WEBVTT NOTE 13. Punishment and Proportionality 1 00:00:00.000 --> 00:00:06.480 CHAPTER 13 PUNISHMENT AND PROPORTIONALITY 2 00:00:06.480 --> 00:00:11.820 Few aspects of libertarian political theory are in a less satisfactory state than the 3 00:00:11.820 --> 00:00:14.200 theory of punishment. 4 00:00:14.200 --> 00:00:19.780 It must be noted, however, that all legal systems, whether libertarian or not, must 5 00:00:19.780 --> 00:00:26.600 work out some theory of punishment, and that existing systems are in at least as unsatisfactory 6 00:00:26.600 --> 00:00:31.400 Theory Estate as Punishment and Libertarian Theory. 7 00:00:31.400 --> 00:00:36.140 Usually libertarians have been content to assert or develop the axiom that no one may 8 00:00:36.140 --> 00:00:39.860 aggress against the person or property of another. 9 00:00:39.860 --> 00:00:45.780 What sanctions may be taken against such an invader has been scarcely treated at all. 10 00:00:45.780 --> 00:00:51.340 We have advanced the view that the criminal loses his rights to the extent that he deprives 11 00:00:51.340 --> 00:00:56.580 another of his rights, the theory of proportionality. 12 00:00:56.580 --> 00:01:03.840 We must now elaborate further on what such a theory of proportional punishment may imply. 13 00:01:03.840 --> 00:01:08.740 In the first place, it should be clear that the proportionate principle is a maximum rather 14 00:01:08.740 --> 00:01:12.780 than a mandatory punishment for the criminal. 15 00:01:12.780 --> 00:01:18.500 In the libertarian society there are, as we have said, only two parties to a dispute or 16 00:01:18.500 --> 00:01:25.300 action at law, the victim or plaintiff and the alleged criminal or defendant. 17 00:01:25.300 --> 00:01:30.540 It is the plaintiff that presses charges in the courts against the wrongdoer. 18 00:01:30.540 --> 00:01:36.780 In a libertarian world there would be no crimes against an ill-defined society and therefore 19 00:01:36.780 --> 00:01:42.460 no such person as a district attorney who decides on a charge and then presses those 20 00:01:42.460 --> 00:01:46.220 charges against an alleged criminal. 21 00:01:46.220 --> 00:01:52.380 The proportionality rule tells us how much punishment a plaintiff may exact from a convicted 22 00:01:52.380 --> 00:02:04.380 It imposes the maximum limit on punishment that may be inflicted before the punisher himself becomes a criminal aggressor. 23 00:02:04.380 --> 00:02:13.380 Thus it should be quite clear that under libertarian law, capital punishment would have to be confined strictly to the crime of murder, 24 00:02:13.380 --> 00:02:21.380 for a criminal would only lose his right to life if he had first deprived some victim of that same right. 25 00:02:21.380 --> 00:02:29.380 It would not be permissible, then, for a merchant whose bubblegum had been stolen to execute the convicted bubblegum thief. 26 00:02:29.380 --> 00:02:41.380 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 bubblegum thief. 27 00:02:41.380 --> 00:02:50.380 But in libertarian law there would be no compulsion on the plaintiff, or his heirs, to exact this maximum penalty. 28 00:02:50.380 --> 00:02:55.500 If the plaintiff or his heir, for example, did not believe in capital punishment for 29 00:02:55.500 --> 00:03:02.220 whatever reason, he could voluntarily forgive the victim of part or all of his penalty. 30 00:03:02.220 --> 00:03:06.940 If he were a Tolstoyan and was opposed to punishment altogether, he could simply forgive 31 00:03:06.940 --> 00:03:09.460 the criminal, and that would be that. 32 00:03:09.460 --> 00:03:16.300 Or, and this has a long and honorable tradition in older Western law, the victim or his heir 33 00:03:16.300 --> 00:03:22.100 could allow the criminal to buy his way out of part or all of his punishment. 34 00:03:22.100 --> 00:03:28.640 Thus, if proportionality allowed the victim to send the criminal to jail for ten years, 35 00:03:28.640 --> 00:03:34.160 the criminal could, if the victim wished, pay the victim to reduce or eliminate this 36 00:03:34.160 --> 00:03:35.720 sentence. 37 00:03:35.720 --> 00:03:41.640 The proportionality theory only supplies the upper bound to punishment, since it tells 38 00:03:41.640 --> 00:03:46.960 shows us how much punishment a victim may rightfully impose. 39 00:03:46.960 --> 00:03:52.500 A problem might arise in the case of murder, since a victim's heirs might prove less than 40 00:03:52.500 --> 00:03:58.600 diligent in pursuing the murderer, or be unduly inclined to let the murderer buy his way out 41 00:03:58.600 --> 00:04:00.720 of punishment. 42 00:04:00.720 --> 00:04:06.080 This problem could be taken care of simply by people stating in their wills what punishment 43 00:04:06.080 --> 00:04:10.280 they should like to inflict on their possible murderers. 