Agency and Behavioral Change

Agency, Character, & Identity Project: A Conversation with Jon Jacobs


On September 20th, 2012, a group of faculty at John Jay got together for a discussion as part of the Agency, Character and Identity (ACI) work group that falls under the auspices of the College’s Institute for Criminal Justice Ethics.  This internal meeting—the first of the 2012-2013 academic year—was meant to get interested colleagues up to speed on the direction the project has taken over the summer and to generate some discussion on the conceptual and empirical questions at the heart of it.  Among the purposes of this discussion board write-up are:

  • To make some of the highlights available to other colleagues as well as students who might be interested in this interdisciplinary research project of the Institute
  • Ideally, to offer a forum in which the participants in the work group can carry on the discussion remotely. 
**Please Note: This is written up as a dialogue, but what is stated here is not a verbatim transcription.  Much of it closely reflects what was said, with some paraphrasing, summarizing, and extrapolating.  For a few points, a clarification was sought after the meeting was over. 
Attendees (and the abbreviations that will be used throughout): Jon Jacobs (JJ), John Kleinig (JK), James DiGiovanna (JD), Margaret (Maggie) Smith (MS), Evan Misshula (EM), Sarah Flink (SF). And John Pittman and Sarah Saliwanchik, who both attended to learn more about the project and who did not actively contribute to this particular conversation 

Opening remarks by Jon Jacobs

Professor Jacobs, Director of the Institute for Criminal Justice Ethics and the originator of the ACI project, opened the meeting with an overview of the motivations behind his interest in criminal justice ethics [Jon Jacobs' interest in CJE], followed by an articulation of the particular thesis he is interested in exploring and defending within the scope of this project.  We are focusing here on the latter.

 Jon Jacobs’ work-in-progress research concerns what imprisonment does to an individual’s capacity to participate (properly or in an advantageous way) in

(A)  a liberal-democratic political order and

(B)  the character of civil society

 (A) is a question of deep political import while (B) seems to be more classically the  province of ethics.  Importantly, for Jacobs, these two are deeply intertwined.  Specifically, Jacobs says that  “there is an important relation of mutual reinforcement (or mutual weakening) [between the two] in the following respect: A liberal-democratic order preserves and protects the sorts of rights and liberties that make an open, heterogeneous civil society possible; and participation in civil society of that type supplies people with reasons to be committed to the liberal order….In the absence of certain dispositions and attitudes, a liberal order cannot long endure, as Abraham Lincoln might say.”

 Jacobs’ working two-part thesis: The conditions of imprisonment are of a kind that almost inevitably de-skill persons for participation in civil society and accountable, prudent self-determination.  (In other words, these conditions seem to harm a person regarding (B) above, which in turn will harm him or her in (A).)  And if that’s true, there is something deeply illiberal about our punishment practices—a matter of serious political as well as ethical import. 

There is somewhat tricky territory here, because the liberal polity cannot require persons to be virtuous (and thus to have the specific dispositions and attitudes to engage constructively in (B)) and yet, it is surely wrong for the state to worsen or damage persons’ agential capacities.  It is wrong, and it is wrong in ways that can do serious damage to the political order.

Jacobs’ projected contribution to the collaborative project: to “slow down the rush from data to policy” by considering what is normatively at stake in a liberal polity.  He is not abolitionist about punishment as such, nor even about incarceration, but he does want to perform a thorough conceptual diagnosis / descriptive analysis that places our practices of punishment on a fully fleshed out ethical and political landscape, so we fully know (or know as fully as possible) what is at stake in the data and in the policy / potential reforms. 

 Q&A with Jon Jacobs:

JD: How can we change the practice so it stops damaging but also doesn’t impose character modification that is itself illiberal?

JJ: Well, that is the question.  But until we have a thorough diagnostic we can’t hope to answer that.  If one is not explicit about presuppositions on what constitutes success or damage, it is impossible to reasonably hope to offer a studied recommendation for or against the status quo or for any particular reform.

JD (follow-up): So are you saying that what we need to articulate is a notion of agency because from there we can better consider issues of policy and/or justification of punishment?

