Crime and Punishment

Jordan writes:

Wow is this ever offensive to me! Not to mention your blathering accusations about my alleged collectivism. Sheesh.

Jordan, I said the "ideas" were "collectivist", not specifically that you are a collectivist. You are probably operating off of "mixed premises", but I am not in a position to make any greater judgment--I can only operate off of what you have presented here. And your denials about these ideas not being collectivist do not make it so, no matter how many times repeat those denials and how many "empirical studies" you think justify these premises.

We had so good discussions before, even in light of serious disagreements; so let's let this one go so it doesn't turn too acrimonious, ok?

Michael

Post 81

Wednesday, November 30, 2005 - 2:12pm

Hi Jeff,

I just mean there's better stuff than jailtime for overcoming impulse control problems that are the causes of crimes. That shouldn't sound so sinister.

Anyway, this is probably it for me here at SOLO. I might return to the new SOLO. But so many people here are so unpleasant [edit: and I don't necessarily mean Moeller, because while I find him unpleasant in this thread, he's been rather cordial in others], that if the new SOLO so much resembles the old, I'll think twice before doing so. That said, I do hope our paths cross again. Best of fortune, Jeff.

To all, please feel free to email me if you like. Now I'm off to tackle some law finals.

Jordan

(Edited by Jordan on 11/30, 2:13pm)

(Edited by Jordan on 11/30, 2:14pm)

Post 82

Wednesday, November 30, 2005 - 3:21pm

WAY too may folk studying social work these days.....

Post 83

Wednesday, November 30, 2005 - 6:20pm

I asked, "Given that condition, of the punishments that you do have a right to impose, what is their purpose?" I also stated that "Deterrence (and protection) is the goal of punishments that you have a right to impose."

Michael Moeller replied, "What determines what you have a 'right to impose"?

The criminal's rights. For instance, suppose someone's slaps me, and in retaliation I pull out a gun and shoot her. Have I violated her rights? You bet I have, because by resorting to excessive retaliatory force, I have, in effect, initiating force against her. Do you see the principle here? Well, it's the same with punishment administered by the state. It cannot be excessive, otherwise it violates the criminal's rights.

He continued, "I asked you why it is 'excessive' given that the 'only justification' (in your words) is deterrence. Since the words 'cruel and unusual punishment' were put in the Constitution, are they to be accepted merely as a 'given'? In other words, if the 'only justification' is deterrence, and a particular type of punishment does deter, then why is this punishment not justified?"

As I made clear in my last post, the only justification of punishment that does not violate the rights of the criminal is deterrence and protection. Don't forget the qualifying clause "that does not violate the rights of the criminal." I am not saying unqualifiedly that the only justification for punishment is deterrence and protection. Nor am I saying that "cruel and unusual punishment" is inappropriate merely because it is prohibited by the Constitution. I'm saying that it should be prohibited because it is tantamount to the initiation of force and therefore violates the rights of the criminal.

You ask, "What is the source of the limits you are imposing on how much punishment the government has a 'right to impose' on a given criminal?

What is the source of the limits that you would impose on retaliatory force? Isn't it the rights of the person against whom you are retaliating? Criminals still retain certain rights, and these rights include a right against cruel and unusual punishment.

I wrote, "It is precisely that purpose [namely, the prevention of rights violations] that circumscribes the kind of preventative law that is permissible. What I'm saying is, given the condition that people's rights are respected, there is nothing wrong with punishing someone for the purpose of preventing future crimes."

Michael replied, "First, Bill, I never said there isn't an element of deterrence, I said it was 'secondary'. But here we go around the loop again. You say deterrence is the "only justification" for punishment, but it has to be consistent with individual rights."

To be precise, I said that deterrence and protection (i.e., prevention) is the only justification for the kind of punishment that is consistent with individual rights. In other words, there is only one kind of punishment that is permissible--the one that is consistent with a respect for the criminal's rights--and the purpose for administering that KIND of punishment is deterrence and protection.

