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Is it moral to behave only in terms of fearing punishment? For example, suppose

Is it moral to behave only in terms of fearing punishment? For example, suppose the only reason a person has for not behaving immorally is the fear of divine punishment. Since his actions yield the same results as another non-immoral person who has no fear of divine punishment, why does it matter what reasons give the same results?

Your question: "Is it moral?", can be asked about the conduct and the person. As you describe the case, the conduct is moral (i.e., morally above reproach), but the person arguably is not because he has no concern for the rights, needs and interests of other people. What does it matter, you ask, if the results are the same? Just think about living with someone who genuinely cares about you versus with someone who behaves the same way out of fear that, if she is not nice to you, she will be punished by losing out on the benefits of your mother's fortune. Or think about a whole world in which any consideration people show one another is motivated solely by a selfish concern over rewards and punishments. The value of human civilization cannot lie exclusively in right conduct -- robots could be programmed to produce that more reliably than human beings -- it must lie, in large part at least, in the nobility of human motivations.

Your question: "Is it moral?", can be asked about the conduct and the person. As you describe the case, the conduct is moral (i.e., morally above reproach), but the person arguably is not because he has no concern for the rights, needs and interests of other people. What does it matter, you ask, if the results are the same? Just think about living with someone who genuinely cares about you versus with someone who behaves the same way out of fear that, if she is not nice to you, she will be punished by losing out on the benefits of your mother's fortune. Or think about a whole world in which any consideration people show one another is motivated solely by a selfish concern over rewards and punishments. The value of human civilization cannot lie exclusively in right conduct -- robots could be programmed to produce that more reliably than human beings -- it must lie, in large part at least, in the nobility of human motivations.

Is mercy on an offender a lack of justice? That is, if an offender is treated

Is mercy on an offender a lack of justice? That is, if an offender is treated mercifully, as in, given less punishment than is warranted, doesn't that mean the offender is given less justice than is warranted?

One straightforward way to see that this is not so starts from the realization that the criminal law cannot perfectly anticipate all realistically possible cases. This is so for at least three reasons. First, human powers of anticipation are limited. Second, a criminal law doing justice to all realistically possible cases would be too complex for citizens and officials to comprehend. Third, such a criminal law would also be impossible to administer fairly because it would give criminals too many opportunities to escape punishment. Example: recognizing a rare, morally valid excuse in the law might be a bad idea if the absence of this excuse is very difficult to prove beyond a reasonable doubt.

We can expect, then, that in some cases punishments warranted under even the best-designed and -administered criminal law are excessive. In those cases, at least, mercy would not be unjust. For example, we may pardon an offender because we are convinced that he has a morally valid excuse that the law, for good reasons, fails to recognize (i.e., does not allow judges and juries to take into account).

One straightforward way to see that this is not so starts from the realization that the criminal law cannot perfectly anticipate all realistically possible cases. This is so for at least three reasons. First, human powers of anticipation are limited. Second, a criminal law doing justice to all realistically possible cases would be too complex for citizens and officials to comprehend. Third, such a criminal law would also be impossible to administer fairly because it would give criminals too many opportunities to escape punishment. Example: recognizing a rare, morally valid excuse in the law might be a bad idea if the absence of this excuse is very difficult to prove beyond a reasonable doubt. We can expect, then, that in some cases punishments warranted under even the best-designed and -administered criminal law are excessive. In those cases, at least, mercy would not be unjust. For example, we may pardon an offender because we are convinced that he has a morally valid excuse that the law, for good...

Why are most nations opposed to prison labor? From a justice perspective, it

Why are most nations opposed to prison labor? From a justice perspective, it seems that would far better repay the damage caused by whatever crimes they committed than sitting around in a prison all day. From a rehabilitation perspective, it would seem that having prisoners (who are often from poor backgrounds) learn or practice a trade of some kind, or engage in unskilled labor, might help facilitate reintegration after release. Yet I've met lots of people who equate prison labor with slavery.

