Proportional responses in civil law

[Lasse K. Lien]

Basically I've always been of the oppinion that the government should give out just punishment for the violation of rights, in essence and "eye-for-eye" mentality - but I have heard very good arguments for going beyond that and figured I would see what you guys think of the subject.

I have personally not been able to argue well against this position, that has been presented to me by other objectivist friends.

To concrete the issue, if you use grafitti to vandalise someones property, in most cases a fair retribution would be a substantial fine or perhaps a few weeks of prison.

But if our goal is to prevent vandalisation to begin with, why not implement "unfair" laws - say a five year minimum for vandalising property?

Surely this is proportionatly extreme, but proportion is no virtue in foreign relations - why would it be so domestically?

Im quite certain the amount of people vandalising would go down hugely if the sentences where really creating a huge disincentive.

To take the discussion further, it would not seem a just or proportionate response to execute someone for the crime of aggrevated assault or vicious rape - ten to twenty years in prison would seem more reasonable and "just" (obviously there will be contextual differences, but I can see none that would justify execution, atleast in civil cases) but executing them certainly would create a greater disincentive - aswell as assuring they dont repeat the action.

I am not saying that I support disproportionate or unjust sentencing, the reason I have a problem arguing against these positions is simply that it would seem practical for me to live in such a society.

I have no intention of doing anything that would be considered criminal under Laissez-Faire, so how would it not be selfish and thus moral for me to advocate such positions?

[Mindy]

One problem with extreme punishments is that less informant-based help would become available. People would recognize the unfairness, and act to protect their acquaintances, etc. Witness intimidation would be more highly motivated, and extend to trivial offenses, making it dangerous to be a witness, however unwilling, to anything illegal. Another argument is that it would back-fire and dis-discourage people from undertaking more serious crimes. Criminal types don't think of time very precisely. Years behind bars is years behind bars. Also, perps would struggle more extremely not to get caught, possibly leading to more police-shootings, and injury to by-standers, hostage-taking, etc.

It is unconstitutional, on the grounds that it is "cruel and unusual punishment," by its own standards.

The only really serious reason I know, however, is that unfair is unfair. A society that deliberately adopts any standard that is knowingly unfair makes a charade out of principles, and abdicates any claim to benevolence, proves itself to be hypocritical, and involves itself in innumerable conflicts whenever it is necessary to establish objective evaluations. How would such a schedule of punishments claim objectivity? How would you argue for consistency in sentencing, if penalties are arbitrary anyway?

I think this is a thoroughly pragmatic proposal, sure to back-fire at the practical level, and malignant to civil society.

-- Mindy

Edited July 12, 2010 by Mindy

[DavidOdden]

I'll start with a terminological note -- I believe you're using "civil law" to refer to "non-military law", whereas over here, "civil law" refers to private law.

The first problem is that in civilized societies, we do not practice eye-for-an-eye retribution. Assaults are punished with prison time, not with beatings. Prison time is the best "standard currency" to use in penalizing criminals, especially compared to fines, because prison time is closer to equally distasteful for all potential criminals. In addition, prison time has the benefit of protecting society from the scumbag for the duration of the sentence. But this leads to the problem of computing the duration of a sentence, and to take your grafitti example, I don't think "a few weeks" quite counts as just punishment, rather "a couple of months" would be (depending of course on the nature of the vandalism).

Your fundamental question, carried as a presupposition (your premise that our goal is to prevent vandalism to begin with), is what should be scrutinized closer. If the function of law is strictly to use force retributively, then you do not have the social-engineering rationale that justifies disproportionate responses. I'm not flatly rejecting the idea of using the law to prevent criminal conduct, I'm pointing out that this is the root of the problem that you're pointing to. Why should legal punishments serve the purpose of persuading people to not violate rights when they would "ordinarily" do so?

[Lasse K. Lien]

One problem with extreme punishments is that less informant-based help would become available.

- But is not informant based information something that rarely play a role in murder charges/rape/etc?

Seems that would be relevant primarily in mafia cases, considering how there would be very little, if any, organised crime under laissez-faire im not certain it would make that big of a difference?

Criminal types don't think of time very precisely. Years behind bars is years behind bars.

- I doubt that is true in general, obviously the risk one is running vs the possible profit is going to effect a decitionmaking process prior to doing anything illegal.

If someone offerede me a million dollars to smuggle drugs, and the potential punishment was a hundred dollar fine, the odds of me doing so would surely increase.

