Lex talionis in the experience machine

When it comes to punishment, I imagine that even the most progressive of us, and even the most consequentially minded of us, continue to hold some pretty strong retributive intuitions. Even if you are thoroughly convinced that the primary justifications for the practice of punishment are forward-looking considerations like deterrence or rehabilitation, you probably still feel the pull of more retributive concerns – the idea that some people ought to be punished because they somehow deserve to be punished; that because they have inflicted suffering on others, it is appropriate that they suffer in return.

Unsurprisingly, I tend to have this retributivist response most strongly with respect to particularly violent crimes or crimes that involve the deliberate infliction of especially painful and long-lasting suffering, and where the perpetrator shows little remorse. For example, the real-life case that most strongly elicited this response in me was that of the two men convicted of throwing acid into the face of model and television presenter Katie Piper. This attack inflicted a huge amount of physical pain and psychological suffering, as well as permanent disfigurement. Indeed, this was the objective; the attack served no other purpose, and can only have been motivated by a desire to inflict suffering and cause permanent damage. Furthermore, the perpetrators of this crime have never expressed any remorse or regret for their actions. When I read the details of this crime, and others like it, the feeling of injustice makes me understandably angry. The fact that these people have knowingly and intentionally inflicted such a huge amount of pain and suffering on an innocent person, and yet do not appear to be suffering in any real sense themselves, feels to me to be a real injustice. It seems to me that it would be a better state of affairs if they could experience the kind of suffering they have inflicted; if they could feel and understand the pain and damage they caused. Not only because this would hopefully deter them from committing future attacks, but also because I can’t help feeling that they deserve to feel pain equivalent to the pain they have inflicted.

Now of course, you may dismiss this response of mine as simply an emotional desire for vengeance which, no matter how understandable, has no place in a civilized society and certainly ought not to be incorporated into our practices of punishment. There are legal systems in some parts of the world where lex talionis is enshrined in law, and inflicting physical suffering on a perpetrator equivalent to that caused by the original crime is a possible form of punishment. In a literal case of an eye for an eye, Iranian courts ruled that as punishment for disfiguring and blinding Ameneh Bahrami by throwing acid in her face, her attacker Majid Movahedi should be punished by having acid dropped into his eyes (although this punishment was never carried out, as Ms Bahrami pardoned Movahedi at the last minute). I share the abhorrence that was most people’s reaction to the initial ruling, and believe that no judicial system ought to punish people by inflicting this kind of physical harm on offenders, no matter what their crime. What I’m interested in though, is the reasons why we believe this kind of judicial punishment is wrong. Is it wrong because it is always wrong for the state to inflict the subjective experience of physical pain on to offenders? Or is it wrong because of the objective harm that would be caused by dropping acid into the offender’s eyes, and the likelihood this would cause lasting, permanent damage? To try to work this out, I’d like to make use of a thought experiment.

Suppose we really had access to experience machines, like the one that Robert Nozick devises in Anarchy, State and Utopia. That is, imagine that there are machines that we can be plugged into, like the people in The Matrix, that are programmed to stimulate our brains in such a way as to replicate any experience. While you are plugged into the machine, you aren’t aware that the experiences are a simulation – you think these events and experiences are actually happening. After a certain amount of time, you can be unplugged, and go back to your normal life. Now let’s imagine that these machines are routinely used as a form of judicial punishment, as a way of enacting a type of lex talionis punishment that, while inflicting the experience of physical pain and suffering, does not cause any long lasting harms. So for example, as punishment for committing an acid attack, the perpetrator would be plugged into the machine, and in the machine, have the simulated experience of having acid thrown into his face. He would feel the same physical sensations that such an attack tends to cause in the real world. Furthermore, he would, in the machine, have the appearance of being physically disfigured, and experience the psychological anguish and distress that usually accompanies this. During his time plugged into the machine, he would not realise this is a simulation; he would believe he was actually having this experience. After a given amount of time – however long we deemed was an appropriate length of time for him to suffer – he would be unplugged from the machine, physically unharmed.

