Sentencing to time served

Sometimes people are sentenced to “time served”: the time they spent in jail prior to trial is retroactively counted as their sentence. But doesn’t justice call for harsh treatment to be imposed as a punishment? The jail time, however, was not imposed on the malefactor as a punishment—it was imposed on a person presumed innocent to negate a probability of flight. How can it turn into a punishment retroactively?

Well, one solution is to reject a retributive account of punishment. Another is to say that justice is served by such punishment.

But I think there is a less revisionary approach. Instead of saying that justice calls for harsh treatment to be imposed, say that justice calls for one to ensure something harsh happening as a result of the crime. Sometimes, one ensures a state of affairs by causally imposing it. But one can also ensure a state of affairs by verifying the occurrence of the state of affairs while being committed to causing the state of affairs if that were to fail.

This provides a way for a retributivist to accept the intuition that if someone is paralyzed for life as a result of trying to blow a bank vault, there need be no further call to send them to prison—one may be able to ensure more than sufficient punishment simply by verifying that the paralysis occurred as a result of the crime. Another way for the retributivist to accept that intuition would be to say that while we didn’t impose the paralysis on the robber as a punishment, God did. But the move from imposing to ensuring allows the retributivist to avoid mixing up God in human justice here.

Justice and taxation

No system of taxation currently in use distributes the financial burden in a completely fair way. I think this is something that just about everyone will agree on, though where exactly the unfairness is located is a controversial question. I do not mean that the unfairness is intentional or even foreseen by the legislators, but more like this: there will either be a pair of individuals A and B such that it would be fairer if A were taxed more and B less (it's also possible, but less likely, that (a) everybody is taxed more than justice allows or that (b) everybody is taxed less than justice requires; I'll neglect (b), and leave the extension of the arguments to (a) as an exercise).

This is not something we can complain about much. No legal system can cover all cases adequately. But here is an interesting consequence: An across-the-board increase in taxes is very likely to exacerbate some instances of injustice. For if fairness requires that A be taxed more and B less, then when we raise A's and B's taxes, we will likely be overtaxing B by a greater amount than before, and hence the injustice to B will very likely be the greater. (This can be controversial. One might think that what matters are the ratios, not the absolute amounts. I am inclined to disagree.) This means that we have a prima facie consideration of justice against across-the-board tax increases.

Moreover, I think the above considerations generate a prima facie consideration of justice against government spending. For if overall spending were even slightly lowered, a slight across-the-board decrease in taxes would be made possible, and that would slightly decrease the severity of the unfairness to B.

Of course, the reasons above are only prima facie and defeasible. Double Effect can permit the increase of spending and across-the-board increase in taxations when the injustices are not intended and a sufficiently serious good—perhaps itself a good of justice—is being pursued. So while the above considerations sound like they would generate fiscally conservative conclusions, in practice the effect of the considerations could be quite small or nonexistent. Or it could be large. I don't know. But it is still interesting to me that the defeasible reasons against spending and across-the-board tax increases are reasons of justice—I didn't think of them that way before I noticed the above arguments. And I suppose it would be healthy for legislators to think of them as reasons of justice, if they are indeed such.

A weakness, however, in the above arguments is that it is not clear whether it makes sense to talk of unintentional injustice. If I am convicted of a crime I did not commit, but on excellent evidence and with solid legal procedures, have I really suffered an injustice? If the answer is negative, then we may not be able to say, strictly speaking, that B has suffered an injustice by being taxed too much. Maybe, though, the thing to say is this. My conviction of a crime I did not commit is not an injustice; but justice requires that such convictions be minimized. Likewise, the allocation of too high a tax burden to B is not an injustice; but justice requires that such misallocations be minimized.

The incorrect conviction analogy also suggests that we have a prima facie reason of justice not to increases criminal sentences across the board. For each across the board increase of sentences is likely to result in some innocent serving an even greater sentence than otherwise. (However, there is a difference with the taxation case. For while justice does not intrinsically call for taxation (though taxation may be a necessary means to ends that justice requires the pursuit of), justice does intrinsically call for the punishment of the guilty.)

Pacifism

The pacifist believes that one ought not engage in problematic violence in war even if all the standard jus ad bellum conditions are satisfied. "Problematic violence" here means the level of violence that is prohibited. Probably few pacifists would think it would be wrong to push violent foreign soldiers away without hurting them. So, presumably, pushing someone painlessly away doesn't rise to the level of "problematic violence." Where the pacifist draws the line may differ from pacifist to pacifist, but I take it that lethal violence, i.e., violence that, if successful, has a high probability of resulting in the opponent's death, counts as problematic, even when the death is not intended. Thus, I take it that the pacifist will be opposed to shooting at an enemy soldier's heart even when one is using double effect and intending the disablement rather than the death of the enemy soldier. This is all stipulative of what I mean by "pacifist".

Question: Can the pacifist consistently permit problematic violence in law enforcement situations?

If not, then pacifism is seriously problematic, since it seems pretty clear that it is practically impossible to have a decent, self-sufficient community enduring over time without lethal violence to contain violent criminals.

But I think the answer to the question is in fact negative. For how could one draw a line between war and law enforcement? When the invading army marches in, burning crops and murdering citizens, they are breaking the victim country's laws. If problematic violence is permitted to enforce the laws of one's territory, it should be permissible to use problematic violence to stop them. But this seems to be a case of war. Hence, some lethal violence is permitted in some wars, contrary to what I stipulated as the view of the pacifist.

