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Punishment and Memory

The public outcry at the decision of the Crown Prosecution Service that Lord Janner was not fit to stand trial for 22 sex offences, the last of which were allegedly committed in the 1980s, appears to have led the CPS to initiate a review. Janner’s case raises several issues about the punishment of crimes that may have taken place in the relatively distant past.

Some of these issues were discussed in an excellent recent post by Tom Douglas, focusing on the case of Oskar Groening. Tom touched on the question of personal identity and punishment. I’d like to say a little more about that in the case of radical personality change such as that caused by very severe dementia, and in particular about the connection between memory and moral responsibility (on this see section 5 of David Shoemaker’s helpful piece on personal identity and ethics in the Stanford Encyclopedia).

Consider three (imaginary) cases of people who have committed a serious violent crime in the past. In the case of all of them, brain and capacity for consciousness continue to exist as normal over time. The first case, Forgetful, is based on a conversation I had a while ago with Julia Driver. Forgetful has entirely forgotten about the violent crime, but is otherwise functioning normally. Nothing can be done to jog her memory – that crime has entirely disappeared from her mind. I suspect that some might have qualms about punishing someone for a crime they really can’t remember, but that most people would find it acceptable: what matters is that Forgetful is still the same person who committed the crimes, not whether she can remember them or not. Consider a case in which someone commits some crime and then takes a drug that makes them forget it forever. The common sense view is that they are still accountable.

The second person, Demented, has severe dementia, which she began to suffer from after the crime. Her memory is limited to about 20 seconds, and she has no psychological connection with her past self of any kind. Some people will believe that she is still liable to punishment, since she is the same person who committed the crime. But many – perhaps the majority – would consider this unjust. As Tom suggested in his blog, punishing someone like this for a past crime is rather like punishing one person for a crime committed by someone else.

The third case, Tenacious, is perhaps more tricky. Tenacious is just like Demented, except that she can remember committing her crime absolutely vividly. She can answer questions about it which show beyond doubt that it was her, but if you asked her, for example, which country she was living in at the time, she wouldn’t have a clue. Further, when reminded of the crime, Tenacious becomes quite distressed, and appears to be feeling guilt and shame.

It would be interesting to know whether the same proportion of people would think Tenacious should not be punished as those who thought this about Demented. My guess is that this proportion would be significantly smaller. And that might seem to suggest that, even if someone is so psychologically unconnected with a past self that we would be very reluctant to call them the same person at all, they may still be liable to punishment if they have one single psychological connection: a memory of their crime.

(For discussion and comments, I’m very grateful to Theron Pummer, whose fascinating paper ‘Does Division Multiply Desert?’ in last year’s Philosophical Review claims that identity over time isn’t necessary for the transmission of the basis of desert.)

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8 Comment on this post

  1. Very interesting. My vote is for neither being punished, but it would be because I assume Tenacious would not be able to connect the punishment with the crime and that the bewilderment that would ensue would therefore be cruel and unusual kind of torture rather than punishment. In essence she is not competent to be punished (now).

  2. Memory on its own cannot justify punishment, since people can erroneously believe they have committed a crime yet actually did not: we do not think delusional or mistaken people deserve punishment just because they might think they do.

    The problem seems to happen mainly if one takes a retributionist view – what does the guilt stick to? If the purpose of punishment is social censure or deterrence, then the contents of memory do not really matter. If one just takes the consequentialist view of punishment as a tool for rehabilitation, then of course Forgetful may need rehabilitation not to do the crime again (presumably there might be some propensity for it), Demented cannot be helped, and Tenacious is presumably well on the way to rehabilitation already.

  3. Thanks, both. That’s a good point, Sarah. It raises the question of what the content of the memories of the crime might be. Perhaps they are just ‘images’, rather than the thought ‘I did that’. Anders: I was suggesting only that memory might make punishment appropriate, not a ‘false’ memory. I agree with you that the intuitions I was referring to are retributivist.

  4. Hi, Roger

    Very interesting cases. With respect to whether they deserve punishment – and how much -, it seems to me that that depends on the similarities between the brains/minds after the change, and before it, but it’s not clear to me how much they changed (I think that I’d probably oppose punishment on the basis that there is not enough information about how they changed in order to establish beyond a reasonable doubt that they deserve any punishment, or how much. But that does not address the heart of the matter, which is whether they [probably] deserve it, not whether other people have enough info to justify punishment even if they do deserve it).

    For example, Forgetful entirely forgot about the crime, but is the part of the brain that decided to commit the crime, etc., essentially unchanged? If so, it seems to me she’s still guilty, and deserves punishment. But it’s hard for third parties to know that.

    In “Demented”, I’m not sure that’s the same person, but in any case, I think she probably does not deserve it, because regardless of whether the expression “same person” applies, the individual is psychologically radically different from the one that committed the crime and does not seem to even have an (active) part of her cognitive system matching the part that was directly involved in the crime.

    The “Tenacious” case is more difficult, because clearly a part of the cognitive system that was directly involved remains, but still, most of it does not (or is not active). I’m inclined to think she probably doesn’t deserve it, or deserves partial punishment. But more info would be needed to make a better assessment.

