It was mentioned in the section on Good, Evil, and Standards that "if there is no force or fraud, everybody wins." This is a great general principle for human interaction. In the section on Justice, Heaven, and Hell, it was said that "if a society's laws and customs reward people for doing God's work, and tax those who selfishly serve only themselves, life in that society will be good." This too is great, but it leaves out the specifics. It would help if we could identify a more material concept of how to encourage good behavior and/or discourage bad behavior.
Retribution vs. Restitution
Most legal systems in the world today are based on retribution, wherein someone who has hurt somebody else shall be hurt in return (i.e., an eye for an eye). Retribution is distinguished from vengeance in that the person administering the justice isn't expected to get any joy out of it. The main purpose is to discourage similar behavior in the future. In civilized societies, violent crime is not punished with violence, but rather, simply with a loss of freedom. This is a deterrent to those who value freedom, while it does little to prevent crimes motivated by poverty, since people without means weren't really free in the first place. At the very least, incarceration protects society from that criminal, for the duration of that sentence.
A much more equitable system, for all parties involved, is one based on restitution, wherein criminals are required to restore the conditions preceding the crimes (i.e., restorative justice), including compensating victims for pain and inconvenience. The expense acts as a deterrent, and the compensation helps heal the wounds opened by the crimes. For example, someone who maliciously destroys the windshield of someone else's car should pay to have the windshield replaced, plus compensate the victim for lost wages if he/she couldn't get to work without a car. When all is said and done, the victim should be just as happy as if the crime had not been committed.
Restitutive justice has an ancient heritage, and is typical of indigenous legal systems.1
In Sumer, the Code of Ur-Nammu () required restitution for violent offenses.2
In Babylon, the Code of Hammurabi () prescribed restitution for property offenses.2
In Israel, the Pentateuch specified restitution for property crimes.3
In Rome, the Twelve Tables () compelled convicted thieves to pay double the value of stolen goods.
In Ireland, under the Brehon Laws (first recorded in the Old Irish period) compensation was the mode of justice for most crimes.
In Gaul, tribal laws promulgated by King Clovis I () called for restitutive sanctions for both violent and nonviolent offenses.
In England, the Laws of Æthelberht of Kent () included detailed restitution schedules.4
English law began shifting away from restitution, and toward retribution, after the Norman invasion in . William the Conqueror's son, Henry I, made detailed lists of offenses against the "king's peace" (assuming that any mischief was an attempt to unsettle the new regime). By the end of the , crimes were no longer perceived as injurious to victims, but rather as acts against the state.5 So like some ancient religions, which asserted that violations of its moral code were an affront to God, requiring that remedies be paid to priests (e.g., indulgences sold by the Catholic Church), while victims were left to lick their own wounds, likewise secular rulers have incarcerated or conscripted criminals, and/or confiscated property, and called it justice, when the victims were never compensated for their losses, which isn't fair.
In the US, restitution is the general principle in property law, while violent crimes are typically prosecuted under retributive law (i.e., punishment instead of compensation). Yet there is actually a way that even violent crimes can be handled simply with monetary remedies. It sounds a bit strange at first, but the idea is to make the crime like a voluntary transaction. For example, suppose that a criminal breaks a victim's arm. To make it like a transaction, the criminal would have to pay the victim for the privilege of breaking the arm. How much? The answer would come from surveying people who have suffered broken arms, and thus know what's involved, and finding out how much compensation they'd accept to have an arm broken again. The average of a large enough sample of people would then set the fee for the pain. Then, the medical bills and lost wages would be added, to get the total settlement. As strange as it sounds, it would actually make a lot more sense than depriving the criminal of freedom for some arbitrary period, and would be far more humanitarian than an eye for an eye — neither of which actually bring the victim any joy. It would also be more equitable than some of the insane sums of money that have been awarded for pain & suffering, since the settlements would be based on surveys of people who think that they're negotiating a transaction, rather than being based on the effectiveness of the jury pleading.
Incarceration in a Work Camp
Restitutive systems tend to break down when the criminal cannot afford to pay the debt, or simply refuses to pay it. This is typically when people are sent to prison. But there is a better way. Once the judge sets the compensation to be paid by the criminal, the case is turned over to collections. If the criminal can pay the debt, that's the end of it, otherwise a reasonable payment plan is worked out. If the criminal fails to make payments, his/her property is transferred to the victim. If that still isn't enough, the criminal becomes subject to incarceration. But instead of simply being detained, and left to watch TV and play cards all day long, criminals should rather get sent to a work camp, to make the money necessary to pay the debt. Living in a dormitory and eating cafeteria food, the cost of living would be very low, and they would be able to apply a substantial portion of their paychecks to their debts.
