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13. Punishment and Proportionality1

F ew aspects of libertarian political theory are in a less satisfactory state

than the theory of puni~hmentU.~s ually, libertarians have been

content to assert or develop the axiom that no one may aggress

against the person or property of another; what sanctions may be taken

against such an invader has been scarcely treated at all. We have advanced

the view that the criminal loses his rights to the extent that he deprives

another of his rights: the theory of "proportionality." We must now elaborate

further on what such a theory of proportional punishment may imply.

In the first place, it should be clear that the proportionate principle

is a maximum, rather than a mandatory, punishment for the criminal. In

the libertarian society, there are, as we have said, only two parties to a

dispute or action at law: the victim, or plaintiff, and the alleged criminal,

or defendant. It is the plaintiff that presses charges in the courts against

the wrongdoer. In a libertarian world, there would be no crimes against an

ill-defined "society," and therefore no such person as a "district attorney"

who decides on a charge and then presses those charges against an alleged

criminal. The proportionality rule tells us how much punishment a plaintiff

may exact from a convicted wrongdoer, and no more; it imposes the maximum

limit on punishment that may be inflicted before the punisher himself

becomes a criminal aggressor.

Thus, it should be quite clear that, under libertarian law, capital

punishment would have to be confined strictly to the crime of murder.

For a criminal would only lose his right to life if he had first deprived

some victim of that same right. It would not be permissible, then, for a

merchant whose bubble gum had been stolen, to execute the convicted

bubble gum thief. If he did so, then he, the merchant, would be an unjustifiable

murderer, who could be brought to the bar of justice by the heirs or

assigns of the bubble gum thief.

But, in libertarian law, there would be no compulsion on the plaintiff,

or his heirs, to exact this maximum penalty. If the plaintiff or his heir, for example, did not believe in capital punishment, for whatever reason, he

could voluntarily forgive the victim of part or all of his penalty. If he

were a Tolstoyan, and was opposed to punishment altogether, he could

simply forgive the criminal, and that would be that. Or-and this has a

long and honorable tradition in older Western law-the victim or his heir

could allow the criminal to buy his way out of part or all of his punishment.

Thus, if proportionality allowed the victim to send the criminal to jail for

ten years, the criminal could, if the victim wished, pay the victim to reduce

or eliminate this sentence. The proportionality theory only supplies the upper

bound to punishment-since it tells us how much punishment a victim

may rightfully impose.

A problem might arise in the case of murder-since a victim's heirs

might prove less than diligent in pursuing the murderer, or be unduly inclined

to let the murderer buy his way out of punishment. This problem

could be taken care of simply by people stating in their wills what punishment

they should like to inflict on their possible murderers. The believer

in strict retribution, as well as the Tolstoyan opponent of all punishment,

could then have their wishes precisely carried out. The deceased, indeed,

could provide in his will for, say, a crime insurance company to which he

subscribes to be the prosecutor of his possible murderer.

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. Certainly, the

initial part of that debt is restitution. This works clearly in cases of theft. If

A has stolen $15,000 from B, then the first, or initial, part of A's punishment

must be to restore that $15,000 to the hands of B (plus damages, judicial

and police costs, and interest foregone). Suppose that, as in most cases,

the thief has already spent the money. In that case, the first step of proper

libertarian punishment is to force the thief to work, and to allocate the

ensuing income to the victim until the victim has been repaid. The ideal

situation, then, puts the criminal frankly into a state of enslavement to his

victim, the criminal continuing in that condition of just slavery until he

has redressed the grievance of the man he has ~ r o n g e d . ~

We must note that the emphasis of restitution-punishment is diametrically

opposite to the current practice of punishment. What happens nowadays is the following absurdity: A steals $15,000 from B. The government

tracks down, tries, and convicts A, all at the expense of B, as one

of the numerous taxpayers victimized in this process. Then, the government,

instead of forcing A to repay B or to work at forced labor until that

debt is paid, forces B, the victim, to pay taxes to support the criminal in

prison for ten or twenty years' time. Where in the world is the justice here?

The victim not only loses his money, but pays more money besides for

the dubious thrill of catching, convicting, and then supporting the criminal;

and the criminal is still enslaved, but not to the good purpose of recompensing

his victim.

