By Harley Austin | United States
In America, criminal justice is relatively simple: major felonies are punished by time in jail. Such a system has been in place for over a century and is rarely thought about by Americans, even those who understand politics and law. However, this form of justice, known as punitive justice, has numerous flaws in its principles and effects.
The Flaws of Punitive Justice
The major flaw of punitive justice and most other justice systems is that it does not account for the biggest issue: the victim. If a person commits a crime against someone else, then having that person thrown in jail does not help the victim at all. While some crimes, such as grand theft, require restitution to the victim, many other crimes involving property damage only result in jail time or fines paid to the government. Even if restitution is ordered by the court, it is usually minimal, paid in small increments, and often goes unpaid. This system of punishment without adequate restitution is purely draconian and ignores a major purpose of criminal justice: reimbursing the victim.
Another flaw of this system is that prisoners in jail spend much of their time sitting in a cell. This time could be spent working to repay the damages they’ve committed, but is instead wasted on a pointless method of punishment. Their prison times are also entirely funded through taxes, which costs billions of dollars nationwide. This means that instead of being reimbursed for the damages to person or property, the victim, as a taxpayer, loses money to pay to imprison the perpetrator. This system is not even close to providing justice to the victim and must be replaced by a more effective system.
Unfortunately, the only alternative that has been advocated has been a rehabilitative system which focuses on rehabilitating criminals. While this system has its benefits in some cases, it still only focuses on the perpetrator rather than the victim. In order to bring justice to the victims of crimes, a new system must be implemented: retributive justice.
The Retributive Justice System
The justice system of America truly needs a retributive system which bases punishments proportionally to the crime committed and requires full restitution to the victim. Murray Rothbard, Austrian School economist and political writer, theorized this system in his book The Ethics of Liberty. According to Rothbard, this system would focus on reimbursing the victim and would punish proportionally. For example, if someone were to steal or damage someone else’s property, they’d be required to pay restitution for the full value of what was stolen/damaged. This way, the victim is fully replayed for what was lost in the crime and the criminal is punished proportionally. In this system, the punishment would truly fit the crime.
In addition, the retributive system would also allow for the victim to have an input on sentencing. Proportionally setting a penalty is only a maximum sentence in this system. If the victim decides that a lesser penalty is just or decides to forgive the perpetrator then that would be the new penalty. For example, if someone were to steal a sum of money and the victim decides, perhaps on account of the perpetrator’s past or motive, that a smaller punishment such as community service would be better, then that would be the penalty. If the victim decides to forgive the perpetrator, then the charges would be charged. The victim would not, however, be allowed to set a larger penalty because the criminal can only be punished to the extent of their invasions of someone else’s person or property. This system would allow for all sentencing to be either proportional to the crime or what the victim decides, a more victim-oriented approach than our current system.
But what about invasions of someone’s person instead of property? In these cases, such as murder and assault, the same concepts apply. The criminal would be punished proportionally to their invasions of someone else’s person. According to Rothbard, if a person were to commit assault against someone else, then the punishment would be the same degree of assault against the perpetrator. The perpetrator would also have to pay for any of the victim’s medical expenses that occurred as a result of the crime. The punishment for murder, at least 1st degree, would be death. While these penalties may seem harsh, as stated before, they are only maximum penalties. In these cases, the victim, court, and the perpetrator could instead agree on a fine to pay to the victim as restitution for the crime, which would likely be the result in most cases.
The Retributive Prison System
This system would also drastically change how prisons operate. Prisons in a retributive system would be mainly for people who cannot pay retribution for their crimes. However, these are in no way debtor’s prisons, as those only locked people in cells and never repaid the victim. Instead, these prisons would put inmates to work, for a market wage, in order to pay back what they owe. This could be either in an actual prison complex or on a probationary system. This way, inmates productively use their time and the victim is repaid instead of ignored.
The Political Benefits or Punitive Justice
The replacement of America’s punitive system would also bring political benefits. Primarily, since all crimes in a retributive system require victims, there would be no victimless crimes. This way, laws would serve to defend the people and their property instead of being arbitrary dictates by the government. This system would also reduce America’s overinflated prison populations, many of which are serving for victimless crimes. It would also reduce the massive cost of prisons, which requires billions of taxpayer dollars.
With prison populations continuously growing, America needs to take a firm look at its criminal justice system. It’s time for our ineffective and draconian methods of punitive justice to be replaced by a system that punishes fairly and reimburses the victim. It’s time for a truly retributive form of justice.
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