I’m not sure if not wanting the system is exactly the feeling… Perhaps its not liking the system. I’m not sure I would terribly mind living in Singapore, even with their draconian laws, in fact I may want to live in Singapore precisely because of the high compliance of citizens to the law.

e.g. I don’t like Affirmative Action, but I think we need it. I don’t like going to the dentist, but I go. I don’t like punishments that people experience, but I don’t think they shouldn’t be punished.

I’m on the building maintenance committee in this building of about 50 apartments. Many people avoid paying their monthly building maintenance fees, because nothing deters them, except long legal procedings, which allow them to delay paying even longer. One day, only half in jest, I suggested: hang one of them, any one of them, in the building lobby, and we’ll have no more payment problems.

“His object all sublime
He shall achieve in time
To make the punishment fit the crime
The punishment fit the crime”
(Mikado ? G&S.)

Been there done that. Hanging for sheep stealing, transportation for theft of handkerchief or loaf of bread. Deterrence zero. For terrorist offences any draconian punishment whatever useless. 3 time loser laws, useless. Build more prisons, super-max designed to drive their inmates mad and make rehabilitation unlikely, useless.

We need as human beings in a society to believe in personal redemption, change and renewal. This is stronger than the need for revenge or super retribution which is particular to the wronged for the most part. People who have watched the execution of the murderers of their loved ones report that it has done nothing for their loss.

Michael: I was speaking of deterence, not revenge or retribution. The telephone company cuts service, if you don’t pay your bill within one week of the due date. They charge a sizeable fee for renewing service, even though it costs them nothing. Result: people pay their phone bill on time.

Amos:
I wasn’t referring to your post which I took to be black humour. The free riders are always with us like the poor. An exemplary shooting pour encourager les autres. All the better if they are innocent - that really strikes terror.

My post was aimed at the idea that extreme punishment far beyond any reasonable desert will secure civil order. It has never been right or just or even effective.

A placard about the neck with ‘account settled in full’. Viva la muerte.

Extreme punishment generally occurs when there is little civil order or when authority is weak. Authority is a necessary condition for civil order and as Napoleon said, you can conquer an empire at the point of a bayonet, but you cannot govern one. Bush found that out in Iraq. Please pay attention, Mr. Obama.

Jean:
Clamping and towing away doesn’t work either if working is defined as virtual elimination. Those stats for 2006 are shown on http://www.park-up.com/London_Car_Parking.aspx
City of London (square mile) 620 tow away
Borough of Camden (know it, not big) 2005 tow away.

Michael: I don’t know much about London. Many times laws are on the books, but the police are too busy to enforce them. It may be that the London police generally don’t tow away cars for parking offenses, so people bet that they’ll get it away with it.
However, I confess that I was only in London once, for a week, 35 years ago. For example, people here often leave cars illegally parked, while they run into a store to buy something, thinking that in 5 minutes no policeman is likely to pass by. However, let’s say that we up the ante, so to speak. The illegally parked cars are not only towed away, but also confiscated and sold to raise money to buy medicine for children in Africa . Would that not deter illegal parking?

That you were deterred by tales of draconian parking violation punishments says more about you than it does the punishments.
Many people are ignorant of or simply ignore parking restrictions, they don’t care about the punishments however draconian they are.
As far as I know parking isn’t a crime in the same way as forgery or car-jacking - the punishment for those crimes could be as extreme as you like: how about a month of extreme torture followed by a slow and painful death? that should do the trick. But first you have to catch your criminal.
The best deterrent would be the certainty of getting caught and forfeiting the proceeds of the crime. That of course assumes that the perpetrator commits the crime for material gain, if the thrill of the job and the chase afterwards are the motivation, then maybe you need a strong deterrent but the perpetrator still needs to believe that he or she will be caught, otherwise there is no deterrence.

Stuart:
A deterrent in place in Ireland is attracting the interest of European Governments. It’s run by the Criminal Assets Bureau and it involves the confiscation of the proceeds of crime. If a person has a lifestyle far beyond that which his apparent income would support and the opinion is formed that this is due to the proceeds of crime then a dedicated team of policemen and accountants trace his bank accounts, houses etc and confiscate them. It is quite discouraging to the poor things. Those who aid and abet money laundering, the white collar facilitators, are also charged. A major figure in the criminal activities of the IRA is being flensed at the moment. Very satisfactory. Contrary to the overheated imagination of thriller writers it is not the adrenaline rush that keeps the criminal busy but loot. Is it excessive?

