University Place

cc >> I'm Russ Shafer-Landau. I'm chair of the philosophy department here at UW-Madison, and I'd like to welcome you to the sixth installment of the UW Philosophers Tackle Contemporary Issues series where we showcase some of our outstanding faculty and provide them an opportunity to share some of the ideas they've been working with with a larger campus and Madison community. Tonight's speaker is my colleague Dr. Sarah Paul. She's assistant professor in the philosophy department. She graduate magna cum laude from Carleton College in Minnesota, and she got her PhD from Stanford University just five years ago. In that half decade, Dr. Paul has become something of an international figure in her field of expertise, the philosophy of action, she's written nearly a dozen articles that have been published in top journals in our profession, and as a mark of her international stature, she's been invited to speak across the world, really, in Switzerland, Norway, the Netherlands, New Zealand, Abu Dhabi, England, Canada, and Germany, as well as many of the finest universities here in the states. She's a rising star who's achieved an international reputation for the excellence of her work, and she's certainly a star in the firmament of our department here at UW. I'd like you to join me in welcoming my colleague, Dr. Sarah Paul, who tonight will be talking about thought crimes.

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>> All right, thanks so much, Russ, for that extremely kind introduction, and thanks all of you for coming out tonight. So as Russ explained, the purpose of this lecture series is for us to get together as a community and discuss difficult issues that face us and that, to some extent, we need to take a collective stance on. And the idea is that maybe the methods of philosophy can help us get some traction on these questions. So that's my goal tonight. What I really want to do is pose a question to you about what we think the limits of our criminal justice system should be. And I'll try to suggest some ways of thinking through the answer to this question. But my main goal isn't so much to convince you of any particular view as to just get a conversation going. So the question concerns a dilemma that any society faces between two goals. How to balance two goals that are both legitimate, valuable goals but that are, to some extent, mutually incompatible. On the one hand, we want to live in a safe society. We want to have institutions that don't just sort of retroactively punish wrongdoing after it occurs, after harm has been done. We want to have institutions that are able to anticipate and prevent crime. And this is a really legitimate goal to have. On the other hand, we don't think just any method of making society safer is acceptable because we also take ourselves to have certain valuable rights and civil liberties. Like the right to autonomy, the right to privacy, freedom of thought, freedom of expression, freedom from the use of unnecessary coercive force. And we think that some methods of making society safer, preventing crime, are unacceptable because they constitute an infringement of those rights. For example, many of us have been thinking a lot about this in the last couple of years after the revelation that the NSA has been spying on us. Gathering our metadata without probable cause. And even if that program were successful in anticipating and preventing terrorist activity, and I think there are good questions about whether it was, I think a lot us thought it shouldn't be allowed because it invaded our privacy. The question I want to talk about tonight is not spying, but it does concern sort of related dilemma that comes up in the criminal law. And it concerns the area of the law that's known as inchoate crime. Inchoate offenses are really just incomplete crimes. When we criminalize something, like murder or kidnapping, we also make it a crime even to try to do those things. To attempt a murder or a kidnapping. We make it a crime to conspire with other people to commit that offense, and we make it a crime to solicit another person to do it for you. And what's interesting about all of these offenses is that you don't have to succeed in order to be guilty of them. No one has to end up dead in order to be guilty of attempted murder, and the same for conspiracy or solicitation. The actual crime does not need to be completed. And this can happen for a number of reasons. Law enforcement might prevent you from succeeding, you might change your mind and abandon your criminal plan, or you might just bungle it and fail to actually succeed in getting away with any stolen property.

