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Friday, April 27, 2018

Why Moral Risk Presents a Challenge to Retributivist Punishment

As we grow up, it really feels like we make choices as first movers. It feels like I decided to drink coffee this morning in a way that was not simply the result of atoms crashing into each other in ways determined long before my birth (or determined by physical laws and random subatomic behavior). But rather than make an argument here about free will directly, I instead ask how confident you are that we have free will. Keeping in mind that no one has defended free will to widespread satisfaction over the last several hundred years, it seems hubristic to believe in free will with very high levels of confidence. Consider then your percent confidence that we have free will and make a little note to yourself about it. 

Now assume that we really do have the sort of free will that can generate moral responsibility. How confident are you that we ought to respond to moral wrongdoing by punishing/making wrongdoers suffer? Is it not possible that harming someone who harms others fails to improve the situation? Is it not possible that our urges to make wrongdoers suffers are misdirected, just like many other urges that we learn to control? Consider your confidence, then, assuming that we have free will, that wrongdoers deserve to be punished/suffer for their wrongdoing and write it down.

When we punish, we mostly only consider offenders' recent criminal deeds for which they stand formally accused. We give relatively little consideration to what they deserve across their entire lives. Some people may have suffered so much, one might think, that additional suffering only pushes their situations further from what they deserve rather than closer. Or, they may have done so many good deeds that we would more accurately give them what they deserve by not punishing them than by punishing them. Would it be better to consider what people deserve by considering their whole lives rather than just their criminal history? Taking the propositions in the prior paragraphs as given, note your confidence that it is possible and sufficiently practical to assess the relevant background history of a defendant’s deeds and life circumstances in order to assess what he deserves. 

In order to punish under a relatively pure version of retributivism, you need to believe all three of these propositions (i.e., that people can be morally responsible, they deserve punishment/suffering for their wrongdoing, and we have the right data to measure desert). So we can express your confidence in the conjunction by multiplying (because I asked you to consider the probabilities conditioned on the truth of prior propositions). If you were relatively confident in each proposition, say 90% confident, your maximum confidence in the conjunction is .9 *.9 *.9 = 73%. Is that good enough to punish someone? Well, if forensic evidence yielded 73% confidence that a defendant committed some crime, would that be high enough to convict and punish? No need to decide yet. In Punishment and Moral Risk, I walk through nine propositions that one must believe to retributively punish a particular offender. As you can imagine, if you're realistic in your estimates, confidence in the conjunction drops rather quickly.

But how confident must retributivists be that punishment is justified?  If they're less than 50% confident, then they believe it more likely the person does not deserve retributive punishment than that he does. But a 50% requirement seems far too low. Most retributivists believe in the beyond-a-reasonable-doubt (BARD) standard. The values underlying that standard seem to reflect the view that it is far worse to punish someone who ought not be punished than fail to punish someone who ought to be. So, though I can't give you an exact number, the values underlying retributivist commitment to BARD suggest retributivists should be rather demanding in their overall confidence that a person deserves to be punished. I claim that, given reasonable ways of filling in the nine propositions I offer, retributivists (of relatively pure varieties) will generally lack sufficient confidence to actually punish a particular offender.

I'm pleased to report that the Illinois Law Review will be publishing an online symposium early next week that responds to the claims I make in the paper. More about that and the five contributors to it next week when the symposium is published!

P.S. Last week, I wrote a post on the "bumpiness" of criminal attempts which took issue with some of Doron Teichman's claims on the subject. I thank him for his thoughtful reply in the comments to that post. 

Posted by Adam Kolber on April 27, 2018 at 06:20 AM | Permalink


Interesting posts Adam . Surly we won't accomplish here nothing almost . Just about some myths or complications concerning that notion of " free will " :

First , we can illustrate what is the " free will" , by , conclusively , illustrating , what it is not . The legal field would be very efficient indeed :

If a person or suspect , has confessed ,something perpetrated ( or not ) by him ,and the confession , has been obtained by tortures , then , his confession hasn't been given by his free will ( surly if from the start , opposing any confess , and latter has been confessed ) . Also :

If a person , has reached a decision ,but he has been bad informed of the underlying facts or consequences of it , then , one should argue , that , not reached by " free will " .

