Saturday, June 20, 2009


Restitution versus Retribution

One of the areas where I am more advanced--or misguided, depending on your viewpoint--than most of my conventional libertarian colleagues regards prison. Simply put, I think the institution of prison itself is a barbaric, counterproductive relic of State involvement in law enforcement. The typical libertarian thinks that in a just society, only actual aggressors would be imprisoned; no locking up pot smokers or prostitutes.

But I think if you really had a completely privatized world as envisioned by Murray Rothbard, that the very institution of prison would virtually disappear, because imprisoning an aggressor per se is pointless. (And in actual practice, as conducted by States, prisons are great places to turn novice lawbreakers into professional criminals.) If a guy kills somebody, the best way for him to make up for it is to financially compensate the victim's estate. (In the usual case, I imagine insurance companies would do that right off the bat, and so technically the criminal would be paying back the insurers.) Not only is this more useful than having him rot in prison--or doing something dumb like pick up highway litter or make license plates--but psychologically it would also help him atone for his crime and forgive himself.

What's ironic is that even some Rothbardians don't go with me fully on this route. For example, I believe Walter Block has written (and I don't have the cite handy) that if you murder somebody in cold blood, then under libertarian law you have just forfeited your right to life and anybody else can take you out. (I think the train of thought was coming out of his view that it's not theft if you steal from a thief.)

But I think that's totally wrong, and in fact makes the same collectivistic mistake that State "justice" systems make: If you murder someone, then the victim's heirs inherit whatever legal powers accrue from such a crime. And if the victim happened to be a pacifist, he could have clearly spelled out in his will that none of his heirs would be allowed to exact retribution, even if that were the default. For example, even if the prevailing legal code says that if a guy cuts your arm off, you get to cut his arm off in return, then a pacifist could still specify in his will that nobody is allowed to touch his murderer. That "right" belongs to the guy who was murdered, and he gets the most satisfaction out of his property by making a public display of mercy.

These musings were prompted by David Henderson's discussion of the Dante Stallworth case:
On Thursday night's The O'Reilly Factor, Megan Kelly...expressed outrage at the lenient sentence given to NFL player Dante Stallworth. Stallworth had gotten drunk and killed a pedestrian. He was sentenced to only 30 days in prison, two years of home confinement, eight years of probation, and a lifetime prohibition on driving. Kelly was outraged that he wasn't given more prison time. But she herself pointed out that the family of the man killed favored this sentence because Stallworth had made an undisclosed cash settlement with them. She found the sentence unjust. I think it was profoundly just. Stallworth didn't hurt "society." He killed a particular man and he compensated the man's survivors enough that they favored the leniency. Justice is a matter of making it up to the people you hurt. No amount of money can bring this man back to life. But no amount of prison time can either. How would it be more just to make him go to prison when the survivors of the man he killed don't want that? Far too many people...think justice in the case of such a death necessarily involves prison.
Incidentally, I'm not going to get into it here, but please don't assume in the comments that I'm unfamiliar with the principle of deterrence. All I will say is that you can't simply assume that putting murderers in a big building with other murderers necessarily leads to less murder. I'm not sure that it does. There are other, much more civilized, ways of deterring antisocial behavior than use of dungeons.

Bob, very nice post.

I would just add a few wrinkles that deserve mention:

- there is a racist, tribal, us-vs.-them aspect to the criminal "justice" system (and the "war on drugs" and related problems with economic opportunity that funnels people into the prisons); and

- the criminal justice system has long been a growth industry and, like external "defense" is a political touchstone - "tough on crime" sells, for existing politicans, prosecuters and pundits who are angling for greater popularity.
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For people like sociopathic serial killers, sexual predators and such, I don't see any other option than to, in some way, keep them segregated from the rest of society. These individuals will keep preying on others as long as they are at large, compensation or not to their victims families.
Lets not forget the positives of our massive prison system:

1. Brad DeLong eloquently says, "it creates job!"

2. I really enjoy the 2-3 hours a week of prison shows I watch.
The idea of insurance systems seems too convenient somehow. And while I don't really think that sociopaths and child molesters are as concerning to society as many others do, I agree with Andy's comment above that an insurance mechanism doesn't seem nearly adequate to handle them.

It seems more likely that, absent a powerful state retribution system, parents and neighbors would just brutalize and kill such people. I'm not advocating it as any sort of moral solution to the problem of heinous crime, but I think it's hard to deny the likelihood. And on balance maybe it's better, actually.
Thanks for this, Bob. When I read your proposal in “Chaos Theory” regarding the role of insurance companies in managing the potentially violent, I was really impressed, and I was very pleased to be reminded of your insights. It's one thing simply to announce that insurance agencies will be responsible, in a stateless society, for this or that function currently performed by the state. But to show plausibly how this might work is another matter; I think of your analysis regularly with real appreciation for its elegance.

Retribution and deterrence are both dubious justifications for action: retribution, because retributive policies and choices that seem to rest on the mistaken belief that harm to someone else somehow benefits me (or, even worse, an abstract order of justice that couldn't, even in principle, be benefited); deterrence, because treating deterrence as a justification for harming someone means treating her as a means to an end (and is often tied up with an indefensible consequentialism).

There's no good reason for a stateless society to distinguish between crime and tort. And there are valuable purposes to be served by a sensible response to particularly serious torts (or crimes) quite apart from deterrence and retribution: restraining those likely to harm others, as in your proposal; also restitution, rehabilitation (though this goal obviously can't justify the freedom-denying measures often warranted under this label), and, where possible, reconciliation between those who cause harms and those who suffer them (consider various proposals for restorative justice).