JJ: Perhaps.  Again, by way of slowing down, I want to say there is more to this ethically and politically than just accumulating data and then “trying to decide” which practice to use.    What is potentially illuminating is “diagnosing underneath the data”.

MS: What we don’t do now is treat offenders as persons.  To JJ: to clarify, I trust when you say offenders “lack suitable agency when they leave prison,” you mean to say that this suitable agency is present and possible and just not yet developed.

JJ: Yes, just that this agency is not effective

MS: We want to be careful that the language we use here does not suggest it is all about the individuals (the offenders); the practices need to be examined, too.  And then we also have to consider that they enter with damaged agency, and that this damaged agency had much to do with the maladaptive/criminal behaviors in the first place.  (This is why political prisoners consistently navigate incarceration just fine; they enter with intact agency—a sense of themselves and their purpose, etc.)

JJ: We do have to look at features of the society they are coming from

MS: I think we need to be asking what can ‘punishment’ mean when the agents are already damaged

EM: We must consider this in light of the complete lack of meaningful mental health policy in this country; and the huge percentage of our incarcerated population that are non-violent drug offenders.

JK: What sense of agency are you using here, Jon?

1)     capacity to make decisions

2)     capacity to make good decisions

because those in prison don’t lack agency altogether; but many of them do lack a sense of social responsibility that seems necessary for making good decisions.

JJ: I think I mean (2)—the capacity to make good decisions; And I recognize that this means I am proposing the possibility that the definition of agency includes certain features that surpass what could be legitimately enforced through state sanction or coercion in a liberal polity

It needs to be said now that these are huge issues—difficult to navigate—but I don’t want to turn away from these dicey issues just because they are dicey. 

We can say this much: those with relatively unwounded agency are able to participate in and believe in (A) and (B).  And even if we cannot expect the state to be directly involved in promoting agency (which is akin to legislating morality or virtue), it nonetheless seems to be what is needed.  So then we need to figure out how else it ought to be cultivated—and the answer to that is probably: through other (non-state) institutional practices

JK: Joseph Raz’s work has been doing some of this; he might be a good resource.

MS: Is it comfortable for your notion of liberalism, Jon—meaning not too manipulative on the part of the state—that the state can be expected to provide conditions for the understanding of sanction as precisely that—sanction?

JJ: It is not prima facie to be rejected that the state might have some kind of obligation to provide those conditions.  As of now, my conception of punishment does involve a “communicative element”—with the ‘message to communicate’ being that the given behavior is unacceptable and thus has consequences)—but it is not its primary element. 

JD: But don’t we, in our liberal polity, educate people and therefore manipulate character in a lot of ways?  So can we really claim to be so hands-off liberal?  (In fact—in say 1920s America, we could be said to have conducted our own unofficial experiment by race, whereby part of the population were given extensive education (much of which was, by necessity, “character forming”) and the other part of the population was given hardly any.  And we can see the implications clearly: for the latter group, the absence of character-forming governmental services produced an education gap and worsened an economic gap between two classes of Americans.

JJ: This is a matter of the extent to which the state is allowed to manipulate the “souls” of its citizens, because whenever you convert a value into policy—no matter how desirable the end goal—it inevitably involves some degree of coercive power. 

EM: Right, prison is coercive; so is education; but that does not automatically mean if one is problematically illiberal the other one will be. 

JJ: Yes, we can go in search of relevant distinctions and even fuzzy lines, because as we know, the argument that there is no clear line between acceptably coercive practices and the unacceptably coercive ones, does not entail we cannot achieve some clarity about certain practices.  There are state-supported practices and institutions (e.g., education) that enable people rather than coercively diminish their freedoms and agency. What the state does, always involves some element of coercive power but that does not imply that what the state does always undermines liberties or agency.

Brief presentation by James DiGiovanna

JD presented an overview on some of his current work on personhood and identity—with a particular aim to relate it to the overall concerns of this project [for more on these topics, please visit JD’s website at

DiGiovanna is interested in interventions on the soul, or “person-making practices”

A mainstream understanding in contemporary thought is that personhood entails both:

1)     rights

2)     responsibilities

These attributions, however, will vary based on capacities.  And either one or both can vary (rights or responsibilities). 

