Maybe it’s time to radically rethink the nature and purpose of criminal law itself. Maybe it’s time to look to another legal theory — contract law.

Despite sharing common roots, criminal law and contract law are different. In the United States, as in other jurisdictions, contrasting theory, substance, and procedure distinguish the two doctrines. Many people consider criminal behavior to be a breach of the social contract. If so, then why don’t we apply contract law principles to crime?

Crime as Breach of Contract

Consider Pierre-Joseph Proudhon’s formulation of the “social contract”:

What really is the Social Contract? An agreement of the citizen with the government? No, that would mean but the continuation of [Rousseau’s] idea. The social contract is an agreement of man with man; an agreement from which must result what we call society. (General Idea of the Revolution in the Nineteenth Century, 1851)

Proudhon equates the social contract with social expectation: how do individuals expect each other to behave under normal circumstances? Indeed, every society establishes its own norms to which its members are expected to adhere. Yet to truly be a “social contract” the state must also be party to it.

Criminal behavior amounts to a breach of the social contract and a violation of implicit social norms. For example, we do not expect our neighbors to take our stuff. We denounce theft as an illegitimate means of acquiring property.

Contract Law Principles

In general, contract law attempts to put victims of breach in as good a position as they would have been if the contract had been performed. The “expectation principle” requires the breaching party to compensate the victim just to the point of making her as whole as she had expected to be (either by economic equivalence, restitution, or both) and not beyond.

The remedy for property crimes (as social contract breach) seems intuitively obvious: give the victim back her things. After all, the point of contract remedy is to compensate the victim, treat the breaching party fairly, and promote economic efficiency. As Oliver Wendell Holmes declared, “The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it — and nothing else.”

Penalty Clauses

Because of these broad principles, penalty clauses are not enforceable. A clause that reads, “If Smith does not pay Jones $20, then Smith must pay $100 instead,” would not be upheld in court. Holdings barring the enforcement of contractual penalties and quasi-penalties litter American case law.

Penalties have been questioned and derided for centuries. In Shakespeare’s The Merchant of Venice, the villainous Shylock agrees to loan Antonio money. However, under the contract, if Antonio defaults, he must forfeit a pound of his flesh.

Shylock: Go with me to a notary, seal me there
Your single bond; and, in a merry sport,
If you repay me not on such a day,
In such a place, such sum or sums as are
Express’d in the condition, let the forfeit
Be nominated for an equal pound
Of your fair flesh, to be cut off and taken
In what part of your body pleaseth me.

Why the harsh penalty? “If it will feed nothing else, it will feed my revenge.”

Antonio defaults. At trial, someone offers to pay twice the contract price to save Antonio from Shylock’s knife. Shylock, however, insists the court enforce the deathly penalty. After ostensibly honoring his wish, the judge cleverly turns Shylock’s argument against him, preserving Antonio’s life.

Social Contract Penalties

The social contract includes at least two penalty clauses. First, if a party breaches, then he is punished (the “criminal”). Second, if a party breaches, then the aggrieved party (the “victim”) is cast aside and ignored.

Under the current bifurcated system, a criminal caption reads State v. Smith, not Jones v. Smith. The victim is not a party to the suit. Instead, the state assumes its position as a placeholder for the victim, whether or not the victim approves. Like Shylock, the state then begs for the enforcement of penalty clauses. Someone breached the social contract. Punish her!

In equating justice with punishment, we forget about the victim. Sadly, with full enforcement of the penalty clause against the breaching party, the victim also suffers a penalty — she is cast aside and ignored. Our addiction to penalties has given rise to the largest prison population in the world. In contrast, a more rigid application of contract law principles would preclude the application of penalty clauses, focusing instead on fulfilling expectations, compensating for losses, and making the victim whole again.

Many crimes violate person, not property. How would we remedy social contract breaches such as battery, rape, and murder? While the answer is not clear, to enforce penalties seems dubious at best. Civil rights attorney Clarence Darrow once noted, “All communities and states are in reality ashamed of jails and penal institutions of whatever kind. Instinctively they seem to understand that these are a reflection on the state.” Perhaps Darrow was correct in thinking that “nearly every crime could be wiped away in one generation by giving the criminal a chance.”

