Robert Harris vs. Bernie Madoff

Ever since Watson so eloquently presented the case of Robert Harris to us, people have used this case as an illustration of the problem of moral luck and to demonstrate the possibility that ultimately perhaps no one is truly morally responsible for anything.  When we learn of the terrible upbringing of Harris from being kicked out of his mother’s womb to being beaten by his father to being untouched by his mother, we wonder what we would be like had when had his life: “There but for the grace of God go I.”  And we notice our reactive attitudes being dampened down.

I’ve always been dubious about how this case has been used (forgive me if I’m not remembering exactly all the ways Watson uses the case—I haven’t read his article in a while).  First, I don’t think any of us know what we would be like if we’d been raised like Harris.  But if we’d been raised as Harris was, I’m not sure we would count as the same person (this personal identity issue has come up here before).  More importantly, I suspect Harris does not satisfy most compatibilist conditions for free will and moral responsibility.  When we learn about his upbringing, our intuitions may be influenced by the fact that we have reason to wonder whether he really knows right from wrong or really can control himself in light of rational deliberation.  It’s very hard to know whether we feel the pull to mitigate our reactive attitudes towards Harris (a) because he is, like all of us, the product of his past, or (b) because, unlike most of us, he is the product of a peculiar past that made him, well, somewhat crazy.  (Wolf’s case of Jojo faces the same problem, I think—it’s entirely unclear whether he convincingly satisfies the "deep self" conditions.)  And it’s not like we have the intuition that Harris is not responsible at all.  Rather, we have the intuition that he’s less responsible than we initially felt.  We mitigate our reactive attitudes, perhaps because we feel Harris’ upbringing has diminished the degree to which he possesses requisite compatibilist capacities for free will.

The lesson here generalizes to some extent.  We often assume that those who commit the most gruesome crimes are screwed up in a way that makes it hard for us to understand their mental processes and that makes it easy to wonder if they are wired in the wrong way.  This is why I think it is more useful to test our intuitions about the general worries of determinism or self-creation with cases that don’t confuse the issues—that don’t conflate having a (deterministic) history with having a history that screws up one’s rational control capacities.  What we need is a case that involves a sane person carefully planning to do what he knows is wrong, doing it repeatedly, and causing terrible harm, and who does not appear to have a terrible upbringing (or genetic defects, brain damage, etc.).  This is where Bernie Madoff comes in. 

Try the Harris move on Madoff:  Go learn about his upbringing (my hasty wikipedia research indicates nothing traumatic or out of the ordinary).  Consider his motives as sympathetically as you can (some say he initially did not want to lose his investors money because he wanted so much to be successful at his job).  Imagine that he is, like all of us, unable to create himself or to be the ultimate source of his actions.  Bring all that into focus as clearly as possible.  But at the same time keep in focus the fact that he stole billions of dollars from hundreds of people over a decade, carefully planning how to do it, and knowing exactly what he was doing and that it is wrong.  At a minimum, I don’t think we have the reaction we have to the Robert Harris case.  Rather, we may be left still feeling more like these two victims of Madoff’s scheme (though perhaps with slightly less severe indignation and suggestions for punishment!) …

1. Elie Weisel on Bernie Madoff (transcript here), asked if Madoff is a psychopath: “’Psychopath’ means it's a sickness; sociopaths, psychopaths, it is pathology, it's sickness.  The man knew what he was doing, and I would simply call him ‘thief, scoundrel, criminal.’ Anyway, whatever is to hurt him, I think should be invented, because he deserves it. [Laughter] … Could I ever forgive him? No [Applause].”

2. Investor Dewitt Baker (who lost over $1 million to Bernie Madoff): “I’d stone him to death.”

Thoughts?

Comments

[Michael Drake]

One way to think of the case of Bernie Madoff is to say that he suffers from what we might call Madoff Syndrome -- a condition that consists in being Bernie Madoff.

This is not (completely) tongue in cheek, because the notion of "disease" arguably turns on the idea of treatability. Undesirable personality traits are transformed into personality disorders once some mechanism is discovered or hypothesized that suggests at least the possibility of "treatment."

Imagine the drug companies come up with an anti-akrasiac, narrowly customized to Madoff's psychology and biography, that would have forestalled Madoff's imposture (though otherwise leaving him "free"). Under such circumstance, is there any reason to resist the conclusion that he suffers from some kind of medical condition?

