NoodleFood: Principled Punishment and the Death Penalty


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Wednesday, July 09, 2008

Principled Punishment and the Death Penalty

By Greg Perkins @ 12:05 AM
There are two natural criteria to attend to if we are to advocate the death penalty in our justice system: we must establish that we are objective in identifying, say, heinous murderers -- and we must establish that it is morally permissible if not mandatory to kill them when so identified.

I want to focus here on the moral question: should we kill the heinous murderer when he is so identified? (I appreciate that the epistemological troubles of our justice system are substantial and likely rule out as negligent the imposition of any punishment so decisive and final as the death penalty. For the moment, though, let's set aside today's epistemological issues and their general reform; please assume objective convictions for this discussion of punishment.)

In addressing the morality of the death penalty, we may be tempted to simply appeal to retributive justice and say that one should lose a life for taking a life, discussion over. But while Objectivists support a retributivist justice system, this principle is not by itself decisive regarding the specific punishment of the death penalty: notice we can't and don't attempt to balance crime and punishment literally, with an eye for an actual eye, a theft for a theft, and so on. (Consider the simple example of an arsonist burning down your house. It is not possible to likewise burn down his if he is a renter.) No, we are satisfied -- and necessarily so -- with the justice of something more indirect. We use proxies like imprisonment and fines, scaled and otherwise adjusted to achieve the effect we seek in matching punishment to endless variety in crime. So any answer to the moral question around the death penalty has to accommodate this and explain just what would make killing a heinous murderer necessary in lieu of, say, locking him up for life.

I haven't yet seen any fundamental explanation of what would require "the ultimate punishment" in the face of this element of flexibility in our response to crime. Here I'll propose a way of thinking about punishment that answers that challenge, and more. (Because I am not a lawyer and could easily be confused about our legal system, I especially encourage legally-savvy readers to jump in and correct or clarify as needed!)

Nested Classes of Offense

First, note how Objectivism carefully distinguishes immorality in general from criminality, a particular species of immorality. Shunning productiveness is your own problem, until you start stealing from others to feed yourself. The key distinguishing feature here is the initiation of physical force (including indirect forms, like fraud). It is one thing to choose not to pursue life yourself -- i.e., to choose not to be moral -- but it is another to also initiate physical force and prevent someone else from doing so, suppressing their moral agency. This is why the Objectivist politics identifies the proper scope of government action (and any legitimate use of physical force) as a response only to violations of rights, leaving all other matters to force-free resolution via, say, personal disassociation. It is specifically the initiation of physical force which necessitates a response involving physical force.

I am going to argue that just as rights violations are essentially different than other cases of immorality and thus require an essentially different kind of response, that there is an essential distinction between criminal offenses and civil offenses that requires an essentially different kind of response, and that there is an essential distinction between capital offenses and other kinds of crime that requires an essentially different kind of response. In every case, the nature of the offense is different in kind than offenses from the other classes, and in all cases the nature of any response, to be just, must at least match the offense in kind. That is: while injustice is possible if crime and punishment are not well matched, justice is impossible if they are not at least from fundamentally commensurable classes.

Consider then the following classes of offense and how they relate to each other, beginning with mere immorality and progressing through nested subclasses of ever-stronger rights violations (yes, as I try to frame these categories in terms of essentials, I may be shifting some boundaries as currently conceived and implemented in our legal system) :
Immorality: when someone operates counter to the fundamental principles of sustaining human life (is dishonest, irrational, lacks integrity, etc.). In this case, others are free to respond with a range of peaceful forms of disassociation (by, say, avoiding someone, or perhaps even advertising that choice and their reasons for it). Lameness calls for loneliness. Note how offense and response must be at least fundamentally commensurate: where there is no physical force being initiated, no physical force may be used in response (otherwise that would itself be an injustice to take legal note of -- an initiation of force, criminality in response to mere immorality).

Civil offenses: when someone isn't just immoral, but more specifically bears responsibility for damaging an innocent's person or property (say, with an irrational contract dispute, or an at-fault driving collision). In this case, our justice system compels the offender to repair the damage they are responsible for. Damage calls for restoration. Note how again offense and response must be at least fundamentally commensurate: responding to a civil misdeed with only disassociation of any stripe would be unjust -- and, as indicated above, responding to mere immorality with compulsory "reparations" of any kind would likewise be unjust.

Criminal offenses: when someone isn't just responsible for harming an innocent's person or property, but more specifically intentionally curtails an innocent's moral agency (say, with armed robbery, fraud, burglary). In this case, our justice system in turn curtails the offender's moral agency (his liberty via imprisonment, his property via fines and confiscation). Curtailment calls for curtailment. Note yet again how offense and response must be at least fundamentally commensurate: responding to a criminal misdeed with only compulsory reparations would be unjust -- and responding to mere civil offenses with imprisonment of any length would likewise be unjust.

Capital offenses: when someone chooses not just to curtail an innocent's pursuit of life, but more specifically to eliminate an innocent's life (say, with premeditated murder). Here then is the key distinction to observe: murder isn't merely subverting someone's means to continued existence, curtailing their pursuit of life -- it is purposefully eliminating their life itself, ending their existence altogether. There is a difference in kind between the implicit and the explicit, the means and their end, and these cannot be treated as merely different in degree. Annihilation calls for annihilation. As with the other classes above, offense and response must be at least fundamentally commensurate: responding to a heinous murder with only imprisonment, no matter the length, would be unjust -- and responding to a mere criminal offense with any form of the death penalty would likewise be unjust.
I think the above clarifies the objective basis for capital punishment, cementing the moral necessity of its use when the proper conditions have been met (and please note again that such conditions would include an epistemologically sound conviction).

Because the above organization encompasses and relates the entire range of misdeeds and response along principled lines, we have an opportunity to see if it might help explain, or even suggest adjustments to, other aspects of our justice system.

Decomposition of Crime and Composition of Response

Focus now on how the above classes are nested, with each being a narrowing of the preceding: Not every moral breach is a civil offense (often one is only harming oneself, or only harming others in non-rights-violating ways) -- while every civil offense is necessarily a moral breach (that is the source of the responsibility for a rights-violating harm). And not every civil offense is a criminal offense (being responsible for harm and intending to do harm are not the same thing) -- while every criminal offense is a civil offense (intending to do harm certainly makes you responsible for it). And so on through all of the classes.

This indicates that responses should not be limited to only what is indicated by the narrowest category that applies, but must also include any relevant responses from each of the broader enclosing classes as well -- because they all apply. So murderers should expect time in prison (for the criminal aspects), being forced to make any possible reparations (for the civil aspects), and certainly infamy and social ostracism (for the moral aspects), on their way to annihilation (for the capital aspect). And a burglar should expect fines and jail time (for the criminal aspects), to restore his victim (for the civil aspects), and to suffer social ostracism (for the moral aspects). Any given crime must be treated on all applicable levels, by decomposing its aspects into relevant charges, and addressing each to compose the full response.

Our legal system's support for separate treatment of civil and criminal offenses is a mechanism for satisfying this need. But it is also interesting to see how the cascade of offenses above helps us see how our approach is not the only way to satisfy this need: a different court system could, say, use a single trial, decomposing the offense into its various charges at all levels for appropriate assessment, and then handing down a single, integrated response. The cascade of offenses also clarifies how holding separate civil and criminal trials needn't introduce the injustice of "double jeopardy": the charges and potential punishments for each of these classes are different in kind -- one being about responsibility for damages, the other about criminal curtailment of moral agency or worse. So whether or not both of these aspects of a crime are assessed during the same proceeding is immaterial, a matter of convenience or tradition.

One danger of our current two-trial approach, though, lies in blurring the distinction I've drawn between civil and criminal matters. Their division of judicial labor can become unprincipled and uncoordinated: consider that we have criminal courts handing down orders for reparations, and civil courts handing down orders for "punitive damages." This blurring of responsibilities seems to flirt with the injustice of double jeopardy. Worse still, in the case of civil courts drifting into handing down punishments, the higher standard of judgment demanded in criminal proceedings is being evaded.

