Above is a video I made as a companion to this piece for those who prefer speaking and video to reading. The content covers the same rough areas but is spoken in different words. The essay begins below.
“Future
crime” is not a term of my own making; it’s one I lifted from the Spielberg
movie “Minority Report,” which was based on a Phillip Dick story of the same
name. In it, there are three mutants who are able to see the future,
specifically murders, which are most disturbing to them. The police react to
these visions by arresting those responsible before they commit the act,
thereby creating a time paradox. The individuals responsible are not murders,
as they have failed to commit the acts the mutant “precogs” have envisioned for
them, but are kept interred because of the understanding that without
intervention they would have
committed those acts. The nature of free will is brought into question as the
policeman in charge of the program sees himself committing a murder in the
future.
Many people
might view the film and find it an interesting hypothetical, but think no
further on it. The reality is that many of our laws, regulations, and statutes
rely on the concept of future crime for legitimacy of their workings.
Everything from seat-belt laws to safety regulations to drunk driving laws
require making illegal conditions which have not yet generated any
consequences. The last of those, a particularly politically charged law area-
one might even say politically suicidal to oppose at this point in time- I will
attempt to dismantle at the end of this article.
Whether
such laws are effective can be taken into consideration when passing them, but
first I always consider first the moral conditions
a law creates or relies upon in order to be legitimate in the eyes of voters or
law-makers.
I. Consequentialism
Consequentialism,
as a broad ethical theory category, concerns itself with categorizing action
into moral or immoral areas based on the consequences of the act. Many
philosophers, including Jeremy Bentham and John Stuart Mill attempted to create
systems of rational morality based on consequence, notably the “hedonistic
calculus.” I personally do not consider consequentialism a good basis for any
rational system of ethics, preferring instead to work within the confines of
action-local moral reasoning or deontological systems, but the fact that
actions have consequences is important to legal processes beyond the simpler
workings of morality.
Extremely
thorough discussion of this might require its own article, but I will attempt
to summarize. I dislike consequentialism for two reasons. First, it ascribes moral
status to actions that are accidental or otherwise amoral, that is, would not
be considered moral in another circumstance that produced different results.
This was Immanuel Kant’s general objection to consequential moral reasoning,
that it eliminated the concept of will, thereby making all investigations into
moral action mostly irrelevant. The second reason is that it either qualifies
moral or immoral status of an action after the fact (when consequences occur)
or it asks the actor in a situation to predict the future, with the possibility
of miscalculating the results and still acting immorally. This makes it
difficult or impossible for a moral actor to determine the morality of his
actions prior to acting them out, the point of moral systems being to inform
decisions about actions prior to their occurrences.
In minority
report, the problems of the second reason above are mostly taken care of, at
least in the concept of murder. The future consequence is certain, and so the
police can act in accordance with it, saving lives all the way. We, however,
are not precogs; any attempt to predict the future is a best guess, and so we
may be wrong or right. This does not mean we should never try to predict the
outcome of our actions, quite the opposite. We frequently and necessarily use predictive
means to infer outcomes, usually quite well. We know that when we put our foot
on the gas the car will go. We guess that when we buy stock in a company it
will not go out of business. Our lives are based around predictions.
II. Consequences and Responsibility
Even if we
operate according to action-local principles and ignore consequentialism as a
system of ethics, consequences are still very important. In our legal system (I
live in the USA), and indeed in the common law system in England for the last
few centuries, people are able to seek compensation for damages, that is,
consequences of the actions of others. When an electrician fails to install
wires properly, regardless of the condition that might have caused him to do
so, he may be asked to pay for the expense of having it done correctly, or face
penalties when his condition causes the house to burn down. A man may be
driving the speed limit, but fail to see a pedestrian in a residential area,
and hit and injure him. He did not commit crime per se, but may have to pay
restitution for negligence, his failure to pay attention.
Consequences
in these cases, and many others, are subject to civil and common law, which may
operate using written law or just based on sound principles. We may require the
police to enforce the legal decisions of court, but we do not need a universal
law to deal with particulars. This is the concept of extra-moral
responsibility, the idea that our actions have consequences that we ourselves own,
both positive and negative, regardless of any consideration of morality.
