Punishment

Column by Jim Davies.

Exclusive to STR

In September 1971 there was a serious riot in the state prison in Attica, NY, which left 39 dead, and drew much comment. One of the comments was as follows. See whether you can guess by whom it was made:

“Any mutiny by the prisoners is going to be put down and put down hard.”

The State Governor, maybe? Or some law-n-order Conservative? Probably in some journal like National Review, run by the late Bill Buckley, from whom not long previously the nascent Libertarian movement had rightly separated itself. Or had Rush Limbaugh been broadcasting at the time, perhaps he would have used such words.

But if we guessed that, we'd be wrong. That was the sentiment of Murray Rothbard, Mister Libertarian himself. He wrote it in the Libertarian Forum issue III-9 for October 1971.

Of course he had, as always, a rationale. He began it by rightly dismissing the “Left Libertarian” take on the event, which held (he says) that “Attica was a rebellion by political 'revolutionaries' against the State. Ergo, we should take our stand with the prisoners and denounce the resolution of the Attica question as a 'massacre'.” Yes, that's too simplistic. As he explained, convicted violent prisoners are not political revolutionaries.

But then Rothbard wielded what he called his “fine scalpel” of analysis with less skill, it seems to me, than is required. He went to the opposite extreme. On the way, he made some excellent points about the “liberal” approach to crime – that everyone is to blame except the perp himself – which ends up trying to rehab the prisoner; the “libertarian psychiatrist Dr. Thomas Szasz has pointed out in the case of psychiatric methods of dealing with crime, has been a monstrous and unjustified tyranny over the prisoner.” Yes! At least in the classic “time for the crime” model, a perp was caged for a known, fixed period and that was that.

His scalpel then most surprisingly leads him to this: “the libertarian creed states that an aggressor loses his rights to the extent that he has deprived victims of theirs. Hence, it is perfectly proper to exact capital punishment on murderers, who have deprived victims of their right to life, or to exact a lesser punishment which is in some way proportionate to other crimes.” Now, it's certainly granted that there is nothing immoral about the use of defensive violence; force, to the extent needed to deter or prevent the apparent degree of violence threatened, is perfectly okay. But Murray morphs that principle into one of retribution, and that will simply not do. The purpose of defensive force is to stop or minimize the effect of an attack in progress, not to punish the attacker when he has already been disabled!

I think the error comes from his phrase about “losing rights,” as if rights were separate from the person, carried as a kind of backpack. They aren't, and they can't ever be lost, except in death; they are inalienable. They all derive from the one fundamental right, the axiomatic one of self ownership; and as Per Bylund has pointed out, the phrase “I own myself” doesn't quite do the concept justice because it implies a subject, verb and object, and that ain't so. A human being is a “selfowningperson”; a single, integral or wholistic unity.

What happens when rights are violated is that the victim is deprived of the enjoyment and exercise of his rights – which remain wholly intact. That deprivation is the moral wrong, which a justice system should correct, by restoring them as fully as possible at the violator's cost.

In other words, the “libertarian creed” - that of universal self-ownership and hence non-aggression – has no place whatever for punishment. Punishment needs a punisher, an “authority” of some kind; and in my vision of liberty, no authority exists. Murray Rothbard above everyone knew that and should have begun with that central principle when subjecting this subject to “more rigorous analysis” -- but on this occasion, he didn't.

True, he did foresee that the “focus” of punishment in a free society would “shift” towards compensating the victim, but he still calls it punishment and still sees nothing wrong with the premeditated State murder known as “capital punishment.” He concludes the article with “Even when taking the widest context into account, the libertarian must support the tough conservative line on the question of Attica and other prison mutinies.”

So let me try to wield the libertarian, analytical scalpel a bit more carefully.

Post-government, rights may still be violated; by accident, by misunderstanding (inadequate reading of contractual obligations, for example) or even by deliberate intent. There occurs a rape, let us suppose.

The victim's right to control her own body has then been gravely violated, and she is entitled to recompense – to right the wrong, as far as possible. In such a case, it's much harder to assess what restitution is due, than in one of simple theft – but some is due, for certain. She may carry insurance, in which case the insurer will at once restore her by providing therapy, counseling, monetary compensation, rehabilitation, or whatever has been agreed, and then pursue the perp to recover his costs. A detective agency will be employed if needed, and eventually the aggressor will be handed a bill. If he agrees and pays, the matter ends. If not, he will (at his own eventual expense) be invited to a free-market court and, after the case is proven, obliged to pay against his will. The element of retribution, however, will be entirely absent; for justice will have been served the moment the victim is made whole.