Graduated Standards of Judgment

Regarding standards of judgment, consider how this nested structure highlights qualitative leaps in the gravity and irreparability of offense and response. Combined with the fact of limited time and resources, this suggests the need for qualitative leaps in standards of judgment and extent of oversight. Negligence in the justice system itself cannot ever be acceptable (that would render it literally an injustice system) : the more grave and/or irreparable the crime, the more diligence we must bring to bear to ensure correctness in conviction and punishment with a similarly grave and/or irreparable response. Our present system addresses this need as follows:
In civil judgments we must show responsibility for damages. Our system's standard for demonstrating such liability is that of a "preponderance of the evidence", which seems to roughly correspond to what Objectivists technically classify as "probable" [OPAR 178].
In criminal judgments, we must show intent to commit a rights violation (i.e., the initiation of physical force, even indirectly like with fraud or potentially with assault). Our system's more-rigorous standard for demonstrating such guilt is that of "beyond a reasonable doubt", which seems to roughly correspond to what Objectivists technically classify as "certain" [ibid].
In capital judgments, we must show intent to cause a rights-violating death. This requires the standard of criminal judgments, with the additional requirement of appeals and extended scrutiny and oversight to further insure against any systemic negligence.
Carefully observing the proper standard for each aspect of a crime is required, lest we court the kind of systemic negligence mentioned above, with civil courts handing down "punitive damages."

Commodity Units of Punishment

Because of the impossibility of literally matching offense and response, as well as because of limits in time and resources, we need to institute uniform responses to crime that make it possible to "dial in" a just match to any given offense.

The above classes of offense are based in philosophical principle and fixed, while within each class there is endless variation in misdeed. Because the misdeeds in each class are fundamentally commensurate, though, we have the possibility of commoditizing our responses, making them regular and even scalable to match a great variety of fundamentally similar offenses. The use of such units also allows us to objectively express the relative badness of one offense vs. another, making for sentencing open to audit, against guidelines that are open to review, clarification, and correction.

In civil reparations, we achieve commoditization of damages economically: most damages can be cleanly reduced to the monetary impact of the replacement value of items, the time value of lost use, the value of time away from work, the economic impact of reputation damage, the economic impact of a lost limb, etc. The troublesome aspects for restoration lie in physical pain, mutilation or death, psychological suffering, the loss of a unique object, and the like: these cannot be genuinely repaired with money or any object or action. Take pain and suffering, for example: at best, we might attempt to contrive a monetary valuation for psychological suffering by rough, subjective scaling of pay for an extraordinarily unpleasant job. But the trouble is most clear in the case of physical pain: trying to find the market value for the experience of letting someone, say, break one's arm is right out. This is quite unfortunate, because it means a victim of such damage cannot be made whole in principle. In such cases there is simply no justice to be had -- and this would be morally intolerable if it were not due to a metaphysically-given fact.

In criminal punishment, our system commoditizes moral agency curtailment via limitations on liberty (incarceration) and takings of property (fines or confiscations). Each component can be scaled and combined with the other in practically endless ways to punish much of what makes up criminal activity. Even psychological suffering can be captured by such losses. But just as we cannot repair the infliction of physical pain in civil cases with any action or object, we cannot genuinely punish the infliction of physical pain via incarceration or fines. These are simply not commensurable. And while there was a metaphysically-given fact standing in the way of civil reparations for such damage, there is no such fact standing in the way of criminal punishments for inflicting such damage.

To genuinely punish the intentional infliction of physical pain, we would need a uniform, scalable imposition of physical pain by some means (ideally one that could deliver a controlled degree and amount with no physical damage whatever, thus leaving all other elements of the crime to be matched as needed by a mix of incarceration, fines, and so on). While perhaps distasteful, this seems to be the only kind of unit which is actually commensurable with the sometimes substantial physical suffering intentionally inflicted in cases involving torture, beating, rape, and so on. In having such a unit of punishment available to match those (and of course only those) commensurate aspects of a crime, the justice system would no longer be driven by its current inability to actually punish, say, a heinous rape of a child, into seizing upon "some" (i.e., the only available) "greater punishment" than even life behind bars. Such a category leap into capital punishment for even a particularly horrible but 'merely' criminal offense is in fact unjust. Responses like that corrode the absolute, principled lines of the justice system to invite ever more arbitrary actions and corrosion -- precisely what must be avoided in a proper government's response to crime. (Note that, just as in capital punishment, such corporal punishment is impossible to repair, so the epistemological oversight must be likewise heightened to prevent systemic negligence.)

In capital punishment, our system achieves commoditization by ostensibly employing a small, uniform set of (relatively) quick and painless procedures for execution. (Note that there is no need for a scalable unit of capital punishment because existence vs. nonexistence is binary.) And on the account here, it is a good trend to seek to standardize on the most quick and painless method(s) of execution -- including bringing as little gore and psychological damage to the witnesses and executioners as is possible. While methods of execution that are purposely torturous and gory in varying ways and degrees have been used throughout history, this would again be a case of needlessly mixing in aspects of punishment which should be assessed and treated independently, in the criminal supercategory. For example, a heinous torture-murder should be decomposed into the judgment and response to the torture, and the judgment and response to the killing, each by the applicable standards -- and this would result in an overall punishment that is properly distinguished from the punishment for a 'mere' murder.

Toward Principled Punishment

I have argued here that we should seek principled lines in identifying and classifying misdeeds, to systemically encourage justice and discourage injustice in our potential responses. And while perhaps distasteful, this means that we should ensure that our justice system has available all of the needed kinds of units of punishment, as in the cases of corporal and capital punishment. This is not only to allow the possibility of genuine justice in punishment, but also so frustration at the systemic prevention of justice caused by any such gaps will not drive people to seek "justice" by violating the principled lines we must observe to maintain the objectivity of our system. That kind of corrosion in particular has to be avoided, lest we spiral ever further into the arbitrariness which has characterized so much of mankind's approach to punishment.
Labels: Epistemology, Ethics, Law, Philosophy

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Comments

Wednesday, July 9, 2008 at 4:27:46 mst
Comment ID: #1
Name: tjw
E-mail: sourcevive(at)comcast.net
I hestitate at the use of intent as the qualifier between civil and criminal offenses. One could commit an intentional tort, and it would still fall in the realm of a civil case. For example, I could intentionally refuse to pay a contractor because I believe he did not complete a job as agreed. He might then sue me, and it would be up to the courts to decide which party is in breach of contract. The act in question is intentional, but it is still a civil case.

I think the best distinction is between delegated and non-delegated rights. In criminal cases, we delegate to the government the right to obtain justice and exact punishment, and in civil cases, we retain that right ourselves.

Wednesday, July 9, 2008 at 5:41:33 mst
Comment ID: #2
Name: Aaron Davies
E-mail: agd12(at)columbia.edu
Two questions: first, why would it not be sufficient to use fines, perhaps scaled up significantly, as the sole criminal punishment? Some historical societies have done so (some would also include capital punishment), and imprisonment seems to present practical problems of implementation so severe that I think it's worth looking into whether it's really necessary. Second, what do you think about the other traditional capital crime, treason? Is there a place in objective justice for "capital crimes against society"?

Wednesday, July 9, 2008 at 6:44:49 mst
Comment ID: #3
Name: William H. Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/
My standards for capital punishment are prudential in nature�"but lead to somewhat similar results, which could be taken as a neat illustration of the convergence of the moral and the practical.

Consider a really heinous crime: the forcible rape of a small child. A lot of people would advocate the death penalty for this on grounds of sheer repugnance. But consider the criminal's situation if this is instituted: There he is, with a victim who can identify him, and subject him to the death penalty, if she remains alive; if he kills her, he faces no greater penalty�"but he's less likely to be caught and less likely to be convicted. The law is giving him an incentive to add murder to his crimes. If, on the other hand, he faces the death penalty only if he kills her, he has some incentive to leave her alive. So I'm not in favor of death as a penalty for anything but intentional homicide.

On a different line of thought, it's interesting to note that Aquinas uses a similar concept of graded levels of wrongful action�"but killing someone is not the highest level. In his scheme of things, a dead person can still attain salvation. Death is a temporary state that may be followed by unending bliss. But damnation is eternal. Accordingly, Aquinas says that exposing someone to damnation is a worse crime than murder, and that it's lawful to use deadly force to suppress heresy. And given his premises, it's a logical position. But it's also a scheme of graduated standards of justice, comparable to that advanced here.

