The Grey Area

Started by Fae Brin, November 28, 2010, 07:08:53 PM

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Fae Brin

November 28, 2010, 07:08:53 PM
I'm not sure if this is the correct forum, but I thought it was the most appropriate.

This is just a question that occurred to me a second ago.


A man murders someone, first degree murdered someone, and then loses his memory entirely (fill in the details).

Is it ethical to punish him?
The idea hovered and shivered delicately, like a soap bubble, and she dared not even look at it directly in case it burst. 
But she was familiar with the way of ideas, and she let it shimmer, looking away, thinking about something else.
and a subtle fear [capture d] my  h  e  a  r  t.
already [wet] and we're gonna go s w i m ming

Oniya

#1
November 28, 2010, 07:14:34 PM
If he completely lost his memory, he would be unable to provide assistance to his defense lawyer.  As a result, he would be deemed incompetent to stand trial.  He would probably be put into some sort of mental facility until his memories returned, or until it could be determined that he was not a danger to himself or others.
"Language was invented for one reason, boys - to woo women.~*~*~Don't think it's all been done before
And in that endeavor, laziness will not do." ~*~*~*~*~*~*~*~*~*~*~Don't think we're never gonna win this war
Robin Williams-Dead Poets Society ~*~*~*~*~*~*~*~*~*~*~*~*~*~Don't think your world's gonna fall apart
I do have a cause, though.  It's obscenity.  I'm for it.  - Tom Lehrer~*~All you need is your beautiful heart
O/O's Updated 5/11/21 - A/A's - Current Status! - Writing a novel - all draws for Fool of Fire up!
Requests updated March 17

cirdanf

#2
November 28, 2010, 07:17:52 PM
If the question is from a PURELY ETHICAL point, I don't know laws, but I know my point of view.


If he killed my mother, or my sister, or anyone I know, I'd like him to be punished even without memory.


If he killed someone I didn't know... I'd doubt it. I wouldn't know what to do, but probably a lighter punishment, or just locking  him up in an asylum for the crazy.
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Check for nice insight :)

Fae Brin

#3
November 28, 2010, 07:18:32 PM
Say his memory never returned.

And say that he was already convicted of the murder, but then he slipped on some black ice on his way to the jail and hit his head really badly, resulting in the full memory loss.
The idea hovered and shivered delicately, like a soap bubble, and she dared not even look at it directly in case it burst. 
But she was familiar with the way of ideas, and she let it shimmer, looking away, thinking about something else.
and a subtle fear [capture d] my  h  e  a  r  t.
already [wet] and we're gonna go s w i m ming

Trieste

#4
November 28, 2010, 07:20:49 PM
... then he would be unable to assist his attorney in appeals and whatnot, and would probably again end up in an asylum. We have laws for this.

It is unethical to withhold from someone the consequences of their actions, though it is not always immoral.

Fae Brin

#5
November 28, 2010, 07:24:09 PM
But he's not insane. Just memory-wiped.

I don't quite understand that sentence. "It is unethical... always immoral."
The idea hovered and shivered delicately, like a soap bubble, and she dared not even look at it directly in case it burst. 
But she was familiar with the way of ideas, and she let it shimmer, looking away, thinking about something else.
and a subtle fear [capture d] my  h  e  a  r  t.
already [wet] and we're gonna go s w i m ming

Trieste

#6
November 28, 2010, 07:26:52 PM
Memory-wiped people don't belong in jail, and if I were in charge of his safety, I would send him to a high-security asylum rather than a prison. I am not a judge, though, and that's a somewhat subjective call.

I'm not sure what you need explained.

Fae Brin

#7
November 28, 2010, 07:28:38 PM
The second half of the sentence. That it's not always immoral.
The idea hovered and shivered delicately, like a soap bubble, and she dared not even look at it directly in case it burst. 
But she was familiar with the way of ideas, and she let it shimmer, looking away, thinking about something else.
and a subtle fear [capture d] my  h  e  a  r  t.
already [wet] and we're gonna go s w i m ming

cirdanf

#8
November 28, 2010, 07:34:17 PM
I guess she means that ethics could be more shallow than morality, which goes to our very core of how we see things.


Boy this is an interesting topic.

I am not sure, how could we prove he has no memory, recollection of it?

