December 1, 2022
What is a criminal label? What implications should criminal labels have (or not) for a person's future? To what extent are the long-term social effects considered as part of the sentence for a crime (e.g., not only considering sending a person to prison for 5 years but also considering how likely they are to be shunned socially or to be prevented from working certain kinds of jobs after their release)? How does the concept of dignity differ from the concept of rights? Are human rights infinitely valuable? Can a society that takes dignity seriously also allow for contempt? Under what conditions are rights forfeited by a person who commits a crime? And which rights are forfeited, and why? (For example, should the punishments for theft include a loss of the right to vote? Does the amount or kind of theft matter? Does it matter who the victims are, or how many victims there are?) For what kinds of crimes can we draw conclusions about a person's character? How much should we focus on punishment versus rehabilitation? How do honor, mercy, redemption, dignity, and contempt all relate to one another? How do we know when someone is truly reformed?
Khomotso is a South African and British trained lawyer who completed graduate work at Oxford and is now pursuing his PhD at Cambridge. His research focuses on the morality of criminal punishment, specifically the nature, ontology, and limits of criminal labelling. He currently teaches at the University of Cape Town and reads too much Roman politics and history in the late Republic and Early Imperial period in his spare time.
JOSH: Hello, and welcome to Clearer Thinking with Spencer Greenberg, the podcast about ideas that matter. I'm Josh Castle, the producer of the podcast, and I'm so glad you joined us today. In this episode Spencer speaks with Khomotso Moshikaro about criminal labels, risk versus punishment, injustice, and honor and redemption.
SPENCER: Khomotso, welcome.
KHOMOTSO:: Thank you so much for having me.
SPENCER: Today we're going to talk about the way that people communicate about punishment and wrongdoing more generally. And I think the way we're going to do this is to go through a bunch of different concepts and words and discuss them one by one. So why don't we start with the idea of a criminal label? Why don't you tell us what that is and some of your thoughts on that?
KHOMOTSO:: Great. So most people would say that a criminal label is the main method of how the state communicates, punishing someone that communicates that the person, in fact, merits punishment, has been punished, has committed a certain crime, and then usually would state what that crime is. And in this instance, that's what we call the criminal label (at least that's what most people would call a criminal label). So examples of this would be something like rapist, murderer, sexual assaulter or sexual harasser. And so it would be quite specific to the particular offense that you've committed. And usually, people would say, “Well, that's what we've labeled you as a criminal offender.” However, I think the story is a little bit more complicated than that. I don't think it's just the name that we call people, but that each of these things that we call them is also an individualized status. That is, it is an alteration of their rights and their duties in a very specific way. So for instance, rapists, ordinarily, would be treated very differently from sexual assaulters or sexual harassers. Murderers are treated differently from, say, someone who happens to kill someone recklessly. So you can think of drunk driving, for instance. So I think if we actually apply our minds a little bit to what the meaning of a criminal label actually is, we see that it's the alteration of both a legal and also a moral status. So one's standing, moral standing specifically, in a community is altered by the application of a label. So this is not too, I think, controversial, per se. I would hope that it's intuitively correct. But it's a bit harder to explain exactly how one connects the alteration of the status and the criminal label. And I think, to do that, you just have to think a little bit more carefully about what is the state doing when it does so — or even more in the ordinary sense of things — what are we doing when we label people? Ordinarily, if someone says something racist on social media, when we label them a racist, we're actually also altering their status. That is, at least if people accept that they, in fact, said something racist. And by altering their status, we are also altering their rights, their duties, and what we can do today. And in that sense, I think, if you sort of see clearly what we are doing when we are labeling, we're doing something more than just merely calling someone a certain thing for purposes of identifying what wrongdoing they've done. We, fundamentally, are actually altering their normative standing. At least that's what we say in philosophy, I guess.
SPENCER: It seems that there's an element here of projecting behavior into the future. Let's say someone lies once, that's very different than calling them a liar, right? If you call them a liar, you're implying something about how they're gonna behave in the future. And I feel like with a lot of these labels, there's an implicit assumption that this is something that's going to continue forward, that it's not just a sort of one time act or an anomaly.
KHOMOTSO:: Yeah, that's exactly right. So that's what makes the instances of the state labeling someone quite crude. So for instance, I think a good example would be, in the United States, when you are convicted of any criminal offense, there are certain things that you're prohibited from doing or even certain rights that you no longer have, that sometimes are completely unconnected to whether or not you are a habitual criminal or not. It seems that the state would be punishing you, or continue to punish you, even when you've served your time. So a good example of this would be, for instance, there are some states where there are certain employment restrictions just nearly if you have a criminal record. It doesn't quite matter whether you've committed a very serious offense. Sometimes it's just the mere criminal record that means that you can't actually apply for certain employment opportunities. My favorite example is I think that some states, for instance, will prohibit you from even being a hairdresser. Not sure exactly what risk you pose when you've committed a criminal offense, but in that instance, you see a clear example where there is a kind of unjust projection into the future. And that's what a lot of my research actually deals with—trying to make practices of labeling more just and more fair.
SPENCER: I think it's important to distinguish crimes that might have the same name, or actually might have the same name in many cases, but are very different levels of badness. For example, you might call it assault to throw a little pebble at someone that's essentially pretty harmless. But you could also call it assault to throw a brick at someone's head, or to fire a gun at someone. And so we have all of these different levels of badness that could get lumped together under one term assault potentially. Or if you think about sexual crimes, you might call it sexual harassment if someone makes a lewd joke that's fairly innocuous, maybe a little insulting. But you can also call it sexual harassment if someone stalks someone for years. And obviously, these crimes are very different. And again, they can end up falling under the same category name.
KHOMOTSO:: Yeah, I think your intuitions are correct there. I do think that actually some of our categories and some of our labels are far too broad. They're used as casual phrases, sometimes for very rudimentary judgments about the wrongfulness of someone's behavior, or the kind of wrongdoing they've committed. And so we actually owe it to people — at least that's what I'm trying to argue — we owe it to people to properly reflect exactly the kind of seriousness and degree of wrongdoing that they've committed in the way that we actually organize our offenses. And so it really does matter that there's a huge difference between being someone, for instance, who groped someone in their private parts versus someone who says an inappropriate comment. Yes, both can be wrong, but they're not necessarily equally wrong. And people actually have the right to start arguing to have that reflected, if we are going to label them. We ought not to collapse different kinds of wrongdoing into a catch-all category for sort of pragmatic reasons, or because we just intuitively feel that it doesn't matter since we know they did something wrong. It actually does matter exactly what they did wrong.
