:: Article

responsibility and punishment

Katrina Sifferd interviewed by Richard Marshall.

[Photo: Marcela Rafea Photography]

Katrina Sifferd is a funky philosopher of law and stuff, and is always brooding on what difference eliminating folk psychology would have on criminal law, on what’s wrong with the scientific viewpoint regarding this issue, on making neuroscientific data relevant to legal responsibility, on Richard Posner and worries about the use of folk psychology in law, on why multi-disciplinary approaches are important, on the impact of technological advances, on successful and unsuccessful psychopaths, on how different theories of punishment matter to how we treat psychopaths, on taking issue with Searle, on why philosophers should keep up with neuroscience and about why women get a bad deal in philosophy departments. This one bites…

3:AM: What made you become a philosopher?

Katrina Sifferd: I went to law school on scholarship straight out of undergraduate college with the idea I might do public interest law. After I graduated from law school I worked on (future Illinois Governor now federal prisoner) Rod Blagojevich’s Congressional campaign, and then on criminal justice research projects funded by the US National Institute of Justice. During this time I wrote position papers on gun control, the purposes of punishment, and the many contradictory provisions of the Illinois Penal Code, and spent over a year observing criminal trials in Chicago, which resulted in a report on the treatment of victims by the Cook County criminal justice system. None of my work in politics or criminal justice seemed to have a positive impact – to the extent I helped Rod get elected I might have harmed the public interest! – and what I wrote was edited and to some extent censored due to other people’s political concerns. After a few years I decided I’d be happier working within academia. Policymakers don’t seem to pay attention to work by research analysts or academics, but I figured as an academic I could at least say what I wanted.

I hoped to take a rigorous, interdisciplinary approach to problems in criminal law and punishment, and philosophy seemed to be a discipline that would allow me to do so. I was lucky that King’s College London, where I did my PhD, admitted me with an undergraduate degree in psychology, a law degree, and only a year of graduate level philosophy.

3:AM: You’re interested in criminal responsibility and punishment. One thing you’ve defended is common-sense or folk psychology when used in law. So you say the law should take the state of mind ‘intent to kill’ or ‘knowingly’ seriously. Before saying why, can you outline the main reasons some say that this folk psychology is all wrong and shouldn’t be used in law?

KS: When folk psychology was under attack twenty-some years ago by eliminativists, the practice of holding persons responsible was threatened. If Paul Churchland is correct and folk psychological terms are radically false, then when judges and juries are trying to determine if a criminal defendant intended to kill someone, or knew that their act was likely to result in a death, they are looking for nothing real in the world, and criminal verdicts are nothing but post hoc just-so stories. One goal of my PhD thesis was to show how radical of a claim ontological eliminativism is from the perspective of the criminal law: if folk psychology is false, criminal verdicts, which of course result in very serious consequences for defendants, cannot be justified.

I think most of the elminativists, and behaviorists such as Gilbert Ryle, were motivated by the idea that folk psychology isn’t “scientific” enough. They were dubious that we can use our perceptions of people’s outward behavior to postulate true claims about what is going on in their heads. But this suspicion seems unjustified: a quick examination reveals that folk concepts tend to be roughly accurate, not radically false. Folk physics concepts, for example, appear to have captured true distinctions in the physical properties of objects. Solidity doesn’t really mean “no spaces between”, but folk concepts of gas, liquid, and solids do capture real differences between these states of things in the world, and such concepts have predictive power (liquid undergoes displacement whereas solids do not). So it seems a safe basic supposition that folk psychological concepts are likely to capture real categorical differences in the brain between states of desire and belief, or happy and sad, for example, especially as they seem to be so useful to understanding and predicting behavior.

Nobody really takes the elminativist position seriously anymore, but worrying about eliminativism is an effective way to begin exploring how true folk psychology has to be for our system of criminal responsibility to be correct, especially given data from neuroscience, and how we might effectively translate neuroscientific data into the folk psychological terms the criminal justice system uses.

