Q&A: Drivers Who Use Their Phones Should Go to Jail
Drivers Who Use Their Phones Should Go to Jail
Question
Hello Rabbi,
I would be happy if you could resolve a moral contradiction I have.
I believe in a morality that is mainly deontological.
I hold that the criteria for the morality of an action are intention (primarily), autonomy, and the effort a person invests.
The criterion I think is least relevant is the outcome (though there is room to say that judgment regarding the *chances* of a good or bad outcome is important).
At the same time, I thought of a case regarding which it is hard for me to formulate a moral position.
I see that drivers who killed pedestrians because they were using their phones are punished much more severely than drivers who used their phones but did not kill anyone.
And the truth is that in some sense I agree with that. It seems excessive to put every driver who played with a phone in jail. That is clearly an unreasonable punishment.
On the other hand, both did the very same act, with the same intention (for the sake of the discussion). In truth, in my opinion both are equally immoral. So where is the difference? Why does the outcome here affect the punishment so much?
I thought maybe one has to detach the assumption that punishment is not a function of morality, but the other reasons, like removing dangerous people, do not apply here either. Both are equally dangerous. In fact, they are roughly the same person in every respect (morality, dangerousness, etc.).
Where do you think my mistake lies? In which assumption?
Thank you,
Nathan
Answer
In theories of punishment, several rationales for punishment are offered. One is a sanction corresponding to the severity of the offense; another is retribution for the outcome (the state carries out controlled vengeance in place of the victim or the victim’s family); atonement, deterrence, and so on.
From the standpoint of the severity of the offense, it seems there is no difference at all between using a phone while driving that caused a person’s death and using it without causing death. Attempted murder is exactly as grave as murder. But from the standpoint of retribution for the outcome, there is of course a difference. Specifically here, perhaps there is room to distinguish, since there are situations in which using a phone while driving is less dangerous (the circumstances are such that one can reasonably assume nothing will happen). Therefore, if someone was harmed, that indicates that the circumstances were such that it was not appropriate to use the phone, and then there is justification for a harsher punishment.
And above all, the fact that you have some intuition—if you reach a conclusion that contradicts your other principles, you have to decide what you believe and give up the other side. There is nothing sacred about those intuitions.
Discussion on Answer
The claim is that revenge is a natural and legitimate emotion, except that it is not right to let the person himself take revenge. That would be disproportionate and would harm his own soul. So the state does it in his place in a cool and controlled way. In the religious context this is less legitimate, because people believe there is One who will avenge us in our place (the Holy One, blessed be He).
Copying here a related comment from a similar responsa:
Oren commented 4 months ago
Even in an approach where punishment exists only for protection and deterrence, there are cases where retribution is what gives legitimacy to punishing at all. For example, suppose we are dealing with an old criminal who poses no danger to society, but there is a need to deter other criminals from following his path. Without society having justification to punish the old man by virtue of a right of vengeance against him, we could not punish him, because there would be a problem of saving oneself at the cost of another person’s life—the public achieves deterrence of others by harming a third party, the old man.
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mikyab team commented 4 months ago
Very true. It seems to me I wrote that here (maybe in column 47 on punishment), that retribution is the justification for giving a deterrent punishment. If someone does not deserve retribution, then even if punishing him would achieve deterrence, there is no justification for punishing him.
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Beyond that, one could add that in the religious context revenge also increases harm in the world. For example, if Reuven killed Shimon’s relative unintentionally, and Shimon wants to take blood vengeance on Reuven and kill him, the revenge will not bring Shimon’s relative back to life, but will only add more death to the world. Therefore, especially in cases of harm caused unintentionally, one should avoid revenge even though refraining from revenge involves a certain injury to the attribute of justice. That is also the reason that “an eye for an eye” means monetary payment. In terms of the plain sense (and justice), it would have been more correct to put out the eye of someone who put out his fellow’s eye, even unintentionally. But from a broader perspective, in order to increase peace in the world, the right of revenge is converted into compensation payments (even if that is not the most just outcome). Therefore some hold that the amount of compensation depends on the value of the eye of the injurer and not of the injured party, because the injurer pays the injured party so that the latter will not put out his own eye.
So is the state’s justification for doing such a thing to impose order? So that a private individual will not come and take revenge?
And if so, why is that okay? Because of feelings of vengeance they send a person to jail?
Yes. There is a feeling of vengeance, and there is justification to realize it (because he deserves it). In attempted murder there is justification, but there is no feeling of vengeance, and therefore there is no need to realize it.
As for the justification for carrying it out, I think there is also the matter of creating deterrence for other potential criminals and removing the criminal from society in order to protect it (and maybe that is actually the main justification, because only the Holy One, blessed be He, knows whether that person truly deserves punishment, and what punishment)
Of course. In theories of punishment many rationales are offered. Here I mentioned only two or three to illustrate.
I thought to explain the verse “And one who strikes a man shall be put to death” as referring to someone who tried to strike his fellow to death but in the end did not succeed. For it says a few verses earlier, “And one who strikes any human life shall surely be put to death,” from which it follows that the verse “And one who strikes a man shall be put to death” deals with one who did not strike the life itself. The Torah teaches that the law of both is death. But for the one who struck a life, this is death at human hands that cannot be commuted into payment, whereas for the one who struck the man, this is death at the hands of Heaven, which can be commuted into monetary payment.
Maybe. And in particular, perhaps this is the explanation for Maimonides’ puzzling view that the five payments are a kind of fine or ransom (for which one who admits liability is exempt). Although there it is speaking about one who injures another, not about a failed attempted murder. And we also find something like this in several places regarding injury: “What difference is there between killing all of him and killing half of him” (see, for example, Tosafot on Gittin 42b and elsewhere). And again, that is about injury, not attempted murder.
Following up on this responsa and what you said in the second-to-last lecture in the series on doubt and statistics regarding punishment for attempted murder and response to missile fire—you said there that one should respond to / punish attempted murder / missile fire the same as completed murder and a missile that actually hit. That is, according to your view one should punish only for intention and not for the outcome. But from what is written above in this responsa, it seems that you do in fact accept the matter of retribution and the feeling of vengeance as a legitimate part of the theory of punishment.
I am not sure about punishment as vengeance. In any case, it is clear that the punitive dimensions of deterrence and protection are relevant to an attempt just as to the act itself. In particular, the response to missile fire is mainly deterrent and preventive. Therefore one should respond with the full severity to missile fire and to attempted murder. If you want to be even stricter with an act that succeeded—that’s fine.
And why is it okay to punish someone out of vengeance?
Is there value in revenge in your opinion?
Or are you saying that this is human nature and we act this way as a kind of after-the-fact concession?