Recently one of my favorite economists, Prof. Walter Block, gave an interview in which he discussed possible forms of punishment for crimes in a stateless society. While I agree with the good professor on 99.9% of his views, I’ve come to have some major disagreements with his philosophy on crime and punishment. In this article, I will propose some logical arguments that seek to turn our current notion of “justice” on its head. While this article will be of particular interest to libertarian readers, I also hope it will also cause non-libertarians to engage in some self-reflection about our present system of justice as well.
Starting from the top, many readers may not even understand how a system of justice would be possible without a state. For those readers who are interested, a good overview of how one such system might work can be found in this relatively short illustrated presentation given by Prof. David Friedman.
Libertarians argue that it is impossible for a state to provide impartial justice, given that the judges, prosecutors, police, law makers, and often defense attorneys, are all payed by the same employer. Therefore, a conflict of interest underlies all present judicial rulings. This is evidenced by special treatment for police officers accused of abusing their power, the imposition of punishments for crimes that have no victim, the prohibition of defense attorneys informing juries that they can vote innocent based strictly on their dislike of the law, along with countless other methods, such as asset forfeiture and virtually unlimited resources to pursue convictions, that give the state a massive advantage in the pursuit of convictions.
Libertarians also have a problem with victims being forced to pay for the punishment of their perpetrator. In our current system of “justice,” a victim is essentially victimized twice, once by the perpetrator of the original crime, and then they are victimized again by the state, by being forced to pay for their perpetrator’s punishment and legal expenses.
Assuming a fully privatized model of justice were to exist, some philosophical questions remain as to what the best form of punishment for various crimes may be. It is here that Block and I part ways. In the interview, Block laid out four mechanics that he thought should come into play when determining a punishment.
1. Compensation of the victim, by the return of damaged or stolen property, or monetary compensation of equal value. This embodies the philosophy of making the victim whole again as possible.
2. Restitution to the victim, equal to the amount stolen or damaged, to make up for the inconvenience caused to the victim of the crime. This embodies the philosophy of an “eye for an eye.” An example would be, a person who stole 100 dollars would have to give back 100 dollars, and an additional 100 dollars for the inconvenience caused.
3. Compensation of law enforcement for the costs imposed on society for his apprehension. This may be waived if the perpetrator voluntarily turns himself in.
4. Scaring the perpetrator proportionate to the fright he induced through the commission of his crime. Block argues that the only way this can feasibly be accomplished is through the use of Russian Roulette, with the number of chambers and bullets proportionate to the crime committed. So simple theft might have a thousand empty chambers (multiple guns?) to one that is loaded with a bullet, while murder might not have any empty chambers. On this point Block is open to alternative methods, but claims that he hasn’t heard a better one yet.
I think it is important to look at the underlying reasons why Block thinks any form of punishment is appropriate at all. Block said that such draconian measures are necessary because the foundations of a stateless society depend heavily upon property rights to maintain a good working order for society. His arguments make the implicit assumption that the use of threats and force are necessary in order for property rights to be maintained. Further, this model assumes that threats and force are effective at preventing or reducing the commission of crimes.
I argue that this line of reasoning is fundamentally flawed, and can be empirically demonstrated to be ineffective as a method of reducing or preventing criminal acts. I would also argue that there are several logical problems that arise around who would have the legitimate authority to impose the measures Block suggests. I don’t necessarily have a problem with the concept of making the victim whole once again, or the concept of having a perpetrator pay back the costs he imposed upon society, but I generally disagree with the methods Block suggests as a means to bring about these ends, and I totally disagree with his Russian Roulette nonsense.
A study done by David S. Lee of Columbia and Justin McCrary of Michigan points out that criminals often don’t take future consequences into consideration when deliberating the commission of a criminal act, and increasing the severity of punishment has little impact on preventing criminal behavior. Slate.com did a piece on this study that summarizes the findings nicely. Slate notes that, “Deterrence has long been an article of faith among economic theorists and, more recently, economists who do empirical work, too. But now a series of careful studies by economists at Columbia and the University of Michigan are calling into question whether either policing or punishment successfully deters crime.”
From a logical point of view, the study’s findings make sense. A criminal is unlikely to commit a crime if he thinks there is a reasonable chance of getting caught. However, even with stiff penalties, if a criminal thinks he has a reasonable chance of getting away with his act, and he values his future less than his present welfare, he is more likely to commit the criminal act. So what we can take away from this study is that Block’s suggestion of Russian Roulette or severe monetary penalties would have a negligible impact on crime rates, and would serve only to satisfy the sadistic vengeful proclivities of those who are engaged in carrying out the sentence.
In contrast to Block, who feels the primary goal of a justice system should be to make the victim whole, deter crime through threats of force and enact revenge for the inconveniences caused, I think the primary goal of a “justice” system should be to improve the human condition. In my opinion, if a legal system does not work to improve the human condition, it is not the best form of such a system. As any good Austrian economist will tell you, wealth transference and revenge do not lead to improvements in the human condition. Such a goal rules out punitive restitution and physical violence as being justifiable punishments.