SPENCER: Do you want to talk a little bit more about some of the negative consequences that come about from assigning these criminal labels?
KHOMOTSO:: Sure. So the obvious negative consequence after you've had a label applied to you would usually be some kind of prison time, or what we'd call hard treatment. So it might include community service. It might include a range of directly negative things that happen to you. However, usually, a conviction actually entails a lot more than merely that. For instance, many states, both in England and in the United States, would also include restrictions on one's employment opportunities. It will also include voting rights, at least particularly in the United States. It does affect, for instance, a right of residence (if you are an immigrant, you may be deported if you commit a criminal offense), and a range of further consequences outside of imprisonment. And that's really what I'm interested in talking about. All of those other things, the invisible punishments that aren't often at the fore, because everyone, rightly so I'm sure, focuses first on imprisonment and the injustice when someone is imprisoned for an extended period beyond what they actually deserve.
SPENCER: It's interesting, because when someone gets a punishment for a crime, the justice system says, :Okay, this person is gonna get three years in prison.” Really, they're sentencing them to more than that. They're sentencing them three years in prison plus all the stigma and other negative consequences that come from that. And so it makes me wonder whether the judges fully are incorporating the severity of the punishment they're actually giving people.
KHOMOTSO:: Well, actually, that's the problem. They don't. A few scholars have begun arguing that they ought to. And so for instance, when a judge is convicting someone who, say, has committed serious assault. If you are going to convict them, you must actually incorporate, as part of the punishment and the judgment about whether the punishment is proportional, considerations like the loss of voting rights or the loss of certain employment opportunities. In the UK, for instance, you could even lose the right to state subsidized housing, in certain cases, depending on the seriousness of the offense. And so, all of these consequences don't actually form part of the calculation. And I argue that they ought to. And the simple way of explaining why they ought to is if we understand that what we are doing when you're labeling someone, a particular criminal offender, we are actually altering their status. So if we focus on their rights and their duties, it allows us to have a broader conversation. It even allows judges and themselves to start intuitively weighing in the full range of punishments that are actually vested on someone.
SPENCER: Right. One way to say that might be that we want the punishment to fit the crime, but the punishment should include all aspects of the punishment, not just part of the punishment, right?
KHOMOTSO:: Yeah, that's quite correct.
SPENCER: So how does this relate to the idea of dignity?
KHOMOTSO:: So dignity is really at the core. If you're going to start constructing an argument about why it is we owe these duties to people, you might have an intuitive argument of, “Well, the punishment has to fit the crime, it's proportional, etc.” But then we'd have to ask ourselves, “Okay, that's interesting. But is there a deeper story about why people ought not to be treated in certain ways?” So what dignity allows us, as a concept, is to start investigating whether or not the alterations we actually impose are not just proportional, but if they're ever justified, regardless of whether they are proportional. So are there some things that we just simply shouldn't ever be doing? So for instance, one example might be the seriousness of deportation. This is sort of an issue that's come up, particularly in the United Kingdom, where the Home Secretary has argued that according to UK law, the state has the right to deport people who commit certain criminal offenses. — I think it might also be the case in the United States as well, but you'd have to commit a violent or serious crime. — Regardless, some people have argued at least that, the act of uprooting someone from a community that they've known, if they've lived their entire lives, they completely violates a certain kind of right, and that is the right to dignity. So just to explain exactly what this would entail, sort of as a first point of call, the claim of dignity is a claim to equal moral status. That is, it is the kind of status that one has merely by virtue of being a certain kind of thing. But it's not just that you are a certain kind of thing, but that you are equally entitled to what everyone else who is the same kind of thing has or possesses. So an example would be, you have human dignity by virtue of being a human being — If we can correctly define a human being. There are always debates about when personhood begins, when it ends, what are the qualities or the properties of personhood, but let's just say that we could at least define what a human being is sensibly, we then say that — there are certain things we cannot do to you simply by virtue of you being a human being. That's less controversial, pretty well known. Anyone who's sort of read Kant on a Wikipedia entry about Kant would recognize that. However, in recent literature, it's not just human dignity that is an interesting focus, but one's dignity, for instance, as a free and equal citizen. That is, yes, we can at least admit that some things we can do to people, even if they're human beings, etc, doesn't violate the human dignity, but it could conceivably violate their right to equal citizenship. If again, we define citizenship properly. Would citizenship, for instance, include adult voting persons? Or would citizenship have a deeper meaning, i.e. a person who has lived in a political community and has contributed to said community? So you'd see there that you might have a richer conception of dignity that would then have implications for how we think about criminal labels and criminal punishment, and specifically how we think about all of these other punishments, aside from imprisonment.
SPENCER: So how does the idea of dignity relate to or differ from the idea of rights?
KHOMOTSO:: So in some cases, people often conflate the two things because a right, often enough, is seen as something one just possesses. And it's something that you could set against someone else...you have certain rights. Dignity is really the grounding for many, many rights that people have. So when people say, “I have a right to free speech in the United States,” let's just say you have a right to free speech, arguably, firstly, as a human being (at least if you believe the jurisprudence of Justice Anthony Kennedy) but you'd also have such a right as a citizen of the United States. And so dignity often works as the grounding for several kinds of rights because, in their most basic sense, rights are claims that we have against other people. And often enough, such claims require some kind of grounding, some kind of reason for why you ought to have the right to make claims of others.
SPENCER: One thing that confuses me about this idea of dignity granting us certain rights is that it seems to me that we can't value them infinitely. In other words, in practice, some things are going to be traded off against each other. And so if we say, for example, that a citizen of a country or someone who's lived in a country since they were a child or whatever, has this right to not be kicked out of the country, in practice that could come up against other considerations that are also valuable. For example, let's say this person is a known terrorist, and they've been doing bombings around the country. Well, the other considerations are like keeping people in the country safe. I guess what I struggle with here is what do we do when these things come in conflict with each other?
