Undeserved Happiness or Good, and Deserved Suffering or Harm: A Problem With My "Justification of Punishment"
Rick Garlikov

My justification of punishment depends in part on the idea that it is unfair to let someone have enjoyments or other benefits they unnecessarily, unjustifiably, and inexcusably deprived others of having or which derive from acts they did which were wrong.  In cases of theft and the enjoyment of, or benefit from, what was taken or stolen, that is fairly clear.  That might be a car or bicycle or an idea from which they then gain success (whether in enjoyment, grades, money, recognition, power, or any other benefits) by claiming it as their own.  One does not deserve the pleasure from stolen fruit which others worked hard to produce or earn.  That is theft of their labor and theft of the benefits of their labor.  [There are other kinds of undeserved pleasures that should also not be unnecessarily allowed, or at least not encouraged, as in taking pleasure in the undeserved pain, suffering, or misfortune of others, even though one is not causing or directly causing that pain, suffering, or misfortune, as in enjoying watching fights in boxing, hockey, spectacular accidents in automobile racing or even just in nature, bone jarring tackles in football, Roman gladiator confrontations with ferocious animals, the unnecessary or even accidental humiliation of others or, as some people believe, in enjoying meat from animals raised under terrible conditions because those were the most economical ways to 'farm' them.  But I wish to consider here only those sorts of undeserved pleasures or benefits which are those one has unnecessarily and unjustifiably deprived others from having.]

I think there is no problem with the idea that one should not benefit, or be permitted to benefit, from the theft of other people's labor, at least not where theft means that the thing taken was taken without permission and where the owner would not want it taken or accept its being taken.  The case is not as clear when permission is given but basically coerced, as in extortion, or as in agreements involving slave wages or essentially any unfair wage because the person working for it is in need of money they cannot otherwise earn, through no fault of the hiring employer, and has to settle for what s/he can get.  A wage can also be unfair even if freely accepted, if circumstances later make that labor far more valuable than either party knew at the time but the additional gain is not fairly distributed.  It is also not always clear what constitute a fair agreement or fair compensation when a host of different kinds of factors are involved in the success of a group activity that involves different kinds of skills, effort, time, etc.  But the basic principle that one should not be allowed to enjoy what one has wrongfully taken from others by way of what is clearly theft (or even extortion), I think, is a reasonable and unproblematic one.

But it is, I think, problematic whether one can be allowed to have joys or benefits which derive from inexcusable wrongdoing (as in writing a best-seller and movie blockbuster based on one's being a serial killer) or which one has unjustifiably, unnecessarily, and inexcusably deprived others of even though it is not the same joy or benefit one has deprived them of, and even though it is not joy or benefit that comes specifically from the harm one has done others.  In other words regarding the latter, for example, am I justifiably allowed to enjoy food if I unjustifiably and inexcusably deprive you of food even though it is not then your food that I am eating?  It seems not only wrong to deprive you unnecessarily, unjustifiably, and inexcusably of something, but it seems worse and also unfair in a different way for me to deprive you in that way of something similar which I myself have or will have.  E.g., suppose one sibling purposefully prevents the other from being able to watch or enjoy a television show the second one wants to watch, in order just to torment his/her sibling.  Is it not right for the parent then to deprive the perpetrator from watching or enjoy at least one that he or she wants to watch -- as a punishment, not just to "teach a lesson" that the first child should already know?  Isn't that simply fair in some way? 

Or suppose there are two job openings and you are seeking to secure one of them, and are the most qualified and deserving of the job.  If I unnecessarily, unjustifiably, and inexcusably deprive you of the one you seek, that would be wrong in itself because it deprives you of deserved benefit.  That is true whether I seek either of those job openings for myself or not.  By the principle of unfairness of theft above, it would also be wrong by way of unfairness if I were less deserving of the job you wanted but got it because I kept you from it.  In essence, I would have stolen your rightful job from you, stolen the fruit of your labor and skills that prepared you for that job. 

But it also seems to me to be wrong if I were to seek and acquire, not the job I kept you from having, but the other one.  Perhaps even any job I want, whether related to the company you were seeking to work for or not.  If I unnecessarily, inexcusably, and unjustifiably unfairly do not allow you the work you want and deserve, is it fair or right for me to have the work I want, even if it is totally different work from which I deprived you? 

