Free Will Skepticism, Quarantine, and Corrections

Introduction

Michael Corrado denies that we have the kind of free will that serves as the basis for just desert. Thus, he thinks no persons who have engaged in criminal wrongdoing can deserve punishment for what they have done. He believes that we should replace institutions of punishment with what he calls institutions of “correction.”¹ Derk Pereboom and Gregg Caruso, like Corrado, also believe that no one has the kind of free will which could make them deserving of punishment. Like Corrado, Pereboom and Caruso believe we should reject institutions of punishment, but instead of Corrado’s corrections model, they endorse what they call a “public health quarantine” model of criminal justice.²

Corrado’s corrections model of criminal justice is shaped in large measure by what he regards as problems with the model endorsed by Pereboom and Caruso. What Corrado tries to do is to build a humane theory of criminal justice grounded on the presumption that no one deserves to be punished, while avoiding what he regards as the flaws in the public health quarantine model. Furthermore, he argues that since rational informed persons would prefer his own corrections approach over the public health quarantine approach, it is the superior view. In this essay, I will explain the differences between these two free will denialist approaches to criminal justice, noting what Corrado regards as the flaws in the public health quarantine model and how his view is designed to avoid these flaws. I will then go on to argue that despite Corrado’s claim to the contrary, it remains unclear that his corrections view would be preferred by rational and informed persons. Thus, it remains unclear whether his view is superior to that of Pereboom and Caruso. In conclusion, I will put these findings in relation to my own prior published writings.

The Quarantine Model and The Corrections Model

According to the public health quarantine model of Pereboom and Caruso, those convicted of criminal offenses and who are dangerous to others will be placed into comfortable criminal quarantine facilities and offered educational opportunities and therapy. While in quarantine, they may have frequent visits with family and friends, they will be able to receive job training and therapy, they may perform remunerated jobs, etc. On their view, since no one has the requisite free will, no one convicted of a crime deserves to suffer for what they have done. So, there is no good reason that they should be placed in harsh conditions while in prison. Rather, they should be made comfortable in prison and be given every opportunity to reform their character, and they should be released back into the general population once there is no longer any good reason to believe that they are dangerous. Just as we place persons with very dangerous infectious diseases into comfortable quarantine and offer them medical treatment to make them safe for release back into society, so too we should do the same with criminals convicted of the kinds of crimes which suggest that they are a danger to others. Additionally, just as we should engage in public health measures to reduce the incidence of infectious disease within our society, such as ensuring our drinking water is safe and offering free or cheap immunizations, so too we should take measures in society to reduce the incidence of crime by fighting racial and economic inequalities, combatting sexism, decriminalizing drug use, etc.

One could continue to support institutions of punishment while denying that persons have desert-grounding free will, but Pereboom and Caruso contend that there is just no good reason to do so. For we can protect society from criminal conduct just as well, if not better, by instituting the public health quarantine model. Thus, absent any retributive ground for making criminals suffer, there is no good reason to support a system of punishment.

Michael Corrado rejects the public heath quarantine model of criminal justice in favor of a corrections model. As noted, he agrees with Pereboom and Caruso that no one deserves to be punished for their criminal offenses and, like Pereboom and Caruso, he believes this because he believes no one has the kind of free will that is the basis of just deserts. He rejects the public health quarantine model for two main reasons. First, he notes that Pereboom and Caruso allow that on their view there may be situations in which the state would be justified in placing persons in criminal quarantine when they have committed no crimes, but they have merely been deemed sufficiently dangerous as to warrant their being quarantined. He acknowledges that in the contemporary United States there are persons who may be detained in this way, but this is restricted to (a) the involuntary commitment of dangerous persons who have mental health problems which render them incapable of understanding or conforming to the laws or (b) persons who clearly exhibit a current intention to cause harm. Corrado’s concern is that the Pereboom and Caruso model extends the range of persons who may be detained on the grounds of dangerousness far beyond these two categories. This increases the state’s power to exert control over the lives of citizens in a liberty threatening manner.³ Second, Corrado sees another dangerous threat to individual liberty posed by the quarantine model. He notes that those deemed dangerous enough for criminal quarantine will be held there indefinitely until it is established that they are safe to be released back into the general population.⁴ He sees this as another way in which the state will have too much control over the lives of citizens. In his writings, Corrado documents the ways in which oppressive communist states, such as the former Soviet Union and Communist China, and fascist regimes, like Nazi Germany, set up legal systems which allowed for these sorts of things and these systems empowered the government to control citizens in oppressive ways.

