Smilansky’s non-punishment paradox

Saul Smilansky's 10 Moral Paradoxes is a delightful book. The paradoxes are easy to appreciate and though it's written in a light and accessible style, it still has plenty of philosophical heft.

I'm intrigued by the paradox Smilansky labels the non-punishment paradox. Here's the gist:

Suppose that a state subjects criminal offense O to punishment P. P is so effective at deterring O that perfect deterrence is achieved: No one in the state commits O. (We'd need to stipulate a number of assumptions here about the consistency with which P is applied to O, the effectiveness of enforcement, the degree to which O's being subject to P is publicized, etc.) But suppose further that P is a "radically severe and disproportional punishment" — life imprisonment for jaywalking, say.

Herein the paradox: Despite P's being disproportionate to O, it's hard to object to the state's subjecting those who O to P.  After all, given perfect deterrence, no one will be actually suffer P. Hence, no one is in fact punished beyond what they deserve because though the state is willing to inflict P on those who O, its willingness to do so is exactly what dissuades anyone from O-ing.  (Not to mention that we duck various procedural worries about punishment: Perfect deterrence means no worries about punishing the innocent!) At the same time, we would (Smilansky says) view with horror a system of punishment that licensed P for offenses O.

On certain simple consequentialist views, there need be no paradox here: We should embrace perfect deterrence as having clearly the best overall consequences. I have a few nebulous ideas about how the paradox might be resolved, but does anyone have a proposed solution? Or is there no solution?

16 Replies to “Smilansky’s non-punishment paradox

  1. Insofar as it is true that we would “view with horror a system of punishment that licensed P for offenses O”, I think this is only because we (and the population at large) don’t actually expect perfect deterrence.
    People may thus live in fear of suffering extreme punishment for a trifling offense (or false accusation thereof).
    But if a divine oracle spread the comforting news that, as the fates would have it, nobody will ever break the law (or be false accused of doing so), then it no longer seems “horrific” at all. So I think the intuitive worries here are purely pragmatic after all.

  2. You write,

    Herein the paradox: Despite P’s being disproportionate to O, it’s hard to object to the state’s subjecting those who O to P. After all, given perfect deterrence, no one will be actually suffer P. Hence, no one is in fact punished beyond what they deserve because though the state is willing to inflict P on those who O, its willingness to do so is exactly what dissuades anyone from O-ing.

    From the fact that no one suffers punishment P, it doesn’t follow that no one is in fact harmed, nor that no one is undeservedly harmed. The threat of punishment can itself be a harm. For instance, I can imagine that the threat of life imprisonment for jaywalking could be psychologically distressing to many. I would find it distressing. Also, the threat of punishment curtails one’s freedom in the same way that coercion does. Given that the threat of punishment can result in the curtailment of freedom and the imposition of psychological harms, I don’t see how perfect deterrence ensures that the innocent are not in any way punished.

  3. Hi Michael,
    Regarding this:
    Despite P’s being disproportionate to O, it’s hard to object to the state’s subjecting those who O to P. After all, given perfect deterrence, no one will actually suffer P.
    This seems to assume that the only moral objection we could reasonably have to something is that it causes, or that it might cause, suffering. But, that doesn’t seem right.
    Another kind of moral objection we can have to somebody’s way of treating us is that this treatment shows that they are not regarding us as moral equals, worthy of any degree of respect. Promising great punishment for what is not a serious crime seems to be one way of not respecting somebody in a way that holds them responsible for what they do in the way that equals hold each other responsible for what they do.

  4. It might be the case that from a consequentialist point of view, the optimal number of commissions of Offense O may not be zero, in which case, P is worse than some other punishment with less deterrent effect.
    For example, if O is speeding, it is likely false that the optimal amount of speeding we want in society is zero. Sure, we don’t want a lot of speeding, but we also don’t want people to be too scared by P that they never ever speed. Sometimes speeding is appropriate, as in the case of a personal emergency (e.g., getting to a hospital to see a loved one before she dies).
    In short, it is false that “we should embrace perfect deterrence as having clearly the best overall consequences.” The consequentialist can view Smilansky’s set-up with horror because perfect deterrence is probably over-deterrence.

  5. What Doug and Sven said!
    Also, it seems to me that the notion of punishment is conceptually connected to desert. And, intrinsic to the notion of desert is proportionality and appropriateness. Jaywalking and life in prison are of course way out of proportion. No one would deserve to put in prison even if they jaywalked.
    This makes me think that what does the deterrance is something that goes way beyond what counts as punishment – it is more like a threat of being severely harmed. And, unlike punishments, it may well be that justifying threats requires more than perfect deterrance from minor misdeeds.

