I

The collective sigh of relief after the Derek Chauvin guilty verdict says a lot about our conception of justice. In the face of clear evidence that he intentionally and unnecessarily inflicted harm sufficient to kill George Floyd, I suspect most of us hoped he wouldn’t get away with murder. Whatever your stance on police accountability and systemic racism, the malice displayed in the video of Floyd’s death likely triggered the gut-level intuition that, at the very least, Chauvin shouldn’t walk free, and probably deserves significant punishment for taking a life for no good reason. The jury heeded the call for justice, and delivered a fair verdict.

According to philosopher Gregg Caruso’s latest book, Rejecting Retributivism, the belief that Chauvin deserves punishment is mistaken, even if, as Caruso also argues, he shouldn’t go free. Rejecting Retributivism takes aim at our most fundamental, instinctive justification for legal sanctions: that wrongdoers should undergo deprivations and suffering at the hands of the state more or less in proportion to the harm they inflicted. They deserve retribution for their crimes, whatever other aims of punishment might exist, such as public safety, deterrence, and rehabilitation. As Caruso points out, in the US Model Penal Code and in Supreme Court decisions, retribution is cited as a reigning principle of punishment, one that has helped make the US the world’s leading incarcerator, and the among most punitive distributors of just deserts among developed nations. All this, Caruso says, has to stop. What we need, and should create as a matter of collective social responsibility, is a system of criminal justice based on a public health model. We should quarantine (non-punitively segregate) dangerous criminals as we do those with infectious diseases, and seek to prevent crime just as we seek to prevent disease: by addressing its causes.

Many would agree that US criminal justice needs significant reform, for example to ban solitary confinement, the death penalty, and imprisonment for non-violent, victimless crimes such as illicit drug use. But Caruso’s claim that no one deserves punishment, and his further argument that, when compared to his proposal, punishment has no sufficient justification, even outside retribution, will likely find few immediate takers. He is up against human nature: we are hard wired in our retaliatory disposition to pay back in kind those who harm us or our loved ones, who cheat or steal or cut in line, who take unfair advantage by breaking the rules, written or not.[1] Arguing against retributive emotions is always difficult. Are we really to believe wrongdoers shouldn’t be deprived, just as they deprived us; that they don’t deserve pay back? And even if they don’t, how can we function as a stable society if punishment – something intended to hurt in some respect – isn’t a possible consequence to be anticipated when we are tempted to cheat or steal?

Caruso aims to answer such incredulity with a systematic, detailed, and extensively referenced exposition of first, why retributive punishment can’t be justified, despite its strong emotional appeal; second, why non-retributive aims of punishment are also insufficient grounds for inflicting harm on offenders; and third, why a non-punitive public health quarantine model of criminal justice can be justified by the right to self-defense (we can justly segregate those who pose threats) and by the social benefits of taking crime prevention seriously. His arguments are both philosophical and empirical, and proceed from a commitment to the progressive values of minimizing harm, protecting personal liberty and autonomy, and increasing social and economic equity. Maximizing such values affords greater opportunity for individuals, of any and all descriptions, to develop and express capacities central to their flourishing – the positive alternative to crime. The reform of criminal justice therefore becomes an essential step toward increasing social justice for all in service to personal well-being.

The idea of justice as deserved payback is Caruso’s main and most philosophical target since his brief against it hinges on our concept of free will, hotly contested over the ages. Caruso defines free will as the control in action that he thinks is necessary to justify what’s called basic desert moral responsibility: that praise or blame, reward or punishment, are owed you just because you did right or wrong, not because of any future benefit of being rewarded or punished. He argues we should define free will this way because it’s centrally involved in what really, practically matters: how we should treat one another. What justifies the supposition that I deserve to suffer (get my just deserts) for wrongdoing even if such suffering accomplishes nothing in terms of reformation, deterrence, or public safety? The only thing that would justify it, according to Caruso, is if I had ultimate control over my character and desires. But I don’t. Rather, looking back at my life, I’m ultimately the product of environmental and genetic factors that I didn’t choose or control. That’s the rather obvious conclusion following from a naturalistic, science-based, deterministic (cause and effect) understanding of human development.