Could such a form of punishment be justified? If we think it could, then that suggests that what is wrong with judicial corporal punishment is not the infliction of physical pain itself, but rather causing objective, long-lasting, possibly irreversible harms. But if we think that lex talionis in the experience machine is wrong, then that suggests that what we think is wrong about judicial corporal punishment is simply that it causes the subjective experience of physical pain, irrespective of any objective or long-lasting harms it inflicts. This may be right – it might be the case that the state ought never to inflict physical pain upon its citizens, no matter what offence they have committed. But this position leads to familiar worries about why the infliction of physical pain is considered unacceptable when the infliction of psychological distress is considered legitimate – clearly for many people, having their liberty restricted by being sent to prison is likely to cause a great deal of psychological suffering, and yet we tend to think this is ok. So the person who thinks lex talionis in the experience machine is an impermissible form of judicial punishment will need to explain why causing subjective psychological pain is acceptable, while causing subjective physical pain is not.

As a tentative conclusion, I’m inclined to think that the reason to object to judicial corporal punishment is that it inflicts forms of physical damage that are objective, that is, that are harmful independently of how the subject experiences the harm. This is why it would be wrong for the Iranian judicial system to have carried out their punishment of dropping acid into the offender’s eyes – this would have blinded him, which is an objective and irreversible harm. But perhaps if we could simulate the pain and suffering caused by having acid thrown in one’s eyes without actually inflicting this objective harm, then this would be an acceptable form of retributive justice. Lex talionis within the experience machine might be a permissible form of punishment.

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  1. But if we think that lex talionis in the experience machine is wrong, then that suggests that what we think is wrong about judicial corporal punishment is simply that it causes the subjective experience of physical pain, irrespective of any objective or long-lasting harms it inflicts.

    That doesn’t follow, surely?

    I can hold that it is wrong to cause the subjective experience of physical pain, regardless of objective harm – thus ruling out the EM punishment – while holding that what is wrong with judicial corporal punishment is that it causes objective harm and subjective pain. (So, for example, I might want to argue that judicial punishment is worse than EM punishment for that reason, but that they’re both wrong.)

    This way of looking at it provides a response to your question about why we tolerate psychological distress if we’re opposed to physical harm/suffering. The former is preferable to the latter because it achieves certain good results (e.g., deterrent, satisfies retributive impulses), while remaining proportionate, etc. But it doesn’t follow that just any level of psychological distress, or just any kind of psychological distress, would be justified (though the issue does become very complex at this point).

    You could do a “zombie” version of this thought experiment – i.e., invert it so that it’s possible to inflict physical harm on somebody without causing psychological distress, then see where the intuitions go.

  2. Some punishments seem to offend the most hardened.

    In our country, we have a recidivism rate of over 70%. In Hong Kong, i believe it is less than 1/2 of 1%. And there they have corporal punishment. A second time offender get more than the first time. It is known criminals may ask for long sentences in lieu of caning. There are very few offenders, and those who commit violent crimes, get the harshest penalties.

    Our prison system has failed, and while I object strongly to the treatment they give their offenders, they have less crime, because the punishment is swift and sure.

    In the US, our prisons are run by the inmates, violence reigns, and it is a school for crime.

    They have estimated it costs 60K a year to house and feed an inmate, while flogging would be in the hundreds. We should empty the prisons for certain drug abuse cases, since we have long ago lost the war, and concentrate on flogging the smugglers, and seizing their goods and monies.

    It would certainly be more humane than housing inmates.

  3. I found the thought experiment enlightening, a good exercise toward understanding. I’ll take the liberty to play devils advocate to push at the experiment a tad.

    What purpose is served by lex talionis upon the criminal? I would challenge the assumption that lex talionis, both subjective and object, is a valid basis for the end we seek. To be brief I’ll only consider the potential ends for justice are deterrence and retribution.

    Deterrence, by that I mean the credible threat of punishment might lead people to make different choices, has the assumptions that specific punishments imposed on offenders will “deter” or prevent crimes. Research has shown that increasing the severity of a punishment does not have much effect on crime, while increasing the certainty of punishment does have a deterrent effect. Lex talionis is not required to meet the goal of deterrence and appears to not require severity for efficacy. A punishment that is undesirable (as example incarceration) should suffice to meet then end without resorting to perceived or real violence upon the convicted. Here is a google search link to some papers to this effect: http://scholar.google.com/scholar?as_sdt=1,16&q=efficacy+of+deterrence+severity+certainty&hl=en&as_ylo=2012&as_vis=1

    Retribution, where punishment is imposed for no reason other than an offense being committed, on the basis that if proportionate, punishment is morally acceptable as a response that satisfies the aggrieved party, their intimates and society. Lex talionis requires a level of violence that is not permitted by the society in the first place, giving sanction to a crime being met with another crime. Vengeance punishments have a tendency to degrade the society imposing them. Another major criticisms against retributive justice is that it often creates a system in which abuses can occur, and punishment may not be proportionate for the crime committed. Retribution, therefore, can be challenged on moral grounds to its long term effect on society.

