What is “justice”? What is “crime”? And what should a criminal justice system be doing?

John Evander Couey had a criminal record of 24 arrests. He was designated a sexual offender by the state of Florida after a conviction for an attempted lewd act on a 14-year-old in 1991. He was sentenced to five years. He was paroled after only two. He was on the streets again, and on probation for a DUI, when Citrus County probation workers began overseeing him in October 2003.

Couey violated probation Aug. 8, 2004, when he was arrested on a minor drug charge. For once again flouting the rules of his release, he simply got more probation. For violating his DUI probation, the judge sent him to jail for 59 days.

When Couey got out of jail again last fall, he didn't check in with probation, as required. The probation office sent notices to his last listed address. The notices weren’t answered, so officials arranged for a violation of probation warrant on Dec. 2.

But that was it. Nothing happened to him. Nobody did anything to lock him up. The system of probation accountability was so lackadaisical that the fact he was a registered sex offender didn’t even show up on his records. "There was no reason for us to be alarmed," a probation official said, defensively.

As a result, in March 2005, Couey kidnapped, sexually assaulted, then murdered 9-year-old Jessica Lunsford.

It is a story sickening in its familiarity. And so is its aftermath: the usual ex post facto finger-pointing, recriminations, political grandstanding.

It is a story that also renewed arguments nationwide over what is wrong with our criminal justice system, and what it ought to be doing to ensure justice and public safety.

Should our courts and prisons focus on deterring crime through draconian punishments, or should they try to prevent them by addressing the alleged “root causes” of crime, such as poverty, broken homes and other social conditions? Should we try to rehabilitate criminals? Or should we simply thwart their future crimes by locking them up and throwing away the key? And if we choose to punish criminals, what kinds of punishment should we impose?

What, exactly, is this “justice” that we seek?

I addressed these issues at length in my 1995 book, Criminal Justice? The Legal System vs. Individual Responsibility. With the Jessica Lunsford murder fresh in mind, it seems timely to revisit a chapter from that book concerning the meaning of justice, and the proper purposes of the criminal law. I reprint that chapter here almost verbatim. I have not tried to update all the statistics, examples and references, but I believe the points they buttress remain valid.

After you read the essay, I invite you to weigh in with your comments at this entry on my blog.

What is justice?

Since Man's beginnings, we have been trying to define what justice means, and to implement it in our laws and social institutions. Yet today's criminal justice system is torn by contradictory premises and clashing goals.

The typical American has a traditional, commonsensical notion of justice. He believes that there should be some sort of causal link between the social consequences of one's actions, and the benefits or losses that one experiences. People ought to be rewarded for doing good, he thinks, and punished for doing harm. That's because his tacit premise is that criminals are morally responsible for the harm they do.

But today's intellectual finds that view quaint and unenlightened. The modern social sciences have taught him that nobody is responsible for what he does—that crime is the result of "root causes" beyond the perpetrator's control. The answer to crime, he concludes, is not to punish the unlucky criminal for acts he could not help, but to alter the conditions and circumstances which—as one prison superintendent put it to me—forced the criminal to "react inappropriately."

Torn by these clashing philosophical premises, today's entire criminal justice system has become an incoherent mess. Voters constantly pressure politicians to punish criminals, while intellectuals, working behind the scenes in the corridors of power, do their best to thwart the public will.

Volumes could be written about how these abstract premises have embodied themselves in our criminal justice system; in fact, I've contributed one to their number. [Robert James Bidinotto, ed., Criminal Justice? The Legal System vs. Individual Responsibility (Irvington, NY: Foundation for Economic Education, 1995.)] Here we content ourselves with just a few concrete examples of this system in action. Let us see if we can find in them clues that might answer our question.

■ Gerald Tuttle already had an extensive juvenile record when he pushed a sofa out of a 16th-floor Detroit hotel window, critically injuring a pedestrian. For this, he got only two years' probation. While on probation, Tuttle raped and beat a 20-year-old woman, then doused her with fingernail polish remover and set her on fire. The young woman was horribly burned and barely survived.

For this, Tuttle was sentenced in 1979 to a reassuring prison term of 33 to 50 years. However, a sentence rarely means what it says. In Michigan and elsewhere, an inmate could become eligible for early parole.

When Tuttle became eligible for parole consideration, officials judged him to be a "very high risk" to commit further violence; and as late as November 1990, the Parole Board found Tuttle to be a continuing threat to the public, with no plans for schooling or employment if released. According to Michigan law, no inmate may be paroled who remains "a menace to society" and has no job prospects.

But because Michigan, like many states, has refused to build enough prisons over the years, its facilities are overcrowded, and parole authorities try to release inmates as quickly as possible. In addition, the premise of rehabilitation gives them an excuse to do so.

So just a few months after Tuttle was refused parole, a Parole Board member expressed second thoughts, writing that he believed the "years have been a therapeutic agent." In August 1991, the Board voted to free Tuttle, though he'd served fewer than 13 years behind bars. That was 20 years less than his minimum sentence.

Just 59 days later, Tuttle abducted 15-year-old Katie Brown, a pretty eighth-grader, from a rollerskating rink in Flint. After strangling the girl with binder twine, he stuffed her in his car trunk, then dumped her body in a ditch.

"This guy was a threat to society," said Circuit Judge Thomas Yeotis, who had sentenced Tuttle for the earlier torture-rape. "He showed absolutely no remorse, and he wasn't a model prisoner. It's beyond me how they could let him out."

But because Parole Board deliberations are secret, nobody was willing to explain to Katie's grandmother, Lavonia Ulshafer, why Tuttle was freed. "I'm angry, bitter with what they can get away with," she said, hugging a photo of the murdered child. "Someone's responsible. The whole system, I guess."

■ Back in 1974, New Jersey police found the body of a woman in the home young Conrad Jeffrey had shared with his aunt and uncle. She had been stabbed more than 50 times with a pair of scissors. Jeffrey confessed, and was committed to a psychiatric hospital at Trenton State Prison. There he spent at least three and a half years as a diagnosed schizophrenic.

In 1981, a judge dismissed pending murder charges against him, contending Jeffrey was still unfit to stand trial. Yet instead of more incarceration, Jeffrey wound up back on the streets, where he compiled a record of at least 17 arrests and convictions under a variety of assumed names. However, because Jeffrey had never been convicted of the murder, he looked like a minor criminal to authorities, and so got repeated slaps on the wrist for his various offenses.

