How We Decide Who Deserves Punishment

The narrative surrounding criminal law is often dependent on the weighing of aggravating and mitigating factors. This scale directly informs the severity of the punishment awarded; whether an individual deserves punishment, understanding, or reform. In Agents and Objects, Michael Zhao (2025) considers this instability through the exploration of counterfactual imagination: when we are able to imagine circumstances changing in alternate scenarios,we consider the intentions of others as fixed, effectively viewing them as an object. The individual is either a free, intentional agent, or a product of circumstance. This change in framing has the power to influence moral judgement. Through the application of Zhao’s account to the practice of assigning criminal responsibility, it can be argued that the perspectives shaping moral philosophy also govern the courtroom. By uncovering the cognitive structure behind framing fault, we can better understand both the fairness and fragility of legal blame. 

Zhao’s central argument surrounds the question of how we can regard the same person both as a free agent and as a causally determined object. Here, Zhao argues that the difference truly lies in human psychology. We can imagine an individual as an agent when we can also imagine them acting differently, while circumstances remain the same. Conversely, the objective view necessitates that we cannot imagine the individual acting or reacting in any other way. It follows that these two views cannot exist simultaneously, as the mind can only imagine one counterfactual at a given time (Kahneman & Miller 1986). This explains why our moral and legal interpretations differ depending on which details we prioritize: focusing on motives leads to a salient, or agential approach, while focusing on circumstance leads to the more compassionate objective understanding, according to Zhao. This divide in viewpoint is thus not about discovering the true cause but deciding which cause to treat as the one that matters. 

Criminal law considers both the actions of the defendant and how their action is explained in making judgements of responsibility. The distinction between the agential and objective perspectives explains how one event can be interpreted in two opposing ways. 

An example of this moral framework in action is the case of an individual involved in a hit and run. To examine Zhao’s approach to moral understanding, we consider the agential and objective views. The prosecution may describe the perspective of the agential view, inviting the jury to imagine the defendant as an irresponsible and untrustworthy individual, framing the situation to consider that the defendant might have simply called a car instead of deciding to drive. Conversely, the defense would paint the picture of the objective view, one in which explains that the individual was born from parents who passed down their substance abuse issues. This narrative would change the moral landscape completely, and would view the individual as someone who was defenseless, suffering from addiction. From these scenarios, members of the jury may have been swayed by different details in the case, directly informing their assessment of the situation.  This exemplifies Zhao’s theory, and how it operates in real world applications; responsibility and consequence depends on which counterfactual narrative is highlighted. 

Under this definition of agential and objective perspectives, our sense of responsibility depends on selective counterfactual imagination. Thus, fairness in criminal judgement requires creating a framework for how jurors imagine alternatives in a situation. This is especially prevalent, as empirical evidence points to perspective-taking and causal salience as easy manipulators in a courtroom. The importance of framing fault is beyond rhetoric, and is rather a psychological variable which greatly affects and biases verdicts. Through the implementation of procedural safeguards, this bias may be mitigated (Barnett et al., 2004). 

The goal of the procedural safeguard is not to resolve moral responsibility, but to equalize evidence and the way it’s delivered in a courtroom setting. These safeguards may come in the form of explicit jury instruction to consider the circumstance and individual through both causal frames, deliberation guidance questions to follow this framework, or balanced sequencing of evidence. Through these or other measures, counterfactual plurality can be embedded into the courtroom, and the issue of moral overconfidence can be addressed. 

This examination of our attributions of responsibility has exposed a fragile system, exemplifying that legal judgement is strongly influenced by this perspective. Framing fault is as much about managing psychology as it is about interpreting facts. Fairness demands that both interpretations of selective counterfactuals be made explicit within the courtroom. This recognition will not weaken accountability, but instead grounds decisions in psychological realism. The law’s task is to ensure that justice is not simply the product of whichever story is easiest to picture, which is exactly the issue Zhao’s framework exposes. It is our moral responsibility to consider how we frame fault, and the legal ramifications of our biases toward causal framing.

Isabella Grande is a graduate student at Brown University, concentrating in Biotechnology. She is a staff writer for the Brown University Undergraduate Law Review and can be contacted at isabella_grande@brown.edu. 
Emily Walsh is a sophomore from Minnesota studying Philosophy and International & Public Affairs. She is a staff editor for the Brown Undergraduate Law Review and can be contacted at emily_m_walsh@brown.edu.