#1330 Katrina Sifferd: The Ethics of Law, Punishment, and Criminal Responsibility

00:00 Ricardo Lopes: Hello everyone. Welcome to a new episode of The Dissenter. I'm your host, as always, Ricardo Lops, and today I'm joined by Dr. Katrina Seyfert. She's a professor of philosophy, interim dean in the School of Arts, Humanities and Social Sciences, and Genevieve Studend our chair at Elmhurst University. And today we're going to talk about the ethics of law, punishment, moral and criminal responsibility. And a few other related topics. So Dr. Seaford, welcome to the show. It's a pleasure to have everyone.

00:35 Katrina Sifferd: Thank you so much.

00:38 Ricardo Lopes: OK, so, uh, to introduce the conversation here, what is the ethics of law? I mean, in what ways does ethics apply to law and what kinds of questions do you explore there?

00:54 Katrina Sifferd: So there's lots of different ways that ethics interacts with law, and I do not work on most of them, right? So there's, there's ethics in, well, there's ethical concerns about how the law has authority over us, and whether the law has authority over us, and what sorts of behaviors the law has the right to kind of police, right? Um, THERE'S ethics in areas of law like tax, right? Is a progressive tax or a regressive tax more ethical? There's ethical concerns when it comes to kind of structural justice or transitional justice. Um, THOSE are all areas I don't really work in. I work very specifically in criminal law, and that's the area that Most people kind of automatically think of as having an overlap with morality and ethics. We think that probably most crimes are also immoral. And so, there's got to be some sort of overlap between morality and criminal law in that way. Most people think that in order for one to be found, Well, most maybe an exaggeration. Many philosophers think that in order for someone to be responsible for a crime, they also have to be sort of morally responsible for the action that is um that constitutes the crime. So that's what I'm particularly interested in is kind of the ethics of criminal law.

02:20 Ricardo Lopes: Mhm. So in your work you focus a lot on punishment. How do you approach punishment from a philosophical perspective?

02:31 Katrina Sifferd: There's a lot of philosophical work on punishment. Um, THERE'S really interesting work trying to figure out what actually constitutes punishment and whether punishment has to cause suffering, or if it needs to just be a hardship that's imposed. Um, I think my, so, in, in a broad sense, to do a philosophical understanding of punishment, I'm just, I'm not just describing how different nation states punish or how You know, punishment is exacted in different sorts of cases. I'm interested in understanding the underlying kind of concepts that are, we engage in when we're punishing people. Um, AND, and my sort of unique, maybe sort of unique take on On the issue of punishment is to draw an analogy between interpersonal directed blame and punishment. So, what we do just to each other in our everyday lives, and state or criminal blame and punishment. So, I think they're different types of or different examples of the same type of thing. And so, they can both be ethical or unethical, justified or unjustified in the same sort of way.

03:46 Ricardo Lopes: Right, but I, I mean, is there any overlap at all in terms of how ethically we should approach punishment in the context of everyday life and in the context of, uh, in a legal context actually, I mean, is there any overlap between those two contexts at all from an ethical perspective or are they separate?

04:15 Katrina Sifferd: I think they're not separate. And again, there are many people who would disagree with me. There are some people that think that criminal punishment is uniquely political in nature, and interpersonal punishment is something different. But I actually disagree, and I think um there's a group of philosophers that base their work on punishment primarily on work by Anthony Duff, who argue that punishment is meant to be expressive. So, it's supposed to kind of express, you know, censure in terms of some sort of behavior. I think that that is the case in both interpersonal punishment and informal punishment, that the possibility of punishment actually is Just giving heft or kind of better, like, robust meaning to directed blame in both of those cases. And so, I think that when we are analyzing punishment, we should be analyzing both informal and formal versions of punishment. And in fact, if we analyze informal punishment closely, we might actually sort of start to see what we've done wrong in the formal sort of state imposed punishment cases.

05:24 Ricardo Lopes: When it comes to state imposed forms of punishment, I mean when it comes to writing laws and the aspects of law that imply punishment for wrongdoers, prevaricators, and people like that, I mean, does it always necessarily I mean, the way they approach people, law experts approach it, does it always necessarily have a philosophical perspective to it, or is it just a legal perspective? I mean, are both of those perspectives, or can they be completely separate, or is there always some form of overlap?

06:11 Katrina Sifferd: I don't think there always has to be some overlap. So there are some penalties that are imposed by the state that look like they're just aimed at shaping the future behavior. So they're kind of purely forward looking. Um, AND I am. Not that interested in those sorts of cases, to be perfectly honest. I am much more interested in violent crimes, and the crimes that it looks like, and almost everyone wants to agree that people are morally responsible for those actions, as well as criminally responsible for those actions. And I I think with regard to violent crimes, a person has to be morally responsible in order to be criminally responsible for those for those crimes. Um, AND so there we see the overlap really closely. I don't think it always has to hold though.

