Radical Claim 1: Retribution is not a legitimate justification for punishment.
From a utilitarian perspective, retribution is, by definition, needlessly adding pain and suffering.
There are legitimate justifications for punishment, such as maintaining a Benthamite “economy of threats,” which has the explicit purpose of preserving societal order. To many, the distinction between retribution and the preservation of order is imperceptibly subtle. Because the criminal justice system is an abstraction, and removed from everyday life, people project their own personal biases and preferences onto what they believe the function of the system is. They mistakenly think that a criminal justice system is just a mechanism to enforce their drive for retribution, not understanding the greater functions it provides, such as a civilizing effect.
Unfortunately, when policymakers and judges en masse treat the criminal justice system as an extension of their will for vengeance, the sum of their accumulated decisions manifests horrific cruelty and injustice.
The craving for retribution is likely an evolved cognitive mechanism that once solved a social problem. In the absence of formal legal systems, the retributive drive functioned as a proxy for an “economy of threats.” By increasing in the community the number of instances of credible threats for violations of norms and mores, our ancestors established a form of rudimentary discipline. Justice administered in this way was really quite primitive and undesirable though. Rousseau’s conception of the state of nature is hopelessly out of touch with reality.
If we humans are meaningfully more civilized today, theoretically we should punish to preserve societal order, but not to harm the guilty just to increase their pain. Often, there is overlap, so we’re in danger of justifying some punishments on grounds of preserving order, when we’re actually deceiving ourselves and just satisfying our craving for vengeance. Our biological machinery constrains our institutions.
Radical Claim 2: Prisons should be abolished.
Prisons are irreconcilably cruel, and don’t serve their commonly stated purpose. Prisons aren’t rehabilitative. Recidivism is high. An old man who has spent 30 years in prison is quite a different person who doesn’t have the same propensity to commit violence as does a young man, but imprisonment itself does nothing to rehabilitate. In fact, prisoners often network and share knowledge to become more effective criminals. Because prisons are intrinsically structured by centralizing power, even laws do not suffice to prevent abuse.
The very idea of a prison is bizarre when analyzed with a bit of game theory. On the micro level, it’s irrational for a victim, on net, to expend resources on an offender just to punish. A freely chosen negative-sum game is irrational for all agents. Now, it’s possible that there are benefits, not reflected in the visible allocation of resources, from maintaining the economy of threats, but there’s no way that this is the case for the system of prisons as it currently exists today. Victims in society would obviously be better served by zero-sum games rather than negative-sum games. Restitution makes far more sense than imprisonment.
Restitution is humane. Not only is restitution reversible to account for mistakes, but it also punishes offenders without subjecting them to arbitrary whims of unaccountable guards. Arbitrariness in punishment is brutality. Extralegal abuse by guards or inadequate protection from other violent prisoners is, almost by definition, more punishment than what is warranted. Restitution is so obviously preferable to imprisonment, that when governments and prisons don’t exist to distort decisions, people opt for restitution over imprisonment.
How was law provided in the American West, without governments? Usually, a protective agency would arbitrate on behalf of its customers to resolve legal disputes. Private law, or common law, revealed agents’ preferences more precisely than statutory law, and it mostly worked by restitution. It’s perfectly understandable that restitution would be preferred to retribution, because rational agents opt for gains over losses.
What was an outlaw? An outlaw was not just a criminal at large, as those misleading spaghetti westerns would have you believe. An outlaw was a person who did not have a contract with a protective agency. If anyone ever demonstrated absolute unfitness for peacefully living and cooperating in society, that person became an outlaw. There would be no legal penalties for harming that person, even killing them. In a world without prisons, precedents for restitution provided order, but if they didn’t, bounties, and Letters of Marque and Reprisal created the economy of threats. So prisons aren’t even a “necessary evil.” They are unnecessary in protecting innocent people from even the most dangerous criminals. A world without prisons would be far more humane and rational than the cruel, tyrannical, illogical, inconsistent mishmash of criminal justice systems that exist in most of the world today.