Elizabeth Holmes (punishment, part 2)

In this episode, David delves further into the topic of punishment, looking at an instance of extreme punishment, responsibility versus punishment, what leads people to behave badly, how our sense of self-preservation often skews our better judgement, the instinctual basis of punishment, crime as a form of illness, and ways of raising children without punishment.

Contents:
- The Elizabeth Holmes (Theranos) case
- Consequential responsibility versus punitive retribution
- Why do humans make mistakes?
- How does self-preservation cause us to behave badly?
- The instinctual basis of punishment
- Crime as a form of illness
- Punishing children

My email address:
david.tonner2010@gmail.com

Links:

Pragmatic ethics:
https://en.wikipedia.org/wiki/Pragmatic_ethics

Elizabeth Holmes:
https://en.wikipedia.org/wiki/Elizabeth_Holmes

Charles Eisenstein article:
https://www.filmsforaction.org/articles/a-restorative-response-to-mh17/

Best book on punishment I've read:
David Boonin – The Problem of Punishment
https://www.amazon.ca/Problem-Punishment-David-Boonin/dp/052170961X

Transcript

Elizabeth Holmes (Punishment, part 2)

 Welcome to the Reasoned Intuitions podcast. My name is David Tonner, and I discuss personal ideas on moral issues in modern society and try to come up with improved ways of thinking and behaving, in the hopes of becoming a better person and causing the least amount of harm. As a disclaimer, I'd like to state that I am not an expert in either philosophy, psychology, or anything else, for that matter.

My opinions and positions are provisional and open to change with new information or an improved understanding of the issues I discuss. My intent is not to provide definitive rules or to tell anyone how they should live their life. I merely want to share my ideas and insights, in the hopes that they can be inspirational or in some way helpful.

I employ pragmatic ethics and try to reason from as broad and objective a perspective as possible. Some of my basic assumptions are that unchosen suffering is bad, and we should strive to minimize it. Joy is the most pleasurable sensation, and thus we should strive to maximize it. Empathy is universal, with some exceptions, and it should be the starting point of any good ethical system. 

If you would like to support my podcast, the best way to do that is by either giving it a rating or reviewing it, and you can do that on Spotify, Google Podcasts, or Apple Podcasts.

Introduction

Hello, and welcome to another episode of Reasoned Intuitions. I'm your host, David Tonner, and this is episode nine, the finale of season one. In the previous episode, I discussed punishment. I outlined the basics of that topic as I understand them, and I presented my views on the ethics of punishment as a practice, also introducing possible ways that we could replace that practice with better approaches, ones that do not inflict suffering.

In this episode, I'm going to talk about a few more aspects of punishment. I'll touch on a recent legal case that involved severe punishment; I'll talk about what leads people to make mistakes, mistakes that can cost them everything; I'll talk about the instinctive basis of punishment and justice; an interesting way we could think about criminal activity that would help us feel more compassion towards “evil people”; consequential responsibility versus punishment; and lastly, how to braise children with…sorry, I meant how to raise children without punishment. Yeah, this is not an episode about cannibalism; I might leave that for another time. 

Elizabeth Holmes

Let's start by talking about Elizabeth Holmes. Some of you may be familiar with the name. Others may have heard of the company she founded, Theranos. The story there is of a young woman who made some very bold promises, raised a lot of money from investors, but ultimately didn't deliver. In fact, as it turns out, not only did the company not deliver on its promise—the whole enterprise was a scam all along. Holmes claimed she had developed a blood testing kit that could produce results within minutes, from a mere finger prick. At the peak of its valuation, Theranos was worth US$9 billion. However, an investigation was launched, and the company's claims were found to be fraudulent. No such product had been developed, and Holmes had defrauded a number of investors of a lot of money.

A trial took place, and after a few months, Elizabeth Holmes was found guilty on four counts, each of which carried a sentence of twenty years in prison. Let's think about that for a minute: Holmes was 38 years old at the time the verdict was passed, which means that if she were to serve all four sentences consecutively, it is a certainty that she would die in prison, and therefore, she would have received a life sentence.