Wednesday, July 9, 2008 at 7:50:24 mst
Comment ID: #4
Name: Lemuel
E-mail: synthesist(at)ymail.com
I have only had time to skim the essay, but I look forward to digging in deeper when time allows.

My own thoughts on capital punishment have been cloudy for some time, and every time I think I've reached a conclusion I realize my thinking is all wrong - it ends up being something concrete-bound ("good if it aids in heinous crime prevention"), or a conclusion devoid of context ("civilization cannot tolerate a vicious criminal"), or appealing to emotion ("in what way is capital punishment not mere vengeance")?

Since I don't plan to commit any heinous crimes, I'm not particularly worried about figuring this issue out anytime soon, but I look forward to thinking hard on Mr. Perkins' essay later.

Wednesday, July 9, 2008 at 7:58:12 mst
Comment ID: #5
Name: Paula
E-mail: paula.hall(at)live.com
Great post, Greg! I have a couple of responses to the comments so far.

TJW voices a concern about using intent as the dividing line between civil and criminal cases, arguing instead that the dividing line is whether we delegate our right to seek redress. This seems to beg the question: how do we decide what to delegate? I think that, perhaps, intent could be a useful dividing line if we specified what was intended. In the case of refusing to pay a contractor who one thinks has not rendered a complete service, there is certainly the intent not to pay. But there is no intent to cause harm -- in fact, the intent is to avoid suffering harm because of the acts of the contractor. If, on the other hand, one intends to defraud the contractor, that would be criminal. In your example, there does not seem to be any intent to defraud. The "intentional" tortfeasor in your example did not intend to achieve a value through the initiation of force. But a criminal would so intend. We could still use intent, therefore, if we drew the line between the unintentional and intentional destruction of another's values through the initiation of force. The first would be a civil wrong, the second, a crime.

Aaron asks why a graduated system of fines would not be a sufficient punitive scheme for criminal offenses. The principled answer is: because justice would not be served (see http://aynrandlexicon.com/lexicon/justice.html). If there has been an objective judgment that a person has curtailed another's freedom/moral agency, recognition and respect for reality demands that we respond in kind. By curtailing the criminal's freedom, we bring into reality the only effect the criminal's action could properly cause, curtailment of his own moral agency. In other words -- we give him what he has asked for.

I also have an objection to the fining strategy on practical grounds, which in the end, reduce again to an objection on the principle of justice.

Consider a poor man and a rich man both objectively convicted of first degree murder. What could be the fine? Even if it is a very large set figure, the rich man will pay off his fine much sooner than the poor man will. The poor man could spend the rest of his life paying the fine. The poor man could therefore be subject to curtailed freedom (not having the right to use and disposal of his own property) for his entire life, and the rich might not suffer any such continuing curtailment of freedom. This would be true at any set fine level. To the extent such a fine would be a deterrent, it would work much less well on the rich, and this is inequitable. But what if we say that the penalty for first degree murder is simply turning over all of your earnings forever? Doesn't that immediately become an incentive to work as little as possible? To counteract that incentive, doesn't the state have to exert some physical control over the convict? And even if the state did enslave the convict (for that is what would have to be done), there is no way, through the initiation of physical force, to make a man more productive, convict or not. So the punishment (the amount of the fine) for taking someone's life would vary from murder to murder, and ironically, the punishment would be greater only when the convicted murderer accepts the punishment by working as productively as possible, for no personal reward, for the rest of his life. The total fine paid would be dependent on the good character of the convict. This is completely upside down. Finally, there is the issue of the family of the murderer. Fines paid would impose hardship on the family, and they are completely innocent.

I am sure there are other possible objections to using fines alone to punish crime. These are the two I could think of off the cuff. In sum, I think a scheme of graduated fines as punishment for crime is unjust because 1) it doesn't recognize the character of the actions of the criminal, and 2) its implementation would necessarily be unjust.

Wednesday, July 9, 2008 at 8:06:58 mst
Comment ID: #6
Name: Greg Perkins
E-mail: greg(at)ecosmos.com
URL: http://ecosmos.com
Hi, tjw. The case you talk about is not actually a counterexample -- that is likewise classified by me as civil and not criminal. The intent that I refer to is specifically the intent to cause a rights-violating harm, which that clearly is not.

It is the difference between someone who has an unforeseen seizure and happens to drive his car over a pedestrian, vs. someone who wants to kill a pedestrian and drives the car over him. They both intended to drive their cars, but only one intended to harm someone. The intent I am focused on for that distinction is the latter.

Thanks,
Greg

P.S.: The distinction you mention between delegated and non-delegated powers does not tell us which offenses *should* be in which category. For example: how do you know whether the mugger should be prosecuted by the government rather than sued by you? Emotion or tradition? Of course you wouldn't want that; you would want some principle to tell you which goes where, and that is precisely what I'm trying to address.

Wednesday, July 9, 2008 at 8:12:47 mst
Comment ID: #7
Name: Greg Perkins
E-mail: greg(at)ecosmos.com
URL: http://ecosmos.com
Hi, Paula. Thanks! I didn't mean to repeat what you'd said; your response was posted while I was typing. :^)

Wednesday, July 9, 2008 at 9:18:48 mst
Comment ID: #8
Name: Paula
E-mail: paula.hall(at)live.com
No worries, Greg -- glad I understood the point you were making! ;-)

Wednesday, July 9, 2008 at 9:27:40 mst
Comment ID: #9
Name: Greg Perkins
E-mail: greg(at)ecosmos.com
URL: http://ecosmos.com
Hi, Aaron. You also asked whether treason should be considered a capital crime, and if there a place in objective justice for "capital crimes against society".

I don't think it is proper to frame offenses as against "society" apart from the individuals that make it up; only people have rights, so crimes must always reduce to offenses against people.

In the case of treason, to aid the overthrow of a (proper) government is to attempt not just to violate rights, but to attempt to institute a murderous, rights-violating *regime* over all of one's countrymen. Aid and comfort to the enemy of one's (proper) government in times of war is to assist in the murder of soldiers who are fighting to protect rights, on the way to instituting such a regime over the entire nation's people.

That sort of thing certainly qualifies as a capital crime. (Once again, I am not a legal expert, and am not qualified to lay out the full scope and technical definition of treason and its objective demonstration. I'm only qualified to toss off this broad sort of assessment. :^)

Wednesday, July 9, 2008 at 15:42:54 mst
Comment ID: #10
Name: Steve D'Ippolito
If I read this correctly, you advocate (or at least suggest considering) infliction of pain in some criminal cases (e.g., torture), and a painless execution in those capital case that do not also include a non-capital criminal element. A capital case that involved torture and murder, you would do both the corporal punishment, then the execution. Correct?

(Incidentally, I am given to understand that breathing a pure nitrogen atmosphere until asphyxiation is utterly painless. The victim simply passes out and if not rescued in time, never wakes up. The quite unpleasant sensation of not being able to breathe is actually the body's response to the buildup of CO2, not the lack of oxygen. Thus a completely painless method of execution suggests itself--put the condemned man in a chamber then feed pure nitrogen in, instead of air.)

Wednesday, July 9, 2008 at 15:46:57 mst
Comment ID: #11
Name: Steve D'Ippolito
And (oh, yeah) I like the approach you are taking to this. This would be a sweeping reform of the way our legal system takes.

Though I think it might be necessary to retain separate court systems for the three levels where a court will get involved, if only to reinforce to the participants the distinctions involved, and prevent lines from being blurred as you point out has happened in the past. Being in the Capital court would mean a matter of the death penalty is being decided, being in the criminal court would mean jail, fines, or corporal punishment is involved, being in the civil court would mean only monetary reparations are involved.

Wednesday, July 9, 2008 at 16:05:47 mst
Comment ID: #12
Name: Greg Perkins
E-mail: greg(at)ecosmos.com
URL: http://ecosmos.com
Hi, Steve. You ask if I am advocating, for "A capital case that involved torture and murder, [that we] do both the corporal punishment, then the execution. Correct?"

Yes, that is what I am advocating. (Though please note that I am advocating it because of the thinking I've outlined here -- if I come to see troubles with that thinking, then of course what I advocate will change accordingly.)