  6. I agree with several of the commenters. It is true the state does not ever inflict P for doing O. They just inflict terror on the whole population, for no good reason.
    Furthermore, I think we have to add that the people in this state have no control over their laws (or they would have changed this one). Which is bad for other reasons.

  7. Thanks, Michael, for the kind words on my book and for bringing this paradox to PEA Soup; and for everyone for their comments. If you don’t think jaywalking needs to be discouraged, then choose the crime you care about, it’s not about this or that example. All we need is a crime that is bad, that isn’t dealt with very well under today’s (“just”) threats, but that the threat of disproportional punishment would completely eradicate. It could be that we have a serious problem with drivers not stopping for school children, or factories polluting, or some violent crime. As long as things don’t work well today (there is plenty of the given crime, and in addition the suffering of the criminals, and on occasion even someone who is innocent gets punished), and instead we could get *zero crime and zero punishment* (within a given sphere) – then it seems to me that the proposal of the paradox of nonpunishment is very attractive. This problem seems to me interesting even if it’s just theoretical, although I do think that we could in practice find some corners where it would be practical as well.
    A few specific responses:
    Richard: I think that there is still another side to think about here, even if we had that oracle. There seems to be something fundamentally problematic about saying that a system of justice ought to threaten people with radically severe, disproportionate and unjust punishment, which is far beyond what they deserve, while the justification of the system is dependent on the thought (even if it is true) that its threats will never need to be carried out.
    Fear (a number of people raised that): I discuss this in the chapter. Remember that you have to assume that we have a perfect system of justice (except the over-severe threats), so that a person can be certain that as long as she does no wrong, no wrong will befall her. So people won’t commit the crimes, and then would have nothing to fear. Take bank robbery or rape: I am not worried today that I might be punished for those crimes, because I will never do them and trust that the system will never convict me of a crime I did not commit. If the punishment for those crimes became Draconian, reaching levels that I would consider unjust (if they were implemented), I would still not fear that too-severe punishment. Even today most honest people don’t fear being punished for serious crimes – they just don’t commit them.
    Respect for persons (Sven and others), and why would we democratically choose this (Heath): crime is wrong, and being victims of crime is bad, and we don’t like it. So if we could get rid of all crime (within a given sphere) without any need for anyone to pay the price (i.e., no punishment), that seems almost ideal. Many people would vote for this. And it is not clear that resisting the proposal shows a greater respect for persons. Certainly not for the victims of crime, and arguably even not for the potential criminals, who we will be saving from becoming criminals and from being punished for it. (Arguably the threat of over-punishment is doing them a favor…) And it’s not as though people deserve a lower threat of punishment, just so that they could more easily choose the path of crime!

  8. Saul,
    Thanks for the comments, which clarify some things for me. I still think fear is a real issue.
    Some people believe that God will send them to hell if they do even the slightest thing wrong. This gives them a rational incentive to do the right thing all the time. It’s not as if they therefore have no fear, however: rather, they fear hell because they know they’re not rational enough to toe the line quite that well.
    Draconian punishments might be feared, not because one fears being unjustly convicted of them, but because one knows one will be tempted to break them and might succumb. (The temptation will be greater if, unlike God, the state’s enforcement is imperfect.) And just as one might wish for a more merciful God, one might wish for a more merciful state too.

  9. Thanks for this response, Saul. It still seems to me that we are not respecting others as equals if we are, as you put it, “doing them favors” by threatening to punish them greatly if they were to commit minor crimes. We are, instead, treating these people as though they couldn’t possibly see what would be wrong with these crimes–and as if the only way in which they could be motivated not act in these ways is by making them fear the consequences of doing whatever it is. In sum, I am yet to be persuaded that this supposed paradox arises outside of a very strictly consequentialist way of thinking about morality.