3:AM: This seems to be the same territory that Chomsky walked into when attacking the behaviourists. Jerry Fodor is another contemporary philosopher who has done much to argue for common sense psychology too. And Dan Dennett also has justified using the folk psychology too even whilst being critical of Chomsky’s attacks on Skinner in some respects. So are you remobilising those arguments in your defence? What are your main arguments here?

KS: Well, I certainly agree with Fodor that a main argument in support of folk psychology is that it “works.” Most contemporary philosophers are physicalists, meaning they think the mind consists in all and only physical stuffs, and thus must be the brain on some level of description. Realists about folk psychology claim that mental states couched in folk psychological terms refer to brain content and/or function; elminativists argue that folk psychological concepts are radically false regarding the causes of behavior and thus must be eliminated and replaced with a scientific theory.

As I already said, the vast majority of us are very adept at using folk psychological concepts to predict and understand human behavior, and for this reason it seems unlikely that folk concepts are radically false regarding the causes of behavior. It seems right that when I think “He will be really sad about that, he might cry” versus “He will be really happy about that, he will smile” that my folk psychological concepts “happy” and “sad” describe two different sort of happenings in the brain, reliably linked to two different sorts of observable behavior (tears and smiles).

So yes, I’m making the same sort of arguments many have made in support of realism about folk psychological concepts. However, I go a bit further than many contemporary philosophers of mind, because I’m a reductivist. I argue in a forthcoming paper that the best bet for preserving full-blooded responsibility is reduction of the folk theory to scientific theories of psychology, which results in the preservation of the sort of mental causation needed to hold a person responsible.

3:AM: There are some who took the Sellarsian idea of the ‘myth of the given’ as a reason for dismissing the given and making the scientific the only justifiable way of understanding. So from this we might presume that the suspicion that folk or common sense psychology isn’t true – and so shouldn’t be used in law – is that it isn’t scientific enough. What’s wrong with this scientific viewpoint?

KS: Well, for one, we won’t be able to make responsibility assessments. When you show a jury a picture of a brain lighting up in such-and-such a way it means absolutely nothing to them until somebody translates the scientific data into folk psychological terms. Expert witnesses in a trial cannot just point to a dark spot on a PET scan and sit down: the scientific data is irrelevant to the defendant’s culpability until is it translated into folk concepts that push and pull responsibility assessments in different directions. For example, an expert might note that the dark spot is a brain tumor likely to result in a severe lack of impulse control, which the jury might feel undermines attribution of the highest levels of criminal intent.

I think it is interesting that some scientific data actually seems to push responsibility assessments in both directions, or in ways unanticipated by the side offering the evidence in a criminal trial. In one high profile capital sentencing hearing, the defense offered neuroscientific evidence of psychopathy in an attempt to prove diminished capacity (and thus a mitigating factor); but instead, the jury seemed to think the data made the defendant more culpable for his actions, and sentenced him to death. Is a person whose brain shows clear signs of psychopathy less responsible because of their abnormal brain function or more responsible because their brain is abnormal (and thus they are likely to be dangerous in the future)? I think it depends on the way in which the brain is dysfunctional, and maybe the reasons why it is dysfunctional. There is a lot of important work to be done making reliable translations of neuroscientific data into folk descriptions relevant to responsibility.

3:AM: In the context of law Richard Posner has argued against folk psychology hasn’t he and is a kind of behaviourist. Are there different considerations in the way the common sense psychology is attacked and defended in the context of law that tend to be missed out of the purely philosophy of mind and psychological literature?

KS: There are special worries in the legal context regarding the way in which folk psychology can be manipulated. Jury consultants make a living trying to figure out the type of folk psychological attributions a potential juror will make from very few cues (gender, age, religion, dress, occupation). I’ve heard such consultants say things like “I can tell from her earrings and shoes that she is an upper income conservative, so she’ll hate our black defendant.” The consultant means that the potential juror is more likely to attribute (in folk psychological terms) violent intent to the defendant, whereas someone else – maybe a black juror with lower socioeconomic status – would be more open to exculpating evidence and may be less likely to attribute violent intent.

