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.