The killing button
Suppose I put you in an empty room with only one button. I don't tell you anything. You are free to leave the room without doing anything.
Out of curiosity, you push that button. Actually, you pressing that button results in the killing of 100 people. However, you didn't know what will happen when you pushed that button. You were free to not push that button. Still, you pressed it. No people would have died if you wouldn't push the button.
Most people and juridic systems would not consider you accountable for the tragic consequences of your action. The moral and legal responsible would be me for putting you in that situation. Would you agree?
The crane
Having information about the possible consequences makes you responsible for your actions. Suppose you are operating a heavy loaded crane and it is your job to not push that button when 100 people are below your heavy container.
You have the proper training and you understand the mechanics of your actions. You are properly warned multiple times of the dangers of pushing the button in the wrong moment. It is not forbidden to push that button, you just need to pay attention in certain moments.
Failing to protect the people below, even without intent, would make you responsible for the pushing of the button at the wrong time.
Suppose you cannot possibly know that 100 people would go below your container in the moment you push the button. This should absolve you of the consequences. As long as you made all the due-diligence to assure that you are operating the crane safely, you can be absolved from the tragic consequences.
On the other hand, if you know there are people too close to your container, this makes you in part responsible if you operating the button results in killing people, even if they made some mistake themselves.
The child
What if you put a small child in charge of the above crane? The child might pass the full training, he/she is explained multiple times the dangers of pushing the button at the wrong time.
If the child push the button at the wrong time, who is responsible? Well, I would say the one who put it there is responsible, not the child.
The burden of moral decision needs to be adequate
to the reasonable expectations on the capacity of the person put in
charge. Putting a child to drive makes the adult responsible, not the
child.
The same is true if you put in charge a mature person with abnormal low IQ - that you know it. It's not the responsibility of the person that we know he/she is not fully able to understand the consequences of their actions.
The smile
What if I only tell you smiling that pressing a certain button would kill 100 people? What if none in my tone suggest that I talk seriously? What if you actually push that button? At least morally, you cannot be taken responsible for pushing that button.
You
may feel psychologically guilty for trying the button, but it is hardly
your fault. As long as the information, even true, is not credible you
don't have the necessary means to correctly understand the consequences of your
actions.
We can imagine that the button is located somewhere near a house door and it looks
like a door bell. Even if I tell you with serious tone that pushing the button will kill 100
people, it is not reasonable for you to expect such dramatic
consequences.
Things gets way different if I explain you credible that the house if full of exploding gas and pushing the door button would ignite the gas and kill all the people inside.
The drunk
If, on the other side, you are incapacitated to make decisions by your decisions to drink and drive, you are not exonerated by the consequences of your actions. It is considered that you had the means to prevent yourself driving when you are drunk. If you know you lose the ability to decide when you are very drunk, you should avoid to go that drunk in the first place.
There is one case where your responsibility of driving drunk and killing someone can be absolved. If, for example, you are drugged without your knowledge, and you don't feel incapable of driving control, the responsibility goes to the one who drugged you without your knowledge.
Agency
If you were credibly informed that pressing the button would result in killing 100 people, you would start to have some moral responsibility for the consequences, even if you are not "more free" to not push the button.
In this case we consider that you had so called "agency" - the capacity to make a moral decision either to push the button or not. In order to have agency in a situation you must be reasonably able to understand the consequences and risks of your actions.
You need be have enough knowledge about the consequences of your actions, to the best of your ability. If I make it very clear and believable that such pushing of button will kill 100 people, you start to have moral responsibility for your action.
We still consider you to have agency if you break some driving laws that unexpectedly result in killing someone. Even if you didn't break any laws, failing to take reasonable precautions to prevent a deadly impact still makes you responsible for the unexpected consequences. The only thing that can absolve you if that it's not reasonable for you to take more preventing actions.
