A suitable mode of thinking when it comes to legal punishment is in terms of functions. What functions are punishments supposed to perform? Let’s restrict this discussion to prison sentences for now, but assume that it applies to other forms of punishment as well. In the literature, four functions are easily distinguishable. The question I’d like to raise is whether these functions can all be performed by the same sort of punishment, or if they come into conflict.

1. The first function is deterrence. A spell in prison is an unpleasant thing. At the very least, presumably, it’s time spent away from your friends and family, from your projects in the world outside. If you care about not being cut of from those things, staying out of prison is a good idea. Of course there are all kinds of questions about how much worse time spent in prison is in relation to your life outside but let’s leave that to a side for now and state this principle: In order to perform the function of deterrence, a punishment need to be in some way or another, unpleasant. Or at least believed to be so.

2. Another function performed by punishment is retribution. The offender have harmed someone, and perhaps harmed society as a whole as well. In order to settle this, some form of harm must be brought to the offender. This is supposed to satisfy some need of the victim, who has a grievance, and the punishment will somehow ”balance the scales”. Again, the punishment, it would seem, need to be in some way unpleasant. Unpleasantness is normally a bad thing, and bad thing distributed to people who commit bad acts, are good things, or justified, or whatever. I should point out that even if you (as I) do not think retribution provides any kind of real reason to impose a punishment, it is clearly one of the functions performed by punishment. If you’re (like I am) critical of it, this means that a policy for punishment that makes it less likely to perform this function is no reason not to implement that policy.

3. A third function is rehabilitation: The offender should benefit from the punishment in the sense improve. Change his/her ways. This function is backed up by reasons of prevention, just like deterrence is, but functions in a slightly different way. The idea is that offenders offends because of some mistaken factual or moral view, because of some mental problem (a very large portion of current inmates have some mental disorder) or lack of skills suitable to make a honest living. Now this function does not require the stay to be unpleasant. Indeed, it would seem that it should not be unpleasant. Or perhaps rather – it should be unpleasant for the criminally inclined features of the agent, but not for the agent as a whole. It should, in lack of a more specific idea to express, be rewarding to improve.

4. The fourth function is simply that of protection. I.e. storage. Keep the offender away from the public for a while, as he/she is proven to be dangerous. This implies nothing about how pleasant the storage facilities should be.

The Conflict

Let’s forget about retribution for know, and concentrate on deterrence and rehabilitation. Both aim to change behavior and to prevent future offenses. But there is this conflict – a deterrent needs to be unpleasant whereas rehabilitation may very well depend on being at least partly pleasant. Perhaps both functions may be performed if we have the idea that something unpleasant can be good for you. The unpleasantness of the stay in prison, then, would presumably drive home the message: don’t do this thing.

Is punishment about learning?

Indeed, it would seem that both deterrence and rehabilitation is about learning, where the latter includes more of positive reinforcement, and the former solely on punishment. Punishment, as we know, is rather effective when it comes to learning people to avoid something very specific (i.e. committing this crime and get caught doing it). It’s terrible at learning people why to avoid that behavior, in a way that generalizes. A sensible criticism of deterrence theories is that it provides offenders and would-be-offenders with the wrong kind of reason. Of course we shouldn’t hurt people, but not because we would be punished if we did. Providing an unpleasant punishment provides offenders with the wrong kind of reason not to reoffend. It’s extrinsic to the behavior we want to stop, which means it’s contingent on the irrelevant risk of getting caught. Rehabilitation, presumably, would concentrate on getting the offender to recognize the actual reasons why they should not harm people.

This function – to drive home the actual message about moral reasons –  should primarily be performed outside of prisons, be taught in schools etc. Punishment, it could then be said, is about providing an additional reason for those who obviously don’t care about others. We know there are people who don’t care about us, and we need them to refrain from hurting us, so we better provide this reason or suffer the consequences. If we can’t ”rehabilitate” offenders, or merely if such offenders exist, this is fair enough. The problem, then, is how to have punishment perform both functions at once. It seems to be a problem that can only be solved if we let punishment depend on individual assessment. Justice, then, should not be blind to the character of the offender.

