We should take his guitar so we can be REALLY tough on crime!

We should take his guitar so we can be REALLY tough on crime!

Below is a guest post by Cory Massimino, a blogger for Students for Liberty. Prison abolitionism is an intriguing idea, one that interests me but I have yet to explore in depth. Unafraid, Massimino goes there and argues that prisons — even for the violent individuals who may “deserve it” — have no place in the ideal libertarian society.

Let us know how you feel in the comments.

The prison system as we know it is commonly regarded as disgusting, brutal, unethical, and the antithesis to anything and everything libertarians stand for. America’s prisons are funded with money expropriated from tax payers, awarded to politically connected prison contractors, to cage human beings largely charged with only harming themselves. Every step of the way, the modern prison system is structured in such a way that benefits politicians, police unions, and prison contractors, at the expense of tax payers, minorities, harmless drug users, and others guilty of the state-created fairy tale known as “victimless crimes.”

What would an ideal prison system look like? Libertarians and others with a yearning for justice suspect it would be a much smaller institution, in place only to put away those in society that are truly guilty of wrong doing, such as murders, thieves, and rapists. They don’t want it to be abused by politicians, unions, and crony capitalists. They want it to be a truly blind system, that doesn’t disproportionately put away minorities and provides true justice. While I share these admirable goals, I believe the prison system should not only be shrunken, but abolished all together on both ethical and pragmatic grounds.

Libertarians are dedicated to the idea of non-aggression. We believe the initiation of force is wrong, and the only time aggression is justified is in self-defense. While this is the core of libertarian ethics, it is not the whole story.

Suppose I just don’t like your face and decide to step on your toe. I have aggressed against you and violated your rights. Since you are now justified in retaliating, would it be ethically allowed for you to shoot me? You are allowed to retaliate, but that doesn’t mean any and all actions you take are justified. While you would not exactly be initiating force against me, your act of retaliation (shooting me) is not proportional to my use of force (stepping on your toe), and is, therefore, not ethically allowed. While we must refrain from initiating force, we must also refrain from using a disproportionate amount of retaliatory force. If you shot me for stepping on your toe, you would be acting disproportionately, and that counts as aggression.

It follows then, that libertarians are dedicated to a strict use of the term “self-defense.” We can act aggressive insofar as that aggression is needed to defend ourselves or make ourselves whole. For example, if you stole my cell phone, I can capture you and force you to give my cell phone back. If you had lost or destroyed my cell phone before I captured you, you would be ethically required to make me whole to the best of your ability; to pay restitution. Depending on certain cultural and legal norms, you would have to buy me a new cell phone, or give me the monetary equivalent of my cell phone, or any other similar actions.

This has certain implications for the use of punishment in society. In fact, it means coercion for the sake of punishment is morally unjustified, since punishing someone for the sake of punishment goes beyond acting out of mere self-defense. While we may have inclinations to act out of revenge or payback, we can’t justify coercion in the name of solely inflicting suffering because that would be a disproportionate use of force. The only justification for the continuous restraining of people, like a prison does, would be in the case of people who just won’t stop committing crimes; repeat offenders. A society based on restitution and making the victim whole, rather than punishment is the realization of non-aggression and proportionality.

What do we make of the pragmatic objections to a restitution-based, prison-free justice system? The most common objection is what do we do with criminals? We must acknowledge that in a free society, the amount of “criminals” would be dramatically less than it is now. The prison system cages millions of non-violent drug offenders that would be free to do what they wish to their own body in a free society.

Okay, but what about the current prisoners who did commit a real crime, such as murder, rape or theft? What do we do with them? No doubt, people who commit these crimes, under most circumstances, are despicable, wretched individuals. But we must acknowledge that many crimes are done in the heat of the moment to people the perpetrator personally knows. Committing a single crime is not, in itself, a sign that you will commit another one or that you are an ongoing threat. Simple restitution seems appropriate in the cases where people are not expected to be repeat offenders.

Alright, what, then, do we do with true criminals — the murderers, the rapists, the thieves, that are repeat offenders? I strongly suspect that private companies, instead of spending money to build large buildings to house this small number of repeat offenders, would find it profitable to use a system similar to that of house arrest. It would be more efficient to use technology and guards on call to restrain people to their homes than to transport them all to a single, large location.

Furthermore, restitution would act as a deterrent for committing criminal acts and some kind of insurance scheme described by economist Robert Murphy in Chaos Theory, which would be used to determine and know people’s criminal history, could create incentives to remain peaceful through charging higher or lower premiums.

Libertarians ought not only object to the modern, crony infested prison system that commits heinous crimes on a daily basis, but also support the abolition of prisons all together. Taken to its logical conclusions, the non-aggression principle and the principle of proportionality require the end to all prisons and pragmatic considerations only reinforce our case against them. Prisons have no place in a free society.

