All over the Anglo-American countries prisons are full to
overflowing. Most of us seem to equate "getting tough on crime"
with putting more persons in jail for more infractions, but few
want to pay the price, either in higher taxes or in the
inconvenience and potential danger of having a prison near our
homes.
It is time to ask hard questions about the reliance on
imprisonment as virtually the only way to deal with crime. Such
reliance leads to prison overcrowding, often does not serve
justice, and almost always results in unsatisfactory treatment of
the actual victim.
It comes as a surprise to most people to learn that early
legal systems which form the foundation for Western law
emphasized the need for offenders and their families to settle
with victims and their families. Old Testament law, the Code of
Hammurabi, and Greek, Roman, and early Anglo-Saxon law all
stressed compensation and restitution directly to the victim of a
crime.
The focus changed with the Norman conquest of England.
William the Conqueror, as part of a political struggle to
consolidate his power, took more control of the process of
handling crimes. His son, Henry I, went further by defining a
crime, not as an offense against a specific victim, but as an
offense "against the king's peace." Thus criminal punishments
were no longer viewed primarily as ways of restoring the victims
of crime, but instead as means of redressing an imaginary
"injury" to the king.
This concept allowed Henry to enrich his treasury by taking
a portion of the compensation due a crime victim under the old
Anglo-Saxon code. Over time, the amount confiscated from the
victim increased, and eventually restitution was seldom ordered;
the defendant was simply fined.
Under this system, the victim has no remedy. His only
function is to serve as a witness. This statist theory persists
in our time. Criminal actions today are brought in the name of
"the people," "the state," or "the Crown" instead of the actual
victim.
If we worried more about restoring the victim than about the
injured dignity of the state, we might find that justice requires
less jail and more restitution. If we went a step further and
were careful to define as crimes only actions in which a specific
complaining victim can be identified, we would find our problems
of prison overcrowding disappearing in the universal solvent of
common sense.
About the Author
Adam Starchild is the author of numerous books and articles,
primarily on business and finance.
Copyright © 1988 by Adam Starchild
The Libertarian Library has reprinted this article with the permission of the author.
