Thursday, January 26, 2006

Hanging horsethiefs

It was raised in crimlaw that there is a tension between how severely
we can punish an individual and how effective deterrence can be.

Our discomfort with the motto "You aren't being hanged for stealing a
horse; you're being hanged so others don't steal horses" stems from
unease at "using" someone to make a point. (Conduct-based) retributive
justice says you should be punished for, and proportionate to, your
wrong, not in order to convey benefits to others (who will be
deterred).

These two can be brought a bit closer together, though. When you are
punished under a retributive theory, you get punished for the knowable
consequences of your action. One of the consequences of stealing
horses is that you're corrupting others. Consider moral entrapment:
luring someone into doing something wrong. (Say, seducing a married
woman.) It is only a small generalization to extend this wrongful act
["seducing" someone into commiting crimes] into attracting others to
crime, even though you don't know the particular person being
attracted. Leaving a stack of money on your unlocked car's seat can be
criminalized, even though you don't know who'll take the bait.

Thus, retribution can in some sense incorporate the issues of
deterrence, and can even think prospectively. A judge might say:
"Besides taking this horse, future people will take horses because of,
in part, your actions. Thus, your punishment is increased."

Whether this is enough to account for hanging a horse-thief, I don't
know.

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