But this is only the beginning of the attempt to turn the future back into the sort of place it would have been had the theft not occurred in the first place, the ultimate (and of course impossible) goal of libertarian justice. For so far we have ignored the costs of searching for the criminal, capturing him, trying him, etc. These, too, must be taken into account, apart from the rare exception where the guilt struck criminal turns himself in to the authorities immediately, with a full confession. But even here there is the fourth dimension of crime to be considered. For when I entered your home, in order to steal your TV, you didn't know what I was capable of, or intended. In short, I scared you half to death, in addition to making off with your valuable property. Where is the compensation, the "making whole" for that bit of wickedness? In contrast, when I am punished under the rule of law, there is no such risk. That is, punishment is clear and foreseeable.
In order to make good this imbalance, the libertarian code of justice requires that the perpetrator pay for the fear he imposed upon his victim, in addition to the more objective costs. To this end, all criminals shall be forced to play a game of Russian roulette, with the number of bullets and the total number of chambers to be determined by the severity threat he imposed on his victim. For example, for a relatively minor crime of TV theft, when the owner was not home and the criminal unarmed, with no record of past violence, there might be 1,000 chambers and only one bullet. But, with the victim at home, who is tied up, an armed criminal, a violent background, etc. -- as the risk increases, so does the punishment -- the number of bullets increases and the number of chambers decreases.
So far, we have not mentioned the criterion of crime prevention. That is because the libertarian is not a utilitarian theory of punishment, designed to limit future crime. Rather, it is totally backward looking, to the past crime itself. It asks only what is the requirement of justice for that particular rights violation. However, as can be seen, the freedom philosophy implies a far more Draconian approach to crime than most. Crime prevention thus enters the libertarian equation not directly but indirectly. We do not ratchet up the penalties until the optimal rate of crime is reached. Rather, we allow the "punishment to fit the crime," and consider such benefits as ******ation of future criminality to be much beside the point of justice. As long as justice is done, the future will likely take care of itself.
To whom is the penalty for crime owed? It is to the victim, not to "society" or to the state, or to the office of the attorney general, or to any other such entity. As such, the victim is free to forgive the perpetrator for the crime, or to charge a mutually agreeable monetary fee in lieu of imposing any part of it. For example, the criminal may escape having to play Russian roulette by paying off the victim.
What of the crime of murder? Although this may be more complicated from the libertarian point of view, the very same model, of theft, is employed. What, then, did the murderer steal? Why, he stole a life, of course. Applying the two teeth for a tooth model, then, we arrive at the conclusion that the first tooth would be to transfer the life the murderer stole from the victim, back from him and into the body of the dead victim.
At this point, no doubt, the detractor will criticize that there is simply no way to transfer a life from the body of the live murderer into that of the dead victim. There are several ways to deal with this spurious objection. First, we are here staking out the requirements of justice. The mere state of reality at any given epoch is of no moment whatsoever; justice is timeless. Second, we can posit a machine that can do just that task. Perhaps, in 10,000 or 100,000 or 1,000,000 years science will arrive at this point. Then, for the concrete bound, there will be a way of actually attaining full justice, as opposed to merely sketching out its contours, as at present. However, this machine, whether or not it ever comes into being, can already play an important role as heuristic device. For with its aid we can now see that the life of the murderer is forfeit. Plain and simple, he took a life; he owes a life. Whether or not this can be transferred to the dead body of the victim, the murderer is no longer the appropriate owner of his own life. If it cannot be transferred to the dead victim, at least it can be given over to his heirs, to do with as they wish. Perhaps they can enslave him for life. Or hang him publicly, charging admission for the spectacle. Whatever.
Of course, with this machine, the case is more direct, at least for the first tooth. However, we need the further assumption that man is like the cat in having nine lives in order for the full panoply of libertarian justice to come into its own. Then, we take one life from the murderer in order to return it to the dead victim, as before. We take a second life from him in order that what he did to another be done to him. We still charge him for the costs of capture, we may conceivably worth a third life, and we certainly force him to play Russian roulette with as many bullets as there are chambers, which yields, for sure, a fourth life. Call it 3 and a half for one; no matter the exact number, it is a reasonably steep price.
This analysis also sheds light on so called mitigating circumstances such as accident, mental handicap, extreme youth of the perpetrator. We can now more clearly see that these are the merest of excuses to evade justice. The difficulty is that the focus is placed almost entirely on the killer. What of the victim? With the latter in the picture (whether through courtesy of the life transfer machine or of the libertarian concern with the return of stolen property), we can see not one but two people; not only the person who killed by "reason of insanity" or drunkenness, or accident, but also the victim. Given that there is only one life available, but two not merely one candidates for it, which of them is the more deserving of it? Is it the killer, who is at least somewhat responsible, or the victim, who is totally innocent of any wrong doing whatsoever? To ask this is to answer it. Consider, even, the two-month old baby who somehow finds a pistol in his crib, pulls the trigger, and kills a passerby. Who should keep the life now under the control of the baby: the infant, or the victim? It is not a matter of blame. The baby, certainly, is not blameworthy; but he did kill someone.
