Crime and Punishment

This is in response to Michael Moeller's Post 24 under "Determinism and Free Will" in the Dissent forum. I've moved the discussion here, because I think the subject deserves a separate thread. There I wrote,

"You are dropping context--the context of protecting and preserving people's rights, which is the purpose of punishment. If its purpose is to deter a violation of rights, then the punishment cannot involve a violation of those rights, which a disregard of proportionality would entail. That doesn't mean that deterring a violation of rights cannot be the purpose of punishment. What other purpose could there be? The goal of punishing the guilty is to protect the innocent--to prevent and discourage the criminally inclined from violating their rights."

Michael replied, "That's what I am saying, Bill, the purpose is not to deter. The primary purpose is to impose punishment for harm done to another individual, whether or not this has a deterrent effect on the criminal's future actions."

Isn't this circular? You're saying that the primary purpose for punishing those who harm another individual is to impose punishment for harm done to another individual. So what is the purpose of imposing punishment for harm done to another individual?

You continue, "Do you see the difference? Deterrence is focused on the future actions of the criminal--i.e. what he will do as a result of the punishment. The tie to individual rights is severed--i.e. one individual's actions harming the rights of another individual-- which is the basis for justice."

What do you mean, "The tie to individual rights is severed..."? I don't see the connection.

You continue, "Whether or not a person is deterred in the future, they should be punished for the harm already done to an individual--this is the primary purpose, Bill. You are providing a very mixed bag here."

Again, your answer begs the question. The question is, WHY should a person be punished for the harm done to an individual? That's what we want to know. To say that he should be punished for the harm done to an individual doesn't answer that question.

You write, "I am not sure you are familiar with the different schools of punishment, but the deterrence school of punishment (in law) is referred to as "consequentialism" or "utilitarian". One the greatest problems with this school of thought is free will."

And I would say that one of the greatest problems for the free will school of thought is the deterrence school of punishment, since deterrence is the only legitimate reason for punishment. If punishment had absolutely no deterrent effect--if it did not, at least to some extent, prevent crimes from being committed, then there would be no point to it; it would be an act of sheer brutality.

You write, "Criminals are free to ignore the consequences of their actions and they usually do. Generally, criminals are a relatively small minority falling in an age range between late teen's and thirty, and when they are out of prison, commit something like 15 crimes/year, and then go right back to prison. Why? Because criminals act on whim, the future has no meaning to them--they want it and they want it now."

You're assuming that other potential criminals have not been deterred. I realize that the recidivism rate is high among a certain class of scofflaws--those who were not deterred, to begin with. But that does not mean that other would-be criminals are not themselves deterred by the prospect of punishment.

You continue, "Without getting into it too deeply, the deterrence school advocates all kinds of crazy punishment schemes, which are a result of severing the tie to the harm done to the individual. THIS is what you need to keep in focus when talking about individual rights and punishment, Bill, not the future effects upon a criminal's actions--punishment may have an effect, but usually does not. And the punishment stands in proportion to the harm done to another individual, NOT in accordance with the impact punishment will have on the criminal's future actions (i.e. deterrence)."

Okay, why should punishment stand in proportion to the harm done to another individual? You state this as if it were a self-evident fact and an irreducible primary. What is accomplished by punishing someone in proportion to the harm done to his victim?

- Bill

Post 1

Wednesday, November 23, 2005 - 7:37pm

"If punishment had absolutely no deterrent effect--if it did not, at least to some extent, prevent crimes from being committed, then there would be no point to it; it would be an act of sheer brutality." -- Bill Dwyer

Perhaps you are thinking of punishment only in terms of physical harm. (Unless, you want to include imprisonment as part of 'sheer brutality'. Given the state of prisons, one could make a case, but I don't think that's what you intend.)

The primary purpose of punishment, of whatever sort, is the implementation of justice. Deterrence is important, but secondary.

Post 2

Wednesday, November 23, 2005 - 8:37pm

Hi Jeff:

primary purpose of punishment, of whatever sort, is the implementation of justice. Deterrence is important, but secondary.

