Notice that nothing in the epistemic argument here suggests that no prisoners should, in fact, spend the rest of their natural lives behind bars. Instead, the point is that rationality requires that we leave the epistemic door open to acquiring new information. Put bluntly, the argument says that it is irrational for the possibility of parole to be taken off the table at the outset of any sentence....
Nearly all of my students at Stateville are serving natural life sentences. At least a handful of them have been incarcerated since they were teenagers, one since he was 14. While I didn’t know any of their decades-earlier selves, their current selves are some of the most extraordinary students I’ve had in my 15 years of teaching. They are painters and poets, mentors and authors, researchers and advocates. They breathe new life into philosophical questions I’ve been asking for the entirety of my career. And yet we tell these men that who they are now and what they have accomplished matters so little to how they ought to be treated that we won’t even bother to consider it. Rationality demands that we do better.--Jennifer Lackey "The Irrationality of Natural Life Sentences," New York Times.
I warmly recommend Lackey's Opinionater piece (although I was surprised she did not explore the possible role of the existence of the death penalty in motivating natural life sentence);* she raises important questions about the status quo in the penal code while giving a sense of the significance of philosophy to individuals, including prison populations, and the public. By combining her experiences with analysis, she makes philosophy come alive.
I agree with Lackey's conclusion. Even so, I would argue that it's not always irrational to limit (even severely limit), in the present, the scope of decision-making of future temporal selves or polities: promises, contracts, debts, laws, and treaties all do this; as Elster reminds us, Ulysses did it to listen to the Sirens.
We may engage in such limitation, or self-binding, for all kinds of reasons, but because Lackey is primarily interested in exploring an "epistemic argument," I note that there is an important epistemic reason to limit the availability of new information, or evidence: doing so can (other things being equal--and of course they may not be equal and in the penal system they are definitely not equal) reduce uncertainty. Enforceable contracts and promises are paradigmatic instruments to reduce (epistemic) uncertainty; they allow, for example, for better and less costly planning and also for more reliable causal inferences. This is true in low and in so-called high stakes environments. In fact, reducing uncertainty may be more valuable in high stakes environments than allowing new evidence to influence operations. This can sometimes involve eliminating any (or severely restricting) any possible role for new information or evidence. (This is basically a variant of Hume's argument for the extremely strict enforcement of the rule of law.) It's only when a practice is overwhelmingly oriented toward truth, rather than some other end, where epistemic doors have to be kept open (and even, then, there will be constraints -- of time, money, etc. -- that may keep doors closed).
Having said that, nothing in the previous paragraph undermines Lackey's idea that there is something really wrong about ruling "out the possibility of ever considering additional evidence" (that may motivate parole) about the cases she is describing. But I worry that couching it in the terms of contemporary epistemology actually misplaces the problem. Lackey's main argument is described in this passage:
But one argument that is surprisingly absent from these conversations is an epistemic one that has to do with us. For natural life sentences say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal. Nothing. So no matter how much a juvenile is transformed behind bars, and no matter how unrecognizable an elderly prisoner is from his earlier self, this is utterly irrelevant to whether they should be incarcerated. Our absence of knowledge about the future, our ignorance of what is to come, our lack of a crystal ball, is in no way a barrier to determining now what someone’s life ought to be like decades from now.
What Lackey is pointing to here are three, non-trivial moral-political & moral-psychological (if not metaphysical) phenomena (that combine for an argument): (i) persons can change dramatically over time -- let's call this the transformation thesis --, and (ii) imprisonment is imprisonment of whole persons and so the whole characters of these persons matters to the justification of imprisonment. In addition, (iii) imprisonment is justified (at any given time) if the incarcerated person deserves it (at that time). I am going to ignore here the fact that Lackey also sometimes seems to presuppose the unity of the virtues (such that in virtue of her students being wonderful in a variety of ways now implies they are not capable of the kind of crimes now -- let's stipulate that they were rightly convinced [something that may well be worth challenging] -- that landed them in trouble).
