Considering again the 3 traditional goals of imprisonment (which is what those indulging in normative penology almost always have in mind when they talk loosely of ‘punishment’ – the main exception being killing, which is for good reason usually treated separately and needn’t be condsidered here):

2. Deterrent punishment. I’ve outlined why this does not include ‘special deterrence’ – essentially because in the absence of an iterated process, it requires those supposedly deterred to believe in backward causation. General deterrence has the form: offence o justifies penalty p because (penal practice P deters offences of type O), where o is an instance of O and p of P. Special deterrence would have to have the form: offence o justifies penalty p because p deters o2. But p, being an individual instance of punishment, cannot deter anything once it has been meted out – only something feared, thus in the future, can do that; in the general deterrence schema, P is an ongoing practice which includes future instances, so can deter.

3. Reform. Despite the name, this is in fact only arbitrarily linked to past conduct, so you might think special deterrence could be justified by ananolgy with this. But reform is only arbitrarily linked to imprisonment, and it is definitely not a kind of punishment – even if some would like to use punishment to ‘knock some sense into’ people, it is both contingent if true, and anyway false, that this is an effective strategy. Not many would be willing to endorse such a view as explicitly as I describe it anyway, with good reason. The actual methods used to ‘reform’ are in fact things which people benefit from, and might be expected to welcome if they had been (as they should be) available before any offending had occurred: training, education, careers advice, mental health services, drug rehab.

4. Prevention – this typically refers to imprisonment, though other forms of monitoring such as tagging and indeed surveillance are available. Like reform, it is not necessarily punitive, thus not a counterexample.

However, incapacitation is almost inevitably unwelcome, and is only applied to those who have already offended (unless they are diagnosed as mentally ill). The existing official practice is sometimes to include an incapacitatory component in prison sentences while not applying unwelcome/forcible methods to incapacitate those compos mentis who may be predictable offenders but haven’t offended yet. (To the extent that methods of ‘reform’ are unwelcome/forcible, this is true of them, too, but that can be left aside since my arguments about incapacitation will cover them a fortiori.)

So, the argument might go, since it’s OK to include an additional incapacitatory component in de facto punitive sentences, special deterrence must escape the objection under consideration here (other decisive objections still stand – incapacitation is a more justifiable response to the hypothetical openly and adamantly determined reoffender).

This is nearly but not quite true, but en route to explaining why, I’d challenge the premise. I don’t accept that even de facto punitive measures are justified by the goal of prevention. Preventative detention is the obvious case: Robert Nozick has discussed this, and holds that while such a practice could be justified on grounds of public safety, the person detained to prevent merely predicted future offending must be fully compensated for their detention. One need not agree to see that this possibility establishes that preventative detention is not essentailly punitive: it could work just as well if it were fully compensated for. Special deterrence by contrast is essentially punitive – a punishment which was fully compensated for could not perform the supposed function of special deterrence, which is to deter. Given that incapacitation need not be punitive, it should not be if that is possible, and the fact that it is is something to be avoided – given that we are talking of incapacitation as the primary aim, rather than a side-effect. There is in nay case clear difference here, and if harsh preventive measures are to be positively justified, it will not be on the same basis as that supposedly justifiying special deterrent punishment.

There is another idea or family of ideas which I suspect probably underlies LFC’s explicit, and/or others’ implicit, willingness to accept special deterrence for past offenders but not for the unconvicted: the ‘us and them’ approach whereby offenders plave them,selves beyond the pale of civil society, or as it is sometimes put by the more outspoken advocates of this kind of view, ‘give up all their rights’. Clearly most such views, though popular in a knee-jerk, scapegoaty kind of way, are rankly uncivilised. One variant might be based in the idea – aslso to be found in Nozick (I tend to cite Nozick first, mainly because I’m so familiar with it) that desert (justifiable retribution) places an upper bound on justified punishment, which may be ‘drawn against’ in order to subserve positive, goal-based justifications, notably general deterrence.

