“The person simply deserves to be punished in the criminal legal system regardless of the effect on restraint and deterrence.”

Again, whether or not a person deserves X and whether or not we can legitimately give her X are two different questions. I have very little in the way of confident positive beliefs about what murderers do or don’t deserve, but I am quite sure that even if a murderer does deserve punishment we can’t rightfully inflict that on him or her against her or his will. (Again, because as a libertarian I condemn all forms of violence not in defense of self or others, and we’ve stipulated that the punishment in question serves no defensive purpose. If you intend to show that we can rightfully inflict punishment on someone who deserves it, against that person’s will, you’ll have to give reasons to think not only that they do deserve it, but also that the ordinary ban on aggressive violence is repealed in the case of convicted criminals.)

“What kind of restitution are we talking about for murder?”

I mean damages for wrongful death, payable to the victim’s estate (since the victim is dead). The sort of thing that you could today gain through a wrongful death suit (or perhaps more, since a system that exclusively depended on restitution might tends towards higher restitution than one in which restitution is thought of as something taken in addition to punishment).

“There are some crimes that are so heinous, that yes, it really wouldn’t bother me — that is, were I the master civil magistrate, I would vet such a punishment — but I’m not sure if the parent murder hypo that we are discussing is one of them.”

But you are sure that killing the murderer (provided that there’s no chance of error, etc. etc.) would be a fit punishment?

(As far as the 8th Amendment goes, well, let’s set that aside. The 8th Amendment can be changed or repealed if it serves the aims of justice to do so.)

Ed:

Now, being the defender of the free market that I am, I can’t conceive of any reason why Ford shouldn’t be able to make its own decisions on where it is best to advertise their products.

This seems to me to be special pleading.

The AFA is not claiming, as far as I can tell, that Ford should be legally prohibited from advertising in gay publications. What they are saying is that they intend to reinstate a consumer boycott of Ford by fundamentalist creeps if Ford doesn’t stop advertising in gay publications. You might think that’s a foolish thing to do (I certainly do), but the reasons that it is foolish don’t have anything to do with a debate over “the free market”, or with Ford “making its own decisions on where it is best to advertise their products” in any sense that matters from the perspective of free market principles.

Fundamentalist creeps have every right to try to get the results they want on the free market by refusing, or threatening to refuse, to buy from Ford as long as Ford advertises in magazines they find objectionable. Just as I have every right to refuse, or threaten to refuse, to buy from Ford if they kowtow to such idiotic demands, or if (say) they decided to start running ads in publications that really are morally repugnant, e.g., paedophile or white-power magazines. The fact that big corporations have to account for their business decisions to would-be consumers is not hampering the market; it’s part of the free market at work.

There are more than enough reasons to call the AFA’s demands foolish. Making specious appeals to free market principles, though, just reinforces the confusion — which all too many people, both libertarian and non-libertarian, already have — between “the free market” and “blind deference to big business.”

Rowe:

Alan Dershowitz has admitted off the record this to be the case. Judge Harold Rothwax wrote a good book on the matter a few years back: …

O.K. Perhaps I’m not confident as you are that the anecdotal experience of a couple high-profile defense attorneys is widely representative of the criminal justice system as a whole, or even the criminal justice system as relates to hanging crimes. Maybe it does and maybe it doesn’t, but I’m not sure why you seem as sure of it as you do.

Rowe:

Aside from legitimate claims of deterrence, rehabilitation, and restraint, individuals morally deserve to be punished for the criminal wrongs that they do. Retribution is a legitimate rationale by itself for punishment.

The second sentence in this paragraph doesn’t necessarily follow from the first. Whether or not a criminal deserves to suffer or even to die for her crimes, it may still fail to be the case that we have a legitimate reason to give her what she deserves. (To take a rather different example: I think that Rosa Parks deserved a million dollars rather than decades of poverty for her role in the Montgomery Bus Boycott. But since I never had a legitimate title to a million dollars, I couldn’t legitimately give it to her.)

