As the pain, suffering, and sheer cost incurred by the criminal justice system in America spirals further and further out of control, more and more people have come to push for reform. Even Texas Governor Rick Perry, who once proudly declared to have never struggled with issues like the death penalty, has begun to advocatereducing the number of prisons.

However, what we need, now more than ever, is something much more radical than mere reform to the criminal justice system: we need abolition. We must abolish the institutions of criminal law and punishment, including the system of slavery we call “prisons,” replacing it all with a legal system based purely on defense and restitution.

Each one of these points – abolishing punishment and criminal law, replacing it with a pure tort system based only in restitution and defense, and abolishing prisons – requires its own careful treatment. For that reason, this will be a series, rather than just one post, and we’ll start with reasons why libertarians should oppose punishment[1].

Libertarianism[2] takes as its starting point our fairly ordinary intuitions about what is or isn’t an acceptable use of violence. In normal, everyday interactions, we typically believe that violence is only justified in self-defense, and that even self-defense is limited by concerns about proportionality. If I’m trying to kill you, and the only way you can stop me is by killing me, you’re justified. If I’m standing on your foot, you can brush me off. However, you can’t kill me for doing so, or even knock me onto the ground. If I’ve stolen your TV, you can forcibly take it back from me, because by holding onto your property, I’m committing an ongoing act of aggression.

Yet this principle of non-aggression is totally at odds with punishment. Whereas defense and restitution – forcibly collecting compensation from aggressors to restore what can be restored to victims – are justified by the need to stop an ongoing rights violation, this is not the case with punishment. Punishment goes beyond defense and restitution[3], and inflicts a brand new harm onto the aggressor completely unrelated to stopping any actual act of aggression. At least at first glance, this makes punishment itself an act of aggression. So, for libertarians, in order for any justification of punishment to succeed, it must be an independent justification for violence.

Deterrence & Rehabilitation

One common way of trying to justify punishment is through the need for deterrence. This can either come as general deterrence, the practice of punishing criminals in order to deter others from doing what the criminal did, and specific deterrence, the practice of punishing a criminal in order to deter that particular criminal from committing that crime again in the future.

It might be thought that pro-punishment libertarians could easily appeal to deterrence. After all, if defense is a legitimate reason for violence, and deterrence protects us from future aggression, then surely libertarians can take deterrence as a legitimate reason for violence.

However, this forgets that violence is only genuinely defensive when used to stop a particular aggression by a particular person which would otherwise occur, if not for the defensive violence. Expanding our notion of defense to include deterrence would lead us to absurd conclusions. Namely, if deterrence is a legitimate justification for violence, it justifies punishing the innocent.

For general deterrence, all that’s necessary is for the general public to believe that the criminal is guilty, not that the criminal actually is guilty. This is because if a person is in fact innocent, but people believe they’re guilty, then punishing them will still have an effect of general deterrence. So, in order to say that punishing them would still be unacceptable, we have to say that general deterrence is not an independent justification for violence.

For specific deterrence, all that’s necessary is that a punishment deters someone from a future crime, not that they’ve actually already committed a crime. Imagine a world in which “scared straight” programs were a little more extreme: if someone was judged to be “going down a bad path,” but hadn’t yet actually committed a crime, they were put in prison for a few months (just to see how bad it is). If specific deterrence is a legitimate reason for violence, then this practice would be perfectly legitimate.

Similar complaints can be lodged against rehabilitation as a justification for punishment. If it’s legitimate to place criminals in prison to rehabilitate them, then why shouldn’t we just pick people off the street[4] who seem like they might commit crimes in the future to do so?

Retributivism

Another problem is that deterrence and rehabilitation provide no grounds for proportionality. That is, they can’t explain why punishments must “fit the crime,” or what it would even mean for them to do so. For this reason, many defenders of punishment turn to retribution. Retributivists believe that it’s just the case that those who commit crimes against others deserve to have the same done to them, in order to balance the scales of justice. A major benefit to retributivism is that it has fairly clear and precise guidelines for proportionality: an eye for an eye. Therefore, it helps to explain the injustice of excessive punishments.

At the same time, if we take seriously the kind of proportionality that retributivism gives us, we’re led into conclusions no better than where deterrence or rehabilitation got us. For example, it not only licenses but demands that particularly brutal murderers are killed in particularly brutal ways, that rapists are themselves raped, and those who commit assault and battery are tortured. If we accept retributivism, then our reaction to botched executions resulting in significantly painful deaths should sometimes not be horror, but relief that justice was truly served.

Bringing things back to the intuitions that typically get us to libertarianism in the first place, the retributivist’s proportionality is not the kind of proportionality we really want. In a normal case of interpersonal conflict, we take violence to be legitimate only to the extent that it is genuinely necessary in order to protect oneself or another victim from aggression. If I try to punch you in the face, you can block my punch, or you can lock my arms, or engage in any number of other reasonable means of defending against that punch. What we typically think you cannot do, however, is punch me back after I’ve already punched you and have started to walk away. In certain circumstances, we might find this understandable, but we do not find it morally permissible, let alone the sort of thing that flows straightforwardly from the demands of justice. Our standard intuitions about interpersonal violence are distinctly anti-retributive.

They Can’t Just Get Away With It!

So if we get rid of punishment, does that mean we don’t do anything when someone commits aggression? No, it just means we don’t respond with punishment. Instead, the criminal is made topay restitution to their victim, in order to restore what can be restored. This effectively collapses criminal law into tort law. In the next post, we’ll examine the significance of that shift.


[1] By “punishment,” I refer to institutionalized retaliatory violence used against a criminal, in response to having committed a crime, which is neither connected to defending against a particular act of aggression, nor to collecting restitution for a victim of aggression. Obviously, countless theories of punishment have been proposed and defended, and I will not be able to address every single one in this blog post. What I have here is only a cursory glance, specifically oriented toward libertarians, at reasons why punishment might be taken as illegitimate. For a thorough take down of virtually every justification usually provided by philosophers of law, I recommend David Boonin’s The Problem of Punishment. Less elaborate but still persuasive attacks on punishment can be found in Randy Barnett’s The Structure of Liberty: Justice & the Rule of Law,and Gary Chartier’s Anarchy & Legal Order: Law and Politics for a Stateless Society.

[2] Of course, not everything I’m saying here will apply to the beliefs of all libertarians. Just to make sure this isn’t misunderstood: I’m not saying that those who base their libertarianism in something other than non-aggression aren’t libertarians. I’m just taking non-aggression-oriented libertarians as paradigmatic.

[3] It should also be noted that “defense and restitution” is actually a somewhat redundant phrase. This is because restitution is justified precisely because, since it generates a debt owed by the aggressor to their victim, the aggressor is now holding onto property (the money owed) owned by their victim.

[4] This already happens to some extent with the practice of involuntary mental commitment. However, rehabilitation as a justification for punishment, taken to its logical conclusion, would allow a much, much more expansive version of that practice than what already goes on.

This was written by Students For Liberty blog team member Jason Lee Byas.