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Should justice be retributive or restorative?

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Here is a radical idea I have been thinking about:

Judicial systems should be based on the concept of restorative rather than retributive justice. It should not be the job of the court to punish criminals, deter future crime, or to issue a moral judgment about their actions. The only legitimate role of the court should be to attempt to provide restitution to the injured parties. Its job is therefore to determine the extent to which a particular interaction was not voluntary, and then assign a debt proportionate to the scope of the injury. The victim, offender, and the court can then determine how and to what extent the debt may be settled - by monetary compensation, labor service, or some other course of action satisfactory to the victim.

I think that a retributive (punishment-based) legal system is unjust because courts do not have a right to seize assets or to coerce either offenders or victims of crimes to pursue any kind of social objectives, such as punishing or reforming criminals. The court may not profit from the criminal's labor because it is not a victim of his crime – except to the extent that such compensation is necessary to pay for his prosecution. If the court fails to convict a suspect, then it should in turn be liable for the defendant’s lost time and legal expenses.

The modern retributive judicial system is unjust to the victim because it make no attempt to compensate him, to the criminal because it considers factors other than the injury he has inflicted on the victim, and to the public at large, which it forces to pay for the criminal's prosecution and incarceration.

Edit: A major benefit of a restorative criminal justice system is that it makes it very difficult to prosecute victimless crimes.

What do you think?

Edited by GreedyCapitalist
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When you say "justice system," you seem to be referring to the criminal justice system. Do you mean to distinguish between the civil and criminal justice systems, or are you arguing for a fusion of the two?

Our civil justice system is almost entirely restorative, with the exceptions of a) punitive damages and B) pseudo-criminal cases where the state (or other government body) is the plaintiff, neither of which I think are appropriate. Our criminal justice system is almost entirely retributivist, with the exception of the occasional court-ordered restitution in certain money-related crimes, something I also do not think is appropriate, at least where the plaintiff has a civil remedy. The two systems work together because they overlap (at least as to proper crimes; victimless crimes do not have an analogue in the civil system), and the criminal standard of proof is high enough to subsume the civil suit, so that res judicata will bar relitigation of guilt at a subsequent civil suit brought by the victim.

Do you think the systems should be fused? Or should the criminal justice system, as it exists, be entirely eliminated?

I'm very interested in this topic, because after two years of law school, I am still unable to come up with a coherent philosophical basis for distinguishing between civil wrongs and criminal wrongs. I do have some ideas about it, but I'd like to hear more about what you have to say before I try to set them out.

~Q

PS: Qwertz is now a patron. Woo hoo!.

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I think a justice system has to take into consideration prudent predators. If shoplifters are subject to nothing harsher than having to return what they stole (or equivalent), then a shoplifter doesn't need to succeed all that often -- some forays will be unprofitable, others will be unprofitable. It's hard to see how shoplifting would not be a profitable activity, and this would put a substantial burden on the store-owner. If criminals didn't get away with their deeds, this would not be much of a consideration.

The line between retributive and restorative systems might be closer, if you consider damage other that giving back the stolen items. For example, one could assign a certain cash value to battery of a particular kind, so that it would take $20,000 to make your victim whole. (Either that or the victim gets a ball peen hammer and 10 minutes with the perp). Add that to the $10,000 cost for administering justice, and maybe that's a disincentive. The point is that crime should not be financially profitable.

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My understanding is that the primary issue in criminal matters is preventing recidivism by using the minimum amount of force necessary to do so. It's not to "reform" the criminal, or even necessarily to punish them, but more to declare that they aren't fit to live among civilized human beings and thus must be restrained from interacting with them. The methodology is more to place them in Coventry. Hence why we have *prison* instead of, say, public flogging. Restoring the victim is nice--when it can actually be done, but it's of secondary importance simply because no court in existence can turn back time.

Since this is a philosophy of law question, I'd like to see a study of some kind of which methodologies actually correlate with the lowest crime rates. I suspect that the nature of punishments probably has little to do with it because criminals generally don't think they're going to get caught--assuming they were thinking at all, which is probably also not the case with most "crimes of passion". I suspect that high crime rates, instead, probably correlate more highly with how tolerant the rest of the population (including the police and the courts) are toward criminal activity.

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  • 3 weeks later...
Here is a radical idea I have been thinking about:

Judicial systems should be based on the concept of restorative rather than retributive justice.

