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Restitution and Punishment

January 14, 2004

Ilana Mercer has written an interesting, article, The criminal's theoretical enablers. In it, she argues against the left-libertarian notion that punishment should be abolished in favor of restitution. She argues, rather, that restitution should supplement punishment. I would argue that, in reality, it should be the other way around: punishment should supplement restitution. This could be seen as splitting hairs, but I think that the importance placed on restitution vs. retribution is critical.

Part of my disagreement with Mercer is on a different understanding of the word restitution. In her article, Mercer treats restitution as merely a financial matter: "I have never heard a victim of crime suggest that a financial settlement with her rapist is far preferable to having the scum bag removed from 'society'." In all due fairness, this is because she was critiquing a specific argument put forth by Benson, which treats restitution as a financial matter only. However, I think that restitution should not be limited to strictly financial restitution. In an ideal world, the crime would have never happened. Once it's happened, nothing we can do -- short of "undoing the crime", which is impossible -- can create justice. We can only implement the solution that is the least unjust to the victim. The closest we can come to true justice is to restore the victim -- in as much as is possible -- to his or her former state, prior to the crime.

Here, I agree with Kinsella (Punishment and Proportionality: the Estoppel Approach) and Rothbard ( The Public Sector, III: Police, Law, and the Courts). Proportionality mandates that restitution and punishment, separately, each be proportional to the crime. If a woman was raped, she could demand proportional restitution (e.g., whatever fines on the criminal necessary for the emotional harm caused her, castration, and the unexpected forced rape of the criminal) and then proportional punishment as well (the same).

What proportional restitution and punishment are would have to be up to the victim to decide, and his or her decisions would be binding, the burden of proof being on the convicted criminal to show that they were unreasonable (if he objected). Perhaps for a rapist -- having been dulled to violence and pain from a violent life -- proportional punishment and restitution would be something far more severe than one would expect from a cursory analysis. Alternatively, the victim -- already traumatized by violence -- may not find any additional comfort in the punishment of the criminal, but only be further emotionally wrecked by it. In that case, the victim could ask that no violence be imposed, and perhaps merely a financial restitution.

Mercer rightly points out that "[c]riminals are notoriously unproductive". Indeed, they are anti-productive. Within the framework of our present bleeding-heart system -- where criminals get MTV, video games, computers, billiards, free meals, and weights in prison -- expecting the criminal to repay the victim would indeed be absurd, as Mercer points out. However, if we reject the current framework and move over to the framework Kinsella and Rothbard suggested (and that was largely implemented in Ancient Ireland), such restitution is possible. The criminal would simply be enslaved to the victim (or her punishment agency, more likely, if she didn't want to deal with him) until repayment had been met. This would correspond to imprisonment (the criminal would be forced to work at such a pace as to repay the debt ASAP). After that occured, the more corporal parts of restitution and punishment would be implemented, for practical reasons. Obviously, if a court deems that for restitution, the rapist is to pay the victim $1million and be violently raped, and then as punishment is to be executed, the execution has to come last.

The other fundamental cause of my disagreement with Mercer is that I am an anarcho-capitalist, while she is a minarchist. This produces some differences which are difficult to resolve. The only way to effectively implement the system I suggest is by privitizing law and the enforcement thereof. Mercer argues that financial restitution in place of punishment eliminates proportionality, because the criminal then does not face proportional consequences to his actions. I agree, and note that there should be double-proportionailty (restitution and retribution). However, Mercer seems to imply that our current system of "tough" imprisonment creates proportionality. To this, I have several objections. Firstly, the needs of the victim are not considered at all. There is no focus given to restitution, thus there cannot possibly be proportionality. Second, how is a prison sentence proportional? Prisoners have all kinds of luxeries. Even life in prison is hardly proportional to rape. In reality, prisons are welfare centers where we reward criminals for their crimes by giving them everything for free. Prisoners are just another class of tax-recipients, as opposed to t= -payers. Whereas prior to imprisonment, their parasitism was renegade, now, when they are imprisoned, their parasitic behaviour has the full stamp and approval of the US Government. We get to pay to keep them in their welfare-pen, with luxeries that many taxpayers (those in the 10% tax bracket) don't have.

Anticipating a victim-centered anarcho-capitalistic solution, Mercer objects:

let's presume that our rape victim - she's a liberal or libertarian penal abolitionist - forfeits punishment in favor of payoff. Her rapist, she argues, offended against her alone. Since he has settled the score (fat chance), he must go free.


She may find this satisfactory, but what of the rest of us? Again, one doesn't have to be a "methodological individualist" to know that many besides her face a clear and present danger from the "paid-up" rapist. Recidivism rates among criminals more than demonstrate this plain point. In such cases, restitution should be added to incarceration, not substituted for it.

It is a rare case where the victim doesn't want the criminal punished. Secondly, it is even rarer where the victim would not demand a financial restitution (in addition to the corporal restitution) that would require the temporary enslavement of the criminal. This would be superior to our current system of "imprisonment", because the criminal would have no luxeries, would be monitored by the punishment or protection agency, and would have to engage in hard work. In short, like all slaves, he would have no freedom.


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