The definition of punishment that I use here is a broad one that applies to all "offenders." I need a broad definition to reflect actual practice, because all three types of offenders are punished for their offenses. When I need to narrow the discussion to one of the three types of offenders, I try to make the context clear or I use the term criminal to refer to category 1, lawbreaker to refer to category 2, or an example such as heartbreaker to stand for category 3.
Here are the topics addressed in this appendix.
Deliberately inflicting physical harm on an offender or taking or destroying his property without his consent can be self-defense, an ordinary crime, or punishment. If it is inflicted on a criminal for the purpose of stopping his criminal invasion, it is self-defense. If it is inflicted without regard to the fact that the person is an offender, it cannot be self-defense or punishment, so it is an ordinary crime. If it is inflicted on an offender because he is an offender but not in self-defense, it is punishment. This definition includes forced compensation as a form of punishment. It does not distinguish between liability and punitive damages in civil cases. It treats them both as punishments, even though they may have different motivations.
Punishment as defined here is not limited to the penalties imposed by states on convicted lawbreakers. When a jealous lover kills his girlfriend because she has been unfaithful, he is punishing her. This may not be the usual definition of punishment, so some of the conclusions that I reach here may not apply to other common meanings of punishment.
Punishment is a deliberate act. Only a conscious being can act deliberately. Nature, as far as we know, is not a conscious being. So, even though nature can hurt offenders, it cannot punish them.
The Biblical saying, "As you sow, so shall you reap," is often borne out by events. If you treat other people well, they usually think well of you. If you are not a good neighbor, your neighbors probably will not be your friends. If you are honest with people they may trust you, but if you cheat them they won't. This is natural. You get credit for living up to your obligations. If you fail to live up to your obligations you lose credit. There are natural advantages to moral behavior and there are natural disadvantages to misbehavior.
The natural reaction to an offense is to feel negative emotions such as disapproval, indignation, fear, distrust, anger, and so on. It is natural for our emotional reaction to be proportional to our personal estimation of the offense. The greater the offense, the stronger our emotional response. Emotions such as fear, distrust, indignation, and even hatred may be natural responses, but they are not acts of punishment. They are not acts at all, not even mental acts, because we don't choose them. Real acts of punishment may result from these emotions, but the acts of punishment are different from the natural impulses that inspire them. Punishments are purposeful acts, and the decisions to impose punishments can be influenced by moral arguments.
Suppose you offend someone without violating his or anybody else's rights, and he says to you, "If you don't apologize, I will lock you in my dungeon." Suppose you refuse to apologize, and he gets angry and locks you up. Is his locking you up the natural consequence of your decision not to apologize? Did you bring it upon yourself? Does this justify locking you up? No. If he gets angry, this is his natural reaction rather than a choice he makes. If he locks you up, this is a real punishment, because it is deliberate physical harm done to you because of your offense but not in self-defense. It is not simply the natural consequence of your offense.
If we say that all human actions are part of nature, then we can regard punishments as natural consequences of offenses. But if everything that happens is natural, then forgiveness is natural too. In fact, offenses also would have to be regarded as natural. Nothing useful or enlightening can come from ignoring the distinction between deliberate acts and natural consequences.
The kind of punishment that is morally significant is the kind that is the result of choice. When choice is involved, reasoning is involved, and moral arguments are relevant. So-called "natural punishment" does not qualify.
Are offenders punished for the purpose of restoring the rights of their victims? No. That is repossession. Repossession is something that can only be done while a crime is continuing, for example, while a criminal has stolen property in his possession. Repossession is not an imposition. It is simply the return of what already rightfully belongs to the re-possessor. It is a form of self-defense in that the purpose of it is to end criminal invasion. Punishment, on the other hand, is often administered regardless of whether stolen property has been returned.
The major reasons for punishment are: reform, deterrence, compensation, and retribution. Punishment for reform is intended to benefit the offender and society by changing the offender into a contributor to society. Punishment as deterrence is intended to benefit society by discouraging would-be offenders. Punishment to extract compensation is intended to benefit the victim of the offender. Retribution is the only motive for punishment that is primarily intended to harm the offender. Those who advocate punishment as a means of reform or as a means to deter certain activities use social-engineering arguments. Those who advocate punishment for retribution or to compensate the victim of an offense use arguments based on individual rights.
Examples of punishment for reform include: (1) confining an offender in a mental institution where he receives psychological counseling and is subjected to invasive medical procedures, (2) confining an offender in a drug rehabilitation center where he is weaned off illegal drugs and subjected to counseling about changing his habits, (3) confining an offender in a vocational training center where people try to teach him skills that might allow him to be productive when he is finally given his freedom.
Punishment for the purpose of reforming offenders could vary widely, depending on the personalities of the offenders. It is much less related to the offense than retributive punishment and compensation are. Offenders guilty of identical offenses could be confined for widely different lengths of time depending on how long it takes for the authorities to be satisfied that the offenders have been rehabilitated. There does not have to be any proportionality between an offense and the length of time the offender is confined.
It is counter-intuitive to say that punishment does not deter offenses. Even though the prohibition of drug traffic in the USA has apparently created more drug traffic than it has deterred, we do not think that the increase in drug use implies that more people want to be punished than want to avoid being punished. The explanation has to do with the court system and its rules of evidence that are so inefficient that only a small percentage of drug traffickers ever get punished. If punishment were more certain and if the punishment were severe enough, even low-class people would be deterred from drug dealing. Punishment has worked better in Turkey and Iran than it has in the USA, because in those countries the punishment is more severe and more certain. If the USA is to get serious about its war on drugs, it must relax the restrictions on admissible evidence and invasion of privacy and build a lot more prisons.2
It is hard to see how society benefits from deterring victimless exchanges. The would-be parties to such exchanges believe they would benefit from the exchanges. It is not at all clear that society wouldn't benefit more by permitting such exchanges than by prohibiting them.
With respect to real crimes, anything that prevented them would benefit society as long as it didn't have other negative effects. People would commit fewer crimes if they were bound in chains, but this would have other negative effects that might outweigh the benefits. If we only put proven criminals in chains, the negative effects on the rest of society would not be as great, but then only the proven criminals would be prevented from committing crimes. The rest of the population would be deterred somewhat by the fear of getting caught and enchained, be they would still be free to commit crimes.
