Responsibility beyond blame: unfree agency and the moral psychology of criminal law's persons

Reeves, Craig (2022) Responsibility beyond blame: unfree agency and the moral psychology of criminal law's persons. In: Lernestedt, C. and Matravers, M. (eds.) The Criminal Law's Person. Oxford, UK: Hart Publishing, pp. 139-166. ISBN 9781509923748.

Abstract

Retributivists often claim that a therapeutic stance towards offenders and respecting them as persons are incompatible: only the retributive or ‘just deserts’ model, and not the ‘treatment’ or ‘therapy’ model, can respect offenders as persons. In a series of recent papers, Nicola Lacey and Hanna Pickard have challenged this orthodoxy, arguing that, on the contrary, therapy can be reconciled with respect for persons, because we can reconcile therapy with the justice model. They argue that Pickard’s ‘clinical model’ of ‘responsibility without blame’ based on reflection on therapeutic work with psychopathology shows us how to reconcile the justice model of criminal responsibility and punishment with the reparative and reconciliatory ideal of a therapeutic dialogue animated by a spirit not of blame but of forgiveness. It is a richly suggestive account animated by a humane impulse, and it challenges the retributivist revival to take seriously the real psychology of criminal law’s persons. Yet, I argue, it does not go as far as – according to certain of its own impulses and insights – it ought to in challenging retributivist dogma and our existing criminal practices. This is because Lacey and Pickard concede a crucial retributivist premise: that respect depends on holding responsible, ‘detached blame’; that anything else might reify or ‘dehumanise’ offenders, treating them as mere things or animals rather than rational agents. That premise, though, presupposes a theory of agency and a moral psychology, both questionable, which are embedded in our existing holding responsible practices. Lacey and Pickard’s acceptance of this retributivist premise prevents them from getting into view something that their own reflections on affective blame imply: that our moral emotions disclose the inappropriateness not only of punitiveness but of the categorial structure of our practice of holding criminally responsible, ‘detached blame’, itself. Far from being uniquely placed to respect offenders as persons, the retrib- utive practice of detached blame, of holding responsible and punishing, is incapable of doing so. Therapy can be reconciled with respect, I contend, not because therapy can be reconciled with the justice model, but because respect does not depend on the justice model at all. The latter's austere conception of respect ignores the psychology of real persons and fictionalises them as autonomous beings abstracted from the constraints, limitations and privations of psychological reality. Lacey and Pickard’s model is unable to follow through on its important insights into the normative significance of the real psychology of persons because it remains committed to a responsibility practice governed by such a fiction. In order to institute respect for criminal law’s persons, a radically transformed responsibility practice would be necessary. I conclude by sketching how the suppressed grammar of taking responsibility might be promising. * Book synopsis: Encounters between criminal-law scholars and those working in 'explanatory' and 'behavioural' sciences have often been characterized by mutual distrust and defensiveness. This distrust is especially intense in connection with the theory and practice of criminal responsibility. To break this deadlock, a new framing of the issues is needed. This is not simply a matter of asking, for example, what follows for criminal responsibility (and responsibility more generally) from the latest scientific findings in neuroscience. Research and conferences on neuroscience and the law abound. Rather, what is needed is to re-examine the fundamental idea of the criminal law's person so as to construct a more nuanced understanding of criminal law's blameworthy individual. That is the goal of this volume. Achieving this goal is necessarily an interdisciplinary task and the volume brings together an international group of academics from across the fields of law, philosophy, and ethics to engage with these topics.

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