The Neuroscientific Case Against Retributive Justice

Abstract

Retributive Justice is the theory of justice according to which individuals are either rewarded or punished as payback for the moral rights/wrongs they have committed. Consequentialist considerations such as deterrence and prevention do not figure into justifications for treatment from this perspective. This theory also holds that the severity of the punishment ought to be in proportion to the severity of the crime. The central tenant of the retributive model of justice -- namely, that reward/punishment gives people what they deserve -- relies crucially upon the intuition that people are sometimes accountable for their actions in some strong metaphysical sense. In particular, we may intuitively feel justified in holding someone morally responsible if her actions were intentional, rather than accidental or coerced. This common view is captured by what we call the "Principle of Retribution": i.e., the view that it is fair to hold an agent morally responsible, and therefore punish her for her crimes, only if her actions were freely willed, intentional, and uncoerced. It follows from this that unless free will exists for human beings, retributivist justice (at least insofar as human beings are concerned) cannot be justified.We begin by looking back at how theories of retributive justice grew up alongside theories of distributive justice and we describe how those theories have subsequently grown apart. From there we argue that current empirical research in the field of neuroscience casts doubt on the legitimacy of the retributive model of justice insofar as it undermines a particular understanding of free will that appears necessary for its own justification. Much of the recent work on neuroscience's impact on the subject of free will has centered on the work of Benjamin Libet, whose experiments provided evidence that people's actions were initiated by unconscious brain processes that occurred prior to any conscious awareness of decision making on the part of the actor. We argue that the strongest case that neuroscience makes against the type of free will at issue comes not from Libet's work, but rather from more recent studies indicating that human behavior can be predicted with a high degree of accuracy based on unconscious neural processes. Furthermore, the case against the relevant sort of free will is bolstered by extensive research suggesting that much, if not all, of the explanations for human behavior involving conscious causes are no more than confabulations that attempt to put a conscious narrative upon actions that have strictly unconscious origins. Finally, we provide empirical evidence that determinism is -- for all intents and purposes -- the correct position with regard to human cognition, decision making, and choice. We then argue that insofar as retributive justice seems to require that some actions depend on actions that are non-determined, neuroscience suggests that retributive justice is unjustifiable.We conclude by providing insight for revising our thinking about criminal justice and what we owe to those who commit crimes. In particular, we discuss how the common theory of distributive justice -- which remains intact and includes principles guaranteeing individual liberty and equality of opportunity -- gives advice on how we have failed people antecedent to their crimes, and how a person is best dealt with after her crime has been committed.