44 00:04:10.280 --> 00:04:15.840 The believer in strict retribution, as well as the Tolstoyan opponent of all punishment, 45 00:04:15.840 --> 00:04:19.640 could then have their wishes precisely carried out. 46 00:04:19.640 --> 00:04:25.840 The deceased, indeed, could provide in his will for, say, a crime insurance company to 47 00:04:25.840 --> 00:04:31.800 which he subscribes to be the prosecutor of his possible murderer. 48 00:04:31.800 --> 00:04:38.320 If then proportionality sets the upper bound to punishment, how may we establish proportionality 49 00:04:38.320 --> 00:04:40.040 itself? 50 00:04:40.040 --> 00:04:47.120 The first point is that the emphasis in punishment must be not on paying one's debt to society, 51 00:04:47.120 --> 00:04:52.840 whatever that may mean, but in paying one's debt to the victim. 52 00:04:52.840 --> 00:04:56.860 Certainly the initial part of that debt is restitution. 53 00:04:56.860 --> 00:04:59.760 This works clearly in cases of theft. 54 00:04:59.760 --> 00:05:06.580 If A has stolen $15,000 from B, then the first or initial part of A's punishment must be 55 00:05:06.580 --> 00:05:21.700 Suppose that, as in most cases, the thief has already spent the money. 56 00:05:21.700 --> 00:05:27.340 In that case, the first step of proper libertarian punishment is to force the thief to work and 57 00:05:27.340 --> 00:05:33.520 to allocate the ensuing income to the victim until the victim has been repaid. 58 00:05:33.520 --> 00:05:39.280 The ideal situation, then, puts the criminal frankly into a state of enslavement to his 59 00:05:39.280 --> 00:05:45.760 victim, the criminal continuing in that condition of just slavery until he has redressed the 60 00:05:45.760 --> 00:05:48.760 grievance of the man he has wronged. 61 00:05:48.760 --> 00:05:55.200 Significantly, the only exception to the prohibition of involuntary servitude in the 13th Amendment 62 00:05:55.200 --> 00:06:00.000 to the U.S. Constitution is the enslavement of criminals. 63 00:06:00.000 --> 00:06:06.080 Neither slavery nor involuntary servitude, except as a punishment for crime, whereof 64 00:06:06.080 --> 00:06:11.620 the party shall have been duly convicted, shall exist within the United States or any 65 00:06:11.620 --> 00:06:15.820 place subject to their jurisdiction. 66 00:06:15.820 --> 00:06:20.960 We must note that the emphasis of restitution punishment is diametrically opposite to the 67 00:06:20.960 --> 00:06:23.560 current practice of punishment. 68 00:06:23.560 --> 00:06:27.200 What happens nowadays is the following absurdity. 69 00:06:27.200 --> 00:06:35.200 A steals $15,000 from B. The government tracks down, tries and convicts A, all at the expense 70 00:06:35.200 --> 00:06:42.440 of B, as one of the numerous taxpayers victimized in this process. Then, the government, instead 71 00:06:42.440 --> 00:06:50.320 of forcing A to repay B, or to work at forced labor until that debt is paid, forces B, the 72 00:06:50.320 --> 00:06:57.160 Victim to pay taxes to support the criminal in prison for 10 or 20 years' time. 73 00:06:57.160 --> 00:06:59.960 Where in the world is the justice here? 74 00:06:59.960 --> 00:07:05.640 The victim not only loses his money, but pays more money besides for the dubious thrill 75 00:07:05.640 --> 00:07:09.920 of catching, convicting and then supporting the criminal. 76 00:07:09.920 --> 00:07:16.960 And the criminal is still enslaved, but not to the good purpose of recompensing his victim. 77 00:07:16.960 --> 00:07:22.280 The idea of primacy for restitution to the victim has great precedent in law. 78 00:07:22.280 --> 00:07:27.880 Indeed, it is an ancient principle of law which has been allowed to wither away as the 79 00:07:27.880 --> 00:07:32.960 state has aggrandized and monopolized the institutions of justice. 80 00:07:32.960 --> 00:07:40.140 In medieval Ireland, for example, a king was not the head of state but rather a crime insurer. 81 00:07:40.140 --> 00:07:45.300 If someone committed a crime, the first thing that happened was that the king paid the insurance 82 00:07:45.300 --> 00:08:02.260 In many parts of colonial America, which were 83 00:08:02.260 --> 00:08:08.380 too poor to afford the dubious luxury of prisons, the thief was indentured out by the courts 84 00:08:08.380 --> 00:08:14.860 to his victim, there to be forced to work for his victim until his debt was paid. 85 00:08:14.860 --> 00:08:20.240 This does not necessarily mean that prisons would disappear in the libertarian society, 86 00:08:20.240 --> 00:08:25.460 but they would undoubtedly change drastically, since their major goal would be to force the 87 00:08:25.460 --> 00:08:30.300 criminals to provide restitution to their victims. 88 00:08:30.300 --> 00:08:35.500 In fact, in the Middle Ages generally, restitution to the victim was the dominant concept of 89 00:08:35.500 --> 00:08:37.220 punishment. 