Punishment for the purpose of deterring offenses can never be too severe, it can only be too mild. It need not be the same for all people or for all classes of people. It can be very flexible. Under the deterrence theory of punishment, someone who commits an offense a second time apparently requires more punishment than he got the first time. And each time he repeats the offense, he shows that he needs more punishment than he got the last time.
When deterrence is the primary consideration in administering punishment, it could be argued that minor offenses, which people have fewer natural inhibitions about, should be punished more severely than major offenses. On the other hand, maybe it is more important to reduce the occurrences of major offenses relative to minor offenses. If so, the punishment for major offenses should be increased, even though we already have strong natural inhibitions about committing major offenses. Who knows?
Also, when deterrence is the reason for punishment, the kind of punishment and the degree of punishment for particular offenses ought to be determined by considering what punishments are most likely to deter the particular classes of people who commit those offenses. For example, if poor people are statistically more likely to commit certain kinds of offenses such as shoplifting, then poor people should be punished more severely for shoplifting than rich people, because they need more deterrence. However, poor people would probably regard this as unfair.
Deterrence theories of punishment generally do not tell us what punishment is appropriate in any particular situation. We can only find out by trial and error which punishments are most efficient at deterring potential offenders.
If offenders have rights, then punishers might not have the right to experiment with different kinds of punishments to see which ones are most effective. However, if we assume that offenders have no rights, the deterrence approach to punishment is rational. It sets a clear and measurable goal for punishment (to deter activities that the punishment authorities find offensive), and by freeing punishers from the restraint of respecting offender's rights, it allows punishers to experiment with different schedules of punishments until, through trial and error, they arrive at the optimal schedule of punishments.
Unfortunately for this theory, most people reject the underlying assumption that offenders have no rights, and most people would reject some of the results that follow from it, such as that some minor offenses that are easy to get away with, littering for example, should be punished more severely than some major crimes that are hard to get away with.
If a retribution theory or compensation theory can establish the right to punish and if it can define the limits of legitimate punishment for particular cases, then maybe it is legitimate to consider reform or deterrence in selecting punishments within the limits established by one of these rights-based theories. Another possibility is that retribution or compensation could require a specific punishment for each particular offense, so that any other punishment would be unjust. If this is the case, no room is left for utilitarian considerations. Deterrence or reform then could only be by-products of punishment rather than factors in determining the appropriate punishment.
Compensation presupposes a victim. Compensation theory cannot be used to justify punishment of an offender who breaks a government law or regulation when there is no person who is victimized by the infraction. Consequently, compensation has a strong appeal to our sense of fairness. If we agree that the offender insulted or trespassed on the rights of the offended party, then we naturally sympathize with the victim, and we would like to see the violation undone somehow. Compensation, in the form of an apology and possibly a transfer of property to the victim seems appropriate.
The idea of compensation is to end or relieve the hardship and suffering that the victim is experiencing as a result of the offense. This can be accomplished legitimately through an insurance policy, through voluntary donations from relatives, friends, and neighbors, or through voluntary atonement by the offender. The focus of compensation is on improving the well-being of the victim of an offense. However, when compensation is extracted by force, it is self-defeating, because it creates another victim. When compensation is extracted by force from the public, the taxpayers are robbed, and when it is extracted by force from the offender, the offender and his family become victims.
Randy Barnett argues that allowing coercive compensation is better than prohibiting it:
Surely a rule—"no restitution for injustice"—resulting in the certainty of injustice to every innocent victim is inferior to a rule creating only a chance of an injustice [to] an innocent accused.3
... the only alternative to imposing this risk [of extracting compensation from innocent people because of error], is to guarantee that every innocent victim of crime will suffer an injustice.4
... to eliminate all restitution would be to guarantee that injustice will be done in every criminal case.5If by restitution he means compulsory restitution, then this statement if not true because (1) some crimes are prevented or stopped by self-defense, (2) in some cases stolen goods can be recovered and returned to their rightful owners without imposing any risk on innocent victims by simply finding and repossessing it, (3) in some cases the criminal will voluntarily atone for his crime (social pressure, ostracism, boycott, shame, and conscience can all play a part in this), and (4) in some cases the victim will have an insurance policy that will require his insurance company to compensate him for his loss.
Compensation extracted by force is an unjust imposition. It is an example of fairness overstepping its bounds. For more details about the difference between justice and fairness, see Chapter 9. For more about compensation, see Accidental Liability and Criminal Liability in Chapter 5.
Punishment as an end in itself means that punishment directly gratifies our emotions. Jealousy, hatred, revenge, spite, and malice are the most obvious motives for retribution. Philosophic defenders of retribution prefer to portray themselves as dispassionate advocates of objective justice.
Retribution theories generally require a correspondence between a particular offense and a particular punishment. If an offender deserves penalty X for offense Y, he deserves penalty X for offense Y each time he commits the offense. Punishment for retribution must be carefully measured out in exact amounts that correspond to the offense. To punish too little or too much is to be unjust.
To see that the purpose of punishment affects decisions about the severity of punishment, consider this situation: Suppose a man committed a serious offense when he was young, but he has managed to evade punishment for it. It is now 20 years later. He is happily married, the father of several children, and is a totally self-supporting, productive member of society. He has committed no offenses in 20 years. If you really believe that justice is not served unless all offenders are punished, then you must believe that this man should be punished, even though it might ruin his life and immeasurably hurt his family and friends. What is the sense of it? Those who believe in punishment for reform or deterrence might see no need to punish such a man, but those who believe that justice requires retribution or compensation might demand it, even if it causes the heavens to fall.
Immanuel Kant believed that murderers ought to be executed and that it would be wrong not to execute them, regardless of the circumstances:
Even if a civil society were to dissolve itself by common agreement of all its members (for example, if the people inhabiting an island decided to separate and disperse themselves around the world), the last murderer remaining in prison must first be executed, so that everyone will duly receive what his actions are worth and so that the bloodguilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for if they fail to do so, they may be regarded as accomplices in this public violation of legal justice.6If justice means giving everybody what they deserve, and if offenders deserve retribution, then it is unjust to fail to punish them. If an offender isn't caught until 50 years after his offense, the mere passage of time has no bearing on what he deserves, so he should be punished mercilessly.
