The Ethics Of Liberty - Punishment And Proportionality

 

The Ethics Of Liberty by Murray Rothbard

Rothbard continues to deduce how to make a free and just society.  In this section he explains how justice systems in the modern state have been turned upside down and how to set them right side up again.  It all revolves around the saying "let the punishment fit the crime."  The important question is what punishment actually does fit.

He starts by setting up three guard rails.  The first being the idea that a criminal loses his rights to the extent and in the way he has violated the rights of another person.  The second is a continuation of the first. Punishment must be proportional.  A maximum limit must be put on that criminal's punishment, which is up to an equal degree of his crime.  It is not an average or a floor but a ceiling.  The third is that the victim or plaintiff doesn't have to exact the maximum penalty.  He can require a portion of it or no punishment at all.  No law or politician has the right to force him either direction.

                "If, then, proportionality sets the upper bound to punishment, how may we

                establish proportionality itself?  The first point is that the emphasis in

                punishment must be not on paying one's debt to "society", whatever that

                may mean, but in paying one's "debt" to the victim."

The quote clarifies the proportionality principle and directs our minds to whom that proportionality is owed.  Unfortunately current day justice systems are not aimed at providing retribution to victims.  They are focused on prescribing penalties which the state extracts from criminals through a combination of suffering and semi-slavery.  Victims actually have to pay taxes, along with every other citizen, so that the state can provide for the criminal in jail.  State law protects criminals from double jeopardy but inflicts double victimization.  Courts, laws, juries, and sentencing may exist but it is hard to see that any justice is done.

However, this wasn't always the case.  Before the modern State emerged and dominated institutions, recompense to the victim was the first priority for civil authorities.

                "In medieval Ireland, for example, a king was not the head of State but

                rather a crime-insurer; if someone committed a crime, the first thing that

                happened was that the king paid the "insurance" benefit to the victim, and

                then proceeded to force the criminal to pay the king in turn."

With a system like that those in power were incentivized to prioritize the needs of victims. Criminals paid back into the insurance system.  They weren't locked in jail, which would make them unable to make restitution.  In colonial America some criminals became indentured servants to their victim until they could pay back what they stole in work or wages.  An alternative to indentured servitude would be to garnish wages.

After the Middle Ages the process started where the State inserted itself in the repayment process.  Government no longer simply made sure victims were repaid.  They received a portion too.  That process continued until today. Most if not all of the penalty is received by the State not the victim.  In tandem with that as the State took the place of the victim criminal punishment became harsher.  Rothbard quotes criminologist William Tallack in Reparations to the Injured and the Rights of the Victims of Crime to Compensation to prove his point.

                "these authorities... extracted a double vengeance... upon the offender, by

                forfeiting his property to themselves... and then punishing him by the dungeon,

                torture, the stake or the gibbet.  But the original victim of wrong was 

                practically ignored."

Real justice comes when a criminal pays his "debt" to the victim.  To illustrate the principle of proportionality, Rothbard uses an example of A stealing $15,000 from B.  The appropriate punishment is made up of several components.  The first of which is restitution.  A must pay back the $15,000 to B.  Still, the principle of proportionality says that the criminal should lose his rights up to the point which he violated the victim's.  So if A stole $15,000, he loses his right to $15,000 of his own money.  He then must also pay an additional $15,000 to the victim.  Even though deterrence isn't the goal, it does make it costly to the criminal to commit theft.  Further, A would need to pay some on top to compensate B for the fear and uncertainty the theft caused him since that is part of the harm he caused.  It isn't so straightforward a calculation, but different cultures could use reason to come up with an acceptable number for thei particular locale.

For bodily assault and injury the answer is similar.  To start the plaintiff would have the right to injure the defendant to the degree he was initially injured; an eye for an eye, a tooth for a tooth, a bruise for a bruise, a punch for a punch, plus a little more depending on the culture.  The plaintiff has the right to inflict the injury himself or procure someone else to do it in his place.  As another option, the defendant could negotiate payment in order to avoid physical harm.  But it is always up to the plaintiff.  He can choose physical punishment, economic recompense, or forgiveness.  The rule of proportionality determines the upper limit of punishment he is able to seek, but he isn't required to seek that maximum punishment.