And more generally, it is problematic whether one can have joys or benefits taken away from one for doing something totally unrelated to preventing others from having joys or causing them unrelated burdens.  In other words, what gives us the right to punish someone with prison or fines (over and above restitution) for having done something wrong?  My problem is that I do not know how to justify that, particularly not from the principle, which is the part of my general ethical principle that says we have a prima facie obligation to create the most good, least evil, or greatest balance of good over evil for the greatest number of deserving people.  There are other ethical considerations that can prevent that from being an actual obligation, and the ethical principle in its entirety is:

An act is right if and only if, of any act open to the agent to do, its intrinsic or natural consequences, apart from any extrinsic unfair rewards or punishments, bring about the greatest good (or the least evil, or the greatest balance of good over evil) for the greatest number of deserving people, most reasonably and fairly distributed, as long as no rights or incurred obligations are violated, as long as the act does not try to inflict needless harm on undeserving people, as long as the act does not needlessly risk harm in a reckless, negligent, heedless, or irresponsible manner, and as long as the act and its consequences are fair or reasonable to expect of the agent.* Rights have to be justified or explained or demonstrated; not just anything called a right is actually a right. Further, the amount of goodness created or evil prevented may, in some cases, be significant enough to legitimately override a right or incurred obligation that a lesser amount of good created or evil prevented may not. Overriding a right or incurred obligation is not the same as violating it.

*What is fair and reasonable to expect of an agent: 
It is fair or reasonable for people to do things at little risk or cost to themselves that bring great benefit, prevent great harm, or create a much greater balance of benefit over harm, to others. Apart from cases where an agent has some special higher obligation that he has assumed or incurred, as the risk or cost to the agent increases and/or the benefit to others decreases, an agent is less obligated to perform the act. At some point along these scales, the obligation ceases altogether, though the act may be commendable or "saintly" to voluntarily perform (that is, it may be "over and above the call of duty"). At other points, the act may be so unfair to the agent -- may be so self-sacrificing for the agent to perform, even if voluntary, and/or of so little benefit to deserving others, that it would be wrong. (Not every act of sacrifice or martyrdom is all right or acceptable.)
[Introduction to Ethics, http://www.akat.com/MeaningOfLove/introeth.htm]

I am concerned here with whether that principle, as it is written, justifies depriving people of benefits of the same kind (or any commensurate kind) which they have unnecessarily, unjustifiably, and inexcusably deprived others from having, or of benefits in any way derived from inexcusable wrongdoing.  If not, is there any other justification for the belief people should not be permitted to benefit from inexcusable wrongdoing or from having inexcusably and unjustifiably deprived others of comparable benefits?  If not, is the belief itself simply intuitively or basically right? Or is it even a correct or reasonable prima facie belief/principle at all?

It seems to me that it is reasonable that creating the most good, least harm, or greatest balance of good over harm for the greatest number of deserving people is a correct prima facie principle, and is actually obligatory when it also meets the other conditions in the principle, of being fair to everyone, not risking of unnecessary harm, etc.  For shorthand, let me call it the principle of the obligation to do the most deserved and fairly distributed good.  I also believe it entails doing no unnecessary undeserved harm to anyone (along, with the rest of the principle of doing no unfair harm or putting them at unfair risk, etc.) since doing unnecessary and undeserved harm is not doing the most deserved good or the least harm.  In other words, one could do less harm by doing nothing unnecessarily bad to another person, and it is not unfair to expect someone to do nothing harmful.  That is why there is more of an obligation to refrain from harm than to have to do positive good, if doing positive good might be taxing or costly or even unfair to expect of an agent.  Doing nothing unnecessarily harmful has no cost of one's time or energy and is not unfair to expect of people.  However, I am not sure whether the prima facie requirement to do the most deserved and fairly distributed good entails minimizing, reducing, or eliminating the most undeserved good of the sorts in question; i.e., good that is undeserved because it is good that one has unjustifiably and inexcusably deprived or prevented others from having, or good which one has derived from inexcusable wrongdoing of any sort.

