The Structure of Liberty: Justice and the Rule of Law

Randy E. Barnett
an excerpt from...

Chapter Eleven
Fighting Crime Without Punishment

The most obvious objection to relying on self-defense - both traditional and extended - and restitution to prevent and rectify rights violations, is that these measures will be inadequate to deter criminals. And, while it must be conceded that these measures will not deter every criminal, the seriousness of this objection depends on comparing a society governed by the entire liberal conception of justice, of which rights of self-defense and restitution are but a part, with one governed by the types of institutions we presently have. While punishment may be viewed by retributivists as an end in itself, I deterring criminals by threatening them with punishment is only a means to prevent crime. But deterrence is neither the only, nor the most effective, means to prevent crime, though sometimes we seem to forget this. Crime prevention means taking measures so that a crime not take place. In this chapter, I provide reason to believe that crime prevention, in its fullest sense, can be greatly increased by adhering to the complete package of rights specified by the liberal conception of justice with its rights of several property and freedom of contract.

Most people fail to appreciate the fundamental obstacles placed in the path of crime prevention by the perverse logic of public property, public law enforcement, and public imprisonment. Step one: start with public streets, sidewalks, and parks where every citizen must be permitted unless proved guilty of a crime. Step two: rely on an inherently inefficient public bureaucracy to catch, prosecute, and try those criminals against whom enough evidence of guilt exists. Step three: should they be convicted, subject criminals to the dangerous, unproductive, and sometimes uncontrollable setting of public prisons to prevent them from engaging in further misconduct. Step four: periodically release most prisoners back into the community and then return to step one and repeat the cycle. Each step follows from the preceding step, and each step unavoidably leaves considerable room for criminal conduct to thrive.

If we set out deliberately to design a system that encouraged criminal conduct and nurtured hardened career criminals, we could hardly do a better job. And I have omitted any discussion of the bizarre legal system which attempts to deal with those criminals who are defined as "juveniles." In this chapter, I examine each of these steps in some detail and show how a fuller respect for the rights of several property, freedom of contract, restitution, and self-defense combine to break this vicious circle and permit more effective law enforcement than is possible at present. Then I challenge the common belief that, which such rights in place, increased punishment beyond making full restitution to crime victims is necessary to achieve "deterrence" of criminals.

Far from being utopian, the following discussion attempts to answer the ""practical" objection to restitution by providing a more realistic appraisal of crime prevention than usually accompanies discussions of deterrence. If any stance is utopian and unrealistic, it is the widely-held belief that the best or only way to prevent more crime is by increasing punishment.

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