The right to punish, if it is a basic right that everyone has, must be like the right to eat an apple from an unowned apple tree. Before the apple has been eaten, everybody has an equal right to take it. After the apple has been eaten, no one can have that particular apple again. It could be the same with punishment: before an offender is punished, everyone has the right to punish him; after someone has punished him, the right to punish him has been removed from the common; it has been privatized, homesteaded, and used up.
So the right to punish a particular offender could belong to everyone until someone comes along and uses it up. If this is the way to determine who has the right to punish, then an offender could arrange to have himself lightly punished by a friend and then be exempt from all future punishment for the offense. Suppose I beat you up, and then a friend of mine comes along and tells me I was a bad boy, slaps the back of my hand, and says that I have paid for my offense. Is my friend correct or incorrect when he proclaims that his slapping my hand is the proper punishment for my offense?
Suppose that, instead of my friend, a stranger comes along, beats me up, and says that his beating me up is what I deserve for my offense. Would he be correct or incorrect? Suppose the stranger beats me up without mentioning my offense. Could it still count as punishment? Suppose the stranger kills me. Would that be the proper punishment or would it be a crime?
Suppose, before anyone comes along, you say to me, "I forgive you for beating me up. I do not want you to be punished. Go and sin no more." Does your forgiveness nullify everybody else's right to punish me? Do you have the right to change your mind about forgiving me? A theory of retribution should answer all of these questions.
If the right to punish an offender is a common right and if the state is the legitimate agent for everybody's common rights, then having the state administer all punishments would solve many of these problems. People would not have disputes over which one of them should punish an offender. They would all agree to let the state do it. Offenders could not avoid getting the punishment they deserve by arranging for a friend to punish them lightly (unless their friend is the judge or the prosecutor). Offenders would not be excessively punished by hysterical victims or lynch mobs, because the state would prevent it. Offenders could not escape punishment by being forgiven by their victims, because they could still be prosecuted by the district attorney.
If there were an objective way to determine the appropriate punishment for each particular offense, it still might be necessary for the state to monopolize the administration of punishment in order to make sure that the correct punishment is administered once, and only once, for each offense.
Suppose, however, the right to punish a particular offender is not a general right, but a specific right owned by the offended party. Then we need to know whether this right can be sold, transferred, or delegated to anyone else. If not, then the state cannot have the right to punish those who commit offenses against private citizens. If this right can be delegated, it still needs to be proven that this right has in fact been delegated to the state in each particular case, or else the state does not have the right to punish the particular offender.
If the offended party owns the right to punish the offender, what happens to this right if the offended party dies before exercising it? Does it go to his family? If so, what happens if some members of his family want to forgive the offender and others want to punish him? What if the family members disagree on the appropriate punishment? What happens if there is no family? What if the offender claims that the offended party forgave him? Does the offender need to produce proof? A theory of retribution needs to answer all of these questions and more.
We can distinguish criminals from non-criminals by their acts and whether it is reasonable to assume they were aware of what they were doing. A crime is a physical act by a moral agent that violates someone's rights. Criminals physically violate other people's rights. Criminals physically attack, invade, or take property that belongs to others. The harm done by a criminal is physical as well as psychological. The harm done by a non-criminal is usually only psychological. (However, non-criminals such as people involved in traffic accidents can cause physical harm, even death. These people are generally excluded from retribution, because the harm they do is unintentional. The criminal's intent to harm another person has something to do with the retributionist's desire to deliberately harm the criminal.)
The physical harm done by real crimes can be proven to have occurred, because physical evidence can be brought to bear. A crime can be attributed to a particular person by the testimony of witnesses and by physical evidence. This is less true of the psychological harm caused by non-criminals. It could be that the main reason the state doesn't punish heart breakers is that it is not practical. It would take too much time, and the state would not gain much from it. It would be hard to prove in court that someone broke a heart. Only the person who suffers the heartbreak can really know the intensity of it and who caused it.
If retribution were left in the hands of the offended parties, heart breakers might be punished more often and more severely than thieves. Many of the murders committed today are actually punishments performed by jealous lovers and betrayed spouses. The urge to retaliate is so strong in these cases that the punishers are willing to defy the state and risk being punished themselves.
When we define crimes as violations of basic rights, we must note that the state punishes non-criminals every day. This makes the analysis of the rationale for punishment more difficult. What actually happens is the state punishes people who break its laws, and some private citizens punish people who have hurt them in some way. In both cases, the recipients of the punishment may be innocent of violating anyone's rights.
The rationale for retribution varies from state to state and from person to person. There is no single rationale for it. If we look at the way punishment is actually administered by states and by private individuals, we will never make any sense out of it. Instead we must examine the general theories of retribution to see whether any of them make sense.
In its purest and most defensible form, punishment is reserved for real criminals who willfully cause physical harm to peaceful people. If we cannot justify punishing real criminals, we won't even bother to consider arguments for punishing peaceful people, or those who commit victimless crimes, or heart breakers, or those who accidentally violate the rights of others.
What is it about criminals that justifies our using violence to punish them? Most of us believe it is legitimate to use violence against criminals for self-defense. This means that we already acknowledge one way in which criminals are different from everybody else (except innocent threats) with respect to the right to use violence against them. Perhaps criminals are also unique in that they are the only ones that we have the right to use violence against for punishment.
From this point on, I will assume that those to be punished have physically violated someone's rights. In general, I will assume that those who deserve pure retribution are criminals and those who deserve to be forced to make compensation to their victims are criminals or tortfeasors. This should make it easier to justify punishment. Although we restrict physical punishment to offenders who violate the rights of others, we can still use not-invasive means against other kinds of offenders to harm them psychologically. This approach has the advantage of relating the means used by the offender to the means used to get even.