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So there are lots of reasons why the crime might not occur. But inchoate offenses exist, at least in part, in order to serve the aim of crime prevention. We want law enforcement to be able to step in, stop a crime while it's, in some sense, in progress before anybody gets harmed, and still punish the offender to the same extent as if he or she had succeeded. So that's another thing that's interesting about inchoate offense, at least attempt and conspiracy, in many jurisdictions can be punished up to the same extent as if you had succeeded in murdering somebody or stealing property or kidnapping someone. You can face up to life in prison for some of these offenses. So they're very serious. Inchoate offenses present a puzzle from a philosophical point of view as well as a legal point of view. By definition, you don't have to succeed in actually committing the crime that you had in mind in order to be guilty of this kind of offense. So what do you have to do? What events in the world constitute a failed attempt to commit a crime? Where do we want to draw the line such that we say after this point you are criminally liable even if you didn't actually succeed in causing the harm that you intended. And the puzzle is that the very same events in the world could either be sort of crimes in progress or not. They could be intentional actions or not. All depending on what the agent had in mind. What she intended with her action. And this is the kind of research that I'm interested in, in general. So I think it has a really important application to the criminal law. So let me try to illustrate what I mean. Here's a picture of a woman standing with her arm raised. What is she doing? Is this a crime in progress or not? Well, everything is going to come down to what she intends to be doing. Maybe she doesn't intend to be doing anything at all. Maybe her armed has spasmed and just stuck in this position. So she doesn't even mean to be raising it. But suppose she does. Suppose she has the intention to be raising it. We can ask, is she stretching? Is she waving to a friend? Is she hailing a cab? It could be any of those things, and those all seem like very innocent things to be doing. Let's suppose she's hailing a cab, and she intends to take the cab to the store. She's going to buy some extra cereal. And this is all in order to carbo load to be strong enough to rob the bank tomorrow. This is all part of her plan. So we can represent her action in something like this. As I like to think of it, there's a process that unfolds. It begins in mere thought. Our agent forms the intention to rob the bank. And the intention tells us what would have to be the case in order to succeed in robbing the bank. The bank has to get robbed by her. But there's a lot of steps on the way to completion. And some of them look perfectly innocent. Eating extra cereal, even purchasing a ski mask can be perfectly fine. They all belong on this line. They're all undertaken as steps along the way to robbing the bank only because that's what our criminal intends. So now we can ask, now that we have this representation of what it is for an action to be in progress or a crime to be in progress, we can ask, where along this line do we think criminal liability should occur? By definition, for inchoate crimes it's not going to be up here at completion where the bank gets robbed. We want to be able to step in before that. But there's a lot of room along this line, and we could draw it any number of places. If we make criminal liability sort of happen closer to completion, this is going to amount to a riskier society. We are going to let criminals get really close to succeeding in their goals before we apprehend and punish them. On the other hand, if we draw it sort of further back, we're going to have a safer society, but we might start to worry that we are being unfair, that we're violating people's civil liberties by doing this. So that's the general dilemma, and what I want to focus on tonight concerns the specific crime of conspiracy, one of the three inchoate offenses I mentioned. And I'd like to argue that the way conspiracy laws are written and enforced in our society, they draw the line far too early. They draw it all the way back here at the formation of the intention to carry out a crime. And I think this is thought crime. So let me try to convince you of this by looking at a recent case that came up through the federal courts this past year. This has become known as the case of the cannibal cop. And so I suppose I should issue a trigger warning at this point. That's what one does these days, right? So I will be discussing some pretty gruesome material, and if that's going to bother anybody, please feel free to step out. Hopefully the poster made that clear. Okay, so the cannibal cop, he was an NYPD officer named Gilberto Valle. He was a member of something called the Dark Fetish Network, which is a social media site with, actually as of today, around 80,000 members. The number has gone up since this case became widely known. Anyway, it has many members, and people get on this site to chat with one another, to exchange photos and videos and other kinds of media concerning essentially violent kink. Valle would get on this site and others and he would chat with, he had hundreds and hundreds of chats with many different people, all concerning kidnapping, torturing, raping, murdering, and cannibalizing women, including women that he knew, including his wife and some female friends of his from college and female colleagues of his wife. He would use real first names, and he used real photographs of these women and shared them with other people on