Moreover, common law courts rarely award emotional damages resulting from a contract breach. Such damages fall into the realm of tort law. However, Hadley v. Baxendale, a seminal case from nineteenth century Great Britain, established the “foreseeability rule.” If damages resulting as a consequence of breach could have been reasonably foreseen, then they can be recovered. All parties to the social contract certainly can “reasonably foresee” the consequential emotional damages of violent acts like rape.

The law treats contracts differently than it treats crime. But should it? Isn’t criminal behavior just a breach of contract — the social contract? When a thief steals from his neighbor, doesn’t it make sense to repay the neighbor and restore her expectations? In criminal law, penalties deprive liberty without compensating the victim. We punish both the criminal and the victim; only the state comes out ahead. The common law refuses to enforce contractual penalties for good reason. Perhaps that principle should be applied to criminal law, as well.

Intuitively, it seems like we should. We’re instinctively outraged that cops can outright murder people and almost never get locked up for it. We’re understandably incensed that politicians from Richard Nixon to Ted Kennedy can commit heinous crimes and stay free, just because of their high social standing.

More fundamentally, even when cops and politicians are operating strictly within the limits of the law, they commit acts that would otherwise be seen as high crimes. As long as they follow all the right rituals of law, cops can threaten and kidnap completely peaceful people, and batter them if they resist. By waging war, politicians commit mass murder, and by expanding the prison state for campaign contributions, they literally sell people into slavery.

Ordinary people would certainly at least go to prison if caught doing any of those things. Anarchism is in part defined by a rejection of political authority, which means that we do not morally distinguish between the actions of a cop or politician and the actions of any other individual. So, one might think that the straightforward conclusion here is to one day set up libertarian tribunals to dish out punishments against agents of the state.

This view is understandable, but gravely mistaken.

Before law enters into the situation, we tend to hold to a pretty strict standard of self-defense. Which is to say: in any interpersonal conflict, we reject the initiation of force and only accept violence to the extent that it’s both proportional and genuinely necessary to protect the person being harmed or threatened. When someone goes beyond that minimally necessary amount of force, then they also become an aggressor, and their actions must also be condemned. After the fact, we demand that aggressors make restitution to their victims, but never counsel revenge.

There are very, very rare instances in which forced confinement may be justified, but this is only the case when someone is proven to actually be an ongoing threat to everyone in the community. Even then, this justification doesn’t apply for even the vast majority of violent criminals, and a justification for forced confinement does not justify forced confinement in any particular place. Nor does it justify the near total control that prisons have over prisoners. Hence why prisons are still inherently unjust.

A response might be offered that cops and politicians are indeed ongoing threats to the community at large. That much is true.

Yet the reason cops and politicians are ongoing threats to the community is not because of some psychological condition shared by all cops and politicians. Nor is it about any other quality shared by the particular individuals who occupy those positions of power. Rather, the individuals in those positions of power are ongoing threats to the community precisely because of their positions of power.

In other words, the minimal amount of force necessary to subdue them is just to get them fired or out of office, with the long-run goal of eliminating their jobs entirely. As for getting justice, what should be demanded is restitution – either in the form of hefty monetary compensation, or making amends through some other restorative process. Unlike punishment, that restitution can actually work toward giving back some of what’s been taken from their victims.

Which brings us to what may be the most important point: putting cops and politicians in prison does absolutely nothing to actually solve anything. When some on the left called for the trial and incarceration of George W. Bush (and others in his administration), prison abolitionist Dean Spade dissented, writing:

[T]he call to imprison Bush Administration officials is unsatisfying to me.  Imprisoning them would do nothing for those who have been killed in the wars, and making the call, to me, suggests that we believe the criminal punishment system is an apparatus for dealing with dangerous people and seeking justice, which is not true.  I would rather we put our energies into fighting for things we actually think can ameliorate the harm that has been done and prevent it from continuing.

Even if Bush had gone to prison, the United States government would still be bombing Iraq again in 2014. Even if Darren Wilson goes to prison, the police will continue to arrest black youth at wildly disproportionate rates. To the extent that their sentences would count as victories, they would only be symbolic victories. Those symbolic victories would lead many of us to believe everything was finally under control, numbing our passions for justice, and distracting us from the root causes of their aggression. Just like any other case of punishment.

The desire to fill prisons with those who are most truly dangerous in our society – namely, agents of the state – is a hard one to shake. Even still, it must be seen as a lingering form of retributivism felt by radicals brought up in a culture of criminal law, and like all forms of retributivism, it must be rejected. Especially given that its rationale is the same that empowers the very people it’s trying to fight against.

