(p.649) Appendix E The Fair Warning View
(p.649) Appendix E The Fair Warning View
Even if no one deserves to be punished, that does not imply that all punishment is wrong. Since the word ‘punishment’ is sometimes used in a retributive sense, I shall here use the more neutral word ‘penalty’. We can plausibly believe that, when certain acts have been made illegal, so that these acts are crimes, our community can be morally justified in imposing certain penalties on those who knowingly commit these crimes.
Such penalties, we can admit, need to be morally justified, since they impose burdens on people, and such burdens are not deserved. But of the people who believe in retributive justice, nearly all believe that we are sometimes justified in imposing undeserved penalties. That is true, for example, in cases that involve strict liability. There are various penalties that people can be justifiably required to pay, even if they have not knowingly committed any crime, nor been negligent or to blame in other ways. Some examples are the fines or damages that some people are required to pay for harms that were caused by their young children.
In most kinds of case, we can plausibly claim that
(W) though penalties cannot be just or unjust in the desert-implying retributive sense, such penalties can be fair or unfair.
When people knowingly commit some crime, or break some other rule or regulation, it may be fair to impose some penalties on these people, which may be either imprisonment or fines. Such penalties are, in some ways, like the prices that we know that we shall have to pay if we act in certain ways. In many cases, for example, we cannot reasonably expect to be permitted to take away someone’s property unless we pay some price, in a free exchange, so that this property first becomes ours. In (p.650) such cases, if we steal someone’s property, and we are caught, we cannot reasonably object to paying some greater price, which would here be imposed on us as a penalty. The extra payment would be intended in part to cover the costs of our being caught and convicted, and in part to deter similar future crimes. Even if such penalties are not deserved, they may not be unfair, since they are the penalties that these people knew would be imposed on them if they commit these crimes, and they are caught and convicted. If these penalties would also do enough good, by deterring other crimes, these facts may be enough to make these penalties justified.
These claims do not apply to people who have not committed any crime. Since these people have not chosen to act in some way for which they knew that penalties would be imposed, it would be unfair to impose any great penalties on them. This unfairness provides a strong moral objection to imposing such penalties. And unless these people were falsely believed to have committed some crime, these penalties would also do nothing to deter future crimes. These facts would always, or nearly always, make such treatment wrong.
When we claim that it would be unfair to treat people in certain ways, we are not claiming that such treatment would be retributively unjust. This distinction is clearer in cases that don’t involve any penalty or reward. If you were made to pay for something that you hadn’t bought, or for some service that you hadn’t received, that treatment would be unfair, though you don’t deserve not to be treated in this way.
This account of justified punishment could be called the Fair Warning View. To illustrate this view, we can consider the importance of avoiding mistaken convictions. Suppose we knew that, if we had much stronger legal safeguards in the procedures of criminal trials, it would be true both that
somewhat fewer innocent people would be mistakenly convicted and punished for murder,
many murderers would not be convicted, and many people would not later be deterred from committing murders.
(p.651) We might be able to predict that, for each innocent person who is not mistakenly punished, at least two innocent people would later be murdered.
It is often claimed that, if we believe in retributive justice, we shall give more weight to avoiding mistaken convictions, and less weight to deterring later murders. But that may not be true. If we are Retributivists, we shall believe it to be bad when any innocent person is punished, since this person is not then being treated as he deserves. But we shall also believe it to be bad when any guilty person is not punished, since this person is also not being treated as he deserves. If we have stronger legal safeguards, so that many fewer murderers are punished, we may on the whole be less successful in treating people as we believe that they deserve to be treated.
If we are not Retributivists, we do not believe it to be in itself bad when murderers are not punished. Though we believe that innocent people do not deserve to be punished, we also believe that guilty people do not deserve to be punished. On our view, all punishment is in itself bad. We therefore have less reason for regret if, as one result of reducing the risks of mistaken convictions, we punish fewer murderers. We may also have a different reason to reduce these risks. On the Fair Warning View, it is in itself bad, because unfair, when anyone is punished for some crime that he or she has not committed.
Even if these views gave similar weight to avoiding mistaken convictions, our attitudes to punishment, and to the people who are punished, would be transformed by disbelief in retribution. We often have more reason to be sorry, not for the victim of some crime, but for the criminal. Compared with their victims, criminals have often lived more deprived and wretched lives. When we imprison such people, in order to deter future crimes, we should greatly regret what we are doing. We should regard these criminals as like people who are quarantined, because they have some dangerous and infectious disease. Any criminal’s well-being matters just as much as ours.