The aim of this Open Letter is twofold: (1) to argue against what seems to be a widespread Libertarian tendency to regard the punishment of criminals as a just way of dealing with them; and (2) to suggest that there are moral options open to us in this area which would not have the effect of turning society as we know it into more of a jungle than it already is. I direct my comments to you Committee members so that you may consider adding a plank in repudiation of punishment in our party platform.

The Argument Against Punishment: The punishment of criminals is immoral and unjust, tragically so, since certain perfectly legitimate methods are quite sufficient (even superior) alternatives to punishment—methods which are often incorporated into punishment, but even then vastly underemphasized.

The basis of my argument is man’s rights. On the one hand, the criminal does not and cannot lose his rights merely be committing a crime per se, and thus cannot justifiably be imprisoned, for instance, merely because he has committed a crime and thus (supposedly) “deserves” imprisonment qua imprisonment.

On the other hand, the victim (and perhaps potential victims) has the right to self-defense and restitution against the criminal, and thus, again for instance, imprisonment may be the minimum force necessary to protect those rights—not, I must emphasize, imprisonment qua imprisonment, but instead, imprisonment qua protection of rights.

As I understand them, these principles constitute the backbone of the identifications made in the field of criminal law by the Equitarian Associates over the past four years. They are a sorely needed addition to the growing body of Libertarian theory based upon the Axiom of Non-Aggression (i.e., the principle of Man’s Rights). They are a welcome contrast to the badly confused views held, I fear, by many Libertarians.

The main fact I find to support this claim is that after Professor John Hospers’ two-part article on force and punishment appear in Reason a year ago, not one letter was printed in protest. [I sent a letter making points substantially similar to those in this essay, but it, along with Professor Hospers’ reply, was rejected for publication.] For the remainder of this Open Letter, then, I will focus my criticism on that article by Professor Hospers, in order to more fully illuminate, by contrast, the Equitarian (and proper Libertarian) position.

“Deserts” Vs. “Results”: A False Alternative: The article in question is “Some Problems about Punishment and the Retaliatory Use of Force,” which appeared in the November 1972 and January 1973 issues of Reason. In particular, I take serious objection to the section in part 2 entitled “How Much Retaliation Should Be Used?” in which Professor Hospers discusses the basic theories of punishment.

Hospers begins by saying that the proper retaliation for a crime depends largely on “one’s theory of the function of punishment.” (Reason, January1973, p. 20) He contrasts the retributive and utilitarian (or “deserts” and “results”) theories, maintaining that the former is on better grounds.

A person should be punished as retribution for his crime, “because he has committed a crime and should not be punished if he has not committed it, no matter how much good by way of deterrence, etc., punishing him may do.” (Ibid., p. 21) In other words, to justify punishing a person, we do so by reference not to desired future results, but to the past criminal offense.

This raises some serious problems. First of all, retaliation is the act of forcibly restraining a wrongdoer’s freedom of action with regard to his person, property, or liberty, in response to his misdeed. Quite obviously, this involves the area of the criminal’s rights, which would seem to place a limit on not jus the amount, but the kind of retaliation taken against him. Now, it is not at all clear to me just how the criminal deserves and should have punitive retaliation—i.e., punishment, the category of retaliation where one does so for the primary purpose of making the wrongdoer suffer for his misdeed (whether to reform him, deter others, or make him suffer per se)—“just because” he has committed a crime.

This seems to be a categorical imperative, instead of the conditional type of imperative tied to consequences or results, with which I feel much more comfortable in moral and legal discussions. In other words, Professor Hospers merely claims that criminal guilt (rather than the hope for reform, deterrence, etc.) is a sufficient condition for punishment—he has offered no objectively justifiable purpose for punishment.

Non-Punitive Retaliation: Now, since Professor Hospers has already adequately disposed of various “results” justifications of punishment, and since we have no likely new candidates, it would be well to consider whether there are any non-punitive forms of retaliation which are logically supportable.