DiGiovanna draws upon Marya Schechtman’s ideas of “person-spaces”.  Schechtman essentially argues that person-spaces are person-making.  For example, the severely cognitively disabled may have almost no capacity for responsibility, but they are accorded rights and in addition, are treated as and considered persons, because they participate in person-spaces (they live in houses; eat at tables; go to hospitals when sick, etc.).  However, qualifying as a person (by being in person-spaces) in no way entails being treated well in those spaces. 

Prison in fact is a unique person-space and one where they are treated poorly (clearly they are person spaces, because no other type of creature is kept in this arrangement, even other animals we keep in captivity).

DiGiovanna’s working 2-part thesis:

  1. personhood is a matter of degrees (which is an amalgam of two spectrums–(1) and (2) above)
  2. person-space has a lot of “rooms” in it

One implication: what might constitute a legitimate state intervention or policy change in one “room” might be illegitimate in another; our work in this group, then, would consist at least partly in identifying which kinds of interventions are appropriate—both ethically and politically—in which kinds of rooms.

 –For example, part of the feminist movement involved advocating to change certain features of certain person-spaces (especially, access to some of those spaces).  Some of what was required to achieve these changes was intrusive to existent practices; and thus there was resistance.  A hallmark that seems to indicate a ‘legitimate’ intrusion by the state to coerce a change in some person-making space (“room”) is that most of the resistance to the change is based on a fear of what the excluded group (in this case, women) would do with this enhanced access to previously forbidden person-spaces.

The goal, then, of the coercive or intrusive act by the state was fairness / equal rights for women.  From this example, it seems clear that intrusive and coercive actions by the state (in a liberal polity) are not automatically ruled out.  

DiGiovanna’s current paper on regret and the (neglected) role of emotion in producing the continuity of identity:

In contemporary philosophical debates on personhood / identity, there are two basic positions on what accounts for or produces the continuity of identity (in the inner psychic space of persons)

  • the memory theory
  • the planning of the future theory

DiGiovanna wants to add a third:

  • emotional continuity

Regret, in this paper, is articulated as an experience that includes BOTH

1) identification with and

2) alienation from

 “the person I was who did (regrettable) act, X”.  Regret is thus simultaneously a motivation for change and a taking of responsibility for X.

To link this to the topic at hand: we can look at our person-making spaces (such as prison) through this lens and see whether they facilitate, prevent, or are neutral with respect to making true regret (in the sense above) a possible experience.

Q&A with James DiGiovanna

MS: I tend to think of emotions as a representation of a person’s desire and how others respond to and reflect back that desire (in other words, we behave, others react; we learn about the efficacy of our behavior.)

There is also the phenomenon of identification that we need to consider here–in particular, the “fandom” version, i.e., idolizing someone in such a way as to want to literally “be just like” the idol.  (Here MS referenced the great Shadd Maruna article on religious conversion in prison, which touches on a lot of these issues: entitled “Why God is Found Behind Bars”—we will aim to put this pdf file up on the ACI project website soon).

Also, one thing we know from empirical research in criminology: relapse for offenders is when the “new self” has failed.

But also, this new self (internal change) can be real / firm but then, if everyone around you treats you like a criminal anyway, the behavior expressed by the new self gets no confirmation and therefore, the new self does not feel efficacious (i.e., the lack of confirmation undermines agency).

EM: indeed.  At a certain point, the excessive emphasis on remorse / regret / responsibility becomes incredibly counter-productive to ethical self-correction because it in fact reifies that one is “bad”.