If he actually has no memory of how, why , when or who, he doesn't belong in jail, though he does belong in somewhere where they keep everyone safe from him. Or her. The fact is: The person is a danger to that one's surroundings.
www.f-list.net/c/cirdan

Check for nice insight :)

Trieste

#9
November 28, 2010, 07:35:08 PM
The ethical tenet is that it isn't right (and isn't my place) to withhold the consequences of someone's actions from them.

What if my child slaps a dog or pulls on its tail? What if my brother gets caught stealing money, but the punishment is exceptional and I can mitigate it?

Consequences are how we learn from our actions, and it does people a disservice to try to shield them from those. However, given certain individualized circumstances, something might be unethical to do, but moral to do. Of course I'm going to try to help my brother, and it would be wrong not to do so. Of course I'm going to try to save my child from a bite, and it would be wrong not to do so.

Ethics tend to be absolute, whereas morals tend to be situational, at least in the manner I was using the terms.

cirdanf

#10
November 28, 2010, 07:36:25 PM
Quote from: Trieste on November 28, 2010, 07:35:08 PM
Of course I'm going to try to help my brother, and it would be wrong not to do so. Of course I'm going to try to save my child from a bite, and it would be wrong not to do so.

Ethics tend to be absolute, whereas morals tend to be situational, at least in the manner I was using the terms.


This!
www.f-list.net/c/cirdan

Check for nice insight :)

Fae Brin

#11
November 28, 2010, 07:38:24 PM
Ohkay, thank you. That clears that up.


But-- if he doesn't even know or recall doing it, do those rules still apply?

Well, for argument's sake, we'll assume he legitly did.
The idea hovered and shivered delicately, like a soap bubble, and she dared not even look at it directly in case it burst. 
But she was familiar with the way of ideas, and she let it shimmer, looking away, thinking about something else.
and a subtle fear [capture d] my  h  e  a  r  t.
already [wet] and we're gonna go s w i m ming

Sure

#12
November 28, 2010, 07:42:23 PM
Depends on what you mean by 'ethical'. Depending on the ethical system you might get different answers.

Fae Brin

#13
November 28, 2010, 07:45:16 PM
"moral principles that govern a person's or group's behaviour"

I guess. I don't define it in my head, I just have an idea of what sounds right and wrong to me.
The idea hovered and shivered delicately, like a soap bubble, and she dared not even look at it directly in case it burst. 
But she was familiar with the way of ideas, and she let it shimmer, looking away, thinking about something else.
and a subtle fear [capture d] my  h  e  a  r  t.
already [wet] and we're gonna go s w i m ming

Sure

#14
November 28, 2010, 07:56:10 PM
I'm sorry, I was obviously unclear. There are multiple systems of ethics, just as there are multiple systems of logic. The three big divisions are aretaic (morality is contained in the person), deontological (morality is contained in the action), and consequentialist (morality is contained in the result) systems.

For example (again simplified), someone who believes in Kantianism (a deontological system) would attempt to solve the problem by establishing or citing to a categorical imperative. In contrast, a utilitarian would solve the problem by seeking the action which produces the greatest good for the greatest number of people.

In order to answer the question whether something is ethical, the system we are operating in needs to be established. Is it ethical from a Kantian point of view? Is it ethical from an egoist perspective? And so on.

Fae Brin

#15
November 28, 2010, 07:59:22 PM
Right. Haven't thought about those since philo-- which was in french. ><

I guess that completely complicates my question.
The idea hovered and shivered delicately, like a soap bubble, and she dared not even look at it directly in case it burst. 
But she was familiar with the way of ideas, and she let it shimmer, looking away, thinking about something else.
and a subtle fear [capture d] my  h  e  a  r  t.
already [wet] and we're gonna go s w i m ming

Asuras

#16
November 28, 2010, 08:03:42 PM
I'm having harrowing recollections of trying to parse Groundwork of the Metaphysics of Morals in the three courses I was asked to read it...

The example I have in mind is someone that commits a crime when they're drunk. So drunk they can't remember it when they sober up. The law doesn't excuse that and they're not going to an asylum for it.

Regardless of the mechanism by which the person lost their memory, the crime remains. From my point of view punishment is justified as deterrence and in this case to not punish the person simply because their memory was wiped does not make sense.

