I certainly do agree that “Those lacking the ability to engage in moral reasoning need help, not punishment.” However, I maintain that the drunk driving case is complicated because of the intoxicating nature of alcohol. Although the drunk driver does have the capacity for moral reasoning most of the time, it seems obviously problematic (to me) that, at the point in time when the drunk driver makes the final decision to drive, he is mental incapacitated to some extent(sometimes profoundly, as in the case I cited).

I will be keeping an eye out for you to post a defense of retributivism, as I’m far from a retributivist myself.

Consequentialist theories of punishment state that punishment is only justified when it will lead to better overall consequences than non-punishment. This is surely not the case in most situations in which we are considering whether to punish someone who is mentally handicapped or too young to understand the consequences of his actions. Consequentialism is certainly not the view that we should determine punishment by looking at the act alone, without considering the mental capacities of the actor or other relevant factors. In fact, far from requiring us to abstract from a variety of facts (as the view you took for consequentialism would), consequentialism requires that we consider every possible relevant fact insofar as such facts will affect the consequences of punishment/non-punishment.

Pamela, firstly, no true philosopher ever agrees to disagree!

Secondly, regarding where the law ought to set the bar for mens rea, I think we should distinguish between moral reasoning and all other kinds. Those lacking the ability to engage in moral reasoning need help, not punishment. If you don’t understand morality, then, by definition you can’t have mens rea (meaning “guilty mind”). Under this test, the drunk driver clearly has mens rea.

As to punishment, I’m a retributivist - but that’s a discussion for another post.

As for your second point, I agree with Brian’s response and have nothing further to add.

Why do you say that consequentialism would require that we punish children and the mentally ill? Of course we can imagine hypothetical cases in which it would require doing so, but in the actual world it’s hard to imagine what benefits there could be to doing so. Would punishing such people add to the deterrence effects of punishment? I have serious doubts about this. And surely it would be very bad for the children and their families. Of course if a child or mentally ill person poses a danger to others, consequentialism would tell us to do what is necessary to prevent them from causing harm (e.g. place them in a psychiatric facility or the like); but we already do that, and far from being counter-intuitive that we ought to, it’s widely accepted. So I don’t think that consequentialist accounts of the justification of punishment have the implausible conclusions that you suggest. At the very the least your claim requires much more defense than you provided in your comment.

Your final paragraph contains some pretty serious speculation and a hole in the argument between the first sentence and the second. I think that the ability to reason (including “cost-benefit analysis and risk assessment”) should be required for mens rea. The law agrees with me: that is why children and retarded adults are treated differently when it comes to crime and punishment.

Of course the ability to reason is (and should be) required for mens rea but I think you set the bar too high. The law recognizes some forms of impairment but not others. For instance, the insanity defense requires that the defendant didn’t know right from wrong (whatever that means) when he committed the crime. Many mentally ill adults do not qualify under this standard; yet, their ability to reason is certainly impaired.

Our argument, it seems, is over where to draw the line. I don’t think being drunk is the kind of impairment that deserves exception.

We need only appeal to some other justification for the punishment (the most obvious choice is consequentialism).

Consequentialism in this case requires that we punish children and the mentally ill along with the drunk driver. Are you prepared to swallow that pill?

here, by David Fryman. I must be really wrong, this caused more of a stir than I anticipated
…

Thanks for writing on my piece - I love a good opportunity to response to criticism. I will address each of the last two paragraphs.

I do not believe that there is anything faulty about the assumption that the inebriated cannot make reasoned decisions or, at the very least, fully-reasoned decisions. I won’t pretend to understand the details but, physiologically, the reasoning portions of a drunken brain are impaired. Obviously, the degree of this impairment fall somewhere along a continuum and it’s not a black-or-white issue. I set the degree issue aside for the purposes of the article because the drunken driver in the case I referenced had consumed approximately 15 drinks and therefore fell clearly towards the “more drunk” end of the spectrum.

Your final paragraph contains some pretty serious speculation and a hole in the argument between the first sentence and the second. I think that the ability to reason (including “cost-benefit analysis and risk assessment”) should be required for mens rea. The law agrees with me: that is why children and retarded adults are treated differently when it comes to crime and punishment. These individuals cannot reason because of physiological characteristics. A drunken individual, at the very moment when she decides to drive, is also physiological incapable of fully reasoning(to some extent or other, just like the child or retarded adult). It is true that drunk drivers sometimes have reasoning skills that monkeys lack, but at the time of the decision to drive they may not. I think this is clearly relevant to the concerns of mens rea and appropriate punishment.

Finally, I would like to state again that this mens rea problem need not preclude us from punishing drunk drivers. We need only appeal to some other justification for the punishment (the most obvious choice is consequentialism).

Pam