Two types of deterrence

An additional problem is the fact that the risk of an unpleasant punishment  may be part of the most effective strategy to stop people from offending. But a rather more pleasant rehabilitative strategy would, perhaps, be more effective at stopping offenders from re-offending. Not by deterrence this time, but by making offenders aware of the real reasons, and also to provide them with better options and the skills required to take advantage of these options.

The function of the unpleasant

Is it essential that punishments be unpleasant? I’m not going to rule it out. Threats, implicit and explicits, are common in most forms of education. If you fail an exam, there is the threat of having to take the class all over again. It would be good for you, provided that the class is important, and you would be better off taking the class again than you would be getting away with your ignorance. But maybe you don’t see it that way, and that may very well be part of your motivation to study hard before the exam. It’s the wrong kind of reason, but, with a little luck (educators hope) that reason will eventually bring you to recognize the right reasons. Recidivism rates suggests that this does not work in current prisons. The first part, providing the unpleasant surrounding, might work and some deterrence take place, but the transfer from the wrong to the right kind of reason rarely does.

Who should be in unpleasant prisons?

Threats and punishments are signs of failures. Society has failed to provide the right kind of reasons, and must now cope by providing instrumental ones. If we can learn the right reasons not to hurt one another, we should be taught this by living among others. If we don’t, through no fault of our own, we should not be punished unpleasantly. This is a rather christian principle – if you have not been provided with the proper case for belief in God, Hell is not for you. Heaven isn’t either, not yet anyway, but you won’t burn. This strikes me as a sensible practice. But if we can’t learn, if we’re egoists or psychopaths, if we are people who can only see the point of refraining from a practice if there’s negative on our own well-being, then presumably prison should be an unpleasant place, something to be avoided, and rehabilitation would have no point.

One last point, before I end this (still very open) post. In order to deter, prison should perhaps be believed to be unpleasant. And, if rehabilitation has not worked, offenders should keep that belief when the get out, in order not to re-offend. But there is no reason for prison to actually be unpleasant. If the threat of an unpleasant stay did not stop you, there is no reason to actually give you an unpleasant stay.

One of the main issues debated when it comes to hate crime is about its victim: Who are the victims of hate crimes? This can be taken as an empirical question about the most common victims of hate motivated attacks – a very relevant question that can and probably should drive policy measures – or it can be taken as a conceptual question regarding what counts as a hate crime. There is a widespread belief, for instance, that only minorities can be the victim of a hate crime. But in most legislations being targeted because of religion, for instance, includes being targeted for belonging to the majority religion. It’s just much less common.

Very few countries have an open-ended scope for victim, suggesting that it’s not merely the ”hate” or ”bias” aspect that makes these crimes of special interest. The sort of group that you hate must have some particular feature or history, that makes targeting them a particularly bad idea.

Perception matters

It is, in fact, not the actual group-membership of the victim that counts, but what group the perpetrator believe the victim belongs to. I’m not Jewish, but because of my name and some superficial features, one may perhaps be led to believe that I am, and if one attacks me because of this belief and bias toward Jewish people, I would be the victim of an anti-semitic hate crime. This, of course, makes sense if hate crime focuses on culpability of perpetrator: for all he/she knew, I’m Jewish and attacking me would tend to have the intended consequences of harming me and my group. In fact, the targeted group may still suffer, if they get to know that I was targeted because (mistakenly) believed to belong to them. One notable feature of this arrangement, however, is that I, presumably, would not suffer more because mistakenly being held to be Jewish than if I had been the target of some otherwise motivated crime. So harm-wise, it might be preferable that I be the victim of an anti-semitic attack than that an actual Jewish person is. But, of course, if targeted in such an attack, I would probably not have the typical supporting back-up of the Jewish community, so perhaps I would, in a sense, be worse off. Oh well.