Why would anyone suppose ultimate control (what I’ve suggested we call “soul control”) is even a possibility? Well, according to research on beliefs about free will and control, it turns out that many, perhaps most folks are (shocker!) not science-based determinists. Instead, they believe (usually not explicitly) that there’s a human capacity for radical self-formation and choice that somehow makes us causal originators in a way that can’t be traced to factors not of our choosing.[2] We are basically little gods: self-caused, uncaused causers. How this works isn’t clear, although indeterminism is often cited as playing a role by the small minority of philosophers who defend libertarian free will, what they call such a capacity. Libertarian free will, we can see, would make us credit- and blameworthy in a very strong sense, a sense that can motivate and justify the retributive intuition: I deeply deserve punishment for wrong-doing because I have the contra-causal capacity to have done otherwise in actual situations, to transcend all their determining factors and make a morally better choice, but I culpably chose not to. You can’t blame my determinants since I transcend them; so I become the sole, deeply deserving originator of action and target of blame. Such desert (deservingness) can be used to justify very harsh treatment.

If indeed this is the psychological dynamic of blame in play, generated by a virtually supernatural folk conception of agency, then we can see why Caruso, joining philosophers such as Derk Pereboom and Bruce Waller, picks ultimate control as the sort of control in action needed to justify just deserts and retribution.[3] It locates the debate about free will, moral responsibility, and punishment squarely within the cultural context of what people actually believe about human agency (see note 2). If folks are mistaken in their libertarianism, as Caruso thinks (and most philosophers and scientists agree), then correcting them – naturalizing their conception of agency – can help remove a spurious justification for retributive punishment. Its defenders must find other grounds.
 

II

After roundly dismissing libertarian freedom/soul control to my satisfaction (indeterminism can’t add to my agential control or responsibility), Caruso then proceeds to argue against free will compatibilism: the proximate, not ultimate, control in action we actually have – something compatible with determinism –  is not sufficient, he says, to justify retribution. Some compatibilists, such as philosophers of law Michael Moore and Stephen Morse, have spent their careers defending retribution, so Caruso has his work cut out for him. But he very much rises to the occasion, mounting a series of arguments designed to show that determinism (even with some randomness added) and the omnipresence of luck in life leave no room for the sort of desert that could justify punishment as a moral good independent of any good consequences.[4] If, as compatibilists claim, the agential capacity underlying desert is being reasons-responsive, thus guidable by the threat of sanctions, how can this justify punishment as deserved when it’s divorced from consequences – the essence of retribution? Here, as throughout the book, Caruso takes on his philosophical opponents at a very high level, so readers will encounter cutting-edge, detailed argumentation, with extensive quotes from all parties to the debate (Caruso has allies in his project, notably Pereboom and Waller, as well as opponents). His rebuttal to retributivism alone, laid out in three chapters – five separate arguments in addition to his free will skepticism[5] – makes this book an important contribution to the literature on legal punishment, one that will put retributivists on notice. They will want to respond, and Moore in particular is a very astute apologist for our retributive inclinations, so stay tuned.

As a long-time opponent of retribution, I find Caruso’s rejection of it pretty convincing (so I’m obviously not to be trusted, please read for yourself).[6] A much bigger lift is his case against punishment tout court, the burden of chapter 5, which critiques consequentialist and mixed justifications (those with a retributive component) for inflicting hard treatment on offenders. According to consequentialists, among the benefits of punishment are deterrence, moral education, expressing social condemnation, affirming the moral equality of victims, and encouraging repentance and reconciliation. Although Caruso does not claim that punishment never deters, reforms, or has other salutary effects, he argues on moral and practical grounds that his system is preferable. Quarantining dangerous criminals in non-punitive conditions until they are deemed safe for release (see below) better respects their human rights and well-being than systems which use punishment of the unlucky to deter others (the deontological “manipulative use" objection to general deterrence). And why, asks Caruso, is it necessary to express condemnation and encourage repentance by inflicting deprivations that often exacerbate disaffection and further damage inmates? Punishment frequently fails to produce the intended good consequences, or does so at the cost of violating our intuitions of fairness and proportionality, e.g., laws that have put “habitual offenders” in prison for life for a minor third offense (a recent example in Mississippi is reported here). And given the rate of recidivism in the US compared to Scandinavian countries with far less punitive criminal justice regimes, it’s not a stretch to say that the US system is criminogenic in flouting basic norms of well-being.