Amos:
It is private operators that are subcontracted to clamp and tow away and I imagine that their enthusiasm is linked to their potential earnings. If you are towed away and do not pay the substantial fine within a matter of weeks then your car is sold at auction. The money does not go to Africa though the more benign littoral of the Mediterranean is relatively near to that continent. If you saw ‘Pulp Fiction’ you may remember that the John Travolta character, an assassin, has a nice speech about the sacredness of a man’s vehicle. Even the miscreant has a sense of scale.

Surely, this argument has the same flaw as arguments in favour of capital punishment: such deterrance only works for potential violators who are able and wiling to rationally assess the consequences of an action. Not all criminals are philosophers. Most murders, for example, are committed by people who know the victim closely, and who act in the midst of passion. I doubt that few if any murders are averted because a potential killer has rationally assessed the consequences of murder and decided the expected negatives outweigh the expected positives.

In addition, the adoption of completely dis-proportionate punishments could well be taken by a intelligent and rational citizen as evidence that the state has adopted an irrational policy, and that such adoption can only be overturned by similarly irrational and/or dis-proportionate actions in response. The punishment for directly opposing the Warsaw Pact invasion of Czechoslovakia in August 1968 was arrest and possibly death, but this did not stop Czech citizens engaging in direct actions, such as refusing to assist the invaders, the repainting of street signs to confuse the invaders, and even (in some cases) self-immolation.

Many objections brewing up… I’m intrigued that aggressive towing isn’t that effective. You might need to bring back some quaint London traditions–such as drawing and quartering in public?

Norm Geras has good commentary on this paradox here: http://normblog.typepad.com/normblog/2008/11/nonparadoxical-proportionality.html

Peter, Smilanksy does concede that “perfect deterrence” is not going to work for some crimes and criminals. So we are not talking about a whole system working this way, but just part of it. Re: your second point. I think the question is why a rational citizen would regard this as an irrational policy. The paradox is that we don’t want it, but have trouble saying why not. (But see Norm…he makes some good points.)

I don’t have the book but arguments C and D seem pretty unconvincing. C looks like it needs some factual support while D makes a mockery of the concept of freedom as we traditionally understand it (i.e., there isn’t really any freedom of choice for the would-be forgerer or car-jacker).

I may be misguided, but I never thought the aim of a modern criminal justice system was the eradication of all crime. I thought the aim was to ensure levels of crime did not become intolerable to citizens of that society. Surely disproportionate punishments reflect a view that a crime-free society is of greater worth than liberty?

(One of the difficulties in all this is that while criminal acts are to some extent measurable and noticeable, insults to liberty are hard to quantify, often insidious and only noticeable afterwards)

One major problem with the disproportionate punishment suggestion is that the punishment threatened is the absolute removal of liberty. But given liberty has already been removed, the punishment then becomes meaningless. That is, you need some substantial difference between prison and society for prison to have any meaning.

Facts:
(a) not true that towing discourages
(b) extreme deterrence has been tried historically, didn’t work.
(c) Extreme deterrence in good ol’ USA. Rate of incarceration 737 per 100,000 . Average European rate 130, Denmark, 59. Does it work for you? No.
http://en.wikipedia.org/wiki/Incarceration

In reality S.S’s proposed paradox does not get off the ground. A paradox ought to have at least some credibility or be persuasive to a degree. This premise is in the immortal words of Monty Python, a dead parrot.

Michael: I don’t know enough about London to say whether towing deters illegal parking or not. However, in everyday life deterence works and is very effective. (I agree with you that punishment does not rehabilitate or provide “justice”.) The USA is a very different society than Denmark. Let me describe myself: I am a rational potential book thief. I haven’t stolen a book for many years (I was caught once), but every time I enter a bookstore, I see some books that are too expensive for my budget and my first thought is whether it is possible to steal them. What deters me from stealing them? The categorial imperative? The utilitarian calculus?
The teaching of the compassionate Buddha? No, the fact that all big bookstores (I would not steal from a small bookstore) have adapted complicated electronic systems that make it impossible to get out the door with a book that one has not paid for. In addition, most big bookstores have signs warning that book-thieves will be prosecuted. Simple deterence.