The problem with this idea is that restoration is not always possible. First, because criminals do not always get caught & proved guilty, and second, because there is often no way to fairly restore the loss incurred in a crime. David's "prudent criminal" speaks to the first. In the second case, how do you "restore" a murder victim or his family? Clearly the amount required to restore is beyond what most murderers/rapists/etc (and in many cases, anyone) can afford to pay.

Once you reach the conclusion that restoration is not always/often feasible, you have to fall back on retribution and prevention in order to minimize the un-restored loss of victims.

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  • 2 months later...

Hello David (GreedyCapitalist),

As noted by Qwertz, I think you are mixing criminal and civil justice systems, which serve different functions. The proper purpose of the criminal justice system is to determine (according to criminal law) retributive justice as between the government and an individual regarding an alleged breach of the peace. The proper purpose of the civil justice system is to determine (according to civil law) restorative justice as between private parties for alleged past wrongs, including criminal acts (in the civil context, called "torts") or breaches of agreements, and declaratory justice for resolving disputes regarding matters to take place in the future, such as how to divide property in a divorce.

On the point of retribution vs. reform, Ayn Rand wrote:

This last point, I believe, is the question you are specifically interested in, when you write: "I find it difficult to say whether a man who has committed, e.g. armed robbery, deserves one year in jail, five years, ten years, or psychiatric therapy to keep him from repeating his offense." The principle of justice on which the answer has to be based is contextual: the severity of the punishment must match the gravity of the crime, in the full context of the penal code. The punishment for pickpocketing cannot be the same as for murder; the punishment for murder cannot be the same as for manslaughter, etc. It is an enormously complex issue, in which one must integrate the whole scale of legally defined crimes and mitigating circumstances, on the one hand—with a proportionately scaled series of punishments, on the other. Thus the punishment deserved by armed robbery would depend on its place in the scale which begins with the lightest misdemeanor and ends with murder.

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.

—Ayn Rand, The Letters of Ayn Rand, Letters To A Philosopher (original emphasis)

For a criminal act—a physical violation of another's rights in breach of the peace—the proper justice is retributive punishment. In addition, a person should be required to pay restitution to the injured person, if the criminal is able (and I believe even criminal courts can order this in some cases). To suggest that restitution be the only form of justice for criminal acts would place physical violence against others on sale.

Regarding your question about victimless crimes, are you suggesting that attempted crimes, such as attempted murder, should go unpunished, because there is no victim?

You also wrote: "The court may not profit from the criminal's labor because it is not a victim of his crime ..." I don't understand this about a court "profiting" from the "criminal's labor."

Edited by Old Toad
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  • 5 months later...

*** Merged into a previous thread. -sN ***

I was wondering what the position on punishment in Objectivism is.

Let's take Person C, who killed or severely hurt someone and this can be stated beyond reasonable doubt and Person E who committed a minor theft.

Is the goal for punishment by the legal system to

a) prevent him from ever doing it again (protect society)

B) repay the damage he did

c) educate him in a way that he will never do it again

e) alienate others from doing the same

d) punishment as self-purpose (punishment for the sake of punishment) ?

Edited by softwareNerd
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Check your state's criminal code (probably available online). Some of them explicitly state the purposes of the criminal justice systems. Retribution is the main one in the U.S., followed by deterrence, etc.:

http://www.azleg.gov/FormatDocument.asp?in...amp;DocType=ARS

Arizona recently added restitution (for economic loss):

http://www.azleg.gov/FormatDocument.asp?in...amp;DocType=ARS

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All I care about results. The worse the crime, the less I personally care about their individuals liberty. If a guy is caught red handed robbing a bank, shoot him on site, as far as I am concerned. But, I recommend: 1. High probability of getting caught. 2. A punishment that fits the crime. That is the magic combination. Just watch the speed of traffic for a bit. First, an area that has no visible cops anywhere and low probability of a car being pulled over. Second, an area that has many cops out and a high probability of being pulled over.

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For example, the federal sentencing statute, 18 U.S.C. § 3553, requires federal judges to impose sentences "sufficient, but not greater than necessary" to comply with these purposes:

  1. to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
  2. to afford adequate deterrence to criminal conduct;
  3. to protect the public from further crimes of the defendant; and
  4. to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

So the system we have, at least on the federal level, attempts to reach a mixed bag of retributive, restorative, deterrent, and correctional goals.

~Q

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You can combine the two purposes without too much effort, and I think it gives a more solid (ie immediately justifiable) weight to their sentence.

