The Determinist Paradox: A Sliding Scale to Elimination
Criminal justice rests on a single, foundational assumption: you chose to do it. An offender freely decided to break the law and therefore deserves to face the consequences—a premise so fundamental that without it, prosecution loses its legitimacy and coherence. It is written into the law’s most basic requirements: mens rea, a guilty mind, is a prerequisite for conviction of any serious crime, because guilt presupposes a choice that could have gone otherwise. Even the law’s narrow exceptions, such as the insanity defense, make the same point implicitly: courts exempt those who cannot choose otherwise precisely because they assume that normal defendants can. Determinism—the theory that human decisions, like all events, are causally inevitable—says that assumption was never true to begin with.
This essay argues that determinism, in both its hard and soft forms, undermines the legal concepts of guilt and culpability upon which criminal prosecution depends. The argument proceeds in two parts. Section 1 outlines the hard determinist paradox: a sentencing system stripped of guilt has no principled barrier against treating elimination as an efficient response to danger rather than an unjust one, and the strongest attempts to deny this do not hold. Section 2 turns to soft determinism, the framework most often offered as an escape from this collapse, and argues that it actually escapes nothing—it relocates the same problem under the language of agency and capacity.
1. Consequences of the Hard Determinist Paradox
1.1 The Paradox
Hard determinism generates a philosophical paradox: if criminal actions are predetermined by prior causes, then so too are the punishments imposed in response. The same deterministic forces that produced the offender’s conduct also produce the judge’s sentence and society’s decision to incarcerate. This appears to weaken the justification for punishment, since neither the offender nor the punisher acts freely. Yet a determinist could argue that criminal behavior may still be managed through imprisonment or rehabilitation even when the offender is not morally responsible for it. Punishment survives, then, as just another predetermined event aimed at protecting society.
This logic, taken further, exposes a darker possibility. If sentencing is justified by social utility alone, then the calculus shifts entirely to outcomes: what response most reliably prevents future harm? Without the constraint of desert—the idea that punishment must be proportionate to what someone deserves—nothing prevents a purely consequentialist system from choosing whichever option proves most efficient at reducing risk, elimination included. Secure lifelong confinement might serve that goal as well as execution and may currently cost less, but that can change. Risk-management logic simply optimizes for whatever minimizes risk at the lowest cost, and what counts as optimal isn’t fixed. Such a system has no way to distinguish “prevent harm” from “prevent harm by any means necessary.” Hard determinism thus risks reducing justice to a calculation in which human lives become variables to be minimized rather than persons to be judged.
1.2 Objections and Replies
The most serious challenge to this argument is not that such a shift could never happen, but that a system can renounce desert and still bar elimination on other grounds. Derk Pereboom and Gregg Caruso argue exactly that. According to their public-health “quarantine” model, society may punish an offender only to the minimum degree necessary for protection. The theory stems not from what the offender deserves, but from a right of self-defense bounded by a principle of least infringement. If that principle holds, determinism might not lead anywhere near the previous paragraph’s conclusion.
But there are only two ways to justify confining a dangerous offender instead of eliminating him: either because 1) we believe the offender does not deserve to be eliminated, or 2) we believe that confinement is, on balance, better for society than elimination. The former fails because it brings desert and morals right back into the picture—the very thing hard determinism discards. The latter, though, is a justification hard determinism has no problem with, since judging outcomes doesn’t necessarily require free will. But least infringement does not forbid killing; it only requires that killing be necessary—and necessity is not a fixed fact but a contingent, revisable judgment. Once desert is gone, nothing but that judgment stands between management and elimination; the two are merely points on a single sliding scale. Quarantine thus secures its promise only where confinement already happens to be optimal; in harder cases, where an offender is dangerous enough that confinement might fail, nothing in the model stops the scale from sliding the rest of the way to elimination.
The quarantine model at least tries to build a wall against elimination; a second, more cautious objection builds none, betting instead that the slide would simply never happen. In fact, most treatments of the paradox settle for this safer conclusion: nothing really changes, since crime and punishment are equally predetermined either way. P. F. Strawson gave this idea its most influential form in “Freedom and Resentment” (1962), grounding our practices of blame and punishment in “participant reactive attitudes”—natural responses like gratitude, love, and resentment—too deeply woven into human life to be dissolved by any abstract thesis.
But Strawson’s optimism earns less than it claims. His point is not merely that determinism is compatible with current practices; it is that we are psychologically incapable of regarding one another as anything but reactive participants—that the “objective attitude,” which treats a person as an object to be managed, can never be sustained. The elimination possibility this essay describes is the universalized version of this attitude; the offender is treated purely as a danger to be neutralized. Strawson’s optimism, therefore, depends on a totalizing claim that the objective stance could never fully displace the reactive one. Society’s shift from current practices toward elimination, however, would be no less “natural” than the system it replaced—that shift itself was predetermined. Strawson therefore cannot guarantee that this reactive stance prevails. In fact, we only have to adopt the objective attitude within a single domain, such as dangerous offenders—where the incentive to do so is already the strongest—for the same disposition guarding everyone else to offer no protection to those who need it most. The remaining question, then, is whether reactive attitudes can be relied on in all circumstances. I would answer no. Without guilt, there is nothing to rehabilitate, only behavior to manage or remove, and which option prevails becomes a matter of cost and certainty.
2. Soft Determinism Does Not Escape the Paradox
Doctrines such as insanity, automatism, and duress already excuse offenders whose capacity for control was substantially impaired; if all behavior were equally the product of forces beyond anyone’s control, these narrow exceptions would have no stopping point. Soft determinism is typically offered as the solution: by grounding responsibility in the capacity to reason rather than in free choice, it preserves guilt without denying that behavior is caused.