KHOMOTSO:: Well, this is why dignity is such a powerful idea. I think, in its classical sense, the argument would be, “No, there can't be any other balancing considerations.” And even in the cases that you have talked about, if we say someone has a dignitarian right or a dignitarian claim, then we actually can't weigh that right without interests against something else. Here you see sort of an instance when the concept of a right comes apart from the concept of an interest. Often enough, we can weigh different interests: the interests that we have in safety and security are arguably a tranquil order versus the interest someone may have in their familial relationships, or with their friends or whatever in a particular community. Those can be weighed up. But if we say that something is a dignitarian claim, we're actually saying that, “No, they cannot be weighed up in some sort of proportionality balancing act.” And that's why dignity is both a controversial but also a very, very powerful idea.
SPENCER: I guess I don't see how that works out, though, in practice. In situations, we may be forced to say, “Well, we either protect the right A of one person or right B of another person. And we actually have to choose between them. So I mean, can we really avoid this?
KHOMOTSO:: Yeah, in the instance of conflicts of rights, yeah I understand your point. So, in the instance of conflicts of rights, often enough, at least some scholars have argued, what courts actually are doing when they do so they're not really talking about rights, they're actually talking about interests. And what they're doing is just applying a standard of review, as we would call it (that's the technical term), but really just making a judgment about the reasonableness of certain state policies and their impact on people. However, if we have a dignitarian claim — so I'll use an example that's quite popular in the South African Constitutional Court, we abolished the death penalty in South Africa around the late 90s or so. And one of the main reasons in three or four of the 11 separate judgments of each of the judges was this idea of dignity, which was that it doesn't really matter even if someone has committed really heinous acts. It doesn't matter if that person is a threat. It doesn't really even matter if we are broadly sure that this person has committed said evil act. If they have a right to dignity, we simply cannot do certain things to them, i.e. if the right to life is grounded in dignity, in basic human dignity, then we simply cannot kill them. And so in that kind of instance, you never saw the court try to balance so-called competing rights in a certain case. They, instead, just said, “No, there is no balancing act. This is where the deliberation ends.” And so often enough, courts will use the same language of rights, but they don't quite mean the same thing. If that makes sense.
SPENCER: Yeah, that makes sense to you with regard to courts. But what about with regard to sort of moral situations? It feels like you could come up with a trolley problem example that really does pit rights against each other. And then there's this question, “What should we do?”
KHOMOTSO:: Yeah, very interestingly, with a trolley problem example (and I think this might maybe help make it clearer), Harvard Professor Francis Kamm has written quite a lot about trolley problems. And she argues that often enough what is clear from our moral intuitions is that, in certain cases, when we talk about conflicts of rights, we really do mean (which is something, I think, quite accepted in the literature) which is that most rights are grounded in interests. However, there are very narrow sets of cases when we, for instance, are imagining in a trolley problem a train hits someone and does so in a particularly violent or vicious manner, that actually what we are interested in is the kind of status violations that are dignitarian. And it's not so much that the person got killed, for instance, but how they got killed. Where, we think that, “Well, no, there are just certain things we shouldn't allow by mere sort of issue of the status of the person, or merely because they occupied a particular status as a human being or as a whatever, insert the thing.” And so even in the trolley problem example, I think this idea of the status, the dignity claim does come out, or at least, if you follow Francis Kamm, you might be inclined to think so.
SPENCER: I think my other biggest objections to kind of rights framing has to do with this thing I mentioned a little while ago, which is about the idea of infinite value, which is, it seems like there's something really appealing about saying, “Okay, we've got a line and we're never gonna cross it.” But then, if you start putting more and more stakes on the other side of that line — like, the entire future of the world is at stake or the suffering of all conscious beings is at stake — it feels like eventually, we have to violate that right. And I have to ask, “Well, then, what does it mean to have a right?”
KHOMOTSO:: Well, that would be the point. I mean, if you're a hardcore deontologist, you'd say, “Yeah, nope, still can't do it.”
SPENCER: You just bite that bullet. [laughs]
KHOMOTSO:: Yeah, you bite the bullet. There were very elaborate arguments about how you would go about justifying yourself in doing so. But essentially, you do just bite the bullet and you accept the outrage from many people.
SPENCER: Well, I appreciate the consistency.
SPENCER: So let's talk about contempt. How does that relate to all of this?
KHOMOTSO:: Contempt is another moral attitude that's sort of related to dignity and also related to our broader discussion about criminal labels. Contempt is essentially an emotion that, if properly understood, is all about treating people as inferiors. If you recall, dignity is about equal moral status, whereas contempt, when you hold someone in contempt, or you have contempt for them, you actually see them as lesser than you, or lesser than because they violated a standard of behavior that you think is the correct virtuous way of behaving. And so in that instance, the question of contempt is often a very tricky problem because most people feel contempt all the time for people. However, does that mean they consistently and always violate their dignity? So is it the case that if we are a society that takes dignity seriously, we can never actually condone instances of contempt of people displaying contempt for someone. This is made a little bit more difficult because contempt is actually quite a hard moral emotion or quite a visceral emotion. It isn't just contempt about a specific action that someone has committed, but that we draw implications about their character. So it's what you might call a very global or holistic judgment about someone. It isn't just about what you've done; it's actually about who you are. And that what you have done reveals something about who you are. And often enough you see this happen with the way people talk about or think about criminal offenders. We don't, unfortunately, hold to the Augustinian adage that we must hate the sin but love the sinner. Often enough, we draw implications from the sin about the character of the sinner. And then we treat such a person accordingly, i.e. we hold them in contempt. So you can see some of the tension that would come out if we claim to be a society that takes dignity seriously, but also somehow allows contempt to be a justified moral emotion that can be displayed both by the state and also by individuals in the interpersonal lives.
SPENCER: I think that a lot of people have the intuition that if someone is sufficiently bad, they don't deserve any moral standing. And it might even be not just acceptable to hurt them, but it might be moral to hurt them. And I think, you especially see these kinds of arguments made by conservatives, where the idea is if someone commits a really heinous act of murder, they'll say, “Oh, yeah, we don't want them to just go into prison, to eventually be able to come out and be reformed. We actually want them to suffer. We want them to be in a bad situation because they're a bad person. And they deserve it.” They serve as a sense of retribution. So I'm wondering how that interacts with this idea of contempt.
