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PUNISHMENT AND PROPORTIONALITY (FROM ASSESSING THE CRIMINAL - RESTITUTION, RETRIBUTION, AND THE LEGAL PROCESS, 1977 BY RANDY E BARNETT AND JOHN HAGEL 3D SEE NCJ-46958)

NCJ Number
46969
Author(s)
M N ROTHBARD
Date Published
1977
Length
12 pages
Annotation
IMPLICATIONS OF A LIBERTARIAN THEORY OF PROPORTIONAL PUNISHMENT, THAT IS, THAT THE CRIMINAL LOSES HIS RIGHTS TO THE EXTENT THAT HE DEPRIVES ANOTHER OF HIS RIGHTS, ARE EXAMINED.
Abstract
THE PROPORTIONAL PRINCIPLE IS A MAXIMUM, RATHER THAN A MANDATORY, PUNISHMENT FOR THE CRIMINAL. THE PROPORTIONALITY RULE DETERMINES HOW MUCH PUNISHMENT A PLAINTIFF MAY EXACT FROM A CONVICTED WRONGDOER, AND NO MORE. IT IMPOSES THE MAXIMUM LIMIT ON PUNISHMENT THAT MAY BE INFLICTED BEFORE THE PUNISHER HIMSELF BECOMES A CRIMINAL AGGRESSOR. THUS, FOR EXAMPLE, UNDER LIBERTARIAN LAW, CAPITAL PUNISHMENT WOULD BE CONFINED STRICTLY TO THE CRIME OF MURDER. HOWEVER, THERE IS NO COMPULSION ON THE PLAINTIFF TO EXACT THE MAXIMUM PENALTY. HE COULD FORGIVE ALL OR PART OF THE PENALTY OR ALLOW THE CRIMINAL TO BUY HIS WAY OUT OF PART OR ALL OF THE PUNISHMENT. A PROBLEM ARISES IN ESTABLISHING PROPORTIONALITY ITSELF. IN LIBERTARIAN LAW, THERE EXISTS NO DEBT TO 'SOCIETY,' THEREFORE, THE EMPHASIS IN PUNISHMENT MUST BE IN PAYING ONE'S DEBT TO THE VICTIM. THE INITIAL AND PRIMARY CONSIDERATION IS THAT OF RESTITUTION, AND THE AMOUNT IS EASILY DETERMINED IN THE CASE OF THEFT. HOWEVER, FOR THE CRIMINAL TO LOSE RIGHTS TO THE SAME EXTENT THAT HE DEPRIVED THE VICTIM, HE ALSO MUST SUFFER A LOSS, THEREFORE, HE MUST BE MADE TO RETURN THE ORIGINAL AMOUNT TO THE VICTIM, AND IN ADDITION, TO PAY HIM THE AMOUNT AGAIN. IN A QUESTION OF BODILY ASSAULT, WHERE RESTITUTION WOULD NOT APPLY, THE VICTIM WOULD HAVE A RIGHT TO INFLICT THE SAME HARM HE SUFFERED ON THE CRIMINAL. THE AGGRESSOR WOULD, OF COURSE, BE ALLOWED TO BUY HIS WAY OUT OF PUNISHMENT, IF HIS VICTIM AGREED. ONE QUESTION WHICH OFTEN ARISES REGARDING THE LIBERTARIAN LEGAL SYSTEM IS WHETHER VICTIMS ARE ALLOWED TO TAKE THE LAW INTO THEIR OWN HANDS. THEY ARE, AS ALL RIGHTS OF PUNISHMENT DERIVE FROM THE VICTIM'S RIGHT OF SELF-DEFENSE. HOWEVER, THE VICTIM WILL GENERALLY FIND IT MORE CONVENIENT TO ENTRUST THE TASK TO THE POLICE AND COURT AGENCIES. CRITICS OF PROPORTIONAL PUNISHMENT LABEL IT AS A PRIMITIVE, RETRIBUTIVE SYSTEM. THE AUTHOR ASSERTS, HOWEVER, THAT PRIMITIVENESS IS NOT A VALID CRITICISM AND EXAMINES TWO MAJOR MODERN THEORIES TO SEE WHETHER THEY PROVIDE A CRITERION PUNISHMENT THAT MEETS MODERN CONCEPTIONS OF JUSTICE, AS RETRIBUTION DOES. THE UTILITARIAN PRINCIPLE OF DETERRENCE COULD ENTAIL GROSS UNJUSTICES, AS, FOR EXAMPLE, THE EXECUTION OF PETTY THIEVES WOULD INDEED SERVE TO DETER MOST PETTY THIEVERY. THE HUMANITARIAN GOAL OF REHABILITATION CAN ALSO LEAD TO ARBITRARY AND GROSS INJUSTICE. INDETERMINATE PRISON SENTENCES DEPENDENT UPON SOMEONE'S OPINION OF SUCCESSFUL REHABILITATION MAKE NO DISTINCTION WITH REGARD TO THE SEVERITY OF THE CRIME. A MURDERER MIGHT BE 'REHABILITATED' IN A FEW WEEKS, WHILE A PETTY THIEF MIGHT STAY IN PRISON FOR YEARS. (VDA)

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