What do you mean by "implementation of justice"? Sometimes it means "treating similarly cases similarly; different cases differently, or "granting the earned and withholding the unearned, or even more generally just "giving those what they deserve." And how does your view apply to punishment?

Jordan

Post 3

Wednesday, November 23, 2005 - 8:48pm

Thank you, Jeff, THANK YOU. That's exactly what I wrote in a previous post, that it is a "secondary consequence". Bill, I never said that deterrence doesn't play a role, but whether or not a criminal is deterred from future action is NOT primary. The primary reason for punishment is for the violation of another's individual rights.

Bill, maybe I can simplify it another way. Say, for instance, that one man harmed another and there was no chance that he would do it again, would you punish him? Let me make it even clearer, what if the person committing the harm was Stalin and henceforth he would retire to the south of France never to commit another crime, would you still punish him? Unresoundingly YES!! Is the punishment a "sheer act of brutality"? NO!!!The punishment stems primarily from the harm he caused, he is receiving his "just desserts" so to speak.

Regards,
Michael

Post 4

Wednesday, November 23, 2005 - 10:13pm

I thought that the proper function of the government was primarily to use physical force to protect men's rights. (I get this rather heretical view from a source which seems to have been overlooked in the present discussion: "The Nature of Government," The Virtue of Selfishness, p. 131.)

And using force to protect rights in regard to a convicted criminal consists not of detering crime or giving him his "just deserts" (not to mention desserts!), but two things and two things only: forcing the criminal to pay restitution to his victim and forcibly confining him if there is any likelihood that he will commit further violations of rights.

We use force against criminals, in other words, to force them to repair the damage they have done (if possible) and to forcibly restrain them from doing more damage. This defends the rights of the victim and the rights of potential future victims. This is the proper role of government's criminal justice system, not "punishing" (causing suffering to) the criminal.

If detering crime were the purpose, then incarcerating those not likely to repeat their crime would be unjust. If visiting suffering or other negative consequences on a criminal were the purpose, it could be served just as well by shunning, ostracizing, or otherwise non-coercively isolating him, without incarceration.

In my opinion, if "punishment" goes beyond what is needed to provide restitution to the victim (when possible) and to shield everyone from criminals who are dangerous and/or likely repeat offenders, then it is illegitimate. Needless to say, imprisoning people like pot smokers and/or (?) Martha Stewart is a gross miscarriage of justice.

Best regards,
Roger Bissell

P.S. -- It occurs to me that criminals also ought to be liable for the government's police, court, and penal costs in relation to his crime. But we might be talking about blood from turnips here...

Post 5

Wednesday, November 23, 2005 - 11:21pm

     At this point, I'm finding it hard to believe that I'm agreeing with most of Roger's ideas.

     'Deter' crime should not be the main focus of a community's police-institution (which includes courts and prisons).

     Protecting it's law-abiding citizens should be the Primary focus of the 'field' police.

     The police-institution's Secondary focus should be (legislatively) establishing the rules for, (and, for the 'field', enforcing) restitution to what degree is possibly 'commensurable' (a tricky area in itself, where what it consists of becomes debatable.)

     The Tertiary focus should be on determining, and enforcing, the proper 'punishment' for perps (as some might say: 'paying Interest' for the Principal-of-time/effort/energy taken from the victim, given all 'material' replaced adequately).

     Mere 'spending time' in a prison, restricted from the liberty one once had (as most others still have) is, historically, clearly inadequate; more to my point, it's even worse than that.

     I understand that the Quakers tried a 'seclusionary' style prison a while back, and found it to result in prisoner-consequences beyond what the Quakers themselves could stand. They had all prisoners, for the most part, in effect, in 'solitary.' No 'communal' gatherings (allowing 'gangs' to communicate) allowed, but, too many prisoners showed too much increase in symptoms of insanity. --- Regardless, I'd opt for handling prisoners that way, 'solitary', (if such could be economically done; 'monitoring' 24/7 for so many could get expensive, community-wise), if 'community-service' was considered more expensive.