From a retributive standpoint...if the only thing that's lost is their memory than the same person that committed the crime is there after the fact. In personality, demeanor, that person remains the person that committed the crime and therefore should be treated as the person that committed the crime.

So the point is, I don't see any reason that memory loss has any effect on the legal process. I'd like to have it clarified for me how this could be so.

Fae Brin

#17
November 28, 2010, 08:13:42 PM
But-- it's like locking a doll up.
The idea hovered and shivered delicately, like a soap bubble, and she dared not even look at it directly in case it burst. 
But she was familiar with the way of ideas, and she let it shimmer, looking away, thinking about something else.
and a subtle fear [capture d] my  h  e  a  r  t.
already [wet] and we're gonna go s w i m ming

Asuras

#18
November 28, 2010, 08:23:46 PM
Quote from: Fae Brin on November 28, 2010, 08:13:42 PM
But-- it's like locking a doll up.

Why? If I commit a crime and just forget about it...I don't think that absolves me, I don't see why.

I mean, I get that when they're incarcerated they wouldn't remember the reason that they're incarcerated. That is tragic. But that doesn't invalidate the reason for the punishment - there was a crime committed, they were responsible, they were the person that committed it, they are still the person that is capable of committing that crime - consequently they're a danger to society and the example needs to be set that when crimes occur people are punished (whether they remember the crime or not)

DarklingAlice

#19
November 28, 2010, 08:29:11 PM
I think this delves into something a bit deeper. Well...two things a bit deeper:

1) What is the purpose of punishment? Vengeance or Reformation?

2) Where resides the nature of a man or woman? Are we nothing more than the sum of our memories, and when our memory is gone do we become a different person? Or are we the same person regardless.

I think that the answer to your question will necessarily be predicated on the answers to these two primary considerations, and that there will be a great deal of variation in opinion on them.
For every complex problem there is a solution that is simple, elegant, and wrong.

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Fae Brin

#20
November 28, 2010, 08:31:12 PM
DarklingAlice, you have absolutely summed up my problem. Or rather-- the root of my problem.
The idea hovered and shivered delicately, like a soap bubble, and she dared not even look at it directly in case it burst. 
But she was familiar with the way of ideas, and she let it shimmer, looking away, thinking about something else.
and a subtle fear [capture d] my  h  e  a  r  t.
already [wet] and we're gonna go s w i m ming

Asuras

#21
November 28, 2010, 08:38:19 PM
Quote from: DarklingAlice on November 28, 2010, 08:29:11 PM
1) What is the purpose of punishment? Vengeance or Reformation?

It can be both. Personally I don't see value in vengeance; the main focus in criminal justice ought to be deterrence. We ought to have punishments that deter people from committing crimes.

We also should rehabilitate people if possible - and after all we do that, if someone is a kleptomaniac and gets convicted we put them in treatment. Plus punishing them, with adjustments for the fact that they are ill.

So I don't see it as a choice between the two. The question here (if I understand it) is that someone committed premeditated murder, then somehow forgot that they did it. If there is a mitigating circumstance (they were for some reason psychotic) then the punishment may be reduced and rehabilitation may be applied.

Quote from: DarklingAlice on November 28, 2010, 08:29:11 PM
2) Where resides the nature of a man or woman? Are we nothing more than the sum of our memories, and when our memory is gone do we become a different person? Or are we the same person regardless.

I'm think that if the sole memory that gets removed is the incident of the crime then the person is almost exactly the same person that committed the crime. He will have the same criminal demeanor that he had the moment before he committed murder and so continues to constitute a threat to society.

Fae Brin

#22
November 28, 2010, 08:40:21 PM
The factors in my question were that his memory was entirely wiped. Nothing left. He had a very bad fall.

So how can you rehabilitate someone who does not have any indication of being ill?
The idea hovered and shivered delicately, like a soap bubble, and she dared not even look at it directly in case it burst. 
But she was familiar with the way of ideas, and she let it shimmer, looking away, thinking about something else.
and a subtle fear [capture d] my  h  e  a  r  t.
already [wet] and we're gonna go s w i m ming

Asuras

#23
November 28, 2010, 08:50:04 PM
Quote from: Fae Brin on November 28, 2010, 08:40:21 PM
The factors in my question were that his memory was entirely wiped. Nothing left. He had a very bad fall.

