PRISONS:
REFORM OR ABOLITION?
Roderick T. Long
Auburn University | Molinari Institute | Center for a Stateless Society
A Brief Visual History
Prisons in a Free Society?
How would prisons
change in a
libertarian society?
Most obvious
difference: nobody
imprisoned for noninvasive “crimes”
(e.g., use or sale of
guns or drugs, etc.)
But what else?
Moral Limits on Forcible Response
The Non-Aggression Principle
(NAP) forbids initiatory force
against person or property
What does it imply for reactive
force?
One might think: anything goes
Torturing someone to death for
stealing a paper clip might seem
consistent with the NAP
Moral Limits on Forcible Response
But suppose we think of
aggression as a violation of
a person’s boundary
and of defense as expelling
someone from one’s
boundary
Moral Limits on Forcible Response
That would suggest that
any use of force against
person or property greater
than what is needed to end
a boundary-violation is
itself aggression and so
forbidden
Call this the First Limit
Moral Limits on Forcible Response
Is the First Limit entailed by
the letter of NAP?
Perhaps not
But it’s entailed by the spirit
of NAP:
If force is justified only as
a response to aggression,
then force beyond what’s
needed to end aggression is
excessive
Moral Limits on Forcible Response
Is the First Limit the only
restriction on reactive
force?
Arguably not
If the only way I can stop a
toddler from stealing a
paper clip is to shoot her,
this is consistent with the
letter but not with the
spirit of the First Limit
Limits on Forcible Response
The point of the First
Limit is to rule out
disproportionate forcible
responses
This renders the Second
Limit a reasonable
extension of the first
Moral Limits on Forcible Response
First Limit: forcible response to
aggression is justified only if it is
necessary to end the aggression
Second Limit: forcible response to
aggression, even when necessary
to end the aggression, is justified
only if the response is also not
disproportionate to the moral
seriousness of the aggression
Implications for Restorative Justice
If I take your property
against your will, I remain
inside your boundary until
I return it
If I destroy or damage your
property against your will,
I likewise remain inside
your boundary until I
restore it
Implications for Restorative Justice
Hence forcing
aggressors to return
stolen property, or to
restore damaged or
destroyed property, is
consistent with the
First Limit
Implications for Restorative Justice
What if the damage caused
cannot be “made whole” (as
in killing, maiming, etc.)?
Given “ought implies can,”
one cannot have an
obligation to perform an
impossible restitution
Implications for Restorative Justice
Hence the obligation shifts
from “make whole” to
“make as nearly whole as
possible”
If it didn’t, the First Limit
would arguably prohibit
compelling restitution, since
X cannot be defended as
necessary for Y if Y is
impossible
Implications for Restorative Justice
Also, even restitution to
make as nearly whole as
possible cannot be
compelled beyond the point
allowed by the Second Limit
(Thus, e.g., no enslavement
for debt)
Implications for Punishment
This analysis presents
obstacles to punishment –
or at least to forcible
punishment (as opposed
to non-forcible sanctions
like ostracism) –
and thus to
imprisonment, to the
extent that the latter is
punishment
Theories of Punishment
Retributive
punishment:
Inflicting suffering
because the criminal
deserves it
Theories of Punishment
Forbidden
because although
responsive force may
incidentally make an
aggressor unhappy, using
force beyond what’s
needed for defense just in
order to make the
aggressor unhappy
violates the First Limit
Theories of Punishment
Deterrent punishment:
Inflicting suffering to
motivate others to
refrain from wrongdoing
Theories of Punishment
Forbidden
because force against A
to ward off aggression
from B, C, and D does
not count as defensive;
must be against A
Theories of Punishment
Moreover, force against
A to ward off
aggression from A is
not justified either, if
the response is purely
preemptive
Theories of Punishment
Rehabilitative
punishment:
Inflicting suffering
as a way to make the
wrongdoer a better
person
Theories of Punishment
Forbidden
because, again, force
that goes beyond
ending the
aggression is not
legitimately
defensive
Further Considerations
Aggression need not be
intentional to license
responsive force
If a sleepwalker attacks me, I
can defend myself
If you take my umbrella by
mistake, I can still demand it
back
Further Considerations
But of course it wouldn’t be
legitimate to punish an
unintentional aggressor by
inflicting more force than
necessary for defense/restitution
Yet an intentional aggressor
differs from an unintentional one
only by the thoughts in her head
Further Considerations
We have no legitimate
jurisdiction over the
thoughts in other people’s
heads
We can’t (forcibly) punish
people for bad thoughts
Further Considerations
So if we can’t punish an
unintentional aggressor
and intentional aggressors differ
from unintentional ones only by
thoughts that are beyond the
reach of legitimate compulsion
then we can’t punish intentional
aggressors either
Further Considerations
Moreover: given human
error, any system of
punishment will
inadvertently punish
some innocent people
and given human moral
weakness, any system of
punishment will also be
liable to deliberate
abuse of power
Further Considerations
So even on
pragmatic
grounds, we
should be very
cautious about
endorsing systems
of punishment
What About Restraint?