Rowe:

I think I could probably do a thought experiment to lead you to the same conclusion. Say someone murder someone close to you, somehow we had a crystal ball that demonstrated that the person snapped and if they could be led out, wouldn’t do it again. Or maybe they had a Clockwork Orange kind of “treatment.” And no one would find out that the person would go free; the legal norm, with punishment, against the crime would still remain; so there would be no negative effect on deterrence. Say the person murdered your parents.

Should this person go unpunished for the crime?

Yes.

That is, if “unpunished” means that nothing is done to them over and above what’s necessary for defense of self and others (which you’ve stipulated to be nothing in this case) and to force her (if necessary) to make such restitution as is possible for the murder (which you don’t mention in your hypothetical, but which I happen to think is very important). The reason is that I don’t think that violence is morally justified except in defense of self or others. Even if the victim of the violence does deserve to suffer.

Here’s a hypothetical example concerning punishment that I’d be similarly interested to know your thoughts on. Suppose that the situation you just described obtains — there’s someone who murdered your parents, and (somehow or another) you know that he won’t kill again or pose a threat toanyone else, and you know (somehow or another) that no-one will know if he is let go without further punishment. But you think that he ought, nevertheless, to be punished, as retribution.

Now, there are lots of ways that you can punish someone. For example, you can make fun of him in nasty ways; you can beat him up; you can incarcerate him against his will; you can hurt him in any number of ways; you can deprive him of any number of things he values; or you can kill him. Suppose that the court hands down the following punishment: the murderer of your parents is to be incarcerated in an otherwise humane and safe prison, but they’ll hack off his arms and legs, and every so often (say, twice a month) they’ll torture him in some way (say branding with hot irons, or raking his back with the cat’s paw and then washing it with brine), for the sole purpose of making him suffer.

Do you think that this could be a suitable punishment for the murder?

Three clarificatory questions. First:

I have no problem with government coming down hard with its iron fist against those who commit violent crimes against person or property.

Question: What do you think justifies the “iron fist” of government in the specific form of the death penalty for whatever crimes you think merit it? Vengeance for the innocent? Punishment of the guilty? Defense against some kind of threat from the condemned? Deterrance of third parties? Something else? One or more of the above?

Second,

By the time someone stands for trial, odds indicate that they are not just likely to be factually guilty, but almost certainly factually guilty of the crime in which they charged.

Question: How do you know this?

Third,

If, for instance, we were to ensure that those convicted of capital crimes are executed within say 2-years of conviction, then that would pretty much guarantee some wrongful executions, after say the first 1000 or so people were executed. I’m not sure if that would be worth it.

Question: If you’re “not sure” an 0.1% chance of murdering an innocent person “would be worth it,” at what point would the odds be low enough that you’d consider it acceptable losses for whatever benefits you think judicial killing secures?

Thanks for these posts, Jason. It’s fascinating stuff. I have a prickly and tangential note, and then a more serious question.

Here’s the prickliness: you worry, inter alia “What, for example, is to be done with the ill-gotten gains of the nobility and the clergy, when these make up the vast majority of the nation’s wealth? … And, as we all know, land reform on the Chinese model was a horrific disaster.” But why in the world would you have to have land reform on the Chinese model (which of course did not exist at the time, anyway) in order to have some kind of serious land reform? Why not (for example) expropriate land acquired illegitimately (e.g. through feudal entitlements) and devolve ownership to individual peasants, thus creating a new class of small freeholders?

Now, here’s the more serious question. Here and in the previous post you’ve made several intriguing comments about the faith of the revolutionaries in central government power and how this led to projects of audacious social engineering and — as those failed to produce the desired effects — the violence of the Terror. Here though you also mention, apparently with favor, the theory of at least four separate and concurrent revolutions. Do you think that there are noticeable differences among each of these revolutionary movements when it comes to constructivist faith in the State? I.E. do you think that all of the revolutions shared the attitudes and conceits that produced the intellectual conditions for the centralized State and eventually the Terror, or do you think that these developments were the result of one tendency within the revolution winning out over the others?