According to Corrado, what rational and informed persons should want is a system that prevents such abuses of power. To do this, the state should not be allowed to detain rational persons who are capable of understanding and conforming to the laws, unless those persons have been proven to have violated laws that are clearly articulated within the criminal code or have exhibited a clear intention to cause harm to others. Merely being perceived as a danger to society should not be grounds for subjecting mentally competent persons to criminal detention. Additionally, the detention period for those convicted of clearly articulated criminal laws should be established in the criminal code with clear minimum and maximum sentences, and no one should be held in criminal detention for a period extending beyond the expressed maximum sentencing guidelines. Building a criminal justice system in conformity with these principles places a check on the state from over-extending its powers in ways that threaten individual liberty, and Corrado believes that the quarantine model of Pereboom and Caruso does not do enough to protect against such abuses of state power.

As noted, Corrado, like Pereboom and Caruso, does not believe that anyone deserves to be placed in criminal detention because no one has the relevant kind of human free will. And, like Pereboom and Caruso, he does nonetheless believe that some people need to be placed in detention in order to protect society from the threats they pose. Further, like Pereboom and Caruso, Corrado does not want to call criminal detention “punishment.” Rather, he wants to call it “correction,” and he envisions the conditions in correctional facilities as very different from Pereboom’s and Caruso’s quarantine facilities. Corrado believes that convicted criminals should not be made comfortable, rather they should endure harsh conditions in prison. He suggests that, in general, criminal detentions should be much shorter than they typically are in the United States. First time offenders would receive short sentences and repeat offenders would receive longer terms. The idea behind Corrado’s theory is that these short but harsh prison terms would invite the offenders to reconsider their way of life and they can decide for themselves if they want to reform. In contrast, on the Pereboom and Caruso model offenders must reform if they want to be released from quarantine. Corrado sees their model as more oppressive than that of his own corrections model, as the quarantine model makes one’s release entirely contingent upon the assessment of state psychologists.

Since Corrado believes no one deserves criminal detentions, it may be wondered here why Corrado thinks the conditions in prison should be harsh. He states:

As a way of talking about the machinery of punishment without presupposing responsibility, desert, or retribution, I will talk about harsh treatment inflicted not as an unavoidable consequence of achieving other aims (as the harshness of detention is an unavoidable consequence of satisfying the aim of incapacitation), but as something desirable as a means to achieving aims that depend precisely upon it being harsh treatment. A surgeon’s invasive procedures might involve harsh treatment, including the cutting of flesh; but it is not ordinarily part of the surgeon’s aim that the treatment be harsh. If she could accomplish what she wanted without the harsh treatment, she would do so. Medicine always looks for less invasive ways of doing things. On the other hand, boxing involves harsh treatment, and to eliminate the harsh treatment would destroy the sport of boxing. Like boxing, correction requires harsh treatment: it is treatment intended to be harsh. Like medicine, preventive detention involves harsh treatment, but only as a means to other ends and as something to be avoided if possible.⁵

Unlike the harsh invasive procedures of a surgeon which would be avoided if there was a different way to achieve a good result, on the corrections model harsh imprisonment is an essential element to achieving the goal of correction in the same way that harsh treatment is essential to the sport of boxing. This raises the question of what the goal of correction is.

Corrado’s answer to this question is complex. He reminds the reader that we must assume there is no desert grounding free will. Thus, the harsh treatment cannot be defended on the ground that it is deserved. Then he notes that subjecting criminals to relatively short but harsh prison terms serves the end of benefitting those subjected to it in the sense that it conveys to them the lesson that they have violated the law and if when released they do not change, then they risk returning to prison for more harsh treatment. This in itself may not seem like much of a benefit, but Corrado also notes this is a benefit when contrasted with the alternative free will denialist approach of quarantine and the prospect of detaining criminals until reformed. For according to Corrado’s corrections model, they are not held indefinitely until reformed and they are released with the opportunity to decide for themselves if they will conform to the law going forward. Corrado thinks this shows a respect for the autonomy and dignity of prisoners that is not a part of the quarantine model advocated by Pereboom and Caruso.