In 1986, he grabbed a 12-year-old boy at a Newark homeless shelter, dragged him to a bathroom, pulled down his pants and threatened to kill him if he screamed. He was charged with kidnapping, terroristic threats and child endangering. But a plea bargain reduced those charges to mere "criminal restraint."

Then, on parole, Jeffrey pulled a knife on a 14-year-old girl walking on a Hackensack, N. J. street. She escaped, and he was charged with attempted aggravated sexual assault, making terroristic threats, criminal restraint and possession of a weapon for an unlawful purpose.

By now, Jeffrey could have been sentenced under New Jersey's habitual offender law to a lengthy term behind bars. Prosecutors knew something of his 20-year record; but a sketchy pre-sentencing report prepared by overworked officials of the state Parole Board omitted many vital details. For example, the report indicated that Jeffrey had been previously convicted in 1986 of "criminal restraint," without describing the attack on the boy. And there was no mention of his grisly 1974 killing.

So Jeffrey was granted yet another plea bargain deal in October 1990. Two charges were dropped, and he was convicted only for criminal restraint and weapons violations.

Conrad Jeffrey was sentenced to five years. He served two and a half. The mother of the abducted girl begged the Parole Board not to release him. "He is a threat to society and he does not belong in the streets," she wrote. "He is a sex offender and belongs in prison for as long as possible. I feel that if he is released, he'll do the same thing to other families."

Officials denied Jeffrey parole once. But there remains a presumption that rehabilitation is a goal of prisons. This premise is embodied in New Jersey state law, which requires that should an inmate be denied parole once, he must be granted it the following year, if his prison record stays clean. So Conrad Jeffrey was paroled on March 25, 1993.

Six weeks later, on May 5, seven-year-old Divina Genao was playing in the courtyard of her Passaic, N. J., apartment building when a man grabbed her by the wrists and hustled her away. Shortly afterwards, an informant told police the whereabouts of the suspect.

City detectives raced up the stairs of the boarding house to a doorway where they heard muffled screams. When they kicked in the door, Conrad Jeffrey lunged at them.

They were too late. Little Divina's naked body, bound and gagged, was on the bed. She had been viciously beaten, sexually assaulted, then strangled to death.

"Someone who went to jail for five years got out in two years to do the same thing he went to jail for," the little girl's cousin, Rosa Fermin, raged. "There's no justice, there really is no justice."

■ For my final example, let me take you on a tour of a modern prison. [These examples and others are highlighted in my November 1994 investigative report in Reader’s Digest, “Must Our Prisons Be Resorts?”]

Driving through the rolling Western Pennsylvania countryside toward the Mercer Regional Correctional Facility, my imagination churned with ominous images from a dozen prison movies. High walls topped with razor wire...guard towers and searchlights...uniformed "cons" whispering and plotting escape in the yard, under the suspicious eyes of grim-faced, shotgun-toting guards...tier upon stacked tier of cells, filled with screaming, maniacal inmates banging metal cups on the bars...

But as I mounted the hill at the end of the prison's long access road, I saw spreading before me what looked instead like a small college campus. The tidy brick buildings scattered across the expansive, manicured green yards bore no resemblance to the "big houses" from which I'd seen Clint Eastwood and Sylvester Stallone make daring escapes.

Superintendent Gilbert Walters, a self-described "liberal," told me that he tries to make the prison experience for inmates "as much like the street as I can." At one point, he referred to them as his "clients," adding: "Inmates aren't evil, by and large. Many just did not have good life circumstances, and have reacted inappropriately." Walters concluded: "The public needs to know that modern corrections is not like a Jimmy Cagney movie."

That is an understatement.

My tour was conducted not by some tough armed guard, but by Walters' middle-aged secretary. We passed the bright, cheery Visitors Room, where inmates sat with wives and girlfriends while their children explored the toys in a colorful play area. The nearby infirmary and dentist offices provide inmates free medical care on demand, while those with emotional problems can count on the aid of four staff psychologists and ten counselors -- again, at no charge.

We went outside, passing through knots of wandering thieves, rapists and killers who sometimes exchanged greetings with my female guide. Dotting the grounds are two-story, brick housing units that look like college dormitories. One of them, Unit 7, holds rapists, child molesters and HIV-positive inmates. Though small, it has two recreation rooms, one on each floor—so that rapists wishing to watch TV won't distract child molesters who want to play cards. The inmate rooms are about 8 X 10 and have no bars—just doors with glass windows. In one, the only occupant—a chubby middle-aged child molester—lounged comfortably on his bunk, reading a book. Around him were a desk, bookshelves and lots of magazines. When we entered, he got up and politely turned down his private TV.

A couple of buildings look more like the "prison" of my imagination. In the Administrative Housing Unit, a glassed-in guard office overlooks twin tiers of rooms. But these rooms aren't cells, either: they look like the child molester's. In the area outside their rooms, men play chess on picnic tables. The only building with actual cells is the Restricted Housing Unit, where troublemakers are locked up all day. But of the prison's hundreds of inmates, just 15 were getting this temporary punitive treatment.

Mercer's thieves, rapists and killers are indulged with a very good library, a separate law library and a beautiful chapel. The prison offers them GED and art classes, electrical and mechanical training, even night college courses in classrooms filled with books and computers. All for free.

In the recreation building, one of the prison's three "activities directors" led me from a commissary stocked with amenities, to the gymnasium. A volleyball net bisects the gleaming floor of the full-size basketball court. At one end, nine cycling machines and four "stepper" aerobics machines face a TV. These, he explained, are for the inmates' "leisure fitness program." Two rooms are jammed with weightlifting equipment; from another, movie videos are broadcast nightly to the TVs in the inmates' rooms. "Nothing cheap here," my guide said proudly.

Outside, there is a softball field with bleachers. A running track circles the outdoor weightlifting pavilion, the exercise stations, five horseshoe pits, two bocci courts, a handball area and more basketball hoops. My guide rattles off some of the other pastimes available: tennis, racketball, ping-pong, football, chess, checkers... Inmates even have their own leagues for basketball, softball, volleyball and power lifting. Teams of felons were squired around in prison vans by guards and activities directors to compete at other state prisons.

