The first, which is the focus of this chapter, argues that free will skepticism is the only reasonable position to adopt when it comes to the problem of free will. And since retributive punishment requires the kind of free will associated with basic desert moral responsibility in order to be justified, free will skepticism implies that retributive punishment lacks justification. Hence, in so far as we demand justified legal punishment practices, we should reject retributivism in light of the philosophical arguments against free will and basic desert moral responsibility. We can call this argument the skeptical argument against retributivism since it maintains that free will skepticism undermines the retributivist notion that wrongdoers deserve to be punished in the backward-looking sense required.

In the previous chapter, I argued that the public health–quarantine model can successfully deal with concerns about proportionality, human dignity, victims’ rights, rehabilitation, and preemptive incapacitation. In this chapter, I will argue that it can also successfully deal with concerns about funishment, cost, deterrence, evidentiary standards, and indefinite detention. In the process of defending my account, I will revisit the issue of prison design, explain one important difference between the views of Pereboom and myself, and argue that high evidentiary standards and the importance of actus reus and mens rea can all be preserved.

In this chapter, I will further develop the public health–quarantine model by exploring the relationship between public health and safety. I will focus on how social inequalities and systemic injustices affect health outcomes and crime rates, how poverty affects incarceration rates, how offenders often have preexisting medical conditions including mental health issues, how involvement in the criminal justice system itself can lead to or worsen health and cognitive problems, how treatment and rehabilitation methods can best be employed to reduce recidivism and reintegrate offenders back into society, and how a public health approach could be successfully applied within the criminal justice system. My approach will draw on research from the health sciences, social sciences, public policy, law, psychiatry, medical ethics, epidemiology, neuroscience, and philosophy. I will argue that there are number of important links and similarities between the social determinants of health (SDH) and the social determinants of criminal behavior (SDCB), and that the public health–quarantine model provides the most justified, humane, and effective approach for addressing criminal behavior.

Within the criminal justice system one of the most prominent justifications for legal punishment, both historically and currently, is retributivism. The retributive justification of legal punishment maintains that, absent any excusing conditions, wrongdoers are morally responsible for their actions and deserve to be punished in proportion to their wrongdoing. Unlike theories of punishment that aim at deterrence, rehabilitation, or incapacitation, retributivism grounds punishment in the blameworthiness and desert of offenders. It holds that punishing wrongdoers is intrinsically good. For the retributivist, wrongdoers deserve a punitive response proportional to their wrongdoing, even if their punishment serves no further purpose. This means that the retributivist position is not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished.

In this chapter, I would like to develop a second independent argument against retributivism, which I call the Epistemic Argument. The argument maintains that even if one is not convinced by the arguments against free will and basic desert moral responsibility, it remains unclear whether retributive punishment is justified. This is because the burden of proof lies on those who want to inflict intentional harm on others to provide good justification for such harm (see Pereboom 2001, 2014; Vilhauer 2009, 2012, 2015; Shaw 2014; Corrado 2017; Caruso 2020). This means that retributivists who want to justify legal punishment on the assumption that agents are free and morally responsible (and hence justly deserve to suffer for the wrongs they have done) must justify that assumption. And they must justify that assumption in a way that meets a high epistemic standard of proof since the harms caused in the case of legal punishment are often quite severe. It is not enough to simply point to the mere possibility that agents possess libertarian or compatibilist free will. Nor is it enough to say that the skeptical arguments against free will and basic desert moral responsibility fail to be conclusive.

In the final two chapters, I consider and address a number of objections to the public health–quarantine model. In this chapter, I will address concerns about proportionality, human dignity, victims’ rights, rehabilitation, and preemptive incapacitation. In the following chapter, I will address concerns about deterrence, cost, evidentiary standards, and indefinite detention. I will argue that the public health–quarantine model can successfully deal with each of these concerns and as a result it offers a superior alternative to retributive punishment and other nonretributive accounts. My hope is that by addressing these concerns now, the case for the public health–quarantine model will be made even stronger. It will also provide me with the opportunity to flesh out some additional components of my account.

We have now seen two distinct arguments against retributive legal punishment: (1) the Skeptical Argument and (2) the Epistemic Argument. In this chapter, I would like to consider additional reasons for rejecting retributivism that are independent of worries over free will and basic desert moral responsibility. I will argue that even if one does not share my skepticism about free will, there still remain good reasons for wanting to reject retributivism. This is because, even if we assume, for the sake of argument, that the requisite capacity for control is in place and agents are morally responsible in the basic desert sense, retributivism still faces a number of powerful philosophical and practical objections. In particular, I will argue that (3) it is philosophically problematic to impart to the state the function of intentionally harming wrongdoers in accordance with desert since it is not at all clear that the state is capable of properly tracking the desert and blameworthiness of individuals in any reliable way.

With the case against retributivism complete, we can now ask: If we come to doubt or deny the existence of free will, or reject retributivism for other reasons, where does that leave us with regard to criminal justice? Traditionally, in addition to pure retributivism there have been a number of other common justifications of legal punishment, including consequentialist deterrence theories, moral education theories, and a variety of expressive, communicative, and mixed theories of punishment. In this chapter, I will examine these other approaches in an attempt to show that they face significant moral concerns of their own – or, in the case of mixed theories, retain certain retributive components that are unjustified. My aim will not be to refute these theories or establish that punishment is never justified. Instead, I simply want to argue that there are sufficient reasons for seeking an alternative to these nonretributive justifications of punishment. In the remainder of the book, I will then argue that the public health–quarantine model offers the best alternative.

One of the most frequently voiced criticisms of free will skepticism is that it is unable to adequately deal with criminal behavior and that the responses it would permit as justified are insufficient for acceptable social policy. This concern is fueled by two factors – both of which we have now seen. The first is that one of the most prominent justifications for punishing criminals, retributivism, is incompatible with free will skepticism. The second concern is that alternative justifications that are not ruled out by the skeptical view per se face significant independent moral objections. Yet despite these concerns, I will now argue that free will skepticism leaves intact other ways to respond to criminal behavior – in particular incapacitation, rehabilitation, and alteration of relevant social conditions – and that these methods are both morally justifiable and sufficient for good social policy. The position I defend is similar to Derk Pereboom’s (2001, 2013, 2014), taking as its starting point his quarantine analogy, but it sets out to develop the quarantine model within a broader justificatory framework drawn from public health ethics. The resulting model – which I call the public health–quarantine model – provides a framework for justifying quarantine and incapacitation that is more humane than retributivism and preferable to other nonretributive alternatives. It also provides a broader approach to criminal behavior than the quarantine analogy does on its own.