Quando qualcuno commette un crimine contro qualcun altro, solo l’autore di questo crimine dovrebbe essere considerato responsabile. Non la famiglia o i compagni di camera, non quelli della sua razza o nazionalità, non quelli che condividono le sue idee politiche, non quelli che vivono nella stessa area geografica. La punizione collettiva è immorale. La Convenzione di Ginevra la considera un crimine, un’aggressione violenta che tutti quelli che tengono ai diritti dell’individuo dovrebbero odiare. Ora, in risposta alla morte di questi adolescenti, il governo israeliano ha deciso di commettere questo crimine.

Soldati israeliani hanno demolito le case di Marwan al-Qawasmeh e Amer Abu Aisheh, sospettati del rapimento e dell’uccisione. Questa punizione è avvenuta senza processo. La demolizione ha terrorizzato membri di famiglie innocenti e vicini di casa, e ha danneggiato i loro beni. Secondo la Reuters, “Prima di far saltare in aria la casa, i soldati hanno mandato in frantumi le finestre e scaraventato a terra i sofà. Hanno fatto a pezzi con una mazza il water e il lavandino, oltre ai gradini della scala uno per uno. Zucchero, yogurt e pane sono stati gettati sul pavimento della cucina.”

Questa distruzione gratuita non è stata d’aiuto alla cattura dei sospetti, né ha risarcito le famiglie delle vittime. È solo una distruzione stupida che terrorizza un vicinato e impoverisce il mondo.

E non finisce qui. Secondo Amnesty International, il governo israeliano “la mattina del primo luglio ha lanciato almeno 34 attacchi aerei in diverse località di Gaza. Ci sono notizie di feriti palestinesi.” Com’è facile immaginare, queste azioni colpiscono innocenti, lasciandosi dietro indiscriminatamente feriti, morti e distruzione.

Amnesty parla anche di persone morte per mano delle forze di sicurezza israeliane da quando è iniziata la ricerca dei giovani rapiti. Secondo il governo israeliano, uno dei morti, Yousef Abu Zagha, lanciò una granata; ma secondo la Associated Press “la famiglia dice che stava portando a casa delle uova per il pasto prima dell’alba, come previsto dal digiuno del Ramadan.”

La punizione collettiva non è una novità per lo stato di Israele. Da tanto tempo costringe il popolo di Gaza alla povertà con un embargo draconiano che divide le famiglie, priva le persone della libertà di cercare cure mediche, e impedisce quel commercio pacifico che potrebbe dare benefici e prosperità ad entrambe le parti. L’Onu ha condannato l’embargo come una violazione dei diritti umani.

Lo stato di Israele, inoltre, arresta arbitrariamente i palestinesi. Secondo Amnesty, sono “almeno 364 i palestinesi attualmente agli arresti amministrativi, un numero che non si vedeva da anni.”

E sono numerosi i posti di blocco che limitano la libertà di movimento dei palestinesi, a molti dei quali Israele demolisce le case per costringerli ad andare altrove e rubare loro le terre.

Lo stato di Israele cerca di giustificare tutta questa violenza nel nome della lotta al terrorismo. Ma è lo stesso stato che fa violenza alle popolazioni civili per terrorizzarle e raggiungere i propri scopi. Terrorismo è semmai la violenza praticata dallo stato di Israele.

Traduzione di Enrico Sanna.

When someone commits a violent crime against another person, the perpetrator should be held accountable. Not the perpetrator’s family or roommates, not those of the same race or nationality, not those with similar political views, not those who live in the same geographical area. Collective punishment is immoral. It is a war crime under the Geneva Convention and it constitutes aggressive violence that all who care about individual rights should abhor. But in response to the deaths of these teenagers, the Israeli government chose to engage in it.

Israeli soldiers demolished the homes of Marwan al-Qawasmeh and Amer Abu Aisheh,  suspects in the abduction and killing of the Israeli teenagers. This punishment was inflicted without trial. The demolitions terrorized innocent family members and neighbors and damaged their property. According to Reuters, “Before blowing up the house, soldiers shattered the windows and threw sofas to the ground. Toilets and sinks, along with every step in the staircase, were smashed with a sledgehammer. Sugar, yogurt and bread were thrown across the kitchen floor.”