Now, as we all know, not only is it possible for a convicted person to appeal their sentence, they can often receive reductions or leniency or simply be released early for good behaviour. To be fair, according to the judgment that Holmes received, she will serve all four sentences concurrently, which means that she only faces a maximum of twenty years in prison. Only twenty years, so when she completes her stint in jail, she will be about sixty years old. There are a number of mitigating factors in this case that almost guarantee that Holmes will not serve her entire sentence. These include the fact that she's female and still quite young, the fact that she is rich and in a sense, a celebrity. This not only gives her access to highly skilled lawyers, but it also has the potential of swaying any future verdict in her favour, for various reasons. At this stage, it isn't clear to me how much time Holmes will actually spend inside a jail cell, if any at all. This, however, is only a side point to what I wish to discuss.

What I'm more interested in, with reference to punishment, is the severity of the initial judgment: eighty years in prison. In other words, life. Now, there are certainly circumstances and crimes that would superficially seem appropriate to punish so harshly, the most obvious being murder or a severe instance of directly inflicted suffering upon another. In the case of Elizabeth Holmes, however, not only did she not cause anyone to lose their life, but it's hard to see how she directly caused anybody to suffer. Obviously, what she did is deceitful and unethical, and I in no way wish to condone such behaviour. A possible counterargument to this would be that while everything she promised was a lie, at no point did Holmes coerce or force anyone to give her money, so every person who did, did so by their own choice. Personally, I think this is a weak argument, but the point it illustrates is important here and forms the core of my position: condemning someone to spend the rest of their life in captivity—in a cage, essentially—for stealing money and lying, is grossly disproportionate.

I'm sure many of you will disagree with me on this, in which case I encourage you to share your thoughts on the topic. As it stands, my view is that this is a clear case of disproportionate punishment and as such, it is unjust. As long as we are advocating for consequential responsibility for a person's actions—putting aside punishment for its own sake, something I discussed in the previous episode—then the degree of responsibility or atonement that Holmes should be made to carry or perform must be proportional to her offense.

I don't claim to be able to establish what that might look like, but I have a strong feeling that depriving a young woman of the ability to live out the rest of her life in a semi-normal manner, not confined to four walls she can never escape from, is far more brutal than anything she has done up to this point in her short life.

This, to me, is a stark example of the brutality that we call legal punishment: it causes unnecessary and often disproportionate suffering. It doesn't benefit anyone, least of all Elizabeth Holmes, and it places a dark stain upon a society that would call itself civil and fair.

Consequential responsibility

Let's switch topics now and take a look at what I mean by consequential responsibility. I briefly touched on this subject in the previous episode, but only as far as introducing a distinction between practical responsibility for one's actions, and punishment for the sake of inflicting proportional suffering as a means of teaching a lesson, re-establishing justice, or other reasons which, as I'll talk about later, have a strong basis in human instinct.

It's possible for somebody to have come away from listening to my Punishment episode with the idea that I don't think anybody is responsible for their actions and therefore, we should just let them get away with it. I want to reassure my listeners that I meant no such thing.

While on a philosophical level, I don't believe in moral agency, meaning that people are not in fact volitionally responsible for how they behave, be that good or bad, this is not suggesting that people shouldn't be held accountable for their actions. By the same token, I'm also not saying that we shouldn't offer praise for selflessness, generosity, and kindness in general. Just as every person's actions directly and indirectly affect people around them, the way we respond to those actions also has important practical outcomes.

When someone performs a harmful deed that has direct and indirect victims, there are three broad categories of reasons why this should not be ignored: the way the deed affects victims, the position in which it leaves the perpetrator, and the way the incident is perceived and understood by the greater community.

I'll reiterate here that I'm opposed to punishment as simply an infliction of suffering without positive consequential outcomes. But for numerous practical reasons, I do believe it is important to address bad behaviour in a constructive way and to do what we can in order to prevent its recurrence, rectify the harms caused, and create sufficient deterrents—as well as making sure that communities continue to feel safe and content, despite the often brutal acts that take place in their midst.