Before the above (valid) consideration of pickpockets or other minor offenders getting off relatively scott free is brought up, it is worthy to note the actual damages:

1) The thing stolen (candy bar, lets say)

2) The time of the person who needed to bring this matter to court

3) The cost (if any) of the police to track this person down, serve him with papers and/or forcefully put him into custody

4) Cost of holding court, of the judge, balif, jury (if any,) etc

As you can see even for a fairly quick trial the costs run up rather impressively. The more severe the case (and the more the alleged criminal disputes it) the more costs are piled up onto your bill. This provides a fairly objective measure as to the punishment's suitability, along with providing a clear, just punishment.

More here, thanks to an Objectivist friend who thought this one out regarding some of the details of this:

http://lfc.silentcow.com/live/The%20Perfect%20Prison.shtml

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Fortunately, civilized countries like the US have the rule of law, which prohibits such behavior.

What do you find fortunate about civilized countries prohibiting the use of lethal force against a criminal? To me it seems obvious that a person who is capable of robbing a bank has forfeit his or her rights to live among civilized people. Robbing a bank is uncivilized. Killing bank robbers advances civilized society, it does not diminish it, in my opinion.

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What do you find fortunate about civilized countries prohibiting the use of lethal force against a criminal?
The fact that I live in a nation where the rule of objective law controls the initiation of force against individuals, anr limits use of force to well-defined instances where specific forms of retributive force are used only against those who are objectively proven to have themselves initiated force against others. I find it fortunate that I live in a nation that recognizes the difference between a suspect or an accused, and a criminal.
To me it seems obvious that a person who is capable of robbing a bank has forfeit his or her rights to live among civilized people.
To me it seems obvious that anyone who violates terms of a contract has forfeited his right to live amng civilized people, and that summary execution by the injured party of contract-breachers would not diminish society. But, as I said, it's fortunate that the anarchists haven't prevailed, and that such idiosyncratic views will be punished under the law if acted on.
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  • 5 weeks later...
Restitution is important too; but, deterrence is important too.

I do not agree that deterrence should even be factored in at all when drafting laws because we might as well make the death penalty the punishment for every crime since obviously that is the highest possible deterrent (barring possibly torture which would be unethical in any case). Moreover how can you objectively determine when a punishment is severe enough to be a good deterrent? From my limited knowledge, I know that enough research has been done to show that a big deterrent does not necessarily work well to prevent crime.

I believe justice or punishment should be about "an eye for an eye and a tooth for a tooth". i.e. it rests on the principle of reciprocity. You leave me alone, I leave you alone. You steal my stuff, you owe me and have to pay back with interest for inconveniencing me. Newton's Third Law is a good application of reciprocity in reality.

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Well, let's understand what you're saying. Suppose I steal $1,000 from you, and get caught. Are you suggesting I should return the $1,000 and justice has been served?

As for research on deterrence, I think you might be thinking about studies that claim that the death-penalty, specifically, does not deter capital crimes any more than life-terms do. I have no trouble believing that, even though the claim could be untrue. However, that is a very different topic.

Edited by softwareNerd
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Well, let's understand what you're saying. Suppose I steal $1,000 from you, and get caught. Are you suggesting I should return the $1,000 and justice has been served? As for research on deterrence, I think you might be thinking about studies that claim that the death-penalty, specifically, does not deter capital crimes any more than life-terms do. I have no trouble believing that, even though the claim could be untrue. However, that is a very different topic.

Firstly what does "justice" mean? Essentially, the quality of being "fair". Fairness logically introduces the concept of proportionality. It certainly does not make sense to impose a severe punishment for a small crime. If you steal $1,000, of course paying back exactly the same amount is not being fair because I did not just lose that amount of money. I was inconvenienced, opportunities were lost and the legal system spent money prosecuting you and this money is being extracted from my taxes which is a cost on me again and a waste. Justice is to add up all the costs and add some extra as a penalty or punishment.

As for deterrence, Iran regularly hangs people for prostitution and drug trafficking but the numbers are not significantly getting better. Many years ago I read that in a period of four months in one year, they hanged over 700 people for these two offences. So much for deterrence.

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Are you purposely bringing up strawmen? Who argued against proportionality? It was you who suggested that deterrence means we should give everyone the death penalty. That is quite ridiculous! That would be to hold deterrence as a primary, which it is not. The primary remains: the upholding of individual rights.

