A particularly interesting part of Huemer’s book is his discussion of restitution and punishment. He points out that “it is thought that society as a whole benefits from this practice because it… deters others from entering a life of crime.” And he follows Rothbard in (1) finding it absurd that taxpayers are forced to pay the costs of incarceration and (2) believing that “a thief, for example, would have to pay back significantly more than the value of what he stole. This would provide a deterrent to crime.” (272ff) Rothbard affirms the necessity of punishment but argues that punishment beyond pure restitution, the 2nd tooth of the criminal for the victim’s tooth should be forced labor to profit the victim.

I don’t like this. The criminal law is not a means for victims to enrich themselves. They are owed restitution, not any further spoils of victimhood. We don’t need any extra incentives to alleged victims for frivolous lawsuits. In addition, forced slave labor is very inefficient and cannot realistically be used to provide restitution.

Huemer has another argument up his sleeve. Prisons are

regularly overcrowded, and inmates live in danger of gang violence, rape by other prisoners, beatings from guards and other prisoners, and other forms of abuse. … In recent years, the use of solitary confinement has become increasingly common, a practice that leads to mental deterioration on the part of the prisoner and higher rates of recidivism once the convict is released. …

Some observers have argued that incarceration not only fails to rehabilitate criminals but actually renders them more dangerous when released than they were when they entered. … Some have gone so far as to suggest that incarceration may cause more crime than it prevents. (283-4)

If true, this condemns imprisonment as a form of punishment. But it cannot eliminate the need for punishment altogether. Consider even a basic civil dispute. Unlike a criminal case, there is a genuine uncertainty as to which party is right. Smith the tenant claims that Jones the landlord owes him his security deposit. Jones disagrees. They go before a judge who rules in Smith’s favor. Yet Jones refuses to pay. The civil case has now transmogrified into a criminal case, where Jones with a malicious intent has stolen Smith’s money. Another judge orders Jones to be fined. Jones ignores it. Judge #3 issues a warrant for Jones’ arrest. And so on the sanctions are ratcheted up, until the cops physically restrain Jones and punish him somehow. If imprisonment fails as an adequate punishment, then perhaps Jones should be beaten or put into stocks or something else. But punishment remains the state’s sole prerogative and its ultimate power.

I therefore still think that there must be a single authority endowed with an irresistible power to punish offenders, and that is what we call the “state.”


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