I didn't say it in so many words, but here would be my key passage in agreement: "For example, a heinous torture-murder should be decomposed into the judgment and response to the torture, and the judgment and response to the killing, each by the applicable standards -- and this would result in an overall punishment that is properly distinguished from the punishment for a 'mere' murder."

Thanks,
Greg

Wednesday, July 9, 2008 at 18:48:50 mst
Comment ID: #13
Name: commenter
"But while Objectivists support a retributivist justice system..."

I think objectivists should be careful here. Criminals do and should get punished, and in proportion to the crime, but this isn’t what the law is ~for~. The justice system exists to ~protect~ law-abiding citizens, by compensating victims (as far as possible), locking up dangerous people, and preventing further harms through deterrence. Punishing criminals is one means to that basic end of protection, but again, the punishment itself should not be considered the purpose. The state should not be in the business of teaching moral lessons. It's hard to see how capital punishment could be defended on grounds of compensating victims or ensuring public safety. Nor is it clear that it's much of a deterrent. If some other argument can be made for it, based on protecting the law-abiding, then so be it. But the state should not execute a criminal just because in some sense the criminal "deserves" it. That's frightening territory, granting the state such power. Punishment must be only a function of protecting value. I think that's the only sensible position for an objectivist.

Wednesday, July 9, 2008 at 20:24:41 mst
Comment ID: #14
Name: Dave Littel
E-mail: DaveLittel(at)cox.net
Thanks Greg for a fascinating read.

Regarding your distinction between capital crimes and other crime, I think you're onto something and I think I agree.

But I want to focus on the distinction between civil and criminal offenses. Here I disagree. I think this distinction is more profound than you say. Namely, civil actions are an application of justice to someone who's been harmed--whose rights have been violated. Criminal actions are an application of justice to someone who has acted in a manner intended to cause harm to another. At least in a more "pure" form, more objective than what we have now, this is the essential distinction between civil and criminal law.

The civil action is all about the harmed party. It begins with a yes-or-no question: did the defendant cause the harm claimed? It then proceeds to an assessment of damages needed for reparation. But note that the initial yes-or-no question is not, and need not be, an evaluation of the defendant or even really his action. At least in an objective system, the question is whether or not the defendant caused an application of force or indirect force to the plaintiff and thereby caused harm. There need be no evaluation at all of the defendant himself that would form a basis for punishment, and the only evaluation of even the action is simply to determine the answer to the yes-or-no question of whether he's liable. The assessment of damages then proceeds, as you explain very clearly, in an effort to make the plaintiff "whole" for the harm caused. I believe the key is to recognize that the purpose of assessing damages against the defendant is *not* punishment, and not even a pale form of punishment. It is not concerned with the defendant at all; it is concerned with the plaintiff.

In my view, crime and criminal actions are on a different axis altogether rather than being on some kind of continuum with civil actions. They are concerned 100% with the defendant. The question in a criminal action is "what should be done to the defendant?" And the question is the same even when there is no rights violation at all. Two examples are crimes of attempt and conspiracy. Attempts, such as attempted murder or attempted rape, are typically punishable by roughly half of the penalty for the completed crime. I agree absolutely that these are valid crimes deserving of criminal punishment. (The question of whether punishment should actually be identical to that of the completed crime is a fascinating issue for another day.) In conspiracy cases, all that need by proven is is an agreement (a viable, real agreement) to commit a serious crime. Here again, there can be valid criminal punishment even absent any actual violation of the rights of any person.

Thus, I don't think the structure you've outlined holds up with respect to the civil/criminal distinction because I don't believe that crime is really a narrower or more severe class within the class of civil "offenses" (scare quotes here because I think even the use of that term is a conceptual trap).

Dave Littel

Wednesday, July 9, 2008 at 20:41:37 mst
Comment ID: #15
Name: Diana Hsieh
E-mail: diana(at)dianahsieh.com
URL: http://www.dianahsieh.com/blog
Dave -- Thanks for the comment. As you might already know, questions about the unequal punishments for attempted crimes versus completed crimes are a major part of the problem of the problem of moral luck, i.e. the topic of my dissertation. I have my own response to those kinds of cases (I'm dealing with them purely from the perspective of moral blame), but your comment did shed some light. So thanks!

Wednesday, July 9, 2008 at 20:48:08 mst
Comment ID: #16
Name: Bob Sanders
E-mail: Sanders101(at)clc.net
Dave Littel writes:

"In conspiracy cases, all that need by proven is is an agreement (a viable, real agreement) to commit a serious crime.

Actually there is another requirement for Conspiracy cases and that is an overt act. You need both the agreement and the overt act to be prosecuted for Conspiracy.

Wednesday, July 9, 2008 at 23:56:34 mst
Comment ID: #17
Name: Christian S
E-mail: mrcrippa(at)hotmail.com
Actually, I'm pretty much at a loss for words.

How dare you advocate torture, and after admitting it will not do any good, torture for torture's sake - as a means to appease brutes who take matters in their own hands and to even out "injustices" (facts of reality) in the current penal system?

Your views are horriffic and so is the fact that no one else has spoken up against you.

It shouldn't be needed but in the context of you talking about torture as "..perhaps distasteful..", I'll come back and motivate my disgust of this when I've calmed down.

Thursday, July 10, 2008 at 1:51:50 mst
Comment ID: #18
Name: Greg Perkins
E-mail: greg(at)ecosmos.com
URL: http://gregperkins.net
Hi, Dave -- thank you for the careful reading and comment! You've actually picked up on a subtle distinction I was careful to make, which I didn't go into in the article.

The view of civil offenses you seem to be espousing relates to what I am told is called the "strict liability" rule, whereby any damage you cause to another person or his property must be repaired by you, period. Under this rule, there would indeed would be no need for any evaluation of the offender -- just of the damage caused, to determine what must be demanded of the offender to make the victim whole.

However, that is a view I consciously excluded because it is incompatible with justice. Instead, I advocate what I am told is called the "negligence" rule, where we force the offender to make the victim whole only to the degree that he is *responsible* for the damage he caused.

Humans are not omniscient or infallible; "sh*t happens" that harms us and our property, and we cannot have a system of justice that ignores this basic fact. Someone may be driving and have that no-warning seizure only to hit my house. I've definitely been harmed, but it would be unjust to hold the driver responsible for that damage -- to hold him liable for its repair -- when in fact he is *not* responsible for it. A random thing happened in his brain that was not under his control. Indeed, he is a victim just as much as I am: his car is damaged, he may have been injured or killed, and so on -- all because I likewise lacked the omniscience to avoid putting my house in his car's way the day he would have an unplanned seizure. (And for those spoilsports who would deny me my wry comment, fine: we/bureaucrats lacked the omniscient foresight to put streets where he would swerve, which would have prevented my house from being built there, etc. ;^)

We can't require omniscience and demand absolutely no harm from others, which is why I ultimately reject the "strict liability" principle. But we can and should demand that others be reasonably objective -- to not be negligent -- and that's why I advocate the principle that requires making me whole when and to the degree someone is responsible for the damage he's caused. If someone has had seizures before, and *then* a seizure makes him drive into my house, then his negligence should cost him big-time.

Thoughts?

Thanks,
Greg

Thursday, July 10, 2008 at 2:55:09 mst
Comment ID: #19
Name: Wolfgang
E-mail: wolfgangscheide(at)web.de
URL: http://objektivismus.blogspot.com
Greg, just one question. What is your stand on "probation" instead of jail or fines. I think probation is no punishment at all.

Thursday, July 10, 2008 at 4:26:03 mst
Comment ID: #20
Name: Dave Littel
E-mail: DaveLittel(at)cox.net
Bob Sanders wrote:

>Actually there is another requirement for Conspiracy cases and that is an overt act. You need both the agreement and the overt act to be prosecuted for Conspiracy. >

Absolutely right. Thanks for the correction.

Of course, this requirement doesn't change the basic point that in a conspiracy action we're looking at the acts of the actor (accused) to see what they express or reveal about the actor, and not to any actual consequence to another.