There are, in fact, two: defense and restitution. These two forms of retaliation are logically derivable from the victim’s rights, and are held as claims against anyone who unjustly attacks and harms him.

Thus, there is justification both with reference to the past and to the future: in the case of defense, to the past initiation (or threat) of force, and the future prevention of successful completion of that initiation—in the case of restitution, to the past initiation of force resulting in loss of values, and to the future prevention of the criminal’s keeping those values away from one.

Furthermore, there is justification both with respect to deserts and results. An aggressor and only an aggressor deserves defensive and restitutive retaliation, since it is an aggressor and no one else who is trying to take away the values which you rightfully deserve to keep. And properly limited defensive and restitutive retaliation results (hopefully) in one’s keeping or recovering one’s rightfully possessed values.

In other words, restitution and defense are retaliatory actions directed against a rights violator for the purpose of protecting the victim’s rights. This very function Ayn Rand properly attributes to government in her essay “The Nature of Government” in The Virtue of Selfishness, though she, Professor Hospers, and many if not most Libertarians go beyond this seemingly clear-cut limitation on the retaliatory force permissible to government.

Several Neglected Distinctions: At this point, let us note that Professor Hospers’ including punishment as a legitimate activity of government is only partly based upon the false alternative view I have criticized above. It is also rooted in his failure to make several important distinctions in his article. Perhaps a clear identification of them can melt away the remaining aversion any of you Committee members may feel toward the anti-punishment view.

First, Professor Hospers includes retaliation for the protection of others (e.g., imprisonment) as punishment. At least, from his article, one gets no indication that he would not do so. At most, I suspect he would probably describe it as punishment with a misguided justification, or something to that effect: “I would hope that punishment in a particular case would do as much good as possible, by way of deterrence, reformation, and protection; but that is not the reason why a person should be punished…” (Ibid., p. 21)

But, in fact, such retaliation is not punishment at all. Its primary purpose is not to punish the criminal, but to restrain him from violating others’ rights by his aggression.

Secondly, and more explicitly, Professor Hospers includes retaliation for the purpose of restitution as punishment. “I do not deny that restitution to the injured party should, when possible, constitute a part of the aggressor’s punishment…” (Ibid., p. 22)

Again, however, restitution is not punishment-directed at all. Instead, its primary purpose is o force the criminal to undo the economic impact of his crime upon the victim. Naturally, this may involve the holding of the criminal so that he cannot avoid making restitution by fleeing the country.

A third and quite distressing confusion is the lumping together of opponents of punishment with pacifists:

Some libertarians, insistent on the non-initiation of force to the point of pacifism, apparently believe that no punishment whatever is justified for any offense under any circumstances. Part of the reason for this is the belief that no one has the right to do violence to another, even in retaliation. (Ibid., p. 22)

This passage contains a serious error: it confuses opposition to punishment and retaliatory force with pacifism. But since pacifists reject all force (initiatory and retaliatory), this omits the possibility of a position rejecting only initiatory and punitively retaliatory force, yet accepting restitutive and defensive retaliatory force.

This omission leads Professor Hospers to say that the opposition to punishment “would encourage crime and permit psychotic killers to be loose on the streets.” (Ibid., p. 22) Now, whether defensive and restitutive retaliatory force minus punishment would encourage crime is at best doubtful. But only in a three-fourths statist society such as ours can one reasonably worry about what streets psychotic killers would be permitted to be loose on. As Professor Rothbard and others have pointed out, this problem would be taken care of quite nicely by fully private ownership of streets and roads.

Professor Hospers continues immediately with the following non sequitur: “Example: when the Montreal police force went on strike recently, crimes of most kinds quadrupled within a few days.” (Ibid., p. 22) But surely this is not a clear-cut example of the consequences of no punishment. Might it not instead be an example of the consequences of no defensive and restitutive retaliatory force? Here we seem to have an example of the first two unmade distinctions combined. At any rate, it weighs heavily on Professor Hospers to show how, with a police force to apprehend and thwart criminals, the absence of punishment would cause a rise in crime.