07:02 Ricardo Lopes: OK. And why does punishment matter in the context of law? I mean, you've already referred to at least one of the roles that punishment can play in the context of law, but I mean, why does it matter more broadly in that context?

07:23 Katrina Sifferd: So Well, again, I, I'll take us back to interpersonal cases, just because I think it's super interesting. So where I started my analysis is I tried to imagine what would happen if punished in in informal punishment, interpersonal punishment didn't exist. So, imagine I tell all my students that they're not allowed to use generative AI in their essays, right, which is something I'm actually trying to do. You know, you're not allowed to use generative AI. If I catch you doing it, you're going to fail the assignment, or, you know, if you fail two of them, let's say you fail the whole class. That's punishment, interpersonal, sort of, like, it's, it's somewhere in between the punishment I would apply, say, to a friend and criminal punishment, right? There's an institutional involvement there, but it's me applying punishment to my students. And if they do, if I, I catch them cheating, I will call them into my office, I will direct blame at them. I will say, You violated this agreement in our syllabus, and now I am going to apply a punishment. You're going to fail this, this, um, exam or this test, or I guess the essay in this case, right? OK. Imagine no punishments exist. I say in my syllabus, this is not acceptable behavior, you can't do this. I still call the person into my office, the student, and say, direct blame at them, you did this wrong, you can't do this, this is not OK. I let them go. How many of the next sets of essays do you think are going to be cheated on, right, using generative AI? Probably more than the first time, right? What happens when no punishment, when there is no no punishment or no possibility of punishment? Imagine there, the students know there's no possibility, it's like illegal for me to punish them, right? They are going to not understand my directed blame as normative, as telling them you ought not to do this, as real censure expressed. So not when there is no possibility of punishment, I say directed blame is undermined as kind of an expression of censure. That happens in informal cases. The sorts of cases I'm describing that are institutional, let's say in my, in my university, and in formal cases, if there was no possibility of punishment, imagine the state just saying, issuing a verdict and saying, that was bad, you can't do that, you shouldn't be doing that. That expression is going to be undermined. So, then I say the next thing we need to figure out is how much punishment and how often do we need to apply punishment in order for that expression to still have the right sort of meaning. And I think that that analogy is really interesting, um, between interpersonal and, and formal punishment in, in terms of that analysis.

10:20 Ricardo Lopes: Yeah, but I mean, should the goal be to perhaps try to change the person's future behavior or to signal to the broader society or community that if you do something like this, you will also get punished or both?

10:45 Katrina Sifferd: So I, I do think that, I think we're primarily worried about whether a person deserves, deserves punishment, right, deserves directed blame, deserves punishment, and whether that punishment kind of, I say it generates a good. A backward looking good, an extrinsic good, it's complicated, but a backward looking good because we apply the punishment. But I do think forward looking considerations are important too. I actually think that applying directed blame and punishment in a case where the forward-looking consequences would be terrible, is not the right thing to do. So, if, you know, directing blame at an abusive husband who's going to kill you, you know, if you deny him affections and blame him, that's not just, right? That's not justified. That's not a good thing to do. Um, SO we do also look for, I think, forward looking at facts. I just, I disagree with people like Greg Crusoe and some other sort of forward looking criminal theorists who think that's the only thing the state should be doing. That's the only thing we're justified in doing is considering facts. I think, especially with regard to these violent cases, right? We need to look to see if directed blame and punishment is deserved. And then we're, when we're deciding what kind of punishment to apply, we can consider forward looking effects.

12:03 Ricardo Lopes: OK, and how is it that we determine who should be punished?

12:10 Katrina Sifferd: So there's a, there's a lot of, because I think there's an overlap between moral responsibility and criminal responsibility in the cases I'm interested in. I lean very heavily on other sorts of theories of moral responsibility, namely Fisher and Revisa reasons responsiveness, right? So there's these, there's theories that are compatibles in nature, which just means the person doesn't have to be radically free. In a libertarian sense, in order to be responsible for their actions, Fisher Revisa say, you know, if you can understand moral and legal reasons, and you can act in accordance with the moral or legal reason you think is most important, this is very broadly speaking, then you're responsible for your action. I, I use a version of reason's responsiveness, but I think that some of the theorists who have critiqued Reason's responsiveness as not being ecologically grounded are correct. And so I, I look a little bit at some of the stuff David Brink has done in terms of a person having situational control, which just means you can be reasons responsive, but you have to be able to act in accordance with your reasons in the situation you're in, right? If someone has a gun to your head, if there's this enormous amount of pressure within your environment, then we should take that into consideration. And I'm also interested in theories that talk about a person being able to understand moral feedback, right? So, if a person is impervious to kind of social feedback or moral feedback from the environment, then they're not going to understand what the law is, for example, right? They're impervious to the law telling them. This is not OK, and that's important too. We need to understand those sorts of ecological factors in addition to a person's reasons responsiveness. So I say, you know, a person is responsible. They are, they may be deserving of directed blame and punishment if they're ecologically reasons responsive. Sorry, that's a very long answer.