90 00:08:37.220 --> 00:08:42.380 Only as the state grew more powerful did the governmental authorities encroach ever more 91 00:08:42.380 --> 00:08:54.380 and 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. 92 00:08:54.380 --> 00:09:11.380 Indeed, as the emphasis shifted from restitution to the victim, from compensation by the criminal to his victim, to punishment for alleged crimes committed against the State, the punishments exacted by the State became more and more severe. 93 00:09:11.380 --> 00:09:15.380 As the early 20th century criminologist William Tellick wrote, 94 00:09:15.380 --> 00:09:22.380 It was chiefly owing to the violent greed of feudal barons and medieval ecclesiastical powers 95 00:09:22.380 --> 00:09:26.380 that the rights of the injured party were gradually infringed upon, 96 00:09:26.380 --> 00:09:31.380 and finally to a large extent appropriated by these authorities, 97 00:09:31.380 --> 00:09:35.380 who exacted a double vengeance, indeed, upon the offender, 98 00:09:35.380 --> 00:09:40.380 by forfeiting his property to themselves instead of to his victim, 99 00:09:40.380 --> 00:09:46.220 and then punishing him by the dungeon, the torture, the stake or the gibbet. 100 00:09:46.220 --> 00:09:51.760 But the original victim of wrong was practically ignored. 101 00:09:51.760 --> 00:09:57.840 Or as Professor Schaeffer has summed up, as the state monopolized the institution of punishment, 102 00:09:57.840 --> 00:10:03.760 so the rights of the injured were slowly separated from penal law. 103 00:10:03.760 --> 00:10:09.560 But restitution, while the first consideration in punishment, can hardly serve as the complete 104 00:10:09.560 --> 00:10:12.280 and Sufficient Criterion. 105 00:10:12.280 --> 00:10:17.520 For one thing, if one man assaults another, and there is no theft of property, there is 106 00:10:17.520 --> 00:10:21.600 obviously no way for the criminal to make restitution. 107 00:10:21.600 --> 00:10:26.960 In ancient forms of law, there were often set schedules for monetary recompense that 108 00:10:26.960 --> 00:10:29.600 the criminal would have to pay the victim. 109 00:10:29.600 --> 00:10:34.560 So much money for an assault, so much more for mutilation, etc. 110 00:10:34.560 --> 00:10:40.200 But such schedules are clearly wholly arbitrary and bear no relation to the nature of the 111 00:10:40.200 --> 00:10:41.820 crime itself. 112 00:10:41.820 --> 00:10:47.400 We must therefore fall back upon the view that the criterion must be loss of rights 113 00:10:47.400 --> 00:10:53.000 by the criminal to the same extent as he has taken away. 114 00:10:53.000 --> 00:10:57.100 But how are we to gauge the nature of the extent? 115 00:10:57.100 --> 00:11:00.960 Let us return to the theft of the $15,000. 116 00:11:00.960 --> 00:11:07.520 Even here, simple restitution of the $15,000 is scarcely sufficient to cover the crime, 117 00:11:07.520 --> 00:11:11.680 even if we add damages, costs, interest, etc. 118 00:11:11.680 --> 00:11:17.560 For one thing, mere loss of the money stolen obviously fails to function in any sense as 119 00:11:17.560 --> 00:11:23.360 a deterrent to future such crime, although we will see below that deterrence itself is 120 00:11:23.360 --> 00:11:27.520 a faulty criterion for gauging punishment. 121 00:11:27.520 --> 00:11:32.680 If then we are to say that the criminal loses rights to the extent that he deprives the 122 00:11:32.680 --> 00:11:39.600 victim, then we must say that the criminal should not only have to return the $15,000, 123 00:11:39.600 --> 00:11:47.040 but that he must be forced to pay the victim another $15,000, so that he in turn loses 124 00:11:47.040 --> 00:11:54.380 those rights to $15,000 worth of property which he had taken from the victim. 125 00:11:54.380 --> 00:11:59.540 In the case of theft, then, we may say that the criminal must pay double the extent of 126 00:11:59.540 --> 00:12:06.080 theft—once for restitution of the amount stolen, and once again for loss of what he 127 00:12:06.080 --> 00:12:09.380 had deprived another. 128 00:12:09.380 --> 00:12:15.060 This principle of libertarian double punishment has been pithily described by Professor Walter 129 00:12:15.060 --> 00:12:21.000 Block as the principle of two teeth for a tooth. 130 00:12:21.000 --> 00:12:25.880 But we are still not finished with elaborating the extent of deprivation of rights involved 131 00:12:25.880 --> 00:12:34.520 in a crime, for A had not simply stolen $15,000 from B, which can be restored and an equivalent 132 00:12:34.520 --> 00:12:36.620 penalty imposed. 133 00:12:36.620 --> 00:12:42.920 He had also put B into a state of fear and uncertainty, of uncertainty as to the extent 134 00:12:42.920 --> 00:12:46.080 that B's deprivation would go. 135 00:12:46.080 --> 00:12:52.760 But the penalty levied on A is fixed and certain in advance, thus putting A in far better shape 136 00:12:52.760 --> 00:12:55.440 than was his original victim. 