Theories of Punishment

It seems at first glance that when society or the state punishes crimes, it produces violence. But on the contrary, the actions of the state serve to minimize violence. How?

The purpose of the state is to deter private unjustly violent actions. Ideally, the mere threat of punishment would be enough; no actual punishments need to be inflicted. For example, if car thieves could be deceived about their chances of getting caught and convicted, it would not be necessary actually to catch and convict them. However, things don’t work like that, because punishments in the past and immediate present serve as evidence of the state’s policy. It is they that make the threat credible. Or rather, widespread knowledge or awareness of the state’s readiness to punish deters crimes.

And here’s how violence is minimized: the system of punishments should be so tuned and weighed that it deters more violence than it inflicts. The overall amount of suffering from unjust private violence + public violence from the state is supposed to be smaller than the corresponding amount of only private violence without the state.

These two posts — [1], [2] — explain why punishments for crimes set by the legislature usually take this form: “5 to 15 years in prison” for stealing cars.

The passage of the law is necessary to set up the initial threat. The judicial leeway in punishing is due to the need to balance the harm to the criminal vs. the benefit to society from further evidence of the credibility of the threat. Different cases call for difference sentences.

Again, a judge might decide that 7 years in prison is the best punishment in one particular case, because another extra year will harm the perpetrator more than society would benefit from greater deterrence; and at the same time, merely 6 years in prison shows mercy to the criminal, but the failure to deter sufficiently outweighs that.

Judges then are optimizers who must strive to create the greatest good for the greatest number within the confines of their profession.

Suppose Smith is a habitual criminal. He’s stolen 5 cars and each time got caught. His sentences have gotten progressively harsher. The first time he got probation, the second time 6 month in prison, then 1 year, 2 years, and 5 years.

He gets out and promptly steals another car.

Is it reasonable for the judge and “society” to conclude that Smith is incorrigible, that no finite punishment will deter him personally?

And if so, can we imprison Smith for life not because he deserves it or to restore the cosmic order of things (retribution), nor to make an example for others (deterrence), nor, finally, to reform him (rehabilitation), for he has amply shown himself utterly depraved, but in order to protect the rest of us from him future crimes?

This 4th theory of punishment is called condemnation. We cut off Smith from the social body permanently and throw him into “hell,” from which there is no escape.

If this sounds at least somewhat plausible, then troubling consequences ensue.

For example, why not give each person an in-depth psychological evaluation at the age of 16, say, to try to determine whether he would go bad? If the committee of the psychologists feels this way, then the person is summarily given a life sentence or simply executed.

Sometimes I’d look at a black kid and think: “Ah, a future inmate of a federal penitentiary.” Why not imprison most black males or abort them before they are even born as a preventive measure?

It might be objected that we should wait until the person actually commits a crime before we condemn him. But if we are fairly sure that he would break the law, then waiting for him actually to do so seems to be the height of irresponsibility. Society needs to be protected, so why wait?

For example, isn’t it reasonable to lock up permanently a serial killer who’s been caught not because of his prior guilt, but in order to save his future victims? Isn’t that one rationale for the life or death sentence in actual trials of serial killers?

So, right now we use a string of prior crimes as evidence of one’s incapability of being reformed. But could this be too strict of a standard? A terrorist might not have committed any crimes before he blows himself up. Why can’t the government kill him on mere suspicion?

Discuss.

If Friedman’s explanation is wrong, and “economics” suggests nothing of the sort, then why do or should criminal trials have a high standard of proof than civil trials?

Let’s first make a semantic point. In criminal trials, the defendant, if convicted, is punished. In civil trials, there are no punishments. Some sort of just distribution of goods is enforced, and the loser may have to pay compensation or damages, but no “punishment” is administered. To the extent that “punitive” damages are assessed, there is already a conflation of criminal and civil law.

Now then, who punishes in a criminal trial? Society does or the state. Society harms the criminal for the sake of some benefit to itself (retribution or deterrence).