14:12 Ricardo Lopes: No, no, not at all, not at all. And I think we'll come back to part of what you said there later, but how is it that we go from blame to punishment? I mean, because, I mean. Usually we start off by blaming someone for wrongdoing, right, and then it only after the fact do we decide whether they should be punished or not. So how do we go from one to the other?

14:44 Katrina Sifferd: So I think that in some cases, we apply punishment. Which sorts of directed blame cases do we apply punishment? Well, I think it really depends because I think punishment is there to kind of add expressive half to directed blame. So, So, it doesn't necessarily have to do with how serious the action is, like how badly, so I'd say, you know, a person might be deserving of blame if they exhibit poor quality of will. Lots of philosophers say that it's pretty easy to understand, right? If someone exhibits poor quality of will in a very small way, let's say they don't open the door for me or hold the door open behind them when they're going through a door, something stupid, teeny, right? Not even a more like a moral issue, but if they continue to do that and continue to sort of ignore me, it becomes a moral issue, and then at some point I might direct blame them and say, what are you doing? Why don't you see me here? I'm a human being. Please hold the door open for me. And if they continue not to do that, Then I may apply punishment to them, right? And so that's just a small action. If it's repeated behavior, then I might want to apply punishment because I want my directed blame to have heft. And of course, if it's a very serious exhibition of poor quality of will, you know, a rape, a murder. DO something really terrible, then we definitely want, especially a state expression of directed blame to have have to have a weight, right, where the where the state says through a verdict, this is in addition to the victim usually saying something, but the state says, This is not OK. This behavior is not OK, and then applies punishment. And because of the state apparatus, it has to be the punishments have to be sort of consistent in a way that they don't have to be with interpersonal blame and punishment.

16:47 Ricardo Lopes: But when is someone considered morally responsible? I mean, is there any set of criteria that we should look at to determine that? Are there any particular factors that we should consider? I mean, how do we go about that?

17:06 Katrina Sifferd: Yeah, so, I mean, that's the ecologically reasons responsive sort of criteria. We look to see if the person can understand um moral and legal reasons. HLA Hart, a famous legal theorist, you know, talked about the laws kind of being, uh, involving reasons. If you can't understand reasons, you can't be held responsible. You know, a 5 year old isn't responsible. They don't understand moral and legal reasons. And they, they have inhibition problems too, volitional control problems where they can't act in accordance with reasons either, right? They're very impulsive. Um, AND so there's going to be all sorts of cases. What I think is really interesting is the law has excuses and justifications, right, where people are not held responsible, and we see those play out in the interpersonal realm as well, where we, we are. Informally applying excuses and justifications, like, oh, well, she thought that was the right thing to do at the time, right? Or, oh, he wasn't himself, he'd had too much to drink or whatever, right? Those same sorts of considerations in terms of applying, you know, directed blame and punishment, transfer oftentimes with really interesting overlap between the interpersonal cases and the criminal cases.

18:28 Ricardo Lopes: Yeah, tell us about the criminal cases. So I asked you, when someone is considered morally responsible, how about criminally responsible? I mean, to what extent is there an overlap and what are the criteria that people who work in law tend to look at?

18:51 Katrina Sifferd: So, there's lots of different considerations, but the, the main ones in terms of being found guilty of a crime are the mens rea, like mental state requirements, and then actus reus act requirements, right? And so, um, in the criminal law. It's complicated because we have 50 jurisdictions in the United States, but we have something called the Model Penal Code, which is uh meant to provide cohesiveness across the different jurisdictions. It's a, it's a model code essentially. And for the mens rea requirements, there's 4 categories, according to the Model Penal Code, purposely, knowingly, negligent negligently is the last one, purposely, knowingly, recklessly, negligently are the 4 categories, right? And basically, they're just capturing, there are categories that capture um a person's Intent when they're committing the action, and the, the tightness of the relationship between that intent and the, the harm that's done. So did they act for the purpose of causing the harm, knowing the harm was going to happen with reckless disregard for whether the harm might happen, or should they have known the harm was going to happen? And a person is in both informal cases and informal cases, more responsible if they acted for the purpose of causing the harm, right? Um, THAN if they had reckless disregard to whether the harm was going to be caused. And so we're looking for degrees of quality of will there, like how bad was your exhibition of quality of will in that case. Um, AND then with regard to the act that stipulates the different kinds of criminal acts, right, actus reus. So did you voluntarily, you know, cause the death of another human being? That's a quite serious crime, right? Um, EMBEDDED in those requirements is this idea of voluntariness, that, that you didn't do it on accident, that you didn't trip and fall on your gun, and then it went off, right? Um, THAT requirement that you had to have, There has to be a relationship between the mental states that you had, those purposeful, knowing whatever mental states and the action that was caused, right? So that we don't accidentally capture people who didn't, didn't actually exhibit poor quality of will at all. They may have had poor quality of will, and then they tripped and fell on their gun, but those two are not related in the right sort of way, right? So there's this whole structure in the criminal law meant to kind of pick out those people who exhibited poor quality of will and acted in accordance with that poor quality of will, such that they deserve criminal blame and punishment.