Thursday, July 10, 2008 at 4:53:27 mst
Comment ID: #21
Name: Dave Littel
E-mail: DaveLittel(at)cox.net
Dianna, yes, I read your dissertation prospectus with great interest because of its relevance to that question others in the law in which I'm very interested. All I can say is, please solve the problem! It certainly bears on the question of "strict liability" that's cropping up here. I want to comment on Greg's response on that below (probably later today).

Thursday, July 10, 2008 at 15:37:22 mst
Comment ID: #22
Name: Greg Perkins
E-mail: greg(at)ecosmos.com
URL: http://ecosmos.com
Hi, Wolfgang. Regarding probation: Sorry, I don't know enough about it and its use to have much of an opinion. If, for example, it constitutes genuine restrictions on liberty that are simply milder or less-broad than full-on incarceration, then it could be a legitimate and useful tool in responding to crime.

On the other hand, if it means skipping or reducing a punishment that was handed down earlier, based on their *not* behaving badly *now*, then that seems like a problem. What is sentencing for, if it doesn't determine the punishment for a crime? (If reducing sentences for good behavior stems from a need to incent inmates to not misbehave, why not insist on handing down and enacting the punishment they actually earned, and then hand down *more* punishment for any fresh misbehavior according to the appropriate standards?)

Thursday, July 10, 2008 at 15:53:19 mst
Comment ID: #23
Name: Greg Perkins
E-mail: greg(at)ecosmos.com
URL: http://ecosmos.com
Hi, Dave. Sorry, I got so wrapped up in addressing the civil point you brought up that I neglected your criminal point! Thanks for rightly observing that I've managed to exclude conspiracy and "attempted" kinds of crime (I certainly don't want that, as I agree that attempted murder, say, is clearly a crime. Like you, though, I am not clear on how its punishment should relate to punishment for successfully-performed murder.) I have to head out now, but I'll try to take that up later tonight.

Thanks again,
Greg

Thursday, July 10, 2008 at 17:57:04 mst
Comment ID: #24
Name: Elisheva Levin
E-mail: elisheva(at)unm.edu
URL: http://ragamuffinstudies.blogspot.com
Hi, Greg,

I have wrestled myself over the morality of death penalty and the absolute disgust I am filled with when I consider the crimes of a heinous murderer, or of a child rapist. On the one hand, if I imagine my own child being so violated and killed, I would want to do the execution myself, following castration with a rusty knife. And yet, I have worried about the death penalty, though I support it in limited cases--the heinous crime, the premeditated taking of a life.

And yet...I worry about the application of torture as punishment. It seems to degrade the torturer as well as the criminal. I think the use of torture as punishment is probably forbidden by the US Constitution as cruel and unusual punishment for this very reason. Torture has a moral stink about it that a clean execution does not. Your argument for torture as punishment appear to be rational, but not persuasive.

Friday, July 11, 2008 at 1:46:28 mst
Comment ID: #25
Name: Adam Reed
E-mail: adamreedatalumdotmitdotedu
URL: http://www.calstatela.edu/faculty/areed2
I would like to get back to the question of intentionality for a moment. Given that free will hinges on the choice to focus or not to focus one's mind, I see a deliberate unfocusing of mind that leads to the death of an innocent person as no less evil, and no less deserving of retribution, than killing with a conscious intent to kill.

As specific examples, considers a person who goes out driving at freeway speeds while under the influence of some deliberately ingested cognition-disabling concoction - not consciously intending to kill, but simply not exerting his mind to consider that outcome. Or someone who discharges a high-powered rifle into an inhabited neighborhood on whim, not intending to kill but not caring either. If either of these were to kill an innocent person, I would consider the killer to be just as deserving of capital punishment as the most sober sociopath.

I understand that the law of New York State (but of no other US State that I know of) provides for capital punishment in cases like the above, under the rubric of "murder by depraved indifference" (the criminal's depraved indifference to the effect of the his deliberate descent into mindlessness on those whom he thus kills.) I see that law as being entirely in keeping with the Objectivist view of the relation between cognition and culpability.

Friday, July 11, 2008 at 2:48:23 mst
Comment ID: #26
Name: Adam Reed
E-mail: adamreedatalumdotmitdotedu
URL: http://www.calstatela.edu/faculty/areed2
Corrected:

I would like to get back to the question of intentionality for a moment. Given that free will hinges on the choice to focus or not to focus one's mind, I see a deliberate unfocusing of mind that leads to the death of an innocent person as no less evil, and no less deserving of retribution, than killing with a conscious intent to kill.

As specific examples, consider a person who goes out driving at freeway speeds while under the influence of some deliberately ingested cognition-disabling concoction - not consciously intending to kill, but simply not exerting his mind to consider that outcome. Or someone who discharges a high-powered rifle into an inhabited neighborhood on whim, not intending to kill but not caring either. If either of these were to kill an innocent person, I would consider the killer to be just as deserving of capital punishment as the most sober sociopath.

I understand that the law of New York State (but of no other US State that I know of) provides for capital punishment in cases like the above, under the rubric of "murder by depraved indifference" (the criminal's depraved indifference to the effect of his deliberate descent into mindlessness on those whom he thus kills.) I see that law as being entirely in keeping with the Objectivist view of the relation between cognition and culpability.

Friday, July 11, 2008 at 12:17:53 mst
Comment ID: #27
Name: rootie
URL: http://optionalvalues.com
Greg,

In comment #12, you mentioned adding up individual punishments for individual crimes. For the specific case of execution, are you really saying that the person would serve 15 years for torture, then be killed?

(seeking clarification, not debating the concept of additive punishment)

rootie

Friday, July 11, 2008 at 12:24:21 mst
Comment ID: #28
Name: Bob Sanders
E-mail: Sanders101(at)clc.net
Adam,

From what I understand, capital punishment has traditionally been limited to only those murders committed with the "mensa rea" of intent or intentionality. But I believe there is a Supreme Court case which suggests (but doesn't actually rule) that capital punishment can be applicable to deaths commited with the mensa rea of "reckless negligence" or as you stated it above: "depraved indifference." And I agree with you that this is a proper view consistent with Objectivism.

Friday, July 11, 2008 at 14:24:55 mst
Comment ID: #29
Name: Dave Littel
E-mail: DaveLittel(at)cox.net
Greg wrote:

>>
The view of civil offenses you seem to be espousing relates to what I am told is called the "strict liability" rule, whereby any damage you cause to another person or his property must be repaired by you, period. Under this rule, there would indeed would be no need for any evaluation of the offender -- just of the damage caused, to determine what must be demanded of the offender to make the victim whole.

However, that is a view I consciously excluded because it is incompatible with justice. Instead, I advocate what I am told is called the "negligence" rule, where we force the offender to make the victim whole only to the degree that he is *responsible* for the damage he caused.
>>

I think your description of the strict liability and negligence standard is accurate, and you’re right that my view implies a departure from the negligence standard. But I don’t sign on to anything called “strict liability.”

I believe civil liability (speaking really of tort liability) has to be based on a “causal” analysis of how harm comes about. This is vitally important to bind the law down to its proper role and not allow the scope of liability to run rampant. The negligence standard *appears* to do this very thing, but it actually doesn’t.

What do I mean by “causal analysis?” Well, the concept physical force is the ultimate causal concept. Where Objectivism says that rights can only be violated by force or fraud, it is naming the literal, causal, means by which rights can be violated. If I pull the trigger and send a bullet through someone’s body, it’s an actual, physical process, a chain of physical causes leading to the harm. If, on the other hand, I unjustly break up with a girlfriend, there is no physical process and no rights violation. We all understand this issue but I’m pointing out that the force principle identifies a causal mechanism�"force.

Fraud identifies a slightly different causal mechanism, but it is still identifying a causal mechanism. (I readily concede that there are other forms of “indirect force” and that they need to be defined in a manner that aids in the reduction to reality so that they can be applied objectively. I think that can be done and I’m interested in this issue.) But for this discussion the point remains: force, fraud and indirect force are all concepts to identify the *means* by which harm is caused.

The negligence standard does no such thing. “Negligence” is simply defined in the law as “unreasonable.” So rights violations allegedly occur because of someone’s “unreasonableness.” But this term is totally vague and non-objective. Think about how wide open this is. The doors are thrown open both is terms of what counts as an action upon which liability can be based, and in terms of what allegedly causes what.

