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Retributive Punishment: Proportionality and Justice


The way we punish criminals and restore justice is very important to our overall crime prevention strategy. It is important to establish a punitive system that will exact the right amount of punishment while also bringing about justice and restitution to the victim of the crime. A retributive punishment system, where the maximum punishment is proportional to the crime and the victim decides the final sentence for the aggressor would bring the goal of criminal punishment back to its rightful focus… justice for the victims of crime.

The “primacy of restitution to the victim” is an “ancient principle of law”, but “as the State monopolized the institution of punishment, so the rights of the injured were slowly separated from penal law.” (1)(2) This has led to the focus of “punishment” shifting from justice for the victims to the utilitarian purpose of deterrence or the “humanitarian” goal of “rehabilitation.” Both of these alternatives to justice are philosophically flawed if carried to their logical conclusions. The utilitarian goal of deterrence would justify “cruel and unusual” punishments, since it would be the most effective at deterring future criminals, as well as severely harsh punishments for minor crimes since justice or proportionality is not the goal. The humanitarian goal of rehabilitation, on the other hand, condemns the criminal to an “indeterminate” sentence– “to be determined at the Psychologist’s pleasure”– regardless of the crime and all at the expense of the victim, who pays taxes to support these rehabilitation efforts, with no restitution repaid to the victim or justice achieved on their behalf. Also, if rehabilitation is the sole goal of criminal punishment than a petty thief could theoretically be held much longer than a murderer if the thief is less willing to reform or not as capable of feigning rehabilitation compared to the murderer.

The way to truly pursue justice against the aggressor and on behalf of the victim would be to allow the victim to sentence the aggressor, up to a maximum punishment, once they have been found guilty. The punishment should be both proportionally retributive towards the criminal as well as include restitution for the victim, “two teeth for a tooth” concept of punishment. This is demonstrated most easily in the example of theft used by Murray Rothbard in his essay Punishment and Proportionality. Suppose a thief is found guilty of stealing $15,000 from Bob. We would hold that he must pay back the $15,000 he stole (restitution), but that is not punishment but simply restitution for the thief is no worse off than he was prior to the theft, so he should be forced to pay an additional $15,000 (plus police and court costs) to Bob so that he is deprived of the same liberty that he deprived Bob of (retribution). This is the concept that sets the proportional maximum that a victim may sentence a guilty criminal. However, the victim, since justice is theirs, should also be able to forgive the criminal in entirety or exercise partial forgiveness for whatever reason, philosophy, sympathy, monetary compensation, etc.

This legitimate sense of justice and retributive system of punishment will distribute punishment appropriately according to the level of harm done to the victims of the crime and the “two teeth for a tooth” concept upheld up to the desire of the victim should also act as a deterrent to criminals, even though that is not the primary goal.

(1) Rothbard, Murray. The Ethics of Liberty. New Jersy: New York University, 1998. (“Punishment and Proportionality“)

(2) William, Tallack. Reparation to the Injured and the Rights of the Victims of Crime to Compensation. London, 1900.

Filed under Crime, Law, Philosophy
Mar 10, 2010