     Really, this whole subject has to do with "HOW SHOULD 'PRISONS' BE RUN?" than 'punishment' per se. Prison is definitionally 'punishment'. --- Unless the question is asking about, other than 'restitution' being appropriate, maybe, 'personal revenge' (from the victims...or their dependents?)  This is getting into deep territory; especially since *I* see a properly allowable place in "justice" for revenge...to a point.

     Not really making any 'argument' here; just throwing out some thoughts.

LLAP
J:D

Post 6

Thursday, November 24, 2005 - 8:48am

Roger writes:

I thought that the proper function of the government was primarily to use physical force to protect men's rights. (I get this rather heretical view from a source which seems to have been overlooked in the present discussion: "The Nature of Government," The Virtue of Selfishness, p. 131

Yes, Roger, it is. And part of that protection includes enforcement, that is the question we are dealing with. In other words, when a criminal transgresses against another's rights, what is the government's role for enforcing the victim's rights? What type of punishment is proper when rights have been violated? Roger, you don't see this as consistent with protecting men's rights? If you want further explication from AR herself try her tape on Objective Law, she incorporates many things, among these the proportionality principle.

Roger writes:

And using force to protect rights in regard to a convicted criminal consists not of deterring crime or giving him his "just deserts" (not to mention desserts!), but two things and two things only: forcing the criminal to pay restitution to his victim and forcibly confining him if there is any likelihood that he will commit further violations of rights.

We use force against criminals, in other words, to force them to repair the damage they have done (if possible) and to forcibly restrain them from doing more damage. This defends the rights of the victim and the rights of potential future victims. This is the proper role of government's criminal justice system, not "punishing" (causing suffering to) the criminal.

Roger, first of all, what exactly do you mean by pay restitution? How would the government parcel out punishments under this scheme? Besides, tort remedies already exist for damage done by one individual to another.

Secondly, there is NO "if there is any likelihood" that the person creates future crimes, then you confine. This takes the focus of the victim who had his individual rights violated. Just see my Stalin example, which is not that far-fetched as many dictators have "retired" under such circumstances (Idi Amin comes to mind). And even though they may have never committed another crime, the bodies they piled up is enough to deserve punishment, don't ya think?

If deterring crime were the purpose, then incarcerating those not likely to repeat their crime would be unjust. If visiting suffering or other negative consequences on a criminal were the purpose, it could be served just as well by shunning, ostracizing, or otherwise non-coercively isolating him, without incarceration.

Good lord, Roger. How well do you think "shunning" or "ostracizing" or "non-coercively isolating" would work with the DC sniper or the Boston Strangler or the millions of violent criminals who would roam the streets looking for victims? Do you think the victims of these criminals who remain on the loose will agree that "shunning" is "served just as well" as incarceration? Hell, just ask the current victims of criminals who are released and continue to commit something like 15 crimes/year.

I don't know why you keep saying "suffering", that's not the point. The point is to confine them so they cannot commit more crimes, to restrict their freedom of action in accordance with the crime they have committed (the proportionality principle)--i.e. let the punishment fit the crime.

In my opinion, if "punishment" goes beyond what is needed to provide restitution to the victim (when possible) and to shield everyone from criminals who are dangerous and/or likely repeat offenders, then it is illegitimate. Needless to say, imprisoning people like pot smokers and/or (?) Martha Stewart is a gross miscarriage of justice.

First of all, these are bad examples. It is not the type of punishment visited on pot smokers or Martha Stewart or whether or not they will commit future crimes (generally pot smokers keep smoking pot anyway), the injustice is that they should never have been subjected to punishment in the first place. They violated nobody's rights, hence no punishment.

Roger, I agree with the "shielding" part if by that you mean incarceration, not "shunning" or "non-coercive isolation". You mentioned *Market for Liberty* on the other thread and I can't help but think that is where you got the whole "restitution" and "shunning" bit--it smacks of that book. Although, I don't quite picture you as an anarcho-libertarian, otherwise you would not have brought up the proper role of government. Gotta love the whole anarcho-libertarian approach to crime and protecting the rights of individuals, the stuff is pure comedy.

