The Ethics of Prepunishment (Part One)

Scene from Minority Report

One of my favourite science fiction films of the past decade — despite the presence of Tom Cruise as lead — is Minority Report which is based on a short story by Philip K. Dick. The film depicts an imagined future in which specially-reared mutants have the ability to foresee murders. Capitalising on this ability, the police force set up a pre-crime division. This division tracks down and incarcerates people before they commit a murder. In other words, it pre-punishes people for crimes that they have not yet committed, but will.

The film is great. It’s vision of the future is fascinating, with many interesting design elements that are not central to the plot. I highly recommend it (although there is the ending...). The short story is also great, but then again a lot of Philip K. Dick short stories are.

Many potential avenues for philosophical discussion are opened up by the plot, but the one I want to focus on here is the morality of the system of prepunishment itself. Philosophers think and write about everything, so it should come as no surprise to learn that they have thought and written about this topic at length. The classic discussion was an exchange between Christopher New and Saul Smilansky in the journal Analysis in the 1990s. But several more philosophers have chimed-in in the intervening years, many directly referencing Minority Report in their work.

I want to focus on some of the arguments in this area over the next few blog posts. I’ll start today by going back to New’s classic article on the topic “Time and Punishment”. I’ll try to set out his argument as best I can in this post before going on to look at the response from Saul Smilansky in the next.


1. Some Background
Before getting into the nitty gritty of New’s argument, some background is in order. First, we should note that we are starting out with the assumption that normal punishment (“postpunishment”) is morally acceptable. In other words, it is okay to punish a person after they have committed a crime. The reason being that there is a desert-relation subsisting between the person and the crime. This relation warrants their punishment. I have covered the topic of the desert relation before.

It is the need for this desert-relation that renders punishment of the innocent (another topic I’ve covered before) so morally abhorrent. We can’t wantonly pick out innocent people and fine them, or incarcerate them or otherwise harm them simply because we’d like to, or simply because it would serve some desirable end. Innocent people don’t deserve to be treated like that. They lack the necessary desert-relation. (Or so the argument goes, at any rate).

But is the same true of people who are punished before they commit crimes? Superficially, it seems like it is: once again the desert-relation is absent. But this may be because we are viewing the situation from a temporally biased direction. If we know the person is going to commit the crime, then what’s the problem? The desert-relation does not yet exist, but it will.


2. New’s Argument for Prepunishment
No doubt, the whole notion of prepunishment will seem logically and metaphysically incoherent to many. But New wants to argue that it is not. He argues that there are no logical, metaphysical or moral impediments to pre-punishment, only practical and epistemic ones. In other words, he thinks it possible to defend the following two theses (my interpolation, based on other stuff I’ve read):

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.

To support both theses, he develops a somewhat elaborate thought experiment. One that is coherent and consistent, and in which prepunishment seems acceptable. He then defends the conclusion of the thought experiment from a variety of counterattacks.

The thought experiment is as follows:

Alaskan Speeding: Algy is a well-known speedster who intends to break the speed limit on a remote, unpatrolled Alaskan highway (Wilderness One) tomorrow morning at 10.31. He rings up Ben, a local traffic policeman, to inform him of his intention. He knows that Ben and the police do not have the resources to reach and patrol the highway at that time. He also knows that it will be possible for him to flee the jurisdiction soon after committing the offence. So he offers Ben a deal. If Ben fines him today for the speeding, before he commits the offence, he will pay the fine in full. However, if Ben waits until after 10.31 tomorrow morning, Algy will flee the jurisdiction and never pay the fine. Ben issues the fine today and the following morning Algy breaks the speed limit on Wilderness One.

New’s argument is that there is nothing objectionable about prepunishment in this case. The desert relation is present, and we have knowledge (or belief beyond reasonable doubt) as to guilt. If we still think it is wrong then we need to explain why.


3. Objections and Limitations
New deals with a variety of objections in his article. He does so in somewhat disorganised and rapid-fire manner. At least, in my opinion he does. I’ll try to cover what I think are the most interesting objections and New’s responses thereto. New’s responses highlight some significant limitations in his argument, so I’ll be covering those too.

First up is the objection that the example only seems compelling because we are punishing Algy for planning to commit an offence, not for actually committing one. There are such things as crimes of planning (e.g. the crime of conspiracy), so it is not surprising that we think it okay to punish Algy for planning to speed. New emphatically denies this interpretation. Suppose the fine that Ben imposes is exactly identical to the fine imposed for those committing the offence of speeding, suppose that it is the offence of speeding that is written on Algy’s record. The pre-punishment still seems unobjectionable. Or at least that’s what New thinks.

