The Ethics of Pre-Punishment (Part Three)

(Part One, Part Two)

This post is part of a series on the ethics of pre-punishment. The series looks at whether it is permissible to punish someone for crimes they have not yet committed, but will. Although drawing inspiration from science fictional examples, such as Minority Report, the ethical questions at the heart of the series have implications for the widespread practice of preventive detention.

To date, the series has looked at the arguments found in a classic set of papers from Christopher New and Saul Smilansky. Part one covered New’s argument, which claims that there is nothing ethically improper about punishing a person before they commit a crime, although there are some obvious epistemic limitations on this. Part two looked at Smilansky’s response to New. Smilansky argued that pre-punishment is ethically impermissible because it fails to accord proper respect to a person’s capacity to refrain from morally improper conduct. Part two also looked at New’s response to this argument which pointed out that respect can pull in the opposite direction too. If someone has declared an intention to break the law, why is it not respectful to assume they will be true to their word and punish them before they do so?

As I said originally, the New-Smilansky essays are probably the classics in this particular area. But many more philosophers have chimed-in in recent years. Now, I can’t possibly look at all the arguments that have been made, but I will look at one, coming from an article by Roy Sorensen entitled “Future Law: Prepunishment and the Causal Theory of Verdicts”.

In the remainder of this post, I will cover Sorensen’s argument. I do so in two stages. First, I will consider the structure of his argument and explain how it responds to the original argument offered by New. Second, I will examine the deeper justification that Sorensen offers for his argument.


1. The Causal Asymmetry Argument
As you recall from part one (and two), New’s central thesis could be summed up as follows:

Temporal Neutrality Thesis: It is morally acceptable to punish people both before and after the commit a crime, provided we know (or believe beyond a reasonable doubt) that they will commit the crime.

Epistemic Constraint Thesis: The only thing that really prevents us from prepunishing people is that we usually lack proper epistemic access to future crimes.

Although it might tempting for critics of this position to reject the temporal neutrality thesis, Sorensen avoids doing so directly. Instead, he offers an alternative thesis that does not reject the temporal neutrality thesis outright, but tends to have its falsity as an implication.

Sorensen’s alternative thesis is that verdicts which purport to justify the imposition of a punishment — such as the verdicts reached in a criminal trial — must be causally related to the crimes that underpin them in the appropriate manner. Specifically, the crime for which the punishment is imposed must cause the verdict. We can call this the causal asymmetry thesis since it holds that crimes must cause verdicts; and verdicts cannot cause crimes. In other words, it holds that there is an asymmetry between the causal powers of crimes and verdicts:

Causal Asymmetry Thesis: A verdict of punishment (Vp) for a crime C is justified, if and only if C causes Vp; Vp cannot be justified if Vp causes C.

Before considering the deeper justification for this thesis, a couple of limitations and implications are worth noting.

First, the thesis claims that verdicts of punishment must be caused by the crimes for which the punishments are imposed. It does not claim that punishments must be caused by the verdicts. This is a subtle, but nevertheless significant, difference. Pre-trial detention is common in many jurisdictions, and that detention can be taken into consideration when a final verdict of guilt is reached. For instance, a person who served six months in jail pre-trial will have that six months included as part of the one year sentence that is finally imposed on them. Sorensen’s thesis does not challenge the propriety of this practice.

One can see why. First, it’s an extremely common practice and such practices tend to go unquestioned in some dialectical contexts. Second, and perhaps more importantly, it’s not central to the original debate sparked by New. New was arguing that punishment could be justifiably imposed pre-crime, i.e. before a crime was actually committed. He was not talking about the justifiability of punishments post-crime. Indeed, he took the justifiability of those punishments for granted. In the case of pre-trial detention, the crime has already taken place, it’s just the verdict that has not. If the pre-verdict detention is punitive, it still post-dates the crime.

Despite the understandability of Sorensen’s position, the notion that punishments can be justifiably imposed pre-verdict, despite the fact that verdicts themselves need to be caused by the crimes, is odd. Sorensen hints at this oddness when he suggests that a person who is detained pre-trial, but eventually acquitted, could say that their pre-trial detention was not a form of punishment. Conversely, the person who was eventually found guilty could say that they had been punished by the pre-trial detention and have their post-trial sentence reduced as a result. But can it really be the case that the eventual verdict has a retrospective causal effect of this sort? This seems to raise the same kinds of question as did New’s suggestion that people could be pre-punished.