Likewise im certain that the kids who view it a part of their destructive culture to vandalise/etc would be less likely to do so if risiking several years in prison.

Some people will take larger risks then others, and some will not care at all - obviously criminals fall in a category of people with less moral and a general willingness to take higher risks - but at some point punishment would certainly function as a deterrant.

Im quite certain shoplifting is more frequent in the west then it is in Iran, for example.

Also, perps would struggle more extremely not to get caught, possibly leading to more police-shootings, and injury to by-standers, hostage-taking, etc.

- This is a decent point. But this is also true to a degree with fair punishment. The relevant factor as far as I can tell would be whether the number of such instances would increase to a degree that makes the extention in punishments irrational. And im not sure thats the case.

It is unconstitutional, on the grounds that it is "cruel and unusual punishment," by its own standards.

- Yes, but the fact that it is unconstitutional does not seem that important or relevant as far as I can tell.

Constitutions are not correct by virtue of being constitutions as such.

How would you argue for consistency in sentencing, if penalties are arbitrary anyway?

- It would not be arbitrary, in a given case that previously the punishment objectivly was 5 years - it is now twenty years.

Everyone previously getting five years will now get twenty instead. Its an issue of multiplication, not subjectivity.

I think this is a thoroughly pragmatic proposal, sure to back-fire at the practical level

- Maybe. But I dont see that the downsides overcome the upsides - atleast not so far.

I'll start with a terminological note -- I believe you're using "civil law" to refer to "non-military law", whereas over here, "civil law" refers to private law.

- Thats accurate. I remember when I was like fourteen and everyone was impressed by my English - it would appear that one should continue developing this knowledge, as my skills have not changed much and are no longer particularly contextually impressive

I'm not flatly rejecting the idea of using the law to prevent criminal conduct, I'm pointing out that this is the root of the problem that you're pointing to. Why should legal punishments serve the purpose of persuading people to not violate rights when they would "ordinarily" do so?

- Right, and the answer there is clearly that it would be in my interest to have a society where the fewest possible criminal acts occour.

And that the optimal way to achieve such a state is not to punish people fairly, but excessivly.

Or is there something im missing here?

Basically something being "barbaric" does not make it inproper by definition.

Being unfair does not seem to be reason enough either, as it would not be unfair to me.

Off course, that kind of additude opens another door to various general discriminatory laws that simply would not apply to me (to take an absurd example, a general tax to finance the minimumstate forced upon everyone shorter then me would not be to my disadvantage, and the only reason to oppose such legislation would be the fact that its unfair to everyone else and violates individual rights..)

so im not really sure where I stand on this issue. Which is a fealing I have not had for quite a few years, making it somewhat interesting..

[DavidOdden]

Right, and the answer there is clearly that it would be in my interest to have a society where the fewest possible criminal acts occour.

Okay; and it is also in your interest to have a society which values and practices the virtue of justice. ("one must never seek or grant the unearned and undeserved, neither in matter nor in spirit"). Now we have two rational values, and we have to balance them.

And that the optimal way to achieve such a state is not to punish people fairly, but excessivly.

The implication is that the injustice that would arise from excessive punishment is a lesser disvalue than a society which we conjecture would have slightly more violations of rights. If you can give me an argument that that is the correct rational hierarchy of values, I could change my mind, but I think that is backwards. If crime-prevention is of such importance that it must trump justice, then life imprisonment combined with lifelong torture would need to be the penalty for all violations of the law. Punishments are meted out as counterparts of the wrong done (a minor wrong receives a minor punishment, a major wrong receives a major punishment), but if we are to put crime-prevention above justice, we are denying that it is possible to judge the extent of a wrong. But clearly, we can distinguish between bar-brawling and serial murdering.

In addition, the theory that you are toying with is based on a false presumption regarding the proper function of government. It is a proper function of government to state the penalties for theft, to investigate and prosecute cases of theft, and to impose a punishment on those who commit the act. Therefore the government will have a legislative body which articulates the law, a police force that will objectively determine the facts of a particular matter, a prosecutor to argue for the imposition of the penalty, a court system to weigh the evidence and determine whether the accused should be punished, and a prison system to carry out the penalty. Period. (Ignoring the military). But if we expand the function of government to crime prevention, then the government has a necessary interest in all sorts of things that are not part of proper government, such as psychology, philosophy and culture.