  10. Heat – You are right to press me on the fear factor, because it is natural to assume that that would be a major problem with the threat of over-punishment. But the thought experiment assumes that people will NOT commit crimes, because of the threat of over-punishment. Therefore they would never in fact be punished, and so would never need to fear being punished. If people are too weak, or irrational, or self-deceptive, then as a result the idea doesn’t work. But let’s assume that it does (because we are only exploring things theoretically, or because the proposal might in fact work within a certain limited sphere): our question then becomes whether we should go for it. Fear of being (over-)punished when committing the crime is not a worry on the assumption that no one commits crimes because of the threat. So there might be other problems with my proposal, but as far as I can see the generation of fear is not one of them.
    Sven – We shouldn’t think of this issue as concerning only minor crimes, there is nothing in the logic of my proposal that precludes application to major ones. I don’t see why respect for persons is such a great worry. In one sense the threat is certainly treating all people as equal, in that it applies to everyone. But does it treat them (us) all with disrespect? Some people do not respect the rights of others, and commit crimes against them. That’s why we have a criminal justice system. Our current system threatens everyone with a certain level of punishment, and surely manages to reduce crime as a result: in other words, some people that would commit crimes avoid doing so only due to the threat of punishment. But if this is o.k. in terms of respecting persons, why would increasing the volume through the threat of over-punishment be so terrible? If you think that any threat of punishment is disrespectful for persons then there is nothing special about the threat of over-punishment, but if you think (as presumably you do) that the threat of punishment as such is permissible, then why is my proposal special? Perhaps there is a reason, but it cannot be the mere fact that without the fear of punishment people will commit crimes, for that is the case with regular punishment as well.

  11. I still don’t think this is a problem for consequentialists. From the consequentialist standpoint there are very few crimes for which it is optimal that they be committed zero times. And for those crimes for which the optimal number IS zero, they are so bad that consequentialists would not object strongly (if at all) to a punishment which deters them completely.
    I used speeding as an example above, but I guess that is too easy. Let’s instead talk about homicide. Is it true that the optimal number of homicides is zero? From a consequentialist point of view it will depend on the circumstances. If the commission of a homicide could prevent a really disastrous amount of badness, then we would not want a system of punishment so severe that it deters homicide completely. What about mass genocide? That will be an example of a crime that we would be happy to deter completely, since it is implausible to think that enough good could ever result from its commission.

  12. A few quick comments:
    1. A deterrent theory of punishment need not ever justify the punishment of the innocent. One example is Anthony Ellis’s deterrent theory: if law is understood as a system of threats that, when not attended to, permit punishment, then punishment is only warranted for those who break the law. Bentham isn’t permitted to the doctrine either.
    2. Why think desert is central to punishment? ‘Desert’ is normally understood as ‘moral responsibility’. Yet, we criminalize a variety of actions — including traffic violations (which may entail sentencing) — that may be ‘mala prohibita’ crimes. (I put to one side criminalization and strict liability.) Doug Husak’s ‘Why Punishing the Deserving?’ in Nous pushes some other issues.
    3. I quite like how Saul sets this up, although I disagree with the view of law as a system of threats discussed above. The reason why I do not commit crime is simple: I don’t want to. It has nothing to do with threats or fear: if the law said I could assault, etc., then I still wouldn’t. As TH Green once said, “will, not force, is the basis of the state” in reaction to Hobbes. This is *not* to challenge the paradox, of course.

  13. I’m curious whether people get the same feeling about severe punishments for laws that it’s impossible to break.
    Suppose turning oneself into a person made entirely of gold is punished by execution. It’s impossible to break this law, but I still feel vaguely creeped out by it. Not as much as I am by the laws in the original paradox, but still somewhat.
    Am I worried because I’m afraid that I might someday turn myself into gold and get executed? I don’t think so. And I don’t think I’m worried that the innocent will be punished — it takes only a minimal level of faith in the justice system to breathe easy about that.
    I think something like Jussi’s proportionality point is at work here. If you could turn yourself into gold, there would be nothing wrong with it. So execution is a radically disproportionate punishment. Meanwhile, a penalty of execution for murdering those who turn themselves into gold bothers me only insofar as I’m worried about the death penalty in general. (And insofar as I’d wonder why anyone was bothering to pass such a law, but that’s not a question of injustice or anything like that.)