Should the perp defy the court's order, that fact will dog him the rest of his life, heavily limiting his ability to earn and live. Being shunned by all who might trade with him, he may find himself destitute and eventually starve to death. That's his motive to accept the obligation (and to accept the invitation to court in the first place.)

Only an arrangement of that kind avoids further violation of anybody's self-ownership rights. There are two parties in dispute, with their representatives, and only two. The notion of a fictional third party, whose “law” has been “offended,” is properly absent.

Exceptions, to this very civilized process? Yes, I can imagine the case of a serial rapist or other aggressor. He endures a process like the above more than once, but keeps on hurting people. He appears to be reprobate, and may very well have few resources with which to pay compensation. What's to be done with him? Particularly, to protect future likely victims? Then and then only, it's clear that preventative treatment is clearly called for, in some form. There will be very few like this, but there will be some. A Jeffrey Dahmer tortures, kills and eats his victims. Is he to be left free to continue?

I don't think so. Here are the kinds of restraints that will cramp his style.

First, his misdeeds will be public knowledge, along with all others against whom judgment has been entered. Nobody will employ him. The notoriety he deserves will make his life miserable; not only will nobody hire and pay him, nobody who has read his profile will even sell things to him. He'll be shunned.

Second, that notoriety will take a form comparable to today's idea of being “beyond protection of the law” -- that is, if somebody shoots him upon even a slight fear that he intends violence, the standards of proof against the shooter will be quite a lot relaxed. He'll be like an “outlaw” and, there being no government to prevent it, most potential victims will choose to be armed, with the proper ability to defend themselves.

Third, a court might order him shackled, at his own expense; equipped, that is, with an electronic bracelet which will be monitored 24/7, again at his own expense. But what if he refuses to accept the order? Then we will not be surprised if someone's trigger finger, as in #2 above, should suffer a severe nervous twitch.

Or fourth, he might be offered the alternative of living in a place with a fence around it, once again at his own expense. No cost will be applied to the community, of course, for that would have the form of a tax; but the facility could form a source of low-cost labor and so could be self-sustaining. A kind of enclosed work-house – and safe from twitching trigger fingers.

A fifth option, which I expect to become more popular with time, will be to offer the perp the alternative of surgery or drugs – of which the cost would be his own, or possibly that of an insurers' fund, since the overall effect would be to lower claims for the industry. As the workings of the brain become better understood, it may well become possible to remove whatever it is that causes violent aggressors to behave as they do. To impose that without his agreement would be punitive, but might be more attractive to the perp than his other options.

These five ways of preventing serial aggression won't work 100%; perfection is a little beyond even anarchists. But they will be an enormous improvement on the current system, based squarely as it is on the barbaric principle of an eye for an eye.

This mistake of Rothbard was very rare, and I certainly hope this article will not dissuade anyone from reading and enjoying the fascinating Libertarian Forum or the Irrepressible Rothbard, The former is huge, covering the first 16, exciting years of the modern libertarian movement as it happened, from 1969 thru 1984, with one issue every two weeks initially, then a longer one every month. The Kindle version occupies over 76,000 “locations,” or about nine times as many as, for example, Pat Buchanan's full length book, Churchill, Hitler and the Unnecessary War. Rothbard did have at least one other flaw – his elephantine, surprising blindness regarding how we can get from here to there – but the infallible human hasn't yet been born, Vatican claims to the contrary notwithstanding.

Otherwise, Murray Rothbard's output was phenomenal, and I've yet to encounter any of his books that covered their subjects in less than an elegant and accurate manner. As far as I'm concerned, if it's about economics, he is the go-to source. Power and Market, for example, is a masterpiece without which nobody should leave home. How this amazing man could juggle so many balls in the air at the same time I just cannot tell; typically he would have several erudite works in preparation simultaneously and be fighting to keep what later became the “Kochtopus” on track and be keeping the peace between Left and Right among NYC activists. And trying to earn a living. What a mind, and what a scholar!

But, on how to “put down” prison riots? Discontinue prisons, along with the government that runs them. This proper, libertarian solution is vastly superior to both the “liberal” and “conservative” ones, the only two that Rothbard considered.