So , we can conclude : a decision made due to : coercion or being based upon incomplete information , is contradicting the positive notion of " free will ".

Another secondary concept , is the " insane " one . That is to say , that a person , is mentally ill , has flawed volition , and whatsoever , with or without coercion or bad or relevant information , it won't do !! A judge or psychologist would doubt his mental capacity whatsoever to make his mind up and decide .

So , by that , we could conclude what is free will indeed .And it is sufficient in fact . Yet :

There is that myth ,that since atoms , and sub atoms are involved , we are not really sure , whether it is " quantumlly " determined or not . This is a senseless myth :

The atoms , are only the components of the system , they are the objects , not the decision itself . It would be like arguing that the wheels of a car , is the car , and they are what drives it . Once , the human being ( up to that day in fact ) was sure , the soul is basically detached from the physic of the body . But it is not !! But the idea that it is detached , gave finally excessive importance to the physic all of a sudden , attributing physics to free will so . How shall we prove it :

Very simply , a person can reach an arbitrary decision , not related to : " yes " or : " not " or main options given . Such possibility , proves clearly that even if atoms are involved , they are not the decision itself , and it is not as such , determined in advance .


Posted by: El roam | Apr 27, 2018 7:51:00 AM

Just correction :

Should be : opposing any confession , and not " opposing any confess " of course .


Posted by: El roam | Apr 27, 2018 7:55:20 AM

This is several fallacies wrapped together.

Firstly, any proposition P can be broken down into an arbitrary number of sub-propositions P1, P2. Arguing that each P(i) has some small level of doubt, and therefore the conjunction is unlikely, is fallacious because you can also break down ~P in the exact same way. Critically, your levels of uncertainty about P(i) are not empirically drawn, they're arbitrary.

For example, how confident are you that each of your nine propositions is truly necessary? Even if you're 90% confident about each one...

Second, action A could be just even if proposition P is false. Justice(A) = P * Justice(A|P) + ~P * Justice (A|~P), and you are neglecting the second term. If your argument succeeds, all it can do is make people less confident of retributivist theories of justice, they cannot possibly make "pure retributivists" less confident about punishing offenders, precisely because those people are no longer pure retributivists!

For example, they might now become more confident about punishing offenders, on the grounds that the moral constraints on punishing people are far looser if retributivism is false.

Third, you're relying pretty heavily on stolen concepts. Should I reply that I'm fated to believe in retributivism?

Posted by: Salem Al-Damluji | Apr 27, 2018 8:05:11 AM

Just clarification :

Should be psychiatrist and not " psychologist " for only the former , is legally ( typically ) authorized to decide or determine the medical and legal state of a mental state of a person , or , sick person .


Posted by: El roam | Apr 27, 2018 8:13:51 AM

"When we punish, we mostly only consider offenders' recent criminal deeds for which they stand formally accused. We give relatively little consideration to what they deserve across their entire lives."

What's the basis for this claim? For the most egregious crimes (i.e., intentional homicide), this is likely true. However, I've probably reviewed thousands of sentencing transcripts, and this claim does not seem particularly valid overall. For "lesser" offenses, offenders get reduced or stayed sentences all the time based on their personal histories. This is particularly true for rapes and sexual assaults committed by otherwise "good" men.

Posted by: Anon | Apr 27, 2018 9:08:25 AM

I'm curious about the claim made above that Adam is "relying pretty heavily on stolen concepts." What, precisely, does that mean? Which concepts were "stolen?" I've always understood concepts to be, as we say, free for the taking. I trust you can explain why that is not the case.

Posted by: Patrick S. O'Donnell | Apr 27, 2018 9:20:41 AM

Salem: On your first point, you're right that we ought not come up with an arbitrarily high number of propositions and overestimate their uncertainty. I don't believe that I did so. One way to discipline the process, following your implicit suggestion, is to do the same thing for the negation of the proposition and compare it to the estimate for the proposition itself. In any event, none of this demonstrates a fallacy.