Here the idea is that the offender does not lose all rights, but ‘opens the door’ to a certain level of punishment, so far as that can be justified by other considerations. So on this view ‘special deterrence’ could be used up to the maximum ‘deserved’ punishment. The problem here is in determining what that deserved punishment is – unless one just stipulates that this is equal to the maximum sentence – which is obviously not right – one is still faced with the basic problem that the factors which determine desert – including character and remorse, etc – all relate to the past offence, while special deterrence is independent of past conduct, as I’ve tried to explain.

(One could go on to examine how ‘retribution’ rather than being an independent justification for punishment is, on a deep, reflective analysis, actually the end product of actually operative justifications – in a Millian vein, our understanding of what is deserved in the individual case is actually founded on and informed by the underlying goals of punishment; notably general deterrence. But never mind that.)

The final possibility I’d consider is the idea that somehow offending behaviour is a necessary part of an admissible or feasible way of determining that a person will offend in the future – and mon-vacuously so, i.e. there is such a way which does make this determination in some cases. This is not at all plausible and I don’t think anyone is likely to defend it, once it’s stated explicitly.

As observed by Harvey Silverglate, Swartz had almost certainly committed felonies on a daily basis, just like everyone else – presumably one of them would have done just as well to meet the requirement that he be convicted of something before being sentenced.

Sorry, my error-correcting algorithm is failing on the sentence above. I can see that the checksum is wrong, but there’s not enough information to tell me what the correct content should be. (Is that what you meant to say to me? I wouldn’t want to look ridiculous by walking straight into an ipse dixit.)

[1] Though so do sites that disappeared behind firewalls as soon as monetizing them became feasible–of course this was only noticed by people who didn’t have legitimate reasons to pay already before the firewall was moved outward.

This experiment has already been run and answered in the negative. With a few minutes of searching you can find complete archives of high-profile journals from science, mathematics, and engineering shared via P2P services and file lockers. Liberating JSTOR would be novel mostly in that non-STEM topics are currently underrepresented in the pirate archives. I challenge you to identify a once-subscribing university where administrators decided that instead of carrying institutional subscriptions to journals they would tell students and researchers to “just use the Russian torrent sites.”

Stephen – Either there would be remaining valuable ‘digitisation’ (are there any existing journals which do not publish digital copies?) or republication work potentially to be carried out by JSTOR as new articles reach the 6-year-old window (or whatever it is these days) or there wouldn’t. You seem to imply that there wouldn’t be, so institutional subscribers would not pay for subsequent JSTOR services, and instead risk being sued for profiting from hosting material in breach of copyright (it is a premise that there would still be copyright still owned by journal publishers, right?). But at the same time you suppose there would be, so this supposed demise of JSTOR would have ill-effects.

Perhaps your idea is that journal publishers would refuse to license JSTOR to use their old articles, and institutions would only subscribe to journals directly through the publisher. Phase 2 of the freeing of articles then commences, and those like AS having access to the journals start leaking those to ASTOR, just as people leak their review copies of films (screeners) to the Pirate Bay. ASTOR being dependent on institutional access, not all institutions can cancel their subscription to a journal or the information will be unavailable. If they do we are in crisis territory and the real problem – the corporate parasites who oligopolise journal publication – has to be addressed. If they don’t, the articles start to be made available via ASTOR. If enough institutions are willing to rely on ASTOR’s leakers to provide article access, journal publication becomes unprofitable and again something has to be done about the corporate oligopoly – perhaps the institutions form a consortium to buy up the unprofitable journals, and run them themselves, rather than paying subscriptions to them.

Perhaps a new model of article publication emerges, with institutions publishing the articles emerging from their own faculties, and various structures emerging to replace anonymous peer review and the journals’ selectivity and ‘prestige’ rankings.

