New technology has always challenged the status quo, but self-driving cars will force us to rethink the very nature of our penal and justice system.
Self-driving cars are in many ways both right around the corner, and far into the future. The basic technology is here; the cars themselves, as well as the foundations of the hardware and software needed to both allow the cars to sense their surroundings, and to make computational assessments of how to interact with them. A number of cars already have self-driving elements included: from lane assist to adaptive cruise control, and automated parking functions. But full-on level 5 autonamous driving is a while away yet.
And before we get there, the legal framework in most countries will need updating as well. Many countries’ traffic laws require drivers to keep their hands on the steering wheel at all times. Not applicable to autonomous cars.
So that’s two reasons why self-driving cars aren’t out there yet. Another reason is that we as a society may not be ready for it yet, on a philosophical level. And it has to do with the philosophy of punishment and judgement. Stay with me.
On the road, we have rules as to what we can and cannot do, and if we break the law, we get punished. If we, through human error, kill someone (God forbid), we can be held accountable by the justice system. But what about if it’s a self-driving car? Who’s responsible then? And just as important, from a psychological point of view, who do we blame?
Crime and Punishment
Why do we punish? Pretty much all societies, at all times, have punished those who break the rules. And philosophically, there are a few different reasons for that. I won’t bore you with references to specific philosophers in this, just outline the very, very, very basics. And from that perspective, there are three main reasons why we punish:
1) As a deterrent. We have punishments because there needs to be a deterrent, a consequence, if people break the rules we’ve all agreed on. This serves the purpose of making people unwilling to commit a crime, because they know there will be a consequence. This is the first principle of the penal system, old as dirt, still going strong. It’s why thieves had their hands chopped off in the olden days, it’s why many religions have some version of Hell, and it’s why some countries maintain a death penalty. This form of punishment is actually very much directed at non-criminals, or would-be first time criminals, in an attempt to keep them on the straight-and-narrow. Behave, or else!
2) As a form of rehabilitation and future deterrent. If someone breaks the law, they experience a consequence, and hopefully, they’ll never want to do it again, out of fear said punishment. In modern times, we’ve also included rehabilitation, where criminals are given skills through education, and if needed, treatment for alcohol or drug addiction or for mental problems. The idea with this is not just to install the fear of God, or rather the fear of punishment, in the criminal, but also help them build a different life once they are reintroduced into society. This form of punishment is very much directed at the perpetrators themselves, and seek to avoid future crime.
3) As a form of societal revenge. This is perhaps the most controversial one, but the judicial and penal system also serves the purpose of appeasing the rest of us law-abiding citizens, as well as any victims or relatives of victims, that “justice has been served”. That, essentially, we have had our revenge. This is the old eye-for-an-eye idea, personal vendetta outsourced to a (supposedly) fair and impartial system. This is where the death penalty comes from, or at least, this is one of the main differences between life in prison, and capital punishment: for many people, there’s more of a sense of justice, or rather, revenge, in the latter. This form of punishment may be directed at the perpetrators, but its focus is actually on the victims of their crimes, and on members of society in general, who need to feel vindicated for the transgression.
Purposes 1 and 2 have a lot to do with society’s need to avoid crimes from happening in the first place, and to keep criminals from repeating crimes when they do. They are largely quantifiable. Purpose 3 is more personal, psychological, and hard to quantify. It has to do with each member of society’s feeling of whether they have had their proverbial pound of flesh.
In the earliest versions of human society, purpose 3 was the dominant one, and we still see it in some societies: public hangings or in particular stoneings (where members of the community are part of exacting the punishment) are class examples of purpose 3, and it’s revenge element. You’ve transgressed against all of us, and we will all have our revenge.
Forgive and regret
As our view of criminals changed, from a fate-oriented one (a person’s actions are in their nature and no one can change; a good person is always a good person, while a criminal is a criminal for life) to a reformative one (we are shaped by our experience, and can, under the right circumstances, change, even late in life), the primary function of the judicial system changed. This is what some people refer to as being a civilized or advanced society. But the revenge element lingered.
But self-driving cars poses the question: in the case of an accident, where do we place the blame? That depends on the purpose of the blame placing.
Rage Against the Machine
Let’s say that a self-driving car hits a pedestrian and seriously injures her. We’ll assume that the pedestrian obeyed relevant traffic laws, and that the car seemingly did so too, but simply failed to stop, or notice the pedestrian.
Is the person in the car to blame? That would be the default setting if it was a human-driven car: the driver was unfocused and that caused the accident, so the driver should be punished according to the law. But what of a self-driving car? Is it still the person in the car? What if there are several people in the car, all of whom might be able to stop the car with a voice command? Who ultimately counts as the “driver” if there’s no actual driver’s seat? Assuming that no user controlled settings played a part in the accident, it is hard to really blame the passenger (as this is what anyone on board a truly autonomous vehicle really are). So who then?
For purposes 1 and 2, it is fairly straight-forward. We can have punishments that are preventive deterrents by simply holding the users of the vehicle accountable for any settings he or she can affect, and the producer of the vehicle for any other shortcomings of the system. In the first case, it is personal liability where relevant, and in the latter it is corporate liability. And in both cases, accident data and relevant liability can be used to motivate producers to improve on software and hardware to make the cars safer, i.e. less likely to commit crimes in the future. We have both preventive and future deterrents in place.
But what of 3? What of our needs as a society to see justice done? What of the revenge nature of the judicial and penal system? Can we punish the car? Put it out on the city square and throw rocks at it? Hardly seems effective. Or should the CEO of the car company go to jail for every injury that their car causes, as if the CEO was directly the one behind the wheel? That doesn’t seem fair. Yes, there can be cases where the car safety was so critically flawed, that the CEO can be held personal responsible, but that can happen with today’s human-driven cars, too, and it’s pretty damn rare that things are that bad.
In many ways, this is at the core of many people’s resistance to the idea of self-driving cars: that if they fail, if they do injure or kill, there is no one to blame, no one individual to punish. That we, as individuals and as a society, cannot get our revenge.
As I wrote earlier in this somewhat long piece, as a society we’ve moved from a concept of punishment that was largely driven by a need for societal revenge, to one that is more and more a matter of deterrents and rehabilitation. While the revenge motivation is still strong in some, most agree that moving from a punishment-driven focus has largely been the driver of the shift to the modern, progressive version of our penal system. It’s proponents will argue that a prevention and rehabilitation focused approach has many times been proven to cause lower crime rates, and a less risk of former criminals returning to a life of crime. In some ways, self-driving cars will force us to advance our understanding of justice even further, and move even further away from the notion of personal revenge through the penal system.