Mistakes

 I'm going to make another potentially controversial statement here, one which I may elaborate upon in the future: I think everybody is always doing what they consider to be the best thing to do, out of the options available to them. This doesn't mean that they're always doing the morally right thing, and it certainly doesn't mean they are doing the best possible thing, objectively. They are simply making a choice that they currently consider to be the most desirable, often strictly for their own interests.

This also means that many things we do every single day are wrong or bad, on a number of levels. In other words, we all make numerous mistakes all the time. Some mistakes are minor—so minor, in fact, that nobody notices, us included. Other mistakes are severe and have long-lasting and painful consequences.

 It is the latter type of mistake that I want to discuss at this moment. What causes someone to make a bad mistake? In just about any instance, it seems to come down to poor judgment or simply a lapse of otherwise good judgment. Even the most thoughtful and moral people—like me, of course—sometimes do not act thoughtfully or morally. I'm most guilty of moral lapses when I'm driving: I'm impatient, intolerant, and often get mad at other drivers for such egregious errors like failing to use a turn signal, not letting me in when I wish to change lanes, or worst of all—and by the way, I do think this should be severely punished, possibly with eighty years in jail—DRIVING BELOW THE SPEED LIMIT! What happens to me, a person who is normally intentional, thoughtful, and compassionate, in this type of situation, is that the rational part of my brain is overpowered by an emotion, in this case, anger, resentment, and the sense of being disrespected. That's all it takes, and in a split second, I can become a complete asshole and do something so stupid that it can lead to a car crash, if not worse. But in that split second, where my best self is briefly absent, a tiny gesture on my part, a sudden ill-advised movement of the steering wheel, can not only lead to disaster for the person I hit, but it can also cause me to lose my freedom. Did I mean to do it? Of course not! And yet, it happened.

The rational part of the human mind is a wonderful thing and, in my opinion, it's not only what makes humans unique, even next to our closest primate cousins, but it's what makes us the most amazing thing that has ever existed on this Earth. The rational human brain can create so much beauty and wonder; our ingenuity and innovativeness can turn otherwise bleak existences into blissful ones; it can alleviate suffering, even for wild animals; and I do believe that in some sense, it is limitless. However, another part of the human mind, one much more firmly rooted in base animalistic impulses, a way more powerful force active within a human person, is our emotional states.

I know this from experience—and by the way, I'm not making the claim that I am the most rational and compassionate person, far from it, but these are certainly aspects of my personality that I have done much work to nurture. So, from experience, I know that when a strong negative emotion comes over me, suddenly, it's the only thing that exists. It takes over completely and for a brief moment, I am entirely under its spell. The point I'm trying to make here, in a long-winded way, is that many of the worst crimes, including murder, rape, assault, theft, etc., are done under the pall of emotional overload, where the rational part of a person's brain is essentially switched off. More importantly, sometimes a simple mistake, a brief lapse of better judgment, can lead to such severe consequences, that according to our existing justice system must be punished in such a way that it forever alters the life of the perpetrator. Even worse, however, is when this momentary lapse of judgment doesn't lead to significantly negative consequences, but by virtue of the deed itself and the laws it contravenes, it must still be punished, in which case, the consequences far outweigh the act itself—and this purely on the basis of a rule having been broken. Is this not another way in which our current legal system causes unnecessary suffering to individuals who, through no fault of their own but rather a momentary emotional overload, have made a simple mistake, one that nominally fractures, the structure of our society?

Self-preservation

Another thing I'll add to this, a factor that contributes to many crimes and lapses of judgment, is our innate sense of self-preservation. This is a powerful force. In fact, self-preservation is possibly the most basic instinct for all living organs. Self-control, on the other hand, with all the attendant restraints that it places on our base impulses, is rather puny in comparison. In a situation where an individual feels that their safety—but even other things, such as dignity and self-worth, which, on a conceptual level, are real aspects of a person's selfhood and therefore arguably equivalent to physical safety—in situations where these are at risk, the sense of self-preservation kicks in and quite easily overpowers any self-control an individual may have. This is not a case where a third-party observer could say, “he should have tried harder” or “she should have known better”. Self-control is like a muscle and like a muscle, it can be exercised and developed. Self-preservation, and similarly, base impulses and emotions, are often like a sledgehammer: no matter how powerful the muscle, it cannot resist a force that is so much stronger. My argument is that there are realistic situations where a person, no matter how rational, compassionate, or skilled at controlling their behaviour under normal circumstances, will collapse under the weight of these forces that operate from a much deeper place in the human psyche and therefore have a far greater degree of control over how we ultimately behave.

