Kearns and Beebee Reply to Smilansky

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.

Comments

[Mark Smeltzer]

Neal,

Thanks for the heads up. I rather enjoyed the discussions that emerged in the previous thread on this subject.

In the prior thread, I argued that ALL of Saul's cases involved some sort of real liability in the past before the crime was committed, and that compatibilists could explain a non-abhorrent right to punish by appealing to those guilt conferring facts. The guilt would certainly be limited to the scope of the facts, but this liability promises to be real, non-abhorrent punishment-entailing guilt nonetheless.

Saul replied by saying there are other cases that aren't affected by the "over moralization" that I latched onto in the cases he offered, but he did not specify any of those cases to backup his point.

One of the movies I saw recently (though I won't say which one and spoil it for anyone) contained a case that may illustrate some of the points that Saul was making later in that thread:

1. A virtuous man's beloved fiance is brutally murdered.
2. The sheer violence and cruelty of this act erodes the man's foundations for upholding virtue.
3. This loss of "faith" in virtue triggers a violent restructuring of his values.
4. His new, warped values lead him to become a murder himself.

It seems unquestionable that it would be morally abhorrent for us to punish this man before his fiance is killed, and completely warranted for us to punish him after he commits to committing his first murder. The question I think Saul presses is how (and where) can the compatibilist draw the line between these two extremes.

Does this seem a fair way to sum up Saul's challenge to compatibilists? I hope I'm not over simplifying things.

[Clarissa Millarker]

Without having access to the articles and relying on Neal's summary, it seems to me that Kearns is on to something. If retributive punishment is justified at all, it seems that it is justified as a response to behavior. However, if carried out prior to the naughty behavior, it seems inappropriate to consider it a "response" at all... even in the deterministic case in which an intention (to do wrong at t1) is guaranteed to be efficacious in the future when it arises at t0. In the game of Whack-a-Mole that is retributive punishment, bonking a mole who has not yet emerged from his mole-hole gets you no points.

Very limited "punishment" of a utilitarian character (to prevent wrongdoing or protect people from wrongdoing) seems okay, however, and it seems that Kearns has at least a signpost to this insight when he points out that prepunishment could actually be the cause of blameworthy behavior in some cases. Any punishment that causes the very bad behavior it is meant to stamp out is sure to be rejected by utilitarian reasoning. If prepunishment can prevent wrongdoing, however, the utilitarian would apparently have to conclude that we should prepunish in that instance.

This, however, leads to a fresh puzzle: if prepunishment prevents the wrongdoing, then for what is the agent being prepunished? The utilitarian might simply shrug and respond that the consequences of prepunishing (or, performing the act that would have been prepunishing if the wrong-doing had been allowed to occur) are preferable to the consequences of refraining from prepunishment.

However, this line of reasoning toward prepunishment that prevents wrongdoing seems slightly suspicious to me, because it seems that there is no possible world in which all of the following are true:
1) W entails (if P, P is a response to W)
2) ~W entails ~(if P, P is a response to W)
3) P entails ~W
4) W entails ~P

In a deterministic world where P prevents W (and the non-occurrence of W is not overdetermined, naturally... ~W's being overdetermined would defeat W's serving as a justification for P, anyway), surely 2 and 3 are true. 2 is simply the denial that one could be "prepunished" for something one will never do (which seems true), and 1 is what I take to be a plausible translation of "P counts or would count as prepunishment for W."

This is not strictly a problem for the utilitarian, since the utilitarian should simply choose to act so as to bring about the best possible state of affairs (and so, choose P without regard to any counter-factual weirdness surrounding W.) However, for any compatibilist who demands that the agent deserve P, this looks like a serious problem... Unless, of course, we allow ourselves imaginary worlds analogous to the imaginary numbers to which mathematicians help themselves. It's a shame David Lewis left us so soon.

Obviously, I've shot from the hip, here, but I hope someone can come along and make some sense of this.

[Matt King]

Since Neal brought this up again, I thought I might post my response to Smilansky, since I think it's simpler than either Kearns' or Beebee's. I'm curious to see what the gardeners make of it.