the website. And what he did looked a lot like plotting to actually carry out these crimes. I'll show you a couple of chats in a second. After the FBI got wind of this, his wife discovered his search history and alerted them, they looked over Valle's activity on this site and ultimately charged him under federal law with conspiracy to kidnap together with three other alleged co-conspirators. And he was convicted of this crime earlier this year by a jury. They found him guilty. The sentence for conspiracy to kidnap is up to life in prison. The judge on the case actually recently overturned the guilty verdict, and I'll say a little bit more about why in a second. It doesn't actually matter for my purposes tonight. So what I'm interested in is the basis on which Valle was originally convicted, the legal basis. So let me show you a couple of the chat transcripts. There are hundreds like this. I don't know if anyone is going to be able to read this. Maybe it's good. But I think it's important to really get a vivid impression of what this person's thoughts were like and what kinds of things he was saying on the internet. Otherwise, I think it will be too easy to agree with my take on this case. So here he is chatting with one of the co-conspirators, Mike Van Hise, who was living in New Jersey at the time. And they're discussing the kidnapping of a woman that Valle knows, a coworker of his wife's. Valle has offered to do this for $5,000, and Van Hise says, "What I want to do is make her my slave, sex, maid and otherwise. I will cause her to play my fantasies and do what I like. If she gets pregnant, I will kill her. If she cheats, I will kill her, and if she tries to leave, first she'll get a bad beating, second time she'll be hung." Valle, our guy,

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"Very, very nice. She is a sweet girl. I'm not sure how soon before she would submit. I will abduct her right out of her apartment, stuff her into a large piece of luggage after tying up her hands and feet, and off we go. Do you want her clothed in what she was wearing, or stripped naked?" And they proceed to discuss whether they are going to rape her together and whether they should hang her together before Valle takes off. Here's a second chat or a description of one with a different person who went by the name of Ali Khan. This person says he was living in India, although it looks like from his IP address he was in Pakistan. I suppose I don't even know if it's a man. This person was never apprehended, actually. But they're discussing a different woman, Andrea. Valle tells Khan that he really wants Andrea to be alive in the oven so that she can experience being cooked alive. He explains that he's not into the humane stuff and that it's personal with Andrea who will absolutely suffer. He says that he's been watching outside Andrea's house, but there's no evidence that this is actually true. Andrea lived 500 miles away, and there's no evidence that Valle ever traveled there. And he also says that February 20th is a holiday so that is my target weekend. And there are many, many more chats like this. What's really striking about them is that they look like planning. They're very specific. They name specific sums of money, specific dates, real women, and they talk about the details of what's going to happen. And this is why a jury found Valle guilty of conspiracy. So let me say a little something about what you have to prove in order to sustain a charge of conspiracy. Under the federal statute with which Valle was charged, all you have to prove is that there was an agreement between two or more people to commit a criminal offense. You have to prove that they had specific intent to achieve the object of the conspiracy, which just means it's not good enough if it was sort of reckless or -- side effect. They have to specifically intend the kidnapping. And there has to be an overt act to affect the object of the conspiracy, at least in this kind of case. Not in all conspiracy cases. In drug related conspiracies, there's no overt act requirement, just the agreement is already enough. In this case, there is an overt act requirement, but I want to emphasize is that the way it's enforced makes is extremely trivial. The overt act in question can be a perfectly innocent act that doesn't at all make any progress toward achieving the criminal goal. One of the seminal cases that established a precedent for this cited an overt act that was just a telephone call that took place between the alleged co-conspirators forming the agreement to carry out the offense but not actually taking any steps toward doing it. And in Valle's case, the overt acts that were cited in his indictment were just the internet chats themselves, which certainly, of course, involve overt acts of typing on a computer and expressing oneself publicly, but, surely, those constituted the forming of whatever agreement there was and not the acting on it. It also cited the fact that he traveled to Maryland to meet with one of his victims, a woman that he had mentioned on the site. He went there to have brunch with her. She was a friend of his and he went there with his wife and baby. And the prosecution did not argue that there was any attempt to kidnap this woman on this trip. So I'm not even sure why it was cited. And then he also made unauthorized use of a police database to look up many of the women that he discussed on the site. But again, this is not in any way a step toward actually kidnapping anyone. So this is the point. This is case is so interesting because no evidence was presented at all that anybody tried to kidnap anybody else. No steps were taken to prepare, let alone actually succeed in kidnapping