Determinists argue that fault and blame have no place in criminal “justice”. Neuroscientist David Eagleman, for example, made this argument recently in The Atlantic:
The crux of the problem is that it no longer makes sense to ask, “To what extent was it his biology, and to what extent was it him?,” because we now understand that there is no meaningful distinction between a person’s biology and his decision-making. They are inseparable.
While our current style of punishment rests on a bedrock of personal volition and blame, our modern understanding of the brain suggests a different approach. Blameworthiness should be removed from the legal argot. It is a backward-looking concept that demands the impossible task of untangling the hopelessly complex web of genetics and environment that constructs the trajectory of a human life.
Eagleman and other determinists are against punishment but they recognize that incarceration still has a role to play because the public has a right to be safe. Philosopher Saul Smilansky now pounces with a timely paper on determinism and punishment.
It is surely wrong to punish people for something that is not their fault or under their control. (Hard determinists agree with this premise.) But incarceration is a type of punishment so under the hard determinist view, justice
requires that when we incarcerate criminals we must also compensate them to make up for the unjust punishment. Smilansky has a bit of a silly name for punishment with compensation, funishment.
Funishment, however, is very likely to cause a big increase in crime and that is also unjust. Smilansky concludes, therefore, that hard determinists have a problem:
[B]y its nature funishment is a practical reductio of hard determinism: it makes implementing hard determinism impossible to contemplate.
Smilansky has put hard determinists into a corner but I fear that they have a type of escape at least in practice if not in theory–it is the one used by many humanitarians in the past–punish people under the guise or belief that you are really doing them good. The inquisitors surely recognized that it was unjust to torture someone who was controlled by the devil. Nevertheless, if torture is what it takes to get the devil out, then torture is not punishment but treatment…and vice-versa. The record of the psychiatric profession and non-punishing treatment of criminals (and others) is not without blemish.
Eagleman goes to some lengths to distance himself from such conclusions. He says, for example, that
To help a citizen reintegrate into society, the ethical goal is to change him as little as possible while bringing his behavior into line with society’s needs.
The tension, as I see it, is that if free will is a myth then it’s not clear why we should have an ethical goal of changing people as little as possible.