[Mark Smeltzer]

Michael,

In the tale you've spun, would Madoff be given a choice as to whether to accept the treatment that would turn him into Madoff*? What if he strongly desires to remain Madoff?

Regardless, a strong case can be made against your suggestion that anything that can be changed about a person is thus a disease/medical condition that the person suffers from. The concept of disease surely turns on more than an ability to bring about a desired change.

Eddy,

I have a good friend who most likely would follow in Madoff's steps if placed in the same situation and left unchecked.

He, more often and more overtly than anyone else I know, fails to empathize with others and thus acts mainly from self-interest. However, whenever he is brought to bear to give a rational account for his actions, he does retain the capacity to recognize when his actions have caused pain to others and to feel the weight of the pain. That is his saving grace. He accepts accountability.

I've known this person for several years now and through a cycle of doing something incredibly selfish and then suffering the reproach and scorn that is his just reward, his capacity for empathy has grown from near zero to that of (I would say) your average seventh grader (he is in his early 30's). Even if he is still acting from self-interest, he has begun to learn that it is in his interest to consider the feelings of others. And now, that empathy has started to take a larger role in his decision making -- everyone that knows him well recognizes the change, gradual as it may be.

I think that after the past few years of growth this person would probably be able to resist the temptation of perpetuating Madoff's scheme, even if he managed to stumble into it (as Madoff claims he did). That is my biggest disgust with Madoff: it is one thing to make a mistake, but it is another to harbor it and nourish it.

Unlike Michael (and Kip), I do not foresee a future in which exists both (1) the experience of popping a pill and painlessly "fixing" one's unseemly personality traits and (2) a life worth living. It is, in part, the struggle that makes the moral victory worth savoring: once my friend achieves a normal adult capacity for empathy, that will truly be a day to celebrate! I could not say the same thing if it were as simple as him popping a magic pill -- it would devalue the transformation.

Empathy and selfishness are really the values at play in Madoff's story. Even if the only reason he perpetuated the scheme was that he wanted to buy himself some time to figure a way out of it for his clients (which at first glance might seem somewhat noble), that desire is still born of an intense selfishness. It is selfish because he placed more value on his own desire to avoid pain than the value he placed on all of his clients' desire to avoid pain. If he would have empathized with his clients' desire to avoid pain, he would have had the moral strength to come clean about his mistakes very early on long before any serious damage had been done.

If an indubitable lack of moral strength isn't a sufficient reason for assigning blame, I don't know what is.

[Michael Drake]

"[W]ould Madoff be given a choice as to whether to accept the treatment that would turn him into Madoff*?"

Sure, Mark, but I don't see how that matters. After all, many mentally ill persons don't want to be treated either.

I don't doubt that "a strong case can be made against my suggestion"; I'm just wondering what that case is. If in some behavioral respects a person's achieving mere normality routinely requires supererogatory effort (which seems, BTW, to be the case with your friend), why wouldn't we want to ameliorate that state of affairs? (And if we would, why not call that "treatment"?) Conversely, if the "struggle that makes the moral victory worth savoring" is reason enough not to ameliorate it, why shouldn't we all then pop a pill that elicits in us the same disability, so that we can bask in the glory of that struggle as well?

[Michael Drake]

Sorry, 'supererogatory' wasn't the right word; 'far-greater-than-normal' will do.

Also, come to think of it, I guess it would be an 'anti-akratic.'

[Tom Clark]

Eddy,

Thanks for your post, a few thoughts. When we try the Harris move on Madoff, looking for things to attenuate our reactive attitudes, we find no abusers to whom we can transfer blame. Blame wants live human beings for targets, not situational factors, so on this score it’s no surprise blame remains focused on Madoff, not his apparently benign formative influences.

You’re obviously right that one big factor influencing reactivity is our estimate of the agent’s compatibilist moral competence, where Madoff seems perfectly competent, Harris maybe not. This points up the functional role of reactivity: it’s generally a waste of moral resources to blame those for whom it can’t work as a restraining influence.

But it seems to me there are other factors that influence reactivity: appreciation for the contingency of the agent’s history (moral luck, which you mentioned) and the fact that there’s a causal history, period, over which the agent doesn’t have ultimate control (determinism). Neither of these counts as excusing conditions of course, since we’re all subject to them, but nevertheless when brought into focus they can trigger what I call the “mitigation response” in a review of Michael Moore’s book Placing Blame.