I'm not sure most nations really are opposed to prison labor -- it's pretty common in most of the countries I know something about. The reason against is close to what you suggest: if the labor is mandatory, then it does seem close to slavery; and if the labor is enticed e.g. through an attractive wage, then it seems that prisoners are getting too good a deal and are not really repaying society for the damage caused by their crime. Perhaps a reasonable compromise is to make the labor voluntary and to pay for it with a low salary and/or with some special perks (such as extra time in the library or exercise room, better food, additional visits, etc.).

I'm not sure most nations really are opposed to prison labor -- it's pretty common in most of the countries I know something about. The reason against is close to what you suggest: if the labor is mandatory, then it does seem close to slavery; and if the labor is enticed e.g. through an attractive wage, then it seems that prisoners are getting too good a deal and are not really repaying society for the damage caused by their crime. Perhaps a reasonable compromise is to make the labor voluntary and to pay for it with a low salary and/or with some special perks (such as extra time in the library or exercise room, better food, additional visits, etc.).

I think that in cases of horrific crimes, the death penalty is acceptable, or

I think that in cases of horrific crimes, the death penalty is acceptable, or even required by retributive justice. However, I think this only applies to cases where there is absolutely no room for doubt. I also think that there really are such cases where there is 100% certainty e.g. the perpetrator was seen by many witnesses and confesses, plus as much additional evidence as you need. Unfortunately, if we only make convictions where we have the luxury of this certainty, we set the bar too high, and many guilty people escape conviction. Inevitably, under any reasonable judicial system there will be people charged for crimes they didn’t commit. But when you are charged with a crime, you are thereby unequivocally guilty, and there’s no way of charging someone with being guilty with the qualification, “he might not have done it” and another “he’s guilty of the crime and there’s no doubt”. In the eyes of the law, a guilty verdict is definitive; you did it, end of story. Is there a problem with this either...

You make two good points. On the first, re death penalty, I would agree that there are cases where it's crystal clear that the accused is guilty. But this is really beside the point. The question is whether we can design a mechanism that correctly identifies these cases. In the absence of such a mechanism, we must be especially reluctant to use the death penalty.

Your other point is that perhaps we should incorporate into criminal verdicts an assessment (by the judge or jury) of the degree of certainty. But again, there is the question how accurate this assessment would be. And there is the further point that it would look quite bad to impose a severe punishment on someone with the comment that we've just barely reached the minimally required level of certainty. Better then perhaps to handle this issue unofficially: just as jurors sometimes acquit someone who very clearly did what the law proscribes when they feel the person did nothing wrong (example: the killing of a suffering and terminally ill spouse), a judge may sometimes impose a lesser penalty because she is less than fully convinced that the person really committed the crime.

And a possibly interesting footnote on this second point. In the case of acquittals, as well, one could incorporate an assessment (by the judge or the jury) of the degree of certainty. And this is actually done, I believe, in Scottish jurisprudence, which allows -- aside from "guilty" and "innocent" -- a third verdict of "not proven." The accused goes free, but has not been fully cleared of the charges brought against her or him.

You make two good points. On the first, re death penalty, I would agree that there are cases where it's crystal clear that the accused is guilty. But this is really beside the point. The question is whether we can design a mechanism that correctly identifies these cases. In the absence of such a mechanism, we must be especially reluctant to use the death penalty. Your other point is that perhaps we should incorporate into criminal verdicts an assessment (by the judge or jury) of the degree of certainty. But again, there is the question how accurate this assessment would be. And there is the further point that it would look quite bad to impose a severe punishment on someone with the comment that we've just barely reached the minimally required level of certainty. Better then perhaps to handle this issue unofficially: just as jurors sometimes acquit someone who very clearly did what the law proscribes when they feel the person did nothing wrong (example: the killing of a suffering and terminally ill...