KHOMOTSO:: Actually, as a bookmark there, it's not just an argument or a moral emotion defended by conservatives, quite a lot of analytical feminist philosophies actually say the same thing. So for instance, feminist philosophers say, “Well, no, when someone commits an act of rape, they really actually deserve punishment. And they deserve in very many ways to be treated in a terrible way, of course, proportionately and arguably respecting their dignity.” But regardless, you see a similar kind of contempt. That is, the person hasn't just done something wrong. But if you have committed some kind of sexual offense, or particularly rape, you're also a predator. It's sort of like we're making a judgment about your broader character that the way you view women is categorically sort of evil or full of vice, etc. We're not just merely saying, “You committed a wrong” in the same way that you can commit a serious theft of some kind. We're actually drawing implications about your global status, the global character that you possess. It's about who you are, essentially. It's not just an argument popular with conservatives. However, what, at least, I would say is that I think a lot of people are incorrect to sort of be turned off from this moral emotion, or to reject it off-hand simply because it is a hard emotion, it is a visceral one. But it doesn't mean it's necessarily unjust. And I think the failure in most of the literature, the discussion, even in our ordinary conversations, is that we fail to make the distinction between just instances of contempt and unjust instances of contempt. So for instance, because it's focused on character, contempt often doesn't necessarily have to violate one status as a human being. So it isn't the case that you need to think that because someone is a rapist, and therefore worthy of contempt, they necessarily then ought to be stripped of the rights that they're entitled to as a human being. In fact, you could actually flip it around and say, “Well, if we take your dignity seriously, if we take your choices seriously, as a human being, then we have to take punishing you seriously, including the way we view your character as well. So we can justly hold you in contempt. However, that doesn't mean that we can unjustly hold you in contempt.” And I think that's the fine line distinction that a lot of people fail to draw.
SPENCER: So how would you define just contempt? And maybe it's tricky to do?
KHOMOTSO:: It would be, but I'll take the most sort of reductio ad absurdum kind of argument. It's very difficult not to see why you can justly hold someone whose génocidaire in contempt. If someone intended to murder millions of people or wipe out an entire community, it will be difficult to say that the instance of contempt that we would feel towards them is unjust or inappropriate. We are making a judgment about their character. We are saying that that particular conduct that they engaged in tells us a lot about the kind of person that they are. That doesn't mean, of course, that we can torture them. It doesn't mean, of course, that if you hold to sort of an abolitionist death penalty or abolitionist argument grounded in dignity doesn't mean that we can in turn kill them. However, it does mean we can punish them. And certainly, we can hold them in contempt.
SPENCER: Right. So what is the key aspect there? Is it the idea that their crime was so heinous, or is it because we expected that crime actually indicates something significant about their sort of ongoing personality or character?
KHOMOTSO:: It's both. It's that ordinarily serious crimes or serious roles actually do blight the character of a person that sometimes — I mean, it's sort of this intuition. I think you mentioned earlier, where people think if we're going to make judgments about someone's character, they have to be repeat offenders in some sense. So if you call someone a liar, they need to lie more than once. Because arguably, we all kind of lie. We all tell white lies now and again. But if you do it habitually, then you gain the label, the status, of a liar. That's not necessarily straightforwardly the case. — There are instances where we could say, “Well, it actually really matters about what you're lying about.” So if you, for instance, lie under oath, and you perjure yourself, we kind of can call you a liar, even though you only perjured yourself that one time. If you tell a huge lie about, let's say, falsely accusing someone of a particular crime, I think we could, arguably, call you a liar, even though you only did it once. And the reason why is actually because of the seriousness of the offense. So essentially, I would argue, in a very pagan way, that St. Augustine may have been mistaken in thinking that we actually can make a neat distinction between the sinner and the sin. No, it really matters what the sin was.
SPENCER: What about a situation where the sin was very grave, but there's reason to think that this person will not commit the action again?
KHOMOTSO:: That's a very good question. I would argue that it depends on what is the act that we are engaging in, if we're responding to the wrongdoing. Are we interested in punishing the person? Or are we interested in mitigating future harms, i.e. risk—we're really concerned with risk? Most of the time, we're actually interested in punishment, and punishment is a backward looking exercise that actually interrogates the nature of the wrong and then makes a judgment about that. If we are saying that the state can do that (the state in certain instances can rightly hold people in contempt), we're also saying, really for all intents and purposes, that we're not quite interested in whether or not they're going to reoffend. That is a separate question. So it isn't the case that our current practices, for instance, of criminal justice necessarily are only concerned with punishment, they're also connected to risk. So a good example would be in sexual assault. Are we, for instance, worried about future offending, and so we put someone on a sex offenses registry? That's probably to do mostly with risk. We don't want someone who has committed sexual assault against children who we know, generally, tend to have a higher risk of reoffending (at least that's what a lot of the data shows). However, in instances when someone has raped an intimate partner, let's say a husband rapes a wife, in that kind of case, we're not actually interested in future conduct. We're interested in punishing the gravity of the offense. I would argue that, in both instances, we're still entitled to make judgments about their character. It's just that we need to be clear about why we are doing so.
SPENCER: So imagine that we have algorithms that we designed to try to make moral decisions, and we code them in Python or C++, and we put them in different environments and see how they behave. Let's say, they control a robot and these environments, where you could start to think about, okay, let's say you don't actually know, you can't look at the code, all you can look at is sort of how the algorithm behaved in a situation. And in one of these situations, you see the robot being controlled by the algorithm walk up to another character and kind of mercilessly bludgeon the other character. And then from that, you can start to infer something about the underlying algorithm. You can say, “Well, this seems like evidence that this algorithm sort of is going to behave badly, and so we can start to make inferences about the future behavior of that algorithm.” On the other hand, let's say that that algorithm was put into an extremely difficult situation where it had no choice. It either had to bludgeon Person A or bludgeon Person B. Both of them are innocent victims. Then you would say, “Okay, well, in this case, we can infer a lot less about the algorithm because he was put into such a difficult situation. There was really no behavior that was sort of pure or ethical by normal standards. And so we can't really make inferences. And so, I'm wondering if you find that this frame is helpful in terms of thinking about, in a given situation, how much can we really infer about sort of the underlying algorithms in that person's brain about how they decide, how they behave?
