Gregg D. Caruso - Rejecting Retributivism: Free Will, Punishment, and Criminal Justice

C L A W A N D T H E C O G N I T I V E S C I E N C E S aruso Back copy REJECTING RETRIBUTIVISMREJECTINGRETRIBUTIVISMFree Will, Punishment, Illustration credit: XX and Criminal Justice Gregg D. Caruso Designed by EMC Design Ltd rejecting retributivism Within the criminal justice system, one of the most prominent justifications for legal punishment is retributivism. The retributive justification of legal punishment maintains that wrongdoers are morally responsible for their actions and deserve to be punished in proportion to their wrongdoing. This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. Introducing six distinct reasons for rejecting retributivism, Gregg D. Caruso contends that it is unclear that agents possess the kind of free will and moral responsibility needed to justify this view of punishment.

While a number of alternatives to retributivism exist including consequentialist deterrence, educational, and communicative theories they have ethical problems of their own. Moving beyond existing theories, Caruso presents a new non-retributive approach called the public health-quarantine model. In stark contrast to retributivism, the public health-quarantine model provides a more human, holistic, and effective approach to dealing with criminal behavior. Gregg D. Caruso is Professor of Philosophy at SUNY Corning and Honorary Professor of Philosophy at Macquarie University. He is also the Co-Director of the Justice Without Retribution Network (JWRN) at the University of Aberdeen School of Law.

His research interests include free will, agency, and responsibility, as well as philosophy of mind, cognitive science, neuroethics, moral psychology, criminal law, punishment, and public policy. His books include Just Deserts: Debating Free Will (with Daniel C. Dennett, 2021), Free Will and Consciousness: A Determinist Account of the Illusion of Free Will (2012), Exploring the Illusion of Free Will and Moral Responsibility (2013), Science and Religion: 5 Questions (2014), Neuroexistentialism: Meaning, Morals, and Purpose in the Age of Neuroscience (co-edited with Owen Flanagan), and Free Will Skepticism in Law and Society (co-edited with Elizabeth Shaw and Derk Pereboom). LAW AND THE COGNITIVE SCIENCES Law and the Cognitive Sciences publishes book monographs exploring connections between law and the cognitive sciences. The books will be of interest to academics, students, and practitioners, and in particular to the scholars in the fields of legal theory, philosophy of law, psychology of law, the theory of law and artificial intelligence, general theory of private and criminal law, and evidence. General Editors Bartosz Brozek, Jagiellonian University Jaap Hage, University of Maastricht Francis X.

Shen, University of Minnesota Law School Nicole A. Vincent, University of Technology Sydney Rejecting Retributivism f r e e w i l l , pu n i s h m e n t , a n d c r i m i n a l j u s t i c e GREGG D. CARUSO State University of New York Corning University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi 110025, India 79 Anson Road, #0604/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the Universitys mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108484701 doi: 10.1017/9781108689304 Gregg D. Caruso 2021 This publication is in copyright.

Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2021 A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data names: Caruso, Gregg D., author. title: Rejecting retributivism : free will, punishment, and criminal justice / Gregg D. Caruso, State University of New York Corning Humanities and Social Sciences. | Series: Law and the cognitive sciences | Includes bibliographical references and index. identifiers: lccn 2020046886 | isbn 9781108484701 (hardback) | isbn 9781108723480 (paperback) | isbn 9781108689304 (ebook) subjects: lcsh: Lex talionis. | Punishment Philosophy. | Criminal justice, Administration of Philosophy. | Free will and determinism Philosophy. classification: lcc k5103 .c369 2021 | ddc 345/.077301dc23 LC record available at https://lccn.loc.gov/2020046886 isbn 978-1-108-48470-1 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. classification: lcc k5103 .c369 2021 | ddc 345/.077301dc23 LC record available at https://lccn.loc.gov/2020046886 isbn 978-1-108-48470-1 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