The analogy between an honest man earning wages and a criminal earning the wages of sin is imperfect in two ways: (1) the wages are established beforehand in the case of the honest worker, but afterward in the case of the criminal, but the more important difference is, (2) a worker always has the choice to refuse his wages and work for free, but a criminal is forced to accept the wages of sin.
The following critique of the "wages-of-sin" rationale for retribution is based on Murray Rothbard's critique of the "just" price and the cannons of justice in taxation. His arguments apply to retribution as well, although, he would not have agreed with their use in this context.
If punishment is the price of crime, we need to know what the just price is so that we don't overcharge for it or sell crime too cheaply. The arguments used by Rothbard to show that there is no fixed "just" price for anything apply to punishment as the "just price" for crime.
Suppose that the price of eggs is 50c per dozen, what is the "just price"? It is clear, even to those (like the present writer) who believe in the possibility of rational ethics, that no possible ethical philosophy or science can yield a quantitative measure or criteria of justice. If Professor X says the "just" price of eggs is 45c and Professor Y says it is 85c, no philosophical principle can decide between them. Even the most fervent anti-utilitarian will have to concede this point. The various contentions become purely arbitrary whim.The search for the "just price" was abandoned in favor of the market price. Can the "just price of crime" or the "just punishment" be the market price of crime? Clearly not, for in the free market, by definition, there is no crime, only voluntary exchanges. Consequently, there is no market price for crime.
Economics, by tracing the ordered pattern of the voluntary exchange process, has made it clear that the only possible criterion for the just price is the market price. For the market price is, at every moment, determined by the voluntary, mutually agreed-upon actions of all the participants in the market. It is the objective resultant of every individual's subjective valuations and voluntary actions, and is therefore the only existent objective criterion for "quantitative justice" in pricing.7
There are professional hit-men in the underworld who assassinate people for a fee. If you want to hire these killers, you "put a contract" on the victim and pay the assassin when he does the job. This money could be called the "wages of sin." If this is what the retributionists mean by the "wages of sin," then murderers should not be executed or imprisoned, they should be given as much money as it would have cost to hire an assassin.
Of course this is not what the retributionists want. Murder contracts overlook the rights of the victim. It is the value of these rights that the redistributionists want to extract from the criminal. Contracts to have someone killed are usually made without the victim's knowledge or consent. The only situation where it would be legitimate to pay money to the killer from the victim's estate would be when the victim put a contract on himself. But then the killing would be suicide by proxy rather than murder.
Suppose we say that punishment is the lowest price at which the victim of a crime would be willing to sell those property rights of his that were violated by the criminal. Then, the victim, if he is still alive, would have to set the price retroactively, and we would have to take his word for it. The victim could specify the price in money or in other goods and services, depending on his preferences. The punishments awarded for similar crimes would vary depending on the subjective values of the individual victims. This would prevent the enforcement of a uniform penal code. Some retributionists would protest that this method of determining punishments is not objective enough and that it is not fair to impose different punishments on criminals who commit similar crimes.
Instead of allowing the victim to set the price unilaterally, we could ask the criminal and the victim to negotiate a price as if the crime were a market transaction. If they can agree on a price voluntarily, the problem is solved. However, such a price would be voluntary compensation rather than punishment. We are trying to justify punishment that is imposed against the will of the compensator. The search for a "just punishment" is more like the search for a "just tax" than a "just price," because, like a tax, a punishment is imposed rather than agreed to.
One solution already mentioned is to let the victim of the crime select the punishment. But what natural principle can the victim use to make this judgment? Only the victim of a crime can know the extent of his suffering, and only he can know how much satisfaction he can expect to derive from having the criminal punished in various ways. But the victim can't quantify any of this or make it objective. If the victim is allowed to determine the punishment, uniformity and objectivity may as well be forgotten.
Some crimes are clearly worse than others. Murder is worse than theft. Committing multiple crimes is worse than committing a single crime of the same type. Are there criteria for evaluating the relative severity of all crimes? This is a crucial question for those who believe that criminals should be punished in proportion to the severity of their crimes. If criminals have any rights at all, we need to know what they are. If only proportional punishment is justified, then excessive punishment is itself a crime. That is why it is essential to determine the exact punishment appropriate for each crime. Is there an objective way to do this?
Uniformly proportional punishment would be not achieved if each victim of a crime were allowed to administer whatever punishment he felt like administering to those who committed crimes against him. Victims of crime are clearly not likely to be objective in their own cases. Therefore, cultural traditions or authorities such as judges and juries have been seen as necessary to administer punishments objectively and to prevent citizens from taking the law into their own hands.
However, the justice of uniform and equal treatment depends on the justice of the treatment itself. We cannot say the all criminals should receive the same punishment for committing the same kind of crime until we first establish the moral legitimacy of punishment per se. If punishment is unjust, then it should be minimized rather than equalized. If all punishment is unjust and some criminals with friends in high places are given amnesty while others without influential connections are imprisoned, we should protest that the amnesty was not extended to include everyone, rather than demand the punishment of those who were pardoned. It is similar with taxes. If taxation is unjust, we should demand more exemptions, not fewer loopholes.
Some questions for retributionists come to mind: Is it the same crime to steal $100 from a rich man as it is to steal $100 from a poor man? How can you find out how much the victim suffered from the crime unless you ask him? How can he answer the question unless he can refer to some unit of measure? What unit of measure should he use? Money? Whip lashes? Days in prison? How do you know whether he is exaggerating his suffering? Won't it make a difference if you ask him when he is in a good mood as opposed to a bad mood? Might not the mere passage of time have an effect on the victim's anger and desire for revenge?
One way to attempt to assess the amount of suffering caused by a crime is by assessing the victim's ability to pay. The ability-to-pay principle has been used by proponents of the progressive income tax. If it works there, maybe it can work for assessing crimes and punishments too. The ability-to-pay principle is doubly important in retribution theory, because it can be used to measure the crime and then again to measure the punishment.
Murray Rothbard's criticism of the ability-to-pay principle, although it deals with the problem of taxation, is equally applicable to the same principle applied to measuring crime and punishment.