Smilansky's making two main claims.
(1) Compatibilists can offer no principled objection to prepunishment; while,
(2) Libertarians can offer an intuitively plausible principle: respect for persons forbids us from prepunishment so as to allow the individual to change his mind.

Thus, Smilansky's charge is both that compatibilists can't offer any good principle, *and* that libertarians have a very good one to offer.

But I think it clear that compatibilists do have a principle they can offer; indeed, it's one that anyone can offer, no matter one's affiliation. And, I think, it's just as plausible as Smilansky's principle.

I call it: Just Punishment Requires Responsibility (JPRR). JPRR states that an individual S can only be justly punished for x, if S is responsible for x.

JPRR is a highly intuitive principle; I would argue at least as intuitive as Smilansky's own. And compatibilists can clearly offer JPRR even in the cases Smilansky examines. Just because it is determined that S will do x at t1, even if S now (at t0) has most of the mental states which would be relevant to explaining his responsibility for x, it doesn't follow that he *is* yet responsible for x. And if he isn't responsible for x, then he cannot be justly punished for it.

At most the compatibilist is committed to the claim that S *will* be responsible for x at t1, and that perhaps we could know this with 100% certainty (or beyond a reasonable doubt, as Smilansky emphasizes). Smilansky wold have to show that because S will satisfy compatiblist conditions on responsibility at t1, he satisfies them now. But I know of *no* such compatibilist who holds such a view, and compatibilism as such certainly isn't committed to such a view.

Smilansky, indeed, anyone, might of course object to JPRR. It might not be true. But it seems to me a perfectly plausible candidate. Indeed, part of its plausibility seems stem from its *not* taking a stand in the dialectic.

[Neil]

Matt, you can't just stipulate the only after the event the agent will be responsible for it; you need to say in virtue of what the agent will be responsible for it. A natural possibility is to say that we need to wait to give the agent the opportunity to do otherwise. But well-known difficulties lie in that direction.

Neal, Smilansky may reject eternalism, and for all I know he may be right to do so. But predictability - beyond reasonable doubt - does not depend on eternalism, and all libertarians are committed to the view that there are some morally significant actions performed by actions that at least indirectly free and for which the agent is responsible. So Beebee seems right in thinking that prepunishment is a problem for everyone.

[Cihan Baran]

Hello,

It's best to remember the most troubling case for pre-punishment, which might also be considered Smilansky's strongest case in my opinion. If I remember correctly, it went as follows:

Case X: An agent A is going to commit a crime C at time t_c. We are unable to punish A after he commits the crime at t_c or prevent him from committing the crime at t_c. Moreover, our punishing A before t_c will have no bearing on his deliberations and/or motivations for C. A will go onto commit C whether we prepunish him or not.

JPRR may be highly intuitive but in Case X, doesn't it actually amount to letting go of the agent?

The case I have in mind is troubling in two respects - it's like a moral dilemma. If we don't pre-punish the agent, we sort of allow him to do what he does unpunished. If we pre-punish the agent, we give him a moral cheque to commit the crime - we sort of legitimize his criminality.

Moreover, I thought that the whole appeal of Smilansky's prepunishment argument was the idea that if compatibilism is true, I am already responsible for everything that's in my future - not that I will gain responsibility when I commit the act but I already am responsible, since everything is determined.

Lastly, I don't see how prepunishment is troubling for the libertarian. Yes, there may be predictable acts in a libertarian view but the moral responsibility granting ones will be acts that are unpredictable - such as Kane's SFAs.

[Matt King]

Neil,

I'm not *stipulating* that the agent is responsible only after event. But if my compatibilist conditions on responsibility aren't satisfied prior to the action, then I'm under no pressure to grant that the agent is responsible prior to the action. If Smilansky's argument is going to work, it has to work independently of the details of libertarianism. It has to force us to accept libertarianism *because* of pressure brought on by his examples. But if I'm right that JPRR applies to his cases, then I've provided a plausible principle, one that's pretheoretically appealing, contrary to his claims.