anyone. Valle lied about having laid in preparations. He told his co-conspirators that he had a person-sized oven where he was going to cook these women. He said he had made chloroform, that he owned a house in a the middle of nowhere in Pennsylvania where all of these activities could take place. And all of these things were lies. It looks like the very preconditions for an attempted kidnapping to take place were not even in place. And the dates for the planned kidnappings would come and go. Nothing would happen on those dates. And the co-conspirators wouldn't even mention them afterward. They didn't say, yeah, about that, why didn't we actually carry out our plan? So it looks like there's nothing would constitute substantial steps or concrete steps taken toward actually carrying out a kidnapping. So now I hope the worry comes into view a little bit. It looks like, at the most, Valle and the other three men had a shared intention to commit a crime. At the most they intended to do it and they had agreed with one another to do it, but it doesn't look like there was anything like a substantial step taken to carry out the kidnapping. Any traveling further down the line than mere thought. Now, surely, they did communicate with one another, and that would involve overt acts of communication, but I might also individually, as I'm forming my own decision to rob a bank, I might talk out loud to myself and say I'm going to do it. And that doesn't make it any less thought. Likewise, if all that happened was that these people got together and formed an agreement to carry out a crime but had not yet acted on it, this is thought crime. And, of course, I have an obligatory picture of Minority Report to get your juices flowing. So what I want to talk about for the rest of tonight is whether we think this is justified. Whether this is the right way to strike the balance that I mentioned between having a safe society where crime is prevented but that also doesn't intrude too far into people's civil liberties, including the freedom of thought and freedom of expression. One question you might be asking yourselves, and this is most of the attention that this case has gotten, you might be wondering whether Valle and his co-conspirators even had the intention to commit a crime. Maybe at the most, Valle was fantasizing about it. Maybe he only desired to kidnap these women and torture and cannibalize them, but maybe he didn't actually have the intention to do it. And this is the basis on which the judge on the case ultimately overturned the verdict and acquitted Valle. The judge found that there wasn't enough evidence to demonstrate that Valle had the specific intent required to sustain a charge of conspiracy. So let me say a little something about what the difference is between desiring to carry out a crime and actually intending to do it. This isn't a complete account by any means, but I think this is good enough for our purposes. If you desire something, if you desire to eat a whole chocolate cake, for example, it's perfectly compatible at the same time desiring not to do it. You desire to do it because it would be delicious, but you also desire not to do it because you think it would be unhealthy. And you might even be committed to never acting on your desire to eat the whole chocolate cake. Maybe some of us wouldn't want to admit it, but we have desires that we feel so alienated from that we would rather die than act to satisfy them. We can't get rid of them, but we also would never do anything to satisfy them. Intention, on the other hand, is very tightly connected to action. Desire not so much. I think desire doesn't necessarily produce action. To intend something, though, is to settle on it. You have gone beyond the point of merely desiring it. You've decided to act to satisfy that desire. To intend to eat a whole chocolate cake is not compatible with intending not to do it. That combination of states does not make sense. And that's because once you've intended it, you've settled on that course of action. You've chosen it as the thing to do. So with that distinction in mind, I think there's a really good question of whether Valle actually intended a crime or merely desired to carry it out. But since this has already gotten a lot of attention, what I want to do for our purposes tonight is to set that aside and just assume that he did have the intention to kidnap at least one woman for the purpose of murdering and cannibalizing her. I think it's going to be most interesting for our purposes to just stipulate that he did have the intention and then proceed to ask, do we think that is enough to merit a severe criminal punishment up to life in prison? Do we want to live in a society that punishes people merely for having criminal intentions? So that's the topic I find more interesting. To discuss this, I think we need to say a little something about criminal punishment. What's at stake when we're deciding whether or not we want to use the tool of criminal punishment on people merely for their intentions. And I'm just going to basically stipulate a couple of things. These are principles that I'm going to be assuming in my further arguments, and you can certainly challenge them in the Q&A, but I won't really try to defend them right now. First, criminal punishment is a really blunt instrument. It's a harm to the person being punished. Society has many ways to try to influence its members. We can tax certain behaviors or impose licensing fees on them. We can provide certain incentives to behave one way rather than another. We can nudge people with our public policies. Criminal punishment is the infliction of hard treatment, often depriving a person of his or her autonomy and