Ever come across an argument that you just know can’t be right but you can’t pin down its flaw? I had that experience recently while reading an older paper on punishment, Alan Wertheimer’s “Deterrence and retribution.” (Ethics 86 (1976): 181-199) Quick background: Retributivists about criminal punishment often criticize consequentialist views on punishment, especially those that hold that deterrence is the aim of punishing an individual, on the grounds that such views would permit the “punishment” of those who are not responsible for criminal wrongdoing. If. e.g, if children, the insane, and others lacking in mens rea could be deterred from crime by the credible threat of punishment, why not punish these individuals, despite their lack of responsibility for their criminal acts? Indeed, retributivists ask, if we could deter individuals by occasionally punishing those who lack actus reus (those whose actions do not even meet the behavioral standards for criminal conduct), why not punish those who haven’t even engaged in criminal conduct? Wertheimer’s argument aims to defang this criticism a bit:
“…to say that an agent deserves to be punished entails that the agent is responsible for his behavior. And to say that an agent is responsible is to say that he is, in principle, deterrable. Consider the case of Jones — a pure kleptomaniac. When placed in certain situations, Jones will steal, even if the legendary policeman is standing next to him. No punishment which has been or could be administered to Jones will have any effect on his behavior. I take it that although we might want to isolate or quarantine Jones, because his behavior violated our rights, we would not say that Jones deserves to be punished. … Now assume that all stealing is performed by persons like Jones. There are some persons who do not steal and who would not steal even if there were no punishments for stealing. There are other persons who do steal and who would steal even if it were certain that they would be punished for stealing. Under such conditions, those who do steal do not deserve to be punished for the same reason that Jones did not deserve to be punished — they lack the responsibility or deterrability necessary to the justification of their punishment. …With regard to deterrence, [retributivism] and [utilitarianism] are extensionally equivalent if not intensionally equivalent.” (183-84)
In effect, Wertheimer’s argument replies to the retributivist criticism by claiming that there are no individuals as imagined in the criticism: individuals who are not responsible for their wrongdoing, but who can be deterred, or vice versa. So the class of the deterrable and the responsible is the same class of individuals.
For reasons I can’t identify, I find this argument troubling. Retributivists can of course reply to Wertheimer’s argument on conceptual grounds, by pointing out that this move leaves the link between wrongdoing and deserved punishment a contingent matter. And Wertheimer doesn’t elaborate on why the classes would be co-extensive. I’d suggest something like reasons-responsivness (or the lack thereof). Presumably, the threat of punishment gives an agent a reason not to engage in crime, so an agent who is not deterrable in principle is not responsive to the reasons that punishment provides. Likewise, perhaps being responsive to reasons is a necessary condition for responsibility as well.
In any event, I’m not sure what I find misguided about this argument. I suspect it has something to do with how we might distinguish those who are simply not deterred by punishment from those who are not deterrable in principle. Any ideas?