Properly Doing Minority Report

In this essay, I argue that perpetrators of unfinished/discontinued crimes due to external contradictions can and should be charged as if their crimes are completed as long as it can be reasonably proven that the crimes would have been completed without the aleatory mitigators. In the following paragraphs, I will first concretize my argument with examples, then articulate that intentions, rather than actions, should constitute moral and legal guitibility. I will also respond to potential objections and discuss some utilitarian implications in laws.

Let’s say we install a Minority-report-type “precrime” unit that, with the help of AI predictions, arrives earlier at the future crime scenes and intervened and stopped the crimes at the last minute. Realistically speaking, this is a highly probable and beneficial practice. The problem rests, however, on what crime the perpetrator should be charged and tried on? Currently, using the criminal code of PRC for example, the perpetrator should be tried with “criminal attempt,” which refers to “a case where an offender has already begun to commit a crime but is prevented from completing it for reasons independent of his will” (AsianLll, n.d.). However, the same article in the criminal code also regulates that “[a]n offender who attempts to commit a crime may, in comparison with one who completed the crime, be given a lighter or mitigated punishment” (AsianLll, n.d.). One may ask, is this fair? If two people were both killing some other people (with the same intentions and actions) and the only difference is that one is stopped by the police while the other is not, why should the latter receive a harsher punishment? Shouldn’t the punishment be based on personal guiltibility rather than an outside factor (the police)? In other words, how does the police’s intervention lessen the wrongdoings and guiltibility of the former? I say such an argument is strong and the two should not be treated differently.

Consider the following thought experiment. When a perpetrator tries to pull out a knife from their pocket and stab the “victim,” it turns out that:

1, the target is actually a mannequin;

2, the person is stronger than expected or is another stronger person and doesn’t die;

3, the knife directly breaks due to low quality;

4, the knife breaks after the first stab due to low quality (discontinuation of crimes);

5,  can’t find their knife (criminal attempt) ;

6, the victim was trying to kill the perpetrator as well (accidental defence);

7, triggered a bomb the victim carries and killed another 10 people;

8, stabbed the wrong person;

9, the victim is wearing body armour because the police previously informed them of this attack;

10, the police block the knife at the last minute;

11, the perpetrator is in a simulation that is 100% identical to the real world.

The list is not exhaustive. Considering all these scenarios using reflective equilibrium, is there a moral difference in the guiltibility of the perpetrator? It seems only coherent to conclude that there is not. Culpability should be independent of external mitigating factors such as the identity of the victims. It follows that all perpetrators in these scenarios should also be equally legally punished. Certainly, many of the cases above deserve more articulation, but in this essay, I want to limit the application of my arguments to police stopping ongoing crimes.

Of course, this deduction is too fast, let us consider some objections. The first objection is the consequentialist objection, it claims that the morality of an action should rest on the consequences it brings—so consequences are all that matter, people should be condemned and punished solely based on the consequences of their actions. I agree with the first half of this assertion because I am also a consequentialist. However, what we are discussing here is not the morality of the action or doing the action itself, but the person’s moral guiltibility that should be morally and legally sanctioned. A person can do something immoral while not being morally guilty at all. For example, it is morally wrong to not donate to starving African children and let them die. But if a person is unaware of such a connection or even the existence of starving African children, it is difficult to claim the person is morally guilty even when they commit an immoral action. Moral guitibility is also crucial since it can be more easily deduced into legal guitbility. In later paragraphs, I will further explain consequentialism in law.

A variation of this is the wrongdoing objection, which has that what makes one guilty is still their action after all—it is common sense that we punish people for murdering rather than just thinking about murdering. Taking a step back, even if actions are not the sole factor, they should still be considered along with intentions and that is why we need mens rea and actus reus to convict someone. It is true that the current legal system considers both intentions and actions, but I will argue that actions are not considered for their own sake (for example, a man killed someone while sleepwalking, the court found him not guilty)—they are used only to substantially prove the existence and extremality of thoughts. What makes a murderer morally guilty is their thoughts of killing—the mindful process that orders the movements of muscles to fulfill the killing. The mere mind-wandering of killing certainly does not make one guilty, but if that thought is strong enough to dictate the killing, then it is what makes one guilty. Both thoughts are “mere thoughts in their minds,” but there is a difference in kind. Furthermore, modern neuroscience has disproved the mind-body duality. Thinking is also constituted by the physical movements of electrics and biochemical reactions in one’s brain; it can still be viewed as “actions”—small, often unnoticed, inside of the body, but real physical actions, nonetheless. What matters more is that such a micro action is undoubtedly the culprit and cause of the eventual completion of crimes by other body parts and it should not be disregarded or overshadowed by the latter. An exception in Canadian criminal law is the concept of strict liability—where law-breaking actions (such as having sex with underaged children) themselves are sufficient to convict the defendant in court. However, as many argue, such interpretation is valid only to empirically strengthen the deterrence and enforcement of the laws rather than deny the importance of intentions. Therefore, the correct interpretation is that external (especially end-stage) actions only serve to prove the guilty mind and are not necessary when we have other ways (especially new technological means) to prove it. The intentions are the only source of moral guiltibility. As a side note, perpetrators who are stopped and caught a second before committing crimes may use the defence that they would not actually carry out the full crime (“I was just scaring them! I would stop my knife at the last minute! But because you broke into my house and stop me, you failed to see that!”) There are solutions, for example, the police could put a sensor under the knife, test the pressure of the stabbing, and simulate the wounds. But this is not really the concern of this essay because I am discussing a philosophical issue given the assumption that it is proven the perpetrators would carry out the crime—and if the court cannot prove the crime would have 100% happened, then just do not charge the perpetrators as if the crimes are completed.