No clear standard can be found to gauge "ability to pay." Both wealth and income would have to be considered, medical expenses would have to be deducted, etc. But there is no precise criterion to be invoked, and the decision is arbitrary. Thus, should all or some proportion of medical bills be deducted? What about expenses for childrearing? Or food, clothing, and shelter as necessary to consumer "maintenance"?8Suppose punishment is in terms of fines, then we might ask:
Is a man earning $10,000 a year equally able to pay $2,000 as a man earning $1,000 to pay $200? Setting aside the basic qualifications of differences in wealth, medical expenses, etc., in what sense can 'equal ability' be demonstrated? Attempting to define equal ability in such a way is a meaningless procedure.9The ability-to-pay principle is similar to the equal-sacrifice principle. With respect to punishment, the equal-sacrifice principle means that criminals who commit equal crimes should sacrifice equally in paying for their crimes. A dollar is supposed to be less of a loss to a rich man than to a poor man, and, therefore, payment of a $1000 fine by a rich man imposes less of a sacrifice on him than the same fine imposed on a poor man. Consequently, a rich man should pay a higher fine than a poor man who commits the same crime. Similarly, if punishment is measured in whip lashes, it could be argued that whipping bothers a strong man less than a weak man, and, therefore, a strong criminal should receive more lashes than a weaker criminal who commits the same crime. The objective of this is to make them sacrifice or suffer equally.
The suffering caused by punishment may be more than mere economic loss or physical pain; it may also include moral outrage at the whole procedure. A recipient of punishment may become so upset at being mistreated that his emotional distress bothers him more than the financial or physical aspects of the punishment, especially if he does not believe that the punishment is fair. His emotional pain from enduring any punishment at all could be so great as to be almost infinite (so that he would almost rather kill himself than be punished and humiliated). According to the equal-sacrifice principle, he could only be punished an infinitely small amount. The equal-sacrifice principle might exempt from punishment virtually all those who do not believe in punishment.
The difference between the ability-to-pay principle and the equal-sacrifice principle shows up when you consider their effects on two criminals who commit the same crime but one of them is happier than the other. The equal-sacrifice principle would require the happier criminal to be punished less than the unhappy one so that each could sacrifice the same amount of happiness. The ability-to-pay principle would lead to the opposite conclusion in this situation. The idea behind the ability-to-pay principle is to make the one enduring the punishment reach a certain level of unhappiness. The happier criminal would have to endure more punishment to reach the same level of unhappiness as the already unhappy criminal. Neither the ability-to-pay nor the equal-sacrifice principle of retribution can enable us to figure out what punishment is appropriate in any particular case. So we need some other principle.
An alleged advantage of the eye-for-an-eye principle is that it can be applied without anybody having to measure pain or subjective dis-utilities. Instead, we use the objective act of the crime to determine the appropriate punishment.
It seems plausible until you try to apply it. Suppose George burns down Henry's house. What should George's punishment be? The quick response is that George's house should be burned. But: What if Henry's house was a wooden shack and George's house is a mansion? What if Henry's house was a mansion and George's house is a shack? What if George's house is identical to Henry's house, but George's wife owns half of it? Why should George's wife and children, who had nothing to do with the crime, be made homeless?
Retributionists sympathize with the families of the victims of criminals, but they overlook the harm they inflict on the families of those they punish. Are those who practice eye-for-an-eye justice half blind?
The eye-for-an-eye rule is not really satisfactory, in many cases, from the point of view of those who want criminals to suffer. Suppose Joe rapes Jane. Doesn't the rule imply that Jane should rape Joe? This may suit Joe's wishes and be neither a hardship nor a deterrent. It might even be an incentive.
Maybe this is not a correct interpretation of the rule. Maybe the correct punishment would be for Joe to be forced to engage in sex against his will. How do we know whether Joe would not enjoy engaging is sex with anybody? It might be impossible to make Joe suffer in this way. What do we do with Joe? Who decides?
In cases like Joe's, the eye-for-an-eye rule would not satisfy those who want Joe to suffer for his crime. What they may really want is not simply for Joe to lose the rights that he denied Jane. They may want him to suffer in proportion to the suffering that he caused Jane. If so, they cannot stick with the eye-for-an-eye principle, and they have to get involved with trying to equate the subjective dis-utilities caused by the crime and prospectively caused by possible punishments.
If we try to avoid the problem of calculating punishment in terms of harm by making the criminal undergo a crime identical to the crime he committed, irrespective of the effects the punishment has, then: (1) in many cases, the criminal would not be bothered by the punishment and would not be deterred by it, (2) in some cases, the criminal might enjoy the punishment and would be encouraged to commit the crime again, (3) in some cases, the effects of the punishment for a minor crime could be fatal to the criminal (if he is physically weak or in poor health), and (4) in many cases, it is physically impossible to duplicate the crime. In fact, it is impossible to perfectly duplicate any act. How close do we have to come to making the punishment equal to the crime to be justified in inflicting the punishment? How do we apply the eye-for-an-eye rule in cases where a two-eyed criminal pokes out the eye of a one-eyed man or where a one-eyed criminal pokes out an eye of a two-eyed man?
An eye for an eye is a principle for balancing invasion rather than eliminating it. It is compatible with the more general idea that anyone has the right to do anything as long as he allows others to treat him in the same way as he treats them. According to this principle, the only crime is to resist retaliation. Reasoning along this line, compulsory military service or even compulsory execution at the age of 18 could be justified as long as those who apply it are willing to have it applied to themselves.
Few people, if any, really believe that the only crime is to resist retaliation. Most of those who agree with the eye-for-an-eye principle derive it in a way that allows them to still condemn the original eye gouger. After the retaliation has supposedly equaled the score, they still regard the first eye gouger as worse than the one who retaliated. They really don't believe the second eye gouging cancels or equals the first. What they believe is that when Adolph gouges out Milton's eye and Milton retaliates in kind, the result is that a crime was committed against Milton, but not against Adolph.
The eye-for-an-eye principle implies that criminals lose their rights in proportion to their crimes. It provides a more objective standard for determining the suitable punishment than other theories of retribution, but, when followed literally, it is unsatisfying. Also, as with some other theories of retribution, the eye-for-an-eye principle results in chaos if private retribution is allowed.