137 00:12:55.440 --> 00:13:00.960 So that, for proportionate punishment to be levied, we would also have to add more than 138 00:13:00.960 --> 00:13:06.640 double, so as to compensate the victim in some way for the uncertain and fearful aspects 139 00:13:06.640 --> 00:13:09.440 of his particular ordeal. 140 00:13:09.440 --> 00:13:14.320 I am indebted to Professor Robert Nozick of Harvard University for pointing out this problem 141 00:13:14.320 --> 00:13:21.600 What this extra compensation should be, it is impossible to say exactly, but that does 142 00:13:21.600 --> 00:13:27.320 not absolve any rational system of punishment, including the one that would apply in the 143 00:13:27.320 --> 00:13:33.560 libertarian society, from the problem of working it out as best one can. 144 00:13:33.560 --> 00:13:39.800 In the question of bodily assault, where restitution does not even apply, we can again employ 145 00:13:39.800 --> 00:13:45.960 and our criterion of proportionate punishment, so that if A has beaten up B in a certain 146 00:13:45.960 --> 00:13:52.280 way, then B has the right to beat up A, or have him beaten up by judicial employees to 147 00:13:52.280 --> 00:13:56.320 rather more than the same extent. 148 00:13:56.320 --> 00:14:01.440 Here allowing the criminal to buy his way out of this punishment could indeed enter 149 00:14:01.440 --> 00:14:06.760 in, but only as a voluntary contract with the plaintiff. 150 00:14:06.760 --> 00:14:14.400 For example, suppose that A has severely beaten B. B now has the right to beat up A as severely 151 00:14:14.400 --> 00:14:21.160 or a bit more or to hire someone or some organization to do the beating for him, who in a libertarian 152 00:14:21.160 --> 00:14:27.760 society could be marshals hired by privately competitive courts. But A, of course, is free 153 00:14:27.760 --> 00:14:35.400 to buy his way out, to pay B for waiving his right to have his aggressor beaten up. The 154 00:14:35.400 --> 00:14:41.360 The victim, then, has the right to exact punishment up to the proportional amount as determined 155 00:14:41.360 --> 00:14:47.080 by the extent of the crime, but he is also free either to allow the aggressor to buy 156 00:14:47.080 --> 00:14:53.740 his way out of punishment or to forgive the aggressor, partially or altogether. 157 00:14:53.740 --> 00:14:59.140 The proportionate level of punishment sets the right of the victim, the permissible upper 158 00:14:59.140 --> 00:15:05.280 bound of punishment, but how much or whether the victim decides to exercise that right 159 00:15:05.280 --> 00:15:11.200 is up to him. As Professor Armstrong puts it, there should be a proportion between 160 00:15:11.200 --> 00:15:16.840 the severity of the crime and the severity of the punishment. It sets an upper limit 161 00:15:16.840 --> 00:15:23.680 to the punishment, suggests what is due. Justice gives the appropriate authority, in our view 162 00:15:23.680 --> 00:15:29.960 the victim, the right to punish offenders up to some limit, but one is not necessarily 163 00:15:29.960 --> 00:15:34.440 and Invariably Obliged to Punish to the Limit of Justice. 164 00:15:34.440 --> 00:15:40.280 Similarly, if I lend a man money, I have a right injustice to have it returned. 165 00:15:40.280 --> 00:15:45.160 But if I choose not to take it back, I have not done anything unjust. 166 00:15:45.160 --> 00:15:51.520 I cannot claim more than is owed to me, but I am free to claim less, or even to claim 167 00:15:51.520 --> 00:15:53.520 nothing. 168 00:15:53.520 --> 00:16:00.040 Or as Professor McCloskey states, we do not act unjustly if, moved by benevolence, we 169 00:16:00.040 --> 00:16:03.640 impose less than is demanded by justice. 170 00:16:03.640 --> 00:16:09.600 But there is a grave injustice if the deserved punishment is exceeded. 171 00:16:09.600 --> 00:16:15.480 Many people, when confronted with the libertarian legal system, are concerned with this problem. 172 00:16:15.480 --> 00:16:20.280 Would somebody be allowed to take the law into his own hands? 173 00:16:20.280 --> 00:16:25.080 Should the victim or a friend of the victim be allowed to exact justice personally on the 174 00:16:25.080 --> 00:16:26.560 criminal? 175 00:16:26.560 --> 00:16:32.680 The answer is, of course, yes, since all rights of punishment derive from the victim's right 176 00:16:32.680 --> 00:16:34.960 of self-defense. 177 00:16:34.960 --> 00:16:40.520 In the libertarian, purely free-market society, however, the victim will generally find it 178 00:16:40.520 --> 00:16:46.200 more convenient to entrust the task to the police and court agencies. 