Here we have the third objection: the legal positivism objection. It claims that I am mistaking moral guitbility with legal guitbility but they are different. Legal and moral rules can differ on the textual and superficial level, but as the utilitarian proponents of legal positivism such as Bentham and Austin argue, the existence and designs of laws should promote utility. Empirical evidence also shows that laws are to be better respected and compiled when the legal logic is connected to and explained by ethical logic (especially personal guitibility). For example, laws against same-sex marriages and euthanasia were abolished because people do not think their practicers are morally guilty. Moral guiltibility is more crucial especially when we are discussing criminal laws (which concern the wrongness of actions under the state’s mandate) rather than civil laws (which sometimes concern only fulfilling promises, settling minor disputes, compensating property loss, and satisfying both parties). Therefore, I think, unless strong empirical evidence is given, laws should principally equate moral guiltibility with legal guiltibility. There are examples where moral guiltibility does not lead to legal guiltibility out of practical concerns. Soldiers who invade and kill innocent people are morally guilty, but because the foundation of modern states relies on nationalism and national discrimination, it is empirically not practical and utility-maximizing for their own governments to punish them legally (which I hope will be the case in the future). In addition, Singer’s effective altruism and Rachels’ theory of the moral equivalency of killing and letting die hold that people are morally guilty of knowingly letting others die or be deprived, then should these people be held legally accountable? Again, I think the answer is no only for practical reasons—a legal and computing system that perfectly identifies the causes and links of all unfortunate events is far too complex and remote from our time; but if that becomes possible in the future, I am not against that. Back to our theme, I do not think equally suing perpetrators whose acts of crime are stopped by the police is legally and socially unpractical. 

The fourth objection has to do with the determinist assumption in this essay. If, as I implied, actions are predetermined and free will does not exist, then it seems that neither actions or intentions lead to moral guitibility—or more precisely, the entire concept of moral guitibility and morality themselves do not exist without free will! For example, when Michael Huemer (Schneider, 2016) discussed hard determinism, free will, and morality, he introduced 2 premises that have important implications if hard determinism is true: “1. We should refrain from accepting unjustified beliefs. (Premise; presupposition of reasoning.) 2. To say that one should do something implies that one can do it. (Premise.)” If 1 is true, people should not believe they make a choice in committing crimes and they are morally guilty of that choice. If 2 is true, hard determinism should not allow legal punishments since people have no choice and guiltibility anyway. However, from a utilitarian perspective, I think both premise 1 and premise 2 are problematic. I will start with the second premise. I think people philosophically should still do something even if they cannot because “should” entails moral rightness and tell us what people are obligated to do in proposed scenarios. This process does not necessarily involve one’s actual ability to fulfill. I say I should totally stop global warming because that generates utility and is the right thing to do. It means that I am obligated to choose to stop over not to stop global warming when I am given the power to do so. I also say I should start photosynthesis to save energy. It is simply that we suppose “should” entail practicality in daily usage for convenience and constructive communications. Therefore, even though our actions are predetermined, it is still objectively correct that some alternatives (perhaps in parallel universes) generate more utility than the determined actions in our path and we still should do the former.

Secondly, we can and should accept per se unjustified beliefs if doing so promotes utility. For example, as many argue, the belief in an all-good all-powerful and all-knowing god is unjustified because it contradicts the obvious and widespread evil and suffering in our world. But the action of believing in god may be justified and preferable if it brings people together, lessens their fear of death, gives their existential meaning, guides their behaviours for the better, and subsequently increases the utility. And of course, religious beliefs become unjustified when it does more harm than good. Moreover, strictly obeying laws in some extreme cases is a frequent example of believing in unjustified things. For example, it is clearly beneficial to kill a murderer before they commit a murder, but I presume that many citizens refrain from doing that due to the law against homicide. The law against homicide, in this case, leads to the preventable death of an innocent victim and decreases happiness, but most of us still agree that such a law should exist generally because we should not grant the legal authority to every citizen in deciding whether they think their neighbours should be urgently “cleansed” for the greater good. This is the rule utilitarian interpretation of the law. Moreover, the existence of laws is precisely a solution to and guard against human irrationality and imperfect information. If all humans are all-knowing and perfectly rational (which should include being kind as in my mind rational people should maximize happiness for all), there would not be a need for laws. Realistically speaking, people kind of do that, they choose whether to follow laws. People often follow laws just to save processing time for utility calculation and they break laws when they perceive an urgent and justified need. The two-level utilitarianism is a valid interpretation.

Eventually, it all comes down to utility. Laws are constructed and enforced because empirically it gives people a sense of choice, fairness, and stability that maximizes utility, which is its fundamental purpose. I also use concepts like choice or free will in this essay not because they exist, but because using languages like this builds a more organized and happy society.

In conclusion, in this essay, I argued for assessing interrupted crimes as if they went uninterrupted in terms of moral guilt and legal punishment. I addressed some objections and argued for a utilitarian interpretation of the law that is sustainable independent of free will. 

—-Atlas, 2022.4.21

Bibliography

AsianLll. (n.d.). Criminal Law of the People’s Republic of China. Retrieved from http://www.asianlii.org/cn/legis/cen/laws/clotproc361/

Schneider, S. (E.d.). (2016). Science Fiction and Philosophy : From Time Travel to Superintelligence. John Wiley & Sons, Inc.