  14. Thanks, Saul; that’s helpful.
    I don’t think having a legal system that punishes crime is intrinsically disrespectful of its citizens. But, for a legal system using punishment to be set up in such a way that it expresses respect for persons it seems to me– and I guess I am having intuitions similar to Jussi’s–that there has to be some degree of desert-based proportionality between crimes and punishments. There is, it seems to me, a morally relevant difference to being bullied into not breaking some law, and being expected not to break it while also being expected to accept certain kinds of punishment if we do actually break these laws. Also, treating people equally is not necessarily the same as treating them as your moral equals.
    To tease out this intuition, think about parents who punish their children for certain kinds of behaviors in order to make their kids stop behaving in these ways. This is not a way of regarding one’s children as moral equals, but is rather to treat as children who need to be brought up. I can treat my children equally by punishing them in equal measures when they do the same sort of things. And, I may be doing this for their sake, thinking it good for them that they learn the hard way not to act in these ways.
    This was not the sense of regarding others as moral equals that I had in mind. I think there are different ways in which thoughts of equality figure in moral reasoning. WHat I just gave an example of, and what I think you have in mind, is treating like cases alike. Another kind of moral reasoning in which the idea of equality is involved, which is what I had in mind, is what Steve Darwall calls second-personal moral reasoning: thinking of what we can demand of others in virtue of our equal standing as rational beings with a certain type of moral authority to hold each other responsible for what we do. I think Scanlon also has this in mind when he talks about justifiability to each person.
    If some of our moral intuitions point in this direction, and we think that morality is at least partly about respecting persons as moral equals in the sense I was just talking about, then this is, I think, a huge part of what explains our uneasiness in response to the type of legal system you discuss in the chapter of your book we are discussing here.
    You wrote: “I don’t see why respect for persons is such a great worry.” If we are not worried about these kinds of considerations, then it is indeed somewhat unclear, I agree, why your thought experiment is puzzling. So, I think we agree to a large part, but that we might have different intuitions about what are relevant considerations to take into account in our moral reasoning.

  15. Thanks, these are really good points. I’ll say a bit more on how I see things, and in particular on why I think it’s not so easy to resist the offer of “no crime and no punishment”, even for non-consequentialists (or not-only-consequentialists). I share the unease – indeed, as I said, the idea of threatening people with punishment that they don’t deserve, and that it would be unjust to inflict on them, is deeply abhorrent. That’s why I think that we have a paradox. But the other side, the benefits, are of course huge. The alternative we are familiar with is, after all, very bad (victims of crime, the suffering of punished criminals, the occasional suffering and injustice of the innocents being “punished”). So if we can get rid of all that, and all we need is a problematic threat THAT WE KNOW IS NOT GOING TO BE CARRIED OUT, then we really should be tempted. I agree with Jussi that punishment is fundamentally about desert, and desert is related to proportionality. But, we recall, no one is about to be punished. That’s the beauty of it. It’s not even clear that anyone is being harmed. No one will get anything that she doesn’t deserve. As a result of the threat, no one will do anything that will make him deserve anything bad. I don’t see why reasonable people would not opt for this proposal. Unlike traditional consequentialist proposals (“punishment” of the innocent, or over-punishment of the guilty), in my proposal no one is to be punished in order to deter others. Nor is anyone going to be used as a means for the benefit of others. As I write in the book, this is analogous to the idea that the very thought that, if you were to become ill, you would need to take some distasteful medicine, would suffice to keep one always healthy (and hence in no need of taking the medicine). So, how can we say No?
    And yet, in the context of a system of justice, how can we take up such a devilish offer, based upon the threat to do the unjust?
    That’s the paradox. I at least find that it is highly unreasonable to resist the offer, which carries a very light price (compared to the grim current alternative), and sounds almost ideal; but also, intuitively, morally almost impossible to accept it.

  16. The real problem is that this system would prevent people from committing the crime, even when they’re willing to pay the fair punishment for doing so.
    This, of course, is the point of the draconian law. Society doesn’t want people to commit crime X. But this itself is a denial of individual rights. A free society can’t control what people do; it can only make them pay the fair price.
    If you pick a very serious crime, like homicide, then we can’t have a disproportionate punishment (except maybe torture, but that’s problematic for other reasons). So this only works with a crime that isn’t very serious. And we can also assume that the law has exceptions as necessary (for instance, speeding to take someone to the hospital is legal). In other words, we’re trying to prevent unreasonable occurrences of a non-serious crime.
    Intuitively, we’re imagining, somewhere in our heads, that someone might someday come along and break the law… even though the puzzle specifies that no one will! Part of what’s so disturbing, I think, is the idea of no one ever committing a non-serious crime, as it suggests totalitarian states with mind control powers.
    Ultimately, at least with a non-serious crime, we want people to have the freedom to choose to commit the crime, if they’re willing to pay a fair price. This is the whole idea behind civil disobedience, as well as behind an “efficient breach” in contact law. If committing a (minor, non-serious) crime is worth paying its “true cost” to society for someone, it’s actually unjust to prevent him from committing it by increasing the penalty.
    Arguably, this isn’t applicable for serious crimes like homicide, because they’re so ethically wrong, but if a crime is so minor that life imprisonment would be incredibly disproportionate, it makes sense to treat it in this economic way.

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