In memory of Louis and Dolores Caruso For Elaini and Maya Contents Acknowledgments page Free Will, Legal Punishment, and Retributivism Free Will Skepticism: Hard Incompatibilism and Hard Luck The Epistemic Argument against Retributivism Additional Reasons for Rejecting Retributivism Consequentialist, Educational, and Mixed Theories of Punishment The Public HealthQuarantine Model I: A Nonretributive Approach to Criminal Behavior The Public HealthQuarantine Model II: The Social Determinants of Health and Criminal Behavior The Public HealthQuarantine Model III: Human Dignity, Victims Rights, Rehabilitation, and Preemptive Incapacitation The Public HealthQuarantine Model IV: Funishment, Deterrence, Evidentiary Standards, and Indefinite Detention References Index vii Acknowledgments The majority of this book was written during a sabbatical from SUNY Corning at the School of Law at the University of Aberdeen in Scotland during the fall semester of 2019. I would like to thank Elizabeth Shaw and Greg Gordon, as well as members of the law school and philosophy department at the University of Aberdeen, for their warm welcome and for providing me with the support and facilities needed to research and write this book. The book benefited greatly from my numerous conversations with Elizabeth Shaw as well as my head-clearing walks in the Scottish countryside and highlands. I would also like to thank Dan and Joy Shaw, John and Margaret Callender, Nigel Dower, Patricia Clarke, J. R. Cameron, Gerard Hough, Beth Lord, Federico Luzzi, Luca Moretti, Stephan Torre, and Dasha Shapovalova for making my stay in Aberdeen a pleasant one.

Because this book builds on previous work, and because it has been a long time in the making, it has benefited enormously from the feedback and comments of numerous people. While I cannot thank them all here, I am especially indebted to the following people for their valuable input over the years: Derk Pereboom, Bruce Waller, Neil Levy, Farah Focquaert, Elizabeth Shaw, Stephen Morris, Michael Corrado, Benjamin Vilhauer, Saul Smilansky, Manuel Vargas, Robert Kane, John Martin Fischer, Eddy Nahmias, Stephen J. Morse, Sofia Jeppsson, Justin Caouett, Katrina Sifferd, Nicole Vincent, John Lemos, Oisin Deery, Ish Haji, Tom Clarke, Joe Campbell, Grace Campbell, Owen Flanagan, Victor Tadros, Paul Russell, Erin Kelly, Michael McKenna, Gunnar Bjornsson, Dana Nelkin, Thomas Nadelhoffer, Marueen Sie, David Shoemaker, Joseph Margulies, Jennifer Chandler, Daniel Dennett, Rob Talisse, Rick Repetti, Bana Bashour, John Callender, Brian Earp, Jim Everett, Azim Shariff, Walter Sinnott-Armstrong, Adrian Raine, Marcus Arvan, Paul Bloom, Taylor Cyr, Patrick Todd, Constantine Sandis, Thomas Douglas, John Tasioulas, Allan McCay, Jeanette Kennett, Richard Menary, Bryce Huebner, Ragina Rini, Kevin Timpe, Matthew Kramer, Chris Surprenant, Christian Coseru, Wesley Buckwalter, Al Mele, Andrei Buckareff, Cory Clarke, Roman Altshuler, Brandon Warmke, Richard Double, David Rosenthal, Rik Peels, viii Acknowledgments ix Bob Hartman, Fritz McDonald, Robyn Repko Waller, Justin Capes, Per Milam, Leigh Vicens, Josh Weisberg, Ophelia Deroy, Travis Timmerman, Nomy Arpaly, Mark Balaguer, Michael Brent, Melissa Snater, Marianne McAllister, Andrea Glenn, Mario De Caro, Thom Books, Mich Ciurria, Josh May, Ken Levy, Helen Steward, Tamler Sommers, David Cummiskey, Matt Stichter, Ben Abelson, Paul Davies, Shaun Nichols, Stephen Kershnar, Alan White, Christian List, Barry Smith, Kristin Mickelson, Paul Noordhof, Michael Robinson, Daniel Speak, Philip Swenson, Ryan Lake, Neal Tognazzini, and Craig Agule. I would also like to thank the audiences at talks at the following colleges for their helpful questions and comments on themes from the book: the University of Oxford, the University of Cambridge, Kings College London, the University of Aberdeen, York University, Gothenburg University, Umea University, the University of Sydney, Macquarie University, Ludwig Maximilian University of Munich, Shandong University, Ghent University, the University of Calgary, Cornell University, Coe College, and the University of Edinburgh. , while primarily new, includes some previous published material drawn from Free Will and Consciousness: A Determinist Account of the Illusion of Free Will, Lanham, MD: Lexington Books (2012); Skepticism about moral respon sibility, Stanford Encyclopedia of Philosophy (2018); and A defense of the luck pincer: Why luck (still) undermines free will and moral responsibility, Journal of Information Ethics 28(1): 5172 (2019). builds on material first introduced in Free will skepticism and criminal behavior: A public healthquar antine model, Southwest Philosophical Review 32(1): 2548 (2016). includes some replies that first appeared in Hard-incompatibilist existentialism: Neuroscience, punishment, and meaning in life (coauthored with Derk Pereboom) in Gregg D. includes some replies that first appeared in Hard-incompatibilist existentialism: Neuroscience, punishment, and meaning in life (coauthored with Derk Pereboom) in Gregg D.