KHOMOTSO:: The law has been trying for thousands of years to get that algorithm right, and probably hasn't really entirely succeeded. So one thing, at least, that we would say is that if we're looking at the kinds of situations under which someone commits a criminal offense, we likely would say it does matter. And in fact, that's why we sort of have two stages in an analysis where we offer someone defenses, so they either have justifications or excuses. So justification would say, “I have done nothing wrong.” So it's a denial of the wrongdoing. But an excuse would be, “I did do something wrong, but it's not exactly my fault.” i.e. someone held a gun to my head, someone blackmailed me, or I have this condition where sometimes I enter a particularly violent state of mind, etc. And that we would classify as an excuse. However, we even have another stage, which is about mitigating and aggravating circumstances. And often enough, quite a lot of jurisdictions would, for instance, say a mitigating circumstance would be a lack of a likelihood of reoffending. So if someone committed an intimate crime, or an intimate act of violence against a friend who betrayed them, or a partner who betrayed them, we would likely say, “Well, not really a high probability that this person would necessarily do it again, if this was a specifically very toxic relationship or really difficult that the chances are a lot less and often enough.” That does enter the judgment or the sentence of a Judge. Of course, on the opposite end, you could argue that the fact that this was an intimate relationship, and that someone was so violent, ought to be even more reason for us to be afraid that they may or may not commit it again. So it is often difficult to actually justify the kind of judgments we're making about how people's brains are wired, but these are the rudimentary tools that we have, at least, until we get better ones.
SPENCER: Right. And I think one thing that's interesting about that example you bring up, I think people may have very different tuitions. Some people's intuition might be, “Oh, wait, if they're willing to hurt their wife, maybe that means they're actually an incredibly bad person because that's the person they should be most kind and loving to.” Whereas another person might think, “Well, if they're willing to hurt, why doesn't that mean they're gonna hurt anyone else? Maybe it's idiosyncratic to that situation.” And you could debate that, but maybe that's just part of the complexity here, that we can't do the analysis and use an objective answer, or maybe it's a difficult answer to get empirically. So how does all this connect to the idea of honor?
KHOMOTSO:: So these moral emotions, contempt and even dignity itself are both related to an idea about honor. Or at least, that dignity is the opposite of honor, traditionally understood. And contempt, arguably, is related to honor but very different in one important sense. So I'll try and at least explain how so. Often enough, when we talk about the idea of honor, we're actually talking about a socially constituted status, that is a status that isn't necessarily dependent on actual moral virtue or actual goodness. People are using it as a tool to infer that one has virtue, etc. But we're not really actually investigating whether you have done virtuous things. We're assuming, for instance, if we belong to an honor culture, that gentleman, often enough, display a particular tenderness, protectiveness, etc, towards the opposite sex. So here, we're thinking of a culture like something like the 1700s in England, or we're assuming that nobles actually have nobility. They have a sense of altruism, a sense of self sacrifice or something like that. And, arguably, nearly by occupying that status, that is enough for us to at least make inferences about their goodness or about the actual virtues that they possess. And so the important thing about honor is that, if it is mostly socially constituted, it means that if you're an on a culture, you also require a social hierarchy. That's quite clear. And so you need nobles, and you need peasants. You need gentleman and you need rapes, I guess, would be the outdated term. And so this is quite different — if you can sort of just see where this is going — to a dignity culture, because a dignity culture would tend to resist the notion of rigid social hierarchies. It's an equalizing principle. It sort of moves from the starting point that everyone has equal moral status. A good way of thinking about it is a philosopher at NYU, Jeremy Waldron, argues that what has happened in the last 200, 300 years or so, is that everyone has become nobles now, and we all sort of occupy the old status that nobles would have had, and the kinds of rights that nobles would have had without a moral underclass expressly recognized by law (at least, that's the notional argument).
SPENCER: Those are interesting examples to me, because I think that many people would say that those are just sort of the public perception that this sort of upper class wants to create, as opposed to sort of the true reality of the situation. Like, nobles want people to think that they're more noble. And it serves them to propagate that message. And they have the power to propagate messages like that. I don't know whether you were taking those kinds of points of view at face value, and maybe you weren't, maybe you're just using that as just one way of thinking about that.
KHOMOTSO:: That was exactly what I was gonna make, that dishonor is very different from contempt or justified and unjustified contempt in the following way: that is, honor would be merely by the public statement, that one is known to occupy a certain position, and it is known and acknowledged by everyone, you are then invested with certain rights, and thus may view those in the lower orders with contempt. You're relying on the social status that you have as a justification for why you can actually look down on others. Whereas contempt properly understood is all about the actual reality of someone's virtue or vices, and not about the social status that they occupy. And I argue that, in fact, there are still people who actually hold to a kind of honor ethic. Now I'll give you a contemporary example, and maybe it might be a little bit controversial. But there's a certain way in which certain liberals talk about conservatives and conservative voters as something like an honor ethic. They're not really interested in whether or not said conservative voters actually believed or shared exactly the same values, or the actual reasons that they voted the way that they did. And also that they may have very good reasons for disagreeing with a liberal or a member of the upper class. But there's just the assumption that by the mere fact that they occupy a certain status or a particular position — conservative — and the mere fact that you occupy a certain position that is liberal, you are known, therefore, to be virtuous. It's not about whether you're actually a good person, whether you actually do good in any real sense of the word, but you are a Democrat, and you vote Democrat. And that's simply sufficient, apparently. And in a sense, the worst kind of incarnation of this is someone who thinks by the mere status alone, they then have the right to hold someone else in contempt without asking questions. So I want to add the caveat that it may very well be that said a conservative person is indeed a terrible viceful person, but you kind of need to do more work before you come to that conclusion.
SPENCER: Right. I do think we see a lot of this, although I do think it also runs in both directions.
KHOMOTSO:: Oh, yeah, yeah! Conservatives look down on pretty much (what is it) libtards (I guess). Of course it does.