Instead of being restricted to only the initiation of force or an indirect form of force, virtually anything can be said to be unreasonable. You failed to adequately protect me from a criminal assault while leaving your home; you were unreasonable, you're liable.

In terms of causation under a negligence standard, if one wants to claim that someone else “caused” harm to them, they need only trace back all of the antecedent facts until they can point to something they claim was “unreasonable” and then say, “but for your unreasonableness,” I would not have been harmed. Ergo, liability. E.g. since prior to 9/11 one of the airlines did not properly train some staff members on security issues, it "caused" the deaths of all of the passengers and all of those killed in the world trade center.

This is the fundamental problem with negligence as a standard of liability. While it seems to limit the scope of liability by setting up a standard of reasonableness or "wrongfulness," it actually shatters to boundaries by displacing the causal analsys of what *kinds* of actions can violate rights.

As for the term "strict liability," a little history is helpful. The negligence standard came about in the mid to late 19th century. Prior to that time, the law followed a causal analysis under the doctrines of "trespass" and "case" which (in my view at least) were very similar to force and indirect force. That basic older paradigm was abandoned in favor of a negligence standard. Early on, the negligence standard did provide some rational limitation on the scope of liability.

In the twentieth century that limitation began to break down, and soon some scholars and lawyers were calling for the abandonment of the negligence standard itself in favor of what they were calling strict liability. I don't believe the term "strict liability" was ever used prior to the 20th century. What it really means is the abandonment of any limitaion of liability--both the older causal limitation and the more recent negligence limitation. It does not represent a return to the older causal doctrine but a total disintegration of principles of liability. it means pretty much what you said: "any damage you cause to another person or his property must be repaired by you, period," but with no principled limitation on what "cause" means.

So I belive that strict liability is an abomination. I believe that the negligence standard is also wrong. The proper appraoch is to perfect a causal analysis of how rights are actually violated, which entails an explication of what force is, and an explication of the much thornier problem of indirect force.

As to the driver with a "no-warning seizure" striking someone, the short answer is that in this case, the action wasn’t volitional. I do believe that a basic threshold requirement for an action to create liability is whether it is volitional. I’m in good company here because prior to the advent of the negligence standard, the “volitional action” requirement was generally recognized.

Back to you...

Dave Littel

Saturday, July 12, 2008 at 6:26:10 mst
Comment ID: #30
Name: Dave Littel
E-mail: DaveLittel(at)cox.net
One clarification. Where Greg says "I advocate what I am told is called the "negligence" rule, where we force the offender to make the victim whole only to the degree that he is *responsible* for the damage he caused." and I said that's an accurate description of negligence, I'd have to backtrack because this is potentially confusing.

Negligence doesn't mean responsible, it should be understood by its legal definition of unreasonable or failure to do what a reasonable person would do. This is the way in which the negligence standard assigns responsibility.

Saturday, July 12, 2008 at 14:39:45 mst
Comment ID: #31
Name: MichaelM
E-mail: mcm.1000(at)yahoo.com
Greg, thanks for setting up this wonderful discussion.

In the shadows of my memories from Objectivsm's halcyon days in the mid-60s, an impression persists that punishment, protection, and rehabilitation were all expected to be by-products of the compensation of victims. I understood the primary goal would be to erase, to whatever degree possible, the consequences of the action to the innocent. As I read with great interest and learned from the comments above, it is #13 by commenter that represents closest my lifelong impression of an Objectivist system of justice.

In its simplest form it was that making the perpetrator mitigate the victim's loss, of whatever kind, to whatever degree possible, and in whatever system would be designed, and adding to that some mitigation of the government's costs of capture, prosecution, and incarceration, crime could never pay. The dilemmas cited here, like the rich/poor perpetrator or defining the value of a life lost, real that they are, were never thought of as insurmountable. We were (and still are) so distant from the context in which such a system would actually be designed that conjuring up specifics was seen as inherently speculation to be pursued not for the sake of argument, but rather strictly for fun.

In this view of justice, the usual problems with capital punishment evaporate, because the capital criminal becomes a permanent asset of the victim and society. Whatever value can be coaxed from him by incentives and rewards, either alone or in capitalist concert with other prisoners or outside enterprises is a continuing benefit to those he harmed. Refusing to lift a finger would result in death by choice, because the base incentive would be a bunk indoors and food only if earned. Thus capital punishment would occur only when self-imposed and -executed.

Sunday, July 13, 2008 at 5:39:42 mst
Comment ID: #32
Name: Dave Littel
E-mail: DaveLittel(at)cox.net
Commenter wrote:

>>
Punishing criminals is one means to that basic end of protection, but again, the punishment itself should not be considered the purpose. The state should not be in the business of teaching moral lessons. It's hard to see how capital punishment could be defended on grounds of compensating victims or ensuring public safety. Nor is it clear that it's much of a deterrent. If some other argument can be made for it, based on protecting the law-abiding, then so be it. But the state should not execute a criminal just because in some sense the criminal "deserves" it. That's frightening territory, granting the state such power.
>>

This position is appealing because it would certainly simplify things. The grading of crimes and punishment would be more coherent and dare I say, more objective, if confined purely to its functional role of incapacitation, deterrence etc. to prevent violations of rights.

The problem I see is that it seems that in some cases there is a divergence between what this functional approach would dictate and what the criminal morally deserves. And if that is the case, if the state doesn't step into the shoes of the victim of a crime to mete out just deserts, then no justice will be done. The victim has delegated his right of retaliation to the state. So doesn't the penal system then cease being a system of justice?

Sunday, July 13, 2008 at 12:28:19 mst
Comment ID: #33
Name: Bob Sanders
E-mail: Sanders101(at)clc.net
The criminal law, as I understand it, should be a system revolving around moral retribution. It must focus on two things: rendering justice to the victim and assessing moral blame for the criminal. Public safety is not the fundamental concern of the criminal justice system in my view but a consequence of punishing criminals. The view of the government only as responsible for a system of compensation is, IMO, not consistent with Objectivism and is more in line what I would expect from libertarians who view everything through the lens of state hatred.

Monday, July 14, 2008 at 8:52:24 mst
Comment ID: #34
Name: Greg Perkins
E-mail: greg(at)ecosmos.com
URL: http://ecosmos.com
Hi, rootie. No, and yes. :^)

No, I have argued that the torture aspect of a crime *cannot* be punished with incarceration because those don't seem commensurable.

But someone who incarcerates and then murders an innocent could certainly be made to suffer incarceration on the way to execution (heck, it seems almost unavoidable in the course of trial and appeals and so on). But I don't know that the incarceration is important or necessary when it will be followed by execution... The former would be limiting someone's pursuit of life -- their means to life -- and that seems irrelevant when their life itself is eliminated.

Monday, July 14, 2008 at 8:55:45 mst
Comment ID: #35
Name: Greg Perkins
E-mail: greg(at)ecosmos.com
URL: http://ecosmos.com
Hi, Elisheva. If our subconscious, emotional understanding of inflicting pain on those who torture innocents doesn't match our conscious, rational understanding of it's propriety, then we definitely need to examine the clash closely to determine which understanding is in fact proper and then work to be well-integrated on that position.

If experts and those in the trenches (justice system personnel, psychologists, etc.) were to find clear evidence that imposing such punishments *necessarily* harmed those administering them, even when those administering them were physically/causally remote in ways that technology could allow, then this would indicate a metaphysically-given fact that bars such a response to crime. What I'm thinking of with the remoteness aspect is cases like: a soldier shooting an enemy point-blank seems to be more damaging for the shooter than a soldier dropping a bomb is, even though both are still intentional killings -- and even though the latter often involves significantly more people being killed. If imposing any sort of punishment seems to be harming justice personnel, then experts in these specialties should be looking for these sorts of effects to exploit, at the very least.

I don't think such a metaphysically-given barrier has been established, though, and am inclined to think that our revulsion and that constitutional rule are more of a reaction to the kind of arbitrariness in punishment that has been prevalent in history -- like torture when it is not proper (as with beating or maiming someone for theft or adultery, caning someone for littering, drawing and quartering someone for treason, etc.), or the punishment-equivalent of 'unreasonable use of force' (as with someone receiving 100 lashes for slapping some noble in the face).

Great issue to bring up! Taking care to protect the innocent from unintended consequences in how they deal with the guilty is very important.