Who will build the prisons in Libertopia? No one.

Cory Massimino studies economics at Seminole State University and blogs for Students For Liberty. He spends his time ranting about the government and educating people on basic economics. Follow him on Twitter

  • Claire Ann

    Intelligently communicated. Most agreeable, informative statement of truth I have heard. I may even convert to Libertarian.

    • Lucy Steigerwald

      I recommend it.

  • Emperor Snazzu

    Let’s imagine we live in a world of voluntary law, and being sane people, we agree to rules that maximize our freedom – in part by providing disincentives to aggressive behavior. Those disincentives include the right of the victim of aggression to respond proportionately. You seem to suggest that the victim would be allowed to EITHER respond with equal force (a toe for a toe), OR would have a right to some form of restitution (the right to be “made whole”).

    In the case of rape, any restitution would be at best grossly inadequate and proportional retaliation ranging from pointless to impossible. In the case of rape or health-crippling violence, the options are even less satisfying. The crippled cannot be made whole, and that goes double for the dead.

    The knowledge that one has to buy what she breaks goes some distance in deterring crime. However, this is obviously insufficient to deter every crime. In fact this type of deterrence is almost completely useless when the criminal act is petty by nature; crimes that are easy to get away with (like petty theft) are likely to increase the closer the punishment is to a 1:1 ratio. If I only have to pay back $10 when I get caught stealing $10, then I will steal until I get caught. I will pay back the person from whom I got caught stealing and get to keep the rest. Then I will steal again.

    The fear of punishment is more useful than punishment itself, and I think punishment can be worked into a voluntary society.

    I enjoyed your post here. Keep it up, and tell me where I am wrong.

    • Cory Massimino

      1. I don’t mean to suggest victims could respond with equal force. Victims can only respond with enough force to protect themselves. In most cases the force necessary for self defense will be close to the force inflicted upon you, i.e. if I punch you, you are justified in punching me back so that I either A) can’t continue inflicting harm upon you or B) decide to leave you alone.

      There are situations, however, where I can see the two being different. If I cut your arm off, you would not be justified in cutting my arm off in retaliation (unless you had no other way of fending me off, but that seems unlikely). Cutting my arm off in the name of “an eye for an eye” is obviously not something I would support since it isn’t founded on self defense.

      2. I don’t think I was clear enough in the post about how this principle of retributive justice applies to petty theft, or my cell phone example. Say you come and take my cell phone and I have to chase you down and tackle you to get it back, and then the phone breaks in the process. Ideally, and in accordance with retributive justice, a court would rule that you must pay the monetary equivalent of whatever my phone was worth but also pay me some amount for what you put me through when I had to find you and apprehend you, since you must make me whole to the best of your ability.

      In any case of theft, there will be costs associated with the victim other than just what they had stolen. It probably wouldn’t be the case often that cell phone thieves are just tracked down and tackled by the victim. Private companies would likely be employed to find and apprehend criminals. In those cases, where I hired someone to find you and get my cell phone back, the costs I incurred because of you extend to what I paid the private business. You are forced to pay me compensation for those as well (this ties into how poor people could enact suits in a polycentric law system but, alas, that is a topic for another day).

      Since thieves are responsible for not only compensating the victim based on what they stole but also on the other costs incurred by the victim, there isn’t actually a 1:1 ratio like you described. The ratio would be somewhere higher than that depending on the price of finding and apprehending criminals. (Side note: does this mean very low costs charged by private companies to apprehend criminals could be a bad thing, since the compensation owed to the victims would be less, and therefore function less successfully as deterrence? I don’t know, I’ve never thought about this before…interesting).

      Anyway, I must get back to school work. I appreciate the comment and look forward to your response!

      • Emperor Snazzu

        Curious what happens if the now-apprehended thief declines to pay up. Does the private company have the right to detain him against his will ? If so, for how long?

        • Cory Massimino

          I suspect this process would largely occur between the two parties’ (the victim and the criminal) insurance/defense agencies in conjunction with the court.

          If someone refuses to abide by settled up court rulings and persistent requests to pa up from the victim’s defense agency, there are a couple institutional mechanisms that can be used.
          1. The victim’s own defense agency could drop him if he doesn’t pay restitution.
          2. The victim’s insurance agency could drop him or raise his premiums, and his “criminal credit rating” would increase. For more information about how insurance could play a vital role in a market anarchy, see the link in the post to Robert Murphy’s “Chaos Theory.” Excellent short book.
          3. The court and/or the defense agency could work with local utility suppliers to cut off the criminals electricity, water, mail, internet connection, etc.

          I don’t think detaining would come up often and most people would just pay up front because there are major costs to not abiding by a ruling.