SPENCER: Yeah. And to your point, it seems to me that a lot of the reason that people take one side or the other is just explainable as a social phenomenon. It's like not everyone has time to think through every argument on first principles and look up the empirical evidence. It's like, almost everyone trusts the people around them. And 99% of the people around you believe a thing. And if you don't have a really strong reason not to believe that, you're probably going to believe it. And so, this is why I try not to hold people in contempt just for their like large category membership. Because the reality is they probably are just adopting the views of those around them, not because they decided that this is on their own, and that this is the right way to do things. So I may think that their belief is harmful or really wrongheaded. But, it's easy to understand how a person gets to almost any position they widely believe in.
KHOMOTSO:: Yeah, I think you're completely correct. And in this instance, it's why I think it's important, at least when we are making big decisions about public contempt — when I say public contempt, I mean when the state or when institutions hold individuals with contempt to certain categories — of that what we're doing is not relying on an honor ethic; that we're actually still committed deep down to a kind of dignity ethic that is searching for the just instances of just contempt, where we can probably say, “No, we've looked at the character of the actual person. We've looked at the actual conduct. And in many ways, we think that we've reached the right response about how they ought to be treated.” And I think, for instance, the example I used is particularly dangerous because dignity, at least as it pertains to equal free and equal citizens, would entail the right to have reasonable disagreements with people about fundamental questions, and not necessarily then be assumed to be a viceful person. Of course, there are reasonable instances where we say that some things ought to probably be quite obvious. Like, let's say there's a clear moral consensus about racism right now. However, the question is not quite so straightforward because it really depends how you define racism. I'm sure a conservative would have a very different notion or definition of racism than a liberal. And so, by their status, both liberal and conservative, as free and equal citizens, they're entitled to at least be safeguarded from unjust instances of contempt, and also against an honor ethic that just simply assume that because they occupy a particular socially constructed identity (like Democrat or Republican, etc, whatever) that that then warrants them being held in contempt.
SPENCER: So do you argue that basing our views on dignity is better than basing them on honor?
KHOMOTSO:: Yes. I would say, for instance, how to connect it to the earlier or the broader conversation about criminal labels, is that I kind of think that the way we think about criminal offenders is a little bit similar to how we would have thought in an honor sense. We try to think of people who commit crimes as an underclass. And we don't often ask the serious questions about whether or not they actually merit our content. So a good example might be the reasons why someone commits a crime are never really reflected in the criminal label. So sometimes people commit crimes out of desperation. Other times they commit crimes because they've been disadvantaged in certain structural ways or whatever. And other times they commit crimes because they are sadistic and actually morally reprehensible. And we don't ask some of the deeper questions. So for instance, I'm not exactly a bleeding heart on this question. I actually do think that people who commit crimes because of heinous motivations, etc, definitely warrant very serious punishment, and almost unrelentingly so. But I worry about the people whose reasons and motivations for why they commit crimes are completely forgotten. And yet, they are held in contempt, simply by membership to an underclass of a convicted person. And a very good example of this. I think in the United States, and particularly in the current moment, has been the way that particularly young black men have been seen in particular societies and the assumptions made about them, especially once they're convicted of a criminal offense. Even if say defense was minor, we often dismiss them as perpetually so, in the same way we would think about peasants, I think, almost. Again, that is not to say, those who commit serious crimes should not be seriously punished, precisely the opposite. But it is to say we ought to guard against an honor ethic in how we make our judgments.
SPENCER: This seems especially important in a world of plea bargains. (Khomotso: Yeah) My understanding is that a huge number of people don't even have a sort of realistic option to go to court, because it is like, “Oh, well, you can go to court, and you can rest this incredibly long sentence and punishment. And you probably don't have the money to afford a good lawyer. Or we'll give you this plea bargain, where you're basically admitting to committing a certain crime, whether you did or not, but we're gonna give you a clearly much better deal. You're gonna get much lighter punishment, much lower risk.” And so in that world, people can basically be incentivized to agree to having done something that they didn't do, and so effectively gets stuck with a label just to get a better deal.
KHOMOTSO:: Yeah, that's exactly right. In fact, I think it's a perfect example of why we need to ask some further questions when we label people, and how we treat them, and particularly how institutions treat them. I do think that the circumstances of a plea bargain really ought to matter about how we adjust people's rights, and what we actually do to them once they've served the hard treatment. So if someone entered a plea bargain — likely from an underprivileged background, etc. — we ought to at least have some questions about whether or not this was simply a strategic decision, or we actually think there was reasonable evidence that probably pushed them to just admit that they actually committed the crime. I think there are some jurisdictions where, for instance, one can plead guilty, but with a notice that this is a strategic decision or that they are still innocent. And I think things like that could be really useful, at least, in ensuring that we are not too over inclusive in our judgments about criminal offenders.
SPENCER: I haven't looked into this, but I've heard that in some jurisdictions, it's assumed that so many people are going to plea bargain that if people actually didn't the whole system would essentially break down because there wouldn't be nearly enough judges to actually go through.
SPENCER: So it's just sort of baked into the system that they're going to offer you such good deals that almost everyone's going to, just on a game theory basis, agree with them.
KHOMOTSO:: Yeah, of course. It's not just that the judges think about the game theory motivations of prosecutors. You've just got a huge caseload, and you want to move it as quickly as possible. You're rewarded for convictions in certain cases or in certain jurisdictions. And so, yeah, all the incentives there sort of work to probably occlude the actual reasons people actually commit crimes, or even if, in fact, they are actually guilty.
SPENCER: So how does the idea of redemption connect all of this?
KHOMOTSO:: Yeah, so it's kind of connected to my warnings about an honor culture. It's that if we were a dignity culture, and if we took it seriously, there's another aspect of dignity, which is part of how we justify punishing people, is that your actual actions, your reasons for your actions, really matter. And these matter, not only because you have equal moral status, but because you are actually an autonomous individual, or at least we treat you as though you were an autonomous individual. And so we respect your decisions. And we respect the reasons for your decision. In doing so, if we are doing that when we punish you, we also ought to do it when you alter your character, when you reflect, when you show repentance for the wrongdoing that you have committed. If we take you seriously, as a free moral agent, we have to acknowledge the steps one has taken, and the reasons why they took those steps in redeeming themselves in becoming a part of a moral community again, as a fully upstanding citizen (if that makes sense). And so there we have caused to remove our feelings of contempt in instances when people have actually redeemed themselves. And also, to remove our punishments of them, it does really matter whether or not people are actually reformed.