Now let's look at the difference between this and what we're currently doing. We spend a whole lot of money incarcerating people, and it doesn't seem to do any good. In fact, it seems to breed contempt for society, and create comradery among the criminals. On the outside, criminals have a hard life. They don't have regular jobs; they don't have a lot of nice things; and they don't have security. And all around them is a society that looks down on them and makes them feel out of place. And they have to spend their time running around trying to keep their heads above water and keep from getting shot.
On the inside, they have all the security anybody could ever want. The state cannot let them go hungry, or make them sleep on the floor, no matter what. And they are in with people who are all like themselves. And they have all day long to sit around watching TV, playing cards, and talking with each other. It's like a boys club, where everybody is among peers, and there is all the time in the world to sit around and make friends. For them, it is better on the inside than it is on the outside. And unfortunately, the incarceration only makes it that much harder to succeed on the outside.
We need to create an environment in which the inmates maintain/gain professional skills, while learning financial responsibility. We can also remove the stigma associated with criminal convictions, which doesn't appear to do anybody any good. If victims are compensated for their losses, and if criminals know that they have paid their debts (in the material sense, not figuratively), there will be no hard feelings. Then the criminals will re-enter free society, with the skills necessary to survive without breaking any laws, and without the impediment of a criminal record or a stigma.
The work camps might be such an effective way of getting out of debt that people might voluntarily go there in the interest of pulling ahead financially (e.g., paying off student loans, or saving up the down payment for a house), or avoiding bankruptcy. Then there wouldn't be any stigma at all associated with being in a work camp.
Fines Varied on the Basis of the Degree of Intent
In accidental cases, the offender should only have to pay a fraction of the damages. If he had to pay the whole amount, everyone would be too scared to do anything, because accidents can always happen, and if they do, you can't throw the person away, as would be the case if they had to pay the whole amount. In cases of negligence, the penalty would be a little stiffer. Only in cases of intentional harm would the sentence be fairly stiff to start out with.
Repeat offenders would face stiffer sentences. The assumption would be made that maybe the first time, they were not totally aware of how much work it would take to replace something that they broke or whatever. Or how long it would take that arm to heal, and how much work would be lost in the meantime. So you don't penalize them for the full amount on the first offense. But if they do it again, they obviously knew from the first time, and now should be asked to pay a bigger portion. On the third offense, the full amount would have to be paid.
All incarcerated offenders would be guaranteed the bare necessities: three adequate meals a day, and sufficient clothing and medical care. They would be charged for these, along with charges for the maintenance of the living quarters. They would also be charged for the degree of security that they required. If they proved themselves trustworthy, they could stay in a minimum security facility, and not have to pay their share of the salaries of very many guards, while getting caught stealing from other inmates, or engaging in acts of violence, would result in getting transferred to a higher security facility, with more security fees.
So inmates would have to make a certain amount of money just to break even (i.e., not be going even further into debt). If they work hard enough to pay their living expenses and then some, they would have the choice of devoting the excess to paying off the fine, or putting some of it into the fine and some of it into paying for better meals and/or living quarters. This would offer a degree of flexibility to the program, so that someone who simply couldn't function in a totally stoic environment could create the circumstances in which he could function better. And it would offer people an immediate taste of the fruits of their labor while still in jail. Those who decided to take this option would have an easier transition back to life on the outside. But those who wanted to get out as fast as possible could do without all manner of luxuries, so that the maximum amount could be put into paying off the fine.
What if somebody just doesn't want to work? If people have to pay their fines before getting released, and if they don't want to work, they could end up doing life in prison for an unpaid parking fine. But that isn't necessarily a bad thing. Any person who could not work his way out of debt in this system would never be able to survive on the outside without breaking the rules.
The inmates would work for private businesses, whose owners decided that they could make a go of a business utilitizing convict labor. Salaries would be negotiated, just as they are in the private sector. Competition among businesses for the convict labor would keep the salaries fair.
Why hasn't this been done before?
There is an economy of scale that is present in modern society, and that was not present in ancient times. For there to be any money at all left over in the end for the victim, it has to be a very efficient system. Convicts have to be able to live in dormitories, eat cafeteria food, and work in lucrative businesses, doing what they do best, to be able to afford to pay for their crimes. This will require a large-scale operation, wherein there will be the specialization of labor necessary to allow inmates to work within their specialties, where they can make the most money, regardless of the natures of their specialties.
Establishing a legal system like this would take a lot of work, but it would be worth it, because it would be to everyone's advantage. And if a few people fall through the cracks, then it will still be better than the existing systems, in which everybody falls through the cracks.