When thinking carefully about Madoff’s history, what I get is that neither his moral competence nor his character flaws are ultimately self-made, which is to say there are a multitude of contributing factors that made Madoff and abetted his crimes. To me this distributes responsibility, showing him to be simply the most proximate, salient cause in the global causal situation. This in turn tends to mitigate my reactivity, making other factors more salient and thus worthy of addressing, e.g., the lax regulatory environment he operated in. This doesn’t let Madoff off the hook, but it shows he’s not causa sui.

The extent to which people believe in the causa sui is an empirical question, but to the extent they do, and to the extent that it contributes to reactivity, to that extent we’d expect reactivity to diminish as determinism is accepted. As Spinoza put it “This doctrine teaches us to hate no one, to despise no one, to mock no one, to be angry with no one, and to envy no one.”

Now, I know you don’t buy what Spinoza said, but for some reason you don’t completely endorse Madoff’s victims’ full bore indignation and suggestions for punishment. I’m glad of that, but I wonder what you’d say to get them to back off.

[Eddy Nahmias]

That's all very nicely put, Tom. It makes me wonder how much separates us, even though you say your a skeptic about free will and (true) moral responsibility and I say I am a (neurotic) compatibilist who believes we have (some degree) of genuine free will and responsibility. To get Madoff's victims to back off, I would say some of the things you say. But I would also focus on the moral problems with torture and stoning, but those that are not about the targets' lack of genuine FW/MR (e.g., the way such punishment debases those who carry it out, the epistemic limitations that mean we may punish people who don't deserve it--in the compatibilist sense even, etc.).

What you say sounds like you think Madoff really *deserves* punishment for what he did, just not the sort of punishment that being a causa sui might make him deserve (though it's ENTIRELY unclear how being a causa sui can make agents deserve anything in a way non-causa sui agents cannot). Of course, I agree with that. But I also think it's clear that he genuinely deserves to be punished (in the retributive sense) regardless of his particular background or the general background fact that, like every (possible?) agent, he is not a causa sui and he has a history (deterministic or indeterministic) that brings about who he is.

The question I'm asking by bringing up this case is why we should think that anyone would--or that anyone *should*--back off holding strong reactive attitudes, including moral anger and a desire to punish, towards the d-bag that is Madoff.

(I should also add that I do not share the mood of the nation that we should string up the AIG execs who got bonuses. They are not in the same ballpark as Madoff--e.g., they did nothing illegal. Here is a case of moral anger seeking to find a target but being out of proportion with the facts. Which is not to say those guys aren't d-bags too.)

(Oh, and I like Tom's point about the Harris case, but not the Madoff case, providing other baddies to transfer our blame to. That's how I think we explain the difference between manipulation cases and determinism.
... and I do like Spinoza even though he kicked my butt on my comp exams in grad school.)

[Tom Clark]

Eddy,

If you would say some of the things I say about moral luck and determinism to get people to back off retributive excesses, then we’re indeed not so far apart (and your additional points are well taken). But you don’t agree about the possible role the belief that we’re causa sui might play (if indeed the folk have that belief), since you say “it's ENTIRELY unclear how being a causa sui can make agents deserve anything in a way non-causa sui agents cannot.

A causa sui agent might be thought to deserve punishment more than one that isn’t because there are no contributing causal factors that attenuate blame, that distribute responsibility outside the agent. It’s all *his* (the bastard’s, the self-made monster’s) doing. So the reactive response focuses entirely on the causa sui, with no attention to causal context (since there is none!). Thus arises ultimate retributive desert which holds agents such as Madoff to be unforgivable, ever, and thus deserving of being stoned to death or left to rot in supermax prisons. This is why causa sui sinful souls deserve to burn in hell, but fully caused physical beings don’t. This is why, when the contributory causes are (finally and rationally) admitted and responsibility is distributed, we get the mitigation response: blame on the agent lessens and attention to contributing causes increases. Reactivity is essentially (if primitively) rational and therefore sensitive to information about the offender, including his causal history. It tracks causality and *should* track it to serve its function: to get people - and now, because we’re scientific and appreciate causal histories, situations and systems - to shape up.

When you say it sounds as if I think Madoff really *deserves* punishment, I would only say “deserve” in a naturalized, humane, limited, consequentialist sense: that an offender’s suffering is only warranted insofar as there are no less punitive ways to achieve agreed-upon essential outcomes such as public safety, moral and practical rehabilitation, deterrence, etc. I was informed here at the Garden that *real* desert is ineliminably non-consequentialist, so I guess we need another word for what I’m describing (analogous to “tellishment”).

