When someone is prepunished, they are punished for a predicted crime they will or would commit. I argue that cases of prepunishment universally assumed to be merely hypothetical—including those in Philip K. Dick’s “The Minority Report”— are equivalent to some instances of the real-life punishment of attempt offenses. This conclusion puts pressure in two directions. If prepunishment is morally impermissible, as philosophers argue, then this calls for amendments to criminal justice theory and practice. At the same time, if prepunishment is (...) not imaginary, then the philosophers who reject it cannot claim that their view is supported by common sense. (shrink)

I shall argue that compatibilism cannot resist in a principled way the temptation to prepunish people. Compatibilism thus emerges as a much more radical view than it is typically presented and perceived, and is seen to be at odds with fundamental moral intuitions.

According to Christopher New, prepunishment is punishment for an offence before the offence is committed. I will first analyze New’s argument, along with theepistemic conditions for practicing prepunishment. I will then deal with an important conceptual objection, according to which prepunishment is not a genuine kind of ‘punishment’. After that, I will consider retributivism and present conclusive reasons for the claim that it cannot justify prepunishment without leading to paradoxical results. I shall then seek to establish that from the utilitarian (...) point of view it is possible to provide a plausible justification of this practice. Finally, I shall attempt to defend the claim that the fact that utilitarianism can justify prepunishment in a satisfactory way is clearly a favourable characteristic of this ethical position. (shrink)

The belief that some misfortunes are punishments sent from God has been affirmed by many different cultures and religions throughout human history. The belief has proved a pervasive one, and is still endorsed today by many adherents of the great western religions of the Judaeo-Christian tradition. Invariably, what is believed is that a present misfortune is divine punishment for a past sin. But could a present misfortune in fact be divine punishment for a future sin? That is, could God prepunish (...) people for their future transgressions? The aim of this paper will be to show that there are solid philosophical grounds for supposing that he could and would do so. (shrink)

The poster boy for my paper is the King's Messenger in Lewis Carroll's Through the Looking Glass. Recall that since the White Queen lives backwards, her memory works forwards. She pities Alice who can only remember things after they happen. Alice asks which things the Queen remembers best: `Oh, things that happened the week after next,' the Queen replied in a careless tone. `For instance, . . . there's the King's Messenger. He's in prison now, being punished: and the trial (...) doesn't even begin till next Wednesday: and of course the crime comes last of all.' (Chapter V) Is the King's Messenger being treated unjustly? Why not prepunish people for their future crimes? True, it is generally easier to have knowledge about past crimes than future crimes. But is unpredictability the only problem with prepunishment? (shrink)

This paper targets a nearly universal assumption in the philosophical literature: that prepunishment is unproblematic for consequentialists. Prepunishment threats do not deter, as deterrence is traditionally conceived. In fact, a pure prepunishment legal system would tend to increase the criminal disposition of the grudgingly compliant. This is a serious problem since, from many perspectives, but especially from a consequentialist one, a primary purpose of punishment is deterrence. I analyze the decision theory behind pre and postpunishments, which helps clarify both what (...) deterrence is and how it operates in consequentialist justifications of punishment. I end by sketching a road map for the future of prepunishment as artificial intelligence and other technological advances generate increasing possibilities for its use. (shrink)