    That aside, on the issue of whether personal continuity is required, I tend to think not, but my take on desert is I admit rather odd.

    Side note: regarding the paper “Does Division Multiply Desert?”, I think the Fusion section suggests a solution to the Division problem.
    More precisely, Pummer rejects that Barbara deserves punishment even after HypnoRay3000 made her phenomenologically identical to Angela, because HypnoRay3000 does not provide the adequate sort of causation. Assuming Pummer’s assessment is correct, it seems to me a parallel argument is available in the case of Division.
    For example, if GrowthRay3000 is used to stimulate a few neurons and grow an entire brain from them, identical to the one the neurons came from, arguably that’s not the sort of causation (btw, even though the paper does not specify it, small parts of the brain do not contain the info to build the whole brain, so the info came from somewhere else).
    In fact, the neurons in question may have played no role whatsoever in the decision to commit the crime (for example), and even if they did, they would constitute a tiny part of the new brain, so arguably the person would only deserve at most tiny fraction of the punishment the original person deserved (assuming always that Barbara does not deserve punishment, for the reasons given in the paper).
    In the simple Division case, for similar reasons arguably Righty and Lefty also don’t have the right causation, and while they both deserve punishment, they only do so in proportion to the guilty part of the brain they inherit, leaving the total amount of deserved punishment unchanged, regardless of whether one of them survives, or whether it’s proper to call them the same person as the killer or a continuer of that person; being a continuer in some sense would not guarantee the right kind of causation for fully deserving punishment.

    1. Thx Angra. I guess Forgetful’s brain can’t be *entirely* unchanged, as there will be some physical correlate of the memory which has now disappeared. But I’m assuming that otherwise her brain is fine. I was interested to see you speak of ‘partial’ punishment in the case of Tenacious — that was the kind of position I imagined some would want to adopt. I will leave Theron to respond to your last comment!

    2. Hi Angra – thank you so much for reading and commenting on my article! In the sorts of fission cases I’m considering, I make the empirically unrealistic assumption that the left and right cerebral hemispheres are redundant realizers of a single mental life; if the right one were destroyed, the same mental life would continue as if nothing had happened. Given this assumption, I take it that if I deserved punishment for killing someone, and then lost either hemisphere but kept the other, I’d deserve just as much punishment as before. The right sort of causation is in play in this simple case, right? Now suppose you take my single cerebral hemisphere and make it grow back into a full brain (using some advanced ray technology), where again both hemispheres are redundant realizers. I take it that I, now with a full brain, would deserve just as much punishment as I would with just the one hemisphere, which is just the same as I did initially. It’s true that many of the neurons I end up with weren’t around when the crime was committed, but I don’t see why that matters, if it makes no difference to the mental life and if psychological and physical continuity are preserved (as I am assuming). Consider operations where perfect replicas of my neurons replace my actual neurons, gradually and one-by-one, like the planks of the Ship of Theseus. These operations would preserve everything that matters for egoistic concern, and for desert. Note that everything I just said refers to a case where I lose one hemisphere, but if there’s the right causation in Only Lefty Survives, there is also in Only Righty Survives, as well as in Killer’s Division. (The HypnoRay3000 case is different, since there one is given – among other things – different memories. The cause of the hypnotized’s memory is not a wrongful act that they or someone they are a continuer of performed, but an advanced ray technology. *That* seems the wrong kind of causation.)

  5. Roger,

    Thanks. I agree Forgetful’s brain can’t be entirely unchanged; what I meant is that the specific part that made the choice (if it was the whole brain, the part mainly involved) is at least for the most part unchanged, though I agree not entirely so. But maybe that’s not possible, either? I admit I don’t really know.
    I’m thinking about scenarios like the following case:
    Forgetful2 just can’t form long-term memory – like Demented. But short-term memory works fine, so he has about 30 seconds of memory. Before he lost the ability to form long-term memories, he was a brutal serial killer. After that, he remains just as brutal, but due to his condition, he’s quickly caught after the first new murder he commits. Still, he keeps trying to commit murder.
    In a case like that, part of the brain changes – when he short-term memory is deleted -, but for the most part (not entirely), the brain that made (and makes) the choice to commit crimes, went through with them, etc., is [probably] the same as the brain later (but it’s hard to tell without much greater knowledge about the brain).
    While Forgetful is a different case, perhaps (or perhaps not) also the part that decided to commit the crime, went through with it, etc., is not more changed than it is in the Forgetful2 case; also, the rest of Forgetful’s brain is essentially unchanged. Only in the particular case of her violent crime, a long-term memory was not formed for some reason, or was formed but then lost.
    In the case of Tenacious, I’m not sure she deserves partial punishment, though I consider it a live option based on the description. Tentatively, it would depend I think on how similar some part of her brain is to the part [mostly, if all the brain was involved] involved in committing the crime.

  6. Thx Angra. Forgetful2 is an interesting case! My guess is that most people would see this as similar to my Demented, but that is just a hunch.

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