Despite advocating for harsh treatment of criminals, Corrado at the same time believes that they should be monetarily compensated for the inconveniences of incapacitation. He draws an analogy here with the law of takings. The state may take the land of persons against their will when it is deemed that the taking of their land is necessary for achieving more important public goods. Typically, those whose land is taken are not at fault and don’t deserve to have their land taken. Thus, it is only fair that they be monetarily compensated for the taking of their land. So, too, since criminals don’t deserve their detention, but the loss of their freedom is necessary to serving certain social goals, they should be compensated monetarily for the loss of their freedom.⁶

Corrado’s View Examined

Corrado thinks the quarantine model of Pereboom and Caruso fails to give rational support for important protections of human dignity. And, again, to be clear these protections are: (a) protections against detaining mentally competent adults when they have not committed any crimes nor shown a clear intention to commit crimes and (b) protections against holding mentally competent people who’ve committed lesser crimes, such as simple assault, in criminal detention for a long time until they are deemed safe for release. It could be argued that we should provide these protections on the grounds that mentally competent persons don’t deserve to be held in criminal detention when they have not committed any crimes nor exhibited a clear intention to commit crimes. It could also be argued that holding people in criminal detention for long periods of time when they have committed relatively minor offences is an excessive and undeserved response. That is, it may be felt that mentally competent persons who have the requisite kinds of control over their behavior which makes them responsible for their actions don’t deserve such kinds of treatment. Thus, it is unjust to treat them in such ways. But, as noted, Corrado, like Pereboom and Caruso, believes we lack the kind of free will that is the basis of just desert. So, this line of argument is closed off to him. Instead, he contends that even if rational and informed persons believed that people lack desert-grounding free will, they would still prefer to live in a society that includes protections against such treatment as a safeguard against the overreach of the state in controlling their lives. For this reason, he believes we should include such protections within the criminal justice system. And in this way, he thinks we can support a humane system of criminal justice without any appeals to the existence of desert-grounding free will.⁷

It may be felt initially that rationally informed persons would prefer Pereboom’s and Caruso’s model of criminal justice because it is a more humane system than Corrado’s system of corrections. Corrado’s corrections model endorses harsh prison conditions, not the comfortable conditions of quarantine that Pereboom and Caruso endorse.⁸ Thus, it may be thought that since we can get just as much, if not more, protection from crime with the comfortable quarantine endorsed by Pereboom and Caruso, then the harsh prison conditions endorsed and defended by Corrado are ethically untenable. But such an argument won’t work. It must be remembered that Corrado believes criminal sentences should be shorter in nature than what we see in the contemporary United States and while harsh, those subjected to them will be compensated monetarily for their time spent in prison. Basically, Corrado acknowledges that the imprisonment of criminals targets innocent people and is, thus, unfortunate, and while for the common good it must be done, it should nevertheless be indemnified. Additionally, Corrado would also be quick to note that his view has the advantage of only allowing the criminal detention of mentally competent adults who have actually committed crimes or exhibited a clear intention to commit crimes and it prohibits long periods of detention for persons who have committed lesser offenses.

However, while it’s true that Corrado’s approach would strictly prohibit detaining mentally competent adults on the mere presumption of their dangerousness and it would have maximum sentencing guidelines prohibiting indefinite detentions, rational and informed persons may nevertheless want greater protection from crime than Corrado’s model can offer, and they may feel that the Pereboom and Caruso model secures this protection at no greater cost relative to Corrado’s model.

Let me explain by addressing two questions. First, how does the Pereboom/Caruso model secure better protection from crime? And second, how does it do this at no greater cost relative to Corrado’s model? Regarding the first question, recall that Pereboom and Caruso are open to detaining competent adults who are reasonably seen as a danger to others and even if they haven’t committed any crime or expressed a clear intention to commit crimes. This would clearly allow for additional protection against crime. Also, through having maximum sentencing guidelines Corrado’s model will clearly allow a greater number of persons who have not been reformed as certified by state psychologists to be released back into society. In contrast, the Pereboom/Caruso model allows release from criminal detention only if there is a lack of evidence that a detainee is still dangerous. This too suggests that the Pereboom/Caruso model would provide better protection against crime.

