Presumably utilitarians agree that punishment is not an aspect of the judicial system, and that jail sentences are to deter future crimes, both by locking away those who would harm others, and by providing would-be criminals with the incentive to not commit crimes.
Given this, it seems that the only reason to ensure that the guilty person is in fact the one charged with a crime is that he might be inclined to commit future crimes, and he will not be able to do so in the future - and therefore, for a crime of an unrepetitive nature [a family killing, for example] there is no genuine reason to imprison the actual killer rather than someone innocent of the crime in question. Would utils agree with this, modulo certain conditions?

TraderJoe wrote:Given this, it seems that the only reason to ensure that the guilty person is in fact the one charged with a crime is that he might be inclined to commit future crimes, and he will not be able to do so in the future - and therefore, for a crime of an unrepetitive nature [a family killing, for example] there is no genuine reason to imprison the actual killer rather than someone innocent of the crime in question. Would utils agree with this, modulo certain conditions?

This seems like a good place to bring up Hare's How to Argue with an Anti-Utilitarian points (thanks Ryan ).

The short answer - sure, modulo (new word for me) certain conditions. This gets us bitten by people who assume that those conditions will be trivial and mostly irrelevant, and consquently react with horror.

The long answer is to define all those conditions: circumstances where a) no-one would find out that the killer would be set free and so encourage others to do the same, b) the question actually applied, in that despite the isolation of the family, there was a governing authority with the knowledge and power to choose whether or not to imprison him, and c) the killer's mental profile was so well known to said authority that its members knew beyond any reasonable doubt that he really wasn't more likely than anyone else to kill again (even having got away with it once).

In other words - yes in thought experiments, no in the real world.

A variation on the same theme is telishment - punishing an innocent person to deter future wrongdoers. For essentially the same reasons, util will condone it in outlandish enough thought experiments, and condemn any suggestion that it should really happen.

Well we need to make sure that we don't ignore important factors:
Firstly, I'd imagine that while things like food, shelter, social environment etc. would be similar for the offender and the non-offender, the fact that the non-offender is innocent could add to the psychological trauma.
Secondly, those outside of prison may be traumatised by the idea that members of the public are falsely imprisoned. There's family of falsely imprisoned people. There's lobbyists who invest emotional resources to avoiding the situation you describe. Even those with no such connections might have fear struck through them by the idea of being picked taken to prison having done nothing.
Thirdly, if the public become aware that non-offenders are imprisoned along with offenders, prison stops being a deterrent to offending

TraderJoe wrote:Presumably utilitarians agree that punishment is not an aspect of the judicial system,

I disagree why is not? In DU "Morality is about using praise, condemnation, reward and punishment ..." and so are many other approaches e.g. expressivism.

TraderJoe wrote: and that jail sentences are to deter future crimes, both by locking away those who would harm others, and by providing would-be criminals with the incentive to not commit crimes.

"Deterrence" is only one reason, "protection" is another, "rehabilitation" is another - someone who is successfully rehabilitated can re-enter society and not commit future crimes, "restitution" is another. The main traditional argument for punishment - "retribution" - is the one I think all utilitarians would reject.

TraderJoe wrote:Given this, it seems that the only reason to ensure that the guilty person is in fact the one charged with a crime is that he might be inclined to commit future crimes, and he will not be able to do so in the future - and therefore, for a crime of an unrepetitive nature [a family killing, for example] there is no genuine reason to imprison the actual killer rather than someone innocent of the crime in question. Would utils agree with this, modulo certain conditions?

Sorry this does not follow given my previous points. Plus if we live in a society where the innocent are too easily punished then the mechanisms of deterrence, protection, rehabilitation and restitution would fail to reinforce the social practices of moral progress. Of course in many actual and past societies this is the case but this is not a utilitarian justification to carry on, far from it, it is one to encourage fair trials, due process etc.

faithlessgod wrote:

TraderJoe wrote:Presumably utilitarians agree that punishment is not an aspect of the judicial system,

I disagree why is not? In DU "Morality is about using praise, condemnation, reward and punishment ..." and so are many other approaches e.g. expressivism.

A utilitarian can't seek to actively make someone's life worse for the sake of doing so. That would mean he is no longer a util.

faithlessgod wrote:

TraderJoe wrote: and that jail sentences are to deter future crimes, both by locking away those who would harm others, and by providing would-be criminals with the incentive to not commit crimes.

"Deterrence" is only one reason, "protection" is another, "rehabilitation" is another - someone who is successfully rehabilitated can re-enter society and not commit future crimes, "restitution" is another. The main traditional argument for punishment - "retribution" - is the one I think all utilitarians would reject.

Oh, gotcha - you're referring to the other aspects of imprisonment besides retribution, which I equate with punishment. Restitution I would expect most utils to reject, though protection [which I referred to] and rehabilitation [which I didn't, as I don't think imprisonment helps with this] I wouldn't.

faithlessgod wrote:

TraderJoe wrote:Given this, it seems that the only reason to ensure that the guilty person is in fact the one charged with a crime is that he might be inclined to commit future crimes, and he will not be able to do so in the future - and therefore, for a crime of an unrepetitive nature [a family killing, for example] there is no genuine reason to imprison the actual killer rather than someone innocent of the crime in question. Would utils agree with this, modulo certain conditions?

Sorry this does not follow given my previous points. Plus if we live in a society where the innocent are too easily punished then the mechanisms of deterrence, protection, rehabilitation and restitution would fail to reinforce the social practices of moral progress. Of course in many actual and past societies this is the case but this is not a utilitarian justification to carry on, far from it, it is one to encourage fair trials, due process etc.