You wrote, "I lead you to the implications of 'deterrence' as the justification and to explain that when you start with 'deterrence' as the justification you are NOT upholding individual rights. To which you respond: 'No, I mean 'deterrence' consistent with individual rights'. And 'round and 'round we go."

Yes, deterrence and protection (i.e., prevention) that does not violate the rights of the criminal. Why can't I say that? It's a qualified prevention, one that is limited by respect for individual rights. Suppose I said that I believe in competition consistent with an avoidance of force and fraud. Would you say that I don't really believe in competition, because I'm unwilling to support competition that involves force and fraud? No? Then why do you say that I must not believe in preventative law, because I'm unwilling to support preventative laws that violate rights?!

I wrote, "I agree that the justification for punishing someone is that he violated another person's rights" and asked, "why are we punishing someone for violating another person's rights? It won't do to reply, because he violated another person's rights." I also asked if "you could explain what you mean by 'reflecting back on the consequences of a violation of another's rights.' In order for an action--any action, not just punishment for a rights violation--to be justified, it has to be justified relative to the consequences, relative to the end or goal that the action is designed to achieve. In that respect, the justification is necessarily forward looking and must answer the question, what will you accomplish by it?"

You replied, "Bill, because it is a recognition of 'individual rights', that each man is an end in himself. When somebody intrudes upon one's ultimate right to his own life, the state, as a protector, is justified in reigning in the criminal because of this violation."

I agree that the state, AS A PROTECTOR, is justified in reining in the criminal because of this violation. So whom is the state seeking to protect? Future potential victims (including, of course, the victim himself), which is precisely what I'm saying is the purpose of just punishment (punishment that is consistent with individual rights).

You continue, "The criminal can be said not to recognize this right in others and therefore has forfeited his own freedom to the extent of the crime he has committed (the proportionality principle)."

You say that he has "forfeited his own freedom," which is another way of saying that he no longer has a right to it. Fair enough. But to say that he no longer has a right to it is not to say that we should therefore deprive him of it. To argue for the latter, one must show what is accomplished by depriving him of it. In other words, for the sake of what end or goal should we deprive him of it. My answer is, in order to prevent future crimes from being committed."

You continue, "It is not 'forward-looking' at his might-be actions, it is past looking at the actions he has committed. If the punishment deters him from future crimes, and I hope it does, then it is fine to keep this "part" of punishment in mind (eg. increased sentencing for repeat offenders). But that is 'secondary' to holding him responsible for the criminal actions he has taken."

Of course, we should "hold him responsible" for the criminal actions he has taken, but holding him responsible simply means to recognize that he chose those actions knowing full well what he was doing. It does not mean that if we do not punish him for those actions, we are not holding him responsible for them. Yes, he was responsible for them. The question still remains, what should we do about it? If your reply is that we should punish him for the criminal actions he is responsible for, you need to explain why? Why should we punish someone who is responsible for a crime? For what purpose? It won't do to say that we should punish someone who is responsible for a crime, because he is responsible for the crime. Once again, that begs the question.

- Bill

Post 84

Wednesday, November 30, 2005 - 7:34pm

Bill, once again (and again and again and again), you maintain it is "question begging". I maintain it is not. People can read the arguments and decide for themselves. Meanwhile, they can also ponder leaving a criminal go free (IF punishment did not deter 1 single criminal from 1 single crime) after the criminal has stabbed one's wife in the neck and taken all her money. Talk about begging questions.

Yes, Bill, you can "qualify" your prevention, but not in a way that violates the very thing you set out to "protect". To put it in perspective under your own "competition" example, you are setting yourself in the exact same position as antitrust advocates who "qualify" competition to make the free-market "work properly". Just like competition is the by-product of one producing for one's own sake, deterrence is the by-product of the state enforcing individual rights. And just as antitrust advocates try to set "competition" as the purpose of the a free-market system not realizing it is the by-product, you try to set up "deterrence" as the purpose of punishment not realizing it is the by-product, i.e. it is "secondary". You both end up with an arbitrary mess. Can I possibly make it any clearer, Bill?