freedom. And we do this as a way of expressing the collective censure of the community. We're expressing our condemnation of the person. This is a harm that we do to someone, and correspondingly, it requires a serious justification. There have to be limits on when and how we impose criminal punishments on people. For one thing, we think it's not just to punish someone who does not deserve it. Or anybody who has not been found to deserve it by way of a legitimate and fair process. So what should the limits on criminal punishment be? What kinds of things should the criminal law target for punishment? I'm going to suggest a principle that I think is not a complete answer to that question but that I think is a really good starting point. I think this principle captures the paradigmatic case of what we want to punish, and any sort of extension of this needs a more compelling justification. This principle goes back to John Stuart Mill, or at least something like it is normally referred to as the harm principle. And the idea here is just that the criminal law should be targeting wrongdoing. The society is only justified in harming one of its members by imposing a criminal punishment on him or her if that person is harming or risks harming another member of society. The intuition is that we don't punish people for harming themselves. We don't punish people for being unlikeable or being offensive. The criminal law should only get involved when someone commits a wrongful act in the public sphere. The kind of thing that could actually infringe upon the security or autonomy interests of another. Wrongful meaning we don't punish accidents that are unforeseeable. You need to be culpable for the act that takes place in the public sphere that harms or risks harming the security and autonomy interests of other people. I myself find this very intuitive. You can certainly challenge it in the Q&A if you'd like. I don't think it's a complete answer to what the criminal law should be in the business of punishing, but I think it is a good starting point. And what I'd now like to ask is whether using this principle, and maybe extending it if necessary, we think it's justified to impose a criminal punishment on people who have criminal intentions, they intend to commit a crime, together with another person, at least one other person, but who have not yet committed an act. Who have the intention but haven't done anything about it. And the way I'm going to try to discuss this, I'm going to argue that the answer is no, we're not justified in punishing people merely for their criminal intentions I'm going to try to think of the best arguments I can for doing it, and I'm going to try to refute those arguments I'm going to suggest that they are insufficient for the purpose of defending thought crime. Okay, first argument. Intending a crime is bad. It is bad. It is immoral. You should not do it. You are a bad person if you have a criminal intention. Okay. It's even worse to intend a crime than merely to desire to hurt other people and do bad things because you might think desires are kind of passive. You can't always really help what you desire. But an intention is active. You've chosen to commit a crime. This is a bad thing, and that is enough to desire criminal punishment. You are guilty just in virtue of committing the crime in your heart, as it were. Whether or not you succeed in actually harming anyone might be just a matter of luck. It's sort of irrelevant for whether or not you deserve to be punished. Now, this argument seems like it would prove too much because normally we do target actions. But it looks like this person would have to be saying in every case what the criminal law should be going after is intent, and the act is merely sort of icing on the cake. Well, this person, the proponent of this argument might respond, look, normally, we lack sufficient evidence that somebody has a criminal intention. It's just too hard to prove beyond a reasonable doubt without any further act that somebody is in this state of mind. But in the case of conspiracy, you might think this evidential barrier is removed because the conspirators have had to, in some way, communicate their intentions to one another. So maybe if we can have evidence of that, then we know that the co-conspirators have the intent that makes them deserving of punishment. We don't need anything else. So is this sufficient justification for thought crime? Well, I think the answer is no. It does not suffice, and this is for a simple reason. The law is not in the business of punishing everything that's immoral. It's not going to be enough to show that someone is bad and has done something immoral to demonstrate that it should be criminalized and punished. For example, some things we think are private. They might be actions, but they don't take place in the public sphere, and they don't cause the right kind of harm. Take adultery. Many people, at least very plausibly, think that adultery is immoral. It's really bad. You should not do that. But the criminal law is not going to get involved and punish you for committing adultery. And the intuition there is that it's not public in the right way. It's not the kind of thing that causes, I think it does harm people, but it doesn't harm their security or autonomy interests. And we don't think the criminal law should intrude on that kind of action. Even more relevantly, there are cases where we know that someone has a criminal intention, there's no evidential barrier, and yet we don't hold them criminally liable. So this comes up in cases of what are called inherently impossible attempts. So suppose, for example, I have the intention to commit murder. I'm going to murder Russ.

