Consulting by RPM || Free Advice Blog

Restitution versus Retribution

One of the areas where I am more advanced–or misguided, depending on your viewpoint–than most of my conventional libertarian colleagues regards prison. Simply put, I think the institution of prison itself is a barbaric, counterproductive relic of State involvement in law enforcement. The typical libertarian thinks that in a just society, only actual aggressors would be imprisoned; no locking up pot smokers or prostitutes.

But I think if you really had a completely privatized world as envisioned by Murray Rothbard, that the very institution of prison would virtually disappear, because imprisoning an aggressor per se is pointless. (And in actual practice, as conducted by States, prisons are great places to turn novice lawbreakers into professional criminals.) If a guy kills somebody, the best way for him to make up for it is to financially compensate the victim’s estate. (In the usual case, I imagine insurance companies would do that right off the bat, and so technically the criminal would be paying back the insurers.) Not only is this more useful than having him rot in prison–or doing something dumb like pick up highway litter or make license plates–but psychologically it would also help him atone for his crime and forgive himself.

What’s ironic is that even some Rothbardians don’t go with me fully on this route. For example, I believe Walter Block has written (and I don’t have the cite handy) that if you murder somebody in cold blood, then under libertarian law you have just forfeited your right to life and anybody else can take you out. (I think the train of thought was coming out of his view that it’s not theft if you steal from a thief.)

But I think that’s totally wrong, and in fact makes the same collectivistic mistake that State “justice” systems make: If you murder someone, then the victim’s heirs inherit whatever legal powers accrue from such a crime. And if the victim happened to be a pacifist, he could have clearly spelled out in his will that none of his heirs would be allowed to exact retribution, even if that were the default. For example, even if the prevailing legal code says that if a guy cuts your arm off, you get to cut his arm off in return, then a pacifist could still specify in his will that nobody is allowed to touch his murderer. That “right” belongs to the guy who was murdered, and he gets the most satisfaction out of his property by making a public display of mercy.

These musings were prompted by David Henderson’s discussion of the Dante Stallworth case:

On Thursday night’s The O’Reilly Factor, Megan Kelly…expressed outrage at the lenient sentence given to NFL player Dante Stallworth. Stallworth had gotten drunk and killed a pedestrian. He was sentenced to only 30 days in prison, two years of home confinement, eight years of probation, and a lifetime prohibition on driving. Kelly was outraged that he wasn’t given more prison time. But she herself pointed out that the family of the man killed favored this sentence because Stallworth had made an undisclosed cash settlement with them. She found the sentence unjust. I think it was profoundly just. Stallworth didn’t hurt “society.” He killed a particular man and he compensated the man’s survivors enough that they favored the leniency. Justice is a matter of making it up to the people you hurt. No amount of money can bring this man back to life. But no amount of prison time can either. How would it be more just to make him go to prison when the survivors of the man he killed don’t want that? Far too many people…think justice in the case of such a death necessarily involves prison.

Incidentally, I’m not going to get into it here, but please don’t assume in the comments that I’m unfamiliar with the principle of deterrence. All I will say is that you can’t simply assume that putting murderers in a big building with other murderers necessarily leads to less murder. I’m not sure that it does. There are other, much more civilized, ways of deterring antisocial behavior than use of dungeons.