Is Mercer atypical? A few days later, I visited the State Correctional Institution at Pittsburgh. This one at least looked like a real prison: massive stone walls, guard towers, a huge core building with five ugly tiers of barred cells. But this "maximum-security" facility seemed even more lax than minimum-security Mercer, and the amenities were just as plentiful. The full menu of sports and games includes boxing lessons from visiting professionals. There was a 14,000-volume library (plus 2,000 audio and film cassettes), a 3,000-volume law library, a four-year college degree program from the University of Pittsburgh and in-cell cable TV, with premium channels available at a huge discount.

Superintendent Walters was wrong: this does not mirror life "on the streets." For most housed in modern prisons, life is far better than it is on the streets. Today's correctional facility is an expensive, even enticing hybrid of camp, clinic and community college. True, inmates aren't free to leave at will. But looking at the strolling felons on Mercer's sun-licked lawns, I wondered: Why would they want to? In fact, few American taxpayers could afford all the amenities and "perks" that they are forced to provide, without charge, to those who rob, rape or kill them.

Is this, then, justice?

These examples symbolize the philosophical chaos pervading our entire criminal justice system, where brutal felons are given endless "second chances," and learn that, even if imprisoned, the only consequences of their predations are endless opportunities for free education, therapy and recreation, paid for by their law-abiding victims.

Thanks to its attempt to blend together irreconcilable premises, our criminal justice system is trying to do a little bit of everything—punish yet reform, deter yet forgive, incapacitate yet rehabilitate. Juvenile authorities lament soaring youth violence—yet seal the criminal records of young thugs from public scrutiny. Prosecutors decry judicial leniency—yet plea-bargain the vast majority of their cases. Officials pledge to put more cops on the streets—yet refuse to build enough prisons to house the felons police catch. Politicians campaign for tougher sentences—yet quietly pass laws allowing inmates to serve only tiny fractions of those sentences.

As everyone now acknowledges, the system is a mess; as they say, it's broke and needs fixing. But where to begin?

A first step would be to analyze the warring theories which have shaped our criminal justice institutions, and which have defined the various strategies now being employed to address the problem of crime.

The dominant philosophy in today's criminal justice system is utilitarianism—the view that the ultimate end of a policy ought to be "social utility," furthering the common good. Utilitarian strategies of crime control aim not to avenge any specific victim, or to make a moral statement against any specific criminal, but rather to generally prevent or suppress crime to levels deemed to be "socially tolerable."

Various utilitarian strategies sometimes overlap, serving multiple purposes; but the distinctive thing about them is that they all aim at social ends apart from considerations of morality, or the fates of any individual. Their goal is not justice for individual victims, but increased safety for the collective—not punishment of individual criminals, but the reduction of overall rates of crime.

The most popular utilitarian strategies include:

Prevention. Strategies to prevent crime do not address current levels of criminality, but aim only at cutting future crime rates. For example, during debate on the 1994 federal Crime Bill, Attorney General Janet Reno argued that money spent on a variety of social programs—"Head Start" classes for preschoolers, remedial education for teenagers, midnight basketball leagues for inner-city youths, etc.—would prevent today's youngsters from turning to crime in the future.

However, since the onset of the Great Society, the federal government alone has spent several trillion dollars on social welfare programs, many addressing the alleged "root causes" of crime. Yet the failure of these programs may be gauged by the simple fact that, despite all this spending, per capita crime rates today remain more than triple what they were in 1960. [Note: Crime rates have fallen sharply since the 1980s, after we began to convict and lock up a much higher number of serious criminals.]

Rehabilitation. Once a given individual has turned to crime, what do we do with him? Rehabilitation strategies aim to transform his character and/or behavior by a wide variety of educational, therapeutic and improvement programs.

As is virtually univerally acknowledged, though, rehabilitation efforts have been a dismal failure [See James Q. Wilson and Richard J. Herrnstein, Crime and Human Nature (New York: Simon & Schuster, 1985), Chapter 15. See also Stanton E. Samenow, Inside the Criminal Mind (New York: Times Books, 1984), Chapter 12.]

As I document in Criminal Justice?, studies of hundreds of rehab programs, inside and outside of prisons, for problems ranging from drug abuse to sex offenses to anti-social behavior, have shown no evidence of any effectiveness in changing criminal behavior. Even prisons specifically designed to provide inmates with every rehabilitation program known to man—such as the facilities in Butner, North Carolina and Patuxent, Maryland—have utterly failed to reduce the rates at which criminals return to crime. In fact, the graduates of such programs provided me with plenty of horror stories for my various Reader's Digest articles. [Among these: “Getting Away With Murder,” July 1988; “Freed to Rape Again,” October 1991; “When Criminals Go Free,” March 1993; and “Revolving Door Justice: Plague on America,” February 1994.]

Yet another utilitarian strategy is...

Deterrence. Some utilitarians argue that type and severity of punishments ought to be calculated and adjusted so as to discourage people from committing as many crimes in the future. "Specific deterrence" refers to punitive strategies intended to dissuade a given criminal from repeating his crime: for example, a burglar may not change his criminal ways after spending only a month in jail, but he might if he is forced to spend two years there. By contrast, "general deterrence" refers to the overall suppressive effect on crime that occurs when we punish the burglar: it causes everybody else to think twice.

Deterrence is a strategy especially favored by those with economic training. "Succinctly stated," writes economist Morgan O. Reynolds, "economists have developed strong evidence that if greater costs are imposed on criminals, there will be fewer crimes... Only if the anticipated subjective benefits (self-gratification) of an illegal act exceed the anticipated sacrifice does the person commit a crime, by definition; he does not commit a crime if the perceived costs outweigh the perceived benefits." [See Morgan O. Reynolds, Crime By Choice: An Economic Analysis (Dallas, Texas: The Fisher Institute, 1985, pp. xi, 6-7.]

Clearly, the threat of punishment does work much of the time on many criminals or would-be criminals. Criminals may be irrational, but most aren't suicidal. Yet punishment does not always deter, or deter very effectively. That's because most criminals are examples of what philosopher Ayn Rand called "the anti-conceptual mentality." They are "whim-worshipers," entirely present-oriented and impulsive. Because they have no concept of the future, the prospect of future punishment for current crimes has little reality to them, hence limited power to deter them. [Wilson and Herrnstein, Chapter 7, esp. pp. 207-08. See also the work of Stanton Samenow.]

