Dialogical Reply to Flanders's "How Much Certainty Do We Need to Punish?"

And now for something a little different. Chad Flanders has written a reply to my Punishment and Moral Risk article in the form of a dialogue between fictional versions of ourselves. He uses "ChadF" (or just "C") to refer to fictional Chad Flanders and "Kolbert" (or just "K") to refer to fictional Adam Kolber. It seems only appropriate to respond with a dialogue as well.

[SETTING: Outside an independent bookstore in Brooklyn.]

C: Hey Kolbert, fancy seeing you two days in a row. Stay back, this is a new shirt!

K: Yeah, sorry I caused you to spill your coffee yesterday. And sorry that when I went to buy you a new one, I passive-aggressively complained about the high price of coffee these days. I guess I just wasn't myself. I even felt like some of the words I said weren't really my own.

C: Weird! I feel that way right now. There's probably some expression in German that perfectly captures the feeling. Anyway, no sweat about the coffee. In fact, overall, we probably agree about more than we disagree.

K: True, most importantly perhaps, we agree that how people treat uncertainty about desert can sensibly vary from situation to situation. I believe typical retributivists are far more willing to allow the deserving to go free than the undeserving to be punished. So they have higher credence requirements for state punishment than for, say . . .

C: . . . getting annoyed that someone spilled coffee on you.

K: Exactly. And all of this fits with what you wrote in your email, even if I wouldn't put matters exactly the same way.

C: Anything we talked about yesterday you disagree with or want to clarify?

K: Well, since you asked, in my paper, I don't defend full-blown free will skepticism. I simply raise doubts about free will. So some people might go about their ordinary lives believing in free will, apologizing for spilling coffee and so on. It's only when the risk of moral error get seriousness enough that they need to worry about being wrong about free will and related issues. 

C: What else?

K: I like your point about Bernie Madoff. 

C: Right, to oversimplify, I implied that one might feel more confident that Bernie Madoff deserves punishment than confident in all of your abstract philosophical propositions required to show that he deserves it.

K: I'm sure people may have that "feeling," but it does seem problematic. In a way, the main point of the paper is to reveal that retributivists have more confidence in their punishment of particular offenders than is warranted. Maybe there's some back and forth equilibrium here such that one's confidence in the guilt of particular offenders might somehow bolster confidence in the individual propositions required to show that punishment is just. But my approach is pushing for a kind of consistency that most retributivists have ignored.

C: I see. You make it sound like retributivists are committing the conjunction fallacy.

K: I don't know, but your Madoff example might point to the possibility. I'd put it this way: Suppose someone said, "I realize my chances of picking the right numbers for any one of the six lottery number draws is rather small, but I still think my chance of winning the whole thing is pretty good." You'd have solid ground to challenge that person's reasoning.

C: But you admit that there may be some cases where retributivists actually have enough confidence to punish?

K: I'm not so sure about that. It depends on how one estimates confidence levels in the propositions. If a retributivist had very high confidence in the four general propositions (e.g., 99% each), and the particular case seemed rather easy as to each of the five other propositions (99% confidence each), the retributivist would have a maximum of 92% confidence in the conjunction. Is that sufficiently high to punish consistent with retributivist values? Maybe. But even if it were sufficient, I have my doubts that a reasonable person could have such high levels of confidence in free will and related matters.

C: I see. So maybe when I said that retributivism might be something we're committed to as an idealization of the real world, you didn't completely agree. 

K: Right. There are idealizations and there are idealizations. Depending on how one fills in the probabilities, justified retributivism may simply be too far removed from the land of plausible aspirations. (If you're idealization allows for the elimination of moral risk, though, then sure, my criticism wouldn't apply anymore. So it all depends on what we're allowed to idealize.)

C: What about my claim that you underplay the important retributivist value of giving people the punishment they do deserve?

K: Retributivists strike a balance between the good of punishing those who deserve it and the bad of punishing those who don't. They will, indeed, vary in how they strike that balance, so you're right that nothing is logically entailed about this balance just from retributivism itself. But I speak specifically of those retributivists who subscribe to the values that seem to underlie the Blackstone ratio. And I find it unlikely that retributivists have good grounds for treating errors about facts all that differently than they treat other errors of deservingness. But short answer: My consistency argument against retributivists only applies to those that think it substantially worse to punish those who don't deserve it than to punish those who do (and I think this relative weighting is rather common among traditional retributivists).

C: I see. So have you found our conversations helpful?

K: Absolutely! You haven't felt picked on, have you?

C: Not at all! Besides, growing up with the name ChadF, I'm used to it. Nobody expects my name to have that final "f" sound. And people are always writing "ph" instead of "f," and it's a pain when I give out my name over the phone. 

K: I could imagine. By the way, you said yesterday that you were working on a reply to my paper. How's it going?

C: It's going well. Do you think you'll blog about the replies when you do your Prawfsblawg guest stint? 

K:  Probably not. I worry readers may get sick of the topic if I first blog about it and then post responses to all five replies. We'll see.  But if I do, I hope people know that I'm grateful for our conversations these last couple of days. They've really clarified several matters. And thanks for putting together the group that wrote the replies. It's a treasure trove!