To get back to your initial point, about your interest in living in a society with the fewest crimes, it is also in your interest to live in a society with fabulous wealth, flying cars, 1,000 Mbs wireless connections and good, cheap shoes, but it is not the proper function of government to bring about that society. The proper function of government is to place retributive force under the objective control of law. Aha! And maybe this subtle point needs to be made -- "retribution" specifically means "penalty that is proportionate to the wrongdoing", it does not mean "any degree of force imposed in response to a wrongdoing".

[SapereAude]

The proper function of government is to place retributive force under the objective control of law. Aha! And maybe this subtle point needs to be made -- "retribution" specifically means "penalty that is proportionate to the wrongdoing", it does not mean "any degree of force imposed in response to a wrongdoing".

What of instances where a truly objective vision of proportion is nearly impossible?

Lets say rape.

Should this be punished according to how traumatized the victim is? If so how would that be measured? Does the perp get out of prison when the victim is over it? If two people are raped in the say way using the same amount of force but one "gets over it" in two years and the other in five should the perp of the victim who is less traumatized do less time?

Should the supposed value the victim places on their sexuality have something to do with it? Raping a virgin worse than raping a faithful married person worse than raping someone promiscuous worse than raping a whore which would then just be theft?

I know this may sound like I'm going reductio ad absurdum but these points have showed up in past concepts of justice around the world.

In destruction of property would such justice take into such considerations of non-monetary value of an item?

I have a one of a kind custom built bass at home, the person who made it is dead. If someone were to steal it and then either destroy it or otherwise make it impossible to expect recovery would it be justice to just give me the Blue Book value?

[D'kian]

Overall to deter crmie, it's most important to catch, try and convict criminals, regardless of the penalties involved. In other words, if the penalty for grafiti were two weeks in prison and a $500 fine, and you imposed that on 80% of all the vandals who deface walls, then you'd see that crime rate drop like a stone.

If, on the other hand, you imposed 10 years in prison, but imposed such a penalty only on 1% or 2% of all vandals, then the rate would remain steady or even rise.

It's a simple cost/benefit analysis, for all crimes: what are the chances of being caught and winding up in prison? If they're high, then more criminals will be deterred. Of course the penalties count. If the penalty for grand larceny were 1 day in prison and a $10 fine, then no one would give a damn about being caught. So the penalty must be proportional to the crime. That's the second part of the equation: if caught, how bad is the punishment? That amkes the first part more improtant than the second.

[Lasse K. Lien]

Okay; and it is also in your interest to have a society which values and practices the virtue of justice. ("one must never seek or grant the unearned and undeserved, neither in matter nor in spirit"). Now we have two rational values, and we have to balance them.The implication is that the injustice that would arise from excessive punishment is a lesser disvalue than a society which we conjecture would have slightly more violations of rights.

- Would it not appear that you are making the assumption that we are merely speaking of a minor decrease in crime?

I would think it could decrease crime by 70-80% with little difficulty, that is not a minor factor to keep in mind.

When it comes to justice as a virtue, surely that can be handled contextually - and in this particular context (crime) it would not appear a virtue, as its upholding would lead to greater injustice to the innocent (basically a larger amount of crime).

D'kian makes a good point about risks of getting caught, which obviously also has to be included.

However it seems somewhat naive in the perception that you would ever get an 80% rate of success in investigating criminal cases.

However, the extention of punishment is no difficult task - its merely a matter of new legislation.

If crime-prevention is of such importance that it must trump justice, then life imprisonment combined with lifelong torture would need to be the penalty for all violations of the law.

- One could obviously use a principal of non-proprtionate punishment to advocate it, but I dont think it would be very practical.

First of it would be tremendously expensive, secondly there would be a point where deterriation stops being relevant to whether you do something and not, and I think you find it much earlier then at this point.

if we are to put crime-prevention above justice, we are denying that it is possible to judge the extent of a wrong. But clearly, we can distinguish between bar-brawling and serial murdering.

- But there would still be a distinction. Lets say we double all punishments, that way they are disproportionate relative to the offense - but still proportionate in relation to eachother.

But if we expand the function of government to crime prevention, then the government has a necessary interest in all sorts of things that are not part of proper government, such as psychology, philosophy and culture.

- But this would not be practical, and considering that it would demand some sort of extensive taxation to finance it would no longer be in my interest. Im merely proposing disproportionate punishments to the extent it would seem selfish.

