Future-oriented and customized punishment

Legal punishment is normally justified by appeal to Wrongdoing (the criminal act) and Culpability (”the guilty mind”). These are features focusing on the perpetrator, which makes sense as it is he (nearly always a ”he”) who will carry the burden of the punishment. We want to make sure that the punishment is deserved.

But it is also typically justified by appeal to societial well-being. To protect citizens from harm, to promote the sense of safety, to reinforce certain values, to prevent crime by threatening to punish, to rehabilitate or at least contain the dangerous. According to so-called ”Hybrid” theories, punishment is justified when these functions are served, but only when it befalls the guilty, and in proportion to their guilt (this being a function of wrongdoing and culpability). Responsibility/culpability constrain the utilitarian function. Desert-based justification is backward-looking, while the utilitarian, pro-social justification is forward-looking. (Arguably, the pro-social function is dependent on the perceived adherence to the responsibility-constraint.)

Neuroscientist and total media-presence David Eagleman had a very interesting article in The Atlantic a while ago, pointing out that revealing the neural mechanisms behind certain crimes tends to weaken our confidence in assigning culpability. Rather than removing the justification for punishment, Eagleman suggests that we move on from that question:

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You don’t really care for music, do you?

One of the topics that interests me concerning psychopathy is the relationship between the near absence of moral values and the possibility of presence of other values, like aestethic ones. One of the main charachteristics of psychopaths is ”shallow emotions”, but shallow emotions is clearly emotions to, and might be sufficient to develop at least the beginnings of a value system. The difficulties they have with emotional learning, however, suggests that these value systems may lack some features that we find in the normal population (whether constancy or flexibility, presumably qualified as being of the ”right kind”. These will turn out to be tricky matters to cash out without normative terms). Further investigations into these issues should be revealing both concerning the nature of psychopathy and the relation between moral and other values.

It also got me thinking about ”local” psychopathy. I have at least some situationist leanings and wouldn’t rule out the possibility that most people might be psychopathic under certain circumstances. While drunk, say, or while under stress.
If psychopathy is a distinctively moral affliction, could one be a local psychopath with regard to some other set of values? Could tone deaf people be described as ”musical psychopaths”? I. e. they can identify good music and even derive some pleasure from it, but still they’re not quite getting it, and they cant predict or join in in the same almost intuitive sense that musical people can. I believe the analogy could be informative, in particular with regard to the distinction between genetic, psychological and environmental factors in shaping the relevant abilities.