On your second point, I don't aim to prove that punishment is unjustified. You're right: I aim to show that pure(ish) retributivism demands a higher level of confidence than reasonable retributivists are likely to have if they think about these matters consistent with their commitment to BARD. I do think it makes them less confident in the justification of punishment at least temporarily if it leads them to doubt the justification that they have been subscribing to. You're right, though, that they might change their minds and adopt a different approach: that's exactly consistent with the goals of the paper, and indeed, the latter part of the paper describes some strategies roughly along these lines.

On your third point, I didn't footnote the blog post, but you'll find detailed citations in the article itself. It's a big world out there, though, so if I missed something in the article, please let me know.

Posted by: Adam Kolber | Apr 27, 2018 9:49:27 AM

Anon: The blog post does not do justice to the topic, so you're right to question this portion of it. I'll say a little more about it here, but I'm sure I won't do justice here either (though I do have a draft paper on the topic that will do a better job.) The short version that will lack many details and qualifications-->

Many retributivists believe that suffering should be proportional to moral wrongdoing. If that's so, we should arguably take a "whole life" approach to retributivism that looks at all the good and bad deeds a person has done and all the well-being and suffering he has experienced. This would be extremely difficult to do in real life. In addition, imagine a person is erroneously accused of a crime and spends a year in prison for it. Upon release, he commits the very same crime he was accused of and we discover that his prior prison incarceration was based on erroneous information. Does he now deserve a year in prison for the crime he really did commit? On the whole life view, I think not.

But in the real-world, I believe this wouldn't fly. He'd still do time, even if he doesn't deserve it from a whole life perspective. Most retributivists probably take something closer to what I call a "time slice" view that focuses on the recent crime for which a person is accused--and then allows factors like the defendant's prior good deeds and suffering to inform whether *that crime* warrants punishment and how much it warrants. Some of the judges you mention may be doing this. I think fewer are engaging in a full "whole life" analysis.

So, the whole life approach is extraordinarily impractical (defendants themselves may not know their suffering as young children) and it may have some odd implications. On the other hand, an approach that ignores non-legal suffering and morally good deeds can be challenged as well. If we're trying to give people what they deserve, what justifies limiting the analysis to things the legislature happens to deem a crime.

Now, there's a lot more that can be said about this. My goal in the post and even the paper is not to resolve the matter but to say this: if you pick the wrong perspective, there's a good chance you're going to be inaccurately punishing people (and often overpunishing them). So it's meant to cast doubt on retributivists who cannot be entirely agnostic on which perspective to use.

You make a good point, of course, that judges vary in how they sentence, especially in situations where they have substantial discretion, and they also vary on where they fall (to the extent they are retributivists) along the spectrum from "whole life" retributivism to what I call "time slice" retributivism. Thanks for your comment!

Posted by: Adam Kolber | Apr 27, 2018 10:08:47 AM

I've always understood concepts to be, as we say, free for the taking. I trust you can explain why that is not the case.

Concepts aren't available to you if you deny their validity (or premises). For example, it's a fallacy to say "'Truth is meaningless' is true" (unless you are equivocating on the word).

See e.g. https://www.logicallyfallacious.com/tools/lp/Bo/LogicalFallacies/168/Stolen-Concept-Fallacy

The most obviously stolen concepts here are free will - as Zeno said, if the criminal lacks free will, so does the judge - and the Beyond A Reasonable Doubt standard - now we've taken away the basis on which we chose it as a heuristic, we can't wheel it out in the finale.

Posted by: Salem Al-Damluji | Apr 27, 2018 1:40:11 PM

Salem Al-Damluji ,

You claim that :

" if the criminal lacks free will, so does the judge"

Well , the judge typically , wouldn't lack free will , that is because of the very fact , that he would suppress the evidence , if obtained by torture for example , or other reason indicating lack of free will ( or at least , substantial manifestation of it ). That is a basic concept in law or criminal justice .

However , a judge typically ,can't lack free will . That is because , his basic job , is to prevail , while lacking free will , as we theoretically perceive it . And why ??

This is because , his " raison d'etre " is to prevail while lacking many times , the complete evidences or data or givens . A judge paradoxically , doesn't seek the truth .But , to prevail , in light of incomplete evidences ,or , while lacking the capacity , to really establish the truth. So , he needs yet to prevail . But , since he is a judge , and smarter than an average person or scholar , he can deal with it . He is well trained to deal with it . He doesn't face typically , a harsh choice of one – off , and that's it .For him it is a routine .