In terms of funding, I don't think you want the system's functioning dependent on funding from the worst violators who never have the means to pay for it in the first place. Since law-abiding citizens stand to benefit from this service, don't you think they should pay for it? I, for one, would be eager to pay for the government to protect my rights if the funding were strictly voluntary--I wouldn't aim to get this service for free.

Best Regards,
Michael

Post 7

Thursday, November 24, 2005 - 1:48pm

I wrote, "If punishment had absolutely no deterrent effect--if it did not, at least to some extent, prevent crimes from being committed, then there would be no point to it; it would be an act of sheer brutality."

Jeff Perren replied, "Perhaps you are thinking of punishment only in terms of physical harm. (Unless, you want to include imprisonment as part of 'sheer brutality'. Given the state of prisons, one could make a case, but I don't think that's what you intend.)"

No, I was thinking of it in terms of any penalty levied against the criminal, including incarceration and even fines.

You wrote, "The primary purpose of punishment, of whatever sort, is the implementation of justice. Deterrence is important, but secondary."

To say that the primary purpose of punishment is the implementation of justice is vacuous and circular. It's like saying, the primary purpose of punishment is to administer a just punishment. Well, of course! Who would disagree with that?! What we want to know is, what properly constitutes a just punishment! I.e., what is just punishment and why is it just? Is it just insofar as it prevents further crimes--the deterrent school--or is it just because it imposes on the criminal a consequence proportional to the degree of harm that he inflicted on his victim--the retribution school?

You say that deterrence is important but secondary. But if there were no deterrent effect either on the criminal or on others who might be deterred by the prospect of receiving a similar punishment, what could possibly justify such a punishment? Nothing would be accomplished by it. The criminals' behavior wouldn't be changed; fewer people wouldn't be victimized. The only result would be one of harm, deprivation or suffering to the criminals themselves.

Roger mentioned restitution, but I don't consider restitution as being a penalty or a form of punishment. It is simply making the victim whole again. A punishment or penalty is something over and above restitution, and has as its purpose to protect people from being victimized in the future. Incarceration can serve as a deterrent in two ways: (1) by preventing the criminal from victimizing others while he is behind bars, and (2) by discouraging him and others from committing similar acts when they have the opportunity.

Michael Moeller wrote, "The primary reason for punishment is for the violation of another's individual rights."

Again, this begs the question. Of course, that's what you're punishing someone FOR--for the violation of another's rights. What we want to know is, what is the JUSTIFICATION for punishing someone for violating another's rights?

Michael wrote, "Bill, maybe I can simplify it another way. Say, for instance, that one man harmed another and there was no chance that he would do it again, would you punish him?"

Yes, because doing so would deter other would-be criminals.

Michael continued, Let me make it even clearer, what if the person committing the harm was Stalin and henceforth he would retire to the south of France never to commit another crime, would you still punish him?"

Yes, for the same reason: doing so could serve as a deterrent to other would-be criminals or dictators. But, let's say, hypothetically and for the sake of argument, that it wouldn't-- that there was no chance that anyone else would be deterred from similar crimes. Then I would say that there is no reason to punish Stalin. Let him retire to the south of France never to commit another crime. The only reason this conclusion does not sit well with us is that there is a natural desire for revenge; we WANT to harm someone for the harm that he has done to others; we want to get back at him: an eye for an eye, we say! But if we stop to think about it, that's not a good reason, because it doesn't accomplish anything, except to inflict more harm, this time on the perpetrator.

Apparently, Michael disagrees, for his answer is, "Unresoundingly YES!! Is the punishment a "sheer act of brutality"? NO!!! The punishment stems primarily from the harm he caused, he is receiving his 'just desserts' so to speak."

