Would removing the punitive aspect of punishment be enough to keep things making sense? For example with temporary insanity someone isn't considered deserving of retribution without real fault, but incapacitation and rehabilitation might still be justifiable if there was a risk of reoccurrence. Deterrence seems like it could also still be justifiable, for example if you thought someone could be aware of such a punishment while temporarily insane and less likely to commit murder as a result.
My understanding is the focus on punitive punishment has been higher than average since roughly the 1970s beginning with the war on drugs and is arguably not working very well measured in incarceration rates (US is #6th worldwide) so a shift seems away from culpability seems like it could potentially be a positive change. That being said like you say it's potentially it's own can of worms overcorrecting the other way.
There is a feedback loop and moral hazard, so you need some fixed punishment as deterrent.
If a unique situation not likely to reoccur is an defense for criminal behavior, Then this rule provides the unique situation.
Imagine a rule that rehabilitation is the punishment for a first murder. For a rational person, this is a free pass to commit exactly one murder, because as soon as they do, they have every reason to avoid the 2nd and require no rehabilitation for compliance.
This would fall under the deterrence category no? Assuming free will does not exist the only types of punishment that seem by and large unjustifiable without the capacity to be at fault or culpability are retributive and restitutive punishment, for the same reasons we wouldn't consider it justifiable for someone not of sound mind.
Yes, my example can be framed in terms of deterrence. However, I think punishment can fill many purposes.
Retribution is largely in the eyes of victim, so the need is subjective and depends on their emotional desire for revenge. I'm not convinced that victims will be emotionally satisfied with the explanation of causal chain that goes back to the big bang.
To be honest, I dont really understand how the concept of restitution differs from deterrence and retribution. the cost is a deterrent, and paying it to the victim partially mitigates the desire for revenge.
I posted this elsewhere in this thread, but I think free will is entirely irrelevant to assessments of responsibility, fault, and culpability. Why should it matter if someone is a robot with bad programing, or a puppet animated with a bad spirit. In both case, they a black box which took an action in a given situation.
It seems like the game theory, emotion, and economics around punishment is the same in either case.
Maybe I simply understand the argument/theory why free will is a justification for harsher/additional punishment in the first place.
I think I agree with that, but I'm not sure how it relates to free will and criminal justice.
Do you think that rationality is related or equivalent to free will???
I agree that someone's rationality may impact the efficacy of deterrence and Rehabilitation.
Both irrational and the rational would need reprogramming, just by different means. You would try to convince a rational person that it's in their interest to obey if you can. For an irrational person you'd have to use other means. This is basically how it works today.
Where does consent come into all of this? I understand that there maybe a difference in capacity to understand and consent, but not always. Irrational, for example impulsive people, can still consent. Normally consent isn't required for criminal justice to be carried out.
I’d argue that if someone is not capable of making a rational decision (aka are driven entirely by emotional reactions), and/or impulsive (aka not able to control their emotional impulses), they’re essentially not able to freely make decisions in fact.
They’re being driven by things they have no choice in, and no way to meaningfully actually control.
When that is happening, they don’t actually have free will.
And this is where my original statement around ‘90% of the time free will is a necessary lie we tell ourselves’.
It’s why emotional manipulation (including advertising and propaganda) is so remarkably effective, and why it is so remarkably prevalent. It works - very well - 90% of the time.
And the reason this matters (philosophically), is because someone isn’t actually consenting (in the medical ethical sense [https://en.m.wikipedia.org/wiki/Informed_consent]) if they never had an option to actually make a choice - aka if they have no free will.
In the criminal justice system, that also comes into play with plea bargains, mens rea, sentencing, etc.
It also comes into play with sexual relations. And business. And things like gambling (which we generally excuse by saying ‘they are adults and can make their own decisions’ which presumes actual free will). Depending on who you ask, it comes into play with recreational drugs -or should never apply to recreational drugs.
If people don’t have free will, then all those excuses, rationalizations, justifications, freedom, etc. make no sense.
What actually makes sense in a no-actual-free-will scenario is a state-machine-like series of conditioning/programming responses to produce an expected society and/or individual. At least from a utilitarian perspective.
Which from a philosophical perspective is severely dystopian, if explicitly stated that way, as there is no freedom or actual choice - only fate.
But may legitimately produce more aggregate human happiness. Or more aggregate absolute human misery.
Depending on the goal of the state machine and the actual rules and application in practice.
If I understand correctly you're saying that people having a lack of free will cuts out the legs from the rationale for punishing people if they have not chosen to do something wrong. The five purposes for punishment as I understand it are generally deterrence, incapacitation, rehabilitation, retribution and restitution.
Retribution and restitution as punishments don't seem justifiable without free will or the ability to have mens rea, but punishments for the sake of deterrence, incapacitation and rehabilitation still seem reasonable if free will is assumed to not exist. For example incapacitating someone who is clinically insane and dangerous is already considered reasonable, and not on the grounds that they have using free will chosen to be insane.
My understanding is the focus on punitive punishment has been higher than average since roughly the 1970s beginning with the war on drugs and is arguably not working very well measured in incarceration rates (US is #6th worldwide) so a shift seems away from culpability seems like it could potentially be a positive change. That being said like you say it's potentially it's own can of worms overcorrecting the other way.