Monday, July 14, 2008 at 9:28:10 mst
Comment ID: #36
Name: Greg Perkins
E-mail: greg(at)ecosmos.com
URL: http://ecosmos.com

Hi, MichealM (#31) and commenter (#13). While making victims whole is certainly demanded by justice, and required that of offenders is consistent with what Objectivism advocates and what I argue for here (and many of the devices you talk about would be useful and appropriate to that end) -- it is not the case that Objectivism doesn’t support punshment per-se. Objectivism advocates a retributivist justice system in government. In a 1961 letter to a philosopher (The Letters of Ayn Rand, p. 560), Rand discusses just this:

"What punishment is deserved by the two extremes of the scale is open to disagreement and discussion�"but the principle by which a specific argument has to be guided is *retribution*, not *reform*. The issue of attempting to "reform" criminals is an entirely separate issue and a highly dubious one, even in the case of juvenile delinquents. At best, it might be a carefully limited adjunct of the penal code (and I doubt even that), not its primary, determining factor. When I say "retribution," I mean the point above, namely: the imposition of painful consequences proportionate to the injury caused by the criminal act. The purpose of the law is *not* to prevent a future offense, but to punish the one actually committed. If there were a proved, demonstrated, scientific, objectively certain way of preventing future crimes (which does not exist), it would not justify the idea that the law should prevent future offenses and let the present one go unpunished. It would still be necessary to punish the actual crime."

And Dr. Peikoff points to the fuller basis of this perspective in his book laying out Rand’s philosophy (Objectivism, p. 283):

"This brings us to justice in the realm of action, which consists in "granting to each man that which he deserves." To "deserve," states the Oxford English Dictionary, is to "become worthy of recompense (i.e., reward or punishment), according to the good or ill of character or conduct." A reward is a value given to a man in payment for his virtue or achievement; it is a positive such as praise, friendship, a sum of money, or a special prerogative. A punishment is a disvalue inflicted in payment for vice or fault; it is a negative such as condemnation, the withholding of friendship or even outright ostracism, or the loss of money or prerogative, including (in criminal cases) the loss of freedom or of life itself. The recompense appropriate in content and scale to a particular case must be determined contextually, by reference to the nature and merits of the case. The principle, however, is the same in all cases: justice in action consists in requiting the positive (the good) in men with a positive and the negative with a negative. This is the truth behind the rule "an eye for an eye" (although that formulation addresses only justice to the evil). It is the truth symbolized by the scale in the hands of the statue of justice, the scale whose trays balance equal weights. One weight represents cause, the other, effect; one, a man's behavior, the other, payment appropriate to it."

Monday, July 14, 2008 at 9:33:06 mst
Comment ID: #37
Name: MichaelM
E-mail: mcm.1000(at)yahoo.com
Yes to moral retribution, justice for the victim, and assessing blame. But until I receive or find the principle demanding it, I must still say no to punishment as the best description of the primary goal.

The role of government is eradicating force-for-gain. If it performs its task by restraining/incarcerating/rehabilitating the criminal (eradicating the force) in the service of forcing him to compensate his victim (eradicating the gain), how is that not providing all three of the above and punishment too in the process?

Similarly other-directed would be the concern for what the criminal deserves beyond his deserving the burden to erase every aspect of his crime. Shifting the focus from what the victim deserves to what the criminal deserves could erase the line between justice and vengeance.

Also, I am truly flummoxed by the suggested link between victim compensation and state hatred.

Monday, July 14, 2008 at 9:48:18 mst
Comment ID: #38
Name: MichaelM
E-mail: mcm.1000(at)yahoo.com
Greg, thanks for providing the quotes, that would have but for minutes more appropriately followed my comment #37.

Monday, July 14, 2008 at 10:08:28 mst
Comment ID: #39
Name: Bob Sanders
E-mail: Sanders101(at)clc.net
"Also, I am truly flummoxed by the suggested link between victim compensation and state hatred."

Can you read? That is not what I said. I said that thinking of government only as responsible for victim compensation and not responsible for punishment is a position that is common to libertarians. The reason, IMO, is the rampant subjectivism of the movement coupled with their state hatred. Nothing to get flummoxed about.

Monday, July 14, 2008 at 10:17:33 mst
Comment ID: #40
Name: Bob Sanders
E-mail: Sanders101(at)clc.net
"The role of government is eradicating force-for-gain."

The role of the government is to protect individual rights. Also, the government is the agent of retaliatory force which citizens delegate to it. Saying the role of government is "eradicating force-for-gain" seems sloppy to me. Eliminating criminal force is a "gain" to society in a sense to be sure, but in many instances it will be no gain to the victim (the victim may be dead as the result of being murdered). Punishment of the criminal according to rational principles of retribution is not vengenence but properly instituted justice.

Monday, July 14, 2008 at 11:33:17 mst
Comment ID: #41
Name: MichaelM
E-mail: mcm.1000(at)yahoo.com
For the record, no one in this thread has thought of government "only as responsible for victim compensation and not responsible for punishment". Also, I find that the positions commenter and I have taken are not incompatible with the quotes provided in Greg's #36.

Monday, July 14, 2008 at 13:56:40 mst
Comment ID: #42
Name: Greg Perkins
E-mail: greg(at)ecosmos.com
URL: http://ecosmos.com
Hi, John.

Actually, I wonder if we are more in agreement than not. Some of the confusion is caused by my not being an expert in the law �" that's one reason I was trying to avoid relying on technical terms like 'negligence' in the main piece, and instead just tried to say what I meant in terms of philosophical principle.

Yes, an important factor is physical force, and I emphatically agree that we need to have a clear account of physical force in its various direct and indirect forms in the law. As I summarized before breaking down the categories of offense: "It is specifically the initiation of physical force which necessitates a response involving physical force." That is critical context for *everything* the justice system would pertain to. So initiating physical force against someone is assumed to be present/actively-sought in the civil and criminal and capital categories (that's what I was trying to capture with the phrase "damaging an innocent's person or property" in the breakdown). Without such an analysis of physical force, we would have a hard time figuring out what would quality as a rights violation.

I am not holding 'negligence' ('unreasonableness') per-se as the standard for a rights-violating harm -- that would indeed be vague and nonobjective as you describe. Rather, I am holding moral responsibility *for* a rights-violating harm as what distinguishes a civil offense (at the very least). So if there is harm, but it isn't rights-violating harm, then it isn't an offense calling for a force-based response like compulsory reparation in this case (people can be immoral, choose better friends). And if there is a rights-violating harm, but whoever did the harm is not morally to blame for it, then it wouldn't be an offense on their part and likewise wouldn't call for compulsory reparation (stuff happens, buy insurance).

The only offenses we want to respond to with force are those where someone is (a) actually doing something wrong/bad/immoral and (b) causes or seeks causing rights-violating harm -- so I think we would be missing something very important if we were to focus solely on the causal, force-based nature of rights-violating harm. There is a world of difference between accidental death, manslaughter, and murder -- even though the physical action of the offender can be identical in each case. There is a world of difference between an irrational contract dispute leading X to not pay Y, and X outright defrauding Y -- even though X’s physical action can be the same in both cases. The distinguishing factor in these cases of identical action leading to identical harm lies in the degree in immorality involved.

Thoughts?

Thanks again,
Greg

P.S.: John and everyone, there is a lot of material scattered in this conversation, so please don’t hesitate to repeat a question or issue that you think needs to be addressed!

Monday, July 14, 2008 at 13:58:16 mst
Comment ID: #43
Name: Greg Perkins
E-mail: greg(at)ecosmos.com
URL: http://ecosmos.com
Sigh. My apologies! *Dave* -- not John. I have no idea what brain-fart caused that! (I think I need to actually get some sleep before trying this sort of thing. :^)

Monday, July 14, 2008 at 15:31:45 mst
Comment ID: #44
Name: MichaelM
E-mail: mcm.1000(at)yahoo.com
Dave,

"Saying the role of government is "eradicating force-for-gain" seems sloppy to me. Eliminating criminal force is a "gain" to society in a sense to be sure, but in many instances it will be no gain to the victim (the victim may be dead as the result of being murdered)."