To get back to your initial point, about your interest in living in a society with the fewest crimes, it is also in your interest to live in a society with fabulous wealth, flying cars, 1,000 Mbs wireless connections and good, cheap shoes, but it is not the proper function of government to bring about that society.

- I actually disagree, if it had been possible for the government to create a society where everyone lives in fabulous wealth off course I would advocate that, and any advocation of a free society would be silly, if we presume a free society would be a much worse place for humans to coexists.

Obviously thats not the case, and a laissez-faire state gives the individual the best possible chances of leading a happy wealthy life - but since your argument was based on some fictional alternative, I found it proper to point out that such a fictional society certainly would be preferable.

[DavidOdden]

What of instances where a truly objective vision of proportion is nearly impossible?

Lets say rape.

The idea is not that the criminal get back "the same thing", but that the severity of the punishment be directly related to the extent of his evil.

Should this be punished according to how traumatized the victim is?

No, because that suggests that a victim's nability to copy with the psychological problem of being a victim is a mitigating factor. The punishment should fit the nature of the crime, not the specific harm done to the victim (that is implicit in the concept 'objective law', especially the 'know what the punishment is' part).

I have a one of a kind custom built bass at home, the person who made it is dead. If someone were to steal it and then either destroy it or otherwise make it impossible to expect recovery would it be justice to just give me the Blue Book value?

That kind of question is actually easier to answer -- there's a whole industry in the business of answering that question (and you will meet them, if you ever need to make an insurance claim).

[DavidOdden]

- Would it not appear that you are making the assumption that we are merely speaking of a minor decrease in crime?

Well, no, I assume that you believe that draconian punishments will cause a major decrease in crime, and I dispute that assumption -- maybe 15% drop. We could do an experiment, if we had some aquariums full of Sand Kings. All of the criminals that I know (okay, a very small set) are not persuaded by punishments because they're not gonna get caught, anyhow.

- But there would still be a distinction. Lets say we double all punishments, that way they are disproportionate relative to the offense - but still proportionate in relation to eachother.

But then you're abandoning the desideratum of using harsh punishment as a deterrent. If the likelihood of a person committing a crime is inversely related to the duration of the punishment, you're saying that it's unimportant to eliminate those crimes that are punished with only a year in prison.

But this would not be practical, and considering that it would demand some sort of extensive taxation to finance it would no longer be in my interest. Im merely proposing disproportionate punishments to the extent it would seem selfish.

I don't see any reason that it would be impractical, and it does not require taxation any more than policing or courts do. I'm assuming that it would be part of the voluntary government package that we would all support.

[SapereAude]

The idea is not that the criminal get back "the same thing", but that the severity of the punishment be directly related to the extent of his evil.

But isn't the extent of his evil judged by the damage done?

No, because that suggests that a victim's nability to copy with the psychological problem of being a victim is a mitigating factor. The punishment should fit the nature of the crime, not the specific harm done to the victim (that is implicit in the concept 'objective law', especially the 'know what the punishment is' part).

But "how can law be objective in cases like this?" is my question. If something is stolen, burned down, broken, damaged the punishment generally is fitted to the value of the thing and how badly or irrevocably damaged it is. If a person is assaulted in a non-sexual way the punishment is usually fitted to how bad the physical assault hurt the person. So how does one find objectivity in cases like this? A person can be raped and not physically damaged much.. what then?

To explain- I've done volunteer work with rape crisis centers and abused women & children. Years of that kind of information leads me to question how any objective justice could be applied to a damage that is very hard to quantify.

Edited July 12, 2010 by QuoVadis

[nanite1018]

As I've stated before, I think that a very strict "get back what you gave" policy is the best. If someone, for example, was raped in a particular fashion, then theoretically the victim and/or state could rape them in a similar manner. If they don't want to be raped, the parties could negotiate a prison sentence, a restitutive payment, etc., with the criminal deciding whether he is better off (that is, hurt less) with the offer or his sentence, and the victim/state deciding whether it likes the offer better than the sentence. Similarly for assault, murder, theft, etc. Determining a set prison sentence for a crime is impossible, if your goal is equal retribution (rather than proportional). And even, for example, saying that a rape is worth 20 years whereas a beating is worth 9 and a theft is 5, etc. isn't going to be right. Who is to say that the beating was 1.8 times worse than a theft of value x, or 55% less bad than a rape?

If you want the punishment to be proportional to the evil done, then I'd say give 'em back what they dished out (plus fines for all costs incurred for trial, etc., with interest). Seems straightforward and very very clear what punishment one would receive for a crime.