The punishment could be determined by the formula P = xC, where P is the physical and emotional pain and economic disutility experienced by the criminal as the result of a Ppunishment, C is the physical and emotional pain and economic disutility experienced by the criminal's victim as the result of the Crime, and x is the factor that determines the correct ratio between P and C. The issue is now reduced to discovering the value of x. The eye-for-eye rule sets x = 1. The turn-the-other-cheek rule sets x = 0 or maybe even -1. Some people set x = 2 or more. Why should the criminal suffer exactly as much as his victim? Why shouldn't he suffer twice as much? Why shouldn't he suffer less? There is no nonarbitrary way to establish the value of x. Even if we could agree on a nonzero value for x and could calculate appropriate punishments using the equation P = xC, we would still have problems determining the appropriate punishment, because most retributionists recognize distinctions between cold-blooded crimes and crimes committed under mitigating circumstances, and they believe these distinctions should be reflected in the punishments. To take this into account, we need to know what the criminal was thinking when he committed the crime. Then we would have to determine how much less than the full amount of punishment is due in cases where there are mitigating circumstances. If some criminals should be punished less than the full amount, how much less should they be punished? One half, one third, and one fourth of the full amount are all equally arbitrary. Who should decide this? How can they decide?
Because we cannot answer these questions objectively, and because we do not actually have tools to measure and inflict precise amounts of physical and emotional pain, the only value of x that will allow human beings to calculate a precise value from the formula P = xC is 0. If x = 0 then we don't have to calculate the harm done by the crime (C), because whatever C is, the punishment (P) will be zero.
None of the retribution theories that we know of clearly defines the rights of criminals. Different punishment theories have conflicting rules for assessing punishments. They all seem arbitrary. Yet, unless we are willing to say that criminals have no rights, we need to know what rights criminals have so we can be sure we are not violating them.
Retributionists believe that when a person commits a crime he loses some of his rights but not all of his rights. If criminals have any rights, then some punishments undoubtedly violate those rights, and we must reject the punishment schemes that punish criminals more than they deserve.
No basic right can accommodate punishment because: (1) punishment theories fail to define which punishments are appropriate, except in an arbitrary way, (2) there is no good reason for selecting one scheme of punishment over another, and (3) any punishment scheme that allowed private citizens to administer punishment would make it impossible to distinguish between crimes and punishments and would make protection agencies unworkable. Punishment cannot be accommodated in any basic right, because it would render all rights so ill-defined that we could not make important moral decisions.
If the libertarian prohibition of invasion is valid, then the only times when you have a right to physically harm another person are: (1) when it is necessary for self-defense against their invasion and (2) when you have their permission. Supporters of punishment must either deny the basic right to be free from invasion, or assert that the criminals have consented to be punished. In the latter case, they sometimes posit a contract between citizens and their government that gives the government permission to punish the citizens who break the law. Such contracts are fictitious and would not be valid even if they existed.
There may be practical reasons for public trials (so that the public could know that a crime was committed, who committed it, and what the punishment was, and so the punishment will not be mistaken for an ordinary crime), but prudence should not be imposed by force against someone's rights. No one has the right to force the victim of a crime to await the trial of the criminal before obtaining justice. To do so would violate the rights of the victim. It would be an obstruction of justice.
If justice delayed is justice denied, trials are unjust in cases where the victim is sure who the criminal is. To deny the right of the victim to punish a criminal without going through the trouble, expense, and delay of a formal trial is a crime. Consequently, if punishment is legitimate, then so is personal retribution.
What could we predict about a society that was based on the assumptions that (1) criminals have no right to resist being punished for their crimes and (2) the state has no right to prevent private individuals and organizations from administering punishment?
First of all, if the state did not maintain a monopoly on punishment of criminals, it would never be proper to come to the aid of someone who is being attacked, because it would be impossible to know whether the attack was a crime or a punishment. A person being beaten might once have committed a crime, and his attacker might be punishing him for it. It would be a crime in such a society to intervene. If someone is acting on the eye-for-eye principle, there might be no visible difference between a crime and its punishment. The intent of this principle is to make the punishment be as much like the crime as possible.
If victims of crime have the right to punish the criminals who wronged them, third parties would not be able to distinguish crime in the streets from punishment. A mugging would be indistinguishable from eye-for-eye punishment of a mugger. An apparent rape could actually be an act of retribution justified by the right to punish rapists. Third parties cannot know whether the person being attacked has ever committed a crime, and they cannot know whether the person being attacked deserves to be punished. So, they cannot know whether the attack is a crime or a punishment. If it is a punishment, they can't know whether it is excessive or not. Without knowing these things, third parties cannot know whether they have the right to intervene.
The prospect of a society that allows private punishment of criminals raises some perplexing moral questions. Should a violator be considered a justified retaliator until proven otherwise, or should the person under attack be considered innocent until proven guilty? If we regard everyone as innocent until they are proven guilty, and if we approve of punishment, we would have to regard an obvious attacker and his victim as equally innocent, and we would be morally bound to refrain from taking sides.
Protection agencies would be severely handicapped. Watchmen or guards would have to inquire of any trespassers, "Is this an ordinary criminal invasion, or is it a retaliation for a crime?" Before they could agree in good conscience to protect a prospective client, they must be sure that the prospective client has a right to be protected. To know this, they have to know whether he ever committed any crime for which he has not been punished in full. To know this, they would have to know his entire life history. This is such a stringent requirement that it would eliminate crucial functions of the protection-service industry.
Consequently, the right to personal retribution negates the practical benefits of delegating the right to self-defense. People can defend themselves individually, but if they try to defend anybody else, they risk violating a crime-victim's right to administer punishment. To do so would jeopardize their own right to self-defense. If punishment is legitimate and you violate someone's right to punish a criminal, you become a criminal yourself, and you lose your right to defend yourself from punishers.
The right to punish criminals would leave non-criminals to their own devices for self-defense. Individuals could not cooperate for mutual defense. Criminals, being criminals, would be able to cooperate with each other and be partners in crime, but non-criminals could not cooperate in defense against them.