I think you misunderstood the phrase "force-for-gain." That is just the most abbreviated form I've found for referring to the type of action that constitutes a crime requiring and justifying the government exercise of retaliatory/defensive force. It includes all violations of the single political principle on which capitalism is based: no man may initiate the use of force, directly or indirectly. to gain, withhold, or destroy a value owned by another. Since gaining, withholding or destroying a value of another are each a value gained by force, there is, in principle, only one possible violation of rights, the exercise of physical force for gain, in short, force-for-gain.

Wednesday, July 16, 2008 at 11:27:01 mst
Comment ID: #45
Name: Dave Littel
E-mail: DaveLittel(at)cox.net
Hi Greg,

You responded:

>>I think we would be missing something very important if we were to
>>focus solely on the causal, force-based nature of rights-violating
>>harm. There is a world of difference between accidental death,
>>manslaughter, and murder -- even though the physical action of the
>>offender can be identical in each case. There is a world of difference
>>between an irrational contract dispute leading X to not pay Y, and X
>>outright defrauding Y. >>

Oh, absolutely. These are all distinctions that the law must make. In arguing that civil liability should turn on a causal analysis as outlined, I certainly wasn’t suggesting that the law should stop there. The law *should* stop there in the *civil* action; i.e., after a determination of liability and then of damages for actual harm caused.

It should *not* stop there in a criminal action. In fact, the criminal action shouldn’t start there or stop there. The criminal action is all about the difference between manslaughter and murder etc. It should be all about examining every relevant fact that tell us something about the guilty mind, “wicked intention,” or perhaps just recklessness of the perpetrator so that the appropriate level of punishment can be determined.

Let me try to tie this back to your main points in your original post. Your main thesis is that principled punishment should consist of an integrated package of elements corresponding to each level of wrongdoing embodied in a particular act. The process should analyze�"decompose--those levels from mere responsibility through capital crimes to the extent that each level is embodied in an act, and then compose a punishment that includes elements that correspond to all of the levels of wrongdoing proven, not just the worst level. You argue further that the *kinds* of punishment issued should correspond to the kinds of wrongdoing proven and that all of this could be better done in a single trial rather than separate civil and criminal trials.

The gist of my disagreement with this is that it collapses together two different kinds of justice in a manner that would be harmful to the excecution of both. Here I think we have to observe a fundamental differentiation rather than an integration.

The differentiation is between the civil justice element, what you call reparation, and the criminal justice element. As I said in my intitial response, the civil justice element is in essence an application of justice to the harmed party. The criminal justice element is an application of justice to the actor or criminal defendant. I think these must be thoroughly separated both conceptually and in reality by means of separate trials.

A big piece of this puzzle not yet mentioned is the limits of what trials can do and what is required for objectivity in what they're trying to accomplish. It is vital that the evidence in a trial be restricted only to what is relevant to the issue at hand. In a civil trial for damages, introducing anything at all that would be relevant to punishment of the defendant will color (and possibly shatter) the objectivity of a determination of damages.

To take an example virtually at random from my own law practice, consider a case in which a resort is sued as a result of the actions of one of it's security gaurds who detained a teenager because the guard perceived that the teenager was trying to damage the property. There are allegations that the guard acted improperly, used excessive force etc., and the plaintiff is entitled to some amount of damages as a result. A number of intricate facts come into play on these questions, and it is no small task to attempt an objective proceeding that can provide reliable answers.

But the plaintiff also sues for punitive damages. And what will financially "punish" the resort necessarily relies on how much money the resort has. And so a significant portion of the trial is devoted to examining the resort's assets and financial statements. With the mental space of the jury or judge loaded down with all these million dollar figures about assets, what kind of objectivity can be expected on the real questions of liability and harm actually caused?

In many other ways not nearly as overt as this, civil trials can be corrupted by the introduction of issues relevant to an evaluation of "wrongdoing" that are actually irrelevant to the valid contested issues.

You seem to recognize this in your criticism of civil courts awarding "punitive damages" and criminal courts handing down orders of reparations. Interestingly, though, you conclude that the lines will be blurred less if a single proceeding does it all. I believe the opposite. I believe that it is crucial to the objectivity of each proceeding that they be totally separated.

I also believe that historically the primary reason for this separation of judicial function--between tort and crime--was to achieve this giant leap forward in objectivity. It's not at all clear cut, mind you, but I think I could make a case that that's the primary thing that was going on.

So I think if we're trying to achieve a more objective legal system, what we want to do is perfect the separation of civil justice functions and criminal functions of the law, for the reasons given and many others, rather than going the other way as I think your approach would dictate.

Friday, July 18, 2008 at 15:27:35 mst
Comment ID: #46
Name: Greg Perkins
E-mail: greg(at)ecosmos.com
URL: http://ecosmos.com
Hi, Dave. Thanks for the reply!

Sorry for the confusion -- I really didn't (and don't) want to argue that principled punishment calls for a single trial.

Regarding that, I wrote: "Any given crime must be treated on all applicable levels, by decomposing its aspects into relevant charges, and addressing each to compose the full response. Our legal system's support for separate treatment of civil and criminal offenses is a mechanism for satisfying this need. But it is also interesting to see how the cascade of offenses above helps us see how our approach is not the only way to satisfy this need: a different court system could, say, use a single trial..." My focus is not on using a single proceeding, but on the idea that each (relevant) category of offense must be addressed to determine the full (and just) response -- no matter how many trials are used.

That said, my neutrality about the idea of one vs. two trials is now gone. :^) Thanks for your point about the likely challenges to objectivity in a combined proceeding -- that's just the sort of thing I was hoping to have brought up by folks like you who are experienced in this domain. Indeed, objectivity could be really hard to maintain just in the face of the differing standards of judgment which are called for (something I should have thought about when I brought them up in the following section).

You wrote: "Interestingly, though, you conclude that the lines will be blurred less if a single proceeding does it all. I believe the opposite. I believe that it is crucial to the objectivity of each proceeding that they be totally separated." I was only thinking that the incentive to introduce responses to elements that would/should be treated in a different trial might go away if it were all happening in one room: you don't have to wonder whether punishment will be delivered in addition to ordering the necessary reparations, if you can see it being explicitly identified as a point to be taken up in another part of the proceeding.

Today's two-trial system is not principled in the way I am arguing it needs to be, in that we do have civil courts handing down punishments rather than only compelling reparation, and criminal courts compelling reparations rather than only worrying about punishments. And within the criminal domain, we have capital punishment being suggested/given for really heinous but 'merely' criminal offenses. All of this indicates only a vague appreciation of these categories of offense and what they mean for our response -- and I think that is caused by their having no explicitly-identified basis in principle. That invites arbitrariness (and its growth) in punishment, rendering our justice system unjust. This is a problem I'm thinking Objectivists could help remedy: given our (correct) integration of politics and morality, we could be in a unique position to explain the principled basis of these classes of offense and their commensurate, commoditized response in a proper system of justice. (And of course I expect that we have a lot to say about objectivity in judgment because of our epistemology, too.)

Aside from whatever needed straightening-out you were already starting to type, do you think this problem is really a problem -- one that has significant and bad effects? And if so, does the direction I'm suggesting show any promise in solving/clarifying it? I ask because I don't want to go and spend time on v1.1 or v2.0 of this little article (to straighten out issues people have observed, remove distractions, adjust emphasis and extend it here and there), if it isn't actually addressing something real and offering some sort of lead on how to approach it.

Thanks again,
Greg

Tuesday, July 22, 2008 at 22:10:38 mst
Comment ID: #47
Name: Mark
“Note that there is no need for a scalable unit of capital punishment because existence vs. nonexistence is binary.”
Binary! And this isn’t a joke. That pompous pedantry was followed by the amazing assumption that our current government, and all the more an ideal government, can be trusted with torture.

(The U.S. government tortures merely suspected terrorists, the minimum criteria for suspicion being next to nothing. Yet who of you speak out against it?)

Before we get exercised over how best the U.S. government might best punish domestic lawbreakers, we ought to address the U.S. government’s own crimes, such as imprisoning people like Rodney Stich on trumped-up charges for trying to expose government corruption. His is no isolated case, as you will discover if you read his books �" http://ariwatch.com/Links.htm#RodneyStich .

I agree with the post by Christian S.

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