by Wendy McElroy
I have a fundamental objection to the prison system that I rarely hear raised. Why does a man who steals a loaf of bread lose his freedom of speech? Why does a woman who vandalizes a car lose the freedom to associate with her children? These questions are a challenge to those who view rights as social constructs as well as those who believe they are inalienable. Stated in more general terms, how is it that aggressors lose virtually all freedom because of what might be a minor transgression?
The facile answer is, "because they are in prison." Anyone who is incarcerated forfeits most of his rights to the state even if his offense was minor. In essence, a petty thief loses as many rights as a murderer. The longevity of the loss and the comfort of the circumstances may differ, but neither convict retains basic human rights like the freedom of association.
More than the state is at work here; the prison system is an expression of a specific form of justice that is based on retribution and punishment. In turn, these are usually based on the human desire for revenge and the belief that punishment deters crime. But given how angry and crime-ridden our society has become under this system, it is worthwhile to reconsider the wisdom -- if not the morality -- of having one in every thirty-one American adults imprisoned or on parole or probation (The Economist, July 22, 2010).
With two changes in the legal system, prisons could be eliminated or hugely reduced while still providing justice to victims. The first is to void all laws that do not involve harm done to individuals or their property. The second is to apply restitution not merely to civil infractions but also to criminal offenses.
Restitution is the system in which a person ?makes good? on a harm or wrong done to another individual and does so directly rather than paying a "debt" to the state. If a man steals $100, he must return $100 to the victim along with reasonable damages. Thus, restitution eliminates the need for an aggressor to be processed by any type of law enforcement beyond what is necessary to procure repayment and damages. A thief need not be caged; all he needs to do is pay up.
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