The concept of desert is familiar to everyone. We have all heard that wrongdoers deserve punishment, that the virtuous deserve happiness, that hard workers deserve success, that innocent victims deserve compensation, that everyone deserves an adequate level of medical care, that no one deserves to be born handicapped, and so on. ;From these sayings, it is clear that desert is an evaluative concept. It therefore belongs to the class of concepts that includes rightness, justice, rationality, goodness, beauty, and others. Desert (...) is thus a familiar, evaluative concept. ;It is ironic, then, that desert has not received anything like the amount of philosophical attention enjoyed by the other evaluative concepts that I mentioned. In this dissertation, I focus my attention on desert. ;I begin, in Chapter 1, by trying to explain why desert has been neglected by philosophers. In Chapter 2 I argue that much of the received philosophical wisdom about desert is false. Chapter 3 is dedicated to "institutional" theories of desert. These theories make desert relative to institutional rules or purposes. Chapter 4 explores some views about the purported connection between desert and the emotions. In Chapter 5 I argue that a well-known attempt to justify desert-claims fails, and that this failure is the result of mistaken views about the connections between desert and the concepts of moral obligation and of value. One aim of Chapter 6 is to reveal the defects of some prominent theories of desert of wages. A deeper aim is to expose a fundamental defect in a standard way of looking at desert in general. ;In Chapter 7, I present my own theory of desert. It contains, among other things, a catalogue of bases for desert and an explanation of "all-in desert" in terms of "prima facie desert" and "weight." The structure of my theory of desert is therefore similar to the structure of W. D. Ross's theory of moral rightness. (shrink)

Saul Smilansky holds that there is a widespread intuition to the effect that pre-punishment – the practice of punishing individuals for crimes which they have not committed, but which we are in a position to know that they are going to commit – is morally objectionable. Smilanksy has argued that this intuition can be explained by our recognition of the importance of respecting the autonomy of potential criminals. (Smilansky, 1994) More recently he has suggested that this account of the intuition (...) only vindicates it if determinism is false, and argues that this presents a problem for compatibilists, who, he says, are committed to thinking that the truth of determinism makes no moral difference (Smilansky, 2007).In this paper I argue that the intuitions Smilansky refers to can be explained and vindicated as consequences of the truth of a communicative conception of punishment. Since the viability of the communicative conception does not depend on the falsity of determinism, our intuitions about pre-punishment do not clash with (what Smilanksy calls) compatibilism. And if the communicative theory of punishment is – as Duff (2001) suggests – a form of retributivism, the account also meets New's (1992) challenge to retributivists to explain what is wrong with pre-punishment. (shrink)

Recent years have seen mounting challenge to the model of the criminal trial on the grounds it is not cost-effective, not preventive, not necessary, not appropriate, or not effective. These challenges have led to changes in the scope of the criminal law, in criminal procedure, and in the nature and use of criminal trials. These changes include greater use of diversion, of fixed penalties, of summary trials, of hybrid civil–criminal processes, of strict liability, of incentives to plead guilty, and of (...) preventive orders. The paper will assess the implications of these changes for the function of the criminal law, assessing the reasons behind them, and examining whether or not they are to be welcomed. Identifying the larger import of these changes draws attention to the changing relationship between state and citizen as well as changes in the nature of the state itself. These can in turn be attributed to a jostling among the different manifestations of the authoritarian state, the preventive state, and the regulatory state. These changes have profound normative implications for a liberal theory of the criminal law that require its re-articulation and its defence. A modest start may be to insist that where the conduct is criminal and the consequences are punitive the protections of criminal procedure and trial must be upheld. (shrink)

In a 2010 paper published in this journal, Robinson responded to Smilansky’s argument that compatibilists do not have a principled reason to reject prepunishment. Smilansky argues that, due to the nature of a compatibilist universe, offenders will actually carry out their intended offences and are rightfully held responsible for them. As a result, there is no moral demand to wait for the offence to occur before punishing the offender. Smilansky has responded to a number of objections, but has not addressed (...) Robinson’s arguments. This paper will defend Smilansky’s position against Robinson’s claims and conclude that Smilansky’s position remains undefeated. (shrink)

It has been suggested that people who will face hardship in the future may deserve our sympathies now. Similar intuitions can be adopted regarding the deservingness of jobs and scholarships, where andidates may be deserving now based on their expected future performance. To accommodate these intuitions, some have contended that desert is sometimes forward-looking. In this paper, I argue that it is a mistake to think of desert as forward-looking. The forward-looking view struggles to explain the deservingness of subjects that (...) have conflicting desert-making features in the future, it requires that we accept asymmetries and exceptions in desert theory and that we commit to a form of moderate determinism. In response, I present a comparative approach that offers a unified framework for explaining forward-looking cases without the drawbacks associated with the forward-looking view. (shrink)

