Should we severely punish the peacable yet violent man?

We can think of character as a tendency to do or not do certain things across a range of circumstances. For example, a peacable character is a character such that its possessor will act aggressively in few circumstances, whereas a person with a violent character will act violently in many circumstances. It may be possible then, albeit rare, for a person with a peacable character to have a history of violence through chance, having faced poor moral luck in the circumstances they’ve found themselves.

I want to think about the limiting case. An almost maximally peaceful person engaging in violence. When you think about circumstances that provoke a peaceful person to violence, you’re probably imagining exceptional circumstances- everyone screaming, cruel provocation, flashing lights, fatigue, all of that. But it is at least conceivable that a peacable person might have- like a key that fits with unfortunate perfection into a lock- a set of exactly wrong circumstances which, while they are outwardly nothing special, would provoke them to violence. We might use the metaphor of a resonating frequency.

Imagine Smith. Smith is more peaceful than 99.9% of people. Only a very small range of circumstances would provoke Smith to violence. This is reflected in his general demeanour, worldview, and blood pressure. However, by some freak chance, the exact wrong set of circumstances arises. As a result, Smith chooses to act violently. I want you to keep in mind two things:

1. Smith is the most gentle person you know. It’s tempting to alter the thought experiment so he has hidden depths of violence in his character. By hypothesis, this is not true, or at least he has no more hidden depths of violence than any other human. You might wonder how you could have compelling evidence that someone who has just done something very violent is actually truly peacable. We’ll stipulate you have this information through magic or super-advanced technology.

2. It’s tempting to insert some kind of extraordinary provocation in the circumstances that made Smith act violently. I want to emphasise that, in this unusual case, the circumstances would have appeared only mildly objectively provocative at most. I also want to emphasise that none of the usual excuses- ignorance, insanity, etc. apply to Smith.

Smith’s act was terrifyingly violent. Someone died or something awful happened that will change lives forever. Perhaps he beat a waiter to death with a golf club because his food was late. Now I want to be clear that there has probably never been, in the whole history of humanity, a case of an extremely gentle person doing something like that without some intervening an obviously mitigating factor - e.g., a brain tumour. But I don’t think it’s logically impossible. In fact, I think there’s at least a chance that it’s actually happened in the real world. Of course, in any given apparent case of this sort of thing, it’s more likely there is bad character we’re just not aware of- but who knows, maybe it has happened.

I am inspired here by my own experience of OCD- or rather, by the experiences of those with OCD similar to mine, but a little different. A common preoccupation in OCD is the thought that what if one day, for no particular reason, I just do something incredibly wicked. To the best of my knowledge, there have been no cases of this happening to someone with OCD. However, I do not think the situation is impossible, just vanishingly unlikely.

So what we have here is an extreme case of bad circumstantial moral luck, combined with the stipulation that the character of the person facing bad circumstantial moral luck is absolutely opposite to the outcome. We have a hard case for both retributivist theories that focus on the act and choice alone (e.g., Moore) and for retributivist theories that focus on longer-term moral standing.

It’s probably relatively uncontroversial that we have the right to impose light punishments on Smith. But do we have the right to impose a severe punishment on him? A punishment that will define his life from that point forward?

Of course, a utilitarian about punishment will say ‘yes, we need to deter this behaviour in the future, and he will be a useful example to others’. Leave that aside. I’m interested in whether the negative or positive retributivist- those who think desert is at least a necessary condition for punishment [excepting perhaps the most extraordinary and grave of circumstances]- can support severe punishments against Smith.

For myself, I think I want to say that no, he shouldn’t be punished. The first reason is that, as a matter of baseline intuition for me, it does not seem like a humane thing to do.

The second reason is that I doubt Smith acts freely. When I discussed this case with the philosopher Michael Moore, he expressed surprise at the metaphor of the lock, especially its passivity. The lock is opened by the key, whereas Smith chooses to act violently. While of course Smith is moved by his environmental circumstances, he still does make a choice, and the metaphor of the lock and key, in Moore’s mind, conceals this. I agree that Smith makes a choice, and I agree it matches what are normally the conditions for the exercise of free will. However, I have doubts that this is a case of free will. While I do not have a complete theory of free will, I do think free will is, in part, the expression of one’s character. Hence, apparently free acts that are not at all expressive of one’s character are not really freely chosen at all even if they meet all the normal requirements.

A final argument against punishing Smith. Bob does something absolutely deplorable. Afterwards, his personality changes utterly to be the kind of person who would never do that- I mean to say that Bob’s personality changes as much as a human being’s personality can change and still have them count as the same person. Should we still punish Bob after this transformation? I think not. But if we would not punish Bob, whose character changed away from its bad features, how much less should we punish Smith, whose character never had those features to begin with? Of course, this argument will only apply to those who share my intuition about Bob- but I think a lot of people do. This is a big part of the reason why, for example, we are reluctant to punish someone harshly a long time after a wrongful act, because we assume their character has likely changed.

Circumstantial moral luck and a dilemma for punishment

Circumstantial moral luck is the kind of moral luck that accrues to us depending on whether the circumstances we find ourselves in tend to encourage wrong or right doing. We have good circumstantial moral luck when our circumstances encourage doing the right thing, and bad circumstantial moral luck when our circumstances make it all too easy to do the wrong thing.

According to an areatic theory of guilt, you are guilty and deserving of punishment to the degree you are a bad person. On the deontic theory of guilt, you are guilty and deserving of punishment to the degree to which you do bad things by your free choice. Michael Moore and Heidi Hurd have argued- quite rightly, I think- that there is something ominously illiberal about areatic punishment. Of course, the practical difficulties in trying to implement areatic punishment would be substantial (though, as almost always in philosophy, we will set these aside). But aretatic punishment does have one major advantage.

Suppose we were to try to remove circumstantial moral luck- that is, we held individuals guilty or innocent in proportion to a kind of average across all possible circumstances, not their actual circumstances. This might seem fair; after all, it amounts to a kind of moral equal opportunity. Of course, such an approach could only be approximated in practice given the difficulty of assessing character, but we’ll leave that aside.

As you’ve already likely picked up, this approach would be exactly the same as an aretaic theory of guilt in practice. A theory of guilt according to which we are guilty in proportion to our character, not our actions, will give exactly the same results as the normal theory of guilt if circumstantial and resultant moral luck are removed. To me, this gives a pretty compelling argument for the areatic approach- at least as an ideal. None of us likes moral luck, and the areatic approach is just what happens without moral luck.

But if punishing on the basis of virtue and vice is unpleasantly illiberal and punishing based on actual deeds is at the mercy of moral luck, what remains? I’m not sure.