21:46 Ricardo Lopes: Yeah, and of course there are situations where we might be cognitively impaired, like for example if we just drank a lot of alcohol and and we go and for example drive anyways. I mean if we kill someone or crash against a Another car or something like that while we're driving drunk, of course, while we're in that state our judgment and cognition are impaired to a certain extent depending on the amount of alcohol we consumed before, but we're still held liable because we shouldn't have made the decision of driving after drinking so much.

22:37 Katrina Sifferd: Yeah, I mean, those cases are really interesting and tricky for legal theorists, because the person at the time that they committed the harm, let's say they ran the car into somebody, they were cognitively impaired in a way that they weren't forming those mens rea, those intent. Um, THEY weren't intending in the right sort of way. So oftentimes we want to trace back to some decision where they did something wrong and they should have known that there were possibly going to be negative consequences. But it's really, it's hard in the case of that you give is like one of the hardest cases with drinking, right? Because at what point do you say the person, was had reckless disregard for the harm that they could cause, right? The 2nd drink, the 6th drink, when they put the keys in the ignition, but they were already too cognitively impaired then, so you know what I mean? It's really hard to find that point where you're like, OK, there it is, that's when they did the wrongful thing. I think that's, that's just a hard case for the law for us to figure out exactly. How to kind of understand the responsibility that that person has, but we all pretty much agree that, well, we agree they're responsible. I don't know what they're responsible for exactly, right? What should we be directing blame at them for? AND punishment in the United States, let's say for vehicular homicide is really very serious and very tricky because lots of people get behind the wheel of their car and drive drunk, and they don't cause any harm. So it's just bad luck, moral luck, if you actually end up hitting somebody, and then, you know, in the United States, you can get 7 years imprisonment, um, for doing something wrong, but also being unlucky at the time. So that's a particularly difficult case.

24:33 Ricardo Lopes: Yeah, um, and who is considered legally insane and in the legal context, what does insanity mean exactly?

24:45 Katrina Sifferd: So, legal insanity in the common law, like in the United States, we tend to adhere to the common law, which comes from the UK and use the monoton rule, which means, which says that someone is legally insane if they didn't understand the nature and quality of their act, which OK. Has been interpreted by many people to to to include you not understanding kind of the factual situation of your circumstance. So if you're really mentally ill and you think you're killing an alien invader, but you're actually killing your neighbor, so you don't understand, like, what you're doing, but also, Uh, it's thought to by some people, not in some US Europe jurisdictions, but thought to include, you don't understand that it's morally wrong. Right? So maybe you understand that killing. You know, you understand that you are killing your 5 children in the Andrea Yates case, but you don't understand that it's wrongful, because they, you thought that they were going to burn in hell otherwise. And so somehow you think you're saving them, right? Um, THAT'S the monoton test. It's interpreted differently. Certainly in our jurisdictions, and I have to say, in the United States, we've been, it's almost never offered. And in some states, you can't offer it, right? So instead of not guilty by reason of insanity, we have as an excuse, and we have this um guilty but mentally ill verdict, which is Um, really problematic from my perspective, because basically you're saying the person kind of didn't, isn't really responsible, morally responsible for the action, but we're going to punish them anyways because That looks better for us, essentially. Um, THERE'S also the NPC, as I was saying, the Model Penal Code, actually has a more expansive understanding of legal insanity and includes a volitional prong, which is like, you would have committed the action anyways, even if, you know, there was a policeman at your elbow, that's a different sort of test. But if you, you didn't have the kind of volitional control to stop yourself from doing that. Some people think that we shouldn't have that, um, part of the legal insanity test because we can never figure out if someone has volitional control. It's like really hard to kind of understand, because even like, even addicts, for example, who are really addicted to heroin will not buy heroin from a police officer. They will wait for an hour and buy it from somebody else, right? So, do whether someone has volitional control is really tricky to figure out in the law, and a lot of the law's considerations in the law are pragmatic, like, can the court figure this out? Can we figure out if the person had volitional control or not? I mean, I think in theory, we need a volitional. Control prong, right? If someone, because of a mental disease or disorder, cannot stop themselves from doing something, they are not responsible. But can we ever figure out if that is the case in the law? It's tricky