Lackey's epistemic argument is, of course, not irrelevant to these three non-trivial moral phenomena, but I submit that if natural life sentences are irrational in the epistemic sense it will be so because we come to believe (not just because the brain-science evidence Lackey provides, but also, say, inspired by the work of Laurie Paul) the truth of the transformation thesis and some version of (ii-iii). But (i-iii) are substantial theses that deserve independent scrutiny. In particular, if one is moved by epistemic arguments in favor of uncertainty reduction and accepts the limitation of the scope of future action, then it is not obvious one will be moved by considerations like (iii). For, one thing natural life sentences do is to remove, fairly or not, questions about future desert from consideration altogether at the time of sentencing. Of course, if one thinks this question is removed unfairly (as it seems Lackey does), then one can argue this. But at this point we have left epistemology and slid into ethics or political theory (or something in that ballpark).
And, in fact, Lackey herself notes that "public attitudes can evolve, moving away from a zealous “war on crime” approach to one that sees much criminal activity as the result of broader social problems that call for reform." This suggests to me that beneath the epistemological argument she is really appealing to a Dewey-Anderson style argument about the nature of a proper democratic culture in political life (recall): no political decision is final, and democratic life is itself an ongoing, experimental learning (or epistemic) process in which policies, including legal policies, are tried out and evaluated in light of experience. This argument has deep roots in American culture (e.g.,Thoreau). Of course, this kind of theoretical argument also appeals to epistemic virtues and epistemic standards, but, again, the force of the stance that Lackey exhibits is not primarily epistemic, but rather political and moral. And it strikes me as a mistake to consider those that reject this political and moral stance as "irrational."
So, to sum up, this post is not intended to challenge Lackey's core insight. There is something deeply problematic about natural life sentences and the unwillingness to be receptive to new evidence that may allow one to reconsider a decision is part of the problem. Lackey is right to call attention to it. But the reasons for it being problematic are not really epistemic, but moral and political.
Why care about labeling the argument? Lackey explicitly notes that she treats her argument as an addition to the existing moral (legal, etc.) arguments; so I do not want to suggest she is pretending to be offering a unique argument against natural life sentences. (And, as it happens, I defend the role of epistemology in political theory in my inaugural lecture tomorrow.) But, even so, there is in analytical philosophy a recurring temptation to treat moral and political issues as problems of meaning, language, or epistemology and, 'when we go public,' thereby, fail to do justice to the public's moral concerns (even if these concerns are flawed); by treating these as "irrational" we use reason to end conversation, rather than opening it up--and this would be an odd result, especially because Lackey exhibits so much courage to generate the right sorts of conversations.
*The thought being that Lackey's epistemic argument may, in fact, have motivated part of the popularity of natural life sentences as an alternative to the death penalty because it opens the door to evidence that would ground appeal down the road.
The procedural legal principle Res Judicata ["matter having been adjudicated" -- the full maxim is "res judicata pro veritate acciputur"] is the immediate subject here. That is, once a legal matter has been fully litigated, the same matter cannot be reopened between the same parties. This principle holds true even if it becomes clear that the original decision was grounded on error or the law subsequently changes. It operates more broadly in the criminal defendants favor through the principle prohibiting double jeopardy. This is not only a rule in criminal procedure; it is a general procedural principle applying across the law, applying whether criminal or civil/large or small - from a parking ticket's fine to a natural life sentence; from a small claims order compensating for a fender bender to a bankrupting mass tort claim.
The basic reason for the principle is clear: there must be an end to legal disputes at some point, e.g., after reviews of law during pleadings, facts during trials and the whole operation again on appeal, if the law is ever to settle matters. If matters were forever open to relitigation, it is not clear how any legal process could function. The legal maxim is "interest reipublicae ut sint finis litium."
In fact, however, it is not true that a criminal life sentence can never be reconsidered. The principle of res judicata applies far more weakly to judgments for crimes requiring incarceration. In addition to special rules allowing for overturning convictions where there is clear error, this is true as a matter of constitutional law because the action of habeas corpus allows unique collateral review of criminal imprisonment. For example, although this would not be available in civil cases or cases involving criminal judgments less than imprisonment, a variety of issues relating to the unconstitutionality of the original conviction or the legality of the conditions of present imprisonment can be raised through habeas corpus. A habeas corpus action in principle could lead to the reversal or modification of the original sentence.