If I understand Michael correctly, he is saying that even if no one is deterred--not the criminal nor anyone else--from committing similar crimes, the punishment would still be warranted, because the criminal would be getting his "just desserts." Actually, it's "just deserts"; Michael may be thinking of the bakery. Giving the criminal his "just desserts" is not exactly a form of punishment! "For your punishment, Sir, you are sentenced to eat five chocolate eclairs, courtesy of Just Desserts!")

Seriously, "just deserts" cannot be a justification, because, again, as a standard of justice, it is vacuous and circular. It's just another way of saying that the criminal should be punished, because he justly deserves it. Well, yeah! The question is: WHY does he deserve it?

- Bill

Post 8

Thursday, November 24, 2005 - 4:07pm

Bill,
Because he knowingly harmed an innocent individual, violated his or her rights, did some other unjust action, etc. Because without the response, justice is not served. And justice is needed by humans. That's the kind of creatures they are. How much justification, (pun intended) and of what sort, do you need? There's nothing vacuous or circular about the argument if you remember what justice is. (And, no, I'm not looking for someone to parrot Rand's words to me here. I'm suggesting you look at concrete facts.) The argument is inductive.

Does the self-interest of an individual living in social arrangement with other men require administration of justice in order to live properly? Yes or no? The answer is yes -- as we know from induction. Does (certain kinds of) punishment serve this end -- yes, or no? The answer is yes -- as we know from induction.

How complicated does the answer need to be? Or are you asking, which specific types of administrative acts are just? (I.e. are you looking for a meta-ethical answer -- the question being what justifies administering punishment -- or an ethical answer -- the question being which punishments are just?)

You seem to be looking for some grand societal, or at any rate other-directed, benefit as primary justification. But, perhaps I've misread you. Are you thinking only of punishment in the context of the legal system? (Granted the title of the thread is 'Crime and Punishment'). Maybe I missed something having given up on following the Determinism thread.

I'll respond in more detail to your other points later.

But that leaves me to answer Jordan's question about what justice is. Which I'll make a sincere effort to take up tomorrow. It deserves a well-thought out reply and I'm a bit behind schedule today.

Post 9

Thursday, November 24, 2005 - 9:42pm

Jeff addressed my question of why a criminal justly deserves punishment by replying, "Because he knowingly harmed an innocent individual, violated his or her rights, did some other unjust action, etc."

I guess I wasn't sufficiently clear. My question was, why does he justly deserve punishment for violating someone's rights. You can't respond to the question as to why a criminal deserves to be punished for violating someone's rights by answering, "Because he knowingly violated someone's rights." That's what I was saying is question begging.

You ask, "Does the self-interest of an individual living in social arrangement with other men require administration of justice in order to live properly? Yes or no? The answer is yes -- as we know from induction. Does (certain kinds of) punishment serve this end -- yes, or no? The answer is yes -- as we know from induction."

I agree, but the reason for that is that punishment deters crime and protects people's rights from being violated. If it didn't do that, then there would be no reason for punishment in the first place.

- Bill

Post 10

Thursday, November 24, 2005 - 9:53pm

Bill writes:

Actually, it's "just deserts"; Michael may be thinking of the bakery. Giving the criminal his "just desserts" is not exactly a form of punishment! "For your punishment, Sir, you are sentenced to eat five chocolate eclairs, courtesy of Just Desserts!")

Ok, ok. You and Roger have had your fun with my one letter mistake, you obviously know what I meant. Bill, I would suggest examining the 2 major schools of punishment theory (consequentialism and retributivism) and what premises they are based on--that is how I came to my conclusions. I also remember that Robert Bidinotto wrote a very good essay on this topic and it was close to my position (I think it came from his book on criminal justice). Peikoff's treatment was also ok, although he bought into the "rehabilitation" aspect of punishment, which for the most part I reject. At any rate, you seem to be looking for some wider social significance, in my book the primary significance you need to be concerned with is the violation of an particular individual's rights. Period. End of Story. More later.