The idea of primacy for restitution to the victim has great precedent

in law; indeed, it is an ancient principle of law which has been allowed

to wither away as the State has aggrandized and monopolized the

institutions of justice. 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 (restitution to the victim's insurance company being completely

derived from the idea of restitution to the victim). In many parts of colonial

America, which were too poor to afford the dubious luxury of prisons,

the thief was indentured out by the courts to his victim, there to be forced to

work for his victim until his "debt" was paid. This does not necessarily mean

that prisons would disappear in the libertarian society, but they would

undoubtedly change drastically, since their major goal would be to force

the criminals to provide restitution to their victim^.^

In fact, in the Middle Ages generally, restitution to the victim was the

dominant concept of punishment; only as the State grew more powerful

did the governmental authorities encroach ever more into the repayment

process, increasingly confiscating a greater proportion of the criminal's property

for themselves, and leaving less and less to the unfortunate victim.

Indeed, as the emphasis shifted from restitution to the victim, from compensation

by the criminal to his victimJ to punishment for alleged crimes

committed "against the State," the punishments exacted by the State became

more and more severe. As the early twentieth-century criminologist William

Tallack wrote,

It was chiefly owing to the violent greed of feudal barons and

medieval ecclesiastical powers that the rights of the injured party were gradually infringed upon, and finally, to a large

extent, appropriated by these authorities, who exacted a double

vengeance, indeed, upon the offender, by forfeiting his property

to themselves instead of to his victim, and then punishing

him by the dungeon, the torture, the stake or the gibbet. But

the original victim of wrong was practically ignored.

Or, as Professor Schafer has summed up: "As the state monopolized the

institution of punishment, so the rights of the injured were slowly separated

from penal law.'j5

But restitution, while the first consideration in punishment, can

hardly serve as the complete and sufficient criterion. For one thing, if one

man assaults another, and there is no theft of property, there is obviously

no way for the criminal to make restitution. In ancient forms of law, there

were often set schedules for monetary recompense that the criminal would

have to pay the victim: so much mmey for an assault, so much more for

mutilation, etc. But such schedules are clearly wholly arbitrary, and bear

no relation to the nature of the crime itself. We must therefore fall back upon

the view that the criterion must be: loss of rights by the criminal to the same

extent as he has taken away.

But how are we to gauge the nature of the extent? Let us return to

the theft of the $15,000. Even here, simple restitution of the $15,000 is

scarcely sufficient to cover the crime (even if we add damages, costs, interest,

etc.). For one thing, mere loss of the money stolen obviously

fails to function in any sense as a deterrent to future such crime (although

we will see below that deterrence itself is a faulty criterion for gauging

punishment). If, then, we are to say that the criminal loses rights to the

extent that he deprives the victim, then we must say that the criminal should

not only have to return the $15,000, but that he must be forced to pay the

victim another $15,000, so that he, in turn, loses those rights (to $15,000

worth of property) which he had taken from the victim. In the case of

theft, then, we may say that the criminal must pay double the extent of

theft: once, for restitution of the amount stolen, and once again for loss

of what he had deprived an~ther.~

But we are still not finished with elaborating the extent of deprivation

of rights involved in a crime. For A had not simply stolen $15,000

from B, which can be restored and an equivalent penalty imposed.

He had also put B into a state of fear and uncertainty, of uncertainty

as to the extent that B's deprivation would go. But the penalty levied

on A is fixed and certain in advance, thus putting A in far better shape

than was his original victim. So that for proportionate punishment to

be levied we would also have to add more than double so as to compensate

the victim in some way for the uncertain and fearful aspects

of his particular 0rdea1.~W hat this extra compensation should be it is

impossible to say exactly, but that does not absolve any rational system

of punishment-including the one that would apply in the libertarian

society-from the problem of working it out as best one can.

In the question of bodily assault, where restitution does not even

apply, we can again employ our criterion of proportionate punishment;

so that if A has beaten up B in a certain way, then B has the right to

beat up A (or have him beaten up by judicial employees) to rather

more than the same extent.

Here allowing the criminal to buy his way out of this punishment

could indeed enter in, but only as a voluntary contract with the plaintiff.

