Forgotten Crimes

Should people be punished for crimes they don’t remember committing? Helen Beebee asks this meaty question.

Why shouldn’t they? I take the argument to have two main points. First, because they don’t remember, it can be argued that they are no longer the same person as the one who committed the crime. Second, if you’re not the person who committed the crime, you can’t be responsible and therefore should not be punished. Both of these points can be challenged.

The idea that not remembering makes you a different person takes memory to be the key criterion of personal identity, a view associated with John Locke among others. But memory is in practice a very poor criterion. If I remember later, do I then become responsible for the crime? We remember unconsciously things we cannot recall explicitly; does unconscious memory count, and if so, how would we know? If I remember only unconsciously, is my unconscious self the same while my conscious one is not, so that perhaps I ought to suffer punishment I’m only aware of unconsciously? If I do not remember details, but have that sick sense of certainty that, yes, I did it alright, am I near enough the same person? What if I have a false, confabulated memory of the crime, but one that happens to be veridical, to tell the essential truth, if inaccurately? Am I responsible? If so, and if false memories will therefore do, then ought I to be held responsible even if in fact I did not commit the crime, so long as I ‘remember’ doing it?

Moreover, aren’t the practical consequences unacceptable? If forgetting the crime exculpates me, I can commit a murder and immediately take mnestic drugs that will make me forget it. If that tactic is itself punishable, I can take a few more drugs and forget even coming up with the idea. Surely few people think it really works as selectively as that. In order to be free of blame, you really need to be a different person, and that implies losing much more than a single memory. Perhaps it requires the loss of most memories, or more plausibly a loss of mentally retained things that go a lot wider than mere factual or experiential memory; my habits of thought, or the continuity of my personality. I think it’s possible that Locke would say something like this if he were still around. So perhaps the case ought to be that if you do not remember the crime, and other features of your self have suffered an unusual discontinuity, such that you would no longer commit a similar crime in similar circumstances, then you are off the hook. How we could establish such a thing forensically is quite another matter, of course.

What about the second point, though? Does the fact that I am now a different, and also a better person, one who doesn’t remember the crime, mean I shouldn’t be punished? Not necessarily. Legally, for example, we might look to the doctrines of joint enterprise and strict liability to show that I can sometimes be held responsible in some degree for crimes I did not directly commit, and even ones which I was powerless to prevent, if I am nevertheless associated with the crime in the required ways.

It partly depends on why we think people should be punished at all. Deterrence is a popular justification, but it does not require that I am really responsible.  Being punished for a crime may well deter me and others from attempting similar crimes in future, even if I didn’t do it at all, never mind cases where my responsibility is merely attenuated by loss of memory. The prevention of revenge is another justification that doesn’t necessarily require me to have been fully guilty. Or there might be doctrines of simple justice that hold to the idea of crime being followed by punishment, not because of any consequences that might follow, but just as a primary ethical principle. Under such a justification, it may not matter whether I am responsible in any strong sense. Oedipus did not know he had killed his father, and so could not be held responsible for patricide, at lest on most modern understandings; but he still put out his own eyes.

Much more could be said about all that, but for me the foregoing arguments are enough to suggest that memory is not really the point, either for responsibility or for personal identity. Beebee presents an argument about Bruce Banner and the Hulk; she feels Banner cannot directly be held responsible for the mayhem caused by the Hulk. Perhaps not, but surely the issue there is control, not memory. It’s irrelevant whether Banner remembers what the Hulk did, all that matters is whether he could have prevented it. Beebee makes the case for a limited version of responsibility which applies if Banner can prevent the metamorphosis into Hulk in the first place, but I think we have already moved beyond memory, so the fact that this special responsibility does not apply in the real life case she mentions is not decisive.

One point which I think should be added to the account, though it too is not decisive, is that the loss of responsibility may entail loss of personhood in a wider sense. If we hold that you are no longer the person who committed the crime, you are not entitled to their belongings or rights either. You are not married to their spouse, nor the heir to their parents. Moreover, if we think you are liable to turn into someone else again at some stage, and we know that criminals are, as it were, in your repertoire of personalities, we may feel justified in locking you up anyway; not as a punishment, but as prudent prevention. To avoid consequences like these and retain our integrity as agents, we may feel it is worth claiming our responsibility for certain past crimes, even if we no longer recall them.