 –an interesting Jewish notion to compare: teshuvah (explored by Jacob Neusner at Brown); teshuvah is theorized as “a return to your former self”

JJ (addendum to this point): Judaism does not involve the notion of ‘fallenness’ (in other words—it does not have this reified identity of the irredeemable, fallen from grace, irreparable, etc.  The suggestion here is that this possible identity of a reified criminal identity that is in fact frequently put upon an offender (through various means that can include an excessive emphasis on expressing regret / remorse) is itself so debilitating as to be precisely counter-productive to the desired goal of “ethical self-correction”.  And it is potentially fruitful to compare it to other cultures that have clearly had to respond to criminal / maladaptive behavior but have done so without any placeholder for the irredeemably fallen (as a reified identity).  What could be learned from such a comparison?

Brief presentation by Margaret (Maggie) Smith

MS presented a brief overview of her interests in this project: to develop a robust theoretical account of agency in existing prisoner interventions (whether in prison or post-release); eventually to operationalize agency in a model that could be a resource for practitioners and policy makers working in criminal justice.

 A couple examples:

Alternatives to Violence Program (AVP): (A Quaker-developed program practices in New York State maximum-security facilities):

  • no institutional connections
  • the individual gets to “move toward” or “choose” it (thereby activating agency)
  • seems to provide the same kind of ‘protective’ effect as education, arts,  and sports (which are widely established in empirical research as protective factors against delinquency  and especially its persistence)
  • unfortunately, gangs also provide a lot of these features

Alcoholics Anonymous (AA)

  • has a similar element of “moving toward” or “choosing” one’s sponsor
  • anonymity / no one pushing any agenda / no one wants to study you, etc.
Sarah Flink’s comments on shame and the Veterans Treatment Court (VTC) model:
  • A theme through much of this is shame (also central in the Maruna article on prison conversions mentioned earlier)
  • A phenomenon Flink observed multiple times in Veterans Treatment Court (a recent expansion of the Drug Treatment Court model): how shame alleviation is a precursor to a genuine taking of responsibility (gave example of a gentleman saying to the Judge, after 6-9 months in that program, that he is currently working on “no longer playing the blame game” and on “taking responsibility”; and it visibly took a great deal of courage for him to say this, because he clearly still felt a great deal of shame).
  • Also, however, there is an acknowledgement in VTC that at least some of the causal factors for maladaptive / criminal behavior are not purely the offender’s fault; in VTC, for example, there is a central acknowledgement that combat/military service were potentially damaging. 
  • Also true in some of the other more progressive programs Maggie and I have looked at this summer, e.g., in RSVP (Resolve to Stop the Violence Program) and in Men in Recovery (a program favored by the Queens VTC): both centrally address the influence of damaging stereotypes of masculinity;  
Jon Jacobs’ closing food-for-thought questions (and it is hoped that participants will continue this discussion here):

If people (in a liberal polity) are not given the resources to become a self-determining agent, what do you do if they don’t achieve it?  Simply coerce them? Is it possible to awaken or trigger an aspiration to be virtuous (and participate in civil society as well as the political order) that feels genuine? 

Addendum responses to Jacobs’ question:

SF (addendum to this question): Data that shows people in drug court don’t feel coerced even though they clearly are being coerced.  My suggestion is that there is other language here for what is going on that is more potent than the coercion.  Even though there are coercive elements of these treatment programs, there is also a lot of support, help, structure, faith / belief that the person can change, etc. 

JD: Maybe what’s important is not coercion but whether people feel coerced. Daniel Wegner’s work could be relevant here (See “The Illusion of Conscious Free Will”).  He has looked at various value terms across cultures, e.g., he has studied physiological markers (like heart rate) when someone says they are “very angry”; and it varies quite a lot by culture.

Some specific invitations to the attendees to expand upon some points raised in the discussion:

 To John Kleinig: Can you tell us a bit more about the central argument or claim or Joseph Raz with respect to some of the (non-state) institutional practices that might be used to encourage the development of a full or robust sense of agency?  Or otherwise clarify to the group what Raz’s particular contributions are that would be relevant to our discussion on these issues?

 To Evan Misshula: Would you like to expand on this idea of ‘teshuvah’ and spell out its implications for our discussion here?  Do you have some further points you would like to make about the excessive emphasis on regret and remorse?  Is the lack of what you call “meaningful mental health policy in this country” one of your primary interests?