RESPONSIBILITY WITHOUT DESERT
MID-CAREER FELLOW: SEPTEMBER 2013 – AUGUST 2014
The criminal justice system both incorporates and reflects our beliefs about the kind of beings that we are. However, increasingly this system has appeared to think of people in contradictory ways. On the one hand – as in desert based sentencing and the rhetoric of “prison works”- we are choosing beings who are normally responsible for our actions and, because responsible, deserve the good or bad consequences that follow from those actions. On the other – as in sex offender registers and crime prevention orders – we are threats to ourselves or others who have to be monitored, controlled, and incapacitated.
The tension between these pictures of human agency is not restricted to criminal justice. The rise of the language of desert and responsibility has been accompanied by findings in neuroscience that purport to explain human action in ways that seem to bypass responsibility and desert. In psychiatry, similarly, the move is away from categorical diagnoses (disordered or not disordered) towards a dimensional approach (to degrees of disorder).
If we are to understand, and critically evaluate, these developments we have to have an account of the relationship between justice, responsibility, and desert. This project seeks to reconsider that relationship. In particular, the orthodox view is that responsibility in the law is one thing and is insulated from moral and medical ideas, which are quite another. This not only leaves contemporary legal theorists without the resources to do anything other than to condemn recent preventive justice measures, it threatens to introduce an untenable gap between the law and ordinary moral experience. I argue that by tracking the contours of responsibility and desert in our social and legal practices, we can reconstruct the relationship between justice and responsibility in the light of a revised understanding of desert.
The Research Idea
The orthodox view is that institutions of justice exist to ensure that people get what they deserve. That is, desert is established first and our practices of justice “work” if they ensure that desert is translated into outcomes. My view is that desert claims follow the creation of institutions of justice. That is, once we have just institutions that rest on some non-desert basis, then what the system announces it will reward and penalise is what people “deserve”. This approach has been taken in the distributive justice literature, but not in criminal (retributive) justice. It profoundly changes the understanding of the place of responsibility in this sphere. Rather than translating pre-justicial desert claims grounded in responsibility into post-justicial outcomes, desert is irrelevant and the place of responsibility is a construction of the scheme of justice itself. This account of responsible agency, in turn, is a normative commitment of our principles and institutions of justice; a reflection of how we think of one another as persons and citizens.
Once we have this framework, the investigation of how we think of ourselves and others must of necessity have an interdisciplinary focus. It is only by taking seriously the ways in which neuroscience, “neurolaw”, and psychiatry have seeped into our social practices and understandings that we can properly come to terms with those practices.
There are thus two innovative aspects to the project: the conceptual framework and the interdisciplinary approach that comes with that framework.
This project reaches across a number of disciplines. The limitations of the research in each lies mainly in the lack of interdisciplinarity.
In philosophy, there is extensive research in free will and responsibility. However, this research is mainly focussed on the metaphysical question of the possibility of free will. My approach locates responsibility in our social practices. Who is responsible, for what, and to whom, is not only a political and social issue, but on my account is the proper way to understand responsibility given the rejection of pre-justicial desert.
Turning to the criminal law literature, there is an increasing body of current research that is trying to respond to both the rise of preventive justice and the impact of neuroscience. However, this literature is mainly confined to the legal categories of excuse and justification. That is, it mainly works within the orthodox account of legal responsibility.
In psychiatry, the literature on “dangerousness” has developed quickly with the UK Government’s DSPD programme, but mainly in ways that deal with the role of psychiatry and psychiatrists in social control and with the relationship of dangerousness to existing psychiatric diagnoses such as Anti Social Personality Disorder. A separate literature on categorical versus dimensional diagnoses of mental disorders has been stimulated by proposed revisions to fifth iteration of the Diagnostic and Statistical Manual of Mental Disorders.
All of this current research is important and will inform the project, but none of it has the interdisciplinary focus that I am proposing to take.
