The right to punishment

Notes for April 29

Main points

Morris defends four propositions:

  1. There is a right to punishment
  2. It is derived from the right to be treated as a person
  3. The right is inalienable and absolute
  4. The denial of this right implies the denial of all other rights

We talked about the first two; the third and fourth are about the right to be treated as a person in general and so less interesting for our discussion of punishment specifically.

He defends those two propositions by comparing two systems for regulating human behavior: the therapy and punishment systems. He thinks some system for regulating behavior is inevitable and that the punishment system does more to respect the rights of criminals than the therapy system does.

Our discussion

Morris’s argument is that the therapy system does not treat people as responsible for their actions: it treats anti-social behavior as the product of a disorder to be cured rather than something that one can be fully responsible for.

I asked whether the implications of accepting the therapy system would be as broad as he suggested. After all, we currently treat some behavior as the product of disorder. What is being proposed is that all criminal behavior be assimilated with mental illness. That would still leave quite a bit on the other side of the line separating what we cannot be held responsible for from what we can be held responsible for.

In response, Morris might say that the more we push into mental illness, the less we can take credit for. As we lose the ability to take responsibility for bad behavior, how can we take credit for the good behavior, for instance?

We ended with an observation about how we understand and value people. Morris’s argument relies on assuming that making choices is the essential part of being a person. That, notoriously, leaves some human beings out: children and the mentally ill, for example. But, he may say, they are treated differently.

An alternative way of looking at it would treat all human beings as persons. Some persons are capable of choice while others are not. Treating human beings who are not capable of choice like a person involves caring for them. This, I said, is closer to the view you find articulated by the Catholic church.

Lead and crime

Even if we accept Morris’s point, it’s worth bearing the various external causes of criminal behavior in mind.

For instance, I think there is a strong case to be made that the significant surge and then decline in crime during the late twentieth century was due to brain damage: there was lead in gasoline during this period and lead disrupts brain development. After leaded gasoline was phased out, crime went down twenty years later. The evidence is summarized very nicely in an article by Kevin Drum.Drum, Kevin. 2013. “America’s Real Criminal Element: Lead.” Mother Jones (January 3).

Obviously, none of the criminals involved could help that. It’s not clear to me how we reconcile the growing knowledge of the causes of criminal (and non-criminal) behavior with our ideas about personal responsibility and free will. But Morris’s article brings up some of the fundamental decisions we’re going to have to make about how we see ourselves.

Key concepts

  1. The punishment system compared with the therapy system.
  2. Why Morris thinks there is a link between the punishment system and being treated as a person.
This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2013. It was posted May 6, 2013.
Philosophy of Law