SPENCER: I think one of the issues that's so tricky about redemption in modern society is that redemption is really relative to a particular group. Like, you could redeem yourself to one group, but there's no kind of consensus for redemption. So maybe some people could forgive you, but then you still have this label of criminal to others. So I'm wondering, does this require some kind of centralized action, like a judge actually, like officially, removes your criminal record or something like this?
KHOMOTSO:: Yeah, of course. I do think that it is an authority, particularly a state that punishes you, in the first instance, said state or authority must then be obligated to remove it. So for instance, in the UK, there is a piece of legislation called the Rehabilitation of Offenders Act. And it talks about certain instances when offenders can apply to have their criminal records wiped clean, and it will be as though you have never committed the offense. However, importantly, this does not mean in the absence of hard treatment. So, people actually are punished. If you want to think about it in the classical Christian sense, people have to pay a penance before they are redeemed. And so the model there is to say, “Well, we've clearly punished you because it's our obligation to punish you, to visit you with a certain kind of treatment that is a burden. But, how have you internalized that burden? And once again, even the hard treatment itself is seen as a form of communication. It's actually an address to the offender saying, “Look, what you did was really serious. We expect you to reflect on what you did. And we respect enough of your agency to say that you might not give a damn in the end about the seriousness or otherwise. But we, as a moral community, are certainly going to take you seriously enough to actually impose these burdens on you. But if indeed you do reflect on this, once again, we as the moral community, but particularly the state, the authority responsible for punishing, the state itself, will then acknowledge your redemption.” There is a process of centralized method of doing so. And it's quite extraordinary that this piece of legislation has not really had equivalent models in other jurisdictions with much higher rates of imprisonment and much more serious methods of punishment.
SPENCER: I guess a major issue it raises is how do we know who's reformed? Because we really would want the person to get to a position where they're very unlikely to do the same action in the same situation. So, maybe when they were young, they murdered someone in a rage. And we want to know if that person was in the same situation now, they will never do that same action. But that's such a difficult thing to know.
KHOMOTSO:: Yeah. That is why these pieces of legislation are so controversial, because everyone ends up debating the criteria for redemption. And rightly so. But the best we probably can do is to say, “In the same way when we sentence you, we try to form an assessment of who you are, and of course of the circumstances under which you committed the crime. When you say to us that you are redeemed, we are then going to make another assessment about who you are. And then we're going to look at the circumstances of your life as it currently stands. We're going to look at whether or not you are making serious amends to the kind of victims that you may have actually targeted. We're going to look at whether or not any serious way you've taken steps to figure out why you committed this thing. So for instance, rehabilitation and therapy will be a huge part of this. We're going to look at whether or not in fact, the act that you committed, in some sense, might be irredeemable.” And so this is a more controversial part of the literature. For instance, there's a philosopher at Cambridge, Matthew Kramer, who argues that there are simply some things from which you cannot be redeemed. And even if you were redeemed, we probably ought to just simply accept that you cannot be part of this moral community anymore. And this is under the broader auspices. He's probably one of the few liberal philosophers I know who's defended the death penalty. And he argues in the sense that, for instance, someone who's committed genocide. We just simply cannot think of an instance or an action under which they can properly redeem themselves. So, Hitler, for instance, it almost begs the mind about how you could come up with criteria about how Adolf Hitler would redeem himself if he were to be punished.
SPENCER: What do you think of these cases where someone's behavior suddenly shifts due to a medical issue? For example, someone who has been an upstanding citizen, let's just take that as a given for their whole life. And then one day, they go into a murderous rage and kill people. And it's discovered they have a tumor that just started growing. And it's like pressing on some part of the brain that we think might interact with violence, and then they remove the tumor and their behavior goes back to normal. And let's just assume the facts are all true, that this is actually what happened. How do you think about that? How do you think about redemption with regard to cases like that?
KHOMOTSO:: I think, classically how would we be understood would be that in that case, it was an instance of an actual excuse. Like I said, we admit that the person actually did something wrong, but we don't think that they had the capacity to understand their actions. And so we simply cannot hold them responsible through punishment. What we can do, of course, is put them in an institution because they might be a threat to others. We start then shifting to the risk assessment part: how likely is it that this person could end up flying into a murderous rage in the future somehow? And in that kind of case, I think that's probably why you would place those kinds of people under serious observation for extended periods of time to, in fact, make sure that they're not about to fly off the handle again. But the honest truth is, that person is excused and so not held responsible and therefore has no duty for redemption or to try and redeem themselves. The medical issue is almost equivalent to how you would have understood demonic possession in a different era.
SPENCER: Right, and I agree with that analysis. But it leads to interesting consequences when you start tweaking the scenario. So now let's say instead of the tumor being kind of removable, let's say they can't remove the tumor. So, this person is now a permanently dangerous human. And, we no longer can take them back to their prior state. Now we can reasonably say that this is actually a bad person now. This is actually someone very harmful. And yet, it happened to them sort of due to an unfortunate accident due to this tumor appearing in their mind. So I'm just wondering how you think about that case.
KHOMOTSO:: So cases like that, we might have to think about another concept, sort of introducing the sixth or seventh concept. And that's the concept of mercy, which is instances when we think, “Right, it would have been right to punish someone in a certain way. Or it may, in fact, be right to keep them under observation indefinitely, just because of the seriousness of the crime, and we can't ever risk it.” We'd start thinking about mercy and kind of informed by a sense of dignity. That is, do we really think that people in circumstances like this really ought to be treated this way? And if we don't, or if you think that there might be some reason to be uncomfortable with it, we don't necessarily have to think about it as a full dignity claim. Instead, we can ask ourselves, “Well, is the state entitled, does the state have a right to exempt such a person from restrictions that would have been appropriate entirely for reasons of reasonable compassion.” And so mercy, in that instance, may actually help do a little bit of work in explaining why there may be cases where we think, “You know what, we get that it was serious, we get that a lot of people may be fearful. But really, perhaps let's just show a bit of compassion in this kind of case. Especially for instance, imagine if this person is tearing themselves apart over what they've done, and desperately could do with family, friends, etc, to try and deal with the horror of what they've done, even though they know that they weren't responsible for such a horrific act.