In the last sentence of that paragraph, Professor Hospers says: “No society can long survive without some provision for punishment.” (Ibid., p. 22) By now, we can clearly see the correction which needs to be made to this statement: No society can long survive without some provision for defensive and restitutive retaliatory force.

Further Challenges to the Non-Punishment Position: Another challenge to the restitutive theory occurs in the next paragraph where Professor Hospers claims that substituting restitution for punishment “would wipe out at one stroke the legal distinctions carefully built up between murder and manslaughter, and the further distinctions of degree between each of these categories.” (Ibid., p. 22)

My reply to this is that only the legal distinctions would be eliminated, not the moral ones. We still have the powerful weapon of our voluntary refusal to deal with vicious criminals, of ostracism, and in the case of negligent individuals, to be less trustful of them in the future.

As indicated earlier, a fully implemented system of private ownership of roads and streets would greatly enhance the efforts of the police force in protecting the rights of decent, law-abiding individuals. Let those who choose to deal with a criminal to do so at their own expense and risk (including the risk of our censure). After all, in a free society, one’s reputation is one’s foremost social asset—or liability.

I want it to be clearly understood that ostracism is not all that I recommend in dealing with criminals. Indeed, imprisonment may well be necessary, not as punishment, but as self-defense (assuming that the guilty person is a threat to one’s own rights) or as the means of restitution.

Professor Hospers himself stressed the defensive aspect of imprisonment in an unpublished letter to Reason last year, in which he pointed out the unpleasant prospect of a (successful or unsuccessful) murderer going scot-free. I feel no qualms about agreeing with him on this point, nor when he says in his letter, in regard to the axe-murderer: “…I wouldn’t feel very safe in a society in which the only thing done to a killer was to ignore him.” (my emphasis)

Beyond this confusion of defensive imprisonment with punishment, and the justification of the former with the lack of justification of the latter, Professor Hospers does not offer support for his insistence upon the necessity of what he calls “punishment” for guilty persons.

Conclusion: It is far from clear why justice would not be fully served by strictly limiting the legal use of force to defense and restitution of values, and limiting reprisals to purely non-coercive, social sanctions against the criminal. The onus of proof must surely lie upon those Libertarians and others who claim that justice requires more than this.

In light of the recent calls for re-institution of the death penalty by President Nixon and others, it is an especially opportune moment in history for Libertarians to take a firm stand against punishment, an unnecessary evil.

3. None Dare Call It Non-Punishment[iii]

The Semantics of Retaliation

It seems that, as in the archy-anarchy dispute, the established modes of thought and speech militate against our calling a spade a spade. For some time, I have anguished over the question as to why anarcho-capitalists persist in claiming that the associations established around free-market police and arbitration agencies are not governments, when, in plain fact, they are. Similarly, I fretfully ask: why must retributivists persist in claiming that self-defense is punishment, when, in plain fact, it is not?

Merely because the overt harmful physical result of imprisoning a man as punishment for a crime may be the same as that of imprisoning him because the nature of his crime and his execution of it establish the need to do so as self-defense? There seems good reason not to equate the terms in such a manner.

First of all, punishment includes things not included as self-defense—e.g., punishment of “victimless crime” lawbreakers. And self-defense includes things not included as punishment—e.g., locking one’s doors and windows at night, installing an alarm system, etc.

More fundamentally, however, even in the area where the two concepts appear to overlap, they are sharply distinguished by the purpose which the retaliatory action is intended to serve.

Ø  Punishment is for the purpose of changing the criminal’s psychological state—to make him suffer (retribution, or perhaps vengeance), to discourage him from repeating his act (deterrence), to direct his conscience to proper social behavior (rehabilitation), or whatever.