For example, suppose that A has severely beaten B; B now has the

right to beat up A as severely, or a bit more, or to hire someone or some

organization to do the beating for him (who in a libertarian society,

could be marshals hired by privately competitive courts). But A, of course,

is free to try to buy his way out, to pay B for waiving his right to have

his aggressor beaten up.

The victim, then, has the right to exact punishment up to the proportional

amount as determined by the extent of the crime, but he is

also free either to allow the aggressor to buy his way out of punishment,

or to forgive the aggressor partially or altogether. The proportionate

level of punishment sets the right of the victim, the permissible upper

bound of punishment; but how much or whether the victim decides

to exercise that right is up to him. As Professor Armstrong puts it:

[Tlhere should be a proportion between the severity of the

crime and the severity of the punishment. It sets an upper

limit to the punishment, suggests what is due. . . . Justice

gives the appropriate authority [in our view, the victim] the

right to punish offenders up to some limit, but one is not necessarily

and invariably obliged to punish to the limit of justice.

Similarly, if I lend a man money I have a right, in justice,

to have it returned, but if I choose not to take it back I have not done anything unjust. I cannot claim more than is owed

to me but I am free to claim less, or even to claim nothing8

Or, as Professor McCloskey states: "We do not act unjustly if,

moved by benevolence, we impose less than is demanded by justice,

but there is a grave injustice if the deserved punishment is exceeded.Og

Many people, when confronted with the libertarian legal system,

are concerned with this problem: would somebody be allowed to "take

the law into his own hands"? Would the victim, or a friend of the victim,

be allowed to exact justice personally on the criminal? The answer is, of

course, Yes, since all rights of punishment derive from the victim's right

of self-defense. In the libertarian, purely free-market society. however,

the victim will generally find it more convenient to entrust the task to

the police and court agencies.1° Suppose, for example, that Hatfieldl

murders McCoyl. McCoy2 then decides to seek out and execute Hatfield,

himself. This is fine, except that, just as in the case of the police coercion

discussed in the previous section, McCoy2 may have to face the prospect

of being charged with murder in the private courts by Hatfield*. The

point is that if the courts find that Hatfield, was indeed the murderer,

then nothing happens to McCoy2 in our schema except public approbation

for executing justice. But if it turns out that there was not enough evidence

to convict Hatfield, for the original murder, or if indeed some other

Hatfield or some stranger committed the crime, then McCoy, as in the

case of the police invaders mentioned above, cannot plead any sort of

immunity; he then becomes a murderer liable to be executed by the courts

at the behest of the irate Hatfield heirs. Hence, just as in the libertarian

society, the police will be mighty careful to avoid invasion of the rights

of any suspect unless they are absolutely convinced of his guilt and willing

to put their bodies on the line for this belief, so also few people will "take the law into their own hands" unless they are similarly convinced. Furthermore,

if Hatfieldl merely beat up McCoy,, and then McCoy kills him

in return, this too would put McCoy up for punishment as a murderer.

Thus, the almost universal inclination would be to leave the execution of

justice to the courts, whose decisions based on rules of evidence, trial

procedure, etc. similar to what may apply now, would be accepted by

society as honest and as the best that could be achieved.ll

It should be evident that our theory of proportional punishmentthat

people may be punished by losing their rights to the extent that they

have invaded the rights of others-is frankly a retributive theory of punishment,

a "tooth (or two teeth) for a tooth" theory.12 Retribution is in bad

repute among philosophers, who generally dismiss the concept quickly as "primitive" or "barbaric" and then race on to a discussion of the two

other major theories of punishment: deterrence and rehabilitation. But

simply to dismiss a concept as "barbaric" can hardly suffice; after all, it

is possible that in this case, the "barbarians" hit on a concept that was

superior to the more modern creeds.

Professor H.L.A. Hart describes the "crudest form" of proportionality,

such as we have advocated here (the lex talionis), as

the notion that what the criminal has done should be done to

him, and wherever thinking about punishment is primitive,

as it often is, this crude idea reasserts itself: the killer should

be killed, the violent assailant should be flogged.13

But "primitive" is scarcely a valid criticism, and Hart himself admits

that this "crude" form presents fewer difficulties than the more "refined"

versions of the proportionality-retributivist thesis. His only reasoned criticism,

which he seems to think dismisses the issue, is a quote from Blackstone:

There are very many crimes, that will in no shape admit of

these penalties, without manifest absurdity and wickedness.