Post 11

Friday, November 25, 2005 - 12:33am

I wrote, "Actually, it's 'just deserts'; Michael may be thinking of the bakery. Giving the criminal his 'just desserts' is not exactly a form of punishment! 'For your punishment, Sir, you are sentenced to eat five chocolate eclairs, courtesy of Just Desserts!')"

Michael replied, "Ok, ok. You and Roger have had your fun with my one letter mistake, you obviously know what I meant."

I guess I should have appended a happy face to my jocular comments, which were purely in jest, no ridicule intended. Nor was I aware that Roger had made a similar comment. I was just making a good-natured joke, so I didn't mean to rub you the wrong way, Michael, if I did. At any rate, you wrote,

"Bill, I would suggest examining the 2 major schools of punishment theory (consequentialism and retributivism) and what premises they are based on--that is how I came to my conclusions. I also remember that Robert Bidinotto wrote a very good essay on this topic and it was close to my position (I think it came from his book on criminal justice). Peikoff's treatment was also ok, although he bought into the "rehabilitation" aspect of punishment, which for the most part I reject."

He did? I was not aware of that. At any rate, here is what he said in OPAR, with which I tend to agree:

"The 'retributivists' in the history of philosophy declare that a man must be recompensed for his actions independent of their consequences; he must be recompensed as an absolute simply because he deserves a certain treatment. The Utilitarians (who control the criminal justice system) reply that there are no absolutes and that the decision to reward or punish must be based not on deserts but on probably consequences. Here again we see the false alternative of intrinsicism vs. subjectivism. "Desert" is essential to justice; but it is a moral concept, and morality is a means to an end[!!]. All virtues, accordingly, justice included, must be validated by references to consequences[!!]. But consequences--the long-range consequences of an action for human life--can be predicted only by means of principles, and principles can perform this function only if accepted as absolutes. Desert, therefore, as the one school insists, is an absolute--but only because, as the other schools says, the test of virtue is its results. Here, as elsewhere it is senseless to introduce a dichotomy between principle and life, or between morality and practicality." (pp. 283-284)

Do you disagree with this, Michael?

- Bill

Post 12

Friday, November 25, 2005 - 6:09am

Bill,
Thank you for clarifying. I submit that it's not question begging when I answer
"why does he justly deserve punishment for violating someone's rights[?]"
with:
"Does the self-interest of an individual living in social arrangement with other men require administration of justice in order to live properly?... The answer is yes."

since I take pursuit of self-interest to be at or near the base of the question. But I certainly could have been clearer.

In any case, I disagree that deterrence is as important [primary?] as you, but I personally prefer not to pursue that aspect of the debate any further at present.

Post 13

Friday, November 25, 2005 - 7:35am

I'll chime in as a member of the deterrence camp. My primary concern in the consequences of crime is to make the victims whole, i.e., to restore them to a position they would've been in had the crime not been committed. (I know this is difficult to meet, but that's a side issue.) In this sense, deterrence is indeed a secondary issue because. However, I would further argue that retribution is likewise secondary, if anything.

I'll ask all the retributivists here (everyone except Dwyer and me, I guess): If the victim is made whole through restitution, and if punishing the criminal had no effect on whether future crimes would be committed, then why punish the criminal?

For those who might want to take the position that retribution is a form of restitution, I further ask: If punishing the criminal does not help make the victim whole -- or worse, if it further harms the victim -- then why punish the criminal?

Jordan

(Edited by Jordan on 11/25, 7:36am)

Post 14

Friday, November 25, 2005 - 10:40am

Seeing the motherfucker punished would me feel great, as a victim. Feeling great�that is part of making me whole, for it was his crime that is making me feel so bad. If the legal system doesn�t punish him, then I will�and we will have chaos. Therefore, we must a justice system that hurts the bad guys, or victims like me will run wild hurting them ourselves. I guess this makes me a retributivist. I couldn�t care less if deterrence obtains or not, I was to see him hurt so I can get back to feeling good.