There is mounting evidence that for the most serious criminals—those labeled "anti-social" or "psychopaths"—the threat of punishment poses virtually no deterrent. One expert, Dr. Robert D. Hare, reports that "in psychopaths, the links between prohibited acts and anxiety are weak, and the threat of punishment fails to deter them... Psychopaths tend to live day-to-day and to change their plans frequently. They give little serious thought to the future and worry about it even less... [M]uch of the psychopath's behavior and motivation makes sense if we think of him or her as a person rooted completely in the present and unable to resist a good opportunity." [Robert D. Hare, Without Conscience (New York: Pocket Books, 1993), pp. 59, 76 and 88.]

Deterrence may work at the margins; but for amoral, conscienceless career criminals, we need a different strategy. The most popular is...

Incapacitation. Incapacitation means depriving criminals of the ability to commit crimes. Historically, incapacitation has ranged from cutting off the hands of thieves, to castrating sex offenders surgically or with chemicals. But the most common method remains removing criminals from society by incarcerating them. While locked up, a criminal cannot harm anyone except other prisoners and perhaps his guards.

The advantages of incapacitation are several. First, it makes no assumptions about the efficacy of social programs in preventing crime, the ability of treatment programs to rehabilitate criminals or the power of prospective punishment to deter them. For the duration of the incapacitation, it simply makes crime against private citizens virtually impossible. Given that typical state prison inmates, while free, commit over a dozen serious felonies annually, the public safety impact of locking up hundreds of thousands of chronic criminals is very considerable. And since the damages caused by the typical inmate while free vastly exceed the annual cost of his prison cell, prisons more than pay for themselves. Incapacitation can also serve other utilitarian purposes, such deterring some criminals, and even some retributive purposes, such as exacting revenge. [For the statistics, see Charles H. Logan and John J. DiIulio, Jr., “Ten Deadly Myths About Crime and Punishment in the U. S.”; reprinted in Criminal Justice?, pp. 168-169.]

However, there is an argument over how best to employ incapacitation. Rather than spend more money on additional prison cells, some argue, we should instead try to save money by allocating our existing prison space more rationally.

"...[A]ll the evidence we have implies that, for crime-reduction purposes, the most rational way to use the incapacitation powers of our prisons would be to do so selectively," conservative scholar James Q. Wilson writes. "Instead of longer sentences for everyone, or for persons who have prior records, or for persons whose present crime is especially grave, longer sentences would be given primarily to those who, when free, commit the most crimes." [James Q. Wilson, Thinking About Crime (New York: Vintage Books, revised edition, 1983,) pp. 153-54.]

In short, rather than making "the punishment fit the crime," as Gilbert and Sullivan put it, we should try to make "the punishment fit the criminal."

Variations on the "selective incapacitation" idea have been advanced by other conservative thinkers, such as Ernest van den Haag and my former colleague, Reader's Digest editor Eugene Methvin. Arguing that we cannot afford to lock up all felons, they suggest focusing justice resources on certain categories of "high-risk" or "high-rate" offenders—usually young male recidivists in their late teens and early twenties. These, sometimes called "serious habitual offenders" (SHOs), would receive longer sentences than other offenders who may be committing exactly the same kinds of crimes, but at lower rates. While low-rate offenders would get off easy, the SHOs would be locked up for the duration of their youthful, high-crime years. Then, after age 45 or 50, they could be "safely" released, because of the declining statistical likelihood of their continuing to offend at high rates.

Selective incapacitation has several important problems, not the least of which is our dismal ability to predict the dangerousness of any given criminal. Our current ability to forecast long-term violent behavior is no better than one accurate prediction out of three. [Norval Morris and Marc Miller, "Predictions of Dangerousness in the Criminal Law," Research in Brief, National Institute of Justice, March 1987, page 3.]

Moreover, anti-prison advocates have found "selective incapacitation" to be a wonderfully elastic strategy. In the name of incarcerating only "the most serious offenders," they have been cleverly redefining what a "serious" offender is—to the point where virtually all property criminals, child molesters and those not convicted of first-degree crimes of violence, are now being described as "minor" or "low-risk" offenders. These, they declare, should not be in prison at all, but instead granted "alternatives to incarceration" that would keep them free in the community.

In fact, we are already using such "community alternatives" to the hilt. Today, three-quarters of all convicted criminals are either free on probation or parole. ["Correctional Populations in the United States, 1990," U. S. Bureau of Justice Statistics, cover; see also 1991 edition.]

And contrary to the deceptive claims of anti-incarceration advocates, the overwhelming majority of state prison inmates deserve to be there. Ninety-four percent of state inmates have been convicted either of a violent crime, or have past criminal convictions. Only six percent have been convicted for the first time, and for a non-violent offense. Of these, little more than half—just 3.5 percent of the entire prison population—are first-time drug offenders. ["Survey of State Prison Inmates, 1991," U. S. Bureau of Justice Statistics, p. 11.]

No, we are not over-incarcerating. Even if we were to release from prison the entire six percent of first-time, non-violent convicts, we could easily fill their cells from the ranks of the 3.5 million parolees and probationers currently on our streets—nearly two-thirds of whom are rearrested for other crimes within three years.

There are other, very serious problems which selective incapacitation shares with all the other utilitarian strategies.

In The Killing of Bonnie Garland—a brilliant, harrowing and provocative dissection of the collapse of our modern criminal justice system—Dr. Willard Gaylin points out that "The utilitarian argument is purely future-oriented. It is not concerned with the crime that has been done but the crimes that might be done. Punishment of the individual is justified only in terms of its relationship to other crimes." He adds: "A worthy concept of justice would demand that we look backward as well as forward..." [Willard Gaylin, The Killing of Bonnie Garland (New York: Simon & Schuster, 1982), pp. 327-29.]

By looking backward, Gaylin means: remembering the past victim. Justice requires proportionality between the harm already done to the victim, and the consequences to be imposed upon his victimizer. But utilitarianism disconnects the past victim from his victimizer. It holds that only the future counts—and not even the victim's future: only the future of the criminal, and of possible victims yet to be.

Prevention focuses only on improving future social conditions, in the hope that anonymous citizens of tomorrow will not turn to crime. Rehabilitation focuses only on the criminal, and his future status. Deterrence focuses only on the future status of society as a whole. And while length of incapacitation can be tied to the extent of the past victim's injuries, in its "selective" form even that linkage is broken: punishments no longer have any relationship to the severity of past crimes, only to official predictions of future dangerousness.

