Journal of Applied Philosophy, Vol.14, No. 2, 1997 The Time to Punish and the Problem of Moral Luck DANIEL STATMAN abstract Christopher New recently argued for the seemingly paradoxical idea that there is no moral reason not to punish someone before she commits her crime (‘prepunishment’), provided that we can be sure that she will, in fact, commit the crime in the future. I argue that the air of paradox dissolves if we understand the possibility of prepunishment as relying on an anti-moral-luck position. However, New does not draw the full conclusions from such a position, which would allow prepunishment even prior to the formation of a wrongful intention, on the basis of the idea that bad character is enough to entail blameworthiness. I conclude by examining a legal system which seems to use the idea of prepunishment, i.e. the Talmudic idea that we might punish a child who has not yet sinned in order to save him from sinning in the future. In a very intriguing article a few years ago, Christopher New argued that there is no moral reason not to punish someone before she commits her crime (‘prepunishment’), provided that we can be sure beyond reasonable doubt that she will, in fact, commit the crime in the future[1]. Neither utilitarian theories of punishment nor retributivist theories should oppose such punishment: utilitarian benefits that can be gained by punishing after crime (‘postpunishment’) can also be gained by prepunishment, e.g. deterring other potential criminals, and the most basic concern of retributivists is also met, i.e. the person who is punished deserves the punishment. The intuitive censure of prepunishment, argues New, is thus mere prejudice. In response, Saul Smilansky has argued that prepunishment is morally unacceptable, because it violates our deepest Kantian intuitions about respecting persons as autonomous human beings. To punish someone before he commits a crime is to ignore the possibility of ‘a last-minute moral improvement’[2]. It means treating him as an object, without taking his autonomy seriously. Hence, assigning importance to a specific temporal order between crime and punishment is no prejudice. It is based on solid moral grounds. New rejects Smilansky’s objection[3]. He argues that if we knew for sure, as God might, that someone were going to commit a crime, there would be no need to wait to see that he actually commits it in order to punish him. By doing so we would not be infringing upon his autonomy by preventing the possibility of a ‘last-minute moral improvement’ because, ex hypothesi, we know that this possibility will not be actualised. A further problem in Smilansky’s account is the vagueness and ambiguity of the idea that we should respect people’s autonomy. As New shows, this idea can be shown to fit his own (New’s) account too, i.e. to endorse prepunishment[4]. In this essay I suggest a new understanding of New. I argue that his seemingly paradoxical position on prepunishment presupposes a certain stance in the debate about moral luck, a topic which has attracted a lot of discussion in the last decade. Once we acknowledge this ¥ Society for Applied Philosophy, 1997, Blackwell Publishers, 108 Cowley Road, Oxford, OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.