Jon

Post 15

Friday, November 25, 2005 - 10:49am

Setting up a dichotomy between retributivism (deserts) and consequentialism (results) is a very bad idea for anyone wanting to stay in tune with ethical egoism a la Rand. If we are all serious about and in agreement with the lesson Ayn Rand taught us in "Duty vs. Causality," then no one should be advocating punishment of criminals "because they deserve it." This is Kantianism, pure and simple -- the categorical imperative that we should punish criminals because of what they did, without any eye to consequences or goals that one wants to achieve. Instead, as Randians, we should aim at some form of conditional imperative: "If we want to achieve X, then we should punish criminals because of what they did."

Now, the particular conditional imperative favored by advocates of deterrence may not be the correct one, but at least they are in the ballpark: "If we want to protect individual rights, then we should deter future criminal acts by punishing criminals for what they did." My own leaning (expressed above) is toward prevention of future criminal acts by the criminal: "If we want to protect individual rights, then we should prevent future criminal acts by criminals by incarcerating them for what they did." (I wouldn't call this deterrence, because deterrence specifically of the criminal implies changing the mental state of the criminal so that he is less likely to commit a crime in the future. Incarcerating him actually does more than this: it (ideallty) prevents him from committing a crime while incarcerated, even though it may not change his mental state.)

Retributivists, to avoid the Kantian trap, ought to be thinking about what goal they wish to achieve by advocating punishment. Is it something like: "If we want to implement the principle of justice, then we should punish criminals for what they did"? (That's what I keep hearing.) If so, then I ask: what would be so bad about not implementing that principle via punishment? Does it mean that society will become a more dangerous place to live, where we are more subject to rights violations? If so, then we are looking at what is, fundamentally, a conditional imperative, a consequentialist basis for punishment, not a "just because they deserve it" retributivist rationale. If not, then what? If we don't implement justice with punishment, does it mean that we are "unjust people"? Oooh, don't want to be an unjust person. But what is so bad about that? Obviously, being unjust undermines one's ultimate value of rational living and happiness. That's about the most I can make out of retributivism.

However, that is not what government is for! It is not for the purpose of implementing the principle of "giving each man what he deserves," which for criminals supposedly means pain and suffering and loss of liberty. It is for the purpose of using force to defend our rights, pure and simple. That means that treatment of criminals must be aimed at restitution to the victim (to the extent possible) and protection of all individuals against future violations by the criminals. If we want those things, that is why we should "punish" criminals -- i.e., extract restitution from them and lock them up so they can't hurt others.

REB

Nor is the use of government force in punishing criminals for the purpose of keeping us from running amok by making us "feel better" as Jon suggests above. Good grief! Naked revenge?

(Edited by Roger Bissell on 11/25, 10:52am)

Post 16

Friday, November 25, 2005 - 11:26am

Jon,

I don't know how far your post can be taken into a legal or moral principle, but you expressed my sentiment exactly.

Bonk.

Let the person wronged forgive if he/she so pleases, not the government. Let the government hand out justice.

My own position is for both retribution and rehabilitation (if at all possible) side-by-side. One not usurping the other. It's a common sense thing.

Michael

Post 17

Friday, November 25, 2005 - 12:15pm

Roger,

Great work on deconstructing that dichotomy.

Justice is a relation, not a Platonic ideal. Justice is the rationally predictable consequence of one's actions. Part of justice is what rational men will find it in their (rational self-)interest to do in response to one's actions. Therefore on cannot demonstrate that a punishment is just, without demonstrating first why it is in the interest of rational men to inflict that punishment on the criminal.

There is no contradiction between Justice and self-interest. The latter includes deterrence, prevention of additional crimes, restitution, and whatever contribution the criminal's punishment makes to the psychological recovery of the victim. It is because all of the latter are in the interest of rational men to inflict on the criminal, that they are a predictable consequence of the crime - and it is because they are a predictable consequence of the crime in reality, that punishments constitute Justice.

Post 18

Friday, November 25, 2005 - 12:58pm

Bill writes:

I guess I should have appended a happy face to my jocular comments, which were purely in jest, no ridicule intended. Nor was I aware that Roger had made a similar comment. I was just making a good-natured joke, so I didn't mean to rub you the wrong way, Michael, if I did.