The motive

There’s one further aspect: It’s not enough that the perpetrator believes that the victim belongs to a certain group, that must also be the reason why that victim was chosen. This is of considerable importance, as we shall see below.

Vulnerability/disadvantage

Hate crime legislation was developed in support of certain groups that were very often targeted by bias-motivated crime. Certain ethnic and religious groups and certain groups based on sexual preference were, and still are suffering more than their share of bias motivated attacks, and something had to be done about it. Several things, in fact. But there are two rationales lurking here: 1) These people are being targeted more often, and we need to create incentive for this to decrease. And 2) These people suffer more as a result of being targeted than do other people. This is the ”hate crimes hurt more” account, which I’ve written about before. Both these accounts make room for limiting the ”hate crime” category to certain groups: those that are hurt more by being targeted. This is in line with the harm principle – punishing perpetrators in proportion to the harm they cause, or intend, or risk, to cause.

We may speculate that 2) is true because 1) is true, but let’s focus on 2). This suggest that certain groups are more vulnerable to harm. They may be such, in a sense developed by Wolff and De-Shalit, that their disadvantages cluster: They are not only more likely to be victims of crimes, but also less likely to secure jobs, more likely to be discriminated against, having less access to certain social goods etc. Targeting the vulnerable seems to add to your culpability (even if you could defend yourself by saying that they were already at such an disadvantage, that another attack wouldn’t make things that much worse). Let’s grant this, for the moment, and say that hate crime legislation is in place to protect groups that are at a disadvantage. Minorities often are, but not all minorities. The very rich, for instance, is a minority, but not a vulnerable one. Targeting them would not, on this account, count as a hate crime.

Vulnerability and motive

Now we come to a tricky issue: we’ve said that what’s important in hate crime is 1) Perception of the victims group and 2) Vulnerability of that group and 3) Hate/bias toward that group. If 3) is essential to hate crime, and this should fit into the ”vulnerability-as-prone-to-harm” account, we must show that targeting a group because of membership is worse than targeting them for some other reason. I.e. prone to cause more harm. We are currently not enhancing punishment just for knowingly attacking someone belonging to one of these group, so this seems to be an essential ingredient. The argument is usually that if I’m targeted because of group-membership, that means I and my group live under a constant threat of being targeted again. I won’t evaluate this claim here, but grant it and see what follows. For if this was a tricky issue, the following is even worse:

Vulnerability as perceived by victim

Let’s grant that for most societies, the majority is not at a disadvantage (this may be a conceptual claim, or an empirical one and as such is probably challenged by the 99% movement). So if I’m targeted because of belonging to that group, I’m not suffering any additional harm, and the perpetrator would not have deserved punishment enhancement. Despite fulfilling the other criteria, the ”hate” part, I’m not the victim of a hate crime. I don’t believe muslims, say, are a threat. I don’t think they are taking over the country I live in and intend to bring in Sharia law. But I know that some people do. Most of them are probably just paranoid and misinformed, a lot of them seem to be clear cut racists. These people think that they are under a real threat from muslims. So what happens when one of them is attacked by a muslim because of majority group-membership? Presumably perceived vulnerability matters to the harm experienced by a victim. So, again, attacking me for belonging to the majority would seem to be not as bad as attacking a racist for that same reason. The same sort of insecurity would tend to spread, at least in the racist community, and the harm would be, and should be foreseen to be, considerable.

Should this count as a hate crime? I’m guessing most people would say no. I tend to say ”no”. But this means the vulnerability account needs to be amended in some way. Perhaps the answer is that the attacker only thinks that the victim belongs to the majority, and that at least the majority of the majority does not perceive themselves to be threatened in this way. It’s only if they target the ”vulnerable” group of the majority that they are culpable. But then, of course, we’ve said that they are not targeted because they belong to the vulnerable subgroup of the majority.

