Substitutionary Justice In A Free Society

August 10th, 2013   Submitted by Darryl W Perry

BradHow would justice work in a free society? I imagine there would be more justice than there is now, it would be difficult to have less. Most advocates of a truly free society agree that anyone found guilty of violating the rights of another individual should be required to pay restitution in order to make the victim whole.

There are some advocates for a truly free society who believe that jails would still exist, but only to house those individuals who can not, or who will not, make their victims whole. Those people who are considered a true danger to society. I am not writing to debate the validity of that position. Rather, to ask a question about substitutionary justice.

Imagine if you will that the following scenario takes place in a free society:
Someone has information about a group who was committing horrible acts of violence across the globe. That person infiltrates the group to collect information about their actions, and then releases the information to the public at large. This action obviously angers the people who are said to be in charge of the group, and they decide to torture the individual who leaked information about their actions. The leaders of the group, then claim their rights were violated by the individual, and they convince a court to find this person guilty. The group convinces the court that the individual’s actions are so heinous that he must spend the next 136 years of his life in jail, because there is no way he can ever make them whole.

Now, on the other hand, many of the people who were informed of the horrible misdeeds of the group are not convinced that said individual is guilty of any tort against the group. Some of the people are so adamant in their support, that they offer to serve a portion of his sentence in order for him to go free. Would a free society allow for such substitutionary justice?

I would like to think so.

If you missed the parallel, the above scenario is a basic summary of the supposed crimes of Bradley Manning, the Army private who was recently found guilty in a military court of 19 counts of espionage, computer fraud and theft related to the release of information to Wikileaks.

Despite the guilty verdict, there are thousands of people who believe that Bradley Manning did nothing wrong, and should not be incarcerated. Some of his supporters have even offered to serve part of his yet to be determined sentence, which could be as much as 136 years in military prison.

Charlotte Scot created a petition titled “I will proudly serve part of Bradley Manning’s sentence.”

Scot told me, “People in our country should not go to prison for telling the truth… I’m a senior citizen who is fed up with the secret laws, the secret courts the secret everything. Bradley Manning is a scapegoat for our government policies. He should be praised, not punished.”

I agree that Manning should be praised not be punished, so I signed the petition as signer #2,381 and added the message, “Bradley Manning is a whistleblower who exposed potential war-crimes. For his actions, he was a recipient of the FPP Peace Prize in 2010. As a journalist dedicated to ensuring the freedom of the press, I would gladly serve 30 days in military prison on behalf of Bradley Manning.”

I know that this is a largely symbolic action, but I stand by my words that I would serve part of Bradley Manning’s sentence. Scot admits that the petition is largely symbolic, saying that she “hope[s]… to make people aware of the injustice,” adding, “Since when do we send truth tellers to prison for 136 years?”

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15 Responses to “Substitutionary Justice In A Free Society”

  1. Robin KilgoreNo Gravatar says:

    I’ve known Charlotte since we were both teenagers. She’s a remarkable woman who means what she says and says what she means.
    Your article very clearly lays out the dilemma in a cogent and easy comparative argument that allows the reader to look at the situation more objectively, although, unlike the parallel, I don’t believe that Bradley Manning joined the service with the ‘intent’ to seek out wrongdoing and expose it, anymore than I believe Edward Snowden had a prior intention to expose the vast overreach of the NSA’s unconstitutional spying activity.
    I,too, signed the petition to willingly serve a part of Bradley Manning’s sentence and I wish the courts would allow this injustice to be ameliorated in this way.

  2. Michael HendricksNo Gravatar says:

    I’ve ner\ver really thought about it. This is something completely new to me.

    Interesting, I’m just not sure that substitutionary justice could be a thing.

    • Michael, it is currently legal to pay a fine on behalf of another person. That is, in some respects, along the same lines as serving part of that person’s sentence.

      • Michael HendricksNo Gravatar says:

        It’s a gift of time instead of money… Interesting.

      • thorax232No Gravatar says:

        If money were proper compensation, say for property damage, it doesn’t really matter where it comes from really, so long as it doesn’t come from a real crime.

        If time is being served I figure there is a reason it was decided that this person should be kept of the streets. (Ideally… I’m not talking about Manning here just in general). Maybe serving time for another is not good practice.

  3. thorax232No Gravatar says:

    In this case I can see why substitutionary justice could be a positive thing, but what about in cases of cults? Such as Charles Manson? Could his followers serve his time? Where do you draw the line? Why do you set that line? And why there? You know… typical “line” questions.

    In the AnCap world Manning would not have anything to expose and if he did he probably wouldn’t be found guilty in this case. I totally disagree with you and I don’t think substitutionary justice is right in the grand scheme of things.

    But for Bradley, it’s a good gesture to make.