Murder is a subset of bodily harm.  The same options are available.  The family could decide the guilty defendant's fate in the place of the victim.  Or if a person wants to ensure his wishes are followed, he can write in a will how he wants his future murderer to be punished.  Trials would still need to occur to determine guilt and justify penalties.  Retribution could be taken before the trial theoretically by the victim's family.  However, if they overstep in extracting a penalty, a jury could find them guilty of a crime as well.  In a libertarian justice system the victim or his family has the right to take justice into their own hands.  But private courts and police organizations would need to be involved to systematize, direct, and maintain proper execution of justice.

Now let's compare the retributive-proportional. justice system Rothbard advocates to those based on goals of deterrence and rehabilitation.  Many experts in today's world view retributive justice as barbaric and uncivilized.  We will see if that assertion holds up under scrutiny.  First, a retributive-proportional system is clearly reasonable after reading through Rothbard's analysis, even if some punishments seem cruel.  The penalties fit the crime in type and severity.  Restitution is given to victims not government actors who weren't harmed.  It intuitively fits a normal person's sense of justice because it is a part of natural law.

One alternative to retributive-proportional justice is based on deterrence.  In such systems the punishment doesn't fit the crime.  In fact a public punishment could proceed any crime committed.  In this case the person punished would not even be guilty, though that fact would need to be hidden from society.  But in order to do so the concept of proportionality must be thrown out the window.  

Going back to natural law, humans have more of a reversion to murder than they do to petty theft, because it is a greater harm to the conscience.  Because of this it takes less punishment to deter someone from murder than to deter one from theft, so the punishment for theft would be less than for murder.  You could also look at different levels of theft.  It is much less offensive to the conscience to steal bubblegum from a grocery store than to rob a bank.  Therefore, punishment for bubblegum theft would be harsher than for bank robbery or murder, if based strictly on the basis of deterrence.

The other alternative sounds even more civilized or refined at first, criminal rehabilitation.  However, if the goal is to rehabilitate the criminal then punishment becomes open ended, arbitrary, and once again disproportional.  Plus, it empowers a government board to determine how much punishment is required to rehabilitate and when the process is complete.  It is easy to imagine cases where a murderer is quickly declared "rehabilitated" and released.  Just as imaginable, is a bicycle thief who is recalcitrant.  The evaluation board continually determines the thief needs more therapy and more jail time.  The thief dies before he can be certified as reformed.  All over one bicycle.  Rothbard uses Professor K.G. Armstrong to summarize the problem with this system.

                "The logical pattern of penalties will be for each criminal to be given

                reformatory treatment until he is sufficiently changed for the experts

                to certify him as reformed.  On this theory, every sentence ought to be

                indeterminate- 'to be determined at the Psychologist's pleasure'"

It transforms punishment into "healing" or "therapy". This leaves the door open for an unaccountable and severe tyranny.  It also gives criminals a reason to lie to their captors.  Rothbard then turns to C.S. Lewis to explain the potential horror of this system.  It is akin to the situation political dissidents faced in the Soviet Union.

                "To be taken without consent from my home and friends; to lose my liberty;

                to undergo all those assaults on my personality which modern psychotherapy

                knows how to deliver... to know that this process will never end until either

                my captors have succeeded or I grown wise enough to cheat them"

Rothbard ends with another C.S. Lewis quote which explains the danger of treating crime like a disease and placing government in charge of eradicating that disease.  You can apply this to any kind of declared societal ill too: real disease, crime, poverty, changing climate, political view point, or religious affiliation.

                "if crime and disease are to be regarded as the same thing...

                It will be in vain to plead that states of mind which displease government

                need not always involve moral turpitude and do not therefore always

                deserve forfeiture of liberty... Even if the treatment is painful, even if it is

                life-long, even if it is fatal, that will be only a regrettable accident;

                the intention was purely therapeutic."

In a justice system based on rehabilitation, the experts and bureaucratic managers  will claim citizens have no right to criticize since they don't possess the necessary knowledge.  It strips away all justice out of a justice system.  It leaves no room for human life built on natural law.  It violates the natural rights of criminal and victim alike.  For a free and just society, punishment must be founded on the concepts of proportion and retribution.