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 experimentscome 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.
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.
Feinberg, Joel. Problems at the Roots of Law: Essays in Legal and Political Theory. Oxford: Oxford Scholarship Online, 2003.
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