To ascribe
morality to such mechanisms, however, is not so easy. The man who invests his
own money poorly may be pitiable, but not evil. A man who invests his family’s
money poorly we may find less mercy for, once we see his destitute wife and
children on the streets. Do we make a law to prevent men from investing their
money unwisely, thereby preventing the negative consequence? What about the man
who makes risky investments that pay off? The law may then impose a less-good
outcome on him and his family. There are definite problems to creating
universal prohibitions on situation-dependent outcomes.
III. Future Crime as a Category of Law
Consequentialism
has been used greatly in the history of my country to outlaw a host of objects
and behaviors as well as force people into other sets of behaviors, listing
possible outcomes as the justification for the use of force in making such
things illegal. Just a few of these are: Drug Prohibition (and alcohol
prohibition in the 20s), gun control, motorcycle helmet laws, seat-belt laws,
many building codes, restrictions on purchasing pseudoephedrine, most laws
regarding the sale and use of alcohol and tobacco, lots of anti-piracy laws
(such as the DMCA), the Patient Affordable Care Act (Obamacare), Social
Security, Medicare, and most licensing laws.
If were to
show how each of these represents future crime it would be a very long article
indeed. As a litmus test, you can ask whether the law seeks as justification
for its existence to prevent some condition or action that might exist in the
future, or is part of prohibiting some condition which is believed to lead to
undesired consequences. Laws restricting pseudoephedrine are a great example.
The vast, overwhelming majority of people who purchase pseudoephedrine do not
do so desiring to produce methamphetamine with it (meth itself represents
future crime), and so the law supposes to stop people from making a “bad”
substance in the future by restricting all purchasing of it in the present. In
this case, the drug itself is not bad at all, its abuse is non-existent as it
is, and the negative conditions feared as well as the benefits are entirely
hypothetical.
The last
point, the negative conditions and benefits being hypothetical, requires some
expansion. As with the case of most future crime laws, the benefits exist only
in the negative of some other condition. Supposedly there is less methamphetamine
available because of restrictions on pseudoephedrine, but it is unprovable
whether this is a positive. If less meth is available, so what? We do not have
a parallel universe to compare the two availabilities of meth and determine
that the lack thereof produces a better result (except for those that consider
meth itself to be an evil- more on that later). Those of us who oppose the
concept of this future crime are left trying to do what is logically
impossible- disprove a negative. We can’t see the future, which makes future crime
laws seem effective; you lock someone up for something, and he is unable to perform
evil, but there is no way to know whether he would have done the evil action at
all in the absence of intervention. He is punished for something he has not
done.
IV. Morality and Trade-offs
I usually
make an argument that moral conditions are part of a universal law that is
centered on actions, or means, not their consequences, or ends, with the addendum
that people are still responsible for the results of their actions, whether
achieved through moral or immoral behavior and yielding good or bad results.
However, it is important to acknowledge that not all people share my vision of
a rational action-local morality. If they did, the government buildings and
police stations would stand empty, a testament to the moral difficulties of
initiating force against others. In acknowledging such a view, I must also
explain, and perhaps challenge it.
Those who
believe in the capacity of law to create good conditions (as opposed to law
addressing bad conditions, such laws against theft or murder) fit into two
categories: the constrained and the unconstrained, to lift terms once again
from Thomas Sowell. The constrained viewpoint believes laws that seek to
restrict future ills are valid and worthwhile, but only as part of a prudent
trade-off. If the cost of enforcing a particular law, either in monetary terms
or social ones, is higher than what it prevents, the law should be discarded.
In this way the focus is on particulars, and reform happens a piece at a time.
The
unconstrained viewpoint views the ends as the center of judgment; process costs
are not taken into account, for in order for the end to justify the means, the
end must be achieved. Therefore the cost is always worth the result, for the
result is the only moral condition and the only way to value any action. What
shall I say to those with the unconstrained vision? I can either attack their
moral system or not. No amount of cost-benefit analysis will persuade them, and
our principles are at deep odds. For those with a constrained vision, the best
I (or we, if you too consider yourself a liberty-minded individual) can do is
to convince them of the process costs involved in future crime.