Here is the major difference. In a civil case, one man, Jones, sues, brings charges against another man, Smith. The battle is approximately equal; it’s a mano-a-mano fight. Smith’s resources to defend himself are more or less similar to Jones’ resources to accuse and push his case against Smith. Moreover, a counter-suit is always possible.

It’s a rare case when a rich man sues a poor one. What would be the point? More often, the accuser is poor and wants to stick his hands into someone’s deep pockets. The rich guy then is usually on the defensive; so, even if the poor person loses, he does not become worse off than before; at worst for him, no money changes hands.

“Preponderance of evidence” simply means that whoever has the better case, “51%” or more “right” on his side, wins; just as in a boxing match: whoever scores more points is declared victor.

But in a criminal trial, the accuser, the state or the “people,” is vastly more powerful than the individual. It has virtually unlimited resources: the tax money, cops, prosecutors, investigators, forensic analysts, the whole machine of justice, while the accused, especially if poor, may have to be content with a barely competent public defender.

In addition, the state has a lot of time to waste on the case; prosecuting people is its occupation lovingly pursued; whereas the accused has all the duties of a private citizen — work, family, etc. — to fulfill and so can defend himself only on a part-time basis.

It is the recognition that the state can easily crush the individual in a trial, засудить him, that has led to adding this extra limitation on government, the higher standard of proof. The citizen is protected against overzealous persecution on the part of society; it is yet another step on the road of defending the freedom of the individual against the power of the state, of de-communizing society. The latter is explicitly handicapped, so that the trial is a more equalized battle. The higher standard is simply a plank of classical liberalism.

(A specific further problem with our — and every other — government is that judges are employees of the state and therefore cannot help but favor the organization that pays them their salary. I have stated in several places that the judicial system should have been entirely private — one of my concessions to “anarchism” — from the start.)

Another such plank is the institution of grand jury. The public prosecutor cannot of his own volition even accuse a man of an infamous crime. He needs an assembly of the people to consent to do so. Unlike civil law where anyone can sue anyone else.

Finally, perhaps some people may feel that it is a greater miscarriage of justice to unjustly condemn an innocent man than to unjustly let five criminals walk. But then this would be a suggestion not, contra Friedman, of economics but of ethics or rather of some ethicists.

Here you beat a person up and yell obscenities at him until he genuinely repents. There is no limit to the pain inflicted, though no permanent damage should be done.

Rehabilitation is about turning the tables on a guy, showing him firsthand how his actions affected others.

Let me quote from an older post:

As far as the conservatives are concerned, they are winners and on top of the world, and the criminals are losers.

Look at me, they say, I’m the man and a winner, and you suck, losers. I’m everything, and you are nothing. I kill you, because I can and enjoy my power.

It seems to me that the conservatives need to be taught a harsh lesson. We should begin by kicking them in the stomach with heavy boots. At some point, they will say, “Why are you doing this? I didn’t do anything.”

Oh, so you think what I am doing is unjust? Were you just to the “losers”? When you were a winner and on top of your world, were you just to the less fortunate? No, you despised them; you spit on them; you hated them. You thought they were filth. Now you are filth and yourself nothing.

You thought you could fuck with people, you miserable bastard? Now I am fucking with you, and you had better feel the pain.

The wrath is never-ending, so you just keep doing that until the criminal yells, “Lord, save me! I want to be good.”

Now if I started kicking people in the stomach to reform them, I’d quickly myself be indicted for assault. In a sense, then, rehabilitation and condemnation are in the hands of God, and if no one is actually condemned, then condemnation is a vacuous theory of punishment at that.

But a judge, in pronouncing a sentence, can take into account moral reformation. Any repentance must accompanied by penance. If a person repents of his ways, then a part of the punishment has already been administered internally; for example, the criminal’s conscience is tormenting him. Therefore, external punishment, like time in prison, can be reduced.