In making the case against punitive consequentialism, Caruso provides an extensively referenced and comprehensive survey of yet more theories of punishment, along with detailed responses to proponents of each view he contests. (He rarely has less than three good reasons, and often more (see note 5), to support or reject the claim in question, reminiscent of Peter Falk playing the dogged detective Columbo: “Excuse me, ma’am, just one more thing…”.)  Whether or not you find all his parries convincing, you’ll learn a great deal about current philosophical justifications for inflicting hard treatment, and be brought up to speed on research describing its often dismal effects. One (more) thing is clear, and it should reassure civil libertarians: the paramount value for Caruso is ensuring that, in protecting society, criminal justice treats persons as ends in themselves, not instruments of the state. This strong deontological commitment to individual liberty and autonomy should head off worries that his alternative to punishment might justify coercive Clockwork Orange-style “treatment” of criminal tendencies.[7]
 

III

Having called retribution and other justifications for punishment into question, in the second half of the book Caruso defends his public health quarantine model of criminal justice, in which it becomes an instrument of social justice. In recent decades, the social determinants of health have become the focus of efforts to prevent and treat physical and mental illness, including addiction.[8] Such determinants – unequal access to nurturing environments, good education, gainful employment, health care, transportation, and social services – help explain class and racial disparities in health. Improving health outcomes thus becomes a matter of reducing the socio-economic inequalities that determine health disparities. Joining other progressives, Caruso wants us to take the same approach to criminal behavior: address the social determinants of crime which, like those of health, are often matters of differential access to decent living conditions and life opportunities. The criminal justice system’s primary mission should therefore shift from punishment to crime prevention, replacing justice as just deserts with justice as equal opportunity for human flourishing. Besides criminal justice reform, he advocates ambitious public policies – economic, educational, legal, health, and environmental – to address socio-economic disparities and other criminogenic factors.  Nevertheless, since crime prevention won’t be perfect, the question remains of what to do with dangerous individuals who break the law.

Of the standard justifications for punishment, Caruso’s quarantine proposal comes closest to incapacitation in service to public safety, but minus punishment per se. It aims not to further damage offenders, but instead, like the Scandinavian model, afford them opportunities for rehabilitation and re-integration, thus minimizing recidivism. Because we have a right to self-defense, we have a right to harm an offender, but on Caruso (and Pereboom’s) “principle of least infringement” the only justifiable harm is that of non-punitive segregation, which necessarily limits liberty. Such harm is thus an unfortunate by-product of maintaining public safety, not anything the offender deserves to undergo or that makes them a mere instrument of the public good. Of course, the prospect of even non-punitive incarceration will deter some crime, but for Caruso this is a serendipitous side-effect of quarantine, not a rationale for punishment. He also recommends ending imprisonment for most victimless, non-violent crimes, given the deleterious effects on inmates, their families and neighborhoods, as well as the cost to taxpayers. The prison-industrial complex would thus shrink dramatically were Caruso in charge, become a lot more humane, and when combined with social justice crime prevention, more cost-effective.

An obvious concern with the quarantine model is how we determine whether a once dangerous offender, as evidenced by a crime, is now safe for release.[9] Caruso points to the periodic reviews of an inmate’s risk status in Norwegian prisons as precedent for this approach, but of course no evaluation can guarantee someone’s harmlessness, and the possibility of indefinite detention looms. However, since among Caruso’s primary concerns is the well-being and rights of detainees, he takes pains to spell out safeguards against abuses, while acknowledging that the most dangerous and incorrigible individuals may well need indefinite detention.[10] This contrasts with the current system, in which older inmates serving life sentences have likely “aged out” of the risk of re-offending, so are languishing in punitive conditions to no good purpose, once we’ve dropped retribution.