I’ve not considered a case where racists are targeted because they are racists, partly because I don’t think many of them perceive themselves as such. But let’s say that a group is targeted because of their racists beliefs, and that the vulnerability-related harm ensues, for the reasons mentioned. Would this count as a hate crime? If you suggests ”no”, there is a further victim based account, and I will deal with it in another post.

Teaser

One reason why hate-fuelled crime against racists would not count as a hate crime might be that their vulnerability is based on mistaken beliefs. But note that the same would seem to hold for at the very least most of religious groups as well. But perhaps it is because victims of hate crimes are supposed to be innocent. I.e. in no way deserving of hate? There is something morally wrong with being a racist, the same moral wrong that other hate crime concepts take as their justification. And hating the immoral might not add to culpability. In fact, some would say that it would be a mitigating, rather than aggravating circumstance. I’ll return to this in a later post.

This is a quick, often unreflected, process and it seems to be quite widespread. But people differ enormously in what type of rationalisations and attributions they tend to make. Some will often blame their own flaws for any negative reaction to a situation, others will blame the food, their company, the climate, or just the nearest person. The process is also often very useful: we need to explain our negative and positive reactions, and we need generalised explanations if we are to make plans for how to live our lives if we are to avoid these unpleasant experiences and make the pleasant ones more frequent.

Now, our emotional reactions are caused by a vast combination of factors. Some we are aware of, or can become aware of, some are welcomed, and some we are reluctant to accept. I like avant garde jazz, but I also very much like the fact that I like it. It’s part of my self-image. This being true, any unpleasant encounter with avant garde jazz tends to be blamed on the circumstances. In fact, even if my last five, or ten encounters would have been unpleasant, I would be unlikely to attribute this to my tastes having changed.

If you are prejudiced against certain people (this based on group or individual characteristics), you are likely to attribute the valence of any negative emotional reaction you have encountering these people to them. If you are unaware of your prejudice, or unaware of that it is a prejudice (perhaps because you are reluctant to accept it), you are likely to try to find some rationalisation of your reaction that correspond to your considered view of what constitutes a proper reason for an emotional reaction.

Discrimination very rarely proceed by someone being ruled out on basis of group membership. All stops pulled apartheid is very rare. Rather, everyday discrimination proceed by people having an averse reaction to a person or situation, and then looking for something that could be treated as an acceptable reason to disfavour that person.

Let’s say I am interviewing people for a position as a research assistant, and one of the applicants is female. Let’s say I’m prejudiced against women, but I don’t think I am. So I have an averse reaction (this is my prejudice being manifested) and I start looking at the applications for a reason why I might have this reaction. And it turns out the female applicant’s typing skills are somewhat worse than the male applicants. ”Ah – typing! Typing is very important for a research assistant”. This is a proper reason, even if it’s not my reason and it’s not a good enough reason to determine who get’s the job.

Prejudices, in other words, often work by making the prejudiced person more likely to find some acceptable reason on the basis of which he/she may discriminate against the target group. This sort of discrimination is probably quite common, but exceedingly hard to prove, especially for the person who exhibit this strategy (very often not knowing it).

The phenomena on which this is built – post hoc rationalisation/explanation, is, as mentioned, a very useful cognitive feature and we wouldn’t want to get rid of it. In fact, generalizations are often very useful, and generalizations and prejudiced are quite clearly related. What we need, of course, is better generalizations, and making sure that this process properly correspond to the reasons we accept. I’m guessing (because the jury is still very much out on what works for prejudice-reduction) that what’s required is that we, contrary to inclination, approach that to which we have averse reactions, to find out more about the proper cause of that reaction, hoping to calibrating our reactions to what actually matters. (This may, for all I know, be what Gordon Allport meant by the ”contact-hypothesis”, btw).

There is a quite obvious and quite relevant issue hidden in the slogan: How does, or should, our approach to crime relate to our understanding of, and approach to, the causes of crime? Presumably our toughness or softness on crime should be modulated on the basis of our perception of the causes in question because clearly, all crimes do not share causal histories and clearly, this matters to how we assign responsibility.