Putting it all together, C.S. Lewis insists that the criminal be given what he “deserves.” But what does he deserve? It is precisely the wise judge who, upon taking into account all 4 theories of punishment, can deliver a deserving sentence. Retribution is only one of these four.

Remember that when we talk about punishment and the 4 theories of it, we are talking about criminal law, the “people” represented by the district attorney vs. Smith.

In civil cases like torts, there is no punishment, and what one does or does not deserve can be found out almost mechanically and with precision.

Smith contends that his landlord Jones owes him his security deposit. Jones either objectively does or does not owe the money, and if he does, then this is how much.

No one is punished. Here, justice is easy and clear-cut. Everyone gets what he deserves, his due, etc. But this should not be called “retribution,” because this term pertains to criminal law only.

This understanding clarifies the reason why we have criminal law in the first place. An objection is that a crime involves a victim, or should. Hence, the victim can always press charges against the evildoer, and this can be handled in a civil trial. The flaw is that sometimes a punishment needs to be inflicted on the aggressor beyond mere restitution. But the benefits of punishment accrue to society as a whole. Hence, society or the state should prosecute some cases which we call “criminal.”

The final question that can be asked is why we need to punish people at all.

In a civil suit, Smith believes that he is in the right, and Jones believes that he is in the right. It’s an honest disagreement. They go before a judge to avail themselves of his wisdom to see who has the better case. Even the loser will enjoy a sort of closure to the dispute in the end.

But if Smith steals Jones’ car, there is malicious intent. Everybody knows Smith is in the wrong, including Smith, unless he is “insane.” Smith may try to hide his crime, obstruct justice, raising the costs of justice in the process. But love or good will is what holds society together. We care what’s in Smith’s heart, because hatred, if allowed to stand, will make life miserable for everyone. It’s not up to us really to seek to reform Smith. But we can at least say: Let him hate, so long as he and others like him fear.

Natural law concerns not doing evil. In this sense, it is profoundly theistic, even Christian. This is because physical death is not sufficient punishment for breaking laws of nature: everybody dies, whether saint or sinner. The wages of sin rather is spiritual death in hell. And only Christianity has the notion of hell somewhat fleshed out in its doctrine.

Anyhow, notice how the Rothbardian “two eyes for an eye” theory of punishment regarding natural law is entailed by each of the 4 theories of punishment. The idea is that the criminal not only must pay restitution but himself loses the exact same rights and amount of happiness that he dared to take away from his victim.

1. Rehabilitation. If the criminal loved his victim, then the pain to the victim would be the criminal’s pain, as well. Since the criminal has no regard for the victim at all, the only way to simulate love is by inflicting the exact same unhappiness on him as he inflicted on the prey. Though crude, this is the beginning of the criminal’s metaphysical reformation.

2. Retribution. The cosmic order of things, the integrity of the hierarchy of good and evil is preserved. Did Smith attempt to lower Jones status unjustly and raise his own at Jones’ expense? Well then, Smith has corrupted his nature by the exact amount of happiness that he bit off Jones. His own status in God’s kingdom must therefore be lowered by that amount.

3. Deterrence. The more heinous the crime, the greater the punishment the criminal expects in return. There is a double utility to society: the criminals are intimidated into becoming productive citizens and thereby into avoiding condemnation; the potential victims are spared the ordeal of being brutalized by the criminals.

4. Condemnation. If an incorrigible defiant criminal has set his mind on hating society, then he is according to natural law (if not perhaps grace) to be hated back and as a result to be permanently restrained for life or killed altogether. There is now a double disutility to the criminal signified by the two eyes: pain of loss, as his wicked desires to hurt his fellow men are unsatisfied; and pain of sense, as he is physically destroyed.

For natural law, each theory is sufficient to yield two eyes for an eye. (Or perhaps, an eye and a leg for an eye, because poking out two eyes blinds entirely, while poking out one eye does not.)