Related to this is the claim that Algy is being punished for attempting the offence not for committing it. This is subtly different from being punished for planning the offence. Without getting into too much detail — I’ve discussed the topic before — punishment for attempts sometimes mirrors punishment for completed offences. This might trick us into thinking we have accepted pre-punishment when all we have accepted is punishment for attempts. There’s a lot of finicky theoretical concepts to untangle here. All I’ll say is that what Algy has done — i.e. declared an intention — wouldn’t seem like enough for him to have attempted the offence. An attempt usually requires more that a declared intention. That said, if the argument for prepunishment goes through, we may be forced to reconsider how we view attempt liability.

The next objection is epistemic in nature. It points out that in order for punishment to be justified we must know that the offence has been or will be committed. In other words, judgments as to punishment must meet a knowledge criterion. But we could never meet that criterion in the case of future crimes: we could never actually know that the offence was going to be committed at the time of the punishment.

New points to several flaws in this argument. The main one being that the knowledge criterion for punishment isn’t nearly as strong as this objection purports. We are typically uncertain about what happened in the past, but our judgments that punish past conduct are still deemed to justifiable. All we need is proof beyond a reasonable doubt. Why couldn’t the same be true of the future? Why couldn’t we believe beyond a reasonable doubt that a crime was going to be committed? In fact, isn’t this exactly what is true in the case of Algy. Ben is left in no reasonable doubt as to the fact that Algy will commit the crime: Algy has told him he will; and Algy’s past record suggests that he will definitely follow through on his intention. The other point to make is that even if a relaxed version of the knowledge criterion could not be met in these cases, it is still worth speculating so as to see whether there are any moral as opposed to epistemic objections to future punishment. (This is part of the epistemic constraint thesis, highlighted above)

That brings us to the next objection, one that derives from the morality of punishment. Under consequentialist theories of the desert-relation it looks like future punishment could be justifiable since it could lead to better outcomes. But that’s not really interesting since consequentialist theories also seem to support punishment of the innocent (in certain cases) and that is deemed morally objectionable. The more interesting question is whether retributivist theories, which rule out punishment of the innocent, can force the rejection of pre-punishment.

The initial feeling is that they might. Retributivism is about achieving moral balance: an eye for an eye, a tooth for a tooth, and so on. In the case of the innocent person there is no moral disequilibrium created by their actions and hence no justification for their punishment. The same is true of Algy in the prepunishment scenario: he has not created a moral disequilibrium so punishment cannot be justified.

New thinks this is wrong. He calls for a distinction to be drawn between people who will never commit the crime for which they are punished and people who have not yet committed the crime for which they are punished. It is true that, for the former group, no moral disequilibrium is created, but it is not true for the latter. They do ultimately create a moral disequilibrium, and so do warrant punishment. It's just that it comes after the punishment, not before.

To support his point, New asks us to consider an analogy. If you buy a TV from me, you can justifiably pay for it either before or after delivery. The movement of the TV from me to you creates a disequilibrium of sorts, but as long as it is corrected at some stage it does not really matter when. The same is true of retributive punishment. The misdeeds of the punishee create the disequilibrium, but the moral books can be balanced by punishment either before or after the event.

But this reveals an important limitation in New’s argument, one that he himself recognises. Under his theory, it still must be the case that the moral disequilibrium is created. Thus, forms of punishment that would actually rule out the future performance of the crime would be impermissible. New uses the obvious example of the death penalty here, but incarceration could also have this preventative effect.

This is a significant limitation since it seems to disconnect New’s argument from the debate over preventive detention. Prison sentences are frequently extended, and terrorists detained indefinitely, because of their future risk of committing a crime. The practice is common, even more so in the aftermath of the war on terror. What’s more, preventive detention is used in medicine too, for instance in the quarantining of those with certain infectious diseases. While we could argue over the propriety of some of these preventive punitive practices, New’s argument seems to rule them all out. That looks counterintuitive: can we really not act so as to prevent future crimes?

There’s an easy solution to this: yes, we can act so as to prevent future crimes, we just can’t punish people in order to prevent crimes. In other words, we can engage in non-punitive preventive practices. But this solution looks weird in light of New’s claim that we can punish people for future crimes, provided they actually will eventually commit the crimes. New seems to allow for the commission of crimes in order to ensure moral balance. But surely it's better to avoid moral imbalance in the first place? New may not deny this. He may just be arguing for the propriety of prepunishment in an extremely limited set of cases. But then one has to wonder about the usefulness of his argument. Does it really prove anything interesting?

That pretty much brings us to the end of New’s article. We’ll look at Smilansky’s counterargument the next day.