Given how easy it is recognize in both paradigms that justice is about victims, why do people so often think justice is about punishing the criminal? Often, when protesters call for justice in the name of a victim, they call not for reparations or restitution, but for criminal prosecution of the perpetrator. Why does this attitude persist? Even libertarian theorists, most notably Murray Rothbard in The Ethics of Liberty, attempt to move from justice for victims, restitution, to criminal law, retribution.

For too long, the state has had a stranglehold on justice. Frederic Bastiat noted that when justice is perverted by the state, the people come to know nothing else but the state’s actions as “justice.” It is no surprise, then, that justice is thought to be some kind of persecution of those who do harm to others. The state uses justice as the banner under which it may take its looter’s share. By parading about as the “thin blue line” police become symbols of morality, even as they leave destroyed lives in their wake. Prisons are warehouses for the socially discomforting and pens for the downtrodden who would otherwise mar the cityscapes of the influential, not temples of justice, nor cages for social decay. The state and its agents have stolen justice from its citizens.

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Justice is the virtue of giving each his or her due. As a person, as a human, as a members of various relationships, each person deserves some particular kind of treatment. Justice is thus, in the words of St. Thomas Aquinas, “a habit whereby a man renders to each one his due by a constant and perpetual will.” So justice is about the person with whom one interacts, their dignity and standing as who and what they are. Other virtues, like prudence or fortitude, are about the agent who wishes to display them. To be insufficiently brave is to feel too much fear, or to feel fear of an improper object, but justice is about other people.

This makes sense in libertarian theory. The non-aggression principle is not framed in terms of the violator. It is wrong to aggress against another person’s justly held property primarily because it harms the victim, not primarily because the gains therefrom are not real accomplishments (though this is the case). The right of self-ownership does not follow from the fact that others have no ability to control one’s will but from the fact that one has the inalienable ability to make decisions for oneself. Even the law of equal authority is fundamentally about the wrong done to someone when power is expressed over them.

Leftists recognize that justice is about victims, also. When explaining the problems in rampant bossism, the callousness inculcated in bosses is morally secondary to the vulnerability endemic to the employees’ position. Underprivileged groups’ stigmatization is a wrong committed by the privileged against the marginalized. Privilege is not about the privilege holder, it is about the unfairness of the social dynamic it forces onto the underprivileged.

Given how easy it is recognize in both paradigms that justice is about victims, why do people so often think justice is about punishing the criminal? Often, when protesters call for justice in the name of a victim, they call not for reparations or restitution, but for criminal prosecution of the perpetrator. Why does this attitude persist? Even libertarian theorists, most notably Murray Rothbard in The Ethics of Liberty, attempt to move from justice for victims, restitution, to criminal law, retribution.

For too long, the state has had a stranglehold on justice. Frederic Bastiat noted that when justice is perverted by the state, the people come to know nothing else but the state’s actions as “justice.” It is no surprise, then, that justice is thought to be some kind of persecution of those who do harm to others. The state uses justice as the banner under which it may take its looter’s share. By parading about as the “thin blue line” police become symbols of morality, even as they leave destroyed lives in their wake. Prisons are warehouses for the socially discomforting and pens for the downtrodden who would otherwise mar the cityscapes of the influential, not temples of justice, nor cages for social decay. The state and its agents have stolen justice from its citizens.

State interest in retributive, perpetrator-focused justice is natural. It makes the rightness of a choice dependent on the one performing the act against another. Taking property from another is theft, unless the state is levying a tax. Shooting another person without cause is murder, unless an “officer of the law” is holding the gun. The quasi-divine sanction of the state removes moral responsibility from one who would rightly be a criminal. The victim is of no importance under a state’s so-called justice system. The perpetrator is everything, and the state has the power to decide who the perpetrator is, criminal or agent of the law. This is the identifying feature of the state and the source of its influence. It claims the final right in deciding the legitimacy of a use of force. It holds itself up as the final arbiter. It decides who matters.

To have true justice the state’s model of punishment must not be the operating paradigm. Those who have been harmed by another, no matter who the other was, must be made whole again, and it is the responsibility of the damaging party to ensure that this is so. This cannot be done by focusing on the perpetrator. Only the victim’s status matters in evaluating whether justice has been done, and victims deserve better than the farce the state has conducted for centuries in the name of its own victims. They deserve justice.

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.

Think about it like this. Suppose you’re hungry for some delicious pizza, like I am right now. When I finish writing this, I’m going to pick up the phone and place an order for some pizza. But I have to decide what size I want. As is the case with pizza, my eyes (or ears since I’m ordering on the phone) are bigger than my stomach and I’m tempted to order a large. Problem is, I won’t actually be able to finish the whole thing. It’s just too much pizza (this concept is actually incoherent, but this is only an analogy). Of course, I don’t want to order a small either. It won’t fill me up and I will want more pizza. Considering all the variables – my body type, my appetite, the size of my wallet, etc – I have to get the pizza that is proportional.