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He's been assigning me too much committee work.

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So I have the intention, but what I'm going to do is I'm going to make a voodoo doll that looks like Russ and I'm going to stick it with pins and I'm going to murder him that way. So at least in many jurisdictions, I'm not going to be found criminally liable even though I have the sort of murderous intention. I'm immoral, of course. I'm really bad. I should not be doing this, but I haven't done anything that we think is harmful or even risks being harmful. Voodoo is not a harmful activity to engage in. So I think these kinds of cases lend support to our harm principle. We think some actions are too private and don't constitute the harm or risk of harm that we think justifies the intrusion of the criminal law. And I think this is really just an appeal to your intuitions. But even if we had perfectly reliable intention decoding technology, so imagine something like Minority Report. We knew perfectly well what people's intentions were, and there was no evidential obstacle to punishing people merely for their intentions. I don't think that would fully eliminate our discomfort with thought crime. It might help somewhat. We might worry less about punishing the completely innocent. But I think we would still feel that the thought was too private, that that's not somewhere that the government should be going even when our thoughts are highly immoral because it's not the kind of thing that directly could harm somebody else. So I don't think this strategy works. Here's a second strategy. My opponent might grant me my point, say, okay, okay, we don't criminalize everything that's immoral, that's right, and you're right that thought is something that's essentially private that we don't think is intrinsically harmful or even risks harm. Okay, but intending is not really a kind of thought at all. Maybe intending is really just doing. To form the intention to carry out a kidnapping, really is just to take the first step down the line toward succeeding. So maybe my first diagram wasn't correct. I shouldn't have said that the line starts in mere thought. Maybe intending is already sort of taking a step into the world. And so we can protect thought but deny that punishing intentions is a kind of thought crime at all. It sounds like a strange strategy, but I think one thing to be said for it is that if we had a perfect god-like agent on our hands, someone who sort of never changed his mind about what to do once he had made a decision, who was never weak willed, never sort of planned to go on a diet and then broke it that very day by eating the whole chocolate cake. Someone who didn't have to take means to his ends, means that might fail. For this kind of agent, it would be hard to draw a meaningful distinction between intending and doing. If God says let there be light, he intends that there be light, that's enough for light to happen. The intending just is the getting it done for an agent like God. So maybe that's going to justify punishing mere criminal intentions. They're not thought at all. Okay, well, I think this is a really interesting strategy, but I don't think it's correct. I think intending is not a kind of doing. I think it is a kind of thought. And I think we're going to be led to insufferable problems if we go this route. So the point, really, is that we are not god-like agents. We are agents who all too often do not do what we intend. Because we do forget what we intended. We intend to get gas on the way home, and then we just drive straight home without stopping or we just forget. We often change our minds. We often come to a decision to do something, like go on a diet, and then the very next day we abandon that intention. Or we're weak willed so we don't actually change our minds but then we gobble down the chocolate cake anyway. There are many cases where people just don't do what they intend. It would be wrong in these cases, I think, it would be incorrect to say of somebody, suppose Valle and his co-conspirators got together in the morning and they formed the intention together to kidnap someone. But then in the afternoon they thought better of it and changed their minds. So they abandoned the intention. Would we want to say that in the morning they were kidnapping somebody, although in the afternoon they stopped? No. Right? That seems laughable. It seems incorrect. And we can even sort of make it the case that they formed the intention and abandoned it several times. How many counts of conspiracy should they be guilty of? Have they sort of begun kidnapping somebody three separate times that day? No, surely not. I think this isn't going to work. And this is really just because we don't think of intending as the first step in carrying out the crime. I also think there's a regress problem here, but I think maybe in the interest of time I will skip over discussing that, and if you want to bring it up in the Q&A, I'm happy to talk more about it. But I think there's another problem with trying to just collapse the intending into