I can say this for Jordan, at least he has the boldness (for lack of a better word) to draw out the implications of his premises and put them into practice--and look where that leads!!! In contrast, you are trying to use the glue of individual rights to cobble together some hash of assumptions that never got off the ground first place.

Regards,
Michael

Post 85

Friday, December 2, 2005 - 3:27pm

Bill,

I did not realize the site would be up so fast, so I only did a brief reply. Something tells me you were not too happy with my tone, but I was getting a little annoyed (to say the least) with the whole "begging question" bit and the accusations that I was not explaining my position. It occurred to me that the only "explanation" that was going to satisfy you was the one you already have in your mind as correct. At any rate, I want to answer the last post more fully because it may address some lingering concerns. Then I am going to let this thread go, as I think I've gone out of my way to explain my position whether you think so or not.

Bill writes:

The criminal's rights. For instance, suppose someone's slaps me, and in retaliation I pull out a gun and shoot her. Have I violated her rights? You bet I have, because by resorting to excessive retaliatory force, I have, in effect, initiating force against her. Do you see the principle here? Well, it's the same with punishment administered by the state. It cannot be excessive, otherwise it violates the criminal's rights.

Yes, Bill, but why is it "excessive"? Because the force used in retaliation is greater than she initiated, which is what I have been saying all along in regards to the ~proportionality principle~. That is what you are affirming here. And what do we reference to see if retaliatory force is "excessive"? The actions of the criminal in the first place, we do NOT measure it against any might-be actions of this criminal or any other criminals, i.e. deterrence.

Bill writes:

What is the source of the limits that you would impose on retaliatory force? Isn't it the rights of the person against whom you are retaliating? Criminals still retain certain rights, and these rights include a right against cruel and unusual punishment.

Again, the same thing, Bill. What determines what the criminal still "retains"? You are measuring against the action he has committed and retaliating in proportion to that action--it is NOT based on future actions.

Bill writes:

To be precise, I said that deterrence and protection (i.e., prevention) is the only justification for the kind of punishment that is consistent with individual rights. In other words, there is only one kind of punishment that is permissible--the one that is consistent with a respect for the criminal's rights--and the purpose for administering that KIND of punishment is deterrence and protection.

Yes, Bill I read your revision in post #26 and your later revisions. But as long as you insist on saying that deterrence is the "only justification" for any kind of punishment, you will be starting with false premises. As I said in my last post, it is the by-product of enforcing one's rights. Once you make it the justification, you stray away from the victim and the proportionality principle and end up with something like Jordan suggested. You can put the flowers of individual rights all around it, but this weed is sticking out in the middle of your garden--you must remove it, otherwise your "revisions" have no impact. See also my comparison with antitrust advocates and how they prop up "competition" as the goal of free market instead of the consequence of an individual's productivity, you are making the same mistake in regards to enforcing rights and deterrence.

Bill writes:

I agree that the state, AS A PROTECTOR, is justified in reining in the criminal because of this violation. So whom is the state seeking to protect? Future potential victims (including, of course, the victim himself), which is precisely what I'm saying is the purpose of just punishment (punishment that is consistent with individual rights).

Roger made this exact same argument earlier and it is a false view of "protection". "Protecting" rights is not limited to an officer sitting outside your house and following you around all day. Obviously, once a crime has happened, "protection" in this narrow sense is no longer valid. However, the government "protecting rights" means enforcing rights once they have been violated. If there was no enforcement, it would render rights meaningless. And the tie-in here is the rights violation the criminal has committed, not any future actions. Unlike Roger, at least you recognized the validity of incarceration as opposed to "shunning" or "non-coercive isolation".

Bill writes:

You say that he has "forfeited his own freedom," which is another way of saying that he no longer has a right to it. Fair enough. But to say that he no longer has a right to it is not to say that we should therefore deprive him of it.