Moreover , he has always the choice , to prevail or err on that side , over the other side . And that's it !!

So , nothing here has been stolen , or whatsoever …. This is basic and well establish daily routine or occurrences .


Posted by: El roam | Apr 27, 2018 2:55:27 PM

Salem Al-Damluji,

That strikes me as relying on an odd or strange definition of what it means to steal something: one can discuss or analyze concepts that one might not subscribe to or believe in, there's nothing proprietary in so doing. That a particular use of a concept is fallacious is still about that concept (now used in the wrong way or misunderstood), it's the fallacious use or misunderstanding (what have you) that is the problem. If one misuses a concept, it's the misuse that is the problem, one hasn't stolen anything. In short, the notion of "ownership" when it comes to concepts strikes me as misplaced. Errors in reasoning or mistakes in formal or informal logic are just that, it has nothing whatsoever to do with a proprietary notion or employment (or violation thereof) of concepts (when someone makes reference to being 'entitled' or not to make an inference or a logical move, it's in reference to whether or not one is warranted or justified in so doing, a proprietary sense or meaning is irrelevant as one is not taking or stealing something that belongs to another person).

Posted by: Patrick S. O'Donnell | Apr 27, 2018 3:22:44 PM

Patrick: I didn't name the fallacy. No-one is saying that committing the stolen concept fallacy literally makes you a thief, any more than the masked man fallacy makes you in disguise.

Adam: Strikes me that at least as much scepticism should attach to BARD as anything else. Retributivism undaunted.

Posted by: Salem Al-Damluji | Apr 27, 2018 4:24:14 PM

No, you didn't name it, but Ayn Rand did, and that in itself could be said to account for its mischievous or rather odd use: it would behoove us to change the name to something more eminently or accurately descriptive (I'm not the first person to find it troubling).

Posted by: Patrick S. O'Donnell | Apr 27, 2018 4:43:22 PM

Patrick S. O'Donnell ,

Legally , it is called : " fair use " concept or doctrine ( in copyrights laws or intellectual properties laws , it is in fact , a Universal concept ) . You can read here in Wikipedia further :



Posted by: El roam | Apr 27, 2018 5:00:14 PM

Another concept , is that doctrine , that an abstract idea , is not protected , but only the expression of it ….. Maybe later , I shall refer it to you further ….


Posted by: El roam | Apr 27, 2018 5:03:27 PM

El roam: Say what? You've shifted the terms of the discussion in the direction of irrelevance: the fallacy, earlier identified, such as it is, has nothing whatsoever to do with the legal concept/doctrine of intellectual property (fallacy of misplaced concreteness?), even it reeks of something with family resemblance to it! Perhaps I don't understand the point you're attempting to make.

Posted by: Patrick S. O'Donnell | Apr 27, 2018 5:17:58 PM

erratum: "even if it reeks..."

Posted by: Patrick S. O'Donnell | Apr 27, 2018 5:28:17 PM

Patrick S. O'Donnell ,

In case you need more concrete refreshment , here I quote your comment above ( one of ….) here :

I'm curious about the claim made above that Adam is "relying pretty heavily on stolen concepts." What, precisely, does that mean? Which concepts were "stolen?" I've always understood concepts to be, as we say, free for the taking..

End of quotation :

Now , let's divide it to the " relevant " parts :

First , you have dealt with " stolen concepts " . Those concepts are ideas , abstract ideas by nature . Then you have claimed , that you have always understood , that they are " free for the taking " . Finally , you were bothered , by the idea that that there is no precise naming for it , or well established doctrine conceptualizing it . As such :

I was offering you , the doctrine of " fair use " .That doctrine suggests , that in such cases , infringement of ideas or creations , is not considered as " Thefts " , but " fair use" . Why ?? because , it is serving the public interest of spreading novel and new ideas or concepts for the benefit of the public interest .

It looks like pretty useful thing , right ?? Because if something is stolen from somebody , and he would complaint , and sue the " thief " . The defense at the court , would or may be :

" Fair use "

Now , what part has gone missing ? the scotch or the rocks ? I don't get it !