I think that a lot of our common intuitions about punishment require that pure

I think that a lot of our common intuitions about punishment require that pure retribution be considered as one of the goals thereof. It is easy to conceive of scenarios in which punishment does not act (1) as a deterrent to crime or (2) to relieve the suffering of any injured parties. Often it seems that one of the main reasons we have to punish someone is simply our conviction that he somehow "deserves" to suffer. I'm sure that most people don't see this as problematic. Yet I wonder in particular how a utilitarian would address the question of retribution, since it is not obvious (at least to me) just what the utility of retribution is.

I agree that standard utilitarians would find it hard to justify retribution as such, that is, without appeal to such further effects as you mention: deterrence and satisfaction to injured parties. But I do not agree that this leaves many punishments without a utilitarian justification. The problem you see is that "it is easy to conceive of scenarios in which punishment does not act (1) as a deterrent to crime or (2) to relieve the suffering of any injured parties."

In fact, I believe, this is not so easy. Let's start with (2). Suppose someone murders a man who was a bit of a loner and not much liked by the few people who knew him. He won't be missed. So it may seem that punishing the murderer won't give satisfaction to any injured parties because no one is really injured by the man's demise. But this overlooks that there are others who have lost a loved one to murder and others on whose life an attempt has been made. They, too, are injured parties -- not injured, to be sure, by the murderer of our man, but injured by others with murderous intent. And they are likely to get satisfaction from the fact that murderers get caught and punished appropriately. Or so the utilitarian might say in response to you.

Somewhat similar thoughts apply to your (1). Here you may have in mind, perhaps, very rare crimes that virtually no one has any inclination to commit. It may seem that punishing such a crime would not deter anyone. But now imagine that we accepted your argument and stopped punishing crimes that virtually no one has any inclination to commit. Then those who have such very rare inclinations would take notice and feel much freer to follow them. The utilitarian response then is that, by punishing a crime that virtually no one would want to commit we are deterring not merely crimes of this kind, but also all the many other kinds of crimes that almost no one has any inclination to commit.

Perhaps you had another thought in the deterrence case. Perhaps you thought of crimes whose incidence would not be affected by the prospect of punishment. The law does recognize such cases, and does in fact offer leniency when the accused is shown to have been temporarily insane, for example. Utilitarianism would endorse such leniency, but with caution: there is a genuine danger that such leniency can have deleterious effects on deterrence by encouraging prospective criminals to believe that, with some advance planning and a good lawyer, they'll probably be able later in court to create some reasonable doubt about their sanity at the time of their crime.

In conclusion, I do not think that there really are many scenarios of pure retribution where punishment neither strengthens deterrence of crime nor gives satisfaction to any injured parties. With respect to the problem you pose, utilitarianism can account pretty well for our punitive practices. Utilitarianism does poorly, I think, in accounting for the severity of the punishments we mete out. Utilitarians would impose severe punishments when the extra harm to the criminal brings a larger reduction in the harm done by crime. Utilitarians might then impose a very severe punishment for a very slight crime, so long as this punishment has a dramatic impact on the incidence of this crime. An extreme example: imposing the death penalty for not wearing seat belts might cause a good number of executions annually. But it would also terrify millions of current scofflaws into reliably wearing their seat belts, thus saving perhaps many more persons than get executed from dying in accidents. If this were so, utilitarians might approve the death penalty in this case, while it would strike the rest of us as insanely disproportionate.

I agree that standard utilitarians would find it hard to justify retribution as such, that is, without appeal to such further effects as you mention: deterrence and satisfaction to injured parties. But I do not agree that this leaves many punishments without a utilitarian justification. The problem you see is that "it is easy to conceive of scenarios in which punishment does not act (1) as a deterrent to crime or (2) to relieve the suffering of any injured parties." In fact, I believe, this is not so easy. Let's start with (2). Suppose someone murders a man who was a bit of a loner and not much liked by the few people who knew him. He won't be missed. So it may seem that punishing the murderer won't give satisfaction to any injured parties because no one is really injured by the man's demise. But this overlooks that there are others who have lost a loved one to murder and others on whose life an attempt has been made. They, too, are injured parties -- not injured, to be sure, by the murderer of...