As well as leakers, AS was advocating other moves such as (IIRC) academics publishing their own material freely and refusing to sign away their copyright. Tha plan was not just to republish all of JSTOR (or if you want to look only at the one tactic that AS actually started to implement, you will need to posit a willingness on the part of universities to tell their students to search for articles on the Pirate Bay and sites like Scribd or search to see if any copies are available in some other corner of the internet. (I do this already via Google scholar – a small but significant minority of papers are available in one fo5rm or another, often posted by the author on insitutional web space. I’m not sure of the legal status of such copies, which are often late drafts which don’t differ from the published version except in formatting – I suspect the publishers are willing to overlook this because suing the author of a paper for publishing a copy of it, or an institution for hosting it would really start raising awkward questions and threaten the goodwill/inertia which leads the current situation to be tolerated.

1. If ASTOR is a one-time copy, then it’s an archive, but it (presumably) won’t be getting new submissions, unlike the ArXiv. If so, no administrator could cancel their institution’s subscription to JSTOR, because if they did, they would never get new articles. No university could function if its members couldn’t read new articles.

2. If, on the other hand, ASTOR got buy-in from the community of researchers so that people starting submitting all of their new work to it, there would be no need for JSTOR. If administrators cancelled subscriptions to JSTOR, no one would be losing anything.

3. It’s a straw man to say that it would only be a good thing “if all the scholarly articles that have ever been written, or will be written, have already been digitised and made available by ASTOR”: all scholarly articles are not available through JSTOR or any other single system.

4. Ideally, a database that presents these kinds of papers would present both old and new work. So if the community of people who actually generate the work ever want to stop the middlemen from charging people for it, they can coordinate to send their work to a new database. But they can’t completely switch unless someone puts the archive of their previous work into the new system.

You wanted to talk about this part of it, so I wrote you a reply, but I don’t think that the moral aspect can be dismissed. It’s ludicrous that “copying data” equals “destroying intellectual property” for academic papers, which ideally should be available to everyone. I am confident that in another couple of generations, people will look back on this as another barbarism of our time.

[preliminary disclaimer: like most others, I am saddened by the loss of such a bright talent, I feel pity for the great grief of his family and friends, I regard this whole sad business as additional proof (if any were needed) that the US system of criminal justice, or at any rate law, has egregious faults that are capable of drastic improvement.]

But: I don’t know what would have happened if Mr Swartz had succeeded in setting up a complete copy of the JSTOR archive. I would suppose that, given his published views, he would have wanted this copy, ASTOR, to be freely available to anyone who wanted to use it. At which point, to judge by my experience, many academic institutional administrators who care for nothing but their institution’s finances would soon cancel their institutional subscription and tell anyone distressed by that to link up to ASTOR.

One might argue that using ASTOR would be made illegal, and wouldn’t happen. If so, Mr Swartz’s friends might perhaps explain why creating, or taking steps to create ASTOR would be expected to be legal while using it would not.

But assuming free and legal use of ASTOR largely or entirely replaced use of JSTOR, and thereby caused the demise of JSTOR: would that be, even from Mr Swartz’s point of view, entirely a good thing? I can see that it would be if all the scholarly articles that have ever been written, or will be written, have already been digitised and made available by ASTOR; or will be equally and freely available when they are written. For all I know, that may in fact be so for the sort of studies that interested Mr Swartz. For many other fields of research and scholarship, it is not so. Therefore, by liberating – as he saw it – articles currently on JSTOR, he would have imprisoned many others that are not yet on JSTOR, but would without his actions become more or less free.

I have not, I repeat, seen anyone yet discuss this aspect.

MLK Jr., 1967: “I am convinced that if we are to get on the right side of the world revolution, we as a nation must undergo a radical revolution of values. We must rapidly begin the shift from a thing-oriented society to a person-oriented society. When machines and computers, profit motives and property rights are considered more important than people, the giant triplets of racism, materialism, and militarism are incapable of being conquered.”

Yes, an oversight. I shd have said: “When a person has committed a particular offense and evinces…”