Yet this solution is much less stable than it appears; it does not escape the paradox identified in Section 1. The capacity for rational decision-making that soft determinists treat as the basis of responsibility is itself a product of causes no person selects for themselves: genetics, upbringing, education, and brain development, to name a few. To hold an offender responsible because he reasoned his way to a crime is to blame him for a mind he never chose. This is precisely the argument made by Galen Strawson—P. F. Strawson’s son—in “The Impossibility of
Moral Responsibility” (1994). Strawson’s “Basic Argument” claims that to be truly responsible for an action, a person would have to be responsible for the character that produced it, which is impossible. No one can be causa sui—the cause of oneself—so no one can be the ultimate source of the capacity to reason that soft determinism treats as sufficient for guilt. Galen Strawson’s argument is the more rigorous form of the worry that undermined his father’s optimism in Section 1: even where reactive attitudes do survive, they were never evidence of genuine guilt to begin with. Nothing an agent has is self-authored.
Roper v. Simmons and Atkins v. Virginia echoed exactly this insight, and in doing so illustrated the problem rather than solving it. The Supreme Court did not claim that juveniles or intellectually disabled offenders have causal histories while typical adult offenders have none; it claimed only that their capacity for rational decision-making falls below some threshold. In Atkins, it found such offenders to have diminished capacities to reason, communicate, and control impulses, among others. Every item on that list names a cognitive capacity shaped by unchosen factors—precisely what Strawson’s Basic Argument identifies as undermining responsibility “in certain crucial mental respects.” But “below a threshold” is a statement of degree, not kind—it ignores that under determinism, every offender’s capacity, high or low, is equally a product of factors outside their control. Soft determinism therefore draws an arbitrary line between the responsible and the excused—and because that line is arbitrary, it offers no firmer protection than hard determinism against the consequentialist shift of Section 1.
Notably, the Court in Atkins grounded reduced culpability in diminished capacity alone, not in any assessment of risk. But this only strengthens the underlying problem: capacity, like risk, is simply a threshold based on factors the offender never controlled, and nothing in soft determinism’s logic requires that threshold to track culpability rather than danger. Psychopathy makes this concrete: diminished empathic capacity is offered in court both as mitigation, since it undermines ordinary rational judgment, and as the clinical basis for predicting recidivism and naming someone a continuing danger. “Responsible” and “dangerous,” then, can be drawn from the same diagnostic fact, and soft determinism does not keep them from collapsing into each other. Once they do, “this person has diminished capacity” and “this person should be eliminated for efficiency” begin to converge. Soft determinism is not an alternative to the paradox outlined in Section 1—it is the paradox disguised under the language of “agency.” And because the underlying mechanism is identical, so is the danger it poses; if capacity is just a threshold, a purely consequentialist system could simply recalibrate that threshold toward whatever outcome it finds most ideal—including treating elimination as the cheapest guarantee against recidivism. Soft determinism gives hard determinism’s faults a more comfortable name.
Conclusion
Determinism, taken to its logical end, creates not a system of justice but a system of risk management—one that punishes not because offenders deserve it but because society must respond to danger in any way it can. Sentencing would likely move away from retribution and toward prediction and prevention. Not every consequence of this shift is bleak; for low-risk offenders, treatment aimed at prevention might prove more humane. But for an offender deemed permanently dangerous, the same logic offers no such comfort—he would no longer be punished for past guilt but managed as an ongoing risk. While determinism does not logically require elimination, it strips away the barrier most likely to stop it: the belief that punishment must be limited by what someone deserves. Other barriers may remain, but they must now be justified independently of guilt.
Every attempt to wall off elimination without genuine guilt—Pereboom and Caruso’s quarantine, Strawson’s reactive attitudes, soft determinism’s rational agency—relocates the problem rather than solving it. That failure leaves the door open to a system willing to treat elimination as efficient rather than unjust. Whether legislators and judges could ever fully reckon with this is doubtful; criminal law has survived for centuries on the fiction, or perhaps the truth, of free will. But the fact that the law already leans on arbitrary, capacity-based thresholds in cases like Roper and Atkins suggests it has long sensed what Andenaes named outright: that to reproach an action without being able to reproach its causes is, at best, an unsettling kind of justice—one a single redrawn threshold away from reproaching nothing at all, and eliminating instead.
References
Andenaes, Jos. “Determinism and Criminal Law.” Journal of Criminal Law and Criminology, vol. 47, no. 4, 1957, pp. 406-13, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=4513&context=jclc
Caruso, Gregg D. and Derk Pereboom. “Moral Responsibility Reconsidered.” Cambridge Elements in Ethics, 2022,
McKenna, Michael and D. Justin Coates. “Compatibilism.” The Stanford Encyclopedia of Philosophy, 2024,
Strawson, Galen. “The Impossibility of Moral Responsibility.” Philosophical Studies: An International Journal for Philosophy in the Analytic Tradition, vol. 75, no. 1/2, 1994, pp. 5-24, https://philosophy.as.uky.edu/sites/default/files/The%20Impossibility%20of%20Moral%20Responsibility%20- %20Galen%20Strawson.pdf
Strawson, P. F. “Freedom and Resentment.” Proceedings of the British Academy, vol. 48, 1962, pp. 187-211, https://www.thebritishacademy.ac.uk/publishing/proceedings-british-academy/proceedings-volumes-1- 111/48/strawson/
United States, Supreme Court. Atkins v. Virginia. 536 U.S. 304. 20 June 2002. Justia, U.S. Supreme Court,
United States, Supreme Court. Roper v. Simmons. 543 U.S. 551. 1 March 2005. Justia, U.S. Supreme Court,
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