No, you didn't rub me the wrong way. I thought it was funny, it made me laugh. I was just saying: "Haha, ok let's been done with the 'desserts' jokes".

Peikoff has a lecture on tape called "What to do About Crime" given in 1995 after OPAR. He did more research for this talk. Check it out.

Yes, both schools are wrong, Bill, which includes the consequentialism (utilitarian) justifications that you are partially endorsing. That's why I said study them so you can see that each is wrought with collectivism, that's how I found out in Criminal Law class (I hope you didn't think I was endorsing traditional retributivism). To give Peikoff's quote more context, retributivism (Kantian style) seeks to sacrifice individuals to the moral principle of "justice", not justice tied to any harm inflicted upon an individual human by a criminal. They call their brand of justice "social justice". Utilitarians on the other hand look forward to future actions (via deterrence, rehabilitation, prevention) of the would-be criminals. Their allegiance is not to individual victims, but to yet-to-be victims of possible-future actions--i.e. not individual victims but crime rates. They speak of the "social utility" of punishment. Isn't the collectivism of both of these obvious?

What's missing? The harm done to the individual victim and that each criminal should be treated according to the actions he has committed. Vacuous and circular? Bill, what the HELL are you talking about? You seem to be searching for some wider justification. Why is the fact that an individual harmed another not enough for you? The criminal is being treated according to his actions, he is held responsible for the harm he caused, what more do you need? "Just deserts" applied not to some categorical imperative, but tied to individual criminal and his victim is perfectly valid.

In your search for some wider justification you are straying into the collectivist land of "social utility" (without realizing it). And I don't even want to get into the blatant subjectivity of utilitarian strategies, the worst among these is the alleged "preventative laws". You noted one earlier with the curfew example and then rescued yourself by an appeal to a system based on individual rights. Sundry collectivists make no such appeal (and they dominate the justice system). If they totally had their way I am sure they would send violent criminals to garden rest homes to be "rehabilitated" by a bunch of feel-good-Dr. Phil-type psychologists. Puke.

Jordan,
I'll answer both of your questions with perhaps the most obvious example around--OJ Simpson. There is probably no likelihood that he will commit another violent crime (although he did get busted stealing cable TV) and he lost a wrongful death case against Nicole's family that forced him to pay millions in "restitution". Does this strike you as justice? How about making the victim "whole" again? I don't have a problem with restitution per se, I think it can be part of an overall strategy, but one that is primarily based on incarceration. If justice system forces criminals to work while in jail and to pay for their harm, then fine. Besides, the law already provides for some measure of restitution via torts (which are being turned into an abomination as well, but that is a topic for another day).

Roger,
You are right about Kant and the categorical imperative (I outline the problems with both traditional schools of punishment in my response to Bill). There is no "naked revenge" and it is not to make us "feel better", it is to hold the criminal responsible for actions. Then, you ask, "what would be wrong with not using punishment" for actions the criminal already committed? Jesus, Roger, you mean criminals should not be held responsible for the consequences of their actions, for their harm to another individual? The justification should be their possible-future actions and not the ones they have already committed? They should roam the streets freely just like any law-abiding individual and this will not make a difference in safety? (Long whistle). While locked up Roger, obviously they are prevented from committing further harm, but it should not extend beyond the harm that they have committed (proportionality principle). Secondly, one cannot tell if they will continue to commit future harmful actions. They should bear the consequences (of the harm they committed) and if they get out and continue to do the same, then they get locked up again. The punishment is telling the criminal that he will cannot benefit from the harm he caused and that such harm brings consequences. Please, please, Roger, don't tell me the same purpose is served with "shunning" or "ostracizing" or "non-coercive isolation" as is served by incarceration--that is so far removed from reality I am not sure it even deserved comment in the first place.

Best Regards,
Michael

(Edited by Michael Moeller on 11/25, 2:02pm)

Post 19

Friday, November 25, 2005 - 1:11pm