As importantly, unlike in civil cases, the chief ground for the remedying of errors in criminal sentences lies with the executive branch. The U.S. President and all governors have constitutional rights of pardon and commutation that allow them to change any natural-life sentence, abolishing all criminal liability or reducing the sentence at their discretion. Furthermore, the legislatures are fully capable of accomplishing the same thing by means of a general law, and though it cannot order a person convicted by means of a law, it can reduce present sentences. T
Therefore, the factual premise of the piece as described seems to me somewhat unfairly put. In our system of government with sovereign power divided among the branches of government, the rationality of the system of natural-life sentences must evaluated by considering all the powers to change sentences given across the branches. Although it is true that res judicata limits the judicial ability to modify sentences to special cases, it is not true that the government is not open to such modification. Anyone can file a petition with the Governor or President for clemency.
The real failure, I would suggest, lies in the diminishing willingness of the executive to pardon and commute. But this is the result of political distrust in executive officials, just like the rise of mandatory sentencing is result of distrust judicial discretion. Voters don't trust the judgment of Presidential pardons, see Mark Rich. Part of the cost of dramatic political action taken by the U.S. judiciary over the last fifty years -- whatever one thinks of its merits -- is that its discretion is no longer trusted by a substantial portion of the citizenry. The polarizing effects of recent decisions of the courts where it was seen to be intervening in matters once firmly left to the people is unlikely to restore this trust soon. The cost of corruption in Presidential pardons of the rich and judicial activism in favor of political constituencies is borne in part by those whose experience of genuine metanoia our leaders cannot be trusted to discern.
Posted by: Eric Enlow | 02/05/2016 at 05:02 AM
Eric, most of your comments are orthogonal to the issues at hand; and you seem to have misunderstood Lackey's (and my own) understanding of the law. She (nor I) does not claim that a "criminal life sentence can never be reconsidered." (You missed my footnote.) She is writing about cases where -- for the sake of argument -- she assumes no error has been made.
Having said that, in your last paragraph you do speak to the issue at hand in terms of our democratic culture. I have to think about the merits of your interpretation.
Posted by: Schliesser, Eric | 02/05/2016 at 05:58 AM
I don’t see that I mistook Lackey’s understanding of the law. Lackey claims it’s irrational for legal systems to make final legal decisions about another person’s life that rule out the possibility of later considering other evidence.
I described the general legal principle by which this is done in every area of law, the rationale of the principle, and the special exceptions made for incarceration -- like habeas corpus, pardon and commutation, which are not appeals and are not limited to questions of guilt or innocence -- which make her argument particularly weak with respect to sentencing issues.
To address the issue she has chosen without addressing these basic aspects of the law response to her concerns is an omission that weakens her argument of irrationality.
Simply put, the law provides for the consideration of what she would have the law consider in respect of sentencing, but in any case, the law’s application of res judicata to a sentencing decision is a particular application of a general principle with a clear rationale, which she doesn't address, that is adjusted to take account of the severity of incarceration.
Maybe lawyers can’t see squarely with philosophers, but that doesn’t seem orthogonal to me.
Posted by: Eric Enlow | 02/05/2016 at 03:46 PM
Sorry, Eric, but you are simply missing the point. Prof. Lackey and I are discussing cases where (by stipulation) there is no error or nor evidence of innocence.
Posted by: Schliesser, Eric | 02/06/2016 at 04:59 PM
I'm equally sorry, but it would seem to any lawyer that you are missing the point. Res judicata is the relevant legal principle describing why, error or no in the initial judgment, changed circumstances do not allow a reconsideration of a judgment once made.
You've fixed on it but nothing I said depends on her remarks being predicated on problems relating to initial error.
Cheers, and I hope your talk went as well as all your preparation deserved.
Posted by: Eric Enlow | 02/06/2016 at 07:31 PM
You take legal principles as given, but as I point out in the post that's a matter of politics. Changed political circumstances may (need not) make one reconsider those principles.
Posted by: Schliesser, Eric | 02/06/2016 at 08:55 PM