Michael, All you have to assume, to get the puzzle going, is that there are some people who can be deterred from committing some crimes by threat of a harsh enough punishment. Nobody (not I, not Smilanksy) is assuming anything stronger than that.

I think there are all sorts of examples where this is plausible. In the suburbs of Dallas, there’s a problem with people driving too fast in school zones. That’s a crime you’d very much like to deter to save the lives of children. I think you might achieve perfect deterrence by punishing speeders with loss of their cars. But surely it would work to threaten them with life without parole.

Think about it–no more dead children, no more guilty-feeling drivers, no more people sitting in prison for involuntary manslaughter. All you have to do is set up a system where a dire enough punishment is threatened. I think it’s a very interesting question what would be wrong with such a system.

But note–nobody’s recommending anything like that. Smilanksy judges such a system to be both (1) ideal, and (2) undesirable. He takes himself to be exposing tensions in our moral thinking, not making actual suggestions about how to run some criminal justice system.

What is to be done with unjust laws? It seems that civil disobedience would largely be out of the question under such a system.

Let’s take speeding in school zones. Are you suggesting that people be punished for the potential consequences of their actions on a level equivalent to the actual commission of the crime? For that to be fair and just there would have to be sure knowledge that speeding would be extremely likely to cause death or injury. This is not demonstrable. There has to some ‘distance’ between potency and act and this has to be reflected in the tariff. Why? Because Justice is for everyone and not only those who run foul of its edicts. The Reign of Terror while at first being focused on those that seemed legitimate targets soon came to be universal. It consumed itself like a moral cancer.

Well you might say, I don’t care if it is unjust or if the punishment is in itself a crime, I want this bad behaviour to stop. History has shown that increased penalties equals less crime is simplistic. For the state to operate on a more than temporary basis there must be a general respect for the rule of law. Vastly incommensurate penalties are a form of tyranny.

Let’s take speeding in school zones. Are you suggesting that people be punished for the potential consequences of their actions on a level equivalent to the actual commission of the crime?

It’s a paradox, not a proposal. No real world upshot–just something puzzling. The paradox is that, though the threat sounds draconian, you’d completely eradicate both the crime AND the punishment. Nobody would ever receive the punishment, nobody would ever commit the crime. So this is ideal, yet (paradoxically) in some elusive sense too brutal.

Amos:
Here a matter of good policing keeps you from theft though I think that the cunning might find a way around it. I think what is at issue here is the punishment. Suppose you were to have a finger amputated for every book you stole. Then you might consider the possibility of fire-bombing the store at night or something of the kind to get even. A fine and a banning from the store you might consider even, the pans on the scales of justice would be even/level so to speak. In the case of amputation they would not be and you might be inclined to make them so.

The mistake is to consider that there are only two factors at work in the matter of crime and punishment which are in inverse relationship to each other. In fact there are other elements which come to the fore when the relationship moves from the fair to the tyrannical.

Hi everyone, please call me Saul. Jean, concerning the point you made at the start about the threat to family members: I can see the force of what you are saying, but I just wanted to take that sort of issue out of the way, so that we focus only on the idea that someone who contemplates crime will know that s/he will be over-punished, while everyone knows that no one will be punished as long as s/he does nothing wrong. There is an interesting question here, whether over-punishing the guilty is just as bad as punishing the innocent (if the proporions are equivalent). I tend to think not, but this isn’t crucial for my present argument.

There were some other good points along the way, but if you read the chapter you will see that I’ve dealt with most of them (if sometimes by stipulatiion). For example, Jeff’s point about civil disobedience matters in real life, but in my proposed thought experiment we are assuming that the laws are just, so that our thinking isn’t clouded by such foreign considerations.

Unlike some of the other paradoxes (including the ones we have discussed here before), I am not sure how actual this one is, if we are thinking in terms of perfect deterrence (if we are willing to allow a rare case of actual over-punishment here and there, then it’s very real). But theoretically, I think that there is a real challenge here (as Jean so well explicated). We SHOULD be greatly troubled by the idea of a justice system working through the threat of unjust and disproportionate punishment. But we should ALSO be attracted by the idea that we could get rid of crime (in the relevant sphere) at very little cost: for, we recall, because of the threat no one will need to be punished, hence no one will be a victim of injustice.