  4. Seth KingNo Gravatar says:

    If the state allowed substitutes then they would also start jacking the sentencing up. Instead of 120 years for Manning, it would be 1000 years.

    Arguing over how the state metes out “justice” is a waste of time, though.

    It’s like asking burglars to steal from me instead of my neighbor. It’s mental masturbation.

    • Seth, I’m not “Arguing over how the state metes out “justice” is a waste of time, though.” I’m asking if substitutionary justice would work and/or be allowed in a free society!

  5. Don DuncanNo Gravatar says:

    I’m against substitutionary justice. It amounts to shifting the punishment away from the criminal to innocents. I understand the motive in Manning’s case. It is an attempt to diminish the injustice of one by spreading it out over many. But the unjust sentence is still unjust. Unjustly punishing many, a little, instead of one, a lot, is no solution. This suggestion for relief accepts the judgement as final. It is not. The U.S.S.A. is not all powerful. It is not moral. It is not just. Never forget it relies on our support. It exists by our acceptance.

    Until the downfall of govt. due to lack of support, I suggest a petition to give Manning and Snowden the Metal of Honor for their courageous action against govt. secrecy.

  6. K. Darien FreeheartNo Gravatar says:

    I disagree that a free society would allow this.

    There are two major facts that need to be kept in mind using this template as a reference.

    First, you need to recognize that there are currently two instincts served by the court systems. One is justice – recompense from perpetrators of harm to the victims. The criminal code typically ignores this, but the civil courts don’t.

    The second is for “revenge”, or so-called punitive justice. The criminal code tends to over-do this, and the civil courts largely ignore it.

    I don’t consider the punitive sense to be actual justice, but I think humans who have been wronged will ALWAYS long for the sense that the person who wronged them got the worst end. What a free market WILL do, however, is slant this toward a predictable process so that the “everyman” knows it exists, but doesn’t fear it’ll be used against them. I think the market will do this pretty well, but never actually eliminate the urge and irrationality – a free market isn’t a utopia, sadly.

    So, for those that want to see Bradley Manning “punished”, they’ll not allow a million people to serve his sentence in bits. Bradley Manning wouldn’t be PUNISHED if this happened.

    For those that want to see someone’s loss made whole, they’ll examine the loss. I’ve debated for a while with many good libertarian thinkers on the matter, but in a free market, I’m reasonably sure that there would only be two reasons for what we call “privacy” today. 1.) Trade secrets and 2.) Concealment of unethical actions.

    Trade secrets have the interesting distinction to fail once they’re “marketed”. Drone strikes in Pakistan are viable trade secret for a security company, up until the minute a Pakistani mother posts videos of that method in action. At that point, it’s no longer a trade secret, it’s a product or service in the marketable domain. Intel’s latest processors are no longer a trade secret once NewEgg is listing specifications on them, and the actions of a government are no longer “secret” when they’re killing people. You can no longer claim “protection” on Windows when half a billion people are running it on their PCs.

    So, in a free market, could an organization claim real damages for Bradley Manning’s leaks being made public? No. And I think a reasonable body of people would recogize the claims made by the “damaged parties” as null and void.

    • Robin KilgoreNo Gravatar says:

      I enjoyed your comments. In the case of Bradley Manning, I don’t believe that “justice” is served by his sentencing, in the first place. Those who SHOULD be on trial are those whom his actions “revealed” as being the real perpetrators of injustice and crimes committed against , not only the US citizenry (with a government acts on our behalf), but also against Humanity.
      It’s a classic case of “killing the messenger”.
      The REAL criminals are never, (or rarely), held accountable…

  7. RagnarNo Gravatar says:

    One of the biggest problems I see with the concept of substitution is that, at least in theory, we don’t lock people up merely to punish, we (again, theoretically) do it to protect others from them. If they have a non-dangerous surrogate serving their time, they are free to continue harming others. If they know, in advance, that they have others willing (or coerced, secretly) into serving the time, they have license to commit any heinous crime they like with impunity.

    Think about the Cosa Nostra, or the Mexican Cartels. New guys coming in would initially prove themselves by serving some time for the guys on top.

    How many battered wives would offer to serve their husbands’ time? More than a few, I think, especially if the husband is also the bread winner for her kids.

    People would pay off gambling debts by serving time for their bookies. Heck, there would be a market, and therefore, someone serving that market, for professional time servers. They would need agents and brokers to connect them with criminals.

    As far as restitution and victims being made whole, what number of dollars would you take in apology from the man who raped and murdered your teenage daughter?

    Personally, I am opposed to imprisoning people at all, other than while they’re on trial. Ten years in prison doesn’t make them less dangerous when we let them out. In a theoretical free society, I won’t pay for prisons. If someone is so dangerous that they must be made to live in a cage, lets simply kill them and be done with it.