Priorities in the Criminal Justice System

The sentencing of Nate Abraham, the 13-year-old who shot and killed 18-year-old Ronnie Greene (apparently for nothing more than the sport of it) when Abraham was only 11, has prompted both genuine concern and disingenuous posturing from across the traditional political spectrum.

Thoughtful liberals point out that an 11-year-old should not be (and, until recently, never has been) held to the same standard of legal accountability as an adult for the simple reason that someone so young cannot comprehend the consequences of his actions. An adult sentence amounts to giving up hope of even the possibility of rehabilitation of a mere child.

Conservatives, suspicious of what they perceive to be the delusion of rehabilitation, focus on deterrence. "Adult time for adult crime," has become their mantra. Ronnie Greene, they observe, would probably not have had much interest in the age or future prospects of the person who shot him. Furthermore, even if his killer does get over his anti-social tendencies during the eight years it will take him to reach adulthood, Greene will probably not have gotten over being dead.

The libertarian view of the proper priorities in the criminal justice system puts not just one but two considerations ahead of both rehabilitation and deterrence.

The first is restitution. Justice consists most fundamentally in requiring that the perpetrator make the victim whole to the extent this is possible.

It is important to note that there is no place in the libertarian justice system for "society" to serve as a surrogate for either of these parties. If there is no human being to come into court and point an accusing finger at another human being and tell a judge and/or jury "there is the person who harmed me and here is how I was hurt," then there is no crime.

Obviously, in some instances -- most notably murder -- there simply is no way to restore the victim. In such cases libertarians' secondary consideration becomes paramount: protecting the rest of us from the possibility of becoming this person's next victim. The best way to guarantee that outcome is, of course, to simply never allow demonstrably dangerous individuals another opportunity.

Now, most people would say that this is excessive. Some criminals may be persuaded by a combination of the conservatives' deterrence and the liberals' rehabilitation to never repeat their anti-social behavior and, thus, should be permitted to reenter society.

The problem is that it is notoriously difficult to accurately predict recidivism. This is compounded by the fact that parole boards and other officials responsible for making the determination have no actual stake in the reliability of their decisions. If the once-dangerous people they release turn out to be still dangerous, they simply shrug and move on to the next case.

A Libertarian friend of mine once suggested an intriguing proposal for making us potential victims of repeat offenders just a bit more secure. When a convicted criminal becomes eligible for parole (or in the case of juveniles or the mentally incompetent, found to be no longer a threat) include along with all of the customary requirements an appropriate bond before he or she can be released back into society.

Anyone would be free to post such a bond on behalf of any convict. What would constitute a sufficient amount would vary according to the potential damage should this person repeat the offense. Perhaps as little as $30,000 might be enough to indemnify against a once and future car thief. While society might require a million dollars or more as security for someone who commits the kind of crime for which no amount of money can ever adequately compensate.

This bond, if not forfeited because of a subsequent crime, would last for the lifetime of the perpetrator, but would be refunded to the guarantor once the individual in question is no longer a danger.

As a peaceful member of society I have no special interest in either punishing or rehabilitating criminals. My interest is in being protected from them -- and where that protection fails, compensated by them.

Considering that our society still devotes more than half of its criminal justice resources to "crimes" that don't even have actual victims, I am not holding out much hope that we will see any refocus from deterrence and rehabilitation to restitution and protection in the near future.

Instead we are treated to the spectacle of court jester, Geoffrey Fieger, exploiting the latest high profile criminal case before the Court TV cameras -- perchance to follow Jerry Spence and Marcia Clark into the Lawyer's Hall of National Syndication Fame.

Meanwhile, the talk radio airwaves crackle with demands for swift and sure punishment of a child. And professional race-baiter, the Rev. Al Sharpton, and his traveling sideshow howl about the prejudice of the system in a case where both perpetrator and victim are young blacks.

And in the end we have a judge who launches into extended social criticism of everything from the social services department to video games. Who incomprehensibly castigates the Legislature for giving him too much discretion in such cases. Who then sentences Nate Abraham under the juvenile law with the none-too-subtle insinuation that, if the rest of us know what's good for us, we better get cracking and provide effective reformation services before this killer is turned loose on us again.

It's enough to make a Libertarian wonder if the ghost of Allen Funt isn't lurking somewhere with a cosmic camera.

Tim O'Brien is the Executive Director of the Libertarian Party of Michigan.