28:03 Ricardo Lopes: Yeah, it's tricky, and I imagine that, I mean, it's also tricky in the way that people who commit certain kinds of crimes but suffer from severe mental illness and do not really have control over their behavior, I mean, perhaps instead of being sentenced to prison they should. Uh, RATHER have some, uh, have access to mental rehabilitation or mental treatment of some kind, or, I mean, if, uh, I mean, if they need to be, um, I mean, taken away from society because they can't. CONTROL their behavior and they're going to further commit crime. I mean, perhaps they shouldn't be held up in prison, but some other place where it's better for their mental health or, I mean, I don't know if there's still any asylums in the US, for example, but I mean some perhaps a place like that or a psychiatric ward. I mean, I don't know.

29:14 Katrina Sifferd: Yeah, so, if you, if a person was found not guilty by reason of insanity, they are admitted to a psychiatric institution. And they're supposed to be held there until they're deemed not dangerous to society, which many studies have shown they actually tend to go there longer than they would have served in prison. With the guilty but mentally ill verdict, or in some states, we don't have either of those, and we just have, can you prove mens rea or not? Um, THOSE people just go into the gen pop into the general population of criminal offenders. They're supposed, there's supposed to be mental health care in prisons. I have been in prisons. I can tell you that there is not really any substantial mental health care in prisons, and indeed, It is a place where that it is a place that makes people mentally ill, so, If you are already having mental health issues before you went to prison, you certainly are going to be made worse by that environment, at least in most cases.

30:19 Ricardo Lopes: And I would imagine it, at least in certain cases, it can also be dangerous for someone who is mentally ill to be in a prison because, I mean, because of their own, let's say erratic behavior, they might trigger I mean in. Inadvertently trigger violence in other inmates and be targets of violence.

30:43 Katrina Sifferd: Definitely. And this is another reason, well, this is a reason why solitary confinement is used in our prisons oftentimes. So if someone is very mentally ill, they can end up being put in solitary confinement, um, for the safety of the officers and the other prisoners. But then, of course, solitary confinement is Absolutely terrible for people who are having mental health issues and is only going to make them worse. So, that is uh a real issue, and, you know, I'm I'm not, I believe that the prison system that we have now, so I, I believe in punishment. I think punishment is important and necessary. I do not think that the system that we have now in the United States is the system that we should have for punishment. I'm not even sure that in many cases, we should be holding people, um, Incarcerating people as punishment. There's lots of ways to punish people. We should learn that from our informal cases, and we should be applying a full range of punishments to people, um, in order to give directed blame heft and for it to have those good effects that you were worried about. But we don't have to have the prison system we have now. It's just making people worse.

32:03 Ricardo Lopes: OK, I will come back to that in a second, but since we're talking about legal insanity and people who are diagnosed with severe mental illness, what about the case of what we commonly call psychopaths and sociopaths, I mean people who have a diagnosis of antisocial personality disorder, because I mean in those particular cases, at least for I guess laypeople, it always seems like they actually deserve to be severely punished because they lack empathy and sometimes they are very vicious and very violent and sometimes they even seem to take pleasure out of torturing or I mean damaging other people in different kinds of ways. So how should we deal with those cases?

