In this month's issue of Analysis, there appear two articles replying to Saul Smilansky's piece from last October, "Determinism and Prepunishment: The Radical Nature of Compatibilism", which we discussed on the Garden here. One is by Stephen Kearns and the other by Helen Beebee (subscription required to access). Happily, the issue also contains replies by Smilansky to each of his critics.
(Also in the issue is Joe Campbell's rejoinder to Brueckner's reply to Campbell's article about the Consequence Argument, which we have also discussed at the Garden here. In fact, both Campbell and Smilansky cite the Garden in footnotes!)
The articles are all quick reads, so I recommend them to everyone. However, just for the sake of discussion, I provide summaries and my own opinions below the fold.
Kearns has two main problems with Smilansky's argument. First, he points out that many compatibilists maintain that even determined wrongdoers nevertheless have the ability to refrain, and thus that we should still allow them the opportunity to exercise that ability. Second, he points out that there are imaginable circumstances in which the prepunishment is actually what causes the punished person to commit the crime at some later point in time. In these circumstances, Kearns maintains, prepunishment is surely morally abhorrent, and the compatibilist can agree.
In his reply, Smilansky responds to Kearns' first point by asking what we could possibly be waiting for when we say that we are allowing future wrongdoers the opportunity to exercise their ability to refrain from committing the crime. They *will* do it, and thus it would seem pointless to wait around. In response to the second point, Smilansky says that the circumstances imagined by Kearns are irrelevant to his main argument, since the sorts of case Smilansky had in mind did not involve the prepunishment causing the future wrongdoing.
It seems to me that Smilansky's responses here are decisive. Moreover, an additional way to respond to Kearns' first point, it seems to me, is simply to say that he is conflating ability with opportunity (even when 'ability' is construed in a compatibilist-friendly way). Kearns says: "According to many compatibilists, even if a person is determined to do something, she is still able to decide not to do this thing. Of course, she won't decide not to do it, but she can. Thus before she commits a crime she is still able not to do so. Even if she firmly intends to commit the crime, she is able to change her mind. Therefore, she still has the opportunity to remain innocent" (p. 251). But it seems to me that the relevant sense of 'opportunity' at play in the claim that we ought to allow even future wrongdoers the opportunity to refrain is a sense that is not entailed by any compatibilist-friendly construal of 'ability'. So Kearns' move here from the agent's ability to refrain to her "opportunity to remain innocent" seems either fallacious or at least involving an unhelpful sense of 'opportunity'.
Beebee also has two objections. First, she points out that what seems to be driving Smilansky's argument isn't determinism but predictability instead. What seems to bother Smilansky is the mere fact that there is a determinate fact of the matter, ahead of time, about whether someone will commit a crime. But even some libertarians are committed to this, so there is no special problem for compatibilism here. Her second objection involves an appeal to the way we punish people for conspiracy to commit murder -- it does amount to prepunishment in certain circumstances, she argues, and so it is unclear that prepunishment is always so morally abhorrent.
Smilansky replies to her second objection by maintaining that even when we punish people for conspiracy to commit murder, this does not count as prepunishment -- we aren't punishing them for the act that they were planning to (but didn't) commit. Rather, we are punishing them for something they did do in the past, namely conspire (or something along those lines). This seems a persuasive response to me.
I am less persuaded, however, by Smilansky's response to Beebee's first objection. He says that that mere predictability is not sufficient for prepunishment. Rather, "the reason why we may punish at t0 is not predictability but that the crime, in a sense, is already there" (p. 261). And the crime is "already there", according to Smilansky, because the intention to commit the crime is already there, and it is determined that that very intention will cause the criminal action at some point in the future. As he puts it on the next page (p. 262), in these circumstances, the crime "deterministically pre-exists". On a libertarian view of things, on the other hand, "the crime obviously cannot already be there, at t0, because it is going to be caused, through the exercise of LFW, only later" (p. 262).
I may be missing something in Smilansky's response here, but it seems to me that he is drawing a distinction without any metaphysical basis. Suppose just for the sake of simplicity that eternalism is true: that is, suppose that past and future objects exist, as well as present objects. (The past and future objects do not exist now, of course, but the eternalist does not think that such a property is required for existence.) Now consider two scenarios: one in which determinism and compatibilism are both true, and in which someone has at t0 an intention (which will be causally efficacious) to commit a crime at t1, and the other in which libertarianism is true and in which someone has at t0 an intention (which will be causally efficacious, though not deterministically so) to commit a crime at t1. If prepunishment is permissible in one of these scenarios, I would think it should be permissible in the other, as well. Smilansky seems to think that the crime in the first scenario is somehow more robustly "already there" at t0 than it is at t0 in the second scenario, but I can't see how to understand this claim. It's certainly true that it is determined in the first scenario and not in the second, but how does this make it more "already there"?
In any case, I'd be interested to hear what others think about this issue. It's interesting, and I'm glad for all four of the Analysis articles, which have given me the opportunity to think more about it.
UPDATE: I went back and read some of the comments in the thread where we discussed Smilansky's original paper, and I think Smilansky may simply reply to my last worry by denying eternalism. He seems to suggest this in his comment on October 3, 2007 at 10:15am. It would be interesting if the worry about prepunishment depended upon some particular view about the ontology of time.