[Neil]

Matt, you've said that the agent is not responsible prior to the event but is responsible afterwards. But you haven't said why. That looks like stipulaton to me. In fact, I accept JPRR. I guess Smilansky does too. The question is, when is the principle satisfied? You say after the event; Smilansky says that given compatibilism JPRR is satisfied now. Invoking JPRR doesn't settle this, without saying what waiting accomplishes (ie, answering my 'in virtue of' question).

[Matt King]

Cihan,

I don't think JPRR amounts to "letting" the agent go in Case X. I'm comfortable granting that there may be cases in which we can't punish people, even though we may like to. And we will be warranted in condemning him, so long as he's responsible.

Also, I don't think Smilansky has established that we're responsible for everything we're determined to do. That verdict is tied into his being right about his cases. Obviously, I think he isn't right about his cases.

[Matt King]

Hi Neil,

It's in virtue of your favorite compatibilist conditions on responsibility. So far as I can figure, no extant account is committed to attributing responsibility before the event even in the cases Smilansky describes.

Smilansky's free, of course, to claim that in his cases, there's no good reason to deny that the agent is responsible. But if one's established compatibilist account rules that the agent isn't yet responsible, I see nothing in the cases themselves that ought to push me to give up my compatibilism.

I see nowhere in Smilansky's argument where he shows that a compatibilist account would necessarily be met at all times if determinism were true. That's a bizarre claim for anyone to make, I should think.

Smilansky believes that if we know that S intends to do x, and will certainly continue to intend to x, and that he will certainly in fact x, that we have all we need to ascribe responsibility. And he may be right that, epistemically, we do have all we need. But this fact won’t amount to S actually being responsible. All we’ll know is the facts that determine she will be responsible; not that she is.
And JPRR suggests that whatever facts determine responsibility, some of them will be facts having to do with actually committing the offense. Smilansky can, of course, reject this claim, but I
think he bears the burden of showing why this radical position on responsibility, and
prepunishment in general, is more justified than the ordinary notions supported and expressed by JPRR.

In the interest of full disclosure (and shameless self-promotion), I've excerpted this last bit (with minor alterations) from my short paper on the topic, posted on my website: wam.umd.edu/~mattking.

[Neil]

My favorite compatibilist condition on MR is silent on tense. Suppose it is in virtue of moderate reasons-responsiveness (that *is* my favorite). Well, since we can know that the agent will be MRR when they act, it is directly question-begging to cite this condition against Smilansky, without adding something about what waiting adds.

[Alan]

Calvin in his Institutes first proclaimed the doctrine of double predestination--which of course includes damnation of specified individuals before (in some intelligible sense of "before") the temporal fact. This is because the future is not only fixed by the predestinator, but planned as fixed. (Those are of course logically distinct points.) Presumably Smilansky's prepunishment supposes a Calvinistic God's perfect state of knowledge of future transgressions, and given that chaotic epistemic indeterminism is entailed by finite knowledge of the future even in the case of metaphysical determinism, there are empirical limits to claims that such transgressions will in fact occur. But if infinite knowledge of such chaotic actions of the future is supposed (as the Calvinistic God might have), then (arguably) one would possess knowledge of the power that would (counterfactually at least) provide avoidance of that transgression. If one could locate that power (temporally indexed as prior to the transgression) in the future transgressing individual, then prepunishment would make some ultimate sense (as with Kane's SFAs); if not, then such ultimate responsibility moves back in the Strawsonian sense infinitely (and/or nonsensibly) or attaches to some being like the Calvinistic God who then absorbs moral accountability (and who, given the circumstances, looks to be pretty arbitrary at least to finite minds). So, Calvin's God aside, prepunishment only makes sense for libertarians like Kane who can locate ultimacy within an individual, and for such individuals we can somehow know will perpetrate those known transgressions. Empirically then, epistemic finitists--as are most compatibilists--are off the hook for prepunishment.

[Mark Smeltzer]

Alan,

I am pretty sure that Augustine got there first with the Doctrine of Original Sin.