This gratuitous destruction didn’t help apprehend the suspects, nor did it provide restitution to the families of the victims. This is senseless destruction that terrorizes a neighborhood and makes the world less prosperous.

The collective punishment doesn’t end there. According to Amnesty International, the Israeli government “launched at least 34 air strikes on locations across Gaza on the morning of 1 July. There have been reports of Palestinian injuries.” Such actions predictably harm innocents by causing injuries, death and property destruction indiscriminately.

Amnesty also reports multiple deaths at the hands of Israeli security forces since the search for the abducted teens began. While the Israeli government alleges that one of the dead, Yousef Abu Zagha, hurled a grenade, the Associated Press reports that “his family said he had been carrying eggs home for a predawn meal before the daylight fast for the Ramadan holiday.”

Collective punishment is not a new practice for the Israeli state. That state has long forcibly kept the people of Gaza in poverty with a draconian blockade which separates families, deprives individuals of the freedom to seek medical care, and forcibly prevents peaceful trade that could produce mutual benefit and prosperity. The UN has condemned this blockade as a violation of human rights.

The Israeli state arbitrarily locks up Palestinians, according to Amnesty, “with at least 364 Palestinians currently under administrative detention, the highest number in years.”

Checkpoints are used to restrict Palestinians’ freedom of movement. Palestinians’ homes are demolished as the Israeli state forcibly displaces them and steals their land.

The Israeli government seeks to justify all of this violence in the name of fighting terrorism. Yet the Israeli state is engaging in violence against civilian populations in order to terrorize those populations and thus achieve their political aims. Israeli state violence is terrorism.

Translations for this article:

• Italian, Punizione Collettiva e Terrore di Stato Israeliano.

When we are disgusted by the unnecessary pain inflicted even on those who’ve inflicted unnecessary pain, we are disgusted with retribution. When we are outraged by the horror of a botched execution, we are outraged by the use of punishment to make an example out of its victims.

It is time to take the final steps on the path we’re already taking.

It is time to abolish the crime of punishment.

But if we can’t face the man on his knees, and if we don’t want to see ourselves as the man holding the pistol, should we be killing at all? Clayton Lockett was tortured to death last night so we could pretend we are somehow better than the man holding a pistol to the base of another man’s skull. If we are fine with killing, then why do we not kill the right way? If killing the right way troubles you, are you really fine with killing?

The particular incident sparking national attention this time was a lethal injection in McAlester, Oklahoma that failed to immediately kill its intended victim. Instead, convicted murderer and rapist Clayton Lockett died — of a heart attack — after 43 minutes spent writhing in pain and struggling to get out the words “Man,” “I’m not,” and “something’s wrong.”

Unsurprisingly, Amnesty International calls it “one of the starkest examples yet of why the death penalty must be abolished.” Even the White House — headquarters of worldwide mass drone assassinations — made a point to publicly state that the execution “fell short” of the standard for humane executions.

We might ask ourselves, though, why we find such a horrible death for such horrible crimes repugnant. If we think punishment should be retributive and proportionate to the crime committed, we ought to welcome particularly cruel punishments for particularly cruel crimes. If we think punishment should serve as a deterrent, we ought to welcome such gruesome, excruciating deaths in hopes that they make crimes like those committed by Lockett less likely.

In fact, we arguably passively accept more cruel punishments already.

As jokes in popular culture reveal, it’s socially understood that a prison sentence involves condemning a convict to a hell of constant abuse from both guards and fellow inmates. This looming threat lasts much longer than the 46 minutes of pain Lockett experienced, leaving permanent psychological damage. Even when sentences end and inmates leave with their bodies, they don’t always escape with their souls.

None of this is to downplay what happened to Lockett in McAlester, especially considering that his time on death row ensured he went through the torture of prison as well.

The problem is not just that what Lockett experienced was cruel and unusual. The problem is that the all too usual practice of punishment itself — the process of intentionally inflicting harm on another human being for the purpose of inflicting harm — is irredeemably cruel.

If this is where punishment has brought us, to systematic killings and mass incarceration, then it’s time to reexamine punishment. We must reflect on what it is we really want out of punishment, and whether or not we can achieve it some other way.

One of the most basic things we want out of punishment is a way to restore respect for victims and their dignity. When a murderer escapes conviction, our anger comes out of solidarity with the victim.