The fact that a proposal, like yours, doesn't meet the concerns of deterrence and retribution theorists needn't count against it; arguably, indeed, that should be seen as a plus.

Great job!
Bob, I think you're incorrectly referring to prison as only being for retribution. As others have mentioned, another purpose is to keep dangerous people away from the rest of society, and your analysis here doesn't handle this case.

Fortunately, you do handle it in Chaos Theory by saying (roughly) that liability insurance is required for most places, and if you've revealed yourself to be dangerous, the only placed you could insure yourself for being in, would be "prison"-like places, which ensure (note the insure/ensure distinction!) that such people can't enter the general population.

So I think you would agree that prisons have a place in a libertarian society. The key difference though, would be that the sole point of a libertarian prison is to keep people away from places where they would pose too high a risk, and so would not physically resemble any actually-existing prisons today.

Rather, they would resemble self-contained summer camps or gated communities that you're not allowed to leave at will. Since the "high risk" would be able to choose, market competition would ensure that conditions would be humane, if not pleasant.

Actually, a better example of something resembling a libertarian prison would be an oil rig: self-contained, has amenities, hard to leave, and still allows the people inside to be economically productive -- even after paying compensation fees for the harms of their fossil fuels ;-)
I thought the anarchist position was private justice.

You kill my son, I kill your whole family.
My understanding is that higher penalties bring lower crime rates.

"All I will say is that you can't simply assume that putting murderers in a big building with other murderers necessarily leads to less murder. I'm not sure that it does."

One problem, how do you deter someone like Bill Gates under this system.

If you are rich enough, killing people essentially gets you a speeding ticket.
Thanks for all the good comments everyone. I'm running out so I can't individually respond.

One general remark, the thing to remember is that we're talking about being in a Rothbardian world, and then considering the pros and cons of widespread institutionalization. (And Silas of course is right that some would quibble with my definition of "prison.")

I agree that if the State kept everything else the same, and let out all the pedophiles and serial killers tomorrow, it would be much harder for me to justify that. At the very least, it might take a lot longer for the "long run net benefits" to materialize.

One quick example, though, of what I have in mind: I don't think people "naturally" want to be pedophiles or serial killers, the way they naturally want to rob banks. So the existence of prison changes the type of society these people grow up in.

OK another point, keep in mind that in addition to fines, you might get kicked out of social clubs, have your electricity turned off, etc. There's a lot of ways "civilized people" can bring pressure to bear on outlaws, without doing things which themselves would be crimes if done to an innocent person.
Enjoyed the post. Quite thought provoking.

Bob, as a Christian how do you reconcile your view in this post with Romans 13 where Paul says God authorized governing authorities to enact vengeance against evildoers? He says they have the power of the sword which, no doubt, includes the right to capital punishment. What do you do with Genesis 9:6 where Noah and his descendants are commanded to execute the murderer?

Just wondering. I like Rothbard's ideas, but I have a difficult time squaring them with the Bible which provides the foundation for my faith.
I'm not sure exactly where the right position is on it in these cases, but I at least get your (and Rothbard's) position on crime and punishment solely being the decision of the victim - when a living victim exists. When someone has been robbed or assaulted, they are the clear victim, and I understand the concept that it is up to the victim. They would choose whether or not to exact Rothbardian 'two eyes for an eye' restitution/punishment which would be their right, choose to ignore the infraction, or negotiate something in between. Under such a system, justice is really a matter of simply two parties, the initiator of force and his victim.

However, this system fails in the case of murder. Considered consistently by such a criminal justice system, murder would be regarded as only the dead being the victim, and no justice able to be exacted. Rather than accept the absurdity of such a purist case, the Rothbardian solution is to smuggle in bits and pieces of third-parties-as-victims-and-enforcers. The result is unfortunately arbitrary. Why should only a victim's next-of-kin be able to choose to punish or forgive? Why not the close girlfriend or boyfriend, best friend since childhood, poker buddy or truly anyone who has been forcibly deprived of the victim's presence in their life because of the murderer? It seems logical that once 'third party victims' are accepted, that *any* would have the choice to exact punishment upon the killer - which de facto means essential the Block position.
There's an interesting take on a free society's justice system in Matt Stone's (Richard D. Fuerle) On the Steppes of Central Asia that you might want to have a look at.

Very interesting post. I agree with much of what you say. In most all cases the debt is owed to the victim or victim's family. However, premeditated first-degree murder and sexual assault are different. Those who commit such acts are a direct threat to all those around them.
One Libertarian argument of, "if you kill my son I kill you" is very dangerous. One who believes in this type of justice has obviously never seen a blood feud and the hundreds of lives it can claim in a very short amount of time.
In the case of sexual assault and first-degree murder I do support prison. Prison protects society from the physical danger of the criminal and protects society from the psychological damage that follows vendetta killings.
To restate, I agree that the use of prisons are barbaric with the exception of the most dangerous criminals.

there WOULD be prisons, but they would be voluntary. People would do everything to avoid banishment, including agreening to live in a kind of fortified settlement that protects them from really riled-up parents and family members of their victims, while private operators would compete with each other to provide the most comfortable and/or affordable 'prison' possible.

Some would offer the possiblity for people to earn a living to pay for their stay, while others would simply be 'hotels' for those with sufficient funds.

Nobody would be forced to stay, since you are actually PAYING for it, and if you don't like it, you stop the payment, and then, well, you'd be staying for free.

Really dangerous criminals would, of course, probably not be allowed in, and might have to escape into exile (or join some private army/security outfit).

Ok, I gotta go to bed, just thought I mention this.
I just saw Silas basically made the same point - but with the difference that I think you would be allowed to leave. At your own risk.
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