Regardless, it is well known that the entirety of the Reformed Christian tradition holds to the concept of preguilt and predestination based upon whether an agent is judged in its own naturally guilty state, or whether the agent's guilt has been pardoned according to Christ's imputed righteousness -- i.e. on the basis of whether the agent's guilt has been forgiven. Thus, even stillborn babes could plausibly stand before the judgment seat.

As you mentioned, the God of the Reformed Christian tradition is wholly unlike you or I: perfect judgement derived from perfect eternal knowledge derived from the perfect realization of an eternal plan. However, I strongly doubt that Smilansky has anything like the God of Reformed Christianity in mind since he discusses (what he believes t be) the plausibility of future devices that will allow us humans to foreknow the acts of other agents.

In the prior thread we discussed a strong reason to believe that such devices are metaphysically impossible in the actual world (even if the actual world is deterministic) given the world's chaotic state. I still believe there is merit to the "plausibility" objection to Saul's cases, but I don't see what's to stop him from positing the same cases and stipulating that "the events in these cases occur in deterministic, yet non-chaotic, worlds."

In other words, I believe that the foreknowlege barrier by itself does not impose on the logical possibility of prepushishment for the Compatibilist. However, it sure would stand in the way of prepunishment ever being a morally abhorent threat...

[Neil]

Right Mark, but we don't need perfection - not if the legal standard of guilt picks out a threshold for the appropriateness of punishment. It is, as Smilansky points out, quite reasonable (whatever the causal structure of the universe turns out to be) to think that we can now or soon will be able to predict what some agents will do in some circumstances beyond reasonable doubt.

[Alan]

Mark--

Augustine got there first by damning everyone by original sin--but not as Calvin said by putting in the fix beforehand: Augustine for better or worse relied on some sort of FW for temporal redemption; Calvin said in an eternalist sense: fuggetaboutit.

Mark and Neil--

But my point is what would count as empirically reasonable doubt? Logical possibility would not do--or else OJ could have claimed he was abducted by aliens while Nicole was nearly beheaded. Given the empirical constaints of chaos theory, what then could reasonably acquit a juror of his or her reasonable doubt about what a person could have done? Look back on my comments about God's perfect knowledge--knowledge of what one would do in even chaotic deterministic circumstances might entail power/ability-involved claims of what one might have done otherwise, but in that case we encounter uncertainties about whether we are blaming the actual individual under scrutiny (these are famous problems of counterfactuality under the assumption of determinism), and these uncertainties seem to extend to non-chaotic deterministic worlds, and if the individual chooses indeterministically, then there are uncertainties of a distinctly metaphysical character. In the former case we might have real philosophical difficulties about whether we are justly accusing the very same deterministic individual; in the latter case we might justly accuse the indeterministic chooser--if we can then solve the accompanying problems of ultimacy. (L's black box.)

Prepunishment is not an easy and given conceptual problem. Smilansky is to be credited for raising the issue--but its resolution is no slam-dunk by any means.

[Neil]

Any doubts you have about reasonable doubt, Alan, seem to apply to the legal standard as well (at least I don't see why not). Do you think that we just empty the jails? (cheap rhetoric? No: *I* think we should empty the jails. But that's another story).

[Mark Schroeder]

Neil - Sorry to come late to the party, but I doubt that your favorite compatibilist condition on MR is silent on tense. Consider this view: that you are MR for an action up until exactly three months, seven days, and twelve minutes before you do it under your moderate reasons-responsive condition, and thereafter you are _not_ MR for it.

I doubt that you would accept this as an acceptable precisification of your favorite compatibilist condition. If you wouldn't accept it, then your view is not silent on tense. What is more likely the case, is that your view is _non-explicit_ about tense, rather than that it is silent about it.

[Neil]

I doubt we can deduce that my favorite view has implicit commitments on tense from the claim that there are positions regarding tense that are crazy. That aside, anyone who wants to claim that compatibilism can resist prepunishment must do a lot of work, even if that work consists in making the implicit explicit. Its not sufficient to cite a putative necessary condition, when it is open to prepunishers to claim that agents satisfy that necessary condition in a tenseless manner.

