Query:

If legislators and judges all accepted the philosophical theory of determinism, what would be the effect on criminal sentencing?  I haven’t found any clear consensus.  Since the subject is heavily debated, could you tell me your view on the philosophical principles which guide or ought to guide legislators and judges?

Reply:

Thank you for your letter.  You’re right that unfortunately, judges and legislators give sharply divided answers to your question.  Traditionally, sentencing depended on such factors as the gravity of the crime (for example, murder is worse that petty shoplifting), on whether the criminal acted intentionally (for example, murder is worse than involuntary manslaughter), on the criminal's ability to control his actions (for example, someone who has been struck in the head may not know what he is doing, but someone who is very, very drunk is at least responsible for having become drunk in the first place), and on whether the criminal knew what he was doing (for example, you would not be held culpable if you had schizophrenia and killed someone because you were hallucinating that he was a dangerous lion).  Certain extenuating factors were also considered.

Most ordinary people still think that approach is correct.  Today, however, some extreme progressives believe that no one is really responsible for what he does, and some speak of abolishing prisons, or even of abolishing all punishment.  This is unreasonable because the fact that our conditions influence us does not abolish free will – an issue on which your question touches.  In fact, even if there were no free will, the prospect of punishment would be one of the influencing factors, wouldn’t it?  I've discussed some of the issues involved — with the emphasis on "some" — in my book review "Explaining Everything." You may also find some interest in my short item "Can Mercy and Justice Embrace?" and my article "Mercy, Yes, but Justice Too."

Another issue is what punishment is for.  Traditionally, the answer was retribution, which means giving the criminal what he deserves.  Retribution is not the same as getting revenge – that’s just emotional satisfaction.  Other factors besides retribution have often been considered too.  For example, the sentence may have been reduced if the criminal was truly penitent and no longer endangered anyone, provided that an unduly light sentence would make a mockery of the victims he had harmed.

Retribution may sometimes be “medicinal” in the sense of making the criminal a better person, but that is not its point.  Its point is that the criminal deserves punishment whether it rehabilitates him or not.  Today, though, some people think so-called rehabilitation should be the only consideration in punishment.  This view leads to some paradoxes.  For example, basing sentencing on rehabilitation alone may seem more humane — but in fact it may be less.  Why?  Because retribution has a limit.  It precludes punishing the criminal more than he deserves.  By contrast, rehabilitation is potentially unlimited.  It has to continue until the wrongdoer is “fixed,” and who knows whether that will ever happen?  This paradox was first discussed by C.S. Lewis in his essay "The Humanitarian Theory of Punishment."

I hope these few remarks shed at least a little light.

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Kerbey Anderson chats with me here on the Point of View podcast, heard on 290 radio outlets, the internet, and shortwave.