If one has the right not to be punished unless one is guilty, has one the right

If one has the right not to be punished unless one is guilty, has one the right to the most complete and precise system of judgement, no matter how costful it might be?

The word "right" is generally used more broadly than this, so that rights may give way when a lot is at stake. Some philosophical literature may suggest otherwise -- people talk of rights as "side constraints" or "trumps" -- but when you look more closely, they too agree that most rights should be understood as giving way at some point (though for Nozick this point comes rather late: when there is the threat of "catastrophic moral horror").

How much needs to be at stake, and for whom, are matters that get built into the content of the right. Thus, in some jurisdictions property rights are quite strong (property can be expropriated only for an overwhelmingly important purpose) whereas in other jurisdictions property rights are much weaker. Even in the latter jurisdictions, the word "right" is not out of place, so long as an expropriation is based on more than just a showing that it would be better on the whole for this property right to be infringed. You do not have a property right in your car if you must compete on equal terms with others for its use (e.g., show that you need it today more than they do).

Most rights, both moral and legal, are then of this form: When you have a right to X, then no one is permitted to deprive you of X unless this is done for a purpose of such-and-such kind and importance, and unless compensation of such-and-such kind is offered.

Now let's apply all this to the right that interests you, the right not to be punished unless one is guilty. Here deliberate infringement is rarely at issue (though it may be for a judge who considers sending an innocent person to jail to scare off would-be law-breakers). Rather, the problem is probabilistic infringement, running a risk that we'll be infringing the right in question. A general prohibition on ever running any such risk would be very constraining -- you could never drive a car, for instance, because you're thereby subjecting others to a tiny risk of a right-infringing physical injury. Must we minimize the risk, by reducing the speed limit "as low as possible", for instance? I don't think so. But we must keep the probability below certain thresholds that are determined in part by the cost of lowering these thresholds even further.

In the punishment case, one cost is financial, the cost of sophisticated evidence collection, trials, and so on. But another very important cost is crime: As standards of evidence are raised, more guilty go free, possibly to commit another crime, and more people are insufficiently deterred from choosing a career in crime. Now in accordance with the above analysis, one enjoys a right not to be punished unless one is guilty only if one's interest in not being so punished is given greater weight than the interests of potential crime victims. This is suggested in the famous formulation by William Blackstone: “It is better that ten guilty persons escape than one innocent suffer.” Put more bluntly, it is better that ten innocent persons be victimized by criminals than that one innocent person be officially victimized by us. Now what the correct ratio is here, the ratio at which no strengthening of the protections of the accused are thought to be required by their right, this is a matter of dispute, and philosophy can hardly give a precise answer (such as "8.39:1"). What philosophers can say is that people enjoy something worthy of the name "right" only when this ratio is a good bit above 1:1. What empirical studies can add is that some groups in our society have not enjoyed even the right you speak of in even the weakest sense of the word. In many states, criminal justice has been practiced in ways that foreseeably led to huge numbers of African Americans being innocently convicted and very severely punished, and these wrongs could have been very largely avoided through reforms of these practices that would have had a negligible impact on crime rates or none at all.

The word "right" is generally used more broadly than this, so that rights may give way when a lot is at stake. Some philosophical literature may suggest otherwise -- people talk of rights as "side constraints" or "trumps" -- but when you look more closely, they too agree that most rights should be understood as giving way at some point (though for Nozick this point comes rather late: when there is the threat of "catastrophic moral horror"). How much needs to be at stake, and for whom, are matters that get built into the content of the right. Thus, in some jurisdictions property rights are quite strong (property can be expropriated only for an overwhelmingly important purpose) whereas in other jurisdictions property rights are much weaker. Even in the latter jurisdictions, the word "right" is not out of place, so long as an expropriation is based on more than just a showing that it would be better on the whole for this property right to be infringed. You do not have a property right in your car if...