the doing. We get to the third argument, which I think is really the most interesting and the most plausible. So my opponent might say you're right, intending is not doing. It's mere thought to form the intention is not yet to carry it out, but when somebody does have the intention to commit a crime, we have really good evidence that they are going to try to commit a crime in the future. We don't have perfect evidence for all the reasons I just mentioned. Lots of people have intentions to do things and don't even try to do them. But we have really good evidence that someone will try to commit a crime in the future when we know that she intends to do so. So now we have to ask, does it suffice for punishing somebody that we have really good evidence that she will try to commit a crime in the future? Is this a principle that we as a society want to accept? And I think the answer has to be a resounding no. This is not a good way to go. This is really timely actually because in the last 10 years or so, really since the publication of Moneyball and the corresponding film, we have been using the strategy of big data analytics to try to carry out lots of different activities in a more statistics driven way. We use actuarial approaches to figure out how to win at baseball and many other kinds of things, including in the criminal justice system. This is a program that's in place in many states. Pennsylvania and Tennessee both just passed laws requiring something like evidence-based sentencing in the criminal courts where we appeal to data like race, sex, family history, socioeconomic status, education level, things of that nature to try to predict who is more likely to commit a crime. And these things are good evidence at a general level. And I hasten to add, I don't mean because there's any kind of intrinsic essentialist explanation for that. These things correlate with other inequities in our society, with discrimination and inequality. So we are now in the business or we're sort of flirting with the idea of imposing differential sentences on people based on factors like this, like race and sex. And I think that's unjust. That is not what we should be doing, we should not be punishing people for things they have not yet done, especially based on factors like this. For one thing, it's going to further entrench inequalities that already exist. It seems unfair. And I think, more generally, and this is more relevant to people who actually have criminal intentions, it fails to address people as agents. If the criminal law is going to be in the business of punishing, it's holding us responsible for what we do. It's assuming that we're agents who make choices based on reasons and can be punished because we deserve it or reward it, I suppose, if we do deserve it. That might not actually be true, but the criminal law needs to be sort of assuming those things in order to even make sense of punishing. And yet, when we shift our perspective and address persons as mere objects of prediction, as if we're predicting when an earthquake is going to strike and cause harm, we've just shifted completely out of the framework in which punishment makes any sense. We're now treating people as objects, and it doesn't make any sense to punish an earthquake no matter how harmful it is. We've gotten rid of the presupposition that the person is an agent who makes choices. So I think the criminal law should be addressing us as agents, and the way to do that, to address someone as an agent is to offer her reasons to act one way or another. We assume that she's more or less rational and can respond to good reasons for action. And I think what that amounts to in the case of conspiracy and other inchoate crimes is to offer agents a really good reason not to proceed with their criminal intentions. Don't, even once you have the criminal intention, don't act on it. And one really good reason not to act in your criminal intentions is you have not yet incurred criminal liability at that point. You are not yet a criminal. You are not yet sort of subject to being thrown in jail. And if you abandon your intention, you will not be punished. If we make it a crime just to form the intention to kidnap someone, then we create an in for a penny, in for a pound incentive structure. You might as well go ahead and do it. Now that you are already liable and already facing a sentence of life in prison, you might as well actually carry it out. And so I think the way to address the people as agents is to offer them reasons, to offer them what's sometimes called a locus poenitentiae, a place of repentance where if they go ahead and abandon the intention at that point, they will not be punished. And I'm not saying that they should be able to complete their crimes, but up until the point where they've actually begun to engage in wrongdoing in the public sphere, there's still a chance. There's still a chance for them to abandon their intentions. Okay. Finally, we might think that conspiracies are just really different than individuals with criminal intentions. A lot of what I said has sort of been as equally applied to individuals who plan to