Theft cannot be punished by theft, defamation by defamation,

forgery by forgery, adultery by adultery.

But these are scarcely cogent criticisms. Theft and forgery constitute

robbery, and the robber can certainly be made to provide restitution and

proportional damages to the victim; there is no conceptual problem there.

Adultery, in the libertarian view, is not a crime at all, and neither, as will

be seen below, is "defamation."14

Let us then turn to the two major modern theories and see if they

provide a criterion for punishment which truly meets our conceptions of

justice, as retribution surely does.I5 Deterrence was the principle put forth

Why. . . do I merit punishment? It is because I have been guilty. I have done "wrong"

. . . the negation of "right," the assertion of not-right. . . . The destruction of guilt. . . is

still a good in itself; and this, not because a mere negation is a good, but because the

denial of wrong is the assertion of right. . . . Punishment is the denial of wrong by

the assertion of right.

An influential argument for retributivism is found in Herbert Morris, On Guilt and

Innocence (Berkeley: University of California Press, 1976), pp. 31-58.

by utilitarianism, as part of its aggressive dismissal of principles of justice

and natural law, and the replacement of these allegedly metaphysical

principles by hard practicality. The practical goal of punishments was

then supposed to be to deter further crime, either by the criminal himself

or by other members of society. But this criterion of deterrence implies

schemas of punishment which almost everyone would consider grossly

unjust. For example, if there were no punishment for crime at all, a great

number of people would commit petty theft, such as stealing fruit from

a fruit-stand. On the other hand, most people have a far greater built-in

inner objection to themselves committing murder than they have to petty

shoplifting, and would be far less apt to commit the grosser crime. Therefore,

if the object of punishment is to deter from crime, then a far greater

punishment would be required for preventing shoplifting than for

preventing murder, a system that goes against most people's ethical standards.

As a result, with deterrence as the criterion there would have

to be stringent capital punishment for petty thievery-for the theft of

bubble gum-while murderers might only incur the penalty of a few

months in jail.16

Similarly, a classic critique of the deterrence principle is that, if

deterrence were our sole criterion, it would be perfectly proper for the

police or courts to execute publicly for a crime someone whom they know

to be innocent, but whom they had convinced the public was guilty.

The knowing execution of an innocent man-provided, of course, that

the knowledge can be kept secret-would exert a deterrence effect just

as fully as the execution of the guilty. And yet, of course, such a policy,

too, goes violently against almost everyone's standards of justice.

The fact that nearly everyone would consider such schemes of punishments

grotesque, despite their fulfillment of the deterrence criterion, [Wlhy stop at the minimum, why not be on the safe side and penalize him [the

criminal] in some pretty spectacular way-wouldn't that be more likely to deter

others? Let him be whipped to death, publicly of course, for a parking offense; that

would certainly deter me from parking on the spot reserved for the Vice-Chancellor!

Similarly, D.J.B. Hawkins, in "Punishment and Moral Responsibility," The Modem Law

Rwiew (November 1944), reprinted in Grupp, ed., Theories of Punishment, p. 14, writes:

If the motive of deterrence were alone taken into account, we should have to punish

most heavily those offenses which there is considerable temptation to commit and

which, as not carrying with them any great moral guilt, people commit fairly easily.

Motoring offenses provide a familiar example. shows that people are interested in something more important than deterrence.

What this may be is indicated by the overriding objection that

these deterrent scales of punishment, or the killing of an innocent man,

clearly invert our usual view of justice. Instead of the punishment "fitting

the crime" it is now graded in inverse proportion to its severity

or is meted out to the innocent rather than the guilty. In short, the deterrence

principle implies a gross violation of the intuitive sense that justice

connotes some form of fitting and proportionate punishment to

the guilty party and to him alone.

The most recent, supposedly highly "humanitarian" criterion for

punishment is to "rehabilitate" the criminal. Old-fashioned justice,

the argument goes, concentrated on punishing the criminal, either in

retribution or to deter future crime; the new criterion humanely

attempts to reform and rehabilitate the criminal. But on further consideration,

the "humanitarian" rehabilitation principle not only leads to

arbitrary and gross injustice, it also places enormous and arbitrary power

to decide men's fates in the hands of the dispensers of punishment.