I’ve also seen prosecutors deny juvenile defendants a chance to shave so they appear older in an attempt to influence a the decision to send their case up to adult court, and defense attorneys try to give juvenile defendants clothes too big so they look younger (in an attempt to undermine attributions of full capacity). So, although I’m a realist and think folk psychological concepts refer in a meaningful way to brain states and function, I am well-aware that we can be mistaken in our folk psychological attributions, and this is especially worrying within the context of the criminal justice system.

3:AM: Is a reason for multi-disciplinary approaches would you say that by looking at an idea in different domains – say folk psychology in philosophy of mind, in psychology, in philosophy of mind, in law, in moral philosophy – we get a more nuanced and rich sense of the possibilities and issues that we might miss were we to work in just one domain?

KS: I think philosophers can get stuck thinking within a particular sub-discourse of philosophy, and forget about the very important real-world ramifications of their work. If a philosophical theory of mind is true, it should probably not run counter to the best theories in scientific psychology: or in the very least, a philosopher of mind should be able to explain how her theory intersects with the best scientific psychological accounts. I find the work in consciousness especially striking: If consciousness cannot be understood in terms of a scientific account of the brain, and we know the brain causes behavior, then we may not be able to understand conscious states as a cause of behavior, which is a problem, especially for responsibility. I’ve heard academics say things like “We have no idea how the brain enables the mind” but then agree that some scientific evidence of brain trauma should be admitted as evidence in criminal trials. These two claims are contradictory: if we have no idea how the brain enables the mind, evidence of brain states cannot be taken as evidence of the presence or non-presence of the mental states necessary for culpability.

3:AM: What threats do nanotechnological advances in neuroscience bring to your advocacy of common sense psychology? Why aren’t they fatal to a common sense psychology and holding people legally responsible for their actions. Doesn’t it strike you as wrong that if I have some chemical implant that makes me desire illegal things I’m as culpable as someone who hasn’t?

KS: It depends on how you came to have the implant. If I hypnotize you and then cause you to commit a crime (because I have bypassed the rational processes that may usually drive your behavior), you aren’t responsible for your act, I am. Similarly, if I use quantum dot nanotechnology to force you to act in a way that bypasses your rational processes, you aren’t responsible. Interestingly, the former technique of manipulation is currently possible, whereas the latter is not, at least not yet.

3:AM: You’ve also looked at the legal responsibilities of successful and unsuccessful psychopaths. What’s the difference between success and failure here – and what difference does it make?

KS: It is a really rough categorization: successful psychopaths have minimal contacts with the criminal justice system, whereas unsuccessful ones have considerable contact. Messy as the distinction is, there seems to be real differences between persons in the two categories with regard to executive function in the brain. Both groups have abnormal affect/emotional responses, but successful psychopaths don’t seem to be impulsive like unsuccessful psychopaths, which is how they avoid being put in jail or prison. It may be that successful psychopaths aren’t as antisocial as unsuccessful ones because they are more capable of conforming to social norms, and when they do commit crimes, they are smarter about it and thus less likely to get caught.

My colleague Bill Hirstein and I have argued that executive functions constitute the “legal self”, the aspect of our mentality that really matter to legal agency and responsibility. Because successful psychopaths have intact or even higher than average executive functions, they are capable of conforming their behavior to law, and should be held responsible when they commit a crime. Unsuccessful psychopaths might be more properly seen as having diminished mental capacity, which should influence their level of culpability and the types of punishment we apply to them.

3:AM: You’ve also argued that different theories of punishment will make a difference to how the law treats psychopaths. What’s the argument?