Second, punishers could cooperate to punish people who are proven criminals. The right to punish criminals, unlike the right to self-defense against criminals, could be delegated to others. This means that private firms could legitimately punish criminals for profit. The only restriction on such firms would be that they could only punish people who have objectively been proven criminals. They would need enough evidence to prove that someone has committed a crime before they could legitimately punish him.
A victim of a crime who personally witnessed the crime would be sure of his personal right to retaliate against the criminal. But a punishment firm could not be sure it had the right to assist him, unless there is enough evidence to objectively prove who committed the crime.
Competing punishment businesses would arise, financed by the patrons of retribution. The most profitable of these would be the ones that did the best job of satisfying their customers. If it were allowed, every form of punishment for which there is a demand would be provided by the free market. Punishment would probably become a form of entertainment. Money could be made by charging an admission fee to witness retribution. Punishment parlors and theaters would open up in every city. Competitors would devise imaginative new punishments to attract and titillate audiences. Special prices could be charged to witness "adults only" orgies of punishment on Saturday nights. X-rated punishment shows might become a popular form of entertainment.
It is likely that there would be a particularly high demand to see justice done to pretty girls. One probable consequence would be that pretty criminals would be apprehended more often than other criminals, because there would be more profit in punishing them. It would be in the economic interest of punishment companies or bounty hunters to closely observe the activities of young women, so that as soon as they commit any infraction, they can be scheduled for punishment in the most profitable way.
Pretty girls might be followed, spied upon, and video-taped in hopes of witnessing them commit crimes, capturing them, and selling them to the punishment firm that bids the highest price. Pretty girls would have to be extremely careful and wary of entrapment so they do not become the stars in the Saturday night retribution show.
Third, such practices would lead to economically justified inequities in punishment. If punishment were not regulated by strong traditions or religious authorities or a coercive monopoly, it could not be uniform or predictable. If sentencing schedules were not publicized, people could not know in advance what kind of punishment they risk. Criminals would be punished in different ways for the same crime, depending on who did the punishing. Some people would try to enforce the eye-for-an-eye principle. Others might demand two eyes for an eye, and others might not be satisfied with anything less than the death penalty for all criminals.
To avert unprofitable wars, competing punishment organizations could agree to some general rules. A sensible rule for them to adopt would be to allow the victim of the crime to determine the punishment. Punishment parlors could suggest or demonstrate a variety of fashionable punishments. They might publish illustrated catalogs of imaginative and enticing punishments. The customer would make the final decision and get exactly the justice he pays for. Other punishment organizations, by prior agreement, would honor the chosen punishment as sufficient to negate the particular crime of that particular criminal, regardless of any disparity between this punishment and punishments chosen for other criminals who commit similar crimes. There would be no uniformity of punishment for similar crimes and no guaranteed proportionality between punishments and crimes.
Fourth, the inequities of free-market punishment would soon become apparent to everyone. People might demand that the punishment system be changed. Those who feel that some criminals are being punished too severely would seek to restrain the punishers. Prudes who disapprove of X-rated punishments would protest them. People who are upset by the destruction of the protection and insurance industries, would demand a uniform system of punishment that would allow these industries to function again. The arbitrary and unfair nature of punishment would become clear to everyone. This could lead to demands for the abolition of punishment on the one hand and for the adoption of a uniform punishment code on the other. Pressure could mount to ban some punishments and to standardize the whole punishment process.
Because there is no rational basis for choosing one punishment schedule over another, the only way to have a uniform punishment system in a heterogeneous society is to impose one by force. People might demand that the state enforce punishment standards and monopolize the whole business. Only a state, an organization that maintains a coercive monopoly on invasion, can enforce its standards of retribution and prevent everyone else from enforcing other standards. Only a state can give the appearance of justice to an arbitrary penal code by making everyone live under it.
If a state imposes a penal code, the punishment industry would be regulated rather than free. Whichever path is taken, abolition of punishment or state control, free-market punishment would be at an end.
Second, even if there were objective criteria for determining appropriate punishments, society would still be chaotic if private citizens were allowed to administer the punishments. For example, suppose everyone agrees that the eye-for-an-eye principle is correct, even so, private protection agencies could not function, because they could not know whether their clients have the right to not be attacked. Any attack that looks exactly like assault and battery could turn out to be a punishment that is being administered by a private citizen. Real muggers would claim to be righteous avengers, and they would have a better chance to get away with their crimes. Civilization itself would be at risk.
For people to be able to cooperate in defending each other against attacks, it would be necessary for a state to monopolize punishment. Then, the state could establish procedural rights and administer punishment in a distinctive way so that punishment could be distinguished from assault and battery, kidnapping, and wrongful imprisonment. This would allow private citizens to know when they can defend one another without obstructing justice.
When the laws are enforced by a state that recognizes procedural rights, people are only punished after they have been found guilty of violating a publicly declared law. The state (ideally) protects people who have not been proven guilty in the courts. A state monopoly of lawmaking and punishing allows people to make plans to avoid punishment.
The state defines the actions that are punishable and forbids punishing for actions that it has not outlawed. So a person can avoid punishment by obeying the laws. If the law says "Don't walk!" then don't walk. If the law says "Jump!" then jump. States provide an additional service to people who advocate punishment by outlawing many more activities than natural law does.
When a state recognizes procedural rights and defines rules of evidence for assessing guilt, it allows people to figure out how to break the law in ways that will minimize their chances of being found guilty and punished. It encourages lawbreakers to destroy incriminating evidence and to threaten or even kill potential witnesses. In many cases people are afraid to testify against professional criminals. Violations of the law go unreported because witnesses and even victims don't want to spend time in court or they don't believe the offense warrants the kind of punishment that the state is likely to administer. Despite these shortcomings, it is preferable to let a state that recognizes procedural rights administer all punishment than to allow private punishment, because to tolerate private punishment is to leave civilized life defenseless.
Theoretically, a state can make punishments uniform by enforcing a written penal code. The uniformity intended, if not actually provided, by the “rule of law” would help to make the infliction of punishment seem equitable. This would satisfy most people. We all naturally feel that offenders deserve to suffer for their offenses, and we tend to believe they should suffer in proportion to their offenses. Nobody knows how to measure these things, and we do not agree on what the ratio should be between an offense and its punishment, but most people are satisfied to let these issues be decided by the state.