The failing murder attempt
On the other side of the
spectrum, someone who purposely tries to kill someone and fails deserves
punishment even if no harm was actually done. If that person understands
the likely consequences of his/her actions, the punishment is well
deserved.
There are some nuances here, a well prepared murder is usually punished worse than a sudden burst of anger. Nevertheless, a failed murder attempt is almost as guilty as a successful murder. We don't punish the result, we punish the person who made the harming actions knowing the likely tragic result.
It is reasonable to punish less a real killing by slight negligence, because it is less likely to repeat than another planned murder attempt.
It could happen that someone prepares a murder and fails to do it because of second thought. Depending on the case, we can decide that the person is not actually capable of murder and not punish it.
Sometimes, one uses murder to punish an established crime that was not properly punished. In this case we tend to also be more forgiving. Why is that? It's not because what he did was legally right. Legally, taking the punishment in your own hands is not legally acceptable. It all goes to future social danger, more on this later.
The punishment asymmetry
We psychologically feel that punishing the wrongdoing is "right to do". When we are personally hurt, or people close to us are hurt, we even have the desire to revenge. We might partially understand that the lack of intention deserves a lesser punishment, but not always.
We often wish for a very harsh punishment for the imprudent driver who resulted in people dying. We tend to be a bit less harsh if someone close makes a driving mistake resulting in someone get killed.
Legal systems tries to weight the right punishment more objectively, even if we might not feel it's the right punishment.
The meaning of Punishment
The social danger
Deserving punishment is often put in direct relation with being guilty or not. While small punishments might get absolved by mercy acts, there is still a potential punishment involved. It is easier to understand the meaning of Punishment than such loaded concept like Guilt.
The reasonable purpose of Punishment is to prevent and discourage the harming of the members of society. This is as old as the first organized human societies, while we are better equipped to understand it now rationally and not by "eye for an eye" or similar ancient laws.
Punishment often prevents future harm by locking people in facilities. Someone who purposefully kill will likely try to kill again. If crimes goes unpunished, it is an incentive for others to indulge in other crimes for various reasons.
If crimes gets punished often enough, it is a negative incentive to be careful with your actions that might hurt others, even driving carelessly. It is an incentive to not drink and drive.
Punishment motivates people to delay their harsh revenge and let judges to weight the right accountability. It prevents people to kill you when you did a driving mistake that resulted in a tragedy.
Lack of agency
If people are behaving dangerous being medically ill, we still lock them to prevent them to harm others. We don't punish them in jail the same with people having agency because there is a hope that once the illness is cured offenders might not retain any mental patterns that is likely to produce harm to others.
On the other hand, a healthy person that understand the consequence of his actions is likely to repeat similar patterns in the future, even just negligence. The punishment is meant to adjust the patterns of the guilty person so that it is less likely to happen again. If the imprisoning time can be better adjusted to this objective is a separate debate.
In the same way we don't find morally guilty children that are not yet capable of understanding the consequences of their actions. We still can have good hopes that once they grow mentally they are not likely to repeat their dangerous actions. However, some dangerous minors might pose serious threats also at maturity if not properly re-educated.
Conclusion
The whole legal and philosophical debate around free will and agency is only meant to asses the social danger of a person that caused or planned a harm. When the harm was caused by negligence, it is more likely that the offender will get better in the future with just a small punishment.
When the whole personality was involved in a dangerous harm - by premeditated act, then bigger punishment is likely to prevent future harm, at least by removing the individual from society.
We already refrain to punish acts where the individual caused a harm that could have not be prevented if he/she were a better individual. There is no meaning for punishing a type of harm that cannot be prevented in the future by more reasonable care or better judgement.
Calling such cases "lack of free will" or "lack of agency" just orient philosophers and lawmakers in endless debates going in circles. A better question is to weight the right quantity of punishment that is likely to reduce the harm in society. Maybe thinking like this we will come with more effective ways to prevent harm in society - that is the actual goal of punishment.
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