I recently got into a discussion about whether punishment (i.e. jail) for crimes is justified by libertarian principles. I want to try to reason about what a criminal justice system might look like if it were totally consistent with our Liberty Framework.
First, what constitutes a crime? We would consider a crime to have occurred when someone is deprived of their right to life, liberty or property, without just cause. This could be intentional or not.
A violation of someones life would include assault, or murder, but it could also include accidental violations, like car accidents or accidental discharge of a weapon. A violation of someones liberty would include kidnapping (wrongful imprisonment), restrictions on who you can and can’t do business with, where you may or may not travel too, etc. A violation of someones property would include theft, vandalism, or again, accidental damage. What all of these crimes have in common, are the presence of a victim.
What should be the punishment for a crime? If the goal is justice, it would be restoring the victim or their property to their original state. This could mean return of stolen property, payment for reconstruction or restoration of property, or compensation for time lost due to imprisonment. Does jail or fines paid to governments help in providing reparations to the victim?
Some would argue that additional punishments act as a deterrent for those who might commit crimes. But is that true? Studies have shown that there is no (or very little) correlation between the severity of a punishment and the frequency of a crime (1, 2). So if crime deterrent is the goal, criminal punishment doesn’t seem to be a very effective tool.
Others argue that jail is a way of removing criminals from the general population as a way of preventing them from committing more crimes. But again, jail sentences seem not reduce recidivism rates (3, 4). Also, jailing someone to prevent them from committing a crime is violating their rights for an action they haven’t committed.
If the goal is to use jail as a way of preventing people from committing crimes, why wait until they commit the first crime? Why not use other methods to find the people most likely to commit crimes and jail them before hand? Because that’s Minority Report style pre-crime, and most of us understand it’s immoral to punish someone for a crime they haven’t committed.
I’m not suggesting that we forego any type of criminal justice system. I think that might be a bit naïve. I am suggesting that we should consider whether any criminal justice system we do use is providing us a more moral world, or a less moral one.