SPENCER: One thing that pushes me to really want to have compassion for all beings, is that I think, that example where you get a tumor, and that totally changed your personality permanently, is really extreme, it seems to me that we're sort of all in this situation to some degree. We didn't choose our genetics. A series of life events happen to us. Depending on your view on freewill, maybe they're all outside of our control, or at least, if not, at least many of them are outside of our control. We didn't choose what happened to us as a two year old, and we don't choose a lot of the things that happen to us. So we were all in sort of this setting where we didn't choose the way our minds are. And that sort of pushes me to saying, “Well, we should be compassionate to everyone because even the worst person didn't choose to be a terrible person. And, yes, we may need to keep them in jail. And yes, we may need to punish them to prevent other people from being incentivized to do bad things. But still, they didn't choose to be a bad person.” So what are your thoughts on that?
KHOMOTSO:: So I'm going to play my cards openly on the table and say, I'm actually a compatibilist, or what you would call a compatibilist on the free will debate. I just don't really think that free will, or the lack thereof, or something, necessarily exempt us from being held responsible for our actions. However, I am also partial to the concept of mercy and, specifically, mercy doing serious work in the criminal justice process. So for instance, there's a really amazing philosopher at the University of Oxford, John Zerilli — he heads up the new AI or ethics and AI center, people who are interested in that kind of thing, but he also does really amazing work on criminal punishment as well — and he's argued that mercy isn't just nearly a right that the state may bestow on people in criminal punishment. But actually, it's a part of the justification for why punishment is permissible in the first place, that there needs to be this open space for compassion in a justice system where the person punishing, let's say, it's a judge or a parole board or something like that can actually really step back from the process of trying to make the punishment for the crime and so forth, etc., and also look at the humanity of the person, look at their circumstances, hear their story about whether or not they were abused as a child or not, and so forth. And in that instance, then regulate punishment with an ethic of mercy there. Of course, there are those who do disagree — Matthew Kramer is, I think, another one who really, really would disagree with that, mainly because I think he'd probably say that it's quite patronizing to view human beings this way, as almost just (I don't know) sort of doomed victims of their circumstance in many ways. — And it often begs the question whether or not this moral intuition, where we say, “Well, some people couldn't choose because of genetics or social circumstances, etc. And the often sort of bland replies, “Yeah, but most of those people are not murdering people, or most of those people are not raping people. Most of those people aren't necessarily stealing.” And so, it kind of does, I think, violate the intuitions or, I think, the vision of the human being that some people would have. But from my case, I'm quite open to mercy doing real serious work in the criminal justice process, depending on the offense. I think in the most serious offenses, it's more difficult for me to support a merciful ethic, I admit. But on other kinds of offenses, especially offenses that haven't really devastated and destroyed the lives of the victims, we can actually really seriously take mercy more seriously in the enterprise. And we could do more.
SPENCER: So taking a pragmatic perspective here, we've talked about all these different topics today, the idea of a criminal label, dignity, contempt, honor, redemption, mercy. How would you like to see society organize itself differently based on these concepts?
KHOMOTSO:: Some very obvious changes would be, I'd really like to see more thought being given to the kinds of punishments outside of imprisonment that we actually visit on people. I really want more judges to be forced to justify themselves about why it is when someone commits theft, for instance, they then lose their voting rights. I could understand how someone commits an act of terrorism and then loses their voting rights. You can kind of construct an argument that that's been a violation of citizenship. We could even say that about more serious offenses, that basic rights of a citizen should be to be free from violence or something like that. But often enough, this crude, open-ended way of punishing people, I think, is seriously unjust and really affects people, sometimes in more serious ways than the actual imprisonment. Think about not being able to get a certain job, not because you committed a violent offense, but nearly because you committed an offense. You were a foolhardy teenager who tried to steal a car or something. And for the rest of your life, you are going to be seen and treated that way, even though you didn't hurt anyone, etc. Yes, of course, you damaged their property and you were infringing on their property interests. But in no serious way were you harming them. Do we really think that we live in a just society, if we actually allow such a person to be treated as a perpetual irredeemable offender for the rest of their lives? I think not. So I think in those concrete cases, it ought to be a legally enforceable principle to take seriously someone's dignity, to take seriously just contempt, to take seriously redemption. I think these aren't just merely ethical considerations. I think they ought to be legal principles introduced into legal systems and genuinely engaged with by legal officials.
SPENCER: Fantastic, thanks so much for coming on today.
KHOMOTSO:: Great, it was a pleasure. Thank you so much for having me.
JOSH: A listener asks: “What's something that you disagree with most smart, educated people about, and why do you disagree?
SPENCER: There's two things I want to point to here. And I think when I say them, people are like, “No, a lot of people will agree with you on that.” But I think I like the way that I disagree is I just think it's more true than most people do. And so, the first is this interesting parody where I think that science is really one of the most powerful things that humanity has ever invented. I think a lot of people would agree with me on that. But I also think that our execution of science is not anywhere close to like the power of science itself. So in other words, a lot of science is not actually very scientific or something like that. And I think that a bunch of people would say they agree with me. I think this is more true than they do, if that makes sense. And why do I think that they would disagree with me on this? Basically, I just think I've spent a lot more time than most people digging into the sausage of [laughs] like science getting made, especially in psychology, but also to some extent, and other sciences. And I just think it's pretty bad. Yes, there are some amazing scientists doing amazing work. And yes, there's still amazing discoveries being made. But I just think, there's a lot of bad stuff that's just not working properly, that's not really living up to the idea of science at all. So that's the first thing I'd point to. The second thing, I think, I'm gonna get critiqued in exactly the same way people say, “Oh, no, no, others agree with you.” And I'll just say, Well, I think it's more true than most of them do, which is that I think there's just a vast amount of fakeness in things. And by fakeness here, I don't mean like superficiality. I mean, that the activities that large human enterprises or industries or disciplines do is often not what it's claimed to be. And either it doesn't achieve the objectives that it claims it does, or it just does a different activity than it seems to be doing. And I think this is true in many areas. And I think this kind of fakeness is pretty pervasive. It's not absolutely everywhere and it differs by field, like some are more fake, some less fake. But, I tend to think that like a lot of stuff is more fake than most people think it is.
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