At each step of the justice processes, the question should be asked, “Does the outcome of this process provide the greatest improvement of the human condition?” I think if we address that question honestly, we will find that peaceful resolutions are the only possible means of arriving at the stated goal. While it may be true that locking up or killing a violent offender will prevent him from engaging in other acts of crime, ultimately this results in less human capital available for the improvement of society. The ideal outcome would be rehabilitation of the offender so that he does not engage in future acts of crime, and then having him go on to work in a profession that brings additional value to the markets, affording him the opportunity to make his victim as whole again as possible. Clearly our present system of justice, as well as Block’s suggested system of justice, do not meet this objective.
Any proposed system of justice in a free society must meet a few important criteria. Such a system must be entirely voluntary in nature, meaning it is not imposed on anyone without their consent. It also must be market based and face competition between various providers. We already have a vast private security apparatus in place to defend property rights, with private security guards outnumbering police more than two to one. We also have private investigators, private forensics labs, and private arbitration courts, all of which are funded voluntarily and may be funded by voluntary insurance contracts in a completely free market. However, the private enforcement of punishments seems to be absent.
I would argue that in a free society, the violent imposition of punishments would be, for the most part, unnecessary. Businesses are going to need a way of verifying that the people they hire or contract with are trustworthy. It seems reasonable to assume that most businesses would require potential employees or contractors to certify their identities and backgrounds via a third party reputation monitoring agency. As with sellers on Ebay, or vendors on the illegal drug trafficking website The Silk Road, reputation monitoring agencies would be able to provide a history and rating of a person’s trustworthiness. People who refuse to participate in reputation monitoring, or have low ratings, would find themselves ostracized from society and forced to live a rather uncomfortable life. Given the previous assumptions, it seems reasonable to conclude that ostracism would play a role in punishment for those who break contracts or general social norms. The incentive to boost one’s reputation rating would be a substantial motivator for continued good behavior, and for the voluntary payment of any court imposed compensation or mandated counseling.
This still leaves open the question of what to do about incorrigible offenders, who don’t care how badly they are ostracized or what their reputation may be. Ostracism also seems to be lacking when faced with people who murder or commit acts of extreme violence. It seems to me that the number of people who would fall into this category in a free society would be vanishingly small. Given that there would be no black markets for gangs to monopolize, and that virtually everyone would either be armed or have highly effective and competitive security agencies protecting themselves and their property, such acts of violence would be exceedingly rare. However, the question is not without merit.
In cases involving incorrigible offenders, who refuse to participate in counseling, provide compensation or abide by rulings issued against them, courts and protection agencies may refuse to protect the offender from retribution by his victims or his victims’ families. In such cases, private agencies may be hired to hunt down the offender do with him as his victim may please. Such agencies do exist on the black market today, often referred to as hit men or assassins. In a free market, the role of hit men would be legitimized. It may also be that the courts grant immunity to the victim for any actions he might take against the offender, but NOT allow the victim to kill or torture the offender without damaging the victims own reputation. It seems reasonable to assume the market would come up with the people and facilities to put these incorrigible people to good use.
The primary idea in dealing with incorrigible people is for society to simply not grant them any protections or allow them to engage in business with others until such time as they agree to take actions that put them on the path to rehabilitation. An example court ruling for murder might be that the perpetrator must give half his earnings to the victim’s family for the rest of his life, attend psychological counseling once a week at his own expense, issue apologies, and engage in some form of community service. If a murderer refuses to abide by these rulings, or engages in other acts of serious crime while free, he will be declared a persona non grata by the courts, insurance and security agencies, leaving him open to retaliation by the victim or the victim’s family without the victim having to fear being prosecuted for vigilantism. Charities might even exist to help victims in dealing with the associated cost of “punishing” such an offender.
Such a system takes punishment out of the hands of a third party, and places it directly into the hands of the victim. It also prevents society from having to fund the cost of punishment, leaving the victim to shoulder the cost of vengeance. By utilizing the previously described methods of punishment, society can maximize its human capital, and in so doing, maximally improve the human condition.
As an aside, I’d also like to make a point that calls for retribution, vengeance and compensation are heavily tied to a materialist world view. A view that takes our existence here as primary, and ignores any greater spiritual aspects of why we are conscious, what consciousness is, or what our purpose for being alive entails. Every great spiritual leader has put for the same message, “you are more than your physical body.” Every great scientist that has studied consciousness in detail has put for the same message, “consciousness is primary and necessary for matter to exist in the first place.” The quantum mind-body problem and the problem of strong emergence point to spiritual aspect of consciousness that goes far beyond our present reductionist materialist world view.
Things are just things. In the end, they don’t really matter. You can’t take them with you when you are dead. But you just might take your actions and thoughts with you when you die, leaving you to contemplate the acts of vengeance you may have carried out during your time here on Earth for the rest of eternity.