Thanks indeed …..

Posted by: El roam | Apr 27, 2018 5:57:54 PM

It seems I now need a scotch-on-the-rocks.

Posted by: Patrick S. O'Donnell | Apr 27, 2018 6:04:02 PM

Definitely Patrick , you need a hell of one . Just get a grip , and you'll be fine , just fine ....It is just a slight vertigo , and it will be over , say Amen , and that's it .

Posted by: El roam | Apr 27, 2018 6:29:34 PM

Just illustration of the legal meaning ( and general meaning ) of " free will " as illustrated above by me . Hereby , article 12 to the " Evidence Ordinance [New Version], 1971" of the Israeli state ( common law ) , here :

12. Confession

12. (A) Evidence of confession by the accused that he has committed an offense is admissible only when the prosecution has produced evidence as to the circumstances in which it was made and the court is satisfied that it was free and voluntary.

End of quotation :

So we read clearly : the confession , can be considered as " free and voluntary " and admissible as such , only if the prosecution has provided evidence as to the circumstances by which it has been given or obtained . So , the burden of proof , on the prosecution .

One may read the ordinance , here :



Posted by: El roam | Apr 28, 2018 2:21:01 PM

That senseless debate here , concerning all sorts of misuses and fallacies of all kinds , may be redeemed ( at least to some extent ) by reading the relevant provisions of the :

" copyright law of the United states "

There to read the definition of " Literary works " and the :

" §106a • Rights of certain authors to attribution and integrity "
Some here may be , seriously relieved right after ( although would be far from being really exhausted ) .

Here :


Posted by: El roam | Apr 28, 2018 2:22:19 PM

El roam,

Your provocations were successful, so please pay close attention: intellectual property ideas and rights (including copyright law), in other words, legal doctrines and concepts, are irrelevant to understanding what was intended by the claim up-thread that Adam relied on a “logical fallacy” or notion of a “stolen concept” (which was not clear at first, hence my initial query and comments). In brief, this has nothing whatsoever to do with “fair use doctrine” or “copyright law.” This has to do rather with a variation on the theme (‘indirect’ rather than ‘direct’) of “self-denying statements” as a logical fallacy (a problem or paradox that can arise in self-reference). And as you appear fond of Wikipedia, the following account can suffice by way of a brief introduction:

Indirectly self-denying statements or “fallacy of the stolen concept”

“Objectivists [after Ayn Rand] define the fallacy of the stolen concept: the act of using a concept while ignoring, contradicting or denying the validity of the concepts on which it logically and genetically depends. An [alleged or putative] example of the stolen concept fallacy is anarchist Pierre-Joseph Proudhon’s statement, ‘All property is theft’ [apparently this example arose from someone who did not take the trouble to study Proudhon’s argument in detail which, entails, at minimum, the principle of charity].

While discussing the hierarchical nature of knowledge, Nathaniel Branden states, ‘Theft’ is a concept that logically and genetically depends on the antecedent concept of ‘rightfully owned property’—and refers to the act of taking that property without the owner’s consent. If no property is rightfully owned, that is, if nothing is property, there can be no such concept as ‘theft.’ Thus, the statement ‘All property is theft’ has an internal contradiction: to use the concept ‘theft’ while denying the validity of the concept of ‘property,’ is to use ‘theft’ as a concept to which one has no logical right—that is, as a stolen concept.

Others have said the statement is fallacious only on a superficial reading of Proudhon, devoid of context. Proudhon used the term ‘property’ with reference to claimed ownership in land, factories, etc. He believed such claims were illegitimate, and thus a form of theft from the commons. Proudhon explicitly states that the phrase ‘property is theft’ is analogous to the phrase ‘slavery is murder.’ According to Proudhon, the slave, though biologically alive, is clearly in a sense ’murdered.’ The ‘theft’ in his terminology does not refer to ownership any more than the ‘murder’ refers directly to physiological death, but rather both are meant as terms to represent a denial of specific rights. Others point out that the difference between the two examples is that ‘slavery is murder,’ unlike ‘property is theft,’ does not make a statement that denies the validity of one of the concepts it utilizes. We should note as well that Proudhon does not actually say all property is theft—he is referring to a very specific kind of property rights. Proudhon favored another kind, which he called possession, based on occupancy and use, a sort of usufruct rights idea. In What is Property? he therefore says with the apparent contradiction ‘property is theft’ to [make conceptual room for another possibility, namely, that] ‘property is liberty,’ referring to the kind he favored, and ‘property is impossible’ to make it clear [that] any sort of property rights cannot be absolute. Separate concepts are therefore laid out in a way that can be confusing, especially if one is not familiar with them.”

