Terrorist Beheadings and Other Forms of Disease Transmission

By Hazem Zohny

Most of us are disturbed by people who take hostages and then cut their heads off while filming it. Alexanda Kotey and El Shafee Elsheikh – the remaining members of the British Isis cell nicknamed “the Beatles” – are accused of such gore. Now that they have been arrested by the US-backed Syrian Democratic Forces, the UK home secretary Sajid Javid has suggested that, contrary to standard practice, the UK will not oppose the death penalty for them.

Kotey and Elsheikh are the kind of malefic figures that push our most primal retributive buttons. Unlike a hungry shoplifter or drug addict, to whom many of us might respond with compassion, terrorizing decapitators seems to demand being snuffed out of existence – not only to deter others from copying them but also, as Boris Johnson put it, to retributively kill them as “payback for the filmed executions of innocent people.”

Given the vengeful emotions at play here, it might be interesting to apply to Kotey and El Sheikh what’s been called the “public health-quarantine model”. This model (to which I’ll henceforth refer to as PHQ) is based on the premise that all our retributive impulses are unfounded, and that in fact, Kotey and Elsheikh – and indeed all people, no matter what they do – do not act freely and are not morally responsible for their actions.

That is to say, PHQ is an approach to justifying some forms of criminal sanctions while also being sceptical about moral responsibility. It is mostly associated with the work of Derek Pereboom and Gregg Caruso – themselves moral responsibility sceptics. To be sceptical about moral responsibility is to be sceptical about people having the capacity to act freely and therefore deserve – in some deep and perhaps ultimately ineffable sense – punishment when they act wrongly.

The free will and moral responsibility debate is a labyrinth of mind-numbingly intricate back-and-forths, so I’ll only say this about it: while full-on scepticism remains a minority position, even more moderate stances on the topic typically hold that, to the extent that we are free at all, it is really nothing like our folk conceptions of freedom. We are agents that are sufficiently restricted in our control over who we are and how we act that many of the punishments meted out by our criminal justice systems are likely unjustified. In that light, PHQ would seem useful to consider even if we haven’t fully given up on free will and moral responsibility as we know them.

At its core, PHQ says we ought to treat criminal offenders like innocent carriers of infectious disease: we ought to cure/rehabilitate them, and if their capacity to “transmit” harm to others is particularly dangerous, we “quarantine” or isolate them from society.

However, in the same way that less dangerous diseases warrant preventive measures that are less restrictive than quarantine or isolation, less dangerous criminal acts warrant less restrictive responses. That is, in the same way we don’t quarantine someone with the common cold, we shouldn’t incarcerate someone with a disposition to harm others that is roughly equivalent to a carrying a minor infectious disease (say, someone who runs a stop sign or smokes in a non-smoking area).

However, in the same way that when we do quarantine people with a highly infectious disease we also seek to cure them and not make their circumstances any more miserable than necessary, similarly, when we incarcerate individuals with dangerous dispositions, we should do so while also trying to rehabilitate them and without making the circumstances of their incarceration more miserable than necessary.

More than that, public health is not just about quarantining infectious people and curing them. Quarantine is a last resort deployed only when all the other disease prevention measures have failed. Similarly, incarceration should be a last resort, and we ought to instead focus our crime fighting resources on building the societal infrastructure that stops crime from happening in the first place (whatever that infrastructure may be, though for Gregg Caruso, that infrastructure is rooted in greater social justice).

So what would PHQ advise us to do regarding Kotey and Elsheikh? On the analogy offered by this approach, these two are infected by a particular strain of militant Islamism that, combined with their particular circumstances and dispositions, has led them to transmit that contagion to others in a gruesome and deadly way. While preventative measures could have stopped them – say, by altering the socio-political circumstances that meshed with their particular dispositions to make them who they are, or by altering their dispositions more directly through education or some kind of therapy, or simply by monitoring them earlier on – at this stage it is clear they pose a danger to others, and we therefore rightly ought to isolate them from others.

However, on this model, while we incapacitate them, we to ought to also study their condition and attempt to “cure” it. Failing such a cure, we could justifiably keep them indefinitely detained, but there would be no justified reason to do so in a way that causes them more suffering than necessary. On this approach they are, after all, no different from someone who is a victim of Ebola. If and when we decide they have been cured, they may be released – although even after that we may justifiably monitor them and continue to check them for “symptoms”.

I think PHQ has a lot going for it, although I imagine some might be worried about its seeming medicalization of criminals, where bad or evil people are rendered merely ill ones that are themselves victims of their biology and environment.

I don’t have much sympathy for that concern, but I do wonder about one particular disanalogy between people with especially deadly infectious diseases and terrorists who behead innocents (or any other violent offender). A person carrying an infectious and deadly disease really does need to be isolated from everyone except medics in hazmat suits, but a decapitating Islamist terrorist (or any selectively dangerous criminal) can presumably still be visited by friends, family, and other non-infidels without much risk of harm. Unlike someone suffering from a debilitating disease that in itself makes one’s life miserable even without being isolated, the otherwise incapacitated offender may still enjoy some mobility, entertainment, exercise, nice meals, and so on.

Given that on this approach we ought not make the circumstances of a dangerous offender’s incapacitation any worse than necessary, this might entail transforming prisons into relatively pleasant sojourns – at least when contrasted with a precarious life of poverty or community violence.

I think this disanalogy undermines one of the key effects of criminal sanctions: deterrence. Most of us are already quite incentivized to avoid catching a disease because being diseased and potentially isolated from others are in themselves deterring consequences. But for those with an inclination to commit a crime, criminal acts are not in themselves deterring like catching a nasty disease typically is. And, if getting caught and being incarcerated means decent treatment and the possibility of regularly spending time with loved ones, then the cost of getting caught committing a crime drops significantly.

In fact,  this may well incentivize crime: consider people who commit crimes in the US merely because being in prison grants them access to healthcare.

I’m not sure how PHQ can resolve this problem, though it’s worth pointing out that the evidence for the deterring effects of criminal punishments as we know them is mixed at best. More importantly, a significant proportion of the most violent, repeat offenders are psychopaths, and it’s not clear psychopaths can be deterred by the threat of punishment to begin with. So deterrence may not work where we’d most like it to anyway.

Perhaps by focusing crime fighting efforts mostly on the preventative front – that is, by combatting the socio-political forces that lead to much of crime, including the lack of mental health care – the need for heavy-handed deterrence will all but vanish. Greater social justice within countries is also likely to correspond with fewer unjust wars, as well as fewer unjust trade agreements – arguably two of the key factors that led to the sorts of circumstances in which people like Kotey and Elsheikh could come to be.