This brings us to a second major problem with utilitarian strategies: they are unjust. Because they only focus on improving public safety generally, they completely sever the amount of punishment meted out to the criminal from the degree of harm he has done to his victims.

This is most obvious in the case of prevention and rehabilitation strategies, but it also applies to deterrence and incapacitation. If individuals don't count, and reducing crime rates generally is the only goal, why not deter crime by executing every criminal we catch, regardless of the seriousness of his crime? Why not the death penalty for everyone from jaywalkers to Ted Bundy? Or, if public safety is the only objective, why not incapacitate all criminals forever? Why not life sentences for everyone from litterbugs to John Wayne Gacy?

By tying the degree of punishment to the degree of harm done, justice imposes proportionality on criminal sentences: it fits the punishment to the crime. But because utilitarian strategies—prevention, rehabilitation, deterrence, incapacitation—all ignore the victim, they thereby render proportionality, hence justice, impossible.

Not only do utilitarian strategies ignore the present and spurn justice; they also forget the individual.

Crime victims constantly express outrage about how they are ignored and abused by the criminal justice system. But given the utilitarian goals of those who have designed it and run it, how could it be otherwise? Aiming only at an abstract "social utility," these collectivist strategies focus only on general social conditions, not individuals. In utilitarian social calculations, there is no place for the anguished human face of an individual crime victim. He or she is homogenized and obliterated in faceless statistical tables—reduced to just one more digit amid the annual household victimization rates, parolee recidivism rates and prison furlough failure rates.

Theories of retribution—often incorporating concepts of "retaliation" and "revenge"—hold that a criminal ought to be punished simply because he has done wrong, and therefore deserves it. According to this view, ultimately it is unimportant whether punishment accomplishes anything practical, such as deterring crime or reforming the criminal. The purpose of punishment is mainly to make a moral statement, to set a social standard for behavior—and, incidentally, to satisfy our craving for revenge.

An eloquent case for traditional retribution is presented by Willard Gaylin. "I would hope that deterrence works," he writes, "but even if it does not—particularly when if does not—I am prepared to say, 'I don't care what good it may or may not serve. You deserve to be punished.'" [Gaylin, p. 329.]

What, he asks, would have been the justification for punishing Adolf Hitler, had he survived the war? Incapacitation? Deterrence? Hitler was an aging, disintegrating man who would no longer have posed a threat, and whose humiliation alone would have been sufficient deterrent to would-be followers. Rehabilitation? "There was nothing to rehabilitate."

So why punish him? Because "the concept of Hitler in retirement on a ranch in Argentina painting landscapes is simply intolerable. Even if it cannot be justified on purely utilitarian grounds, that man deserved to be punished with all the righteous wrath of an outraged community sensitivity... We must not mobilize utilitarian justifying excuses. He must be punished because the moral order of things demands it, because it would be unbearable to see a man like that rewarded and allowed to go unpunished. Righteousness demands it."

This is in the vein of a Kantian "categorical imperative"; and in fact, Gaylin praises Kant's insistence that the "last murderer" on earth must be punished, "thus showing his contempt for a pure utilitarian argument. The moral order demanded it. There was a rightness to it." [Gaylin, pp. 336-37.]

But what is the source of this moral mandate? Gaylin ties to the innate dignity of human life—both the victim's and the victimizer's. In the case of a murder victim, "A life was lost, an innocent life, and society must indicate the precious nature of that loss." [Gaylin, p. 325.]

This intrinsic dignity is attributed even to the criminal: "Human dignity is based on that freedom and autonomy that elevates us above the animal host. In recognition for that autonomy, we must punish the transgressor. As a tribute and testament to his freedom, we must dignify him by making him pay for the evil actions he commits. We show our respect by making him accountable." [Gaylin, p. 336. Charles Logan and John DiIulio offer a similar rationale in my book Criminal Justice?; see the concluding section of Part II, Chapter Six, "Ten Deadly Myths About Crime and Punishment in the U. S."]

In answer, then, to the question, "Why punish criminals?"—the traditional retributivist is apt to answer: "Because it's the principle of the thing."

One can certainly sympathize with this approach. Unlike utilitarianism, traditional retributivism does not lose sight of the fundamental moral purposes of a criminal justice system.

Yet there is a troubling emphasis here, one that subtly introduces a serious logical contradiction into the theory. While Gaylin and other traditional retributivists do express deep concern for the harm done to the life of the crime victim, that does not appear to be their primary concern. Their chief focus seems to be not that the criminal violated an individual, but that the criminal violated an abstract moral principle.

To be sure, Gaylin displays heartfelt concern for crime victims, such as his murdered subject. "A system of justice cannot forget Bonnie Garland, because it was designed originally to protect her and to serve her needs," he acknowledges. [Gaylin, p. 316.]

But he goes on to make it explicitly clear that his highest value is not justice for individuals such as Bonnie, but what he calls "social justice":

"The law exists in those areas of moral behavior where the state is seen to have some interest in the definition of right or wrong," he writes. "In one sense, the law always serves the purposes of the state, not the individual." And: "Everything is upside down when we insist on approaching justice from the standpoint of the individual... Each individual must conform his behavior to expected models, and if he does not he must be held responsible for his violation of the code. We must not press individualism so far...that this good state can no longer exist." And: "Each gain for the individual must be weighed for its impact on the common good..." [Gaylin, pp. 245, 270-71, 319.]

Under traditional retributivism, justice as an abstraction—and not the individual human life—is held to be an end in itself. This stands the moral and logical hierarchy on its head, and ironically, leads in practice to injustice:

"We must not attempt to purchase an elegant and individual justice for each person at the expense of the concept called social justice...We must always balance individual good against the need for social justice...A just society traditionally does some disservice to its individual members." [Gaylin, p. 341.]

And it also leads to collectivism:

"The common good demands sacrifice of the individual... We are reaching the limits of individualism... We must conserve the sense of the rightness of our social order, even to the point of sacrificing some of that very respect for the individual which makes our order one that is worth preserving..." [Gaylin, pp. 341-42.]

He concludes:

“[T]he chief purpose of law is order, and the justice system is designed to serve the ends of the society at large... An individual human being is only a useful social myth... We cherish the community not merely because it protects us but because it defines the nature of our species. And it is with our species that righteousness resides." [Gaylin, pp. 343, 348.]

Thus what begins as a rousing defense of justice for individual crime victims collapses, incredibly, into an apology for explicit injustice and outright collectivism.

