Suppose Smith is a habitual criminal. He’s stolen 5 cars and each time got caught. His sentences have gotten progressively harsher. The first time he got probation, the second time 6 month in prison, then 1 year, 2 years, and 5 years.

He gets out and promptly steals another car.

Is it reasonable for the judge and “society” to conclude that Smith is incorrigible, that no finite punishment will deter him personally?

And if so, can we imprison Smith for life not because he deserves it or to restore the cosmic order of things (retribution), nor to make an example for others (deterrence), nor, finally, to reform him (rehabilitation), for he has amply shown himself utterly depraved, but in order to protect the rest of us from him future crimes?

This 4th theory of punishment is called condemnation. We cut off Smith from the social body permanently and throw him into “hell,” from which there is no escape.

If this sounds at least somewhat plausible, then troubling consequences ensue.

For example, why not give each person an in-depth psychological evaluation at the age of 16, say, to try to determine whether he would go bad? If the committee of the psychologists feels this way, then the person is summarily given a life sentence or simply executed.

Sometimes I’d look at a black kid and think: “Ah, a future inmate of a federal penitentiary.” Why not imprison most black males or abort them before they are even born as a preventive measure?

It might be objected that we should wait until the person actually commits a crime before we condemn him. But if we are fairly sure that he would break the law, then waiting for him actually to do so seems to be the height of irresponsibility. Society needs to be protected, so why wait?

For example, isn’t it reasonable to lock up permanently a serial killer who’s been caught not because of his prior guilt, but in order to save his future victims? Isn’t that one rationale for the life or death sentence in actual trials of serial killers?

So, right now we use a string of prior crimes as evidence of one’s incapability of being reformed. But could this be too strict of a standard? A terrorist might not have committed any crimes before he blows himself up. Why can’t the government kill him on mere suspicion?



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