33:01 Katrina Sifferd: So. I've written a lot about psychopathy, and the first thing to know is that the primary diagnostic for psychopathy, which is the PCLR, this one kind of tool that we have for diagnosing, this is psychopathy, not antisocial personality disorder, which I will get to. OK, OK, OK. There are two different diagnoses, right? Psychopathy has this one diagnostic, the PCLR. You're scored out of 40 on this thing. Um, DIFFERENT nations have different cutoffs for what they call psychopathy. In the United States, you have to be higher on it, not surprisingly, um, to get to be labeled a psychopath. But if you look at studies of people who are diagnosed as psychopath, according to the PCLR, you see this heterogeneous group of folks. With regard to their mental capacities. So, people tend to think because of the, the media and other sorts of depictions of psychopaths or sociopaths, that they all have flattened affect, that they don't feel any emotion. But actually, some seem to have flattened affect, and some seem to have really erratic reactive affect, right, where they get very angry or aggressive quickly. And there was this idea, well, it's really confusing in, in the media, because there's this idea that maybe psychopaths are really smart, right, have really high executive functions and can be very devious and evil. Um, AND, or maybe they're just really impulsive and really have low, uh, executive functions and that they can't inhibit their behavior. And you see both of those in the group psychopath too. So we have kind of 4 different hallmarks with 4 different, um, sort of symptoms of psychopathy that are all manifest in this group. And so you can't say anything about the group psychopath. Because they don't look like one another, right? There's some with higher than normal executive functions, some with lower than normal, some with flattened affects, some with heightened affect. So just as a group, that diagnostic doesn't work, right? And I'll like antisocial personality disorder is primarily premised on someone acting in an antisocial way. Right? So you can be diagnosed as having antisocial personality disorder primarily because you act in an antisocial way, which says nothing about why you're acting that way, right? So it's sort of the same with that diagnosis, which is why it's not on, on many jurisdictions, it's actually can't be used to ground a legal insanity plea, antisocial personality disorder. OK. I actually don't think that flattened, even if all psychopaths had flattened affect, I still don't think that that necessarily is an an excuse to their moral responsibility. And here's why, because we have other groups of folks that at least some percentage of them have something like flattened affect, or they don't tend to feel Um, the what we consider the right sort of way when they watch bad things happening or in reaction to other people, and that group is autistics. So, autistics also sometimes don't seem to have the right sort of emotional reaction to when they're interacting with other people, but they are good moral agents and are extremely law abiding and moral rule abiding, high functioning autistics. Why? Because it looks like. You can compensate for flattened effect. If you care about doing the right thing, and you don't feel, you know, really bad when you see someone else hurting, but you still care that they're hurting, you can take their facial expressions and their action as a cue that they're hurting and help them or do the right thing. And that's what it looks like high functioning autistics do. They care about being good moral agents. They may lack some sort of evidence or information, but they can still compensate for that and do the right thing. Psychopaths don't, don't do that, some of them, right? They have flattened affect, maybe, some of them. But that's not what's driving their. Antisocial behavior, I don't think. So, I'm not sure the flattened affect actually generates an excuse. I have argued that really low executive functioning generates an excuse. I argue very strongly that people with intellectual disability, May be warranted an excuse morally and criminally, because if you have low executive functioning, you have low ability to reason about and deliberate about your actions and then to inhibit those actions, and that actually really matters in terms of your responsibility. So it may be that some psychopaths are incredibly impulsive, and that that is a reason for an excuse. Um, BUT again, we don't really have a diagnostic to pick out those folks from other folks within that group.

38:19 Ricardo Lopes: Right, but I mean, in your understanding then the extent to which we should hold psychopaths morally and criminally responsible and punish them in some way would have a lot to do with their level of executive functioning and them being able to um. And understand the potential consequences of their actions and why they shouldn't perform certain actions, is that

38:56 Katrina Sifferd: it? Yeah, so it looks like they understand the difference between conventional and moral rules. They know. You know, they understand the nature of, of normative requirements, and they just, some of them, for whatever reason, don't abide by them. You know, it's more interesting if you, if you look at white collar psychopaths, right? So, so, you know, rich, privileged psychopathy, where, um, you know, some people score very high on the PCLR and they are CEFOs and CEOs of companies, and they don't, You know, they don't seem to have what we would consider a normal reaction to finding out about human suffering when they find out their their company is polluting the river or whatever, um, you know. Do we want to hold them responsible like. I, I, I think if they understand the nature of moral rules, they understand that their behavior, their company's behavior is flouting those rules, they understand that they're causing harm, that that's what's most important, and that we should direct blame at them and possibly apply apply punishment to kind of give heft to that expression, um, that that's important, and it's kind of easier to see that when you think about the white collar. Psychopath,

40:19 Ricardo Lopes: right, so let me ask you about something that you mentioned just a few minutes ago when you said that you don't think that the current prison scarceral system that you have in the US, particularly and probably it would apply to the carceral systems we find across the world, uh, that it's not proper or good enough when it comes to Punishing people who are held criminally responsible. So tell us more about that. In what ways do you think it's not, um, perhaps a proper way of punishing people and what could be alternatives to that?