Now, I do not believe that we have an obligation to prevent innocent people from having good which is not strictly deserved, 'deserved' in the sense of having been earned in some way.  If someone is lucky and has good fortune come his/her way through no particular desert or merit of their own, there can be circumstances where that is acceptable, I believe, particularly if it does not take something away from someone deserving of it or who needs it far more than the person who gets it by luck and who could be, and should be, given it instead.  Suppose for example that someone recovers miraculously and spontaneously from a serious illness, simply because of good luck, not because of some healthful regimen s/he devised for her/himself.  That is a good thing even if others were to die from the disease -- others perhaps who are equally good people or maybe even better people.  Mother Nature is not under the obligation to do the most deserved good fairly distributed, though it might be nice if she were, and if it led to much poetic justice and if it meant karma is true and a real, natural thing.  But the requirement to do the most deserved good fairly distributed certainly does not entail punishing or executing people who have miraculously survived diseases or accidental injuries other people did not, at least as long as they did not cause the accident.  I do not think that being in a non-negligent accident which costs someone loss of kidney function obligates one to donate a kidney to him/her.  It might be that negligently causing the accident could potentially obligate one to do that.  But even if negligence might bring about such an obligation, the problem is that some negligent acts are more culpable or blameworthy, less excusable, understandable, or forgivable, and/or perhaps more irresponsible than others.  Some are instead more accidental or understandable in a way that could have happened to anyone even though in hindsight they were wrongly risky.  For example, suppose that eating a sandwich while driving, or listening to the car radio causes one to lose focus on the road ahead for just a second or two at just the wrong time, should that require giving up a kidney to the accident victim?  If there is a clear cut answer to that, I don't know what it is.

But the question I am interested in here is whether the obligation to do the most deserved good, fairly distributed, entails depriving someone of good they deprived others of but which is not the specific good they are then enjoying for themselves instead, as in the job example above or as in being allowed to live and have some joys even though one has unnecessarily, unjustifiably, and inexcusably deprived another of his or her life and any possibility then of having such joys?  I do not believe the principle of minimizing undeserved good in such cases can be derived from the principle of maximizing deserved good.  Whether it can be derived from that coupled with the specific notions of fairness given as qualifying conditions in the principle or not, I also do not know.  It seems to me to be right and fair to deprive someone of goods commensurate with those they unjustifiably and inexcusably deprived someone else.  But I am not confident the principle in red above -- my general ethical principle -- as articulated, implies that.  If not, then if it is right to reduce, minimize, or eliminate undeserved good of a sort one has unjustifiably and inexcusably deprived others of, that needs to be added to the principle.  My concern is that is an ad hoc principle just to justify punishment, particularly capital punishment.  I just wish I had a better basis for it than some sort of intuition coupled with examples such as the food, television, and job example.  And I may now have; see the "Additional Thoughts About All This" below.

A corollary problem is how much should be taken away from someone who has deprived others of something to which they have the right.  What should the penalty (or more precisely, what should the value of the penalty) for any wrongdoing be?  In football, for example, offensive infractions of the rules result in loss of the yardage gained (and any points gained), but also generally a loss of additional yardage, sometimes (though in rare cases, also loss of down or the 'mulligan' and 'do-over' of the play). For some egregious and harmful infractions, a player may be ejected and/or fined, possibly not allowed to play in other specified games or part of the current or next season.   So if you steal my car, and we recoup the car and pay for the police, how much more of a penalty is right to inflict on you.  And does my general ethical principle imply it is right to inflict any additional penalty on you?  However, in basketball currently, there are some fouls that merely stop play and let the offensive team inbound the ball with no penalty on the defensive team other than adding to the personal and team foul count that may eventually lead to a punitive reward for the team fouled, but does not give any reward for that particular foul.  There is no real immediate penalty for early fouls in basketball game.  It is tantamount to something like being caught shoplifting and just being allowed to return the merchandise or pay for it with merely a warning placed on your 'record'.

Of course, insofar as punishment is meant to be a deterrent as well as a penalty or cost for wrongdoing, it needs to be severe enough to make the wrongdoing not worth trying, which is not always easy or possible, if the perpetrator's goal is more important to him/her than the penalty.  That can particularly be the case for undeserved punishment or for extortion to force someone into a wrong act their morality will not let them commit, even at the price of your punishment.  In football, for example, an offensive lineman might tackle a defender intent on violently hitting the quarterback in a way that might cause serious injury.  Losing 15 yards to save the season or career of a valuable quarterback is worth it.  And in some cases, the penalty is not only a 'slap on the wrist' and thus generally an insufficient deterrent or retributive cost/penalty, it may not inflict any real pain or suffering at all.  In football, for example, if time is running out and the team with the ball is ahead by more than two points, it can be reasonable to take an intentional safety on a play that runs out the clock, since giving the other team two points preserves and seals the victory for the team taking the safety.  In real life, for someone living on the streets in terrible conditions, prison may be an improvement of their quality of life, so the penalty for their committing a crime may actually, for their circumstances, be a reward, just as the safety would be in the football case.  What is really being asked here is what the actual punishment should be, not just what the prescribed penalty should be -- in cases where the penalty may not be an actual punishment (or deterrent) and may be instead a reward and incentive. 