Bill, a thief just stole your car, he has "no right" to it, does that mean you should deprive him of it? Hell YES. Now, a criminal violation is an impingement on somebody's freedom, and the price the criminal pays is his own loss of freedom to the extent of the force he has initiated. This answers the question "what do we do about it". He has forfeited his freedom and he will be deprived of it and continued to be deprived until he learns to live among rational men. This DOES send a message to the criminals that they will pay for their crimes (i.e. deterrence) but it is the consequence (i.e. "secondary") of enforcing individual rights.

Bill, it seems like the Average Joe could recognize there is something wrong with the administration of justice when you let a murderer go because punishment would not deter 1 criminal from 1 crime. Doesn't this position disturb you? Don't you think some revision in your position is necessary here, Bill? After all, when you see a family crying outside a courtroom because the murderer who killed one of their family members got off, are those tears because this and/or other criminals would not be deterred? I think not. The tears are because the murderer was not held responsible for his actions and was not punished, i.e. justice was not done.

Regards,
Michael

(Edited by Michael Moeller on 12/02, 4:14pm)

Post 86

Friday, December 2, 2005 - 8:24pm

Michael - as I wrote in post 17 on this thread, "one 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."

I may have missed your response, but I wonder - have you yet grounded your position in the self-interest of the political actors? Which of your posts should I re-read if I missed your take on the selfish grounding of punishment?

Post 87

Saturday, December 3, 2005 - 8:49am

FYI, some time ago I posted online an extensive essay addressing, from an Objectivist frame of reference, the issues of crime, justice, proportionate punishment, retribution vs. rehabilation/restitution/deterrence, etc.

It is titled "Crime and Moral Retribution." The essay is expanded from a chapter of my book, Criminal Justice? The Legal System vs. Individual Responsibility, copies of which can still be found online at Bookfinder.com.

Comments welcome.

Post 88

Saturday, December 3, 2005 - 9:28am

Thank you Robert for the link. I mentioned your article earlier as I thought it was a better treatment of the subject than Peikoff's tape, but I couldn't find it. Hopefully I will have better luck ordering the book on Bookfinder than I did Amazon.
Regards,
Michael

Post 89

Saturday, December 3, 2005 - 9:39am

Adam,

I am not sure I addressed that point explicitly as individual rights was being assumed here. But objective law is concerned with drawing rights around the individual, it is a recognition that each individual is an end in himself. In a social context, it means that individuals deal with each on a voluntary basis to their own mutual self-interests. Where there is physical force or the threat of physical force, it impinges on this voluntary association and this pursuit of mutual self-interests. Therefore, when a criminal has proven through his actions that he cannot live among free men without physical force, the state, as a protector of individual rights, is justified in punishing him (i.e. isolating him via incarceration) to the extent of the actions he has committed.

Regards,
Michael

Post 90

Saturday, December 3, 2005 - 11:25am

Michael Moeller,

You still have not addressed the issue. The state is an agent of individuals, and acts on their behalf. Therefore the issue of grounding punishment in the self-interest of the individuals on whose behalf the state is acting is not addressed by showing only that "the state is justified in inflicting punishment:" there are many things that one would be "justified" in doing, but that it would not be in one's interest to actually do.

There are philosophical systems (such as those of Plato or Kant) in which the state is reified into something "above" the self-interest of individuals, and that reified State is then appointed to enforce what Sowell calls "Cosmic Justice." In contrast to Plato and Kant, Rand's system requires that every human action be grounded in self-interest - otherwise it is not motivated by objective ethics.

Without grounding in self-interest, you sound like a proponent of some kind of Platonic-Kantian "cosmic Justice." So, can you ground your position in objective ethics - that is, in the self-interest of the individuals on whose behalf the state is acting? Or not?

Post 91

Saturday, December 3, 2005 - 11:42am

Adam,

I did. Look at a crime victim and you see his rights have been violated and the state acts on his behalf in enforcing those individual rights. Say, for instance, a thief steals my car, the state punishing him is acting on my behalf for his violation of my rights. Unless, of course, you do not think the right to my own car is in my self-interest--do you, Adam? The state recognizes that I have a right to the product of my effort and is acting on my behalf when it enforces this right. There is no sense of justice not tied to the individual criminal and the victim of the crime as it would be in some Kantian theory of retribution. What is so difficult?

