| | Jordan wrote, "A worse crime often calls for a more severe deterrent, so punishment in proportion to crime is often a good idea, but not always. Sometimes we know of a less severe deterrent. Like maybe the murderer-rapist would be "cured" if we castrated him (erm...is castration less severe than life in prison?). Costs being equal (which is not usually a realistic assumption, but work with me here), it's worse to use a more severe punishment when a less severe punishment is available. The trouble is that it's often really hard to tell whether we've deterred the criminal, or whether his punishment deters other would-be criminals. I have trouble with our current system when we release criminals who walk out of prison still an obvious threat, often a worse threat than when they walked in."
But isn't there are a problem with the less severe punishment?--the problem being that the more we reduce the severity of the punishment, the greater are the chances of the person thinking that the crime is worth committing. So if all the murderer-rapist gets is castration, he might think that the act is worth doing, since there's no guarantee that he'll be apprehended and that even if he is, all he'll get is castration, which (let us say) he thinks he can live with. In other words, whereas before, murdering the victim was not a risk worth taking, now it does become worth taking, because if the victim is no longer alive, she won't be able to testify against him, so that even if he is apprehended, he may not be convicted. He may therefore find it in his interests to murder her in order to reduce the chances of a conviction, whereas if the punishment were more severe, he might think twice about it.
I do agree that we should judge a policy by its consequences. If a "proportional" degree of punishment had the effect of increasing the crime rate rather than reducing it, then it is difficult to see how it could be justified, unless our philosophy of punishment were rooted in retribution and indifferent to consequences. In fact, of course, proportionality does tend to produce the best consequences, if only because a greater punishment for greater offenses discourages them more than if the punishment were the same as for lesser offenses. That, I think, is the real reason why proportionality tends to be favored, even if not altogether consistently, over more draconian methods: it works.
What is interesting is that Objectivism is somewhat equivocal on the merits of the consequentialist and/or deterrence rationale. I had previously quoted a statement from Peikoff in OPAR, which suggests that his view is consequentialist (insofar as he bases his advocacy of principles on the consequences to which they lead). Nevertheless, in the January 1963 issue of The Objectivist Newsletter, Nathaniel Branden writes as follows: "Does the man who commits willful murder, in the absence of any extenuating circumstances, deserve to have his own life forfeited? Here, the answer is unequivocally: Yes. Such a man deserves to die--not as 'social revenge' or as an 'example' to future potential murderers--but as the logical and just consequence of his own act: as an expression of the moral principle that no man may violate the rights of another with impunity, that no man may take the life of another and still retain the right to his own, that no man may profit from an evil of this kind or escape the consequences of having committed it." (p. 3)
The question that Branden's statement leaves unanswered is, why? Why is taking the life of a murderer just? Branden says that the reason is not social revenge (retribution) or as an example to future potential murderers (deterrence), but as the logical and just consequence of the murderer's own act. Unfortunately, this answer tells us only what are not the reasons for executing the murderer, but does not tell us what are the reasons. It tells us that the murderer deserves to die not for the sake of retribution or deterrence, but as the logical and just consequence of his own act--as an expression of the principle that he may not profit from the murder. But, again, this answer is circular and question begging. What we want to know is: Why is taking the murderer's life the logical and just consequence of his own act--why is it the case that he must not profit from the murder? That is a question that begs for an answer, especially since both retribution and deterrence have been ruled out. I could understand it, if the reason that the murderer must not profit from his own act is that allowing him to do so sets a bad example for future potential murderers, but Branden explicitly disavows such a reason. Moreover, his answer (which is also Rand's, since she approved it as part of her philosophy) suggests a kind of rationalism or ethical intrinsicism: the murderer deserves to die, because executing him is logical and just. End of story.
In all fairness, it should be noted that Branden does not believe in capital punishment, but only because the criminal justice system is not infallible. If we could know for certain that an accused murderer is guilty, then his claim is that the person deserves to die.
- Bill
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