V. Application: DUIs and Other Hazardous Conditions
Applying
the points I have made in explaining future crime could be a book in itself
(and perhaps it will be, once I have tired of fiction), but I will limit myself
to one truly suicidal argument: drunk driving. The villainy of drunk driving
has risen to prominence in the public eye over the last few decades, and the
trend has continued as states continue to lower the legal blood-alcohol limits,
set up unconstitutional drunk driving checkpoints and even detain bar patrons
before they even drive (talk about future crime!). Organizations such as
Mothers Against Drunk Driving (MADD) continue to push for tougher laws,
creating political consequences for those who do not vote according to their
maxims. Before I go further, let me say that I do not approve of driving while
intoxicated (with alcohol or any other substance), nor is my aim with criticizing
the nature of the law to fill the streets with drunken lunatics; my sole
purpose is to show how DUI (driving under the influence) laws constitute future
crime, punishing individuals for crimes they have yet to commit. Driving while
intoxicated is a bad idea, is still illegal no matter what I say, and I would
not expect any jury in the country to nullify the law based on my arguments.
Before we begin, let us examine the
nature of crime. Crime (or immoral action) generally consists of an action (as
opposed to inaction, though that division has been tackled by greater philosophers
than myself, and the debate marches on). It may have conditions that allow it
to happen or to exist, but those conditions are not moral or immoral in
themselves. A person can wear a ski mask and carry a crowbar, and these things
are not crimes, but conditions that might allow him to commit an actual crime,
breaking and entering or theft. If he is arrested for carrying a crowbar, it is
future crime, as he has yet to break into anyone’s home.
In the same way, driving while
intoxicated is a condition, not the locus of moral action itself. Though there
are few alternative scenarios we could imagine for a masked man carrying a
crowbar (perhaps he has to break a crate in his backyard for firewood, and it
is cold outside), there are very few indeed we could think of as allowable for
a drunk driver. Perhaps he is on his own land, perhaps an empty field, and
therefore a danger to nobody (Drunk driving has also been studied on closed
courses, so the condition known as drunk driving cannot be called universally
immoral). Regardless of whether the condition can be justified in some way, the
fact remains that it is just that: a condition, and not the locus of moral
action.
The actual locus of moral action
occurs when the driver, regardless of conditions affecting him, causes harm to
another through his own negligence. The real crime is destruction of property,
or manslaughter (if you hit someone), or reckless driving. The individual is
responsible for their actions whether they have been drinking, smoking
cannabis, or were talking on the cell phone. The conditions (the cause of the
negligence) merely help explain actions, not excuse them. When you arrest
someone, or cite them (in the case of cell-phone driving laws), you are
punishing them for an immoral action which has not yet occurred.
Even as a practical matter, DUI
laws are mostly unnecessary, with the actions that drunk drivers initiate being
predominantly illegal themselves. If they crash their car into some else’s they
should have to pay damages (and they would, whether intoxicated or not). If
they hurt someone, they should be subject to civil and criminal penalties
(indeed they are, even if not intoxicated). Adding another layer of punishment
on top of such does not change the consequences of the actions, but instead
punishes the same actions in two different ways.
DUI laws also have severe process
costs. They cost a great deal of money to enforce, and have also allowed erosion
of liberty through things like DUI stings and drunk driving checkpoints (which
are equivalent to asking someone for their “papers,” and actually catch more
people for suspended licenses and registration errors than drunk drivers). It
also imposes costs on individuals who may not have committed any actual crime,
costing them time, money, reputation, and employment because they happened to
be at an arbitrary blood alcohol level. These are people who become part of the criminal
system without having actually impact anyone else as of yet. They are future
criminals.
Most importantly, we cannot
logically ascribe any positive effects to the law. We have no way of knowing
whether arresting someone for drunk driving prevented that person from hurting
someone else’s body or property. The benefit
is hypothetical and a negative, which means it cannot be disproven. We simply
have no idea what the outcomes of the uninterrupted progression of events would
have been, positive or negative. Advocates of the law cannot meet the burden of
proof of benefit, much less morality.
We can apply the same kind of
reasoning to other things which might be part of a hazardous condition,
including talking on the phone, driving on bald tires or bad brakes, driving in
the snow or rain, being high while driving or riding a bike, driving in high
heels, getting on the road as a student driver, etc. Conditions don’t matter,
actions do.
VI. Conclusion
Thank you
for reading this short exploration of what I like to call “future crime,” the
act of punishing individuals for actions they have yet to commit. I hope you
will think deeply about proposed legislation that justifies itself with the
prevention of negative conditions or tasks itself with the prevention of a
future consequences. If you believe in trade-offs, consider all the process
costs involved in prohibiting a condition or substance, including the cost to
society and the individuals themselves. If your moral sense is like mine, do
your best to oppose the expansion of the state through future crime. After all,
if a policeman arrests me for something I will do in the future, how will I
them prove him wrong?
No comments:
Post a Comment