What better way to respond to crime, then, than by demanding restitution for victims or their loved ones? The focus there is placed firmly on showing respect for those harmed, and away from bringing new harm to the criminal.

The most obvious objection to such a proposal is that no amount of monetary compensation will ever bring back the dead, or undo an assault, making full justice impossible under restitution. While this is unfortunately true, it is also true of punishment — even if Lockett had suffered for three hours, his victim would still be just as dead.

The difference is that with a restitutive model of justice, we can at least go some way toward healing the wounds of crime. With a punitive model, no steps are taken in that direction at all and new injustices are committed.

When we look back at the history of criminal justice, most of us mark progress by the abolition of the cross, the rack and the guillotine. We take it as a mark of our humanity that our modern debates about lethal injections are about how we can punish with the least additional pain possible. When we fail in that goal, as Oklahoma did with Lockett, we are repulsed. Those who oppose capital punishment take it as a reason to abandon the practice altogether.

Each of these steps that we praise backs away from the principles used to justify punishment.

When we are disgusted by the unnecessary pain inflicted even on those who’ve inflicted unnecessary pain, we are disgusted with retribution. When we are outraged by the horror of a botched execution, we are outraged by the use of punishment to make an example out of its victims.

It is time to take the final steps on the path we’re already taking.

It is time to abolish the crime of punishment.

This man, a convicted rapist and murderer, is not someone I plan to mourn. His crimes, which included the rape and murder of a teenage girl, were as heinous as they were repulsive. His death was equally repulsive. Strapped to a gurney, he was injected with an untried cocktail of drugs intended to sedate him, stop his breathing and then stop his heart. The first drug, midazolam, commonly known as Versed, is a short-acting benzodiazepine (similar to Valium) typically used to sedate patients before uncomfortable procedures such as being executed while strapped to a gurney. The second drug, vecuronium bromide, is a particularly nightmarish substance. A paralytic, it blocks the transmissions of motor neurons. Patients who report being awake but unable to move or cry out during surgery are reporting the joys of vecuronium bromide when administered with insufficient sedation. The last drug, potassium chloride, is simply poison that stops the heart. KCl, as it is known, is common fodder for gallows humor in the medical community, with doctors and nurses “prescribing” a fatal injection of KCl to particularly obnoxious patients. Or, as here, fatal doses actually being prescribed.

The administration of these drugs failed to achieve the intended purpose — a clean, antiseptic death. Instead, the condemned man writhed on the gurney, called out and died in apparent agony of a massive heart attack. Clearly, this outcome was unacceptable — the state must kill in a controlled, clean and calm fashion, without embarrassing or distressing drama. Indeed today NPR told me I might find its reporting on the man’s death “disturbing,” presumably because of the writhing, not the death.

What is most curious about this experiment is how unnecessary it is. Millions of data points from killing fields and death camps, from the Einsatzgruppen and the NKVD, point the way clearly to the easiest, swiftest, most painless and cost effective way to kill. Have the condemned kneel. Place the muzzle of a small caliber pistol against the base of the victim’s skull. Pull the trigger once. The bullet destroys the brain stem, killing the condemned instantly. The total price of the execution amounts to a few minutes of the executioner’s wages and the price of a bullet. In the 20th Century, millions died this way. This is the most reliable method of execution known, and why in our data-driven age any other technique is used is a mystery. Or perhaps, it is no mystery at all.

A man on his knees, hands bound, blindfolded, is defenseless, helpless, a pitiful object. We cannot stomach killing this way. We cannot, truthfully, stomach the act of killing at all. Just as we long for remote-control wars and fill the skies with drones, we long for a robotic executioner killing without any of the horror of killing. We do not use lethal injection out of concern for the condemned, but out of concern for ourselves. We long to imagine that “the state” is killing these men and women, and that they aren’t really being killed at all, just antiseptically removed — “destroyed.” So we distance the lethal act from the proof of the deed; first the hangman, who simply pulls a lever, then the electric chair, with its switch, and now lethal injection, done at the press of a button, the same way the Air Force kills Yemeni children.

But if we can’t face the man on his knees, and if we don’t want to see ourselves as the man holding the pistol, should we be killing at all? Clayton Lockett was tortured to death last night so we could pretend we are somehow better than the man holding a pistol to the base of another man’s skull. If we are fine with killing, then why do we not kill the right way? If killing the right way troubles you, are you really fine with killing?