I have argued recently that compatibilism cannot resist in a principled way the temptation to prepunish people, and that it thus emerges as a much more radical view than is typically presented and perceived; and is at odds with fundamental moral intuitions (Smilansky 2007a). Stephen Kearns (2008) has replied, arguing that ‘Smilansky has not shown that compatibilism cannot resist prepunishment. Prepunishment is so bizarre that it can be resisted by just about anybody’. I would like to examine his challenging arguments.

Through the criminal justice system so-called dangerous offenders are, besides the offence that they are being convicted of and sentenced to, also punished for acts that they have not done but that they are believe to be likely to commit in the future. The aim of this paper is to critically discuss whether some adherents of retributivism give a plausible rationale for punishing offenders more harshly if they, all else being equal, by means of predictions are believed to be more (...) dangerous than other offenders. While consequentialism has no problem, at least in principle, with this use of predictions most retributivists have been opponents of punishing offenders on the basis of predictions. How can an offender deserve to be punished for something that he has not done? But some retributivists like Anthony Duff and Stephen Morse have argued in favor of punishing offenders who are considered to be dangerous in the future more harshly than non-dangerous offenders. After having reconstructed their arguments in detail, it will be argued that both Duff’s and Morse’s attempts to give a retributivistic justification have several shortcomings. (shrink)

Conduct preparatory to the commission of a crime typically comprises acts such as gathering vital information, making initial contact with the prospective victim, reconnoitering the site of the crime, obtaining materials and tools, and gaining expertise knowledge. Many Western penal codes categorically distinguish preparatory actions from a punishable attempt in attending to cases whereby an actor engages in conduct planned to culminate in the commission of an offence. The article focuses on the desert of an actor who, after having formed (...) an intention to commit a crime, conceives a plan and gets underway by performing acts of preparation - without commencing to commit the substantial offence, let alone bringing about its consummation. The actor’s failure to carry out the offence may be attributed to a vast array of causes, ranging from a decision on his part, prompted by a sudden change of heart, to discontinue the operation, through an inability to gain access to crucial information or tools, to the disappearance of the targeted victim or property. The article is divided in two parts. The first part addresses the factors which affect the blameworthiness of an actor intent on committing a crime as he gradually implements his plan by laying the groundwork for his undertaking. By considering the punishment of acts preparatory to the commission of a crime in the light of the principle of individual autonomy and the dilemma of moral luck, it explores the various respects in which the culpability of an actor who only engages in preparatory conduct differs from that of an actor who commences to commit the targeted offence. The second part takes the analysis a step further by probing the exceptional conditions under which preparatory actions may be sufficiently wrongful to warrant pressing the criminal law into service to provide for a punitive response. In this respect, attention focuses on such factors as the operational significance of the preparatory conduct; the acquisition of specialized tools and equipment; the organizational support available; and the seriousness of the substantial offense targeted. (shrink)

We “prepunish” a person if we punish her prior to the commission of her crime. This essay discusses our intuitions about the permissibility of prepunishment and the relationship between prepunishment and compatibilism about free will and determinism. It has recently been argued that compatibilism has particular trouble generating a principled objection to prepunishment. The failure to provide such an objection may be a problem for compatibilism if our moral intuitions strongly favor the prohibition of prepunishment. In defense of compatibilism, I (...) argue that while no objection to prepunishment is entailed by the central tenets of compatibilism, this does not necessarily show that compatibilism conflicts with our moral intuitions. And while there may be no distinctly compatibilist objection to prepunishment, there are common-sense objections to prepunishment of which the compatibilist can make use, at least under actual-world circumstances. And, while these common-sense objections might be inoperative in certain non-actual circumstances, it is not clear that support for prepunishment would be unintuitive in these circumstances. (shrink)