Proportional Justice: Retribution and Restitution
(Originally posted at damienmanier.com)
The way we punish criminals and restore justice is very important to
our overall crime prevention strategy. It is important to establish a
punitive system that will exact the right amount of punishment while
also bringing about justice and restitution to the victim of the crime.
A retributive punishment system, where the maximum punishment is
proportional to the crime and the victim decides the final sentence for
the aggressor would bring the goal of criminal punishment back to its
rightful focus… justice for the victims of crime.
The “primacy of restitution to the victim” is an “ancient principle
of law”, but “as the State monopolized the institution of punishment, so
the rights of the injured were slowly separated from penal law.” (1)(2)
This has led to the focus of “punishment” shifting from justice for
the victims to the utilitarian purpose of deterrence or the
“humanitarian” goal of “rehabilitation.” Both of these alternatives to
justice are philosophically flawed if carried to their logical
conclusions. The utilitarian goal of deterrence would justify “cruel
and unusual” punishments, since it would be the most effective at
deterring future criminals, as well as severely harsh punishments for
minor crimes since justice or proportionality is not the goal. The
humanitarian goal of rehabilitation, on the other hand, condemns the
criminal to an “indeterminate” sentence– “to be determined at the
Psychologist’s pleasure”– regardless of the crime and all at the expense
of the victim, who pays taxes to support these rehabilitation efforts,
with no restitution repaid to the victim or justice achieved on their
behalf. Also, if rehabilitation is the sole goal of criminal punishment
than a petty thief could theoretically be held much longer than a
murderer if the thief is less willing to reform or not as capable of
feigning rehabilitation compared to the murderer.
The way to truly pursue justice against the aggressor and on behalf
of the victim would be to allow the victim to sentence the aggressor, up
to a maximum punishment, once they have been found guilty. The
punishment should be both proportionally retributive towards the
criminal as well as include restitution for the victim, “two teeth for a
tooth” concept of punishment. This is demonstrated most easily in the
example of theft used by Murray Rothbard in his essay Punishment and
Proportionality. Suppose a thief is found guilty of stealing $15,000
from Bob. We would hold that he must pay back the $15,000 he stole
(restitution), but that is not punishment but simply restitution for the
thief is no worse off than he was prior to the theft, so he should be
forced to pay an additional $15,000 (plus police and court costs) to Bob
so that he is deprived of the same liberty that he deprived Bob of
(retribution). This is the concept that sets the proportional maximum
that a victim may sentence a guilty criminal. However, the victim,
since justice is theirs, should also be able to forgive the criminal in
entirety or exercise partial forgiveness for whatever reason,
philosophy, sympathy, monetary compensation, etc.
This legitimate sense of justice and retributive system of punishment
will distribute punishment appropriately according to the level of harm
done to the victims of the crime and the “two teeth for a tooth”
concept upheld up to the desire of the victim should also act as a
deterrent to criminals, even though that is not the primary goal.
(1)
Rothbard, Murray. The Ethics of Liberty. New Jersy: New York University,
1998. (“Punishment and Proportionality“)
(2) William, Tallack. Reparation to the Injured and the Rights of the
Victims of Crime to Compensation. London, 1900.