From a moral Christian point of view, I cannot understand the idea that we

From a moral Christian point of view, I cannot understand the idea that we should punish anyone. In America, which is a highly Christian-dominated society, there is little resistance to capital punishment from the "right wing." My understanding is that Christians are not supposed to judge. God will judge everyone when their time comes. Isn't Christian morality about tolerance and acceptance, and not revenge? "Turning the other cheek?" "Love thy neighbor/enemy as thyself?" Are Christians simply turning a blind eye to this action?

There is indeed a tension between capital punishment and the teachings of Christ. One can ease this tension somewhat by highlighting the contribution of penal institutions to the protection of innocent people, who are safer when criminals are taken off the street and potential criminals deterred. This does not justify the death penalty, nor our kind of prisons in which inmates are routinely raped and abused, but it does help justify penal institutions of the kind we know from the more civilized states.

I see much greater tensions between Christian teaching and many other policies we pursue, especially internationally. We pressure very poor countries to undertake “structural adjustment programs” -- cutting public funding and raising fees for basic education and health care -- so that they can better service their loans to our banks, which loans are often taken out by brutal dictators who use the money we lend them to buy the arms they needed to stay in power. We allow our banks to help such tyrants and their supporters to transfer embezzled funds into the international banking system. We pressure very poor countries to enforce the intellectual property rights of our pharmaceutical firms by ensuring that their populations have no access to generic versions of medicines on which one of our companies has a patent. We tolerate severe poverty of nearly half the world’s population, which kills about 18 million people annually including over 10 million children, even while such poverty could be eradicated at half the cost of our military budget. We impose severe sanctions on Iraq, and later a botched occupation, each of which have needlessly killed hundreds of thousands of Iraqi civilians. We refuse to intervene in Rwanda, Sudan, and Myanmar, where enormous massacres and suffering could have been prevented at minimal cost. We detain thousands of poorly selected terrorism suspects indefinitely without charge or trial while subjecting them to every kind of recreational and premeditated abuse. Much more than our penal institutions, such policies -- often associated by their perpetrators and supporters with Christian language and values -- are an indelible insult to Christ and His teachings.

We are a Christian-dominated society in that there is a lot of talk about Christ and His teachings. We are not a Christian-dominated society in that many of our policies are plainly incompatible with Christ’s teachings and perpetrated by people who plainly have no expectation that they will ever have to answer to Christ for what they did to further their political ends while invoking His name.

There is indeed a tension between capital punishment and the teachings of Christ. One can ease this tension somewhat by highlighting the contribution of penal institutions to the protection of innocent people, who are safer when criminals are taken off the street and potential criminals deterred. This does not justify the death penalty, nor our kind of prisons in which inmates are routinely raped and abused, but it does help justify penal institutions of the kind we know from the more civilized states. I see much greater tensions between Christian teaching and many other policies we pursue, especially internationally. We pressure very poor countries to undertake “structural adjustment programs” -- cutting public funding and raising fees for basic education and health care -- so that they can better service their loans to our banks, which loans are often taken out by brutal dictators who use the money we lend them to buy the arms they needed to stay in power. We allow our banks to help such tyrants and...

In what sense is being put to death a punishment? How we can talk about things

In what sense is being put to death a punishment? How we can talk about things like "suffering" or "loss" if a person is dead (i.e., not conscious)?

Of course, murder is not a victimless crime! But how can that be, Alex asks, if the victim no longer exists in order to suffer the harm that has been done to him? If you must exist in order to have interests, then how can a dead person’s interests suffer as a result of his death?

To see the harm that is suffered by a murder victim, let’s think first about what it means to be harmed. If I were to harm Harry, what sort of thing would I have to do him? Intuitively, when I harm Harry, my actions make him worse off than he would have been had I not acted as I did. So when I spread vicious gossip about Harry, I have harmed him because, had I not spread the vicious gossip, his reputation would have been intact, and he would have been well-respected in his community, loved by his family, and able to complete more easily certain projects about which he cares deeply, projects that require the good will and cooperation of others. Because of my vicious gossip, Harry is now a social outcast, unloved and unaided.