Quite generally, causes are relevant to responsibility and to criminal punishment as punishment is meted out on basis of, and in proportion to, the harm agents cause. A highly valid defense to the allegation of murder is to say that you didn’t cause the person to die. Or, actually, accurately and more precisely: that you didn’t do it. To murder someone is not only to cause the death of another, but to do so while trying to do so.

The most obvious causal component of relevance to responsibility/culpability is the decision. We are condemned for the things we decide to do, and decisions have consequences.  Reasons and considerations are presented to us, or thought up by us, and then we make a decision to act on some of them. We are then held responsible for at least the causal consequences that we had reason to believe would follow. But decisions are not where causal chains end. And while deciding to do something that will cause harm when there is no reasonable amount of compensation is surely blameworthy in it’s most paradigmatic form, it’s not the end of blameworthiness either.

Yet, there are further moral judgments to be made which goes beyond the decision. For instance: what considerations did you act on? How was the case for and against acting presented to you? Was it greed? Was it vengeance? And now the question becomes: can we add to a criminal sentence on the basis of pre-decision causes? We seem to be able to subtract from a sentence on basis of certain causal pre-cursors, such as ignorance or a mental episode. But can we add?

Now to the hate crime context. For theoretical reasons as well as practical ones further down the line, it’s important to distinguish between the reasons for the support of hate crime legislation and the justification of that legislation. My reasons to favor higher taxes may be that I would gain from it in the long run, but that’s not sufficient as justification as tax rates are not in place to satisfy my interests. It does mean, however, that I’m more likely to look for, and find, further reasons for higher taxes.

It’s very likely that support for hate crime legislation is at least in part grounded in the intuition that some pre-decision causes are worse than others. We dislike, and we are right to dislike, prejudices, vengefulness, greed etc. But it is not clear that we should punish on the basis of the moral objectionableness of pre-decision causes. Even when we are somehow responsible for having become bad people, we can’t be punished for being bad people, only for doing what bad people tend to do, and which makes them bad: harm. If there are other justifications, we should identify them. But we should be very clear that our acceptance of those justifications is not wholly founded in our independent, warranted, but legally invalid, moral stance. Or, of course, we must make the case that these pre-decision causes are reasonable grounds for punishment enhancement. Which means much more work.

Two lessons to draw from this:

1)We may maintain that decisions are where culpability starts, but that the picture is more complex then previously recognized. Decisions may be judged as worse not only on the basis of the harm intended, caused or risked, but on the considerations that was deemed sufficient for the decision to be made. To treat a prejudiced view as a decisive reason, then, is worse, for instance, than treating greed as such a reason because it is a worse reasons. Still, we are not punished for this reasons, but for treating it as a decisive reasons. (Leaving, for know, the question whether the cause and/or reason for our accepting this consideration as a (decisive) reason should influence the extent to which we are culpable…)

2) Pre-decision causes are clearly relevant for effective preventive measures. We should concentrate a lot of effort at counteracting them and the most effective means may not be punishment enhancement, or any other means available to the criminal law.

Being ”tough” on causes of crime doesn’t necessarily, or primarily, involve punishing people for having certain beliefs attitudes or dispositions, but effectively counteracting the conditions under which such beliefs, attitudes or dispositions arise.

As far as New Year Resolutions go, this is admittedly a rather weak one, but here goes: I solemnly swear to at least try to lighten this blog up a bit, by posting every now and then on something other than hate crime.

It wont be the next one: that will be on hate crime and the notion of punishing a cause and you will read it and like it and perhaps even beg me to reverse my resolution because you are so very, very fickle, are you not, reader? Reader?

Oh. Right.