179 00:16:46.200 --> 00:16:53.120 It says, for example, that Hatfield 1 murders McCoy 1. McCoy 2 then decides to seek out 180 00:16:53.120 --> 00:17:00.260 and execute Hatfield 1 himself. This is fine, except that, just as in the case of the police 181 00:17:00.260 --> 00:17:06.180 coercion discussed in the previous section, McCoy 2 may have to face the prospect of being 182 00:17:06.180 --> 00:17:13.100 charged with murder in the private courts by Hatfield 2. The point is that if the courts 183 00:17:13.100 --> 00:17:19.460 Let's find that Hatfield 1 was indeed the murderer, then nothing happens to McCoy 2, 184 00:17:19.460 --> 00:17:24.600 in our schema, except public approbation for executing justice. 185 00:17:24.600 --> 00:17:29.740 But if it turns out that there was not enough evidence to convict Hatfield 1 for the original 186 00:17:29.740 --> 00:17:35.900 murderer, or if indeed some other Hatfield or some stranger committed the crime, then 187 00:17:35.900 --> 00:17:42.020 McCoy 2, as in the case of the police invaders mentioned above, cannot plead any sort of 188 00:17:42.020 --> 00:17:48.140 of Immunity. He then becomes a murderer liable to be executed by the courts at the behest 189 00:17:48.140 --> 00:17:55.060 of the irate Hatfield heirs. Hence, just as in the libertarian society the police will 190 00:17:55.060 --> 00:18:01.020 be mighty careful to avoid invasion of the rights of any suspect unless they are absolutely 191 00:18:01.020 --> 00:18:07.300 convinced of his guilt and willing to put their bodies on the line for this belief. 192 00:18:07.300 --> 00:18:15.060 So also few people will take the law into their own hands unless they are similarly convinced. 193 00:18:15.060 --> 00:18:22.420 Furthermore if Hatfield 1 merely beat up McCoy 1 and then McCoy kills him in return, this 194 00:18:22.420 --> 00:18:27.060 too would put McCoy up for punishment as a murderer. 195 00:18:27.060 --> 00:18:32.180 Thus the almost universal inclination would be to leave the execution of justice to the 196 00:18:32.180 --> 00:18:38.500 and the courts, whose decisions based on rules of evidence, trial procedure, etc., similar 197 00:18:38.500 --> 00:18:44.780 to what may apply now, would be accepted by society as honest and as the best that could 198 00:18:44.780 --> 00:18:46.580 be achieved. 199 00:18:46.580 --> 00:18:51.060 All this is reminiscent of the brilliant and witty system of punishment for government 200 00:18:51.060 --> 00:18:56.140 bureaucrats devised by the great libertarian H. L. Mencken. 201 00:18:56.140 --> 00:19:01.540 In A Mencken Crestomathy, he proposed that any citizen, having looked into the acts of 202 00:19:01.540 --> 00:19:07.140 of a Job Holder and found him delinquent, may punish him instantly and on the spot, 203 00:19:07.140 --> 00:19:12.580 and in any manner that seems appropriate and convenient, and that in case this punishment 204 00:19:12.580 --> 00:19:18.940 involves physical damage to the job holder, the ensuing inquiry by the grand jury or coroner 205 00:19:18.940 --> 00:19:25.440 shall confine itself strictly to the question whether the job holder deserved what he got. 206 00:19:25.440 --> 00:19:31.800 In other words, I propose that it shall be no longer malum in se for a citizen to pummel, 207 00:19:31.800 --> 00:19:40.440 cowhide, kick, gouge, cut, wound, bruise, maim, burn, club, bastionado, flay, or even 208 00:19:40.440 --> 00:19:46.600 lynch a job-holder, and that it shall be malum prohibitum only to the extent that the 209 00:19:46.600 --> 00:19:50.600 punishment exceeds the job-holder's deserts. 210 00:19:50.600 --> 00:19:56.460 The amount of this excess, if any, may be determined very conveniently by a pettit jury, 211 00:19:56.460 --> 00:19:59.520 as other questions of guilt are now determined. 212 00:19:59.520 --> 00:20:05.700 The flogged judge or congressman or other jobholder on being discharged from the hospital, 213 00:20:05.700 --> 00:20:11.940 or his chief heir in case he has perished, goes before a grand jury and makes complaint, 214 00:20:11.940 --> 00:20:17.700 and if a true bill is found, a pettit jury is impaneled and all the evidence is put before 215 00:20:17.700 --> 00:20:18.820 it. 216 00:20:18.820 --> 00:20:23.720 If it decides that the job-holder deserves the punishment inflicted upon him, the citizen 217 00:20:23.720 --> 00:20:27.040 who inflicted it is acquitted with honor. 218 00:20:27.040 --> 00:20:32.820 If on the contrary it decides that this punishment was excessive, then the citizen is adjudged 219 00:20:32.820 --> 00:20:38.740 guilty of assault, mayhem, murder, or whatever it is, in a degree apportioned to the difference 220 00:20:38.740 --> 00:20:45.060 between what the job-holder deserved and what he got, and punishment for that excess follows 221 00:20:45.060 --> 00:20:47.940 in the usual course. 222 00:20:47.940 --> 00:20:53.200 It should be evident that our theory of proportional punishment, that people may be punished by 223 00:20:53.200 --> 00:20:58.700 losing their rights to the extent that they have invaded the rights of others, is frankly 224 00:20:58.700 --> 00:21:06.420 a retributive theory of punishment, a tooth or two teeth for a tooth theory. 