Right - but imagine a society where nobody bar the innocent themselves, and possibly some high-ranking bureaucrats, know that they are innocent.

In short: I've been thinking about telishment for the last couple of days [even though Arepo only introduced me to the word yesterday ] and it seems to me that no util can reject it out of hand.

TraderJoe wrote:In short: I've been thinking about telishment for the last couple of days [even though Arepo only introduced me to the word yesterday ] and it seems to me that no util can reject it out of hand.

I thought this was where you were going with this. I think telishment is easy to deal with from a DU perspective and probably a more general Preference Satisfaction one too, I do not know about happiness and pain/please utilitarianisms. Now we have established this, I will provide a fuller answer to your questions and to telishment when I have time - hopefully later today.

Here is my promised answer on telishment. I can only answer here as a desire utilitarian others here might have different and complementary answers,

TraderJoe wrote:

faithlessgod wrote:

TraderJoe wrote:Presumably utilitarians agree that punishment is not an aspect of the judicial system,

I disagree why is not? In DU "Morality is about using praise, condemnation, reward and punishment ..." and so are many other approaches e.g. expressivism.

A utilitarian can't seek to actively make someone's life worse for the sake of doing so. That would mean he is no longer a util.

Yes, for example imprisonment is a prima facie wrong - it thwarts the desires of the prisoner. However one needs to look at the overall effect of imprisonment versus not in terms of everyone's desire fulfilment. On that basis actions can be justified in terms of deterrence, protection, rehabilitation and restitution but not retribution - which reinforces and increases overall desire thwarting desires in a number of ways. Still safeguards are needed to minimize mistakes in making such decisions - such as due process, habeas corpus, fair trials, humane conditions and so on. It is in everyone's welfare interests that this is so - telishment clashes with this as it is a claimed justification for imprisoning known innocent persons.

TraderJoe wrote:Oh, gotcha - you're referring to the other aspects of imprisonment besides retribution, which I equate with punishment. Restitution I would expect most utils to reject, though protection [which I referred to] and rehabilitation [which I didn't, as I don't think imprisonment helps with this] I wouldn't.

Unless restitution decreases overall desire thwarting it is not justified. That is DU does not just endorse restitution but only of relevant kinds e.g. a graffiti tagger repainting building she defaced. Anyway we can leave this and the main argument will still apply.

The unsound assumption to argue for telishment is that utilitarianism (of any form) only uses imprisonment as a means of deterrence and nothing else. DU refutes this assumption, other utils might too.

Still let us accept this unsound assumption and examine its implication wrt only to DU. DU uses social forces including punishment as a means of modifying people's desires such that if they know that action might bring about condemnation and punishment this is a deterrence to such actions (not guaranteed to work, of course, but an incentive nonetheless). However these deterrents have to be carried out in order to be a meaningful deterrent else they are inert. One of the main issues that DU focuses on is that these social forces are used incoherently (e.g. on occasion praising certain desire thwarting behaviour, condemning other certain desire fulfilling behaviours and so on)and applied inconsistently (e.g. let one get away with it but not another). It is in most everyone's interest that these social forces are used coherently and applied consistently as they would be more efficient and effective as a deterrent that way and telishment would contradict this and impair the effectiveness of the social forces. (Of course history shows there is a long term dispute as to what system to coherently and consistently apply but that is outside the scope of this discussion).

TraderJoe wrote:Right - but imagine a society where nobody bar the innocent themselves, and possibly some high-ranking bureaucrats, know that they are innocent.

I fail to see how this can be a justification for telishment in DU terms. It would still be the case that such actions increase desire thwarting overall. The guilty are free to commit desire thwarting crimes again and/or their associates would not be discouraged from doing so and an innocent is falsely imprisoned or worse.

TraderJoe wrote:In short: I've been thinking about telishment for the last couple of days [even though Arepo only introduced me to the word yesterday ] and it seems to me that no util can reject it out of hand.

Well... obviously. Take any set of actions you can imagine, except one whose members are defined as 'doing more harm than good'. Utilitarianism will tell you that there's a conceivable situation in which you should perform an action from that set.*+

You don't need thought experiments to establish this point - it's true by definition!





* In theory rule utilitarians would disagree. In practice, none of their rules will be absolute, so at worst you'll be excluding a few more members of the set - never all of them.

+ I'm not good with the maths-speak. Apologies if it sounds silly.

About telishment, this strikes me pretty much impossible to do. You'd need to either fabricate evidence that nobody will ever find out you faked, or destroy evidence that nobody else will find (most likely the former). Most likely the former. Because more evidence can be found at any time, it is quite likely the parole board will find some evidence that contradicts your fabricated evidence, or find evidence that you destroyed evidence. The parole board is probably worth significantly more utility than the occasional telishment, as the only thing worse than later being found innocent is later being found innocent, but left in jail. What's more, you might later find the guy who did it, in which case you'd have to either destroy all evidence that he did it, which will be nigh impossible unless you're the first person to figure it out, or you have to show that the previous decision was faulty, in which case even if you avoid getting caught with tampering with evidence, will probably cause vastly more harm to the reputation of the justice system then the telishment would do good.

If you are going to assume that there's some powerful government conspiracy capable of getting away with this, instead of sending an innocent man to jail and pretending to send a guilty person to jail, they could just not send anybody to jail and pretend they sent a guilty person to jail.