Responses to Common Types of Objections to a Motive-Utilitarian Theory of Punishment

299 days until I attend my first class, and 49 hours until I introduce myself to the philosophy department.

If I get a chance to meet any of the graduate students, I intend to offer to read any papers they may be writing. This will give me a chance (1) to get to know them and their work, (2) to see the current state of the debate, (3) to see what graduate students are expected to produce, (4) to test some of my own ideas through my own comments and their responses to my comments.

My paper on punishment is coming along well. I have rewritten it for a general office, and I have finished the first draft. I am going through it now on a second draft. It is currently 9000 words long. It has taken me 2 weeks to write from start to finish, with a full-time job and other commitments I have not yet given up (but which I will give up when I start school). This was a self-test of my ability to do the types of things that will be expected of me as a student.

What follows below is a section of the current draft that examines two types of arguments that might be raised against a motive-utilitarian theory of punishment. (1) That the theory fails to justify the punishment of people who should be punished, and (2) the theory calls for the punishment of people who should not be punished. It would be possible to exhaustively go through each possible counter-example. However, the section below tells of the types of responses that could be made against these types of objections.

Oh, and I know - as I have argued in the past - that mine is not a motive-utilitarian theory of punishment. Yet, the concept of "motive utilitarianism" at least gets close to what I defend - close enough for the discussion to continue.

The Range of Punishment

In his book, Boonin raises a couple of different types of objections to almost every moral theory. One is that the theory justifies too little - there are people who deserve punishment according to the theory, but who may not be punished. The second is that it justifies too much – there are people who have done no wrong according to the theory, but who may be punished.

The moral aversion thesis can be targeted with each of these objections. There are people who commit acts of a type that people generally have reason to promote aversions to who may not be legitimately punished.

Consider a person who breaks a promise to meet a parent for lunch. We have many and strong reasons to promote an aversion to breaking promises. However, this person should not be hauled up before a judge.

Or – to use one of Boonin's favorite examples – the case of a person who uses a car that has failed its emissions test to drive a sick friend to the hospital. This person displays a proper set of motives, but he is still subject to punishment for breaking the law.

Not Punishing the Guilty

One of the types of arguments that Boonin frequently uses against various theories of punishment is that they "punish too much". He raises an objection that there are people who meet the criteria for justified punishment established within the theory, but where punishment is not, in fact, justified.

He could raise that type of objection to the present theory by pointing out that people generally have many and strong reasons to promote aversions to lying and promise-breaking. This means that they have reason to punish liars and promise-breakers, as a way to promote that aversion. Yet, the law would not punish a person who lied to a friend about not having enough cash to pay for lunch, or who broke a promise to visit a friend. The theory, then, justifies the punishment of people whom it would not be permissible to punish.

Since I am defending this as a consequentialist theory, it is permissible to bring in consequentialist considerations as to the permissibility of state punishment in these cases. If the state were to get involved in investigating every instance of lying and promise-breaking that takes place, it would require such a massive increase in the size of the police force and the court system. The costs would be tremendous – perhaps even prohibitive.

Consequently, there are reasons to require that, in these cases, punishment is left up to private individuals. This, in turn, would limit the types of punishment permitted to those that individuals can carry out on their own – such things as verbal condemnation and refusing to interact with the liar or promise-breaker (because they cannot be trusted). Violent responses to these wrongs would be prohibited.

Another type of case where we make certain actions immune to legal punishment, even when there is reason to condemn or punish the actions, is in the realm of freedom of speech. For utilitarian reasons, there are reasons to prohibit the use of violence in response to mere words in a large number of cases. This is because, where violence against mere words is permitted, it tends to produce bad consequences.

Consequently, we have adopted a prohibition to responding to mere words with violence – a prohibition expressed in terms of a right to freedom of speech.

Yet another restriction on punishing wrongdoers is that the wrongdoer must actually violate a statute. Punishing a person for an act that is not law would be counted as a type of ex post facto law. The authority to punish after the fact for actions that were not illegal when they were performed has a long history of abuse. Sovereigns would invent laws, then arrest their political opponents for actions performed that were not criminal at the time. To prevent this type of abuse, governments adopt a principle that allows punishment only for wrongdoings that were crimes at the time the action took place.

In general, there are reasons (motives) not to punish every wrongdoer. Any objection to the motive-utilitarian theory based on the claim that it fails to punish the guilty must consider these possible reasons why a motive utilitarian would not want to punish the guilty in those circumstances.

Punishing the Innocent

On the other side of the coin, there are people who break the law for good reason – Boonin's example of a person driving a car that she knows has failed its emissions test to get a sick friend to the hospital. This is not a bad person. This is not a person that the "moral aversion" theorist has any reason to punish. Yet, she has broken the law and, according to Boonin, may legitimately be punished.

I disagree with Boonin on this matter. Such a person ought not to be punished. If the law calls for her punishment, then this is an example of a bad law – a law that ought to be changed.

There are several ways to create a law that respects the principle that good people cannot be justifiably punished.

One option is to write the exceptions into the law itself. A law against speeding can include an exception for cases where there is a medical emergency that is a matter of life and death. Prohibitions against assault and even killing another person often come with a built-in exception in the case of self-defense or the defense of another.

Alternatively, the law can be written in vague terms that require those who enforce the law to use moral judgment. The act being prohibited might be defined as "showing reckless disregard" or "with the intent of causing harm" that would exclude actions performed by good people.

Yet another option is to give people discretion as to when to enforce the law. The victim's discretion to press charges, the police officer's discretion as to give a warning or citation, the prosecutor's discretion to file charges, the grand jury's discretion as to whether to indict, the jury's discretion as to whether to convict, the judge's discretion as to overrule a jury's guilty verdict, and an executive's discretion to pardon, are all examples where the law provides opportunity to prevent a good person from being punished. The moral aversion thesis suggests treating these as a feature that exists to prevent the types of problems that Boonin uses in these objections.

On the subject of discretion, there is an argument that can be made in favor of a type of rule worship. People are given discretion so that they can help ensure that the law punishes only those that should be punished. However, individuals are at risk of using this discretion to act on explicit and implicit biases – allowing more white people to escape punishment than blacks, or bringing the law down particularly harshly on Muslims or punishing men more severely than women. To prevent these types of actions, one may argue for less discretion rather than more.

However, this does not invalidate the argument for discretion. It simply admits that there are competing interests that we must weigh against each other. It still remains the case that the good person ought not to be punished. It is still counts as a reason in favor of a modification in the law that it would reduce or eliminate these types of consequences.