Hard determinism, punishment, and protection against sexual assault

So called “hard determinists” argue that a person’s actions are fully determined by the biological machinery of their brains and bodies. Therefore any act of punishment should be purely instrumental, for behavior modification and for protecting the public against future crimes by the same perpetrator. Punishment should never be doled out simply because the person “deserves” it, the determinists say, because there is no genuine possibility that the person could have done otherwise. Proponents of this view include biologist Jerry Coyne, who wrote on the topic as recently as two days ago (I mention him a lot because he writes very frequently on the topic and I subscribe to his site).
“Compatibilists” (the view that I hold) claim there is still some meaningful concept of “deserves” even if behavior is fully determined. My position focuses on the negative: a person “deserves not” to be punished if they did not in fact commit any crime. The concept of innocence is inescapably retributive: if “punishment” is justified purely by a need for public protection, as the determinists say, and if “guilt” is merely an illusion, then being “guilt free” is equally illusory — everyone is innocent.
Discussing this point with determinists has often led to frustrating circularities or simple dismissals (eg “if the person isn’t guilty then it isn’t punishment,” or “punishing innocent people would be an ineffective deterrent”). To forestall such problems, let me strictly define “guilt” as the state of fact that a person did the deed for which they are accused; and “punishment” is any deliberative forcible action intended to modify behavior or protect the general public (deliberative in the sense that it is not impulsive or done in defense against immediate physical threat).
For several years, changes in Title IX policy in college campuses have presented the public with a stark value conflict: does the safety of women outweigh the rights of the (few) wrongly accused? I will argue that you cannot prioritize the rights of the accused without adopting a compatibilist stance.
A clear example appears in a Politico article by Emily Yoffe titled “Why the #MeToo Moment Should Be Ready for a Backlash”. The article touches on several issues, but here I want to focus on the basic value conflict: is it more important to protect the public, or to protect the innocently accused? The argument for public protection is articulated perfectly by Colorado Representative Jared Polis, who is quoted in the article:
“If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people,” he said. “We’re not talking about depriving them of life or liberty. We’re talking about them being transferred to another university, for crying out loud.”
Of course there was a lot of public backlash to these remarks, but there is also a steady current of support for this reasoning. I have to admit that Polis’ reasoning is sound, or at least rational. If we really value protecting the public against harm caused by sexual assault — if we prioritize that value — then the rights of the “innocent” are irrelevant. A sweeping dragnet policy will certainly maximize the deterrent effect, since it guarantees that most “guilty” perpetrators will be caught and expunged from the campus. As for the “innocent” ones, we can only care about their welfare if “innocence” is some special characteristic that distinguishes them from the “guilty”. But the hard determinist only cares about the aggregate outcome. Punishing innocents alongside the guilty may be the only way to achieve that outcome in these cases.
For the hard determinist, there are a few ways out. You could argue that if we tolerate punishment of innocent people, there will be a backlash from those people — that’s one of the main points of Yoffe’s article. In other words, it’s an unsustainable policy. But this argument is totally contingent on prevailing public opinion — in principle, we could see innocent people willingly accept their own negative consequences if they agree that it’s for the greater good. As an example, in the swift actions taken against Louis C.K. and others in the entertainment industry, the punishments resulted in “collateral damage” — i.e. job loss for dozens of people who depended on their canceled projects. Victims of this collateral damage have said things like “the pain of my job loss is nothing compared to what the victims suffered,” and few people seem to care about the downstream consequences to those people — people seem to accept that it’s more important that the perpetrators are outed and publicly punished. In other words, they may accept social responsibility for the suffering of victims (including potential future victims), even if they lack moral responsibility for the harm done.
Another out is to argue that people generally need the assurance that they won’t be punished if they aren’t factually guilty. If they don’t have this assurance, there will be a kind of general anxiety or loss of faith in “the system”, resulting in suffering that outweighs the urgency of deterring particular crimes. This argument strikes me as a form of compatibilism, because it implies that people need to have a concept of “deserves” and “deserves not”, even if we don’t really have any “deep choice” in what we do. It’s not much different from the argument that we need to “preserve the illusion of free will,” only here we preserve the illusion of innocence. We need to hold onto retributive concepts in order to live with confidence that we will not be punished if we behave well.
There may be other ways out, but it’s clear that the hard determinist can’t just dismiss the problem of innocence. The argument is in play, in the wild, in our politics and policies, and the determinist needs to make a clear case why you can get rid of “guilt” but keep “innocence,” and how do you do that without becoming a compatibilist?
My position is that determinism is factually true, but our notions of guilt, innocence and punishment are not reducible to facts of science. They are part of our evolving moral and social intuitions. I think determinist insights can illuminate the futility of retributive punishment, but that doesn’t mean we can dispose of the concept of “guilt” and still function as moral social beings.

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