Crime, Punishment, and Complications of Moral Agency

The way that we punish crimes throughout history has changed dramatically, and it might be changing again. It's a sign that we're seeing another shift in how we think of justice, blame, and moral agency on the part of the criminal. 

"Prison is not punishment in Sweden. We get people into better shape." These are the words of Sweden's justice department director-general Nils Oeberg. The new Swedish model is to use prison as an opportunity to dramatically rehabilitate criminals--at higher cost--to help them change their ways and re-enter society. To credit the Swedish system, their reoffense rates have dropped dramatically under the new system, to about 40%--about half of that of other OECD nations. 

While the loss of freedom remains a form of punishment for an offender, the idea behind the system has changed: "the implication in the Swedish model is that sentenced individuals are still primarily regarded as people with needs, to be assisted and helped."

What becomes philosophically interesting is the shift in how the Swedish society sees the offender. Way back in the day, criminals were often treated with little humanity, and societies felt like they deserved misery or torture for their deed. The entire moral agency of their actions was right on their shoulders, and suffering was considered a just outcome for someone that chose willingly to commit an unjust crime. Over time, Western societies have chosen to not use torture or deprivation as forms of punishment, instead using humane-but-unpleasant prison systems. Judges and juries have the right to change their judgments based on the extenuating circumstances in the case.  

Moral agency and discounting

Leo Tolstoy, in War and Peace, describes the "spectrum" of moral agency that emerged during the enlightenment. He said that when we know more about the circumstances behind someone's action, we assign less moral agency to the action. This applied to virtuous deeds, as well as vices. If someone becomes an alcoholic, you might scorn them: but when you find out their parents were alcoholics, that they are poor, in pain, and lost a family member, you are more likely to be sympathetic and remove some of the moral agency.

Similarly, we laud the entrepreneur, but give them less credit when we find out that they grew up wealthy, got a great private education, and had a generous seed fund from their parents for their venture. Each of these people's moral agency gets partially "discounted" as we learn more of their circumstances.

How far does this moral "discounting" go? 

We might say that someone has less moral agency for a vice if they grew up in a very rough environment, or less moral agency for their virtue if they grew up in a very favorable environment. Many people believe, to a large extent, that one's nurture shoulders much of the moral agency for one's actions.

What of genetics? Should someone have the moral agency of their virtues discounted if they are naturally smarter than others? And for vices: most people would probably believe that a mentally ill person has less moral agency for a crime than someone of sound mind, but that's not binary either. If someone is more prone to irrational criminal activity, does that moral discounting apply to them? What if they have genetic predispositions to illnesses such as sadism, narcissism, and sociopathy?

Returning to the Swedish model: do some people deserve punishment for hurting others? Can we consider all of them to be so driven by circumstance--their nature and nurture--that none have moral agency, but are simply people in need of help?

To what extent does the moral discounting of vices force us to apply the same moral discounting to virtuous behavior--whether it's traditional "success" or behaviors that reflect kindness and generosity, or help the world?

In the end, where can we draw the line between someone's external influencers and the decisions that they can be responsible for? If there's no line, does anyone truly deserve to have a different outcome than anyone else, no matter their behavior?

It's a very philosophical question, but an important one. I look forward to everyone's thoughts.

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Erik Fogg

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