The real life problems motivating the project are often grouped together under the heading “preventive justice”. That is, Governments of all political persuasions have proposed or enacted legislation designed not to punish those who have committed a completed crime, but to prevent crimes occurring. These policies include Preventive Orders, sex offender registers, and preparatory offences. However, although these are the most obvious of the real life issues, the project begins not only from them, but also from other, equally serious, issues that reveal uncertainty about responsibility. To give two very different examples: first, a series of recent cases has revealed deep uncertainty about the responsibility of so-called “battered women”. On the one hand, a person who deliberately and seemingly voluntarily stabs her sleeping partner, is guilty of murder. On the other, we worry that given certain background circumstances, such a person is not “really” responsible. Second, society has been rocked by offences committed by people with known personality disorders who are neither treatable and so suitable for hospitalisation nor punishable given that they have not (yet) committed an offence. Thus, when Michael Stone murdered Lin and Megan Russell, having been identified as dangerous but falling between the stools of the mental health and prison services, the outraged UK Government launched the Dangerous and Severe Personality Disordered programme.
Orthodox criminal law theory has struggled to respond to these initiatives and cases precisely because – or so I claim – they do not fit the orthodox account of responsibility.
Theory & Evidence Base
The challenge to, and improvement on, existing theory and evidence is implicit in the account of the limitations of existing research.
In empirical terms, there is a great deal of existing research on, for example, risk assessments for dangerousness, the incapacitative effectiveness of preparatory offences, and on public policy interventions such as the ASBO. However, this research has been done within the constraints of existing disciplines (forensic psychiatry, law, criminology, and so on). The evidence it supplies is thus important but limited. To take one example, there is a great deal of research on the predictive accuracy of the Psychopathy Check List. This research helps us to understand whether this tool succeeds in identifying people who belong to a class amongst whom there is an increased risk of violence. Some researchers have gone further and taken this research and asked the interdisciplinary question of whether, given its predictive accuracy, it is a legitimate tool for a liberal state to use in, say, deciding whether or not to allow the early release of a prisoner. My research goes beyond this in asking what it is that we are doing when we even consider that issue and how what we are doing both reflects and informs how we understand ourselves and others. Thus, the innovative challenge is to incorporate existing evidence in a new theory not only of responsibility and desert, but of how we should go about thinking about responsibility and desert.
This is, in the main, a theoretical project concerning responsibility and desert. However, the claim that is essential to the project is that understanding these theoretical terms is only possible if we understand the work that they do for us in our moral, social, and political lives. Put crudely, the philosophical conclusion is that if we want to understand responsibility and desert, we have to look at our practices of holding responsible and the ways in which those practices reflect, and are threatened by, real world developments (for example, in politics, psychiatry and the law). Thus, the link between theory and the empirical field is non-contingent; to theorise in this area simply is to engage critically with empirical findings.
The final outcome of the project will be a monograph, which I hope will be published by Oxford University Press’s Studies in Penal Theory and Philosophy series (I have had initial, positive, discussions with the series editors). In addition, my plan is to disseminate findings at conferences in the UK and the USA. I am also planning to spend time, co-funded by this application and my own department, at the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota. This will allow me to discuss the substantive issues with leading experts in the field, to add an important comparative dimension to the research, and to disseminate the early findings of my research to a distinguished group of US law academics and practitioners. Finally, I have a track record of publishing across disciplines – in politics, law, philosophy and psychiatry – and of “public engagement”, which I plan to continue with this research to ensure that its results gain as wide an audience as possible.
Funding this research will advance the aims of the Independent Social Research Foundation in the following ways:
The project is to support an independent-minded researcher engaged in a revisionist project that challenges the orthodoxies of three disciplines (philosophy, law, and psychiatry);
The project is interdisciplinary at its core. Moreover, this interdisciplinarity is not a contingent feature of the project, but is integral to it;
The interdisciplinary and unorthodox nature of the project makes it unlikely that it will be funded by existing bodies. In the UK, in particular, the drive of successive research assessment exercises and of the Research Councils towards the concentration of funding, has increasingly squeezed out work that does not fit neatly into existing paradigms and disciplinary boundaries;
Finally, the project advances an original research thesis motivated by, and in direct response to, real world social problems.