Another concern, raised by philosopher Saul Smilanski, is that non-punitive segregation of offenders, such as in some Norwegian prisons, might constitute “funishment,” not punishment, and thus fail to deter crime. In response, Caruso points out that violent offenses and recidivism in Norway have remained very low compared to the US, despite the amenities provided in Nordic prisons. But he also acknowledges that prisons are hardly the only story:

Of course, Norway differs from the United States in a number of salient ways and this may in part account for the differences we see in crime, incarceration, and recidivism rates. Norway, for example, lacks the racial history of the United States. It is also a more egalitarian society with less concentration of wealth at the top, very little poverty, universal healthcare, and more comprehensive government services. These differences, however, simply reinforce the notion that a holistic approach to criminal behavior, like that offered by the public health–quarantine model, needs to deal not only with the treatment and rehabilitation of those we incapacitate but also with social justice – including racism, poverty, wealth inequality, access to healthcare, and the like. (302, fn).

This is to say that incarceration is just one element of any serious approach to crime reduction, and at the very least that element should not itself be criminogenic. Caruso cites various non-punitive, public health-oriented crime reduction programs mounted by countries (notably Scotland) and several US cities as precedents for his proposal, including restorative justice and community service approaches that take victims’ rights into account. But reconfiguring the US system along these lines hinges on rejecting the retributive justification for punishment, which, as Caruso sees it, largely depends on overthrowing our self-conception as ultimately deserving, blameworthy agents. Although a commitment to social justice isn’t a logical entailment of rejecting retribution, seeing that crime is largely socially determined, not a function of an individual’s contra-causal will, obviously strengthens the case for addressing its social determinants. And the project of ameliorating criminogenic social conditions obviously aligns with the progressive, egalitarian values held by many of those seeking criminal justice reform (which include many retributivists and free will libertarians, as Caruso takes care to point out). A more just society will lessen the need for criminal justice as it’s now conceived, and help create the collective psychological, attitudinal space within which to reconceive it.

In a recent book-length dialogue with philosopher Daniel Dennett (see note 4), also a skeptic of libertarian free will and an opponent of retribution, Caruso is challenged to spell out the details of his quarantine model, and explain precisely how doing away with punishment per se works in a realistic proposal for crime prevention. Don’t we need at least some threat of hard treatment, albeit consequentialist and non-retributive, to help people resist their baser impulses, even in a perfectly just society? Rejecting Retributivism expands significantly on Caruso’s response to Dennett, and argues, as described above, that there are viable alternatives to punishment along the lines of the non-punitive programs that progressives have already instituted in some jurisdictions. But despite these precedents, Caruso’s call to de-penalize criminal justice is unlikely to persuade Dennett and other hard-nosed realists about our fallen human nature. Indeed, it’s difficult (at least for me) to imagine a world in which no punishment, such as significant fines and removal of social privileges, is needed to keep potential cheaters at bay (think Bernie Madoff). And quarantine will undoubtedly have to be forced on some individuals. But perhaps we should try harder in this imagining, as Dennett often urges his doubters. Maybe the well-advertised prospect of being quarantined (we now know what that’s like), monitored, performing community service, and making public restitution and apology, when combined with a sufficiently just social order, will eventually render punishment per se obsolete. Such policies will certainly function as deterrents for those with enough to lose, but properly calibrated they won’t further damage and alienate offenders in the name of punishment meted out as just deserts, or as over-zealous, unproven deterrence.[11]

Whether or not the quarantine model is a realistic possibility any time soon, we should certainly aspire to the deontologically motivated social justice Caruso envisions, and take a prevention-oriented, public health approach to the social determinants of criminal behavior. We should creatively imagine and institute a far less punishing, more rehabilitative, and thus less criminogenic system of segregation for dangerous offenders, and institute effective alternatives to incarceration for those not dangerous. Other countries have done this, and such ideas are already present in US mainstream thinking about how to get “smart on crime.”  Contributing to this effort, Caruso’s model challenges us to rethink, from top to bottom, our assumptions about who we fundamentally are, our conceptions of justice, and the justifications for punishment. He’s marshalled an impressive array of arguments and evidence to expand the options for criminal justice reform from a progressive, naturalistic perspective. If we can second guess our retributive instincts as rational guides to goodness, and see that crime is largely a function of social conditions, not free will, we’ll be in a far better position to create a less punitive criminal justice system in the quest for a just society.

 TWC, May 2021

Endnotes