In principle, the law should deter crime. I haven't seen an explanation as to why you think it should not.

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When you say "justice system," you seem to be referring to the criminal justice system. Do you mean to distinguish between the civil and criminal justice systems, or are you arguing for a fusion of the two?

Our civil justice system is almost entirely restorative, with the exceptions of a) punitive damages and <_< pseudo-criminal cases where the state (or other government body) is the plaintiff, neither of which I think are appropriate. Our criminal justice system is almost entirely retributivist, with the exception of the occasional court-ordered restitution in certain money-related crimes, something I also do not think is appropriate, at least where the plaintiff has a civil remedy. The two systems work together because they overlap (at least as to proper crimes; victimless crimes do not have an analogue in the civil system), and the criminal standard of proof is high enough to subsume the civil suit, so that res judicata will bar relitigation of guilt at a subsequent civil suit brought by the victim.

Do you think the systems should be fused? Or should the criminal justice system, as it exists, be entirely eliminated?

I'm very interested in this topic, because after two years of law school, I am still unable to come up with a coherent philosophical basis for distinguishing between civil wrongs and criminal wrongs. I do have some ideas about it, but I'd like to hear more about what you have to say before I try to set them out.

~Q

PS: Qwertz is now a patron. Woo hoo!.

Qwertz, in Canada we have two standards of proof. In civil cases the standard is "on a balance of probabilities" while in criminal matters the standard is the more rigorous "beyond a reasonable doubt."

In advocating that the systems be fused, what are you suggesting be done with respect to the differing standards of proof?

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Are you purposely bringing up strawmen? Who argued against proportionality?

I was only answering your specific question on the $1,000 theft, not suggesting that you were against proportionality. Your question was whether "justice has been served" if you pay back what you stole. By referring to proportionality, I went on to show what would be just or fair in that situation (i.e. what would be appropriate punishment for the theft).

If "in principle, the law should deter crime", does it not stand to reason that we should adopt a no-holds-barred approach? Should we not impose the maximum possible sentences that would consequently produce the best possible results? What would be the point in doing things half measure by imposing less effective punishments? We all agree that any punishment should be proportional to the crime, but to fully satisfy the demands of deterrence necessarily means imposing greater (more effective) punishments until we end up at the ultimate punishment; death. Therefore, proportionality and deterrence are ultimately contradictory.

A second earlier argument I made (which has not yet been adressed), was that you cannot objectively determine to any degree of accuracy what specific punishment is a deterrent enough for any particular crime. So what is the point of considering deterrence, even as a seconday or tertiary goal if you cannot determine its effectiveness? It's like saying "Let's castrate all paedophiles even though we don't know whether this will deter them from defiling children in future".

Government protecting individual rights by using force on behalf of citizens in retaliation and only against initiators of force rests entirely on the principle of reciprocity. Taking this to its logical conclusion means that retribution combined with restitution (where possible) should be the foundation of the justice system, not deterrence.

As a related side issue, last year I considered the issue of jail and its purpose. I tend to think that jail should be reserved for individuals that are a direct danger to others (e.g. rapists, murderers, arsonists, etc.). I have not yet seen a convincing explanation why for example white collar criminals need to be locked up in jail. Why not just fine them and expose them in the media?

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But, I recommend: 1. High probability of getting caught.

As someone who has spent over half his life in law enforcement, I'm interested in how you would accomplish this. What action or actions would you take, or what plan would you implement that would result in a high probability of criminals getting caught and that would encompass the wide variety of criminal activities that exist today?

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I tend to think that jail should be reserved for individuals that are a direct danger to others (e.g. rapists, murderers, arsonists, etc.). I have not yet seen a convincing explanation why for example white collar criminals need to be locked up in jail. Why not just fine them and expose them in the media?

Can you define "direct danger"?

Why isn't the theft of significant amounts of money affecting one or more persons considered a "direct danger"?

If a person loses their business or their home because of the loss of significant amounts of money from white collar theft, why are they not in "direct danger"? If a person's life is ruined because they were bilked huge amounts of their finances, why are they not in "direct danger"?

If "in principle, the law should deter crime", does it not stand to reason that we should adopt a no-holds-barred approach?