And, of course, in some situations there is always the chance of not being caught doing the act that is punishable, whether in sports or in life.  It is not only the severity of punishment but its certainty, that matters.  But for here, I am concerned with how to determine the proper severity and whether it can be derived or not from my general ethical principle or whether an additional principle (or additional components of the principle above) is necessary.   At this point I do not know the answer.  I am inclined to think that 'doing the most good for the most deserving people most fairly and reasonably distributed...' tends to imply in some way doing harm to evil or undeserving people, but I would be happier if I had a better, more direct argument for the logic or reasonableness of that.

Additional Thoughts About All This (July 19, 2019)
I now believe that the reasonable and fair distribution part of good and bad consequences of an act (i.e., burdens and benefits) in my general principle can justify punishment, such as jail or heavy fines, for acts which are commensurately wrong or harmful.  The revelation was inspired by a recent event covered by national news: the 'Internet ice cream licking challenge', begun by someone who videoed herself licking a package of ice cream she took from a store freezer shelf and then put back on the shelf after licking it, and challenged others to do the same or more.  Understandably this disgusting behavior caused an outcry by the public and by law enforcement.  A short time later, someone in Louisiana performed a variation of the act, by filming and posting his doing the same thing in apparent acceptance of the challenge, though in order to avoid punishment, he only simulated leaving the licked ice cream in the store, because he had actually purchased and took with him the package that he filmed himself licking and leaving.  He actually did lick it, but he did not leave it; and he did not steal it.  He had purchased it.  But he was arrested and charged with breaking a really interesting law that was passed in Louisiana in 2008 -- "unlawful posting of criminal activity for notoriety and publicity".  Whether he can be convicted under that wording is debatable, since it is not clear that licking your own ice cream you pretend is not yours and pretending to put it back on the shelf for others to buy is a criminal activity.  But what he did caused the store to have to throw out all of that ice cream since they didn't know he had not licked it and put it back or which one it was.  So it cost them money.  Now it seems to me that is very little different from his having cost them the same amount by robbing all that ice cream or destroying it himself.  So he should have to at least pay for all that, but he should also have to pay for all the work he is causing the store and all possible lost sales of ice cream in the future and his share of all the expenses companies are going to have to go to in order to tamper proof their products that no one would have ever thought needed to be tamper proofed before all this started as an Internet challenge of a reprehensible and clearly wrong act.

And the girl who began it, and this guy who followed her, knew they were doing something wrong, which is why they did it; this was not a challenge to give to charity or to do something kind to a stranger, but was done purposely to show a brazen display of disregard for others.  It was done for notoriety and to cause anxiety and work to prevent it in the future.  So it fits the spirit of the law.  And by posting it and having it go viral, as it likely would, they have magnified and multiplied the amount of harm they are causing and/or promoting.  It is unfortunately common for too many people to mimic the worst behaviors portrayed as being cool.  Now clearly that puts a burden on much of society and one that cannot likely be financially recouped from the miscreants, particularly those who started it.  So the only way to share in the burdens for what they caused is to be penalized or made to suffer in some other way.  And that seems fair to me, given that until they did what they did, there was not the problem that then needed to be prevented or remedied.
   This is the same for all crime; it not only costs the victim but it costs society in terms of vigilance, police work, the judicial system, insurance, etc.  If there were little or no crime, none of this would be a problem or a problem of the magnitude it is with increased frequency.  And since the wrongdoers are responsible either through malice or negligence for causing the burdens they need to have their fair share of them in the form of penalty and punishment for what they did.  This rationale stands beside the other ones also given, and is not a replacement for them when circumstances fit them.

The idea here also seems to me to help explain in part why it might be right to partially reduce the penalty for a voluntary admission of a wrongdoing, besides the fact that such an admission might also show genuine remorse that could warrant reducing externally imposed suffering on a perpetrator who already is suffering from guilt about what s/he did.  An immediate voluntary confession saves the police from having to solve the crime and find and capture the perpetrator; and it saves prosecutorial costs.  And in reducing that cost to society, it also reduces the perpetrator's share of the burden.  I say "voluntary" admission, to distinguish it from a coerced or extorted plea deal where a suspect decides it has more utilitarian value to accept an offered reduced sentence than to risk being convicted even if s/he is innocent but may not be able to convince a jury there is reasonable doubt about his/her guilt.  Coerced pleas of innocent suspects are wrongful acts.