Early Qualia

Locke with flowersThe problem of qualia is in itself a very old one, but it is expressed in new terms.  My impression is that the actual word ‘qualia’ only began to be widely used (as a hot new concept) in the 1970s.  The question of whether the colours you experience in your mind are the same as the ones I experience in mine, on the other hand, goes back a long way. I’m not aware of any ancient discussions, though I should not be at all surprised to hear that there is one in, say, Sextus Empiricus (if you know one please mention it): I think the first serious philosophical exposition of the issue is Locke’s in the Essay Concerning Human Understanding:

“Neither would it carry any imputation of falsehood to our simple ideas, if by the different structure of our organs, it were so ordered, that the same object should produce in several men’s minds different ideas at the same time; e.g. If the idea, that a violet produced in one man’s mind by his eyes, were the same that a marigold produces in another man’s, and vice versa. For since this could never be known: because one man’s mind could not pass into another man’s body, to perceive, what appearances were produced by those organs; neither the ideas hereby, nor the names, would be at all confounded, or any falsehood be in either. For all things, that had the texture of a violet, producing constantly the idea, which he called blue, and those that had the texture of a marigold, producing constantly the idea, which he as constantly called yellow, whatever those appearances were in his mind; he would be able as regularly to distinguish things for his use by those appearances, and understand, and signify those distinctions, marked by the names blue and yellow, as if the appearances, or ideas in his mind, received from those two flowers, were exactly the same, with the ideas in other men’s minds.”

Interestingly, Locke chose colours which are (near enough) opposites on the spectrum; this inverted spectrum form of the case has been highly popular in recent decades.  It’s remarkable that Locke put the problem in this sophisticated form; he managed to leap to a twentieth-century outlook from a standing start, in a way. It’s also surprising that he got in so early: he was, after all, writing less than twenty years after the idea of the spectrum was first put forward by Isaac Newton. It’s not surprising that Locke should know about the spectrum; he was an enthusiastic supporter of Newton’s ideas, and somewhat distressed by his own inability to follow them in the original. Newton, no courter of popularity, deliberately expressed his theories in terms that were hard for the layman, and scientifically speaking, that’s what Locke was. Alas, it seems the gap between science and philosophy was already apparent even before science had properly achieved a separate existence: Newton would still have called himself a natural philosopher, I think, not a scientist.

It’s hard to be completely sure that Locke did deliberately pick colours that were opposite on the spectrum – he doesn’t say so, or call attention to their opposition (there might even be some room for debate about whether  ‘blue’ and ‘yellow are really opposite) but it does seem at least that he felt that strongly contrasting colours provided  a good example, and in that respect at least he anticipated many future discussions. The reason so many modern  theorists like the idea is that they believe a switch of non-opposite colour qualia would be detectable, because the spectrum would no longer be coherent, while inverting the whole thing preserves all the relationships intact and so leaves the change undetectable. Myself, I think this argument is a mistake, inadvertently transferring to qualia the spectral structure which actually belongs to the objective counterparts of colour qualia. The qualia themselves have to be completely indistinguishable, so it doesn’t matter whether we replace yellow qualia with violet or orange ones, or for that matter, with the quale of the smell of violets.

Strangely enough though Locke was not really interested in the problem; on the contrary, he set it out only because he was seeking to dismiss it as an irrelevance. His aim, in context, was to argue that simple perceptions cannot be wrong, and the possibility of inconsistent colour judgements – one person seeing blue where another saw yellow – seemed to provide a potential counter-argument which he needed to eliminate. If one person sees red where another sees green, surely at least one of them must be wrong? Locke’s strategy was to admit that different people might have different ideas for the same percept (nowadays we would probably refer to these subjective ideas of percepts as qualia), but to argue that it doesn’t matter because they will always agree about which colour is, in fact yellow, so it can’t properly be said that their ideas are wrong. Locke, we can say, was implicitly arguing that qualia are not worth worrying about, even for philosophical purposes.

This ‘so what?’ line of thought is still perfectly tenable. We could argue that two people looking at the same rose will not only agree that it is red, but also concur that they are both experiencing red qualia; so the fact that inwardly their experiences might differ is literally of no significance – obviously of no practical significance, but arguably also metaphysically nugatory. I don’t know of anyone who espouses this disengaged kind of scepticism, though; more normally people who think qualia don’t matter go on to argue that they don’t exist, either. Perhaps the importance we attach to the issue is a sign of how our attitudes to consciousness have changed: it was itself a matter of no great importance or interest to Locke.  I believe consciousness acquired new importance with the advent of serious computers, when it became necessary to find some quality  with which we could differentiate ourselves from machines. Subjective experience fit the bill nicely.