Now, Corrado may say, yes, these things are true, but look at the cost to society. Rational and informed persons will know that on this model they would be granting more power to the state to exert control over the lives of persons, detaining mentally competent adults who have not committed crimes nor shown a clear intent to do so but who merely seem dangerous and holding those detained until they are deemed safe for release. He may say that there’s no way that rational informed persons could want this extra protection from crime at these costs. But that’s not clear. Look at it this way, since relatively few of us are criminals or criminally dangerous, then for any given individual it is not likely that they will be detained due to being found dangerous or for having committed a crime. But even if persons are detained, they will be placed in very comfortable quarantine, where they will have the opportunity to be educated, to be examined, to receive therapy if needed, to meet often with family and friends, to work, etc. Also, they will be released as soon as the state can no longer defend the thesis that they are dangerous. Thus, people who are detained and not dangerous can expect to only be held in detention for a relatively short time, without being subjected to harsh conditions when detained, with access to work, therapy, recreation as well as their family and friends, etc. Again, for any given individual it is highly unlikely that they will be placed in criminal quarantine, and for those who are put in quarantine but are not dangerous it is highly unlikely that they will be kept in detention for long, and while in detention the conditions are so good that one’s situation would not be all that bad. Further, for those who need to stay in detention longer, their situation will not be so bad either. With all of this in mind it is easy to see how rational and informed persons who believe we lack desert-grounding free will may find the Pereboom/Caruso model rationally preferable to the Corrado model, as, again, it offers greater protection from crime at relatively low cost for those who may get caught up in the system.

Now, Corrado may push back here, arguing that rational and informed persons would have to give greater weight to the prospects of government abuse of the system. When it is factored in that government officials may through ill-intent or incompetence detain on the grounds of dangerousness, even for long periods, people who are not actually dangerous, then the preference for the Pereboom/Caruso model is either not rational or ill-informed. It is true that Corrado’s system prohibits the lawful criminal detention of mentally competent persons who are merely deemed dangerous and doing this does help prevent the government from targeting law abiding persons. Additionally, it also sets maximum sentencing rules that disallow holding people indefinitely until approved for release by state psychologists. In these respects, the Corrado approach does seem to offer greater protection against government abuse of the system. However, when one keeps in mind that (a) the Pereboom/Caruso model allows for stronger protections against crime and (b) even systems like Corrado’s is not immune to abuse and (c) measures could be taken to reduce the threat of abuse in the Pereboom/Caruso model, then it remains unclear that rational and informed persons would find Corrado’s model preferable to that of Pereboom and Caruso.

Regarding (a), I have already made my case for that above. Regarding (c), I would note that to prevent abuse of the system on the Pereboom/Caruso model it would help greatly to exclude state agents from having a hand in the determination of the standards of dangerousness and determination of who is safe for release. These determinations should be left to medical health professionals and not agents of the state. Regarding (b), I would note that even on Corrado’s model judges and prosecutors and juries can still be subject to corruption, incompetence, and laziness as well as biases that lead to the convictions of persons who are innocent and to criminal sentences that are excessive. Furthermore, given that Corrado’s own approach will not be immune to abuse, it may be felt that with health professionals operating independent of state control when deciding who is safe to release, as could be the case on the Pereboom/Caruso model, this provides a corrective to the potential for abuse that is missing on Corrado’s model. Contrary to the latter, on the Pereboom/Caruso model many of those wrongfully convicted would be found safe to release prior to the end of their sentence and would not suffer harsh imprisonment during their detention. For all of these reasons, it is just not clear that rational informed persons would have a preference for Corrado’s system over the one endorsed by Pereboom and Caruso.

