The consequentialist problem with prepunishment

Abstract

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 preand 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. If the police could know that a person will commit a crime tomorrow, then could they reasonably decide to “prepunish” the predicted offender today? This was the question first asked by Christopher New [1992], who argued that such a practice, if made feasible, would be morally permissible. The intuition against prepunishment, New claimed, results from “attaching improper moral significance to an insignificant temporal fact” [37]. Subsequently, many philosophers have disagreed with New on nonconsequentialist grounds. Consequentialists think that the practice of punishing should aim to produce good consequences. One of the primary ways the threat of punishment produces good consequences is by deterring crime. And the most obvious way that the threat of punishment deters crime is by making people fear that they would be punished in response to their criminal act. Virtually everyone assumes that prepunishment is unproblematic, or dramatically less problematic, for consequentialists. For those who think that prepunishment is problematic, this is viewed as a reason to doubt consequentialism. Underlying the belief that prepunishment is unproblematic for consequentialists is the assumption that the deterrent value of prepunishment is similar to the deterrent value of postpunishment. This starts with New (1992, 38): “In preas much as in postpunishment the penalty imposed may deter potential offenders, as also the actual offender, from committing other offences in the future.” In his influential reply, Smilansky (1994, 50) agrees with New at least to that extent. He writes, “We need not concern ourselves here with [consequentialist objections]. I allow prepunishment may be useful. . . . The crucial question is whether someone who believes in nonconsequentialist constraints of justice has the resources to reject [prepunishment].” Subsequent discussions of prepunishment have emphasized its supposed deterrent value. Statman (1997, 129) writes, “Utilitarian benefits that can be gained by punishing after crime (‘postpunishment’) can also be gained by prepunishment, e.g., deterring other potential criminals. . . . It is a puzzle mainly for retributivists.” Petersen (2014, 140) writes: 1A separate but rich line of inquiry concerns the relationship between prepunishment and free will. This debate started with Smilansky (2007) and has also proven popular.