[Lasse K. Lien]

Well, no, I assume that you believe that draconian punishments will cause a major decrease in crime, and I dispute that assumption -- maybe 15% drop. We could do an experiment, if we had some aquariums full of Sand Kings. All of the criminals that I know (okay, a very small set) are not persuaded by punishments because they're not gonna get caught, anyhow.

- It would be significantly more then 15%.

Lets look at the countries that practise draconian punishments today, Sharia-law (im not defending Sharia obv, but proving a point) cut the hands of anyone caught of stealing. Do you not think this effects the number of thefts?

Signapore executes anyone guilty of drugpossesion. Their airports clearly states "if you enter this country with drugs, or use drugs here, you will be executed". Do you not think there are fewer people using drugs in Signapore?

I've played alot of poker in Norway, and considering how its illegal all clubs are underground - they know that they will likely get caught once a year on average if there really popular - but the standard sentencing is a fine of about 1500 dollars, which they mostly consider a reasonable risk.

Had the punishment been ten years in prison, or a million dollar fine, nobody would be able to do it (thankfully the Norwegian government would never impose such strict punishments, though ).

If the likelihood of a person committing a crime is inversely related to the duration of the punishment, you're saying that it's unimportant to eliminate those crimes that are punished with only a year in prison.

- I dont think so, because the crimes that are punished less will also be easier to avoid.

For example risiking five years for vandalism is a big enough deterrant, as very few have an extreme desire to vandalise.

When it comes to murder and rape on the other hand, people will risk much more.

As I've stated before, I think that a very strict "get back what you gave" policy is the best. If someone, for example, was raped in a particular fashion, then theoretically the victim and/or state could rape them in a similar manner. If they don't want to be raped, the parties could negotiate a prison sentence, a restitutive payment, etc.,

- Given that I've presented quite a radical suggestion myself im going to try not being to hard on you with this one.

But its very tough, because it is a very very bad idea.

Basically your ignoring the context of rape, and the fact that most women are raped by men. Is your suggestion that the male rapist is going to be raped by a women or another man?

Should the government hire men to rape other (probably quite disgusting) men?

You would certainly create a great society for any bisexual "switch" bdsm'er (people who enjoy violent sex both as the submissive and dominant part) - they can go rape whomever they want to satisfy half their desires, and then the government sentences them to get the other half aswell.

Similarly for assault, murder, theft, etc.

- The victim should ROB the people who robbed them?

What makes you think the robbers would have much of value to begin with?

Or that they would not hide it prior to the offense, since they know how these laws work?

Who is to say that the beating was 1.8 times worse than a theft of value x, or 55% less bad than a rape?

- You need to make a general line and work from it. Its the same as consent ages, it applies to everyone no matter how mature they may be.

[DavidOdden]

Lets look at the countries that practise draconian punishments today, Sharia-law (im not defending Sharia obv, but proving a point) cut the hands of anyone caught of stealing. Do you not think this effects the number of thefts?

No, I don't. Do you have any evidence that it does, or is that just based on a feeling. I don't share that feeling -- I think it has no effect.

Signapore executes anyone guilty of drugpossesion. Their airports clearly states "if you enter this country with drugs, or use drugs here, you will be executed". Do you not think there are fewer people using drugs in Signapore?

I've played alot of poker in Norway, and considering how its illegal all clubs are underground - they know that they will likely get caught once a year on average if there really popular - but the standard sentencing is a fine of about 1500 dollars, which they mostly consider a reasonable risk.

Had the punishment been ten years in prison, or a million dollar fine, nobody would be able to do it (thankfully the Norwegian government would never impose such strict punishments, though ).

These examples are irrelevant, because you're talking about the conduct of moral people who perform acts that in a rational society would not be crimes. The question should be about violation of rights. I guarantee that the only reason that I pay my taxes is because they threaten me with jail and a vast fine. Most people are like me. Now, here's a test. If, starting tomorrow, rape were legal or only punished with a 50 NOK ticket, would you commit rape?

For example risiking five years for vandalism is a big enough deterrant, as very few have an extreme desire to vandalise.

When it comes to murder and rape on the other hand, people will risk much more.

I don't understand that logic -- are you saying that you think that more people have an urge to rape and murder than have an urge to vandalize? And that therefore, we need an even stiffer penalty, to keep those extra killers under control?