So, it was said, unfairly I think, that Adam was “relying pretty heavily on stolen concepts,” i.e., that he committed (more than once) the “stolen concept fallacy” (which I took to be a telling misnomer) as introduced above. I don’t think that claim is true, but setting that aside for the moment, whether or not the fallacy occurred is a question of logic in the widest sense, having to do with propositions, premises, and concepts as they are found in (philosophical and other) arguments, which are not the prerogative of professional philosophy or philosophers, even if we expect models of valid and sound (if not persuasive) arguments, free of formal and informal logical fallacies, to be exemplified in the works of philosophers. Analyzing arguments qua arguments, which includes detecting the presence or absence of the many possible formal and informal fallacies, has nothing whatsoever to do with (has no direct bearing upon or implications for) ideas of intellectual property or copyright law. Thus far, nothing you have said or referenced remotely suggests, let alone demonstrates, otherwise.

Posted by: Patrick S. O'Donnell | Apr 28, 2018 4:16:42 PM

Patrick ,

Why don't you read the provisions , understand them , especially that one concerning " integrity " of the creation and the author , and understand , that you are far , as hell from haven , from starting even to understand what you are trying so badly to argue , and later , fix it , and re – adjust it endlessly , stop that crap .

Just read it ( or at least try ) .

P.S : And I have written the word " theft " and not : theft .
We don't have time here for amateurs , ok..... it is a blog of legal material.

To your kind attention ....

Posted by: El roam | Apr 28, 2018 4:35:54 PM

Now that you've gone off the deep end, I hope there's water in the pool.

Posted by: Patrick S. O'Donnell | Apr 28, 2018 4:42:17 PM

Whatsoever Patrick ..... We all really appreciate your contribution to that blog , and to humanity generally speaking ..... from your first comment ,it could be observed clearly , that you are a very heavy caliber you know …..

Spare us your " provocations " here ….We don't have time for it you know …. You are a hell of a manipulator . Now get lost …..

Posted by: El roam | Apr 28, 2018 5:00:45 PM

I have just forgotten , to put the relevant provisions , concerning ideas and copyrights , so here , section 102(b) :

§ 102 • Subject matter of copyright: In general

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept ,principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Some good interpretations from Washington State University ,here :

idea / expression dichotomy

You hear the phrase “freedom of expression” as describing the First Amendment right. It is really the freedom to communicate facts and ideas that the First Amendment protects. 6 Copyright law protects the expression of facts and ideas, not the ideas and facts themselves. Works that have not been fixed to a tangible medium are just ideas. Ideas are fair game for everyone to express in their own words. And ideas have been stolen since the dawn of art and literature. Here are some examples:

Canterbury Tales by Chaucer took ideas from the Italian author, Boccaccio.
Shakespeare took plots for 90 percent of his greatest plays from other authors.
Dimitri Yernetz wrote a series of books about a young magician under the titleTanya Grotter, written after J. K. Rowling’s Harry Potter.
Cameron Crowe’s movie Vanilla Sky was a remake of a 1997 Spanish movie called Open Your Eyes. Penelope Cruz starred in both.

Here :


So , as I wrote up there , abstract ideas , are not protected . The expression is protected , and It should be fixed and tangible . But no protection for the idea itself .

The rest , too complicated right now ….


Posted by: El roam | Apr 28, 2018 7:30:11 PM

And just clarification :

I have put all this , just to suggest , some guidelines or principles , notwithstanding any specific legal case of course . But to get ideas , about principles , state of mind , guidelines , moral judgment and so forth… not to confuse , with any specific case !!But , some basic and substantial inspiration. For the debate here above , was really astonishingly , ridiculous !!


Posted by: El roam | Apr 28, 2018 7:36:23 PM

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