I once heard someone maintain something absolutely absurd: A life in prison is just the price for committing murder, he said, and you are "free" to commit murder as long as you are willing to pay that price. Clearly this is crazy. A life in prison, execution—these are not "prices" for committing murder; they are punishments. But what exactly distinguishes a "price" from a "punishment"?
This is something that I’ve long intended to think about, but as I was working on my paper for ISUS X I found myself being forced to say a little about it and I wasn’t quite sure what I wanted to say. Or at least I wasn’t quite sure that what I wanted to say works. I have now received a little feedback on a draft of my paper from my co-panelist Jonathan Riley, at Tulane, and he has me even more worried about the line I want to take. So I am turning here for help.
In my paper, I assert that we are sometimes justified in punishing people for actions that are not morally wrong. I use punishment here in the "narrow" sense of externally-imposed punishments, including (but not limited to) legal punishments. (This clarification may seem unnecessary, but my ISUS session is about Mill, and part of what is at issue between the panelists is whether Mill counted guilt as a punishment.) I give the example of a penalty applied to someone who pays her taxes a few months late. At some point late payment shades into nonpayment, which is morally objectionable, but payment that is only a few months late seems to me to be morally okay in most instances, assuming that you pay the penalty (and the interest) that you are assessed. Still, it would certainly be inconvenient if too many people did the same thing, so using a penalty to discourage late payment seems eminently reasonable.
In the paper, I anticipate the response that the tax penalty is merely a price for late payment, not a "real" punishment. I don’t necessarily disagree with this. I do, though, find it very tricky to distinguish the two. What is the difference between the tax penalty and something like a fine for littering, for instance? The latter seems clearly to be a punishment, albeit a mild one. Both, though, are forced extractions of money by the state for the purpose of deterring people from a course of action, and the tax penalty may easily involve more money than the fine.
I claim in my paper that the difference is that in the case of the litterer, but not the late payer, we think that the financial penalty ought to be suffered in addition to guilt. Even if this answer is right, it may not go far enough. But in addition to asking for general thoughts on the punishment/price distinction, let me ask a more specific question. My third ISUS co-panelist, D. G. Brown, claims that Mill analyzes what it is for actions to be wrong in terms of the pro tanto justifiability of externally-imposed punishments. (The action is wrong if punishment is pro tanto justified, in other words, even if there are reasons not to follow through and impose the punishment.) If the tax penalty counts as a punishment, then this analysis entails that it is wrong to pay your taxes late. Is it possible for someone with this understanding of what it is for actions to be wrong to draw the punishment/price distinction in a way that is plausible and that lets the view avoid this implication?
I’m hoping the answer is no.