So how can you rehabilitate someone who does not have any indication of being ill?

If his memory was entirely wiped then yeah, it's questionable whether or not this person remains murderous. That would be a question for a neurologist or a psychiatrist, whether or not a person's demeanor and personality are retained after massive memory loss.

My guess is that those things are retained for the same reason that when I go to by a Snickers bar I don't go through all of my recollections of what Snickers bars taste like; I simply know I like them, and so I buy one. This is not based on memory but simply demeanor.

Notwithstanding that question, I still think punishment is justified since if we didn't punish this person then we're basically saying "If you commit a crime but can't remember it, you're off scot free." I do not think that that is sound law; I could kill someone, take a pill to wipe my memory, and according to this logic I'd be unpunished. So anytime someone wanted badly enough to kill someone they'd do that.

Fae Brin

#24
November 28, 2010, 08:51:41 PM
But would you go that far?
The idea hovered and shivered delicately, like a soap bubble, and she dared not even look at it directly in case it burst. 
But she was familiar with the way of ideas, and she let it shimmer, looking away, thinking about something else.
and a subtle fear [capture d] my  h  e  a  r  t.
already [wet] and we're gonna go s w i m ming

Asuras

#25
November 28, 2010, 08:55:37 PM
Quote from: Fae Brin on November 28, 2010, 08:51:41 PM
But would you go that far?

Given that you want to kill someone, you're going pretty far. Given the punishment for murder (decades in prison), I'd say that losing all of my memories is a fair deal for an acquittal.

Fae Brin

#26
November 28, 2010, 08:59:06 PM
I suppose.

And this will sound weird, but-- taking that extra step-- purposely wiping your memory-- that takes the crime a step further.

But-- I still compare jail to a time out to a child. They are put in time out to think of what they've done. The purpose is to show them they've done something wrong and they should not do it again.

On a vaguely related note-- it takes a lot of money to keep someone in jail. If the purpose of jail is not being fulfilled-- what is the point?
The idea hovered and shivered delicately, like a soap bubble, and she dared not even look at it directly in case it burst. 
But she was familiar with the way of ideas, and she let it shimmer, looking away, thinking about something else.
and a subtle fear [capture d] my  h  e  a  r  t.
already [wet] and we're gonna go s w i m ming

Asuras

#27
November 28, 2010, 09:07:33 PM
Quote from: Fae Brin on November 28, 2010, 08:59:06 PM
I suppose.

And this will sound weird, but-- taking that extra step-- purposely wiping your memory-- that takes the crime a step further.

It does take it a step further, but from the argument here - which is that a mind that is tabula rasa is inherently innocent - it's the same.

And frankly I should find it rather peculiar that intentionally blanking my memory rather than having it happening accidentally should affect my guilt.

Quote from: Fae Brin on November 28, 2010, 08:59:06 PM
But-- I still compare jail to a time out to a child. They are put in time out to think of what they've done. The purpose is to show them they've done something wrong and they should not do it again.

On a vaguely related note-- it takes a lot of money to keep someone in jail. If the purpose of jail is not being fulfilled-- what is the point?

I also question how deterrent imprisonment is, but...the question in this thread is not about the method of punishment but whether or not the criminal merits punishment of whatever sort.

Oniya

#28
November 28, 2010, 09:09:13 PM
Jail has two purposes.  One is the one you mentioned, but the other is to protect society from those who commit a crime and have no compunction against committing the crime again.  Ted Bundy, for example.  If someone goes to the lengths that Asuras suggested (which would require a premeditation of wiping the memory so as to avoid punishment), then they have zero remorse, and need to be locked up.

I still think that the place for an accidental amnesiac is going to be some form of asylum.  Presumably, there would have been more evidence for conviction than the person's own memories (which couldn't be used in court anyways, under the grounds of self-incrimination).  I would probably allow for the possibility of parole, if I were the sentencing judge.
"Language was invented for one reason, boys - to woo women.~*~*~Don't think it's all been done before
And in that endeavor, laziness will not do." ~*~*~*~*~*~*~*~*~*~*~Don't think we're never gonna win this war
Robin Williams-Dead Poets Society ~*~*~*~*~*~*~*~*~*~*~*~*~*~Don't think your world's gonna fall apart
I do have a cause, though.  It's obscenity.  I'm for it.  - Tom Lehrer~*~All you need is your beautiful heart
O/O's Updated 5/11/21 - A/A's - Current Status! - Writing a novel - all draws for Fool of Fire up!
Requests updated March 17

Fae Brin

#29
November 28, 2010, 09:12:26 PM
Because it makes you even more evil.


