Punishment

Column by Jim Davies.

Exclusive to STR

In September 1971 there was a serious riot in the state prison in Attica, NY, which left 39 dead, and drew much comment. One of the comments was as follows. See whether you can guess by whom it was made:

“Any mutiny by the prisoners is going to be put down and put down hard.”

The State Governor, maybe? Or some law-n-order Conservative? Probably in some journal like National Review, run by the late Bill Buckley, from whom not long previously the nascent Libertarian movement had rightly separated itself. Or had Rush Limbaugh been broadcasting at the time, perhaps he would have used such words.

But if we guessed that, we'd be wrong. That was the sentiment of Murray Rothbard, Mister Libertarian himself. He wrote it in the Libertarian Forum issue III-9 for October 1971.

Of course he had, as always, a rationale. He began it by rightly dismissing the “Left Libertarian” take on the event, which held (he says) that “Attica was a rebellion by political 'revolutionaries' against the State. Ergo, we should take our stand with the prisoners and denounce the resolution of the Attica question as a 'massacre'.” Yes, that's too simplistic. As he explained, convicted violent prisoners are not political revolutionaries.

But then Rothbard wielded what he called his “fine scalpel” of analysis with less skill, it seems to me, than is required. He went to the opposite extreme. On the way, he made some excellent points about the “liberal” approach to crime – that everyone is to blame except the perp himself – which ends up trying to rehab the prisoner; the “libertarian psychiatrist Dr. Thomas Szasz has pointed out in the case of psychiatric methods of dealing with crime, has been a monstrous and unjustified tyranny over the prisoner.” Yes! At least in the classic “time for the crime” model, a perp was caged for a known, fixed period and that was that.

His scalpel then most surprisingly leads him to this: “the libertarian creed states that an aggressor loses his rights to the extent that he has deprived victims of theirs. Hence, it is perfectly proper to exact capital punishment on murderers, who have deprived victims of their right to life, or to exact a lesser punishment which is in some way proportionate to other crimes.” Now, it's certainly granted that there is nothing immoral about the use of defensive violence; force, to the extent needed to deter or prevent the apparent degree of violence threatened, is perfectly okay. But Murray morphs that principle into one of retribution, and that will simply not do. The purpose of defensive force is to stop or minimize the effect of an attack in progress, not to punish the attacker when he has already been disabled!

I think the error comes from his phrase about “losing rights,” as if rights were separate from the person, carried as a kind of backpack. They aren't, and they can't ever be lost, except in death; they are inalienable. They all derive from the one fundamental right, the axiomatic one of self ownership; and as Per Bylund has pointed out, the phrase “I own myself” doesn't quite do the concept justice because it implies a subject, verb and object, and that ain't so. A human being is a “selfowningperson”; a single, integral or wholistic unity.

What happens when rights are violated is that the victim is deprived of the enjoyment and exercise of his rights – which remain wholly intact. That deprivation is the moral wrong, which a justice system should correct, by restoring them as fully as possible at the violator's cost.

In other words, the “libertarian creed” - that of universal self-ownership and hence non-aggression – has no place whatever for punishment. Punishment needs a punisher, an “authority” of some kind; and in my vision of liberty, no authority exists. Murray Rothbard above everyone knew that and should have begun with that central principle when subjecting this subject to “more rigorous analysis” -- but on this occasion, he didn't.

True, he did foresee that the “focus” of punishment in a free society would “shift” towards compensating the victim, but he still calls it punishment and still sees nothing wrong with the premeditated State murder known as “capital punishment.” He concludes the article with “Even when taking the widest context into account, the libertarian must support the tough conservative line on the question of Attica and other prison mutinies.”

So let me try to wield the libertarian, analytical scalpel a bit more carefully.

Post-government, rights may still be violated; by accident, by misunderstanding (inadequate reading of contractual obligations, for example) or even by deliberate intent. There occurs a rape, let us suppose.

The victim's right to control her own body has then been gravely violated, and she is entitled to recompense – to right the wrong, as far as possible. In such a case, it's much harder to assess what restitution is due, than in one of simple theft – but some is due, for certain. She may carry insurance, in which case the insurer will at once restore her by providing therapy, counseling, monetary compensation, rehabilitation, or whatever has been agreed, and then pursue the perp to recover his costs. A detective agency will be employed if needed, and eventually the aggressor will be handed a bill. If he agrees and pays, the matter ends. If not, he will (at his own eventual expense) be invited to a free-market court and, after the case is proven, obliged to pay against his will. The element of retribution, however, will be entirely absent; for justice will have been served the moment the victim is made whole.