Proportional pizza is not actually a philosophical concept, which is a travesty. But we do have something like it that was developed by some guys named Socrates, Plato, and Aristote, among others. In the ancient Greek tradition, this is called the Golden Mean. According to Socrates, “man must know how to choose the mean and avoid the extremes on either side, as far as possible.” In the Aristotelian tradition, a virtue such as courage is action that falls between acting too rash and too cowardly. Aristotle thought all the virtues depend upon a mean between two extremes. There is no doubt he would have ordered the medium pizza.

What can this tell us about non-aggression, proportionality, and justice? The Golden Mean shows us that acting just requires a sense of proportionality. It explains why when someone steals my television, killing them would be doing too much and doing nothing would be too little. Justice lies somewhere between the two. Responding to an act of aggression with a disproportionate amount of force misses the Golden Mean.

This idea means we are committed to a specific form of retaliation. We can act violent insofar as that violence is needed to defend ourselves or make ourselves whole. Taking my television back and breaking the thief’s arm is not needed to defend myself nor make myself whole – it’s not proportionate. Any action I take that goes beyond self-defense and restitution is, itself, aggression. In the case of the television, justice requires me taking back my television along with some compensation for what I had to go through (maybe I had to run after the thief and tore my shirt on a tree branch). Nothing more and nothing less.

Now, what kind of blog post would this be if I didn’t call for the abolition of prisons? One of the reasons I’m a prison abolitionist is because locking people in cages for months, years, or decades, is not needed for self-defense. Imprisoning the television thief goes beyond the proper form of retaliation because prison is all about punishment for punishment’s sake. Once I get my television back, the thief is no longer a threat and I have no claim to any of his property except the appropriate restitution.

Forcibly restraining someone for an extended period of time could only be justified if they are an on-going threat to society. Considering the few number of people who are actually a continual danger to others, this hardly justifies prisons. There are more effective and more moral alternatives for this small minority. Consider a system of house arrest. Or perhaps a rehabilitation clinic.

A proper concern for non-aggression and proportionality entails the absolute rejection of a system based on punishment for its own sake, which is what prisons are. It implies a system based on restitution, on making the victim whole. Let’s not forget Aristotle’s Golden Mean when we are ordering pizza or when we are discussing the proper treatment of criminals.

As the Zimmerman trial has been conducted, so too has the trial of Bradley Manning. Manning has become a household name among civil libertarians, but not to the majority of Americans.

Manning is a US Army soldier arrested in May 2010 for leaking classified material to WikiLeaks. Since his detention he has been charged with 22 offenses, including “aiding the enemy.” Perhaps the most well-known of the Manning leaks is the video showing war crimes — the repeated targeting of un-armed men, news informants and children — by US troops in Iraq. This leak raises disturbing questions about US foreign policy and is being treated as espionage rather than whistle blowing by the government (as is the Edward Snowden case).

What’s the difference between the Zimmerman case and the Manning case? Both trials are current, but there is no national discourse for Manning. One cannot make broad claims as to why, but maybe the answer lies in our conceptions of justice.

The system of justice utilized by the United States is “procedural justice.” In this system justice is a procedure, not an outcome. The system depends on due process rights and adherence to law.

What the American public tends to champion is “retributive justice” — justice based in the outcome of a trial. If a defendant is believed to be guilty in the public conscience then “justice” is only served if said defendant is found guilty.

“Restorative justice,” however, encourages deep reflection. It focuses on the needs of the victims, the offenders and the impacted community. This type of justice is not concerned with procedure. Victims here take an active part in the process of justice and offenders are held accountable for, and take ownership of, their actions. Restorative justice focuses on human need and seeks solutions/support so that future offenses are prevented. Here, crime is done to individuals or communities instead of the state. It is the “why” — and what to do about it.

In restorative justice we see a major difference in the cases. In the much sensationalized Zimmerman trial we see a trial involving two individuals — more importantly, two Americans. We see historical tensions, social justice issues, and questions of power, force and race. We are all a part of this history, but we did not all participate in the crime, allowing us to reflect and form opinions of how to move forward.

This is where Bradley Manning is different. The same issues are raised, but we are all implicated in the story. It isn’t a crime among two individuals. This information charges all of us. It is our nation-state that has waged a never ending war on terror. It is our republic that is the offender. There are millions of victims and the global community is watching.

Perhaps we demanded coverage of the Zimmerman trial because there is a way to move forward, objectives achievable in the short term and clear goals for the long term. We are taking a national interest because Americans are involved and we wish to move the nation forward.

With the Bradley Manning case, however, our entire system is at war with “others.” Without dissent we support this behavior. We as a nation are the offenders. This makes us uncomfortable. The thought of owning up to our crimes is daunting, and what to do about US imperial hegemony — well, that makes us really uncomfortable. Instead of a calling to move our nation forward, hegemony gives us pause. It calls for deconstruction of our existing military, economic and political class.

One case rightly calls for a better nation, the other calls for the torch of liberty — our lost ideal.