[Mark Schroeder]

Neil - I'm sorry; I thought the argument was about whether there are plausible principles that real-life compatibilists can appeal to in order to resist prepunishment, not whether there are or are not possible compatibilist theories which can't.

Matt pointed out that he knows of no existing compatibilist account according to which the bare fact that someone will be MR for doing something entails that she is already MR for doing it. It follows from Matt's observation, if it is true, that unless there is some important account Matt has failed to think of, no existing compatibilist is on the hook. So I don't see what the problem is.

Look at it this way: typical analyses of what it is to be square don't mention tense. They don't say, "to be square at time t is to have four equal sides at right angles at time t". They just say, "to be square is to have four equal sides at right angles". Moreover, it is a plausible principle that you shouldn't put a square peg in a round hole. Now, Saul Smilansky comes along and points out that it is possible for there to be square pegs that we can know in advance will be manufactured tomorrow into round pegs, and challenges our theory: "your reductive theory about the nature of squareness can't explain why there is something wrong (today) with putting those pegs into round holes! But clearly, he advises us, there is something wrong (today) with putting those pegs in round holes. So we should prefer a theory with different resources for explaining that. But so what? Just because the pegs will be round tomorrow doesn't mean they are round today. Today they are square, so the principle applies: don't put them in round holes. Tomorrow it won't apply, and we can know that in advance, but that doesn't change what the rule lets us do today.

So here's the moral: independent plausible principle meets reductive theory of squareness, and makes concrete - and intuitive - predictions. The reductive theory of squareness didn't make explicit claims about times, but there were charitable ways of understanding it and uncharitable ways of understanding it. It's uncharitable to understand it as holding that something is square at time t just in case there exists a time t* such that it has four equal sides at right angles at t*.

You say: but the pre-punisher can just give an intepretation to the theory of MR on which it is atemporal! That's like interpeting out theory of squareness in this uncharitable (and obviously false) way - a way which, as Matt notes, is accepted by no existing compatibilist theory he can think of. Why should Matt be any more worried than my theory of squareness?

[Neil]

One of us has lost their grip on the dialectic: there is a non-zero possibility that it is me. As I see things, Saul says that given compatibilism and the knowledge (or highly probable belief) that an agent will X at t, there is no point in waiting until t to punish. You say there are plausible principles the compatibilist can appeal to resist this conclusion. Well maybe, but I want to know what they are (that's what the debate is about, as I see it). It can't be *responsibility is necessary for punishment*; Saul claims that given compatibilism (etc) that principle is satisfied. In other words, my claim wasn't that there are possible tenseless compatibilisms, but that Saul has made case for the view that compatibilism is essentially tenseless.

[Mark Schroeder]

I don't see how Saul has made the case that compatibilism is essentially tenseless. Nor do I see how he could. Here is a compatibilist view that is tensed: X is responsible for A just in case (1) X brought about A and (2) X did so in the black-boxedly-responsibility-involving way. (My theory then goes on to spell out the contents of the black box.) Prior to A, my condition (1) is not satisfied, so my account predicts that prior to A, X is not responsible for A. Yet my account is clearly compatibilist, as long as the contents of my black box are compatibilist. Saul can't have argued this view out of existence, so he can't have made the case that compatibilism is essentially tenseless.

Any compatibilist theory which shares the features of this view - that you can't be responsible for things that haven't happened yet - will share with this view Matt's response to Saul - that just punishment requires responsibility. It appeals to a genuinely plausible independent principle (JPRR), and to a plausible principle about responsibility which is denied by no compatibilists Matt can think of, and it answers the challenge.

Now, you might think that I'm being dense, because the more interesting question is _why_ you can't be responsible for something that hasn't happened yet, and moreover, _why_ JPRR would be true, if responsibility is backward-looking rather than forward-looking, in this particular way. I agree - those are great questions. But it still looks like Matt is giving us a pretty obvious place to look. If these principles really are independently plausible, then they can explain why prepunishment is unjust, even if we will also want to explain them, in turn. They still give us a simple answer to Saul that many theorists should be able to agree on. And the simplicity and ecumenicality of the answer was the virtue Matt advertised for it. No?