Should the perp defy the court's order, that fact will dog him the rest of his life, heavily limiting his ability to earn and live. Being shunned by all who might trade with him, he may find himself destitute and eventually starve to death. That's his motive to accept the obligation (and to accept the invitation to court in the first place.)

Only an arrangement of that kind avoids further violation of anybody's self-ownership rights. There are two parties in dispute, with their representatives, and only two. The notion of a fictional third party, whose “law” has been “offended,” is properly absent.

Exceptions, to this very civilized process? Yes, I can imagine the case of a serial rapist or other aggressor. He endures a process like the above more than once, but keeps on hurting people. He appears to be reprobate, and may very well have few resources with which to pay compensation. What's to be done with him? Particularly, to protect future likely victims? Then and then only, it's clear that preventative treatment is clearly called for, in some form. There will be very few like this, but there will be some. A Jeffrey Dahmer tortures, kills and eats his victims. Is he to be left free to continue?

I don't think so. Here are the kinds of restraints that will cramp his style.

First, his misdeeds will be public knowledge, along with all others against whom judgment has been entered. Nobody will employ him. The notoriety he deserves will make his life miserable; not only will nobody hire and pay him, nobody who has read his profile will even sell things to him. He'll be shunned.

Second, that notoriety will take a form comparable to today's idea of being “beyond protection of the law” -- that is, if somebody shoots him upon even a slight fear that he intends violence, the standards of proof against the shooter will be quite a lot relaxed. He'll be like an “outlaw” and, there being no government to prevent it, most potential victims will choose to be armed, with the proper ability to defend themselves.

Third, a court might order him shackled, at his own expense; equipped, that is, with an electronic bracelet which will be monitored 24/7, again at his own expense. But what if he refuses to accept the order? Then we will not be surprised if someone's trigger finger, as in #2 above, should suffer a severe nervous twitch.

Or fourth, he might be offered the alternative of living in a place with a fence around it, once again at his own expense. No cost will be applied to the community, of course, for that would have the form of a tax; but the facility could form a source of low-cost labor and so could be self-sustaining. A kind of enclosed work-house – and safe from twitching trigger fingers.

A fifth option, which I expect to become more popular with time, will be to offer the perp the alternative of surgery or drugs – of which the cost would be his own, or possibly that of an insurers' fund, since the overall effect would be to lower claims for the industry. As the workings of the brain become better understood, it may well become possible to remove whatever it is that causes violent aggressors to behave as they do. To impose that without his agreement would be punitive, but might be more attractive to the perp than his other options.

These five ways of preventing serial aggression won't work 100%; perfection is a little beyond even anarchists. But they will be an enormous improvement on the current system, based squarely as it is on the barbaric principle of an eye for an eye.

This mistake of Rothbard was very rare, and I certainly hope this article will not dissuade anyone from reading and enjoying the fascinating Libertarian Forum or the Irrepressible Rothbard, The former is huge, covering the first 16, exciting years of the modern libertarian movement as it happened, from 1969 thru 1984, with one issue every two weeks initially, then a longer one every month. The Kindle version occupies over 76,000 “locations,” or about nine times as many as, for example, Pat Buchanan's full length book, Churchill, Hitler and the Unnecessary War. Rothbard did have at least one other flaw – his elephantine, surprising blindness regarding how we can get from here to there – but the infallible human hasn't yet been born, Vatican claims to the contrary notwithstanding.

Otherwise, Murray Rothbard's output was phenomenal, and I've yet to encounter any of his books that covered their subjects in less than an elegant and accurate manner. As far as I'm concerned, if it's about economics, he is the go-to source. Power and Market, for example, is a masterpiece without which nobody should leave home. How this amazing man could juggle so many balls in the air at the same time I just cannot tell; typically he would have several erudite works in preparation simultaneously and be fighting to keep what later became the “Kochtopus” on track and be keeping the peace between Left and Right among NYC activists. And trying to earn a living. What a mind, and what a scholar!

But, on how to “put down” prison riots? Discontinue prisons, along with the government that runs them. This proper, libertarian solution is vastly superior to both the “liberal” and “conservative” ones, the only two that Rothbard considered.