Gaylin's error rests in treating an abstraction—in this case, justice—as an end in itself. Placing justice at the top of the moral hierarchy logically implies that individual human life is somewhere beneath it, of lesser importance— and that individuals exist to serve "justice," rather than the other way around.

But if individual life and well-being is not the standard for distinguishing just from unjust acts, then the principle loses all meaning and purpose. Logic demands that justice finally be abandoned; and in the absence of a principle of justice for individuals, the only remaining social organizing principle is: collective caprice.

Traditional retributionism offers a compelling critique of the moral bankruptcy of utilitarianism. But because it begins by asserting that justice—not individual life—is an end in itself, it must at last demand the unjust sacrifice of innocent individuals for collective ends. Crimes are defined, not by reference to any defensible standard of justice, but by arbitrary social edicts; and punishment is meted out, not to satisfy the need for recompense to individual victims, but to satisfy a thirst for vengeance against any who dare defy society's edicts.

Thus we see the incoherence and failure of both utilitarianism and traditional retributivism. Utilitarianism posits arbitrary, subjective social ends while dismissing the need for any moral standard. Traditional retributivism asserts a platonic standard of justice while dismissing any concern for practical consequences. These two views have left us a so-called criminal justice system which ignores both individuals and justice—on principle.

We desperately need to reform the entire system, from its philosophical roots up. It is no exaggeration to say that doing this is a matter of life and death.

Our nation's Founders made it clear in the Preamble to the U. S. Constitution that they saw no clash between the promotion of justice, and the practical goal of insuring "domestic tranquility." A valid conception of retribution— of "just deserts"—can incorporate many of the practical aims advanced by utilitarian thinkers, as well as providing them a moral grounding.

What, then, is this "justice" we are seeking, and why should we do so?

What is "crime"?

Finally, what are we entitled to expect of our criminal justice system?

First, what is justice?

I would define justice as: a moral principle recognizing causality and attributing individual responsibility in social relationships. The principle of justice holds that because individuals are thinking causal agents, they are morally responsible for the social consequences of their actions, and must be treated accordingly.

The need for such a principle arises from the objective requirements of individual human life in society.

Causality is a fundamental principle of existence. If there were no links between cause and effect in nature—if events occurred without cause, or if actions had no effects—physical reality itself would be chaotic, irrational and thus impossible.

So it is in society. If people chose not to recognize the links between human actions and their social consequences, and to respond accordingly, human life in society would become chaotic, irrational and impossible. Justice is the recognition of causality in human affairs.

Contrary to platonic premises of traditional retributivism, justice is not an end-in-itself: it is a virtue, a means to a higher value or end. And contrary to the collectivist premises of utilitarianism, the ultimate end which justice serves is individual human life.

To live, individuals must act in support of their lives. But before they take action, they must have reasonable assurance that their actions will bring about the results they seek. If their actions are inconsequential, they will not bother to act. Hence the need for a social principle of ethics whose application guarantees to individuals full recognition of and respect for the material and spiritual fruits of their actions. That principle is justice.

Genetically and logically, then, the concept of justice is dependent upon the ultimate value of individual human life. If individual well-being did not matter, there would be no need to seek justice. Thus justice is inextricably tied to a social philosophy of individualism.

Collectivist theories of justice—so-called "social justice," which would sacrifice the individual to the group—are self-contradictory in theory, and destructive in practice.

In theory, collectivism severs the link between cause and effect in human action. It holds that individuals who act should not be the primary beneficiaries of their actions—but that individuals who did not act should be the beneficiaries of the actions of others. It would force some to act to no personal effect, while others would reap the effects without acting. Moreover, by demanding the sacrifice of the individual to the group, collectivism negates the very purpose of justice: the furtherance of individual human life.

In practice, collectivism punishes the creative and productive, while rewarding the idle and destructive. Not only does this moral inversion destroy individuals: eventually, it destroys organized society itself—as we have seen in our own century.

For similar reasons, theories of justice advanced by philosophical determinists, who deny volitional human consciousness, are also inherently self-contradictory. Any intelligible theory of justice must be based on the premise that humans are intellectually and morally self-responsible—i. e., that they are capable of consciously planning and initiating actions with some measure of "free will" or volition. Therefore, to claim, for example, that punishing criminals is "unjust" because nobody is responsible for his actions, is an example of the "stolen concept" fallacy: if there is no free will, then all acts are pre-determined, and no acts—including punitive ones—can be designated as just" or "unjust."

Now that we have considered the nature of justice, we come to a second basic question: What is crime?

Alone on a desert island, an individual unavoidably would be the sole beneficiary or victim of his own actions. Experience would teach him the concept of cause and effect. But since there would be no one else to interfere with him, no concept of "justice" or "injustice" would arise. We do not speak of the "injustices" committed by forest fires, predatory animals or robots, because in none of these cases are the destructive consequences the products of free, conscious deliberation and intent. Only in society can the natural causal relationship between one's actions and their personal consequences be intentionally short-circuited.

Since justice is the recognition of causality in social affairs, it is intimately bound up with the concept of "the deserved." To deserve is "to be worthy of recompense" and "to merit (reward, punishment, esteem, etc.) in return for actions, qualities, etc." [The American College Dictionary (New York: Random House, 1966).]

Because one's qualities and actions have consequences for good or ill, the concept of "just deserts" holds that society ought to reward or punish one accordingly. An injustice, then, occurs when someone denies another what he has deserved or earned.

However, not all injustice is or should be "criminal." Injustice may take the form of simple "unfairness." A boorish diner insults a waitress; an indifferent husband ignores his wife; a boss does not praise his hard-working staff or grant them raises. These may be injustices meriting moral criticism; but they are not proper concerns for the law. Why? Because in a society based upon free, voluntary association, we can simply avoid people who are unfair to us. We need not clutter up the courts with personal affronts and petty injustices that we can ourselves remedy without governmental intervention.

No, the law should be more narrowly focused, dealing exclusively with those injustices which are forced upon a victim—i. e., situations in which free, voluntary association has broken down or been abrogated, making it impossible for the victim to prevent or avoid an injustice against him.

There are several basic forms these injustices can take:

1. someone forces another to relinquish the rewards of the latter's actions (e. g., via robbery, theft, fraud);

2. someone forcibly prevents another from taking actions (e. g., via kidnapping, unlawful confinement or restraint);

3. someone forces another to take actions harmful to himself (e. g., via coercion, extortion, enslavement); or

4. someone initiates physical force against another, or forces harmful consequences upon him (e. g., via assault, murder, pollution, vandalism, libel, etc.)