41:04 Katrina Sifferd: So I think one of the main reasons we should really be worried about our prison system is because we have all these requirements, as we've been talking, um, for someone to be found responsible, right, that they have to be responsive and ecologically aware in various ways are situated, I think. And then we put them in a place that makes them, that diminishes their reasons responsiveness, that actually hinders their agency and sometimes permanently um impacts their agency. And at the same time, for most crimes, we have this idea that the person is going to be released. Right? They're going to be released back into society, they ought to be from my perspective. And so we're hindering them, making them worse agents, making them worse decision makers, making it less likely that they're going to be able to construct an environment where they'll be able to make good choices. And then we release them. And we're surprised when they recidivate, or at least the politicians act surprised. So, clearly, we're doing something wrong. I don't think punishment needs to apply suffering. My philosophical understanding of punishment is not that it has to impose suffering, it has to impose a hardship. OK. And in some cases, that hardship might be for that person to be temporarily incarcerated. You know, there are some cases where it's so er, like where the action is so harmful and serious, rape and homicide maybe are two cases I have in mind, where the person ought to be removed from society for some, I, I think, period of time, not forever. I don't believe in life, what we call LWOP sentences, life in prison without the possibility of parole sentences. I actually don't believe in those, but for some period of time, but while they are in that situation, which is imposing a hardship, quite a very serious hardship, we ought to be Helping them become better moral agents, right? Creating an environment where they have meaningful decision making, where they can improve upon their decision making and their own kind of talents and character. I really, I mean, it costs money, which is why we don't do it. But ideally, that's what we should be doing. And I think for many lower level crimes, That aren't homicide and rape and maybe very serious aggravated battery. I'm not sure. I have to still work out some of these details, but I think, you know, Keeping track of those people, imposing some sorts of hardships for them within the community, what we call community-based sanctions is perfectly appropriate. There can be hardships, they can lose their licenses in the case of the drunk driver, they can have, you know, kind of very, they have to check in with a parole officer, they have to follow certain sorts of rules. They, you know, we can impose. Quite serious kind of rules on them, hardships on them, but still keep them in within a community. The problem in the United States with community-based sanctions is that some of our communities are not that much better than the community the person would be in if they were in prison, in terms of cultivating good criminal, you know, the kind of moral agencies such that they wouldn't commit crimes. That's a whole separate issue. But community-based sanctions is enough of a hardship and a penalty to give meaning to our directive blame in many of these cases. And I'm advocating for those sorts of punishments. And this is something Anthony Duff says too, right? He says, actually, if we're going to, if we're worried about expressing certain things in our punishments, we don't need that heavy of a punishment to express stuff, right? Um, SO lots of other people have said this. I'm going to say it too.

44:58 Ricardo Lopes: Right, I mean, so in that case we, if we followed your suggestions, then the vast, vast, vast, vast majority of people who er today are incarcerated wouldn't be,

45:12 Katrina Sifferd: right? I think so. I mean, in the United States, I have to speak about our system, right? The majority of prisoners would not be incarcerated. We would never have private prisons. We would only have state-run prisons that they would meet very specific kind of quality standards that we would have a whole, all of that money that we spend on people being incarcerated could be. Um, INSTEAD spent on community-based sanctions where we have this whole system of people checking in and checking up on people and, you know, and kind of educating people and helping people within their communities, but still imposing some sort of a hardship. It would be, it wouldn't be more expensive than what we do now, but it would be a real reordering of how we're spending that money.

46:00 Ricardo Lopes: Right. So I have one last topic I would like to ask you about that has to do with structural injustice, because I mean that's another topic that particularly People who are more left wing in terms of the political spectrum tend to worry a lot about when we tackle criminality, that structural injustice really plays a big role in incentivizing, if we want to put it that way, certain people in certain circumstances to commit certain types of crime. So, uh, do you think in your understanding, does structural injustice or should it impact criminal responsibility?