The paradox of non-punishment involves a devilish offer, but it should not be easy to dismiss it, because in the thought experiment acceptance would overcome the considerable ills of our present system (which of course does punish with severity a huge number of people, including some innocents that get caught in the net). Think about an analogy I make in the book: assume that the very thought of having to swallow some very unpleasant medicine IF we were to become ill, made us ALWAYS healthy (so that we would never in fact need to swallow the medicine). Would this be so bad?

Norm Geras makes his life too easy by, first, re-framing the question in a way that I would not do (using lethal sharpshooters to stop the minor social nuisance of people’s running around naked in sporting events); and, second, not considering in the balance all the evils of the current system, evils which we could (in theory) do without, if we opted for the threat of over-punishment.

Saul, I think Norm’s example does show that perfect deterrence would have some clearly unacceptable costs, in some cases. As he says, those sharpshooters would have to be trained, and they’d have to be standing by, ready to shoot the streakers. If we were going to draw and quarter people for parking violations, I suppose we’d have to train some people in the ancient art of drawing and quartering. Otherwise, nobody would take the threat of punishment seriously. So, you can’t always “cleanly” threaten a punishment.

But this is not a problem in every case of perfect deterrence, so we still have an unsolved puzzle. There’s no such cost in your examples, where forgery and carjacking are punished by high fines and long prison sentences. In my example of life without parole for speeding in school zones, the police need do nothing unusual–they just have to carefully monitor. In fact, they won’t even need extra prison space, since nobody will ever speed!

But if the state is being unjust, what moral force does it then have? Why should a criminal even care about right and wrong, when the state itself has stopped caring. The same arguments apply against torture.

This is not directly related to the topic at hand, but I think it illustrates well that effectiveness of punishment does not fit neatly on a scale of severity. I read on page 223 of Gut Feelings by Gigerenzer that several years ago extremely disruptive behavior by boys on school buses on the Isle of Wright was punished by consigning the brats to ride on a pink bus. Their shame was such that they hid their faces or slouched beneath the windows. Soon there were not enough obstreperous boys to warrant the special buses. The buses were called The Pink Peril.

Saul wrote:

We SHOULD be greatly troubled by the idea of a justice system working through the threat of unjust and disproportionate punishment. But we should ALSO be attracted by the idea that we could get rid of crime (in the relevant sphere) at very little cost: for, we recall, because of the threat no one will need to be punished, hence no one will be a victim of injustice.

We should not be attracted by the idea that we would get rid of crime in the relevant sphere because we know that this notion has been tried historically and has failed to eliminate crime. Where it is being tried today it doesn’t work either. It arises from the simplistic reduction of a complex situation into a matter of strength of deterrence. Did Devil’s Island or the Gulags eliminate crime or reduce it significantly? Perhaps such question spoil the purity of the thought experiment.

Saul- I’m not terribly sure that we should be troubled by the idea of a justice system working at great costs. I mean we are talking about degrees here aren’t we?

I’m willing to accept that many of my obligations require great costs and sacrifice on my part (e.g. giving to charity). Justice, at least under a social contract, requires me to give up some rights (cost) for the protection of others.

Its kind of odd to say that we have a moral obligation to have a feeling. We ought to be troubled…. I can’t help be be troubled or not be troubled by it…. Can I?

Michael: I’m not at all sure that people rebel against tyrannical or unjust laws. They may at times, but if we look at human history, men have lived under unjust systems without rebelling or without revolutions in general. In fact, what country has a just or fair system today? Perhaps the Scandinavian nations,
certainly not the United States, with its tremendous inequalities of wealth and privilege. Now, it is true that at times people fire-bomb those who have cut off their fingers without due cause, but in general, those who have had their fingers cut off go on calling those who have mutilated them “Sir” or “Mr. President”.

Paul: The idea that the state has moral force is a bit utopian. I don’t doubt that some democratic states have moral force, but in general, most states have the monopoly of armed force and the weight of tradition (often backed by religion) as their chief support. Could you honestly say that the United States during the government of George Bush has had moral force?

rtk–One of the reasons I find the topic of threatening punishment interesting is because I’m constantly threatening my kids. If you don’t play the piano, this will happen, that will happen… As you increase the threats, you do tend to get more compliance. I wonder what the ethics of this amounts to–whether you really have to mean it, what the limits are on what you can can threaten, etc. “You will have to ride the pink bus to school”–that sounds good.

I don’t believe that you should control people by fear of punishment (Not directed to you specificaly Jean), it is coercian. I take a less volatile line and instead of detering the criminal with the possibility of an unpleasant sentence I would remove his incentive.