Ø  Self-defense is for the purpose of protecting oneself and others against criminals. Both or neither punishment or self-defense may entail, for instance, imprisonment—society-wide ostracism—but if they do, they are still performing different functions.

To call any forcible harm done to a criminal “punishment” is to fail to focus on the basic purpose of what was done—just as to call any forcible reprisal “retaliatory force” is to fail to focus on the amount of force used relative to the minimum amount necessary to protect or regain one’s values (the former amount constituting initiatory force, if it is excessive).

What is the basic purpose of one’s actions toward a criminal? Is it to change the criminal’s psychological state, for whatever further end—or to protect oneself, by whatever effective means? That, punishment advocates, is the difference between punishment and self-defense, in those cases where they appear to be one and the same.

4. Another View of Punishment[iv]

Lee’s Ethical Egoist Theory of Punishment

There are many theories and notions of punishment floating around these days—few of the Libertarian in name, even fewer being proven or plausible. A healthy exception to this would seem to be that presented by J. Roger Lee, “Reflections on Punishment,” in The Libertarian Alternative (ed. Tibor R. Machan, pub. Chicago: Nelson-Hall Co., 1974, pp. 56-66). In this essay, Lee proposes to construct a theory of punishment consistent with ethical egoism.

Lee shows conclusively that both the utilitarian and the retributive theories are inadequate for satisfying the conditions of egoism. In particular, retributivists fail to prove to use why we ought to punish a “deserving” individual, whether in the sense of “desert” where “the punishment was appropriate to the wrong act” (pp. 58-9), or the sense where “a person gets all the causal consequences of his action” (pp. 59-60).

Let also rejects the “seductively simple proposition—that there is no need for punishment, that if we who do right actions merely leave the perpetrators of wrong actions alone, then reality will insure that the wrongdoers fail while we who do the right will prosper” (p. 62). This view is faulty because (1) men are valuable to each other only in productive, trader relations, (2) individuals can find value in associating with each other only on the basis of free exchange of goods and services, and (3) each man’s interest entails the provision that such exchanges of values are the only such exchanges allowed in the society, that only rational exchange, not force or fraud, is permitted (p. 62). Punishment, Lee believes, acts against these three weaknesses of a society without punishment and “will thus maximize the good for each individual that can be found in the society in which he lives” (p. 62).

Punishment is necessary in addition to defense, Lee maintains, because “defense…is anticipatory,” and the response to a wrong action after it has been taken is “something other than defense…[namely] retribution [i.e., restitution], and than punishment” (p. 63). In general, punishment is supposed to keep society safe for “peaceful exchange among reasonable men,” by (1) making the cost of non-peaceful exchange discouragingly high, and (2) implementing the expression of social disapproval by dissociation from the criminal who demonstrates disagreement with the likeliness to act against the basic law of proper human coexistence (p. 64). Essentially, punishment has historically meant losing the ability to freely associate with other men, so Lee suggests a police-supervised penal colony where criminals could trade among themselves and with outsiders (without leaving, however), while bearing the supervisory, administrative and restitutive costs of their crime (pp. 64-5). Lee thus limits “punishment” to the enforced dissociation of the society from the criminal.

Desert of punishment rests upon a person’s demonstrating “that he is not willing to search out reasonable agreement with his fellow men and thus not to be trusted in the free association with his fellowmen…,” that he “acted in such a way as to undermine” the type of social interaction which is conducive to long-range well-being, and that he thus “ought to be excluded from free association with those members of the free advanced society who have not so acted” (p. 65).

But even though Lee’s proposal is far more reasonable than many voiced by others (even Libertarians), I still have qualms about going even that far. Referring back to my remarks in REB #2, I again raise the question as to whether a proof is available showing that “it is morally obligatory for us to set up a system which allows a small number of men [or even a large number!] to decide whether or not all men must agree to the forcible exclusion of the criminal from society, i.e., whether we ought to delegate our right of ostracism [the right to voluntarily deal with someone, which is merely a corollary of the right to free association] to our protective agency or government.”