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Jim Davies's picture
Columns on STR: 243

Jim Davies is a retired businessman in New Hampshire who led the development of an on-line school of liberty in 2006, and who wrote A Vision of Liberty" , "Transition to Liberty" and, in 2010, "Denial of Liberty" and "To FREEDOM from Fascism, America!" He started The Zero Government Blog in the same year.
In 2012 Jim launched http://TinyURL.com/QuitGov , to help lead government workers to an honest life.
In 2013 he wrote his fifth book, a concise and rational introduction to the Christian religion called "Which Church (if any)?"

Comments

Mark Davis's picture

Well said, Jim; your bold "Exceptions" addressed my "But, but, buts..."

Samarami's picture

Excellent treatment of Rothbard, Jim.

Yes, Murray was a human being. And human beings are fallible (present company excepted [:-)]). Had his life not been cut short I surmise he would have altered a number of his stances. He was that sort of man -- not to be intractable when refinement is indicated. The episode of his distancing himself from Objectivism is an example.

    But, on how to “put down” prison riots? Discontinue prisons, along with the government that runs them. This proper, libertarian solution is vastly superior to both the “liberal” and “conservative” ones, the only two that Rothbard considered.

As always, your "bottom line" matches my thinking. In jest I've accused you of being a "frontal attack man", where I lean toward flanking the adversary. But you get things accomplished that I agree with, and I admire you for that.

I hope you continue to whet our reasoning skills.

Sam

tesla921's picture

In a free society where all of the roads are privately owned, in many cases, you could get the perp to pay restitution to everyone involved without any coercion.
Say someone robs a store of $10k. Unbeknownst to him, he was video taped and it is obvious that he stole the money. The store has a restitution insurance policy and the insurance company comes in and makes the store whole again.
Now, in order to stay competitive, the insurance co. would like to get its money back. Through their proprietary technology they get the perps name and address. They send him a bill. The bill includes the money they paid for the stores restitution and any expenses they incurred.
The perp gets the bill. He laughs and throws the bill in the trash. No way he is going to pay.
It just so happens that the ins. co. owns all of the roads around his house. With their technology, they can prevent him from using their roads.
The perp can't drive his car anywhere. Every time he tries, his car is electronically disabled. He stays home, gets another bill in the mail, throws it away. He is now running low on supplies but he's not worried, he can walk to the store. He walks to the store and fills a cart with supplies. At the checkout counter his card won't work and the store refuses to deal with him until he makes provisions to pay restitution for his injustices. The store belongs to a group that doesn't deal with criminals. The same one the ins. co. belongs to. He goes back home. He has effectively created his own prison that he is paying for. He can't go anywhere.
Another bill arrives in the mail. He calls the ins. co. "I can't pay you're bill, I spent all of the money and I don't have a job". "No problem sir", the ins. co. says. What kind of work are you qualified to do?
The insurance will do their best to help him get a job and start paying restitution. It's in their interest.
Or, he could just go back home.

mhstahl's picture

Jim,

Indeed, there is certainly much that Rothbard was simply wrong about-and sometimes very wrong. Such appears to be the case in the Attica riots.

His error wasn't justifying retribution, however, but rather in accepting the notion that prisons are in any way proper institutions. They are not. They hold people idle at the cost of their victims (if they happen to have any, which is more rare now than in 1971.) As such, breaking out or tearing the place apart is an acceptable response to the force initiated upon the prisoners by a third party known as "the state." As such I agree with your final paragraph fully.

I also agree with you that "the state" is nothing but a group of people, and unless they were directly involved, and have no business deciding the resolution of a crime or imposing punishment.

To me, the question of "punishment" ought to first focus on ensuring that nothing similar occurs in the future, then, perhaps, upon restitution. The state's "justice" system provides totally insufficient deterrence, but at least it is some.

Indeed, you seem to even recognize this with your notion of itchy trigger fingers.

Nowhere does the non-aggression axiom say a word about using only "self-defensive" force. What it does say is that it is a violation to INITIATE force. Please point out where there is a time limit? If your serial rapist has a cigarette after brutalizing a victim is she morally barred from attacking him-she must mop up her blood and "invite" him to "court?"

If you wish to define non-aggression that way-feel free, but since folks like Rothbard, Block, and Kinsella, along with many others, including many left-libertarians I believe, do not so define it perhaps you should use different terminology for clarity's sake? (I'm not a fan of the imprecise NAP for largely this reason, btw, but it is what's there.) Perhaps, "self-defense pacifism?"

Victims of crime (usually) accept the state's determination of "justice" for the simple reason that all other options are illegal. I know this personally: a very good friend of mine was slaughtered some years ago by Jeffrey Zenowicz, who is now serving life in an Ohio prison. He would not have to worry about all that time without the state, trust me.