KS: Different theories of punishment seem to emphasize different aspects of our cognitive capacities as most important to culpability. Bill and I have argued that deontological accounts which postulate emotional response or empathy as crucial to moral knowledge and decision-making might be more likely to excuse all psychopaths because of their apparent lack of relevant affective data. Some deontological theorists believe that a lack of appropriate emotional response translates into a wholesale lack of legal rationality. A consequentialist theory of punishment, however, may be more likely to hold some psychopaths responsible, because it emphasizes the need for rational capacities as a means to grasp and reflect upon the consequences of action given ones goals and relevant social norms (a skill successful psychopaths may possess), and not the way one feels about these consequences.

3:AM: You take issue with John Searle’s notion of ‘non-reductive physicalism’ and Stephen Morse’s use of it in law. First, can you say what Searle’s view claims?

KS: Searle argues that although mental states are causally reducible to underlying brain states, they are not ontologically reducible. An ontological reduction involves a claim that an object or event of a certain type can be shown to be nothing more than or determined by objects or events of another type, in the way that a rock can be shown to be nothing more than atoms arranged in a certain way. Searle claims that it isn’t that case that consciousness can be shown to be nothing more than neurons firing in a certain way (etc.). The point of the concept of consciousness, says Searle, is to capture the first person, subjective experience, and this subjective phenomenal feel of a conscious state is not constituted by or identical to underlying brain states or processes. Instead, Searle says it is an ontologically emergent property of biochemical brains like ours.

3:AM: How does Morse apply this to law? What difference does it make? And why is it a wrong headed view?

KS: I think Stephen adopts Searle’s nonreductive position because he is worried that reduction of conscious mental states to brain states will undermine responsibility. Stephen has argued that the reduction of mental states to brain states at the level of neural networks would force us to see humans as the “victims of neuronal circumstances” who have no conscious agency. But there are many problems with Searle’s nonreductivism. First, Searle claims consciousness is an “emergent property” of systems of neurons, whose existence can be explained by the causal interactions between elements of the brain at the micro-level, but can only be accessed by the person who owns the brain producing consciousness. But he is a physicalist who denies property dualism – that is, he denies that there are non-physical properties – and thus the properties of consciousness must be physical spatial properties of the world (presumably with causal effects). This means Searle posits a physical causal property of the brain that is somehow inaccessible to science. It would seem the burden is on Searle to show how such a thing could exist, but no answer is forthcoming in his work.

Further, although examination of a brain state using current scientific means may leave out information of how this brain state feels to the holder of the state, this is an argument against epistemological, not ontological, reduction. It may be the case that phenomenal feel is an important aspect of some mental states, and to have epistemological access to phenomenal properties, one must be the holder of a conscious state. But this doesn’t mean that mental states are somehow ontologically unique or irreducible. As philosopher Robert van Gulick has noted, one oughtn’t to infer that mental properties are ontologically emergent just because we cannot representationally reduce our mental concepts or theories to physical ones. To do so is to assume an epistemological divide is enough to prove an ontological one.

But the major problem with Stephen’s adoption of Searle’s position is that on Searle’s theory conscious properties end up being epiphenomenal (they have no causal power). Because Searle claims the causal properties of mental states are identical to their underlying brain states, any aspect of a mental state that carries causal properties – presumably, their content – carries them via underlying micro-level brain states. This means the aspect of the mental Searle says isn’t reducible – phenomenal consciousness – can do no causal work in addition to the mental content as causally realized at the micro-level. Thus on Searle’s theory conscious mental states qua their conscious properties can do no causal work precisely because they are non-reducible.

This result is a disaster for Stephen because he thinks consciousness is important to human agency and responsibility. Stephen actually tends to run rationality and consciousness together, and has argued that a folk psychological account of a defendant’s capacity for conscious rationality and conscious mental states are crucial to responsibility assessments. I think Stephen would be much better off subscribing to a non-eliminative reductive theory that posits conscious mental content as causally efficacious via its micro-level physical realizers. In this case, when the folk looking to see if the defendant consciously held the intent to cause harm, they are looking for the real thing in the world causally related to the harm caused.