Conclusion

Corrado thinks that even on the presumption that persons lack desert-grounding free will we can give adequate refutation of the Pereboom/Caruso approach by showing that rational and informed persons would prefer to live under a criminal justice system more like his corrections model, which offers the kinds of protections which he wants. But, as I’ve shown, when you look at the kinds of cost/benefit calculations which would have to be made by such rational and informed persons, it just isn’t clear that they would reject the Pereboom/Caruso model. In prior publications I have argued at length that the kinds of concerns Corrado has about the Pereboom/Caruso model are legitimate, and I won’t repeat those arguments here.⁹ But I will note that if I am right that Corrado’s concerns with their view are legitimate and given that Corrado’s view cannot be shown to be rationally preferable while granting the assumption that there is no desert-grounding free will, then perhaps we should reconsider the merits of the case for belief in the existence of desert-grounding free will or, at least, living and acting as if people have such free will, so as to support important protections of human dignity in the context of criminal justice. Recall that on the assumption that persons have desert grounding free will, it is easier to argue that mentally competent persons should not be subject to criminal detention merely because they seem to be dangerous. Rather, unless they have committed a crime or demonstrated a clear intention to commit a crime, detaining them is undeserved and hence unjust. Additionally, detaining persons indefinitely or for a long time when they have only committed relatively minor violent crimes is to subject them to extended detention periods that are undeserved and, thus, unjust.

It could be objected that my position is itself too problematic to be reasonably embraced. Free will deniers and free will skeptics will be quick to point out that it is unlikely that there will be any established consensus on the existence of desert-grounding free will anytime soon. And to endorse belief in desert-grounding free will on pragmatic grounds without sufficient evidentiary reasons to believe it exists irresponsibly opens people up to harmful practices of blame and punishment. It could be argued that since the belief in desert-grounding free will supports the punishment of mentally competent persons who commit crimes, and since punishment involves administering harsh treatment as a deserved response to criminal conduct, it is immoral to provide such harsh treatment to convicted criminals when it is unclear that anyone has the free will which justifies this harsh treatment. This is often called “the problem of hard-heartedness,” and I have addressed it in a number of my other writings.¹⁰

Here I would just note that this worry may be a more serious problem if one embraces both the belief in desert-grounding free will and strong retributivism, which is the view that the desert of the criminal is both necessary and sufficient grounds for punishment.¹¹ Strong retributivism is often linked with harsher punishments administered on the grounds that those who commit crimes should be made to suffer in proportion to the severity of their crimes. For instance, such strong retributivism is often invoked in support of the death penalty. But weak retributivism is the belief that the desert of the criminal is merely a necessary condition for justified punishment. I endorse weak retributivism, according to which justified punishment must also serve some other ends besides retributive harm, such as the reform of the criminal and/or providing protection of society through deterrence. Depending on what other ends one envisions the punishment serving, this can make a big difference in tempering the severity of the punitive dimensions of the criminal justice system. For instance, if one sees the reform of criminals as one of the key justifying ends of punishment, then especially harsh conditions are likely antithetical to that end. Education and therapy leading to the reform of criminals will likely support prison conditions more like those endorsed by Pereboom and Caruso than the kinds of harsh conditions one sees in American prisons today. Additionally, if prison terms are to be limited in duration, as I think they should be, and not open-ended until reform is achieved, then providing the conditions for reform will be very important if another goal of punishment is deterring crime.

It might also be objected that an appeal to belief in desert-grounding free will in support of policies providing protections of the innocent and restrictions in detention times really provides no rational support for such policies without sufficient scientific or metaphysical evidence that we have such free will. It may well do more harm than good to support criminal justice policies on beliefs that for all we know are false. I acknowledge it may indeed be false that we have desert-grounding free will, and it’s true that there’s insufficient scientific or metaphysical evidence that we have it. But to assume its existence for value-based reasons and to live and act as if we have such free will may nonetheless still be rational. I’ve already suggested the value this belief brings to supporting key protections of human dignity in the realm of criminal justice. Perhaps if this were the only domain in which the belief in free will enhanced ethical ends or values, then my argument would be weak or, at least, weaker, appearing more as an ad hoc maneuver to provide such protections. But there are various other ways in which the belief in desert-grounding free will supports moral notions and contributes greater value to our lives, and I have argued for these points in other writings. Given the broad range of those ways, such as its role in making sense of moral goodness and moral obligation, justified pride, the value of love and friendship relations, on top of the already mentioned important protections of human dignity in criminal justice, the assumption of its existence may be rationally defensible even if not scientifically or metaphysically provable.¹²