The other point worth addressing before moving on is that the causal asymmetry thesis can be used to explain why punishments are thought to necessarily post-date crimes. The reason is that, from a temporal perspective, causes usually precede their effects. Thus, in the normal run of events, pre-punishment is impermissible. But if time travel is possible, this need not be the case. Consider Bruno, who is sentenced to be punished for committing a murder in the future, but escapes via a time machine into the past. The future police procure their own time machine, follow him into the past, and punish him there. This sequence of events is depicted in the timeline below, with the letter E being used to represent the events and Ts being used to represent the times at which they take place.

On the face of it, the imposition of the punishment in the past looks to justified, and this seems to be because of the causal sequence of events: Bruno’s crime causes the verdict, not vice versa. The point can be emphasised using Lewis’s famous distinction between personal time and external. As Lewis argued, in time travel cases, it is important to disambiguate the different timelines involved. As follows:

Personal Time: The sequencing of the events from the perspective of the person who travels through time. This is always linear and forward-moving. The person continues to grow old, their hair lengthens etc.

External Time: The sequencing of events from a neutral, or third-person standpoint. This follows the sequencing of historical dates such 1901, 1902 and so on.

If we are looking at things from the perspective of personal time (e.g. Bruno’s perspective), then it is indeed true that crimes must precede verdicts of punishments. But if we are looking at things from the external perspective, this need not be so. What’s going on here is that Lewis’s concept of personal time is designed to maintain the ordinary relationships of cause and effect, whereas the concept of external time is not. So the reason why it looks like punishments must post-date crimes is because we yearn for the appropriate causal sequencing, not because the temporal neutrality thesis is false.

Now, I’m a big fan of time travel and its associated philosophy — you’re talking to someone who managed to sit through the entirety of Primer here — but I take it that this example is more fun than serious. The jury is still out on whether time travel is logically/metaphysically possible and what precise implications this would have for the notion of an external and personal timeline. Still, even if it is possible, in precisely the form envisaged in Bruno’s case, there is an obvious philosophical worry. It could be that, despite what has been said, the verdict of punishment does cause the crime. This could be the case if there is a closed temporal-causal loop between all the events depicted above such that: (i) E2 (the verdict) causes E3 (the time travel); (iii) E3 causes E4 (the punishment); (iii) E4 causes E1 (the crime); and (iv) E1 causes E2.

Would such a closed temporal-causal loop pose a problem for Sorensen’s theory? Looking at the deeper justification Sorensen offers for his thesis will help us to answer that question.


2. The Need for Grounding
Sorensen’s deeper justification for the Causal Asymmetry Thesis turns on the notion of appropriate grounding. Roughly, the idea is that every truth-bearing or justifiable statement needs an appropriate grounding. That grounding can vary from case to case, but it needs to be there. In the case of verdicts of punishment, the grounding is causal in nature.

The argument that Sorensen makes would appear to have roughly the following form:

• (1) Where P is some proposition or claim, P is justified or true if and only if P is appropriately grounded in something else (G), where G is P’s object. 

• (2) A verdict of punishment, Vp, is claim that it is justifiable to impose a punishment on someone for a crime C. 

• (3) Therefore, Vp is justified if and only if it is appropriately grounded in C. 

• (4) The appropriate grounding for a claim like Vp is causal in nature. 

• (5) Therefore, Vp is justified if and only if it is causally grounded in C.

This is a tricky argument to evaluate, mainly because Sorensen doesn’t offer anything like a formal presentation of it. What’s given above is my own reconstruction, and it’s not pretty. Still, reading between the lines, I find Sorensen trying to offer defences of something like premises (1) and (4). Hence, I think it is a reasonable reconstruction of what he was trying to say.

Sorensen’s defence of (1) points to a number of analogous cases in which an appropriate grounding relationship seems to be necessary. He then inductively generalises from those cases to the principle stated in (1). He actually uses a joke as the basis for one of these cases, and I can’t resist sharing that joke here:

Colonel Henry Watterson was a newspaper editor during the late nineteenth century era of American railroad travel. As a journalist, he and his reporters were issued special railroad passes. These passes were non-transferable. This restriction was widely violated. During one crackdown, a conductor con- fronted a young man who presented the pass of a certain Mr. Smith who was a correspondent for Watterson’s paper. The suspicious conductor told the nervous man that Colonel Watterson happened to be on the same train. He escorted ‘‘Mr. Smith’’ for authentication. The conductor asked, ‘‘Mr. Watterson, is this man your employee?’’ To the young man’s amazement, the answer was ‘‘Yes’’. The conductor left. The relieved man began to effusively express his gratitude. ‘‘Compose yourself, young man. I don’t happen to be Colonel Watterson, but I am riding on his railroad pass.’’