225 00:21:06.420 --> 00:21:11.400 Retribution is in bad repute among philosophers, who generally dismiss the concept quickly 226 00:21:11.400 --> 00:21:17.280 as primitive or barbaric, and then race on to a discussion of the two other major theories 227 00:21:17.280 --> 00:21:24.480 of Punishment, Deterrence and Rehabilitation. But simply to dismiss a concept as barbaric 228 00:21:24.480 --> 00:21:30.480 can hardly suffice. After all, it is possible that in this case the barbarians hit on a 229 00:21:30.480 --> 00:21:35.240 concept that was superior to the more modern creeds. 230 00:21:35.240 --> 00:21:41.640 Professor H. L. A. Hart describes the crudest form of proportionality, such as we have advocated 231 00:21:41.640 --> 00:21:47.920 here, the Lex Talianus, as the notion that what the criminal has done should be done 232 00:21:47.920 --> 00:21:54.500 to him, and wherever thinking about punishment is primitive, as it often is, this crude idea 233 00:21:54.500 --> 00:22:01.200 reasserts itself. The killer should be killed, the violent assailant should be flogged. 234 00:22:01.200 --> 00:22:08.000 But primitive is scarcely a valid criticism, and Hart himself admits that this crude form 235 00:22:08.000 --> 00:22:13.720 presents fewer difficulties than the more refined versions of the proportionality-retributivist 236 00:22:13.720 --> 00:22:15.480 thesis. 237 00:22:15.480 --> 00:22:20.800 His only reasoned criticism, which he seems to think dismisses the issue, is a quote from 238 00:22:20.800 --> 00:22:21.800 Blackstone. 239 00:22:21.800 --> 00:22:27.980 There are very many crimes that will in no shape admit of these penalties without manifest 240 00:22:27.980 --> 00:22:30.680 absurdity and wickedness. 241 00:22:30.680 --> 00:22:36.920 Theft cannot be punished by theft, defamation by defamation, forgery by forgery, adultery 242 00:22:36.920 --> 00:22:39.360 by Adultery. 243 00:22:39.360 --> 00:22:42.920 But these are scarcely cogent criticisms. 244 00:22:42.920 --> 00:22:47.960 Theft and forgery constitute robbery, and the robber can certainly be made to provide 245 00:22:47.960 --> 00:22:51.600 restitution and proportional damages to the victim. 246 00:22:51.600 --> 00:22:54.400 There is no conceptual problem there. 247 00:22:54.400 --> 00:22:59.760 Adultery, in the libertarian view, is not a crime at all, and neither, as will be seen 248 00:22:59.760 --> 00:23:03.300 below, is defamation. 249 00:23:03.300 --> 00:23:09.460 Let us then turn to the two major modern theories and see if they provide a criterion for punishment 250 00:23:09.460 --> 00:23:16.020 which truly meets our conceptions of justice, as retribution surely does. 251 00:23:16.020 --> 00:23:21.380 Deterrence was the principle put forth by utilitarianism as part of its aggressive dismissal 252 00:23:21.380 --> 00:23:27.340 of principles of justice and natural law, and the replacement of these allegedly metaphysical 253 00:23:27.340 --> 00:23:30.980 principles by hard practicality. 254 00:23:30.980 --> 00:23:36.780 The practical goal of punishments was then supposed to be to deter further crime, either 255 00:23:36.780 --> 00:23:41.440 by the criminal himself or by other members of society. 256 00:23:41.440 --> 00:23:46.680 But this criterion of deterrence implies schemas of punishment which almost everyone would 257 00:23:46.680 --> 00:23:49.560 consider grossly unjust. 258 00:23:49.560 --> 00:23:54.600 For example, if there were no punishment for crime at all, a great number of people would 259 00:23:54.600 --> 00:23:59.340 commit petty theft, such as stealing fruit from a fruit stand. 260 00:23:59.340 --> 00:24:04.600 On the other hand, most people have a far greater built-in inner objection to themselves 261 00:24:04.600 --> 00:24:10.100 committing murder than they have to petty shoplifting, and would be far less apt to 262 00:24:10.100 --> 00:24:12.220 commit the grosser crime. 263 00:24:12.220 --> 00:24:18.440 Therefore, if the object of punishment is to deter from crime, then a far greater punishment 264 00:24:18.440 --> 00:24:23.760 would be required for preventing shoplifting than for preventing murder, a system that 265 00:24:23.760 --> 00:24:27.580 goes against most people's ethical standards. 266 00:24:27.580 --> 00:24:33.380 As a result, with deterrence as the criterion, there would have to be stringent capital punishment 267 00:24:33.380 --> 00:24:38.880 for petty thievery, for the theft of bubble gum, while murderers might only incur the 268 00:24:38.880 --> 00:24:41.740 penalty of a few months in jail. 269 00:24:41.740 --> 00:24:48.540 Similarly, a classic critique of the deterrence principle is that if deterrence were our sole 270 00:24:48.540 --> 00:24:54.260 criterion, it would be perfectly proper for the police or courts to execute publicly for 271 00:24:54.260 --> 00:24:59.460 for a crime, someone whom they know to be innocent, but whom they had convinced the 272 00:24:59.460 --> 00:25:01.780 public was guilty. 