Free will, punishment and criminal responsibility

Abstract

Retributive attitudes are deeply held and widespread in the general population and most legal systems incorporate retributive elements. It is probably also the dominant theory of punishment among contemporary philosophers of criminal justice. However, retributivism relies on conceptions of free will and responsibility that have, for millennia, fundamentally divided those who have thought seriously about the subject. Our legal system upholds the principle that the responsibility of the offender has to be proven beyond reasonable doubt, before the accused can be punished. In view of the intractable doubts surrounding the soundness of retributivism’s very conception of responsibility, my thesis argues that it is ethically dubious to punish individuals for solely retributive reasons. Instead, my thesis proposes that a person should only be punished if the main theories of punishment agree that punishing that person is appropriate – I call this ‘the convergence requirement’. This approach, I argue, is in accordance with the considerations underlying the beyond reasonable doubt standard. In addition to considering the question of ‘whom to punish’ my thesis considers what methods of responding to criminal behaviour are acceptable. In particular, it attempts to explain, without appealing to the contested notions of free will or retributive desert, what is problematic about ‘manipulative’ methods of dealing with criminal offenders (focussing in particular on the possibility of modifying their behaviour through neurological interventions). The final part of this thesis also gives an overview of some of the practical implications for Scots criminal law of taking doubts about free will and retributivism seriously. Given the severe treatment that offenders undergo within the Scottish penal system (e.g. deprivation of liberty, stigma) and the high rate of recidivism, it is important to consider whether our current penal practices are justified, what alternatives are available and what goals and values should guide attempts at reforming the system.