That doesn't mean that retaliation is wrong. It isn't, and not only is it not wrong, it is utterly necessary for a society to exist without government.

The reason that retaliation-or the threat of retaliation-is so important in stateless societies is not because it provides "punishment," or even makes a victim "whole."

No, what it provides is protection.

And, frankly, it is the only thing that can-state or no state. Those that might attack, or rape, or even steal must do so knowing that they face terrible and, even worse, unpredictable retaliation even if they overcome the individuals self-defense. Serial rape seems to me to be deterred far better if our rapist has a well-grounded fear of having his testicles flame-broiled with a pinch of salt by the victim's father, than if he is all aquiver at the thought of being shunned.

Self-defense is wonderful, but insufficient-it is too easy to be overpowered, or taken unawares. In such a situation, the only thing that protects one is the aggressor's fear of retaliation. Retaliation either from the state as now, or the victim's family(or other group)-or BOTH, which despite "the state" still sometimes exists: I don't suspect Sonny Barger's (Hell's Angels founder) daughter (if he has one) has much fear of rape, do you? Why? Testicles, salt, fire...I'd imagine his son would be left alone in Church as well...

There is a brake on all of this, of course. For the most part, everybody in such societies belongs to a group that will stand on their behalf. As such most quarrels are resolved with pay-offs-and the decision to "put beyond the law" rests with the trouble-maker's family...if they turn their backs-as they would with a serial rapist, all bets are off.

Non-aggression then becomes a survival tactic-rather than a theoretical moral code-which is exactly what it should be. The rules are simple: don't start shit!

You don't have to work so hard, Jim. The system already exists, it happens naturally when people live together without government's over-rated "protection"-they protect themselves, with both self-defense and retaliation. Is it "civilized?" Why, no. But then, neither are prisons. And while such societies do have some violence and small-scale warfare; it is nothing when compared to modern total war...or modern Detroit.

I'm glad you wrote this piece-particularly Rothbard's inexplicable thoughts, I simply disagree on what non-aggression means.

Best,

Mike

Thunderbolt's picture

Great article, Jim. We all face a serial rapist called the government. We know this vermin has raped millions of times each year for the past one hundred years or so, and yet he continues to rape at gunpoint, year after year. M.I.T. graduate Jim Bell once suggested that violent retribution against this rapist would be justifiable. Everyone knows this rapist will continue his trade, since he enjoys a fine lifestyle and profits handsomely. He is also known to enjoy his trade. He actually tells his victims that he is doing it for their benefit. In fact, the rapist sometimes incarcerates his victims in a prison. (See Irwin Schiff) Is Jim Bell in error?

Jim Davies's picture

Very interesting comments, thank you all. Samarami, congrats on joining me in the Strike-the-Root Infallibles Club  (STRIC) - welcome aboard.

The central thing to hold fast is that justice and revenge are two quite separate things, often opposed to each  other. The State has monopolized a "justice" system by deliberately confusing the two, The Church hasn't helped;  "Vengeance is mine, saith the Lord, I will repay" (Romans 12:19) may be telling believers not to seek revenge, but  it's also saying that the Christian God is a God of vengeance and likes to keep it all for Himself. Yuck.

Consider mhstahl's case of the rapist; his victim grabs a chance to plunge a kitchen knife into his neck while he is enjoying a post-coital cigarette. No doubt a court would empathize with her humiliation and rage and treat her leniently - but the fact is that she has taken much more from him than he took from her. That would not be justice, but revenge. Yes, she should have waited and invited him to a court of justice, so as to get made whole, period.

Much better would be the case I remember from some years ago: a Christian lady suffered that outrage, and after the attack engaged the rapist in a heart to heart with the Bible open at some good old Gospel texts. He was moved to repentance. She then spoiled it all by persuading him to give himself up to the State, and called the cops; but at  least she got it half right. She had evidently forgiven him already - so what did the government have to do with  anything?

Thunderbolt, I recall that proposal by Jim Bell. Creative thinking, at the time: he visualized using the Net with anonymous cash to reward people for assassinating particularly odious government b-rats, pour encourager les autres. But how does that either (a) maintain proper standards of justice (restoring violated rights, not exacting vengeance) or (b) achieve the (presumed) objective not of making government less repugnant, but abolishing it altogether?
 

Lawrence M. Ludlow's picture

Jim, that was really a very thoughtful article. Thanks for (1) identifying an error and (2) recommending an appropriate remedy. You're better all the time!