Perhaps, though, the pacifist could claim that it is only permissible to enforce a country's laws with problematic violence on the country's subjects, and an invading army does not consist of subjects. But this is deeply implausible. If it is permissible to use problematic violence to stop a citizen wife from murdering her citizen husband, it should also be permissible to use problematic violence to stop a non-citizen woman who sneaked into one's country to murder her citizen husband. Moreover, this should be permissible even if the woman was commissioned by another state to kill her husband. But if we allow that it is permissible to use problematic violence against criminals acting on behalf of foreign states, then there seems to be no way to deny that it is permissible to use problematic violence to stop invaders.

There is, though, a consistent position the someone could hold here: Problematic violence by agents of a state must be confined to that state's territory. This is not a pacifist position by my stipulation of what a "pacifist" is. But it may be thought to be a pacifist position in a broader sense. But I am not so sure. It seems that this is not so much a position against violence, as a position about jurisdiction.

Crime, attempt and guilt

A lot of people think that someone who has succeeded in committing a murder has thereby done something morally worse than someone who unsuccessfully attempted a murder, and is guilty of a greater offense. Specifically, they believe:

1. Ceteris paribus, one is more guilty in successfully committing an evil than in attempting to commit the same evil.

This doctrine has always seemed self-evidently false. I wonder a bit whether some proponents may not be confusing guilt with responsibility (if one successfully commits the evil, one is responsibility for the occurrence of the evil), or maybe with legal questions as to what punishment should be levied (we have good reason to levy lower penalties on unsuccessful attempts so as to create an incentive not to try again[note 1]) or perhaps issues of torts or restitution.

Here is a quick argument against (1). What one is guilty of now should not depend on what happens after one is dead. But whether a crime is successful can depend on what happens after one is dead (think of someone who sets a bomb on a timer, places it in the desired location, and then is run over by a car before the bomb explodes).

Here is a more complicated, but perhaps stronger, argument. If Jennifer wants to kill her husband George, but her shot misses and kills a bystander, her action is clearly unsuccessful. Now it seems very plausible that Jennifer is no less guilty when she kills the bystander by missing her husband than were she to successfully kill her husband. Therefore in cases where the unsuccessful crime results in the same kind of evil that the successful crime would have resulted in, one is no more guilty in the successful case.

It might be responded that Jennifer is successful, because it is her intention to kill someone, and she has killed someone. But that equivocates on "intention to kill someone". One way to intend to kill someone is for there to be a particular person, x, whom one intends to kill. The other way is to indiscriminately try to kill someone or other. The second intention is had by some crazed killers, but that is not Jennifer's intention. Her intention is of the first kind, an intention to kill her husband. Killing someone other than her husband is not success at all (to make this absolutely clear, suppose that she accidentally shoots and kills herself while trying to shoot her husband; then she has killed someone, but plainly her action is a failure).

This is not yet a counterexample to (1), because of (1)'s ceteris paribus clause. But suppose that we accept (1) and also accept the judgment that Jennifer is no less guilty when she misses her husband and kills a bystander than when she kills her husband. I think that to justifiedly accept both of these claims, we will need to say something like this: "Yes, Jennifer failed at her crime. However, her evil action resulted in an unintended evil, and when one sets out to do an evil, one is guilty for all the evils that result, regardless of whether one intended them or not." There is a German proverb, Hegel says, that a stone thrown is the devil's—the consequences of an evil action are all one's fault. To accept both (1) and that Jennifer is no less guilty when she kills a bystander seems to require a strong version of the devil's stone doctrine—not only is one guilty for all the evil consequences of an evil action, but one is no more guilty for the intended ones than for the unintended ones.

But this strong version of the devil's stone doctrine is false. Suppose Patrick litters by tossing a candy wrapper out the window, and that wrapper then is eaten by a bird who chokes on it and dies, and the dead bird is several days later eaten by a bear, who then gets tummy ache because the bird was dead too long before the bear ate it, and as a result of suffering from the tummy ache the bear trips near the top of a mountain, thereby triggering an avalanche that kills a hundred skiers. Now even if one thinks there is something to the devil's stone doctrine, one would surely not say that Patrick is just as guilty in this case as he would be were he to have put a bomb in the ski lodge, thereby intentionally killing the same skiers.

Perhaps, though, there is a weaker version of the devil's stone doctrine available. Maybe:

2. One is guilty of an amount E of evil that results from an evil action up to a maximum level set by the total evil that was foreseen (or, maybe, could reasonably have been foreseen) by the agent.

Thus, Jennifer is guilty of the death of the bystander, because the evil in that death is less than or equal to the evil involved in the expect death of her husband. But Patrick is not guilty of the skiers' deaths, because that evil went far beyond what could have been reasonably expected—at most the death of the bird could have been reasonably expected.

It seems to me now that the best way for the defender of (1) to accept that Jennifer is just as guilty when she kills a bystander as when she succeeds in killing her husband is to accept (2). However, I think (2) should be rejected, and this is a reason to reject (1).

Why should we reject (2)? One reason is that we do not have a good account of causation that will answer when an evil counts as "resulting" from an evil action and where that answer will make (2) match our intuitions. Counterexamples to (2) given particular accounts of causation are very easy to manufacture. Suppose, for instance, that we take a counterfactual story, on which B results from A provided that B would not have happened had A not happened. Then, for instance, we do not account Jennifer a murderer if she successfully shoots her husband when there was someone else standing by who would have shot him if she did not.

Of course one could respond that there is indeterminacy in causation, and that there is a matching indeterminacy in guilt. Here the argument will have to rest at this point. I think guilt is an objective property (perhaps reducible to others), and I don't believe in indeterminate or vague properties.