‘this the season and all that and whoever is on the non-news part of your state-subsidised radio or television is instantly promoted to the status of National Treasure. And about bloody time.
To be serious for just a minute, though (even though I don’t really want to): on sunday the 25th, swedish radio P1 will broadcast an episode of the soaringly popular program Filosofiska Rummet. This episode features yours truly in conversation with the magnificient police officer and educator Jeanette Larsson and professor of Criminal Law, Per-Ole Träskman. The topic is hate crime, it’s nature and moral status, and the point and justification of hate crime legislation. I may sound like a sceptic on the show, but that’s mostly a group-dynamics kind of thing.

What counts as a hate crime?
Among the first questions you should ask when being introduced to a new category-concept is this: what does it cover? What qualifies as an ”X”? When given a fairly informative definition, you then quickly go on to fringe cases, and ask whether they qualify or not. This technique will make you seem polemic and lacking in seriousness. If you’re a decent philosopher, that’s at least partly true.
We need fringe cases in order to lure out the differences between theoretical models, and also to test the plausibility of these models.

Hate crimes, as we know, invoke a combination of factors, mainly crime, prejudice and the small but very significant and problematic notion of ”because of”. A crime is a hate one when it is committed because of a prejudice against a certain group (membership in which is based on some to-be-determined characteristic important to the victims’s, or somebody’s ”identity).

Now, it’s important to note that committing a crime because of a prejudice against a group, is more narrow than committing a crime because of group membership. I may believe (rightly) that the elderly are less able to catch me, running from the scene of the crime, and therefore target them. According to the so called ”victim selection model” for hate crimes, this might qualify simply because group mebership was part of the reason why I picked out this particular victim. According to the animus-model, it wouldn’t count unless I also held some negative and unfounded views about the elderly and that was part of the motivation for the crime.

The victim selection model allows for cases where the perpetrator has no prejudice, and prejudices in general do not enter the explanation why the crime took place. Semantically, this puts the label ”hate (and bias) crime” in question. But consider a further case:

A person assaults a group of immigrants that have recently moved in to the neighbourhood. The reason is that he/she (rightly) thinks that the arrival of immigrants have lowered the economic value of his/her house, and thus intend to scare them into moving away. Let’s imagine this is the sole reason, and the perpetrator can deny any prejudice by saying that he/she would’ve assaulted anyone whose presence in the neighbourhood had that effect.
What does the animus model say? Well, no animus is present, so this seem not to be a hate crime. The victim selection model, on the other hand, would presumably rule it in.

However: the peculiar feature of this case is that the crime is still committed because of prejudice. It’s just not the prejudice of the perpetrator, but that of the potential byers of property. On one interpretation of the ”because of” clause in the hate crime definition, then, these sorts of crimes would count. In many respects, these crimes seem to be at least as shady, and in some sense cowardly, as crimes committed on the basis of a prejudice that you have yourself. They presumably do as much damage. But should they count as hate crimes?

It depends, you might say (and rightly so), on the proper analysis of the

because of

. It’s just that this analysis depends on the plausibility of what’s included, like the fringe case above. And that in turn depends on the moral foundations of hate crime legislation. A question that, as reader of this blog may have noticed, is far from settled.

This isn’t really a review, is it? I guess not. You may be sick and tired of Big City Novels where Clever but Somehow Aloof  Young Man walks about making Clever and Profound Observations. And that’s mainly what ”Open City” is. But that’s only the format. You may be sick and tired of 60- 150 White People  playing Notated Music by Dead White Men on Old-fashioned Instruments, too, yet you shouldn’t really rule out Symphonies as something that might be worthwhile, should you?

The key difference, it is claimed, is that Hate Crimes require a ”base offence”. This means that in order for a Hate Crime to exist, there must be an act that would be criminal even absent the hate motive. But in the case of Hate Speech, it is said, there wouldn’t be an offence absent the motive or content.

There is a clear weakness in this argument, and it depends on the conflation of hate motive and hate content. I can express a hateful view without actually harboring the hate expressed. Linguistic content is not a relation between my internal state and the words I use, but between linguistic conventions/functions and the words I use. If Hate Speech is a crime based on content, it is a crime that can be committed with any motive. This means that there is a ”base offence”, independent of hate/bias motive, which can then be turned into a Hate Crime, if such motives are present.