In these injustices, cause and effect are breached by force, initiated non-consensually against innocent victims. The natural causal relationships between actor and consequence is in each case forcibly obliterated, so that the victims do not deserve the consequences imposed upon them. For such injustices, the only remedy is forcible intervention by an outside agency (government) whose purpose is to define and promote justice.

There is a broad category of injustices covered by civil law, which deals with such matters as the resolution of private disputes (e. g., contractual conflicts), and harm caused by accidents and negligence. However, these injustices, commonly called "torts," are not considered "crimes"—a major reason being lack of criminal intent (though in modern practice the boundaries between torts and crimes have become increasingly vague.)

Criminal law deals with a narrower category of more serious injustices: those involving deliberate imposition of force and coercion. In an ideal society, based upon consistent recognition of individual rights and autonomy, a "crime" would be defined as: any intentional, non-consensual act entailing the initiation of force, fraud or coercion against another person or persons. These are not simply minor acts of unfairness; they are deliberate, willful acts which abrogate the moral autonomy of other individuals in a voluntary society, and which undermine or destroy their well-being or lives.

If we combine the definitions of justice and of crime, we get something like the following:

A criminal justice system is a legal framework whose purpose is to insure individual autonomy and responsibility (justice), by defining, proscribing and punishing intentional, non-consensual initiations of force, fraud or coercion (crimes) against individuals and their property.

This is, of course, an ideal definition, based upon the ideal of a limited government, such as that defined by America's founders. Regrettably, today's criminal law has expanded its reach far beyond these boundaries, defining as "crimes" many acts having little or nothing to do with the initiation of force. In fact, too often the law itself has become corrupted, with the power of the state being abused to initiate force against peaceful, private individuals.

It is lamentable that bad laws authorize government officials to perform the same kind of coercive acts that would be criminal if engaged in by private citizens. However, these excesses do not negate the core purpose of the criminal law: to provide a free, peaceful and just social framework for the voluntary, life-enhancing actions of individuals.

This brings us to the last question: What should a criminal justice system do?

The strategies employed by a rational criminal justice system ought to be logically related to its individualist philosophical premises and ends. This means institutions devised to protect innocent individual life and well-being from forcible or coercive interference. It also means laws, policies and strategies consonant with the premises of volition, individual responsibility and just deserts.

On such grounds, one can have little quarrel with the governmental institutions devised by our nation's Founders. The problems arise in how those institutions have been perverted: in the laws, policies and strategies which have been grafted onto them.

Time does not permit a detailed discussion of the many specific reforms which ought to be made to our criminal justice system. For elaboration, I recommend my book, Criminal Justice? and my various Reader's Digest articles. Here, let me touch on just the basic strategic questions.

I would begin by acknowledging moral retribution as the core strategy of the criminal justice system. Such a strategy would entail the administering of punishment to a criminal, proportionate to the degree of harm inflicted upon his victims. This strategy, however, would be defined and justified in a manner quite different from that of the traditional retributivists.

Moral retribution is grounded in the premises of individual life, individual responsibility and individual justice. Individual life, as the ultimate purpose of the system—individual responsibility—as the premise underlying its treatment of criminals—and individual justice, as the policy to be implemented in each case.

In Ayn Rand’s novel Atlas Shrugged, the character John Galt tells his radio audience that he had given the victims of irrationalism "the method and the weapon to fight you. The method was to refuse to deflect retribution. The weapon was justice."

It is in this sense that I use the term "retribution"—in the sense of "reflection." The criminal's basic aim is to forcibly gain some value at the expense of someone else. His actions impose undeserved negative consequences— harm and injury—upon the innocent victim. The fundamental goal of a strategy of moral retribution, then, is to reflect those negative consequences of harm and injury back onto the criminal.

This policy is both moral and practical. Moral, because it upholds the ultimate moral value, which is individual human life, and the just social framework upon which his survival and well-being depend. Practical, because a policy of reflecting proportionate harm back upon the criminal frustrates and negates his goal, which was to profit at someone else's expense. Retribution means that the criminal will not get away with it.

An effective system of moral retribution would satisfy the concern of the traditional retributivist, who wants society to set a clear moral standard, and who understandably wants the criminal "to pay for his crime." Having to endure punishment commensurate with his offenses would insure that both objectives were met.

Such a system would also incorporate many of the practical crime-fighting goals of the utilitarian. For example, long terms of confinement under harsh conditions, with inmates forced to work and pay restitution to victims and taxpayers, would deter far more criminals and would-be criminals than a brief vacation at a country club such as Mercer. Such punishments would also incapacitate and—who knows?—possibly knock some sense into the occasional inmate, thus fostering his desire to rehabilitate himself.

Prisons are an unavoidable part of the punitive strategy. Unlike prevention, rehabilitation or deterrence, incapacitation is the only certain crime-reduction method: while locked up, a criminal can't commit crimes. But since we cannot predict the future dangerousness of a convicted criminal, a system based on moral retribution would abandon such utilitarian fads as "selective incapacitation." A term of confinement would be gauged to the seriousness of the criminal's current offense and his criminal history—period.

This brings up the problem of the career criminal. How do we deal with the offender who chronically commits less serious crimes—say, shoplifting? How do we punish a man with a history of violence, who is caught, say, for burglary? Is it fair to take a person's criminal history into account in the punishments we impose?

At first glance, simple retributive justice might seem to require that we punish only the current offense, and only to the degree of harm that offense created. One might reason that the criminal has already "paid for" his past crimes, that to punish him for anything other than the instant offense would be unjust.

However, the tacit assumption here is that the direct victim of the crime is its only victim. That is not the case, especially for the career criminal.

Take the case of a "Peeping Tom." A first-time offender may cause an isolated victim distress, but little harm. For his act, he might deserve a short jail term and payment of a fine and costs. Yet suppose he is arrested over and over for such offenses, all around town. Should we continue to punish each offense as an isolated, discrete act, meriting only minor punishment? His presence in the community can create a climate of worry and fear, with women changing their schedules and habits, buying extra locks and burglar alarms, refusing their daughters permission to go out at night, increasing neighborhood patrols by the police, etc. Likewise the chronic shoplifter. A few such people in a community can create such fears that shopkeepers are forced to hire store detectives, buy expensive anti-theft countermeasures, even move to a safer area. Shouldn't these sorts of damages be considered when setting punishment the next time he is caught?

