Paradox #5: Non-punishment

The fifth paradox from 10 Moral Paradoxes. Smilanksy says this one came to mind after he became acquainted with parking enforcement in some areas of London. Apparently, your car will be towed for the most minor offense. “This caused an immediate improvement in my parking behavior,” he writes, “and concentrated my mind.” But it also got him thinking about “perfect deterrence.”
Not every type of crime and criminal can be deterred. Drug addicts aren’t sufficiently focused on the future, crimes of passion are too unpremeditated. But crimes like forgery and carjacking (for example) are highly planned. So imagine a system that achieves perfect deterrence by threatening disproportionate punishments. Life without parole for forgery and carjacking. Enormous fines for important parking offenses. Keep the thought experiment clean by also supposing there are high standards of proof and other safeguards.
Here, then, is the paradox. (1) In such a system of perfect deterrence, there would be neither the relevant crimes, nor any punishments. So it would be ideal! (2) And yet we wouldn’t want such a system. It would actually horrify us. Like every other chapter of this book, this one gets the reader’s engines running. There’s no denying (2). So you to go to work on (1). No, such a system wouldn’t be ideal, and here’s why….. Smilanksy considers many possible moves and finds them wanting.
Very, very, briefly, and with no attempt to do justice to all the twists and turns: (A) You can say a system of perfect deterrence would be unjust…but how so, if no one’s ever actually subjected to a disproportionate punishment? (B) “In the real world, someone would eventually be punished this way!” Well, but a vast amount of crime and punishment would be avoided. Occasional implementation is a negligible problem, compared to the enormity of what’s avoided. (C) “But everyone would spend their lives suffering under the fear of these punishments!” Not really—think about disproportionate punishments that already exist. Do you live in fear of them? (D) “With such severe punishments, our freedom would be compromised!” Surely not—we could still commit the crimes, and endure the punishments. (Want details on A-D? Read the book!)
In short, Smilanksy tries to barricade all the windows and doors by which we might try to escape this paradox. We are stuck with it: a system of perfect deterrence is ideal, but we don’t want it! Ouch.
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So much for explaining the chapter. I have a question and I’m hoping Saul will pay us another visit and give me an answer. Here’s something he writes, as he explains what kinds of punishments might be used to “perfectly deter” would be criminals. “There would also be ethical limits, such as not threatening to harm the criminal’s family.” My question: Why are you “allowed” to say that, without further ado? If there are ethical limits on what a criminal justice system can threaten, then why isn’t that the crux of the whole matter? If it exceeds ethical limits to harm the criminal’s family “(they’re innocent”), then it exceeds ethical limits to impose life without parole for forgery (“punishment doesn’t fit crime”). No?
Plus, a comment. What is the “real world” upshot here? We live in a world where systems of nearly perfect deterrence exist. As I understand it, places under the most extreme type of Islamic law really do almost perfectly deter crimes like theft by threatening to chop off hands and ears (but only rarely doing so). Can it really be that we only inarticulately “don’t want that system” and can’t give good reasons why not?
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Today’s paradox is about blackmail.