What if a person
represents an
ongoing threat of
aggression?
Is incarceration
justified as defense
against that person’s
aggression?
What About Restraint?
Not if it’s purely
preemptive; force must
be responsive, not
anticipatory
But if the person has
already aggressed and
seems likely to continue
to do so, can he or she be
treated as engaging in
ongoing aggression and
so be restrained?
What About Restraint?
YES
What About Restraint?
YES
BUT
What About Restraint?
YES
BUT
the restraint
approach is fairly
limited in what it can
justify
Terminological Reminder
First Limit: forcible response to
aggression is justified only if it is
necessary to end the aggression
Second Limit: forcible response to
aggression, even when necessary
to end the aggression, is justified
only if the response is also not
disproportionate to the moral
seriousness of the aggression
Limits of Restraint
If a crime is unlikely
to be repeated (say, a
revenge killing), then
even if it is illegitimate
there will be no
grounds for
restraining the
offender (though
forcible restitution
may be appropriate)
Limits of Restraint
After all, as per the First
Limit, responsive force
is permissible only when
it is necessary in order
to end aggression
If there’s little
likelihood of a repeat
offense, the aggression is
already ended
Limits of Restraint
Even when a crime is
likely to be repeated,
many crimes (such as
property crimes) will
be mild enough that
locking the offender
in a cage would be
morally disproportionate and so would
run afoul of the
Second Limit
Limits of Restraint
A person who poses
an ongoing threat of
sufficiently serious
aggression (e.g.
murder or assault)
may in principle be
incarcerated
consistently with the
First and Second
Limits
Limits of Restraint
But can such persons be
incarcerated in prisons as
we now know them?
If prisons are places where
prisoners are likely to kill
or assault each other, then
placing them there does
not prevent their ongoing
aggression and so cannot
be justified as necessary to
prevent it (First Limit)
Limits of Restraint
Likewise, if prisons are
places where prisoners
are likely to be assaulted
or mistreated by guards
(given human incentives
to abuse power),
imprisonment is again
forbidden, since such
further abuse violates
the First Limit
Limits of Restraint
Note that making
prisons private rather
than public would
not by itself do
anything to address
these libertarian
concerns about
imprisonment
Limits of Restraint
A sufficiently reformed
prison system – one with
deep changes in incentive
structure (such as Bob
Murphy’s proposal that
inmates should be allowed
to choose among
competing systems) –
could be justified for
severely dangerous inmates
Limits of Restraint
BUT
Limits of Restraint
BUT
even then, incarceration will
be justified only when there
are no less invasive ways of
securing protection against
serious aggressors
And keep in mind that the
elasticity of demand for
aggression varies among
aggressors
Limits of Restraint
For some serious
aggressors (though
doubtless not all), their
demand for further
aggression would be
significantly reduced by
systems helping them
reintegrate into the
community
Limits of Restraint
The Prison Abolition
Movement works to
explore and build such
systems
Since that movement is
dominated by anti-market
anarchists, pro-market
anarchists are less familiar
with it than they should
be
Limits of Restraint
The availability of
(private, non-violent)
rehabilitation systems
will in many cases be a
defeater (thanks to the
First and Second Limits)
to imprisoning serious
aggressors
Limits of Restraint
As for deterrence: recall
that revenge killings, if
unlikely to be repeated, call
only for restitution, not
incarceration
Hence serious aggressors will
have reason to worry about
revenge by victims or their
families
Limits of Restraint
To quote the Marquis de
Sade’s suggested legal
pronouncement to
murderers:
“I pardon you – but I also
pardon whoever will kill
you.”
The Question
Suppose there were a button
that, if pushed, would release
all prisoners everywhere
from their prisons.
And if it’s not pushed, all
prisoners remain where they
are. (There’s no
intermediate button that
releases most prisoners but
sends the worst to a supernice facility.)
The Question
Should we
push it?
The Question
Yes:
because freeing that
many unjustly
imprisoned people is
worth the risk
THE END