People don't much care about the details of punishment. They don't care whether a criminal is sentenced to 5 years in prison or 6, as long as he is sentenced by the same system that determines the punishments for everyone else.
By maintaining a monopoly on the administration of punishment, a state makes it possible for defense agencies to function. For example, if a private guard came upon a man mercilessly beating a helpless old lady, the guard would know right away that the attack was not a legitimate punishment. He would know that only the state can legitimately punish criminals and that they can only do so after a formal trial with a lot of pomp and ceremony. So, the private guard can provide more protection against invasion when the state monopolizes punishment than he can in a society that permits unregulated, private punishment. For this reason, the statist solution to the punishment problem is superior to the system of free-market punishment.
Ayn Rand, who in many ways was a libertarian, remained attached to the idea of the state because of her belief in the justice of retribution. She called her philosophy "Objectivism," because she believed in objective truth, objective values, objective justice, and objective control of retaliation. She defined government as follows:
A government is the means of placing the retaliatory use of physical force under objective control—i.e., under objectively defined laws.10This explains what it is about government that appealed to her. If you believe in retaliation, the only alternative to a state which (ideally) retaliates against people in accordance with laws that are written down and enforced equally on everyone, is a system with competing retaliation agencies. These agencies would retaliate against criminals in different ways, which would be unfair. If retaliation were permitted in the absence of state penal laws, criminals would suffer unequal punishments for similar crimes, and some would suffer more for minor crimes than others would for major ones, depending upon the punishment theory held by the ones determining the punishment. This was unacceptable to Ayn Rand because it is not objective enough.
Only a state, which enjoys a monopoly on the right of retaliation within a geographic area, can lend a sense of impartiality and uniformity to the administration of punishment and, by so doing, make retaliation seem fair. Ayn Rand was forced to choose between two mutually exclusive concepts of justice: retaliation objectively and uniformly administered, or the basic right of everyone to freedom from invasion. The former requires a coercive state, the latter requires no state and no punishment. Because Ayn Rand believed in retaliation more than she believed in the non-aggression principle, she endorsed the coercive monopoly of the state.
One philosophical problem with allowing a state to monopolize punishment is that the state cannot have the right to punish, unless the citizens have delegated that right to it. The citizens cannot delegate this right unless they have it in the first place. But it is doubtful that we could have such a right, because it fails the test of clarity that is required of a basic right. If we did have such a right, the statist would still have to prove that we all voluntarily transferred this right to the state, which they cannot prove because we didn't do it. I don't remember delegating this right to anyone. Do you?
If it were possible to devise an objective code of punishment, we should oppose the punishment of criminals by most existing authorities, because the authorities in each country enforce different codes of punishment and define different things as crimes. Punishment in Russia is different from punishment in the United States, and neither is the same as in Iran. The believer in an objective code of punishment could agree with only one state's code of punishment, at most, and he would have to regard the penal codes of all other states as false and unjust. So, even the believer in objective punishment ought to oppose the actual punishments that are administered around the world, except in the unlikely event that he thinks the system of punishment enforced somewhere by one state happens to be the objectively correct one.
Forbidding private punishment makes free-market defense possible, but it would be better to forbid all punishment whether administered by a state or privately, because once invasive punishment monopolies (states) are created, they can be expected to engage in other typical state activities such as taxation, repression, and warfare. Consequently, ending all forms of invasive punishment should be a major goal for those who believe in basic rights.
Punishment must be recognized as distinct from defense. Defense is a legitimate service that can be provided by the market if private punishment is forbidden. Punishment should be regarded as a criminal activity like censorship, taxation, war, and other uniquely state functions.
It is not within human abilities to objectively administer proportional punishment, and even if it were possible, there is no rational way to decide what the proportion between punishment and crime ought to be. Administering proportional punishment requires omniscience. Those who believe in it must be content to hope that there is a god who also believes in it and who will administer it in the afterlife.
State punishment is more impersonal than the retaliation that might be administered by private citizens. State punishment can drag on for years. The state typically locks up offenders in prisons and forces the taxpayers to finance the prison system. State punishment is not administered out of outrage, but impersonally, out of bureaucratic obliviousness to human rights and feelings.
The acceptability of ugly practices may depend on widespread ignorance of the details of their normal implementation. For example, there might be many more vegetarians if everybody took a tour of a typical slaughterhouse, and there might be less romanticism about war if people could see the innocent victims who get blown to bits by both sides. Similarly, jurors who have spent time in prison might be more reluctant to sentence criminals to prison. As the existence of butchers increases the consumption of meat, having professional prison personnel incarcerating offenders out of our sight makes our punishment system more tolerable to us.
Retribution is a primitive approximation of fairness that gets impetus from deep-seated human emotions. These emotions can be healthy impulses when tempered by reason. They can give a victim the courage to fight back in self-defense. They can help a parent teach a child to obey rules for his own safety and to be considerate of others. However, they are often so powerful that they cause irrational behavior. For example, a man stubs his toe on a rock, gets angry, kicks the rock and breaks his foot. Such a response is stupid, like cutting off your nose to spite your face, but at least it doesn't violate anyone's rights.
Because retribution is an irrational, emotional thing, it is hard to predict who will be selected as a victim when a person filled with indignation decides to "get even." Because they are emotional, retaliators are apt to make the mistake of collectivism. They are liable to try to do "justice" to an entire race or class of people. They may see nothing wrong with such concepts as nuclear retaliation and other forms of genocidal justice. A mind that can get angry at rocks and that can confuse accidents and crimes can also confuse the criminal and all those of the same race, class, nationality, or religion. It is this kind of irrationality that highlights the injustice of private retribution and causes people to prefer to let the state monopolize punishment so that it can be administered impartially, unemotionally, and uniformly.
One of the strongest motives for supporting the state is the desire to have criminals punished. The ruling class has a vested interest in fostering retributive philosophies and religions. These beliefs play into the hands of the ruling class who can easily argue that the state is needed to administer punishment. As the popular demand for retribution increases, the need for government becomes more apparent.
Go to Appendix C. All moral arguments for the state are wrong.
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