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.
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