Well-- I would argue that it's very deterential-- that's not a word but it suits my sentence. Of course-- I don't think it would really work for those truly sick (ill) people.


Mm, yes. Deterrence and Protection. But we are operating under the notion that he is a tabula rasa, and so the chance of his re-committing are slim to none, and the deterrence factor would be moot.
The idea hovered and shivered delicately, like a soap bubble, and she dared not even look at it directly in case it burst. 
But she was familiar with the way of ideas, and she let it shimmer, looking away, thinking about something else.
and a subtle fear [capture d] my  h  e  a  r  t.
already [wet] and we're gonna go s w i m ming

Asuras

#30
November 28, 2010, 09:20:10 PM
Quote from: Fae Brin on November 28, 2010, 09:12:26 PM
Because it makes you even more evil.

Yeah except that the point here (if I understand it) is whether the defendant at trial is guilty, or even worthy of standing trial. The man that blanks his mind intentionally is exactly the same as the one that suffers it accidentally, right? So these two men, at that point, are both equally evil and guilty at that point, at least as regards to their memories and personality?

Quote from: Fae Brin on November 28, 2010, 09:12:26 PM
Well-- I would argue that it's very deterential-- that's not a word but it suits my sentence. Of course-- I don't think it would really work for those truly sick (ill) people.

For whom we have a disgustingly inadequate health system for their rehabilitation that I know personally.

Quote from: Fae Brin on November 28, 2010, 09:12:26 PM
Mm, yes. Deterrence and Protection. But we are operating under the notion that he is a tabula rasa, and so the chance of his re-committing are slim to none, and the deterrence factor would be moot.

Again, if it's possible for me to blank my memories after committing a crime, and I get under this "tabula rasa" defense, I can commit a crime without being punished. We must deter such behavior which is why the "tabula rasa" defense is bad law.

Jude

#31
November 28, 2010, 09:59:52 PM
In terms of utilitarian ethics (and legal/practical point of view) I'd say he needs to be punished anyway.  It sets a dangerous precedent if you allow people to escape punishment if they seem to have suffered memory loss.  We can't really distinguish between actual memory loss and feigned memory loss that I'm aware of.  The bigger picture begs for the individual to be punished regardless.

It's pretty clear that letting people off the hook gets especially dangerous if the loss is due to a psychological condition and not physical damage.  There is also the chance that the memory loss is reversible, which means they're only rendered "temporarily benign."

To me, the purpose of prison isn't just reformation.  The presence of that impending punishment sets up this ordered world we live in.  The average person can live with their mind at ease knowing that if someone wrongs them they will pay for their crimes, the deterrent effect isn't just a tangible benefit, but it creates peace of mind.  Every time we add an exception we chip away at that.

I guess I'm OK with an individual being punished who doesn't understand why because they've lost their memory as long as it's not unduly cruel, they're educated on what happened with all of the available evidence during their incarceration, and they undergo the same rehabilitation processes as anyone does -- plus they should be open to parole, given a little special treatment, and let out early if their story is corroborated by their actions and behavior during their imprisonment.

Then again, I really believe in rehabilitation and think a lot of our punishments for criminals are far too harsh.  20 years in prison for a crime of passion just doesn't add up to justice for me; what good is it doing anyone if it's clear the person isn't going to kill again?

Fae Brin

#32
November 28, 2010, 10:29:47 PM
Mm, well-- I think we've analyzed the hell out of this.

I didn't really have a particular stance-- I was mostly taking the opposite side for argument's sake. I do like how Jude has put his side of the argument.

Just wanted to say thank you to everyone who participated, I appreciate it very much.
The idea hovered and shivered delicately, like a soap bubble, and she dared not even look at it directly in case it burst. 
But she was familiar with the way of ideas, and she let it shimmer, looking away, thinking about something else.
and a subtle fear [capture d] my  h  e  a  r  t.
already [wet] and we're gonna go s w i m ming
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