I wonder though, is there a common incentive to all premeditated crime?

Amos, I stole a book from Borders recently (a big American book chain: do you have them in your country?). I too would never steal from a small business. Not all of the books are electronically tagged: just have a look and you’ll be able to work it out. Make sure you look mainstream and respectable so that you can pretend it was an accident if you get caught (like whoops I meant to put this one back on the shelf I didn’t realise it was in my shopping cart / pram / buggy). Having a really good excuse and image means you can steal with confidence, and if you’re confident you’re a lot less likely to draw attention to yourself. It’s always a good idea to purchase one at the same time as stealing one, for obvious reasons. Good luck!

Oh, and to relate this back to the topic: I wouldn’t have stolen that book from Borders if the punishment would have been having my hand chopped off. No way. So I think Saul has a good point: I don’t want to live in a society where there are such disproportionate punishments, but I do think they would work for calculated crimes like my book stealing. I hope you’re not all disgusted by my confession, by the way. I wouldn’t do it if I could afford books: and I think perhaps herein lies the answer to Rob’s question.

May I suggest a trip to the public library?

While in the public library, might I suggest that once we’ve come to grips with the irrelevancy of expecting “perfect” solutions to any significant aspect of human behaviour, we might do well to try to understand the complicated nature of (and inter-relationships among) a range of the concepts such as free will and causation, which we tend to bandy about without asking ourselves too much about precisely what we intend by them?

That’s a sizable enough task without even looking at the incompatible, but nevertheless strongly felt needs of our citizenry for revenge, reform, rehabilitation, retribution — plus the many and varied other feelings starting with letters other than “r”.

Our species [or most of us anyway] are born with an amorphous sense of “right” and “wrong”. Like our innate drives to treat our inner group (however it ends up being defined) but happily destroy the ‘other’, it helped the species survive our struggles in the primaeval savannah, but can sometimes (in the modern world) result in behaviours we tend to look on unfavourably. Evolution wasn’t able to match technological evolution — how could it?

Ethics, unfortunately, is a relativist concept, but there are sound practical reasons for society to not have this fact analysed too carefully, or discussed too widely,

That’s why it’s probably a good thing that as many as possible remain as confused as possible for as long as possible. So Viva the “Paradox”!!!!

Jean, our library doesn’t have any books on contemporary philosophy. I’m a single mother with two very small children. I don’t see why philosophy should only be the preserve of the wealthy. I only hope the author receives royalties from Borders itself, not only if the book is purchased by a customer.

Rose (if you’re still around), Our public libraries are also pretty crummy when it comes to contemporary philosophy. I wish I could think of a solution (use books on amazon are often very cheap, but then there’s postage). It’s interesting thinking about why stealing is so seriously wrong (no offense, but I do think so), but here’s a thought (ignore it at your leisure). I think I personally would simply die if I were caught stealing with my kids in tow. I’d feel less worthy of the job of being mom. But that’s possibly because of my beliefs about stealing. Your mileage may vary. Anyhow…I’ve found your candor about stealing interesting food for thought, so thank you. As to royalties, I have no idea how it all works.

The philosophy section of my public library is limited to Selected Work of Plato and the sayings of Schopenhauer. Books are much more expensive in Chile than in the United States, especially newer, quality books (the classics, books without copyright, may be cheaper at times), and while Amazon is cheap, international mailing rates are not, and books do disappear in the mail. Rose, in any case, thanks for the advice about stealing. I’m not sure how the electronic tagging system works. In the public library, they untag the book by passing it through a machine. That is, there is not a physical tag. I have no ethical problems in stealing a book from a chain book store, only the fear of being caught. Unfortunately, I’ve noticed that as I’ve gotten older, I’ve become “suspicious”, the type of person whom security guards follow in the supermarket, whom customs agents stop, who has to show an ID before entering buildings.

Death for stealing a book would not be ideal.
Even if it kept me from stealing the book it would not keep me from plotting to burn down the book store.
It would inspire the most honest of people to plot to burn down the book store. Unjust punishment does not deter crime it would only aggravate crime.
Think of the Boston Tea Party.

“Think of the Boston Tea Party”? A far better idea might be to simply think a tad more carefully re analysing our more fondly held “true” beliefs. Possibly a worthwhile NEw Year’s resolution for all of us?