So let’s try out this definition of harm:

X harms Y if and only if X’s action A makes Y worse-off than Y would have been, had X not performed A.

But now, it seems, we have a problem. If I kill Harry, how can we compare the state that Harry would have been in, had I not killed him, to the state that he’s now in, namely, dead? Since he is dead (and we’ll suppose, non-existent), he’s in no state at all. How can we compare this "non-state" to his state he would have been in had he been alive?

The answer to this puzzle, I think, is this. If Harry had survived, he would have attained all of the goods that generally come with living– pleasure, deep relationships with others, philosophical knowledge . . . (complete this list with whatever you count as genuine goods). Of course, had he lived, it’s likely that he would have had some hard times, too– some pain, frustration, heart-break, and so forth. But so long as his life would have been worth living for him, the goods that he would have had, had he survived, would have outweighed the bads that he would have had, had he survived. When I kill Harry, I prevent him from attaining these goods.

When we attempt to figure out the harm that Harry has suffered when I kill him, we should not compare Harry’s state after his death to the state that Harry would have been in, had I not killed him: for the reasons that I give above, such a comparison is impossible. Instead, when we attempt to figure out the harm that Harry has suffered when I kill him, we should compare the totality of goods that Harry would have had over the entirety of his life, had I not killed him, to the totality of goods that he had actually attained in the life that I cut off. If his life would have been worth living, then I did indeed harm Harry when I killed him: I deprived him of all of the goods that he would otherwise have had, had I not killed him.

It is true that, once a person has been executed, she is no longer around to suffer the loss of years she might otherwise have lived. But the point of an execution is not to punish the person after she's dead, but before. She is subjected to the experience of living on death row and later to the experience of being killed in the execution chamber; and she must expect all along that many things she cared for are less likely to thrive or to come to fruition. You might respond that this answer works only for people who know about their impending execution. What about someone who is killed painlessly in her sleep? Could this ever be construed as a punishment? We can give an affirmative answer if we think of punishment in a somewhat extended sense as the setting back of a person's interests. Suppose you have given offense to someone and, in order to punish you, he has been embezzling money from your account. Being an affluent entrepreneur, you never notice the losses (you rather take your business to...

When it comes to matters of law, are arguments for deterrence distinct from

When it comes to matters of law, are arguments for deterrence distinct from arguments about morality? Are practical concerns separate from moral judgment? It seems one thing to say "we should outlaw murder so as to prevent murder" and another to say "we should outlaw murder because it is wrong". -ace

The two statements in quotes are surely different. But the first can also express a moral standpoint: that it is morally important to achieve a low murder rate. This moral standpoint is reflected in various more specific claims.

1. We should not inflict punishment or pain on anyone unless doing so produces some good for others (e.g., by preventing the person from offending again or by deterring others).

2. We should inflict pain whenever doing so produces some greater good for others.

This second claim is highly problematic insofar as it may justify "punishing" the innocent when doing so helps deter real criminals. For this reason, those who hold deterrence to be morally important often claim instead:

3. In deciding how severely to punish specific types of crime, we should take into account how much of an impact greater severity would have on the frequency of this crime.

This third claim is consistent with the idea that people may be punished only for having done something wrong. But it allows two kinds of conduct that are equally wrong to be punished differently. One crime is punished lightly, yet some equally bad crime is punished more severely because here such punishment is more effective in getting the crime rate down. Moral arguments are made both for and against this claim.