273 00:25:01.780 --> 00:25:06.420 The knowing execution of an innocent man, provided, of course, that the knowledge can 274 00:25:06.420 --> 00:25:13.060 be kept secret, would exert a deterrence effect just as fully as the execution of the guilty. 275 00:25:13.060 --> 00:25:18.820 And yet, of course, such a policy, too, goes violently against almost everyone's standards 276 00:25:18.820 --> 00:25:21.140 of justice. 277 00:25:21.140 --> 00:25:26.780 The fact that nearly everyone would consider such schemes of punishments grotesque despite 278 00:25:26.780 --> 00:25:31.940 their fulfillment of the deterrence criterion shows that people are interested in something 279 00:25:31.940 --> 00:25:35.300 more important than deterrence. 280 00:25:35.300 --> 00:25:41.420 What this may be is indicated by the overriding objection that these deterrent scales of punishment 281 00:25:41.420 --> 00:25:48.060 or the killing of an innocent man clearly invert our usual view of justice. 282 00:25:48.060 --> 00:25:53.340 Instead of the punishment fitting the crime, it is now graded in inverse proportion to 283 00:25:53.340 --> 00:25:58.940 its severity, or is meted out to the innocent rather than the guilty. 284 00:25:58.940 --> 00:26:04.740 In short, the deterrence principle implies a gross violation of the intuitive sense that 285 00:26:04.740 --> 00:26:11.100 justice connotes some form of fitting and proportionate punishment to the guilty party, 286 00:26:11.100 --> 00:26:13.780 and to him alone. 287 00:26:13.780 --> 00:26:20.620 The most recent, supposedly highly humanitarian, criterion for punishment is to rehabilitate 288 00:26:20.620 --> 00:26:22.220 the criminal. 289 00:26:22.220 --> 00:26:27.780 Old-fashioned justice, the argument goes, concentrated on punishing the criminal, either 290 00:26:27.780 --> 00:26:31.720 in retribution or to deter future crime. 291 00:26:31.720 --> 00:26:37.540 The new criterion humanely attempts to reform and rehabilitate the criminal. 292 00:26:37.540 --> 00:26:43.260 But on further consideration, the humanitarian rehabilitation principle not only leads to 293 00:26:43.260 --> 00:26:50.020 to Arbitrary and Gross Injustice. It also places enormous and arbitrary power to decide 294 00:26:50.020 --> 00:26:56.500 men's fates in the hands of the dispensers of punishment. Thus suppose that Smith is a 295 00:26:56.500 --> 00:27:02.540 mass murderer, while Jones stole some fruit from a stand. Instead of being sentenced in 296 00:27:02.540 --> 00:27:08.420 proportion to their crimes, their sentences are now indeterminate, with confinement ending 297 00:27:08.420 --> 00:27:12.500 depending upon their supposedly successful rehabilitation. 298 00:27:12.500 --> 00:27:17.620 But this gives the power to determine the prisoner's lives into the hands of an arbitrary 299 00:27:17.620 --> 00:27:21.380 group of supposed rehabilitators. 300 00:27:21.380 --> 00:27:27.480 It would mean that instead of equality under the law, an elementary criterion of justice, 301 00:27:27.480 --> 00:27:33.060 with equal crimes being punished equally, one man may go to prison for a few weeks if 302 00:27:33.060 --> 00:27:38.560 if he is quickly rehabilitated, while another may remain in prison indefinitely. 303 00:27:38.560 --> 00:27:44.840 Thus, in our case of Smith and Jones, suppose that the mass murderer Smith is, according 304 00:27:44.840 --> 00:27:48.880 to our board of experts, rapidly rehabilitated. 305 00:27:48.880 --> 00:27:55.040 He is released in three weeks, to the plaudits of the supposedly successful reformers. 306 00:27:55.040 --> 00:28:00.680 In the meanwhile, Jones, the fruit-stealer, persists in being incorrigible and clearly 307 00:28:00.680 --> 00:28:05.940 be unrehabilitated, at least in the eyes of the expert board. 308 00:28:05.940 --> 00:28:10.800 According to the logic of the principle, he must stay incarcerated indefinitely, perhaps 309 00:28:10.800 --> 00:28:17.040 for the rest of his life, for while the crime was negligible, he continued to remain outside 310 00:28:17.040 --> 00:28:21.720 the influence of his humanitarian mentors. 311 00:28:21.720 --> 00:28:25.520 Thus Professor K. G. Armstrong writes of the reform principle, 312 00:28:25.520 --> 00:28:37.520 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. 313 00:28:37.520 --> 00:28:50.520 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. 314 00:28:50.520 --> 00:29:13.880 Never has the tyranny and gross injustice of the humanitarian theory of punishment as 315 00:29:13.880 --> 00:29:19.740 reform been revealed in more scintillating fashion than by C. S. Lewis. 