JC Member Spotlight: Gideon Yaffe

Bringing Meaning to Punishment

Gideon Yaffe is Wesley Newcomb Hohfeld Professor of Jurisprudence, Professor of Philosophy, and Professor of Psychology at Yale.  His interests include the philosophy of law, particularly criminal law; the study of metaphysics including causation, free will and personal identity; and the study of intention and the theory of action. Professor Yaffe collaborates with several neuroscientists to devise experiments that aim to be of legal and philosophical significance and has written about the relevance of the neuroscience of addiction to the criminal culpability of people with substance use disorder. He is the author of  Attempts and The Age of Culpability: Children and the Nature of Criminal Responsibility.

We spoke to Gideon about his fellowship at the Center for Advanced Studies in the Behavioral Sciences at Stanford (CABS) where he has sought to understand the elusive concept of meaningfulness in life. Specifically: Under what conditions does a bad event nonetheless add to the meaningfulness of the life of which it is a part?

Q: You have been working on a paper about how punishment can play an important role in meaning-making? Can you talk about that?

Several years ago, a group of us went to Bogotá, Colombia and met the people who had created The Special Jurisdiction for Peace. This initiative was created after a peace agreement was reached with the FARC (The Revolutionary Armed Forces of Columbia –People’s Army) in 2016.  There was no dispute that horrific crimes had been committed, but the FARC was worried that these crimes would be adjudicated under the Colombian criminal justice system and that large numbers of them were going to be spending their lives in prison. The peace agreement allowed for these crimes to be adjudicated through a new body: the Special Jurisdiction for Peace. Its process began by bringing together the perpetrators and the victims for a discussion about their experiences. A judge would then impose a sentence on the offender. These were people who had committed multiple murders or public acts of rape, which they called “disciplinary rape.”  I mean, terrible stuff.

Sometimes the offenders were given prison time, but often not. Instead, for example, they might require the person who lived in Bogota to live for a period in a native village and work or impose a variety of alternative methods relevant to the offense committed.  The punishments did not allow the perpetrators to do whatever they wanted with their time; they were required to behave in a certain way, but not in ways resembling standard forms of punishment (e.g. incarceration).

After meeting all the different parties at the Special Jurisdiction for Peace—the organizers, the judges, perpetrators, victims—one of the things that really struck me was that all they seemed to want was for this 50-year period of horrific violence in Columbia to be made meaningful. They didn’t want to move forward as if it hadn’t happened, and they also did not want to be at war. They wanted to move on somehow together but with meaning made from it.  

For example, extraordinary exhibits were established in Bogota where people involved in the conflict produced and displayed works of art about it. We saw a building where they melted all the weapons that the FARC had and built a beautiful floor.  Those are just two examples of how meaning was made.

This made me start to see that what we overlook is the way(s) in which punishment can play a crucial role in meaning-making.

I think one way to understand forgiveness is by considering how to make meaning out of the misery you suffer at someone’s hands. You take the very fact of your misery as your reason for doing something good, for moving on. And, that way of making meaning--taking something bad as your reason for doing something good--is one of the things that I think punishment can do. Inflicting this type of punishment accomplishes a sense that there's something forward-looking which is good. This is a way in which victims are respected.

Q: Have you thought about our current criminal legal system as it exists today and how it might evolve to include this meaning-making?

I argue in my current paper that one of the good reasons to have a system that gives judges discretion to mitigate sentences on the strength of victim forgiveness, rather than one that requires judges to follow guidelines, is that judges should be in a position where they can take into account the victim’s perspective to make meaning out of the past event. Instead, a vast majority of judges today do not use discretion and simply follow sentencing recommendations. This practice, common to the U.S. system, leaves something left undone.

I'm trying to draw attention to a moral need that victim forgiveness can partially address, but for which we need better mechanisms when victim forgiveness is not available. Initiatives like The Special Jurisdiction for Peace could be a way to provide this.

Q: Does meaning in punishment require victim forgiveness?

There must be other ways of making meaning—ones that do not place the onus on the victim. This is one of the things that we asked The Special Jurisdiction for Peace: Who decides to be part of this process and who doesn't? We spoke with a small group of victims who had participated in the process and had good things to say about it. But I am 100 % sure that there are a lot of victims who wanted nothing to do with it. They did not want to take on this extra burden of having to make meaning out of this past event. And there's a huge gender bias in this respect. I think women are more likely than men to participate in these kinds of practices and to forgive or make efforts in that direction. We need mechanisms for making meaning out of the misery of the offense that doesn’t put the onus on the victim. The idea that the only way to make meaning is with the help of the victim seems to me a terrible mistake.

Q: How could we reform our system, even just a little bit, to ensure punishment includes meaning? What could be the starting point?

First, sentences could be much lower while still achieving all the goals that we are trying to accomplish. What's odd about a lot of sentencing regimes is that we stop thinking. For example, what if we can get the intended results from a one-day sentence, instead of a year?

If part of punishing is producing a good thing so the misery of the victim is not for nothing, sentencing regimes don’t work.  That meaning is missing, and we need to orient towards it. Judges need more authority to think about this, instead of following rote sentencing guidelines.

Second, there is massive overcriminalization. Fewer adjudicated crimes would cut way down on the workload of judges allowing them to behave like people, as opposed to cogs in the machine.

To make punishment meaningful, we first need judges who are free to think creatively and independently.