Regards,
Michael

Post 92

Saturday, December 3, 2005 - 11:55am

I see this thread is almost dead, but I wanted to post comment.

Bill said:

the only justification of punishment that does not violate the rights of the criminal is deterrence and protection.

Rights are freedoms that innocent men may exercise fully, they are not freedoms that guilty men may exercise fully. Rights are always retained (because of the nature of man), but are not always fully exercised (because of the criminal actions of men). Retribution does not violate the rights of the criminal, though it temporarily restricts the exercise of them. To say that limiting the exercise of a criminal's rights is wrong -- fatally ignores the tie between innocence and rights exercising.

Objective law is something that is agreed to by rational men -- men who understand the inherent justice in getting what you deserve. Just as it is right for a producer to reap the reward of his intelligence and labor (for no other fact than that he earned it), so it is right for a criminal to "reap" the temporary limitation on the exercise of their rights. We must not fail to pass judgment, to reward virtue and punish vice.

We should initiate and sustain -- by rational, deliberate, and objective means -- objective (retributive) justice. The reason that we should do this, is for the peace, prosperity, and happiness that are made possible only if we do do this. Folks ought to get what they deserve. When they do, we will thrive as a species. When they don't, we are as good as dust. I give you all of written history as an example.

Ed

Post 93

Saturday, December 3, 2005 - 12:52pm

Michael Moeller,

It is not a question of whether it is in my interest to own a car, or, in general, to exercise any of my other rights. The question is: exactly how does punishing the criminal further my interest in my rights? By what mechanism does punishment serve my interest?

I can think of many such mechanisms: deterrence, incarceration to prevent recidivism, enforcement of restitution to the extent that this is possible, and the contribution that the punishment of the criminal makes to the psychological recovery of people adversely affected by the crime. To my mind, those reasons do ground the punishment of the criminal in individual self-interest.

But the position that you seem to have taken, is that these reasons are irrelevant. You appear to claim that even if none of these reasons applied, even if there were no demonstration at all of any specific grounding of punishment in the self-interest of individuals on whose behalf the punishment is inflicted, you would still advocate punishment for some other reason (perhaps "cosmic Justice?") that was not necessarily grounded in anyone's self-interest. Do I misunderstand you? Would you be willing to admit that the mechanisms, by which the punishment of the criminal furthers the self-interest of the innocent, do matter in reality?

Post 94

Saturday, December 3, 2005 - 2:03pm

For those debating this issue, I have just completed reading Bidinotto's essay:

Crime and Moral Retribution
http://www.econot.com/page15.html

Though there are parts that one could reasonably disagree with, and many questions raised (some, perhaps, answered in the full length treatment of his book), I second Michael's recommendation of this essay. It discusses at length many of the topics raised here and addrsesses many of the questions raised about retribution vs. restitution vs ....

And for those who might be influenced by Mr. Reed's expressed opinion that Mr. Bidinotto's views are not worth hearing, or presents views inconsistent with Objectivism, because of his alleged consorting with conservatives.... well, all I can say is: read it for yourself and see to what degree or in what ways he does or does not agree with conservatives' views.

Post 95

Saturday, December 3, 2005 - 2:45pm

Jeff - you refer to "Mr. Reed's expressed opinion that Mr. Bidinotto's views are not worth hearing, or presents views inconsistent with Objectivism, because of his alleged consorting with conservatives...."

Actually, the latter was not MY opinion, but Lindsay Perigo's. I consider Bidinotto's opinions worth reading, if only because they provide worthwhile practice in the identification of philosophical errors. I only wrote that Bidinotto does not understand Objectivist Epistemology well enough to give introductory lectures on Objectivism to college students.