316 00:29:19.740 --> 00:29:26.540 Quoting that the reformers call their proposed actions healing or therapy rather than punishment, 317 00:29:26.540 --> 00:29:31.180 Lewis adds, but do not let us be deceived by a name. 318 00:29:31.180 --> 00:29:37.300 To be taken without consent from my home and friends, to lose my liberty, to undergo all 319 00:29:37.300 --> 00:29:43.100 those assaults on my personality which modern psychotherapy knows how to deliver, to know 320 00:29:43.100 --> 00:29:49.400 Know that this process will never end until either my captors have succeeded or I grown 321 00:29:49.400 --> 00:29:53.140 wise enough to cheat them with apparent success. 322 00:29:53.140 --> 00:29:56.780 Who cares whether this is called punishment or not? 323 00:29:56.780 --> 00:30:02.820 That it includes most of the elements for which any punishment is feared—shame, exile, 324 00:30:02.820 --> 00:30:07.140 bondage and years eaten by the locust—is obvious. 325 00:30:07.140 --> 00:30:13.240 The enormous ill desert could justify it, but ill desert is the very conception which 326 00:30:13.240 --> 00:30:18.400 the humanitarian theory has thrown overboard. 327 00:30:18.400 --> 00:30:23.160 Lewis goes on to demonstrate the particularly harsh tyranny that is likely to be levied 328 00:30:23.160 --> 00:30:30.220 by humanitarians out to inflict their reforms and cures on the populace. 329 00:30:30.220 --> 00:30:37.180 Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. 330 00:30:37.180 --> 00:30:42.900 It may be better to live under robber barons than under omnipotent moral busybodies. 331 00:30:42.900 --> 00:30:49.420 The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated. 332 00:30:49.420 --> 00:30:55.300 But those who torment us for our own good will torment us without end, for they do so 333 00:30:55.300 --> 00:30:58.520 with the approval of their own conscience. 334 00:30:58.520 --> 00:31:03.220 They may be more likely to go to heaven, yet at the same time, likelier to make a hell 335 00:31:03.220 --> 00:31:05.100 of earth. 336 00:31:05.100 --> 00:31:09.280 This very kindness stings with intolerable insult. 337 00:31:09.280 --> 00:31:15.620 To be cured against one's will, and cured of states which we may not regard as disease, 338 00:31:15.620 --> 00:31:20.320 is to be put on a level of those who have not yet reached the age of reason, or those 339 00:31:20.320 --> 00:31:26.220 who never will, to be classed with infants, imbeciles, and domestic animals. 340 00:31:26.220 --> 00:31:31.460 But to be punished, however severely, because we have deserved it, because we ought to have 341 00:31:31.460 --> 00:31:37.420 known better, is to be treated as a human person, made in God's image. 342 00:31:37.420 --> 00:31:43.700 Furthermore, Lewis points out, the rulers can use the concept of disease as a means 343 00:31:43.700 --> 00:31:50.260 for terming any actions that they dislike as crimes, and then to inflict a totalitarian 344 00:31:50.260 --> 00:31:53.620 rule in the name of therapy. 345 00:31:53.620 --> 00:31:59.140 For if crime and disease are to be regarded as the same thing, it follows that any state 346 00:31:59.140 --> 00:32:07.300 of mind which our masters choose to call disease can be treated as crime and compulsorily cured. 347 00:32:07.300 --> 00:32:12.700 It will be vain to plead that states of mind which displease government need not always 348 00:32:12.700 --> 00:32:18.860 involve moral turpitude and do not therefore always deserve forfeiture of liberty. 349 00:32:18.860 --> 00:32:25.060 For our masters will not be using concepts of dessert and punishment, but those of disease 350 00:32:25.060 --> 00:32:26.660 and cure. 351 00:32:26.660 --> 00:32:29.300 It will not be persecution. 352 00:32:29.300 --> 00:32:34.340 Even if the treatment is painful, even if it is lifelong, even if it is fatal, that 353 00:32:34.340 --> 00:32:36.940 will be only a regrettable accident. 354 00:32:36.940 --> 00:32:39.980 The intention was purely therapeutic. 355 00:32:39.980 --> 00:32:45.860 Even in ordinary medicine there were painful operations and fatal operations, so in this. 356 00:32:45.860 --> 00:32:51.340 And because they are treatment, not punishment, they can be criticized only by fellow experts 357 00:32:51.340 --> 00:32:59.220 and on technical grounds, never by men as men and on grounds of justice. 358 00:32:59.220 --> 00:33:05.100 Thus we see that the fashionable reform approach to punishment can be at least as grotesque 359 00:33:05.100 --> 00:33:11.020 and far more uncertain and arbitrary than the deterrence principle. 360 00:33:11.020 --> 00:33:17.300 Man remains as our only just and viable theory of punishment, and equal treatment for equal 361 00:33:17.300 --> 00:33:21.980 crime is fundamental to such retributive punishment. 362 00:33:21.980 --> 00:33:28.020 The barbaric turns out to be the just, while the modern and the humanitarian turn out to 363 00:33:28.020 --> 00:33:30.820 to be grotesque parodies of justice.