Future Crime: The Moral Difficulties of Indeterminate Consequentialism

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?

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