The two statements in quotes are surely different. But the first can also express a moral standpoint: that it is morally important to achieve a low murder rate. This moral standpoint is reflected in various more specific claims. 1. We should not inflict punishment or pain on anyone unless doing so produces some good for others (e.g., by preventing the person from offending again or by deterring others). 2. We should inflict pain whenever doing so produces some greater good for others. This second claim is highly problematic insofar as it may justify "punishing" the innocent when doing so helps deter real criminals. For this reason, those who hold deterrence to be morally important often claim instead: 3. In deciding how severely to punish specific types of crime, we should take into account how much of an impact greater severity would have on the frequency of this crime. This third claim is consistent with the idea that people may be punished only for having done something...

Is it better to have a criminal justice system that runs the risk of, in every

Is it better to have a criminal justice system that runs the risk of, in every 100 people being acquitted, that 1 will go on to commit a terrible future crime; or one that runs the risk of, in every 100 people being convicted, there being 1 who was innocent? Sorry about the tortured phrasing of my question...

Any realistic criminal justice system will make both types of error: T-errors (terrible future crime committed by one wrongly acquitted) and I-errors (innocent person wrongly convicted).

It seems morally more appropriate here to compare alternative systems feasible for the same society in terms of the total number of errors, not in terms of the ratios you focus on (ratio of T-errors to total number of acquitted, ratio of I-errors to total number of convicted). To see this, take a criminal justice system under which 100,000 are acquitted of whom 2000 are wrongly acquitted and go on to commit a terrible crime. Now suppose we modify this system so that many more innocent people are tried and properly acquitted. So now we have 200,000 acquitted of whom 2000 are wrongly acquitted and go on to commit a terrible crime. So we got the T-error rate from 2 percent down to 1 percent. But have we improved the system? Surely not.

So I rephrase your question this way: In designing our criminal justice system, should we give greater weight to avoiding T-errors or to avoiding I-errors?

There is a widely held view bearing on this question. In one famous formulation by William Blackstone (www.law.ucla.edu/volokh/guilty.htm), it says: “It is better that ten guilty persons escape than one innocent suffer.” I think what stands behind this view is the idea that we as a society bear a far weightier responsibility for harms to innocents that we directly bring about than for harms to innocents that we merely might have prevented.

This idea is familiar in pedestrian contexts. It would be wrong to kill one innocent person in order to save another. It would be wrong to harm one innocent person in order to rescue another from a similar harm. It would be wrong to risk the life of one innocent person to prevent a risk to the life of another (risks being equal). And it would be wrong to cause a risk of harm to one innocent person in order to prevent the same risk of harm to another. In all these cases, agents ought to give more weight to harms and risks of harm they directly bring about than to similar harms or risks of harm that they merely fail to prevent.

This almost answers the reformulated question: We should give greater weight to avoiding I-errors than to avoiding T-errors. I say "almost", because the average harm associated with errors of each kind may not be equal. So the conclusion might conceivably be overturned if the harm done by the average I-error is just a few days in jail without public stigma while the average harm resulting from the average T-error is a minor massacre. But this is not true in the real world. Here, in order seriously to reduce the number of terrible crimes committed by persons wrongly acquitted, we would have to make it easier to convict people accused of very serious crimes and then take those convicted out of circulation for very long periods or forever. And doing this will inevitably increase the number of innocent people who, wrongly convicted, are locked up for very long periods or even executed.

Any realistic criminal justice system will make both types of error: T-errors (terrible future crime committed by one wrongly acquitted) and I-errors (innocent person wrongly convicted). It seems morally more appropriate here to compare alternative systems feasible for the same society in terms of the total number of errors, not in terms of the ratios you focus on (ratio of T-errors to total number of acquitted, ratio of I-errors to total number of convicted). To see this, take a criminal justice system under which 100,000 are acquitted of whom 2000 are wrongly acquitted and go on to commit a terrible crime. Now suppose we modify this system so that many more innocent people are tried and properly acquitted. So now we have 200,000 acquitted of whom 2000 are wrongly acquitted and go on to commit a terrible crime. So we got the T-error rate from 2 percent down to 1 percent. But have we improved the system? Surely not. So I rephrase your question this way: In designing our criminal justice...

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