If we are unlikely to possess the kind of free will that legitimates desert-based punishment, the rationally defensible route is to adopt a cautionary perspective that draws on non-desert-based criminal justice procedures that are fair and just to all parties. This chapter analyzes the options: (1) we can acknowledge that we have no justification for desert-based moral responsibility but disregard this at both trial and sentencing phases; (2) we can acknowledge this and disregard it at trial but not sentencing phase; (3) we can acknowledge this and take it into account during both the trial and sentencing phase. The author therefore presents some potential models to effectively address criminal behavior and critically assesses the most striking difficulties each of these models faces. The chapter concludes that innovative criminal justice systems must continue to identify causal responsibility, promote taking responsibility for future behavior, and thoroughly respond to victims’ rights and needs. The attribution of moral guilt and the implementation of desert-based punishment face numerous objections. Debate is needed on the desirability of a criminal justice model focusing on causal responsibility and taking responsibility; a model that aims at victim recovery, restitution, and restoration by implementing forward-looking justice mechanisms.

This chapter considers the practical implications of free will skepticism and discusses recent empirical work that has just begun to investigate the matter. It argues that there are good philosophical and empirical reasons for thinking that belief in free will, rather than providing the pragmatic benefits many claim, actually has a dark side; i.e., it is too often used to justify punitive excess in criminal justice, to encourage treating people in severe and demeaning ways, and to excuse and perpetuate social and economic inequalities. After addressing recent empirical findings in social psychology that purport to show that diminishing one’s belief in free will increases antisocial behavior – findings that are overblown and questionable – the chapter discusses contrary findings in moral and political psychology that reveal interesting and troubling correlations between people’s free will beliefs and their other moral, religious, and political beliefs. It concludes that we would be better off without the notions of free will and just deserts.

“Free will skepticism” refers to a family of views that all take seriously the possibility that human beings lack the control in action – i.e. the free will – required for an agent to be truly deserving of blame and praise, punishment and reward. Critics fear that adopting this view would have harmful consequences for our interpersonal relationships, society, morality, meaning, and laws. Optimistic free will skeptics, on the other hand, respond by arguing that life without free will and so-called basic desert moral responsibility would not be harmful in these ways, and might even be beneficial. In this chapter, we attempt to provide a brief sketch of the traditional free will debate, define the various positions, and frame the debate over the practical implications of free will skepticism. We focus especially on the implications of free will skepticism for the criminal law and the retributive justification of punishment.

The two instruments the state uses to maintain order are the corrective and the preventive. Those who reject the notion of moral responsibility either prefer to abandon punishment in favor of preventive techniques or seek to justify (nonretributive) punishment. Although I think punishment is essentially retributive and cannot be justified, I also think we must, if possible, avoid yielding to the preventive worldview. We must distinguish the lengths to which we are willing to go with incompetent or irrational individuals who are dangerous from the lengths to which we are willing to go with rational and competent offenders. My view is that borrowing from punishment its harsh methods we maintain the dignity of competent offenders when we subject them to these methods with the aim of leading them to abandon the defective motivational traits that resulted in the crime. I call this approach correction rather than punishment, because it lacks the retributive element that makes punishment punishment. Here I suggest how this view might be defended if we start, as Fichte does, from the assumption that those who violate any law deserve to be made outlaws; in current terminology, to be subjected to preventive detention and preventive techniques generally.

Recent free will denialism (FWD) tends to be optimistic, claiming that not only will the rejection of the belief in free will and moral responsibility not make matters dreadful but that we are indeed better off without them. I address the denialist claim that FWD has the philosophical resources to effectively safeguard human rights and respect for persons in the context of punishment, even without belief in free will, moral responsibility, and desert. I raise seven reasons for doubt concerning the ability of FWD to maintain deontological constraints. Together they present a strong case for doubting the optimism of FWD.

The free will skeptic aims to articulate a theory for treatment of criminals that rejects retributivism, since this justification for punishment is inconsistent with the skeptic’s outlook, but nevertheless actually works in the real world. In past versions of such an account I’ve emphasized the quarantine analogy for incapacitation together with the value of rehabilitation and reintegration (Pereboom 2001, 2014), and I’ve endorsed Gregg Caruso’s embedding of the view within a public health model (Caruso 2016, 2017; Pereboom and Caruso 2018). Recently I’ve paid special attention to the permissibility and the limits of special and general deterrence (Pereboom 2017b, 2019). Here I set out this view and develop it in certain key respects in response to the latest objections raised against it.

The free will skeptic aims to articulate a theory for treatment of criminals that rejects retributivism, since this justification for punishment is inconsistent with the skeptic’s outlook, but nevertheless actually works in the real world. In past versions of such an account I’ve emphasized the quarantine analogy for incapacitation together with the value of rehabilitation and reintegration (Pereboom 2001, 2014), and I’ve endorsed Gregg Caruso’s embedding of the view within a public health model (Caruso 2016, 2017; Pereboom and Caruso 2018). Recently I’ve paid special attention to the permissibility and the limits of special and general deterrence (Pereboom 2017b, 2019). Here I set out this view and develop it in certain key respects in response to the latest objections raised against it.