Post 96

Saturday, December 3, 2005 - 3:31pm

Adam,

If you are referring to this: (from SOLOP)
" A thought, though - Robert Bidinotto (TOC) is an excellent speaker with a fine grasp of Objectivism. He's been popping up on the Casey Fahy thread here. I can't speak for him, obviously, and I think he's been on the wrong side in that particular debate, but I wouldn't hesitate to recommend him if you could make it happen." http://www.solopassion.com/node/50 - Lindsay Perigo, SOLO Passion

Is this what you regard as Linz saying Robert's views are not worth hearing? [emphasis in the above, mine.] Or have I misread you? Perhaps you were only referring to the "alleged consorting with conservatives" part. If so, the hotspot you include does not point there. If so, I'm even willing to concede - based on one reasonable definition of 'consort' - that he actually does consort with conservatives. Are we to say now, ala David Kelley, that he is unfit to speak to students as a purveyor of Objectivist ideas? If Linz has ever said so, I don't recall seeing it.

If, in the essay mentioned (or others, if you like), you can point to specific errors, I would -- paraphrasing Francisco -- hear it gratefully. I can't recall seeing any essay in which Mr. Bidinotto explicitly expresses views about epistemology -- apart, clearly, from being an advocate of reason based on empirical evidence, a position not exclusive to Objectivism anyway -- but if you can show how he makes errors there that affect his views on this subject, I would again be grateful. [Yes, I've read your earlier posts.]

Please note, it's not my purpose to defend those views, and certainly not every view he's ever expressed. But if, for example, you see any errors in his analysis of environmentalism, I would be even more grateful. Like Linz, I believe Robert was on the wrong side of the Valiant-book debate. He, in fact, did apologize for some of his remarks, though probably retains his views on the subject. But that's all I can make out of Linz' remark.

Further, I would submit that it's unnecessary, though desirable, to have a thorough understanding of Objectivist epistemology as a prerequisite for lecturing to students on other subjects, even when the speaker is put forth as an Objectivist. If one believes that statements should appeal to an individuals rational judgment and be backed by empirical evidence -- and I know of no statement of Robert's that would contradict this -- I should think that would be enough.

Post 97

Saturday, December 3, 2005 - 6:03pm

Adam writes:

It is not a question of whether it is in my interest to own a car, or, in general, to exercise any of my other rights.

Stop right there. Its not, you say? One's self-interest has no bearing on whether one's rights have been violated or not? What happens, punishments are administered in a vacuum apart from any conduct of an individual against another? A man pursuing his self-interest means the freedom to pursue it apart from physical force or the threat of physical force. Lest you think I have not "grounded" it properly in Objectivist ethics, let's look at a quote from AR:

All actions defined as criminal in a free society are actions involving force--and only such actions are answered by force...It is not society that a murderer murders, but an individual man. It is not a social right he breaks, but an individual right. He is not punished for hurting a collective--he has not hurt a collective whole--he has hurt one man....And it is precisely the duty of a proper social system and of a proper government to protect an individual against criminal attack. ("Textbook of Americanism")

Get that? What is the state's role when a criminal has used forced? To answer by force. Why? Because he has hurt a man, he has violated his individual rights--that is the primary.

As to your next two paragraphs, yes, you misunderstood me (or did not read what I wrote). Yes, incarceration keeps a criminal from continuing to commit crimes. Punishment having a deterrent effect upon that criminal and/or other criminals is "desirable", of course. But punishments are NOT administered in a vacuum or based on any might-be actions against yet-to-be victims, they are based on the specific individual right violation the criminal has committed (and to the extent of that rights violation).

If your question was merely what form punishment should take, then that ties in as well. Again, obviously incarceration prevents the criminal from continuing his reign of terror, as opposed to "shunning" or "non-coercive isolation" or various "rehabilitation" schemes. Cutting off a hand is invalid because it amounts to physical mutilation and it is the criminal's mind that needs to be reformed, not his physical body.

Regards,
Michael

(Edited by Michael Moeller on 12/03, 6:18pm)

Post 98

Saturday, December 3, 2005 - 7:44pm

Then, too, there is the side issue of "who pays for the incarcaration?" - certainly "society" shouldn't, far less the victim, yet this is glossed over as of small matter even as it is part and parcel of the other...

Post 99

Saturday, December 3, 2005 - 10:39pm