commit crimes. But you might think that conspiracies are just different, and they're so dangerous. Group action is so much more dangerous than individual action that we just can't risk it. We have to target conspiracies at their very inception. We can't allow any sort of chance for them to abandon their intentions and repent. We have to step in right away. This is actually a rationale that's often given, at least in the legal treatises that I've read, that group activity is just so dangerous that we have to target it immediately, and I really just don't see how this could possibly be true in general. I actually think, and maybe there are some lawyers in the room who have some idea about this, but I think people have organized crime in mind when they say things like that. But I think in any given case some individuals are incredibly dangerous. Some individuals are extremely effective and resolved and even though they don't have any help, they're incredibly dangerous. And some conspiracies are incredibly inept. That's just a fact. The conspiracy that we have in mind here existed between Valle, who lived in New York, Michael Van Hise, who lived in New Jersey, Ali Khan, who was living in Pakistan, and a third guy, Moody Blues, who was living in Great Britain. They never met in person. They didn't know each other's real names. It's not at all clear that this was an extremely dangerous group of people who are going to be, they're not the guardians of the galaxy, in other words. So it's just not clear. I think some individuals are really dangerous and some conspiracies aren't, and it doesn't make enough sense of treating conspiracies in this way that's very different from other kinds of crimes. There's one reason for that. I think further complexity, further people to coordinate with, can create what you might call the too many cooks in the kitchen problem. And related to the last point that I made about the law treating people as agents and addressing them with reasons not to proceed with their crimes, you might think that the more people you get in on the plan, the more likely it is that you'll get a kind of wisdom of crowds phenomenon where someone in there might recognize that they have really good reason not to proceed with this criminal plan and just to abandon it. So it's just not clear to me that there's any sort of specific danger inherent to conspiracy that justifies making it into a kind of thought crime and refusing to allow people the chance to abandon their intentions before they act them out. Okay, so, to conclude, what have I argued here? I've tried to suggest that we don't want to be punishing mere thought, even criminal intentions. That that goes too far in the direction of trying to privilege safety and crime prevention, but it intrudes on a space that I think we should want to protect. Does that mean that law enforcement isn't justified in intervening until the harm has been done? Do we have to wait until somebody actually gets kidnapped before we punish? I think that would also be a really bad outcome. That would be too far in the other direction. But I don't think that those are our only two choices. And here is where the philosophy comes in sort of at the last minute to save the day. I think what's needed is a better understanding of actions and progress. That whole middle ground. Going back to my picture here, if this is the right way to think about an action in progress, again we face lots of choices about where to draw the line, and a good account in the philosophy of action about what the structure is here and whether there are sort of determinant phases that one goes through that could help us with saying when the wrongdoing begins. For example, I've tried to argue that we should not punish mere thought. We also might not, following sort of attempt law for people who are familiar with that, we might want to require that it go beyond mere preparation. That maybe even eating extra cereal with the intention of robbing a bank still shouldn't be enough. And what would be great there is an account of what it means to prepare. A principled account. Not just I know it when I see it. And then we might say, well, there's actually a principle distinction between preparing and beginning to do the thing where we don't have to say you have to get all the way to the end, but it might be something like getting in the car with your ski mask all sort of energetic from your cereal to drive to the bank. Maybe that's when the bank robbing really begins, and we can say now there's wrongdoing. Now there's an action in progress that is a crime, and now it's fine to step in to prevent it and to punish as if they had succeeded but not before. And I haven't offered you an account like this. I think this is an exciting question to work on, and I think this is something that philosophy can really maybe help the criminal law with. So the general point is that we don't have to wait all the way until the completion of the crime to punish, but that doesn't mean that we have to go all the way back and punish mere thought. So, thank you.

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