A career criminal does not only initiate force against isolated individuals; his activities and presence in a community create a general atmosphere of coercive threat—a climate that imposes costs upon many besides his specific targets. Remember that the criminal justice system must address not only the initiation of force and fraud, but also coercion—the threat of force.

By his habitual criminality, the chronic offender shows that he has not changed his ways, but poses an ongoing threat of force. Though a system of retribution must base punishments in the amount of harm done to identifiable individuals, there is no reason that such punishments cannot be enhanced, commensurate with the seriousness or extent of the criminal's record.

To this end, I have recommended what I call "progressive sentencing." A first-time felon gets a jail term of X. Upon his second conviction—even for a less serious felony—he gets a mandatory minimum term of at least 2X. For felony number three, he would get 4X. The geometric increases in prison terms would insure that chronic criminals would soon take themselves out of circulation for good.

Because retribution entails punishment, it is often criticized as being motivated by a base thirst for vengeance. For example, in an tract published by the National Council on Crime and Delinquency, a prominent anti-incarceration group, James Austin and John Irwin (himself a former inmate) warn, "We will severely damage some of our more cherished humanitarian values...by our excessive focus on vindictiveness." [John Irwin and James Austin, "It's About Time: Solving America's Prison Crowding Crisis" (San Francisco: National Council On Crime and Delinquency, 1987), p. 20.]

Traditional retributivists often play into the hands of these liberal critics of punishment, by equating the concept "retribution" with concepts such as "revenge," "reprisal" and "vengeance." However, these latter concepts have negative connotations and inappropriate implications. My dictionary [The American College Dictionary (New York: Random House, 1966), tells me that "revenge" 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." The concept of "reprisal" entails retaliation, but specifically in the context of war. "Vengeance is usually wrathful, vindictive, furious revenge."

By contrast, "retribution" suggests "just or deserved punishment, often without personal motives, for some evil done."

Revenge-based punishment need not be just. The injured party may vent his rage quite disproportionately to the harm done. During the recent media coverage of the execution of serial killer John Wayne Gacy, a family member of one of Gacy's victims expressed regret that he died quickly and relatively painlessly. "He didn't suffer enough," she said.

We can all sympathize with her rage; and given the opportunity, many of us, as private avengers, might like to make such an obscene creature die a slow and tortured death. But Gacy is an easy case for vengeance. What about less serious criminals? How much punishment is "enough"—and should it be the victims who decide such matters, through personal revenge?

If we are to have a just and peaceful society, it is clear that the use of after-the-fact, retaliatory force cannot be left to the arbitrary whims of private victims, each employing his own subjective criteria of personal injury. It is precisely to minimize and avoid vengeance and vindictiveness, and the disproportionate punishments to which they would logically lead, that a rational criminal justice system must be based upon retribution, and not revenge. The administration of punishment must be done by an impartial agency employing rational criteria of evidence and proof, and constrained by objective laws. That means government, not men. [Which, incidentally, is a telling argument against anarchism.]

Mentioning Mr. Gacy brings me to the inevitable topic of capital punishment.

Retribution constitutes the premise that the level of punishment must fit the severity of the crime. This does not mean we need to punish in kind: the law need not literally demand "an eye for an eye," sinking to the specific tactics of the criminal. But it does mean that society should punish in proportion: that the law recognize gradations of evil and harm, and respond accordingly.

In a society whose ultimate premise is that the individual life is an end in itself, pre-meditated murder is a crime in a class by itself. Murder negates the highest moral end: the irreplaceable human life. What possible penalty could be proportionate to the crime but the forfeiture of the murderer's own life?

Moral retributivism would hold that, in the case of premeditated murder, in which there is no question of guilt and no extentuating circumstances, capital punishment should be the standard penalty.

Utilitarian arguments are often raised against capital punishment: it costs too much to keep someone on death row for years; it doesn't deter; and we could just as well give a killer a life sentence.

In reply: It costs too much only because we have not placed rational time limits on the appeals process. The issue isn't deterring future killers, but justice for the murder victim. As for a life sentence, it is rarely the case that it really means "life" or anything remotely approaching it. Even if it did, a life prison term still allows the murderer a multitude of values, options and experiences his victim will never know—especially if he spends it in a place such as Mercer. It also prevents the victim's survivors—who were every bit as much victimized by the killer—from ever burying their pain, achieving emotional closure and resuming their lives.

To deny the death penalty for premeditated murder, then, is to deny the very principle of fitting punishments to offenses. On what grounds can we uphold that principle of equity for lesser offenses, if we dismiss it for this, the most serious of crimes?

Moral arguments against capital punishment are based on the view that every human life has intrinsic value: even the murderer's life is supposedly sacred, inherently valuable “in itself.” On these grounds, all lives are equal—and of equal inherent value. Ethical intrinsicism thus morally equates the victim with his executioner.

But when we say that "individual human life is an end it itself," advocates of the “intrinsic value” view tend not to hear the qualifying word, "human." Their view equates a "human life" with that of any breathing member of our species. But a "human life" is much more: it is the life of a person, whose worth is to a great extent self-created. It is that creation which we declare to be the ultimate moral value. And there is a vast distinction between a self-created person and a self-created predator.

All the arguments, theories and principles presented above, however, can too easily cause us to lose sight of what these abstractions are all about.

My concern is for the names behind all the statistics, the faces behind all the theories. Crime victims are individuals, not abstractions. In fact, they have long been the victims of abstractions: of ideas and doctrines which have taken the safety from their streets, the morality from their laws, and, too often, the life from their bodies.

Today, millions of criminals are waging war against decent people. These predators have been unleashed, protected, and pampered by an Excuse-Making Industry [see also here] of corrupt intellectuals, who have captured the halls of justice and subverted the laws and institutions which are supposed to protect us.

Intellectuals—especially those of us who claim to champion a philosophy of individualism—have a choice. We can ignore the war raging around us; we can hide in our homes and books, retreat into a world of pure abstraction. Or we can take up the cause of real individuals by bringing individualist principles to the war being raged on our streets.

Either way we choose, we shall face unavoidable retribution. But that, of course, is only justice.

To learn more about the author of this essay, click here. Robert Bidinotto also maintains this blog, where he comments on a wide range of issues.