3:AM: Why should philosophers and lawyers keep up with neuroscience? What are the advantages of taking a multi-disciplinary approach? And also, why should the other disciplines take heed of what you and the philosophers are thinking?

KS: A multi-disciplinary perspective is necessary if one wants a nuanced understanding of the mental states legal responsibility depends upon, and the way in which scientific psychology may, or may not provide evidence that such states are present in a criminal defendant. Court cases are a rich source of information regarding folk psychological assessments of responsibility, and legal scholars discuss, categorize, and critique courts’ handling of hard cases. Neuroscience currently represents cutting-edge scientific accounts of human psychology, and lawyers are increasingly presenting neuroscientific data as evidence. Philosophy is a way to bridge the gap between the folk psychological foundation of legal responsibility and neuroscience. Philosophers like Adina Roskies examine the way in which new findings in scientific psychology can, and should, inform criminal verdicts and civil suits.

3:AM: You’re a philosopher who has also thought about the place of women in philosophy and the way women are made to feel stupid in the academy. There have been recent high profile cases that seem to be directly related to your thoughts and experiences here. Why do you think this happens so much in philosophy and what can be done?

KS: I honestly don’t know why philosophy seems to have this problem even more than other academic disciplines. I suppose it might be because the female perspective has been underrepresented in philosophy departments. We are a discipline full of smart people who think carefully about issues of justice and power, but yet I don’t think some philosophers have worried enough about the asymmetrical power dynamics between teacher/supervisor and student, and the way this may taint romantic relationships between academic supervisor and supervisee or teacher and student. Once when I complained that a supervisor was pursuing me romantically I was given the impression that he was doing nothing wrong, that this was natural and that I should be flattered and just reject his advances. But his advances undermined my confidence in my work. Plus, a student is likely to feel pressure not to react honestly in this situation, because refusing to date her professor can have a negative impact on her future career.

My solution is pretty simple: no person actively advising, supervising, or teaching a student should try to date them, or enter a dating-type of relationship with them. If everyone in philosophy adhered to this rule, we’d all be better off.

3:AM: And for those of us curious to go further, are there five books you can recommend that will take us further into your philosophical world?

KS: I’m sort of unhappy with the requirement that I list books: I think the most important work in contemporary philosophy tends to be published as journal articles (which may later be stretched out and often watered down into a book). Rarely do I sit down and read a book cover to cover unless I am teaching it, but I have a constant queue of journal articles (from philosophy, psychology, and neuroscience journals, and law review articles) that need to be read to ensure I am not saying something someone else has already said or already proven false.

Although I guess if you asked for journal articles, most interviewees would just list their five most recent or important papers. I couldn’t seem to limit the list to five, but here are six:

D. Papineau, Philosophical Naturalism, Blackwell (1993). David was my PhD supervisor and his work inspired my naturalist worldview.
J. Kim, Physicalism, or Something Near Enough, Princeton University Press (2007). Kim is a champion of physicalism, and his fantastic writing style is underappreciated. Kim and Dan Dennett should be read by all philosophy students because they have such an entertaining and truthful way of expressing their ideas.
HLA Hart, The Concept of Law, Oxford University Press (1961). The greatest of the legal philosophers.
JL Austin, Philosophical Papers, Oxford Unversity Press (1961). I named my blog after his paper “A Plea for Excuses,” a brilliant close examination and cleaning-up of folk concepts of excuse.
W. Hirstein, Brain Fiction, MIT Press (2005). Bill is my collaborator at Elmhurst College, and he has done his best to help me understand neuroscience. This book does a great job examining the neuroscience of confabulation.
Neuroscience and Legal Responsibility, N. Vincent Ed., Oxford University Press (2013). A nice example of contemporary interdisciplinary work done on the intersect of neuroscience and law.

Richard Marshall is still biding his time.

Buy the book here to keep him biding!

First published in 3:AM Magazine: Friday, August 15th, 2014.