    Again, this is a wonderful posting. Thanks for the experimental idea!

  4. If it is wrong in any circumstance to throw acid into the face of another person, it is difficult to see how it is right, for another thrower, to throw acid into the face of the first thrower. In any case if throwing acid or dropping it into someone’s eyes is to be treated as a punishment, what sort of person is going to feel easy and fully prepared so to do? If you recommend such a punishment then you need to be fully agreeable to do the act yourself. Would Rebecca Reilly-Cooper herself be prepared to deal out the punishment she suggests for the two acid throwers?
    It serves no useful purpose, other than the satisfaction that revenge my bring.
    The question remains what should we do with acid throwers? It depends on circumstances for instance done for self protection or protection of another person it may be overlooked if life or limb has been at risk. The vindictive acid thrower is I think a different set of circumstances and initially it has to be determined what likelihood it will be repeated. It is difficult to generalise here and I think each case must be treated on its merits. Out of this a person could be detained for life on account of being by virtue of disposition, a permanent threat to others. This could be in my opinion the best option to take against those who threw acid at  Katie Piper .
    There is I think a certain mind set with some people they know full well what pain and suffering they can, and have caused others, and they can imagine full well, what it feels like both physically and psychologically, which is often why they do terrible things to others. Being exposed to the same crime they committed either in reality or artificially I think would only be regarded as their own misfortune. It would not cure their innate brutal disposition to act in certain loathsome ways. My understanding, without researching the point, is that the introduction of the death penalty for murder does not substantially reduce the incidence of murder over a significant period of time. The whole point is what should we do with people who have committed without remorse certain terrible acts against their fellow creatures. Some how they have to be taken out of society, either by depriving them of their own lives or permanently depriving them of their freedom.
    Presently nine men in UK are accused of abusing vulnerable girls aged 11 to 15 who were befriended and subjected to violent sexual acts. One victim has has described her abusers as operating with a “Pack Mentality” each encouraged the the others to acts of greater violation. It seems to be a matter of you name it, they did it. If found guilty what should be done with such people, they seem worthless? Perhaps donate them to experimental science, with a view to furthering research into medical/psychological conditions which currently defy a solution; or would that be too inhuman?

  5. One of the very shameful things about violent crimes is that while much wailing and gnashing teeth is directed at the perpetrators, the victims are left to repair their shattered lives as best they can, if they can. Case in point: how much will be spent on the protective custody of James Holmes (in Denver) versus how much help will the surviving family and friends receive?

    So, $60,000/year to keep a ‘criminal’ safely away. What about the costs of getting the criminal to jail? Would that a third of all that be spent to help the victims. But that won’t happen because cops and lawyers don’t make any income being kind to victims.

    It is curious that our rational attitude to punishment is not much advanced on the wee theory that Socrates proposes in his eschatology at the very end of the “Gorgias”. It’s not because Socrates was an advanced thinker that we still think like him.

    My intuition is that we should treat crime like a public health disease: The first priority is prevention.

  6. Re Boreas 17th Jan

    “My intuition is that we should treat crime like a public health disease: The first priority is prevention. “

    How would we go about that? I do not think a life of crime and violence is a choice. One is born with the disposition to behave thus. Neurological studies have identified areas of the brain which are associated with such behaviour. Additionally, often these innate dispositions. are reinforced by nurture and environment. Aversion therapy does not seem to work too well e.g. Acts of murder being rewarded with judicial death. Acts of theft being rewarded by imprisonment.

  7. Don Bird,
    How would that work? Don’t ask me. I’m not a science fanatic who believes strongly that some grand theory or two with a dash of empirical research will solve any human problem, including the miasma of original sin. But thanks for asking nonetheless.

    Obviously some comparative anthropology might be helpful. It is curious that violent crime is more frequent in the Americas and Africa than Europe or Asia. Having said that, the English once used a whipping boy method that may have been reasonably effective: It works as (a) encourage friendship among groups of young people, (b) when a member of the group does something untoward, randomly pick another of his group for some proper cruelty that induces loud anguish from the boy whipped, and (c) thereby causes the perpetrator to internalize the public shame. This addresses our first mistake: We let people raise bad children.

