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.

In a series of recent papers, Saul Smilansky has argued that compatibilists have no principled way of resisting the view that prepunishment is at least sometimes appropriate, thus revealing compatibilism to be a radical position, out of keeping with our ordinary moral judgments. Recent attempts to resist this conclusion seem to have overlooked the biggest problem with Smilansky’s argument, which is this: Smilanksy argues that the most obvious objection to prepunishment—namely, that it is inappropriate because it involves punishing the innocent (...) for crimes they have not committed—is unavailable to compatibilists. If compatibilism is true, he says, then if it is causally determined that someone is going to commit a crime, the fact that one has not yet done so is a mere temporal matter bearing no moral significance. I argue that there is no reason for compatibilists to accept this point. Compatibilists can (and should) resist Smilansky's claim that one’s not yet having committed a crime is morally insignificant and so resist the temptation to prepunish. (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)

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)