Ilana Mercer, January 9, 2004

Anti-incarceration activists are doing a great deal of breast beating over the number of inmates in the U.S. prison system – there were 2,166,260 at yearend 2002.


Their emotional statements, such as that “the United States currently imprisons more of its population than any other nation,” suggest that all the imprisoned have somehow been aggrieved and aggressed against – and that public policy should aim at reducing prison population per se.


But to go ballistic simply because the incarceration figure strikes one as “excessively” large is senseless. And out of context.


It so happens that in the heyday of liberal “alternatives to incarceration” – the mid-1960s through the 1970s – crime rates doubled and tripled. Then something interesting happened: states and the federal government began to get tough, ending early-release programs, limiting parole, passing “truth in sentencing” and “three strikes” laws to up the ante against violent and repeat felons.


The result? Crime rates have plunged, across the board. To take just one category, the Bureau of Justice Statistics confirms that the homicide rate, which in 1980 peaked at 10.2 per 100,000 population, has finally “declined sharply, reaching 5.5 per 100,000 by 2000.” According to Frank J. Murray’s Washington Times October report on the topic, murder has hit a 40-year low.


Contrary to the claims of, the beloved source reference for liberals and radical-chic libertarians, more violent and repeat offenders are being incarcerated and for longer. Which means that they are no longer free to commit crimes.


Contrary to the propaganda of such anti-punishment ideologues, our prisons aren’t loaded with choir boys. The BJS reports that “Of the 272,111 persons released from prisons in 15 states in 1994, an estimated 67.5 percent were rearrested for a felony or serious misdemeanor within 3 years, 46.9 percent were reconvicted, and 25.4 percent re-sentenced to prison for a new crime.” These 272,111 discharged offenders accounted for nearly 4,877,000 arrest charges over their recorded careers.


In other words, the overwhelming majority of incarcerated felons deserve to be there. And by locking up more such sociopaths for longer terms, society is much safer.


Moreover, justice is done: The consequences to the criminal are now much more proportionate to the harm he does to his victims.


Anti-incarceration theorists, among whom are assorted liberals and libertarian anarchists, point out quite correctly that crimes are committed against individuals and not against the amorphous entity called “society.” Solutions, they say, should thus focus on making criminals pay restitution to their victims.


It used to be that the cause du jour among libertarians was to reduce prison population by freeing innocent people whose activities, lawful by natural-law standards, the state had criminalized. Now their aim, it seems, is to reduce the involvement of the state at any costs, even if it means freeing guilty offenders.


And in their quest to get the state out of the loop by emptying jails, anti-incarceration “individualists” have embraced a convenient collectivist argument. Imprisonment has “social costs” – costs to the same collective that they deny when defining the parameters of crime.


If we are going to be “methodological individualists,” let’s be even-handed about it, shall we?


When more dangerous offenders are incarcerated, more innocent individuals (not “society”) incur fewer costs. When fewer violent criminals are apprehended, more innocent individuals (not “society”) are harmed. If innocent individuals are incarcerated, they (and not “society”) are harmed as well as many other individuals like them.


Moreover, anarchist libertarians cunningly, incorrectly and condescendingly conflate punishment with vengeance, and restitution with justice. And so we are treated to facile flimflam such as that “the desire for vengeance” (read punishment) cannot become “the foundation of jurisprudence.” By this verbal manipulation, these “thinkers” disingenuously advance a definition of justice that precludes incarceration, and equates it only with restitution.


While no one would argue against compelling criminals to work for their victims, libertarian anarchists essentially want to see punishment replaced by a system of financial restitution. But in cases (and there are many) where criminals can’t remotely repay victims for the harm done (especially in violent crimes), this means the consequences to the criminal won’t be remotely proportionate. In effect, by rejecting proportionate punishment for what is usually disproportionately paltry “restitution,” libertarian anarchists are endorsing systematic injustice.


For example, libertarian theorists like Bruce Benson uphold primitive societies as a model for how judicial reform must proceed. In these societies, writes Benson in “Restitution in Theory and Practice,” the emphasis was on the victim’s right to expect restoration from their victimizers but not to exact punishment. By this, he means: not to expect proportionate justice.


Benson effects a bogus bifurcation. Victims, for whom he presumes to speak, are said to want restitution from their victimizers. Justice for victims he then equates only with financial restitution. It is only the state, you see, that wants punishment, incapacitation and deterrence, all of which – if we accept Benson’s claims – the typical victim of crime isn’t enthusiastic about.


While no one would argue against restitution – where possible – I have never heard a victim of crime suggest that a financial settlement with her rapist is far preferable to having the scum bag removed from “society.” (Forgive my unelevated sentiments – it’s the Old Testament in me.)


In fact, to listen to victims of crime is to know that libertarian anarchists are proffering formulations that fit the demands of theory, not humanity.


I suppose it is hypothetically possible that, as Benson and others assert, medieval England, Ireland, Iceland, even Somali tribes are worthy exemplars of how we ought to settle disputes today. It is also equally plausible that the average victim has no sense of justice, and desperately needs the post-graduate cleverness of the libertarian anarchist to help her gain perspective.


But beneath the clouds of platonic theorizing, and back on terra firma, victims of crime almost always demand punishment that fits the crime, and express a fear that if the necessary precautions are not taken to incapacitate their attackers, other members of the community might suffer as they have.


This is not revenge; it is common sense.


In his seminal essay, “Crime and Moral Retribution,” Robert James Bidinotto provides a definition of just retribution as opposed to revenge. “Revenge,” he writes, “means the carrying out of a bitter desire to injure another for a wrong done to oneself or to those who seem a part of oneself. By contrast, though, retribution suggests just or deserved punishment, often without personal motives, for some evil done.”


Bidinotto, author of Criminal Justice?, refers to liberal and libertarian enablers of criminals as “the Excuse-Making Industry.” He points out that a legal system that imposes proportionate, retributive justice may well incorporate restitution into its scheme of punishments – but that this can’t work in reverse.


“Criminals are notoriously unproductive, while causing tremendous harm,” he says. “Expecting them to be able to repay victims is simply absurd. Thus, relying on restitution alone means that the worst offenders will never have to pay a price that begins to match the damages they cause. They will learn that, for them, ‘crime pays.'”


Still, for the sake of argument, let’s presume that our rape victim – she’s a liberal or libertarian penal abolitionist – forfeits punishment in favor of payoff. Her rapist, she argues, offended against her alone. Since he has settled the score (fat chance), he must go free.


She may find this satisfactory, but what of the rest of us? Again, one doesn’t have to be a “methodological individualist” to know that many besides her face a clear and present danger from the “paid-up” rapist. Recidivism rates among criminals more than demonstrate this plain point.


In such cases, restitution should be added to incarceration, not substituted for it.


Justice for all demands no


January 9, 2004

CATEGORIES: Crime, Criminal injustice, Individualism Vs. Collectivism, Justice, Libertarianism

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