    Whatever the method is, the critical issue is ‘Does it work — does it work to reduce violence?’ By that measure, our criminal justice system (which by the way we inherited from the English) is a large failure. By focusing on the accidental properties of fairness and truth, the system negates the intended effects while transferring public wealth to the private accounts of ‘the public defenders’.

  8. Rebecca Reilly-Cooper

    I think I’m confusing myself by conflating several issues – whether a harm is subjective or objective, whether it’s physical or psychological, whether it’s permanent or lasts only for the length of time that the punishment is being inflicted.

    The question I’m interested in is why we tend to think it’s ok for the state to inflict psychological harm on people (which prison surely does) but not physical harm. I think most people do believe that punishments that inflict psychological damage are permissible, but want to draw the line at physical damage. I have the same intuition, but I’m not sure why. I think it would be wrong for the state to punish people by dropping acid into their eyes. But is it because this would cause them physical pain? Is it because it would cause particularly acute psychological distress, that non-corporal punishments such as prison do not? Or is it for some other reason entirely?

    If it’s because it would cause physical pain, we would need to give an explanation of why the state can inflict psychological pain, but not physical pain. I can’t see any good reason to assume that psychological distress is obviously not as harmful as physical pain. If it’s because it would cause psychological pain that is disproportionately severe, we would need to give a defence of this. I can’t see any good reason to assume that the psychological distress of corporal punishment is obviously more proportionate than that caused by imprisonment, or that it wouldn’t have positive deterrent results etc. It’s certainly possible that many offenders might prefer the infliction of some physical harm to a purely psychological one, like imprisonment. Without any good reasons to accept these claims, I’m left thinking that judicial corporal punishment must be wrong for reasons other than the pain it inflicts, whether this is physical pain or psychological pain.

    To test Jeremy’s zombie alternative, suppose as punishment for stealing, the state chops your hand off. However, due to some neurological quirk, you feel neither physical pain nor psychological distress about this, and do not miss your hand at all. I think this punishment is still unjustifiable, as it permanently robs you off the capacity to use your hand – whether indeed this is something you feel upset about or not, and whether it’s physically painful or not.

    So it looks like I’m left arguing that what’s wrong with judicial corporal punishment is not that it inflicts either physical or psychological pain/suffering, but that it inflicts some kind of lasting damage. That’s the sense in which it’s an objective, rather than a subjective harm – there is a loss of something, regardless of how the person experiences it. And if that’s true, there would be nothing wrong with inflicting this pain in the experience machine.

    Of course, this has some rather unpalatable implications. Real life, non experience machine corporal punishments that inflict pain but not objective damage – such as whipping or thrashing people – appear to be acceptable. Of course, these – and the experience machine too – could inflict long-lasting psychological damage, and then they wouldn’t be justified. Oh dear, I’m tying myself up in knots!

    Perhaps one way to clarify things might be to ask people: if you think that imprisonment is ok, but inflicting pain in the experience machine is not, then what explains the difference?

  9. Rebecca Reilly-Cooper

    Don Bird – you say:

    If it is wrong in any circumstance to throw acid into the face of another person, it is difficult to see how it is right, for another thrower, to throw acid into the face of the first thrower.

    I completely agree! What I want to know is – why?

    As I hope was clear from my post, I’m not advocating dropping acid into people’s eyes as a punishment. I am asking whether simulating the experience of having acid dropped into one’s eyes might be an acceptable punishment – you may think not, but I’m interested to know why.

    Incidentally, I probably confused matters too by presenting this as a question of retributive vs consequentialist theories of punishment, when in fact that’s a separate issue. The question of what justifies punishment as a practice is a different one from the question of what forms punishment may take. (For example, you can think that punishment can only be justified consequentially and think we should inflict corporal punishment, if this has enough of a deterrent effect.)

  10. Rebecca Reilly-Cooper,
    Why do you ask why? Don and you agree. Gandhi would agree. Does an examination of the causality change anything? Here is a quotation that tries to give a poetic answer:

    Whoever fights monsters should see to it that in the process he does not become a monster. And when you look long into an abyss, the abyss also looks into you [Nietzsche].

  11. There is a lot to unpack here. Causality, justice, free will, determinism…

    Let me try another thought experiment and forgive the over use of Nazi’s but it simplifies the concepts quickly.