This does not mean that all states with hate crime laws should start punishing hate speech acts. It only means that what acts can be a hate crime depends on what acts are criminal in the state in question. If speech based on content is such a crime, there is no theoretical hurdle to stop it from being a Hate Crime.

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:

Instead of debating culpability, we should focus on what to do, moving forward, with an accused lawbreaker. I suggest that the legal system has to become forward-looking, primarily because it can no longer hope to do otherwise. As science complicates the question of culpability, our legal and social policy will need to shift toward a different set of questions: How is a person likely to behave in the future? Are criminal actions likely to be repeated? Can this person be helped toward pro-social behavior? How can incentives be realistically structured to deter crime?

The important change will be in the way we respond to the vast range of criminal acts. Biological explanation will not exculpate criminals; we will still remove from the streets lawbreakers who prove overaggressive, underempathetic, and poor at controlling their impulses. Consider, for example, that the majority of known serial killers were abused as children. Does this make them less blameworthy? Who cares? It’s the wrong question. The knowledge that they were abused encourages us to support social programs to prevent child abuse, but it does nothing to change the way we deal with the particular serial murderer standing in front of the bench. We still need to keep him off the streets, irrespective of his past misfortunes. The child abuse cannot serve as an excuse to let him go; the judge must keep society safe.

Those who break social contracts need to be confined, but in this framework, the future is more important than the past. Deeper biological insight into behavior will foster a better understanding of recidivism—and this offers a basis for empirically based sentencing. Some people will need to be taken off the streets for a longer time (even a lifetime), because their likelihood of reoffense is high; others, because of differences in neural constitution, are less likely to recidivate, and so can be released sooner.

Adding that the type of punishment need to be customized to criminals to ensure effective rehabilitation and make reoffending less likely, this sounds like a wise, positive and humanistic suggestion. The punishment might also be customized to serve other functions, such as the victim’s (legitimate – important limitation, mind) coping-process. Butncouldn’t this argument be used to justify punishing people who have not yet committed a crime?

Conceptually, ”punishment” is ”punishment for” and thus some amount of backward-looking seem to be necessarily involved. While we might want to lock up/rehabilitate dangerous people before they commit any crime, it would hardly qualify as ”punishment”. But Eaglemans point, as I take it, is that this feature is only contingently important to what we want to do: prevent crime and rehabilitate (would-be) offenders. It is contingently important because the best predictor of future crime is crimes committed in the past.

There is an obvious objection here: ”punishing” people for the disposition to commit crime is unfair and uncanny. The risks are too great and the public wouldn’t stand for it. Both are real concerns. Even if we would prevent crime to an extent that far exceeds the harm done by locking up would-be innocents, it is not worth it. (The state Punishing an innocent is assignedov greater negative value than a criminal harming an innocent, say). And what the public feels about the legal system speaks to Rule of Law: it would counter-act the pro-social function. But perhaps enough evidence undermining our traditional notion of responsibility would change this reaction.

If situationist psychology is roughly right, most of us are ”disposed” to do anything, given the right triggers. All of us are potentially dangerous, but some are more so in the kind of situation they are likely to encounter. But this means that (actual) criminals can argue that punishing them, and not the would-be’s is unfair. After all, the fact that their triggers happened to occur was no fault of theirs.

The traditional picture of agency and responsibility on which traditional criminal law (traditionally portrayed as blind, mind) is constantly being challenged from incoming evidence. Equality before the Law should not be understood as all being treated equally, but as all equally situated being treated equally. The ”evidence”, and the ”science” on which the proposed shift is based, Eagleman admits, is still very much in its infancy and immense difficulties remain to be addressed. But then again, the currents rate of re-offending suggest that not taking these considerations into account isn’t working that well. Replacing the simplified mens-rea model of culpability with a more naturalistic picture of the offenders psychology would be a great place to start.