[Ryan Lake]

I think it's helpful to recall that the prepunishment debate started in 1992 with Christopher New actually asserting that there is no reason to wait until the crime has occurred to punish - especially if the agent has already formed the intention, we know in advance that he WILL commit the crime, and there will be no opportunity to punish after the crime. In such a case there seems to be at least some prima facie appeal to prepunishing, because unless we do it now, before the crime has occurred, there will be no opportunity to make the agent pay for his crime.

In arguing that respect for individuals requires giving them the opportunity to remain innocent of the crime, Smilansky is attempting to explain exactly why New is wrong - why it isn't ok to prepunish even in such cases. Only later did Smilansky note that this reply is apparently not available to the compatibilist, leaving the compatibilist with the challenge of offering a different explanation of what exactly is wrong with prepunishment.

So the challenge is respond not to Smilansky, but to someone like New, who is arguing that prepunishment really should be a viable option. Without more explanation, Matt's appeal to JPRR just seems like stamping one's feet and asserting that prepunishment isn't ok. A prepunishment proponent like New isn't going to accept the bare assertion that temporality is relevant to responsibility without some explanation why. Of course maybe that's not a bad thing in this case - maybe prepunishment is so bizarre and so obviously wrong that foot stamping is the appropriate response.

[Alan]

I just finished writing about 1500 words to post here, but realized I was just prepunishing Gardeners as I was punishing myself. So you're off the hook.

A short summary instead. The puzzle of why shouldn't compatibilists prepunish really seems predicated on discussing desert-entailing, ultimacy-grounded, retributive-type responsibility. If we replace that with deterrence-rehabilitation non-ultimacy, non-retributive-type responsibility that is typically associated with classic forms of compatibilism, then given the condition of assurance about a kind of transgression that will occur as stipulated above (I still am uncomfortable with that assumption in many ways, but I realized that this has to do with my excessive worry about knowing specific future events as opposed to types of events), then why couldn't a compatibilist simply agree that they *should* prepunish? That would be because what is termed "prepunishment" here is otherwise understood by the compatibilist as *prudent prevention* of an anticipated kind of transgression? Understood that way, the accusation of having to engage in "prepunishment" is robbed of all real force against the compatibilist, because presumably anyone would want to act so as to prevent future evil they were relatively sure would take place otherwise.

This has been a great discussion and has nagged me immensely--but now I'll stop punishing everyone including myself and shut up!

[Mark Smeltzer]

Alan,

This is a side bar: I've always thought that Augustine's debates with Pelagius confirmed his stance on FW, and his commitment to Theological Determinism. Regardless, another interesting point in Reformed history is Leibniz's view of determinism and responsibility -- he was certainly on the same page as Calvin. And then there's more modern examples like Jonathan Edwards.

All of these examples go to the point that the Reformed Christian tradition embraces the idea of preguilt. However, I'm still not sure if this is relevant to the concept of prepunishment.

[Matt King]

Ryan,

I don't think appealing to JPRR is stamping one's foot. I think it *is* an explanation for why prepunishment is wrong, even in a New-type case. It's because the agent involved isn't yet responsible for the crime, even though he will be (and we know this).

Alan's right that JPRR, as I understand it, appeals to a desert-entailing notion of responsibility and prepunishment as a form of retributive (desert-based) punishment. A discussion of prepunishment would surely be broader than my focus with JPRR.

[Matt King]

Sorry Ryan, in reading over my comment I realized I hadn't fully addressed your worry. I'm not sure whether temporality is, strictly speaking, relevant to responsibility. I say more about this in the paper on my website.

But I will add this, New seems to think that our unease at not punishing someone when we can (giving up the chance to punish, as it were) will outweigh any unease at violating JPRR. He might be right about this, but I'm not convinced. And I don't think that New-type cases are enough to push me out of JPRR. It isn't just a bare assertion that having "brought x about" is necessary to responsibility, it is relevant to the explanations of why agents are responsible in a wide range of much more ordinary cases, the sorts of cases that ought to inform our theories of responsibility in the first place.