46:47 Katrina Sifferd: It's a, I think it's a really tough question. I'm really interested in street gang culture here in the United States. Um, I live very close to a neighborhood that's dominated by a particular street gang. Um, AND I've been writing about this and really interested in this issue. It looks like structural, so if you think about, let's think about structural injustice in very concrete terms, right? So in this neighborhood, it's called Austin in Chicago. Um, ESPECIALLY boys tend to be, um, become members of gangs quite young. So, at 1314, 15, they're indoctrinated into the gang, the gang becomes their security, it comes, becomes the way that they make money, their economic, um, security, it becomes their kind of peer group. And it also lends itself to them committing crimes, right? Um, THEY don't. Take the expression of directed blame by the state with regard to criminality very seriously. They do not hear the message that the state is communicating with regard to crimes and punishments because of the loudness of the expression of the gang structure. Yeah. So, there's two ways I think this could undermine um the responsibility of the people that are living in that structure, that, um, unjust structure, really. The first is it could undermine state authority, right? So, does the state even have the right in that. To go into that community with that sort of moral structure and to exercise authority over those people, declare that they've done something wrong according to laws that they don't even live by or benefit from, and then put them in prison. That's one question. So it can undermine. The state's authority to kind of impose direct blame and punish in those cases. I think it can also undermine the moral, specific moral responsibility of the people who are living in that structure to some extent as well, because they are, they are not able to take on the moral feedback of the state in the same way. Instead, they're getting this kind of isolated, Um, feedback from the other gang members that, you know, those other rival gang members aren't fully humane or don't deserve a certain level of humane treatment, or that this sort of economic behavior, selling drugs, whatever, isn't wrongful, it's what we do, right? And so it can actually Undermine either their situational control, their ability to act in accordance with reasons, or it can actually undermine the reasons that they pay attention to, because of that structure. And so you have to worry about those circumstances from both of those perspectives. Now, I'm a little, I, I, I do think that people who are sufficiently isolated in those sorts of circumstances might have diminished moral responsibility, and we want to be careful, like we, we would want to say, We could direct blame at them, but it's like a lesser level of blame, and certainly we want to punish them in a different, you know, kind of in a lesser way. Um, BUT we have to be careful, because I also think that in a sufficiently racist or misogynistic society, we still want to be able to direct blame at people who are racist, and, you know, punish women, like act really badly towards women. Yeah. Right, even though the society is racist, when you act in a racist way, we still want to direct blame at you. And what I say is, you know, there's some sort of fundamental moral truths about moral equality, basically human moral equality. Like, all human beings, regardless of gender and race and religion and all of these things, deserve. Um, SOME the same sort of moral treatment, or at least similar basic moral treatment, and that if you ever can convince yourself that they're not fully human or they're not fully deserving of moral treatment, you're wrong. You should be able to sort that out. If you think your gang members are deserving of moral treatment, like it's not OK to kill them, then you should probably be able to figure out that it's not OK to kill the rival gang member either. That's at this fundamental level of like violent, very violent crimes, you know, towards others. I think, you know, when it comes to economic actions and maybe some other sorts of actions that are criminalized in the United States with regard to gang members, that they may be more deserving of excuse and only partial, you know, deserve partial responsibility, but that we have this ability as human beings to kind of Reason our way from our specific understanding that like, you're a moral agent, I'm a moral agent. I may not like you, but I don't have, you know, I don't have the right to kill you, from that to kind of generalize it out to other human beings, which is why even when slavery was prevalent in parts of the United States, it was wrong to own slaves. Right? And, and people knew that, some people knew that, right? And they knew that, not because their society was telling them that, but because they had moral reasoning. Now, some of them, society told them, right, there's also pockets usually of dissent in these sorts of circumstances. So, very complicated story with regard to street gang culture and structural injustice. I think you have to go in and you have to really figure out the extent to which state authority is undermined and and also analyze the extent to which people are isolated within these unjust pockets, such that their moral understanding is kind of warped.

53:01 Ricardo Lopes: And do you think, I mean, because you're talking about moral understanding there, but do you think that particularly when it comes to gangs and other kinds of criminal activity that I mean very frequently develop in more impoverished areas because that we should also consider the fact that many people who join those. Criminal groups do that at least in part because of their poor circumstances and lack of economic, professional, and other kinds of opportunities. And so I mean, at least to a certain extent, perhaps more in some cases than others, it's just because they actually have to survive in some way or another and

53:52 Katrina Sifferd: Yeah, I mean, I think, and here's a paper that needs to be written that I may not write, but there's a real interesting analogy between, so gangs are jobs, right? That's how people have jobs is through their gang. And We have all sorts of interesting studies about people acting badly because of their jobs, right? In the United States, I teach business ethics sometimes. Wells Fargo was a good example of people acting badly because of their jobs, right? They were basically cheating customers and selling them things they didn't even know they were buying because of the structure of the workplace, because of the corporate climate there. So, you know, I think we want to, we want to understand the injustice that's involved in the structure that a person is working within, while also holding them to some extent accountable, like the people that cheated. And stole from people within Wells Fargo, deserved directed blame and punishment to some extent, right? None of them ended up in prison, which is interesting, right? At least none of the lower level types ended up in prison. Um. You know, a gang is a, is a workplace. People end up there, partly because they don't have other economic opportunities, as you said, you know, they drop out of school before they've graduated high school, then this is kind of their opportunity to make a living for themselves. And so the same sorts of pressures are going to be applying there that do in some of these corporate circumstances, Enron, where people act really badly, and we have to figure out how we want to treat those people.

55:30 Ricardo Lopes: Right. OK, so Dr. Seyfert, uh, just before we go, would you like to tell people where they can find you and your work on the internet?

55:41 Katrina Sifferd: Sure. Uh, I am the only Katrina Sifford that exists on the internet, which is pretty amazing. So you can just Google me and you will find my fill papers site and my personal site, which is pleasean excuses.com, or it's actually please and excuses.org, I think. Um, BUT I'm happy to take emailed requests for work. Oftentimes people find papers and they can't get access to them. I send papers out. And I'm writing a book right now called Why Punishment Matters. It's under um contract with Bloomsbury. So I'm hoping to finish that and to have that out in the next year or so.

56:20 Ricardo Lopes: Great. So thank you so much for taking the time to come on the show. It's been really great to talk with you.

56:27 Katrina Sifferd: Thank you so much for the really great questions. I appreciate it.

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