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July 03, 2011

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Mark

Sometimes erudite beyond my ability to follow, I was frustrated at seemingly casual reasoning used during this podcast. Sometimes I feel as though we descend into "mere" semantic games.

Considering even a near perfect capture probability but with (only) a fair and proportionate responsive punishment "threat", potential criminals would judge the expected value of their acts hopefully, and elect to roll the dice. Is this not an argument for disproportionate punishment? This came up at 4 minutes in but you (both?) agreed to dismiss it out of hand just because it "seemed" wrong, if an innocent were to be thus punished though it seems a simple utilitarian calculation. I think clearly you have let emotion rule reason in that instance.

On retribution, that was little explored. Clearly it may involve intangibles: If for instance you steal my luggage at the airport, the loss of the swimsuit may have consequences to me much more severe than the mere cost of it. if you will accept that this is all calculable (though perhaps difficult and subjective), it seems possible that a merely retributive model would suffice, from the victim's perspective.

Thank you as always, for the though provoking podcast.

Mark

Nigel Warburton

Victor Tadros replied:

Hello Mark

Thanks very much for the comment. I think that you are assuming that punishment will be proportionate only if the harm that is imposed on the offender is no greater than the harm that he or she has caused. I don't assume that. Where a person has stolen a watch, for example, it would be proportionate to punish her in a way that harms her to a greater degree than she has caused by the theft. But punishment can nevertheless be disproportionate - for example, the death penalty for theft of a watch. This is similar to proportionality in self-defence. It is not disproportionate to kill a person to prevent him committing rape even though death is (typically) more harmful than suffering rape. It would be disproportionate to kill a person to prevent her committing a minor theft.

I wasn't sure about your second comment. I don't think that wrongdoers deserve to suffer at all, in the sense that retributivists assume - that is, their suffering is not in itself good, though it may have good effects. If victims think that it is good in itself that wrongdoers suffer, I think that they are mistaken, and their mistaken beliefs give us no reason to punish offenders.

Victor

Ak Mike

Prof. Tadros - thank you for the thought provoking podcast. I am puzzled by your answer to Mark - you seem to be in favor of one generally accepted principle of punishment (proportionality) and against another (retribution). You say retribution is a mistake. Why are believers in retribution mistaken, while believers in proportionality are correct? Is there any support for your dislike of retribution other than an emotional revulsion from suffering?

Victor Tadros

Hello Mike

Thanks for your question. I didn't say much at all about this in the interview, so you are right to raise it.

Here, very briefly, are four reasons to think that retributivism is false (I mount a fuller defence in ch.4 of my forthcoming book The Ends of Harm, if you are interested)

1) It is difficult to square the idea that it is good that wrongdoers suffer with our best conception of free will.
2) Focus on the kind of harms that punishment typically imposes (restriction of liberty through imprisonment and deprivation of financial resources through fines). It is difficult to believe that the suffering caused by these things is good. Imprisonment and fines prevent offenders from doing good things and bad things. They might suffer at being prevented from doing either kind of thing. It is difficult to believe that it is good that they suffer at being prevented from doing good things (such as raising their children well, for example). And even if it were good, it is difficult to believe that their suffering is sufficiently good to outweigh the value of the good thing they are prevented from doing (do we really think that making offenders suffer at the frustration of not bringing up their children well is sufficiently valuable to outweigh the loss?). It is also difficult to believe that it is good that they suffer at not being able to do bad things. For them to suffer at this, they need to be motivated to do bad things, and it would be better were they not to have these motivations.
3) There are some very difficult cases for retributivists to deal with without horribly counterintuitive results. Here is just one example. Suppose that a person who is about to suffer a great deal because she suffers from depression commits a crime. It appears that we have no reason to punish her on retributivist grounds. She is already suffering as much as she ought to. Does that mean that those who are about to suffer from depression are free to commit crimes?
4) It seems a waste for the state to spend a lot of money simply on making bad people suffer even if this was good. Better to support the arts, or make good people happy, or do more to protect the natural environment. And given that there are fundamental disagreements about whether it is good that bad people suffer, it may be illegitimate for the state to spend significant resources on this end. I don't think this is good. What grounds does the state have to spend my taxes on some end that I reasonably disagree is good? It is much easier to justify spending my resources on the protection of the rights of victims and other citizens.

Daniel T.

Mr. Tadros, I am finding it hard to accept your view of consequentialism. You state that if it is the case that if punishing an innocent person could stop five others from committing a crime (assuming the fact of the person's innocence could be hidden,) then the consequentialist must accept that this would be a good thing. This is much like the Doctor killing one healthy patient in order to harvest his organs and save 5 sick patients. I can't agree with this.

Imagine living in a world where at any movement you could be convicted of a crime despite the fact that you are innocent of that crime. That is the sort of world that would exist if one accepted your assertion. Would such a world actually be better for all concerned than one where innocents could not be convicted? Of course it would not, therefore the consequentialist model requires that innocent people not be convicted of crime, because even if it saved five victims, it would harm *everybody.*

Please try not to be so narrow minded when considering the consequentialist viewpoint.

Victor Tadros

Daniel

Sorry, I only just saw your comment.

In such a world, our fear of being convicted of a crime that we did not commit would increase. Our fear of crime would decrease by more. If we are consequentialists, why not make ourselves less fearful overall?

Also, even were it true that our fear would increase overall were conviction of the innocent permitted, it is difficult to believe that this is the reason why conviction of the innocent is wrong

Victor

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