You ask “why we should think that anyone would--or that anyone *should*--back off holding strong reactive attitudes, including moral anger and a desire to punish, towards the d-bag that is Madoff.” One answer is that strong moral anger and desire to punish, aided and abetted by the causa sui myth (to the extent the myth actually plays a role), lead to precisely the sort of over-the-top retributive excesses you and I agree should be avoided. Moral anger will take care of itself just fine since we’re hard wired for it, it doesn’t need apologists. It points us in the right practical direction, obviously, but there are plenty of good reasons to put Madoff away that don’t involve maximum permanent suffering or death that strong moral anger wants, suffering which serves no public good but instead reinforces one of the worst sides of human nature. We need to put the brakes on reactivity, not incite it.

[Paul Torek]

We don't all get the mitigation response when the contributory causes are finally and rationally admitted and responsibility is distributed. Some of us get the multiplication response. That is, we hold that responsibility multiplies, instead of divides.

I remember Cornel West's comment, about a decade ago, on responsibility for violence in the underclass. Liberals, he said, want to focus on structural change, using social programs; conservatives, on the moral character of individuals, using punishment to improve behavior. We need to address both, West said. We don't have to choose. (He had a lot more diagnosis and prescription, but the rest is off topic.)

To West's commentary I could only say, Yes. Exactly. And I wondered why he seemed to be about the only one saying it.

[Eddy Nahmias]

Tom, when I said: "“it's ENTIRELY unclear how being a causa sui can make agents deserve anything in a way non-causa sui agents cannot," I didn't mean: How could people's *belief* in our being causa sui--to the extent people really have that belief--make people *believe* that agents deserve greater punishment, etc. than agents with (mere) compatibilist powers. (I'll go along with the idea that the need for heaven-and-hell level responsibility might have driven the creation of the myth of the causa sui and that has infiltrated some people's thinking.)

What I meant is that I can't see what the *argument* would be for (a) why being a causa sui would *justify* eternal damnation or reward, and more importantly, (b) why being a causa sui would *justify* desert (or more desert) than being an agent with compatibilist capacities. A decision created by an agent ex nihilo seems to deserve no more credit or blame than a decision created through the proper processes of deliberation, etc.

Does this help clarify what I was saying there?

[Brian Parks]

Eddy,

I think you are right wrt the causa sui point. If a being who is causa sui makes a choice, either:

(1) He makes the choice based on principle(s) of choice (feelings, sensitivities, emotions, desires, aversions, motivations, etc.--the things that lead us to choose what we choose, rather than something else)

or,

(2) He does not make the choice based on principle(s) of choice. He chooses blindly, ie, he rolls a dice.

Now,

If he chooses per (2), then he cannot deserve credit or blame for the fact that he made the right (or wrong) choice, because it was luck, just like it is luck when he rolls a dice and comes up with a winning (or losing) number.

If he chooses per (1), and he is causa sui, then he necessarily must have chosen to create in himself the sensitivities, feelings, desires, motivations, and so on that led him to his choice.

So, taking the path of (1), we regress to a first choice. Either that choice was per (1) or per (2). If per (2), then he cannot deserve credit or blame for the reasons previously stated. If per (1), then he is not causa sui. QED.

I make this point in a more elaborate way at the end of

http://people.consolidated.net/gptravel/umr_no_possible_bdp.pdf

in responding to Mark Bernstein. Bernstein argues that there is a sense in which we can be causa sui (his argument is similar to the point you made in an earlier post that Strawson's regress dissolves into a Sorites paradox).

[Tom Clark]

Eddy,

I take your point, which indeed is why I said "A causa sui agent might be *thought* to deserve punishment more than one that isn’t because there are no contributing causal factors that attenuate blame, that distribute responsibility outside the agent."

The way I think of it, a causa sui agent presumably has and uses the same capacities for deliberation that fully caused agents do, so its decision isn't created ex nihilo. Any (extra) desert that's believed, wrongly or rightly, to accrue to it comes from the idea that in being self-created, the agent is ultimately the source of wrong-doing, not external factors.

As for the argument for this extra desert, I don't know of one apart from pumping the intuition that since desert tracks agency, causa sui agents are more agentic (shall we say) by virtue of being self-caused, therefore more deserving.

What I'm curious about is the compatibilist argument for how being a *fully caused* agent justifies desert. If causa sui agents don't deserve eternal damnation, why then do *determined* agents like Madoff deserve, as some believe, the terrestrial equivalent such as solitary confinement or other non-consequentialist punishments?