    Let us say that someone is touring Auschwitz just after its liberation.
    They are exposed to this great horror and come to know part of the suffering of the people there.
    In some limited way they are sensing information similar to the experience machine described above.
    The individuals sensory inputs provide information that alters forever their experience.
    At minimum their loss of innocence, perhaps even more psychic damage is done.
    The sensing of the horror is less than that experienced by the camps victims, nevertheless intensely real.

    Can we say that the crime of the camp is then visited upon the person touring the camp?
    Can we classify that person as a victim?
    If so, then can we then say indirect non-physical experience is immoral?

  12. Re:- Rebecca Reilly-Cooper
    Don Bird – you say:
    If it is wrong in any circumstance to throw acid into the face of another person, it is difficult to see how it is right, for another thrower, to throw acid into the face of the first thrower.
    I completely agree! What I want to know is – why?
    I find that question difficult to answer. Dennis Sceviour’s reply Is I think of considerable efficacy in constituting a reply.
    It seems to me that you want to know why it it is not an acceptable punishment and I did say “it is difficult to see” it as an acceptable punishment. My first thought is that two wrongs do not make a right. However trotting out a well worn cliché does not constitute a sound argument. Why would you want to punish? What good will that do? The damage has already been done to the victim doing the same or simulating it will not heal real facial scars and possible blindness. We punish people for all sorts of things and yet others are not deterred and commit the same acts themselves. I think you have to be careful not to conflate Punishment and Revenge here. Giving like for like where injury is concerned be it real or artificial surely makes nobody a better person.
    The problems here seem to reside in two points 1/ would the simulator really be any good as a punishment or deterrent? I feel doubtful here as all that we have to offer a miscreant is something like a nightmare from which he or she will, they know, awake unharmed. I have never thrown acid into someone’s face but I can well imagine its physical and psychological effects on a person. It is surely this belief which urges a person to accordingly harm someone they hate and wish them to suffer terrible pain and distress. 2/ we can not without some crucial difficulty equate psychological |damage with physical damage. So far as prison is concerned I am not sure that it does generally cause deep lasting psychological damage ( of course there are such cases but they do not predominate) whereas Physical punishment certainly does last in the form of loss of limbs, scar tissue, and other crippling problems not to speak of almost certainly lasting psychological damage. For these reasons I think some explanation has been given to explain why causing subjective psychological pain may be acceptable, while causing subjective physical pain may be not.

  13. Rebecca, you seem to miss a rather important question – what is the purpose of societal justice?

    It seems to me the whole point of having society meting out ‘justice’ in a cold and dispassionate way is precisely to avoid retribution that people* would want when personally vested.

    Thus it would appear we want to provide disincentives for people to commit crime in the first place and protection for society from those who have proved themselves capable of committing these crimes in the first place. Locking people up would appear to deal with the latter, and may even allow room for the death penalty should society be that way inclined.

    To deter people we need to work out what society is willing to do. Life imprisonment would surely reduce shoplifting, but we feel that a punishment should ‘fit the crime’, or be proportional.

    To end this meandering nonsense – society should strive to be better than the criminal (hence no lex talionis or death penalty) but it should also fit the mores of the people to deter crime. When we have better people we have better punishment and, if you look at Scandanavia, more effective punishment.

    *Hell, go attack proper Christians and they’d be duty bound to forgive you.

  14. But perhaps if we could simulate the pain and suffering caused by having acid thrown in one’s eyes without actually inflicting this objective harm, then this would be an acceptable form of retributive justice.

    But if the perpetrator, while inside the EM, truly believes he is experiencing the physical pain of having acid dropped into his eyes and the psychological pain of contemplating a life of blindness, then my intuition tells me that there will be some lasting psychological suffering even after he is removed from the EM and realizes that the experience wasn’t “real.”

    Now, the psychological suffering he will experience won’t be of the same degree as he would experience if the punishment objectively happened, but my naturalistic worldview informs my intuition and further tells me that, since mind = brain, any experience of psychological trauma will leave some indelible mark on his “psyche”.

    I think we can experience this on a much weaker scale vis-à-vis dreams: having traumatic experiences in dreams certainly affects our mood upon waking, and possibly for an indefinite period to come. It can change our attitudes towards other people, familiar or unfamiliar, and subsequent “real life” experiences…

  15. For you interest, this book has a science fiction look on the experience machine:

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