No, it does not stand. Not everyone who appears to be committing a crime is actually committing a crime. The reason we have courts (instead of summary executioners) is because the law is defined objectively, and the actions of an accused criminal should be reviewed more thoroughly to ensure that they are actually violating the law. Far too frequently, the officer observing a "crime" does not have access to all the facts necessary to determine guilt or innocence of the suspect on the spot, even the 'red-handed' criminal. The point of due process of law is to ensure that a person accused of a crime has the opportunity for an impartial and more thorough examination of those facts such that if he is punished for committing a crime it is more likely that he actually did commit a crime. Even "red-handed" criminals should have that chance.

As a law enforcement officer, I'd rather not see a bunch of executioners running around 'dispensing swift justice'.

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If "in principle, the law should deter crime", does it not stand to reason that we should adopt a no-holds-barred approach?
No, it does not follow unless one elevates deterrence to a primary.

I have not yet seen a convincing explanation why for example white collar criminals need to be locked up in jail. Why not just fine them and expose them in the media?
Do you think white collar criminals would prefer such a system? Someone sued for some civil breach must restore things. A criminal must be punished.

BTW, you should the earlier posts of this thread.

Edited by softwareNerd
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A second earlier argument I made (which has not yet been adressed), was that you cannot objectively determine to any degree of accuracy what specific punishment is a deterrent enough for any particular crime.
I think you're confusing objective determination with aprioristic rationalism. You can objectively determine what degree of punishment is insufficient to the function of punishment -- if it does not deter people from violating the law. A fine of $50 for burglary would clearly be a sufficiently light penalty that you should not even consider it as the punishment for burglary. The death penalty would be too severe. If you find that 3 months in prison is insufficient punishment to deter the crime, you increase the penalty -- you now have a more accurate understanding of what satisfies the requirement of deterrence. The idea of "absolute accuracy" w.r.t. punishments denies reality -- some people can never be deterred. The idea that you cannot know "to any degree of accuracy" is pure nihilism. Man can know; man cannot be omniscient; man need not be omniscient to act rationally.
Taking this to its logical conclusion means that retribution combined with restitution (where possible) should be the foundation of the justice system, not deterrence.
The purpose of retribution is deterrence.
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Can you define "direct danger"?

"Direct danger" in the context I used it means posing a danger of physical harm. A rapist or murderer directly physically harms people whereas a fraudster may cause great loss but is not in the same category. Having your life ruined by financial loss is not the same as having your leg cut off or being sexually violated. You can be compensated for fraud but you can never be compensated for murder.

Not everyone who appears to be committing a crime is actually committing a crime.

I am rather puzzled that I was misunderstood over my "no-holds-barred approach" statement when I clearly stated in the very next sentence "Should we not impose the maximum possible sentences that would consequently produce the best possible results?" A sentence is imposed by a court on a convicted criminal and not on a suspect, so I am afraid you are arguing against a strawman.

No, it does not follow unless one elevates deterrence to a primary.

What is the relevance of hierarchy of goals? If we are trying to achieve something for ten different reasons, should we be less diligent (with respect to effectiveness) on reason number ten if we have the capacity to be 100% diligent on all the ten reasons? So if the fine for a pickpocket comes to $20,000 and we also know for sure that by additionally flogging him, we shall prevent fifty others from doing the same thing, why would we stop short of flogging him just because it is secondary?

A criminal must be punished.

Did I say at any point that a criminal should not be punished? My only argument was that certain crimes that are currently "jailable" [invented word] should not be. This was derived from my "direct danger" hypothesis. A fraudster who has (only) been fined has been punished in full. Why jail him?

If you find that 3 months in prison is insufficient punishment to deter the crime, you increase the penalty

So how would you propose to OBJECTIVELY determine that the "3 months in prison is insufficient punishment to deter the crime"? As a hypothetical example, out of the following, how would you determine which one is the greatest deterrent for rape?

A] 10 years in a "light" penitentiary

B] 5 years in a "medium" jail with hard labour

C] 2 years in a maximum security prison

And how do you deal with the fact that what is a deterrent to one person is actually a motivation to another? e.g. the terrorist who kills 200 people and when tried in court welcomes the death penalty so that he dies for Allah as a martyr and through the huge publicity inspires more terrorism.

The purpose of retribution is deterrence.

"Retribution" means:

1. A justly deserved penalty

2. Correcting for your wrongdoing

3. Taking revenge (harming someone in retaliation for something harmful that they have done)

"Deterrence" means:

1. A negative motivational influence

2. A communication that makes you afraid to try something

3. The act or process of discouraging actions or preventing occurrences by instilling fear or doubt or anxiety

What is the causal relationship between these two?

Edited by lethalmiko
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