This means that every single person will, at times, experience a lapse of judgment, make a mistake, possibly hurt someone without intending to do so, and ultimately have to bear the brunt of a legal system that prescribes punishment as a remedy.

The instinctual basis of punishment

 On a side note, just as the commission of a crime is an instinct- or emotion-driven act, the enactment of punishment is a large-scale institutionalized performance of instinct- or emotion-driven behaviour. Not only do we impulsively retaliate and punish transgressors, we are also appeased when a transgressor has been punished or squelched.

The commission of an act of violence or crime is most often non-rational and involves the suspension of a clear form of thinking that humans are capable of. Equally, the administration of punishment, especially publicized punishment, is an instance of suspended rational reasoning on the part of the enforcement body. The public, whose ability to think clearly in the moment is also suspended, is thus appeased.

Crime as a form of illness

I once read somewhere, possibly in an article by Charles Eisenstein, the suggestion of a novel way of thinking of and dealing with criminal behaviour, as if it was a disease or a medical condition. When someone is ill, comes down with cancer, or catches a virus, oftentimes it causes them to behave in ways that are strange. Sometimes, it can alter their personality so as to make them unrecognizable to people close to them. Some people will become lethargic, others, violent. Dementia, for example, leads to mental retardation, so someone who was highly intelligent throughout their life is left without the capacity for clear reflection.

Even when these individuals behave in ways that we consider unacceptable, we don't feel angry or turn to punishment as a solution. Understanding that what is taking place is outside their control, we treat them with care, compassion, and forgiveness. We make sure that they are attended to, and we do our best to help them recover. In a way, evil behaviour, or the commission of a crime, since it is ultimately outside of a person's control, is just like a disease. It is a behaviour that can be repaired with the appropriate type of care, but even if it can't, just like a patient suffering from Alzheimer's who behaves in inappropriate ways, a criminal under the influence of forces that he or she may not be able to control behaves inappropriately and deserves understanding and compassion—and possibly restraint.

Punishing children

The last point I want to briefly touch on in this episode is punishment of children as a form of discipline. While in the Western world, we have mostly gotten away from physical punishment, certainly in terms of what is legally and culturally permissible, the notion of punishment persists to this day, it simply takes other forms. This may include timeouts, the removal of privileges or toys, etc. I believe this to be a mistake. As I've gone on about ad nauseum, I'm convinced punishment on a conceptual level is unethical, and this applies to any situation, including legal punishment or the parental variety.

I'll restate the disclaimer that I am not a parent, nor have I done any significant amount of parenting or instruction, apart from helping care for my baby sister and later teaching preschoolers for a few years. Despite my lack of direct experience and with full acknowledgement that parenting is no easy task—in fact, it may be the most difficult thing for humans to truly do well—I am of the opinion that there are ways to raise children and to appropriately structure their upbringing without invoking the practice of punishment. Again, as with legal consequences, practical consequences are important to implement and to model to children and I think that using this approach, the concept of punishment can be completely eliminated from the way we parent. 

Thank you

As we come to the end of the episode, I'd like to say a big thank you to all my listeners and supporters for the interest you've shown in my podcast and the content I've shared with you. This has been the culmination of a dream I’ve had for a long time, to share my intuitions, insights, and reflections with an audience, and I finally went ahead and did so, in the form of a podcast. Nine episodes later, I've barely scratched the surface of the various ideas I'm eager to share and discuss.

I'll be taking a planned break of a few months, as I go on a long hike from Edmonton up to the Canadian Arctic. Rest assured that once I return, in the fall of 2022, I will be back with season two of Reasoned Intuitions. In the meantime, I wish you all a happy summer and as always, I look forward to your feedback.