dispositions change over time. This is an assumption that would bear further investigation if I were trying to propose a theory of character, but it seems to be both intuitive and probable by my anecdotal experience.
First I will illustrate the problem. Let us imagine that we have two people who, in their youth, were of such a character that in the right circumstances they would shoplift. One of these persons (Unlucky Lily) was exposed to temptation and subsequently punished, while the other (Fortunate Fabian) was not exposed to temptation. Both of these people then grew out of such character. Let us imagine, however, that we somehow became aware that Fortunate Fabian had previously been temptable to shoplifting. Does justice dictate that since both were of equivalent character we should therefore punish Fabian? It seems strongly counter-intuitive to say that we should punish Fabian for a disposition that he no longer possesses, but if we do not punish him then we seem to declare that punishments are only deserved for character traits that are actually realized. In other words, if we do not punish Fabian for his previously negative character we endorse luck as a factor in the dispensation of punishment because we are making punishmentcontingent on being exposed to temptation at the right cross-section of life. I will call this the cross-sectional problem of justice.
One may criticize the problem I just illustrated by saying that the reason it seems counter-intuitive is because it requires that we imagine ourselves in an impossible epistemic circumstance. The only evidence that we can have of an individual’s character is their actions – it is nonsensical to talk of punishing someone for a particular non-realized character in the past, because we will never be in such a dilemma. The closest analogy would probably be punishing people based on the statistical probability that they have or had a particular moral character, and this kind of action is clearly egregious. The cross-sectional problem of justice may not seem like much of a bullet to bite because we will never need to actually pass judgement in the counter-intuitive way that it describes. However, I have a proposal of an interesting consequence that follows from endorsing non-arbitrariness in the cross-sectional problem.
If we endorse the idea that temporary character traits or dispositions leave enduring stains of blameworthiness on an individual, then it seems to follows that the duration or persistence of temptation-realized character traits is a relevant factor in the meting out of punishment. The primary point that the cross-sectional problem identifies is the question of whether we care about whether an individual’s blameworthiness is based on them possessing a trait now, or that they have ever had the trait. A desire for consistency drives us towards the second because it can be chance that causes one individual to reveal themselves as possessing a particular temptable character. From this it seems to follow that the persistence or duration of such a trait is a relevant factor in its punishment: a person who possesses a particular negative character trait for years seems to be of more blamable character then someone who has the same trait for only a month. Again, this observation is difficult to use in practice, unless we are comparing between crimes. Though it would be near impossible to determine the persistence of a trait withinan individual’s character, it seems much more feasible to me to say that generally or on average traits have different degrees of persistence. A perchance for vandalism could be a generally short-lived trait, while petty theft might be an enduring one. If this were the case, then vandalism would generally express a shorter duration blemish on character than petty theft, which seems to be a relevant consideration for just deserts.
What I’ve aimed to demonstrate with the preceding arguments is that arbitrariness is not avoided by simply punishing people based on their intentions rather than their actions. For the concept of blameworthiness to avoid the accusation of arbitrariness due to circumstantial luck, some conception of deserts being character dependent seems to be required. Once we divorce deserts from actual behaviour, however, we encounter some odd consequences. The first odd consequence is that character based deserts seem to demand that if we learn someone previously had a negative character trait then they justly deserve punishment. The second odd consequence is that the persistence or duration of a trait becomes a relevant factor when determining an individual’s just deserts.
Conclusion
Though I am sympathetic to Feinberg’s goal of reducing arbitrariness in the justice system, I am not convinced that we succeed in doing so by attributing substantive responsibility based on intentions. In this essay I have provided an account of some unusual and counter-intuitive results that seem to follow from adopting Feinberg’s position. My aim has been to demonstrate that his reformist position has significant conceptual obstacles to overcome before I would accept that he has successfully reduced arbitrariness.
Bibliography
Feinberg, Joel. Problems at the Roots of Law: Essays in Legal and Political Theory. Oxford: Oxford Scholarship Online, 2003.
1The Milgram Experiments were a series of famous experiments on obedience. Milgram found that under relatively gentle pressure over 60% of subjects would obey instructions to the point of committing murder.

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