In my last post I explained my position that freewill does not exist. It is merely the illusion that appears when our imagination plays ‘what if?’. If I do believe this to be the case, and the idea that at any moment we could do something different from what it is we actually did is an illusion, can I justify our legal system? After all, when society punishes a person society is assuming that the person was able to make different decisions.
I agree that punishment only makes sense if freewill is real, but I also agree with having a legal system. If the law was about retribution then I could not justify it, but it is not just about retribution; we do not only lock people up and fine them because we want them to suffer for what they have done. We also want to protect society from those actions.
This is something I need to be very clear about: even if we do not have freewill our experiences are still paramount and valuable and worth protecting. So for repeat violent offenders a long prison sentence makes sense because the risk to other people’s experiences and lives is removed. We are not punishing a criminal; we are protecting the people around the criminal. But lesser crimes don’t call for the same action.
The other way of removing a risk from society is to rehabilitate the person that poses the risk. Shorter criminal sentences are not about lesser punishments, or at least they shouldn’t be. Shorter sentences should be opportunities to rehabilitate an offender. Even crimes that normally demand a longer sentence, like paedophilia, can be treated as rehabilitation cases: the chemical neutering of paedophiles would protect society from that behaviour. We could debate the exact nature of what that rehabilitation is. After all, The Clockwork Orange is a striking story of what could happen if we don’t know what we’re doing in terms of rehabilitation.
The big question: where does this take us the death penalty? When it comes to the death penalty we need a very high-level of confidence in the criminal’s guilt, but assuming that we can grant that, should the death penalty be allowed? There is only one circumstance where I could entertain the idea: we don’t have the intellectual resources to rehabilitate a specific individual and the cost of locking them up to protect society far outstrips the cost of killing them.
Rehabilitating people is a difficult and a lot of research is needed on the issue, and to sentence a person to death because ways to rehabilitate them simply haven’t been discovered yet seems cold and callus. If you are, for all intents and purposes, certain of their guilt and the options are death or keeping the criminal alive on the tax-payer’s money for no reason other than to keep them alive the answer still isn’t simple. But why we should spend money on keeping them alive when they pose a risk to everyone else’s wellbeing and experience is not clear. However, the death penalty tends to be the more expensive option compared to life in prison. And certainty of guilt is a ridiculous criterion anyway.