Thus, suppose that Smith is a mass murderer, while Jones stole some

fruit from a stand. Instead of being sentenced in proportion to their crimes,

their sentences are now indeterminate, with confinement ending upon

their supposedly successful "rehabilitation." But this gives the power to

determine the prisoners' lives into the hands of an arbitrary group of

supposed rehabilitators. It would mean that instead of equality under

the law-an elementary criterion of justice-with equal crimes being

punished equally, one man may go to prison for a few weeks, if he is

quickly "rehabilitated," while another may remain in prison indefinitely.

Thus, in our case of Smith and Jones, suppose that the mass murderer

Smith is, according to our board of "experts," rapidly rehabilitated. He

is released in three weeks, to the plaudits of the supposedly successful

reformers. In the meanwhile, Jones, the fruit-stealer, persists in being

incorrigible and clearly un-rehabilitated, at least in the eyes of the expert

board. According to the logic of the principle, he must stay incarcerated

indefinitely, perhaps for the rest of his life, for while the crime was negligible,

he continued to remain outside the influence of his "humanitarian"

mentors.

Thus, Professor K.G. Armstrong writes of the reform principle:

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,"perhaps-for there is no longer any basis for the principle of a definite limit to punishment.

"You stole a loaf of bread? Well, we'll have to reform you, even

if it takes the rest of your life." From the moment he is guilty

the criminal loses his rights as a human being. . . . This is

not a form of humanitarianism I care for.17

Never has the tyranny and gross injustice of the "humanitarian"

theory of punishment-as-reform been revealed in more scintillating fashion

than by C.S. Lewis. Noting that the "reformers" call their proposed

actions "healing" or "therapy" rather than "punishment," Lewis adds:

But do not let us be deceived by a name. 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 with apparent success-

who cares whether this is called Punishment or not?

That it includes most of the elements for which any punishment

is feared-shame, exile, bondage, and years eaten by

the locust-is obvious. Only enormous ill-desert could justify

it; but ill-desert is the very conception which the Humanitarian

theory has thrown overboard.

Lewis goes on to demonstrate the particularly harsh tyranny that

is likely to be levied by "humanitarians" out to inflict their "reforms"

and "cures" on the populace:

Of all tyrannies a tyranny exercised for the good of its victims

may be the most oppressive. It may be better to live under

robber barons than under omnipotent moral busybodies.

The robber baron's cruelty may sometimes sleep, his cupidity

may at some point be satiated; but those who torment

us for our own good will torment us without end for they do

so with the approval of their own conscience. They may be

more likely to go to Heaven yet at the same time likelier to

make a Hell of earth. This very kindness stings with intolerable

insult. To be "cured" against one's will and cured of states

which we may not regard as disease is to be put on a level

of those who have not yet reached the age of reason or those

who never will; to be classed with infants, imbeciles, and domestic

animals. But to be punished, however severely, because

we have deserved it, because we "ought to have known better,"

is to be treated as a human person made in God's image.

Furthermore, Lewis points out, the rulers can use the concept of

"disease" as a means for terming any actions that they dislike as "crimes"

and then to inflict a totalitarian rule in the name of Therapy.

For if crime and disease are to be regarded as the same thing,

it follows that any state of mind which our masters choose to

call "disease" can be treated as crime; and compulsorily cured.

It will be 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. For our

masters will not be using concepts of Desert and Punishment

but those of disease and cure. . . . It will not be persecution.

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. Even in ordinary medicine there

were painful operations and fatal operations; so in this. But

because they are "treatment," not punishment, they can be

criticized only by fellow-experts and on technical grounds,

never by men as men and on grounds of justice.18

Thus, we see that the fashionable reform approach to punishment

can be at least as grotesque and far more uncertain and arbitrary than

the deterrence principle. Retribution remains as our only just and

viable theory of punishment and equal treatment for equal crime is fundamental

to such retributive punishment. The barbaric turns out to

be the just while the "modern" and the "humanitarian" turn out to be

grotesque parodies of justice.