I don’t know if that is actually funny, or whether I’ve been reading philosophy papers for so long that my sense of humour has become distorted, but nevertheless I smiled when I read that. And the cheap laugh has a payoff too. It makes a serious point about grounding relationships. As Sorensen points out, the punchline works because it reveals something important about chains of verification. One person can only vouch for the identity of another if their identity has been appropriately vouched for. The “Colonel Watterson” in this case had his identity vouched for in the same manner as Mr. Smith. And since we were unsure about the identity of Mr. Smith, there is no reason why we should be more sure of Watterson’s identity.

Similar points are made about the Liar Paradox. Sorensen contends that the reason “This sentence is false” is so problematic is that it is not appropriately grounded. The truth or falsity of a sentence must be assessed against something else, either another sentence or the external world. For instance, the reason that the sentence “there is a blue car in my driveway” is true is because it conforms with the actual state of the world. That is, the sentence is grounded in the state of the external world. The liar paradox lacks this feature: it tries to ground itself in itself. To borrow Hofstadter’s term, the sentence forms a “Strange Loop”. Instead of reaching out to the external world for grounding, it reaches back in on itself. It is this that leads to the paradox, and to Sorensen’s claim that, generally speaking appropriate grounding is needed for all claims.

This then ties into the defence of (4). The reasoning here is based on the intuitive oddness of cases in which (4) is violated, i.e to cases in which Vp is not causally grounded in its object. Consider Judge Farsighted who convicts a woman for an offence he knows she will commit upon release from prison. He knows the woman will resent her imprisonment and, upon release, will seek revenge by attacking him. Sure enough she does this when released. The police arrest her but Judge Farsighted releases her since she has already served her sentence for this crime.

The problem here is that the judge’s verdict (Vp) forms a strange loop with its supposed grounding (the attack on him). He justifies Vp by appeal to his future attack, but Vp is what causes his future attack. It just doesn’t seem right that verdicts of punishment could become self-fulfilling prophecies in this manner. Indeed, if judgments did have this effect, their nature would be radically altered. As David Duffy pointed out in the comments to part two, a speeding fine that is imposed in advance of the speeding, at the request of the putative speedster, just doesn’t have the look and feel of a punishment. Rather, it feels more like the speedster is trying to buy a permission to speed, and it looks like the person who imposes the fine is granting that permission.

Sorensen makes a similar point about forgiveness and permission: to forgive a person in advance seems like giving them a permission to do it. But, of course, all of this links back to the time travel case discussed earlier. The problem with Bruno’s scenario is that it may form a Strange temporal-causal loop. Every event in the chain seems to be appropriately grounded — in particular, the verdict is causally grounded in the crime — but the sequence of events loops back on itself. The question is whether that renders the verdict unjustified?

The answer is that it’s difficult to say. Sorensen acknowledges that there may be some benign loops or ungrounded chains. For instance, he imagines the case of the infinite recidivist who repeatedly gets one year added to their sentence for trying to escape from jail. Though the chain of events at the heart of this case is ultimately without grounding, each event within the chain has an appropriate grounding. So what’s the problem?

The analogies with the cosmological argument in the philosophy of religion are palpable here and the dialectical moves will be the same. Some people will insist that chains of this sort need an ultimate grounding, while other will argue that everything’s fine so long as the each link in the chain has an appropriate grounding. I’m honestly not sure where I come down on this issue. In any event, the worry maybe a relatively minor one since it would only really seem to arise in the case of a closed temporal loop, and such loops — at least when it comes to punishments — will be rare. To say the least.

Anyway, there is much more to Sorensen’s paper, including many more playful thought experiments and analogies, but I’d best leave it there. Hopefully, the gist of the overall argument is clear enough: pre-punishment is not (usually) morally acceptable because verdicts of punishment must be causally grounded in the crimes for which the punishments are imposed. To reverse the causal relationship between crime and verdicts of punishment would be do to something other than impose a punishment.