Swine Flu + Nightmare = Crazy Victims' Rights Idea

I am writing this at 4:25 a.m. on Friday and I’m a bit woozy. On Wednesday afternoon, my body seriously crashed. On very short notice, my beloved spouse got me in to see to see a physician, who told me I definitely had a bad flu and the only one going around was the swine flu.

The good news is that I’ve been recovering just as quickly as I crashed. By Thursday morning, my 101.3 fever had broken, and while I still have a cough, the aches and chills are now largely gone. My body just feels extraordinarily tired. I tried going to sleep Thursday night without any cold medications.

Sometime in the wee hours of Friday morning, I started to have an extended nightmare of bad guys breaking into my house and putting me and my family at risk. The nightmare was on a repeated loop where, over and over, I would try to change the horrific outcome. Each time I would look for different tools around the house that I could use to fend off the attack.

(Besides my illness, the nightmare may have been partly induced by the recent novels of Lee Child and Geraldine Brooks that I have been reading.)

But I’m writing about this unhappy vignette because of what happened next. As I was having this repeated nightmare, I became semi-conscious so that I could direct not just my own actions in the dream but even aspects of the context. At some point, I switched from thinking about my family to thinking about a nightmarish home invasion that happened last year a few doors down from my house. My (possibly impaired) memory is that three men broke into the home, tied up a house sitter, and beat her up while she was restrained — breaking bones in her hand with a baseball bat. They caught the bad guys. But I started wondering what happened to them.

The key moment was when I started asking what rights that house sitter should have with regard to their sentence. If I were she, I would be incensed if they were only sentenced to a year or two in jail. I felt she might say to the judge, “If the punishment is just a year in jail, I should be able to break your hands and not risk a longer sentence.” But then a thought came to me that something like the cake cutting rule — you cut/I choose — might be applied to the perpetrators themselves. To my mind, legal rights are a kind of option, so the search for optimal victim rights is a search for optimal options. And the cake cutting rule is one kind of option mechanism. It induces the first person to divide the cake evenly, because the second person has the option of taking either side of the cake.

How could that idea be applied to the house sitter problem? One way would be to give the perpetrators the option of enhancing their own punishment. If a prosecutor or a sentencing judge offered them a sentence of two years, the perpetrators would be given the option of increasing their own sentence to as long as they wanted. The victim would then have the right to treat the augmented sentence merely as a price and would have the option of doing the same thing to the perpetrators as long as she was willing to accept the same punishment. Regardless of what the victim chose, the perpetrators would still have to serve the augmented sentence.

Normally, we think that criminal defendants would only want to minimize the size of their sentence. But this crazy idea makes them the beneficiary of a longer sentence because it is more likely to deter their own victimization. In the terms of game theory, it gives them a countervailing incentive to avoid bargaining for a sentence that under-deters. I’ve played around with vaguely similar option ideas as a way to resolve civil disputes (here and here), but only because of the ravages of the flu did the criminal application occur to me.

Let me be clear: I do not endorse this victim rights idea. I am starting to crash (it’s now 5:15), but I can see serious problems with it. I don’t want to live in a world that gives victims these options and, if such an option were given to me, I hope in cool reflection that I would not exercise it. This deranged inspiration falls into the category of what my beloved spouse calls “just shut up now” ideas.

But I do endorse the thought process that gave rise to it. Indeed, there is a certain continuity to what I was doing while asleep. When I was inside the nightmare I was looking for tools at hand to fend off the attackers, and when I came to, I, in a sense, kept doing the same thing. I just started looking for legal and economic tools to protect potential victims. On net, I wish I could have avoided both the swine flu and the nightmare, but asking “why not?” in the quiet moments before dawn is a kind of self-medication that calms the racing mind.

Ken Arromdee

This won't work in practice even given the assumption that what you describe is desirable.

Jail sentences are not equally harmful for all people. A jail sentence is a lot more harmful to an otherwise law-abiding citizen, who upon being sentenced to jail may lose his job (or get his resume blotted) and have to sell his house, lose his reputation, be unable to raise a family, be treated as a pariah by his friends, etc. (not to mention being less violent and therefore less likely to be treated well by other inmates, since prison hierarchy depends on violence). The criminal probably doesn't have to worry about these, especially if he's habitual, since most of them can't be suffered twice (except for the prison violence).


This is why economicsts are awesome people!


Part of the very concept of justice by a third party is that the victim is satisfied with the punishment and no longer feels the need to seek retribution. When the victimized party seeks his own justice, the punished party will feel victimized, and a cycle begins. Bosnia and Iraq are good examples. True justice needs to exceed the break-even proposition of retribution, and it needs to be done by a third party authority.


Actually, you could clean it up a little and it might even be useful.

The criminal can choose an augmented sentence in situations where the victim also may be in a position to bring a civil case. The victim could then choose to either: subject the criminal to the augmented punishment and waive a civil claim, or accept the original punishment and bring a civil claim. Is a form of justice like this already used in our justice system? Do we want to mix criminal and civil justice like this? I think that's really the question your proposal raises.


It's like when two brothers are fighting. It's best to have the parents break up the fight, or else the two brothers will keep trading blows. It would fall apart if the parent consulted one of the brothers on how to punish the other.

Rich Wilson

So if the victim opts to add to the sentence by spending some time in jail, we have two extra people in jail for taxpayers to support. There's a reason society decides the punishment, not the victim.


Dr. Ayres,

What you're describing is almost identical to talionic law, the system from which the concept of "an eye for an eye" originates. The idea was not, as is popularly believed, that if you were to poke out my eye, your eye would be poked out as well, but rather that the property rights to your eye would be assigned to me... at which point the bargaining would begin. If you could pay me an amount great enough that I would accept it rather than take your eye, then you could keep yours. It's an elegant (if now considered barbaric) way of determining the true value of the loss suffered by the victim. I actually wrote a post about this a few years ago: http://www.thereconstruction.org/2006/02/21/medieval-iceland-must-have-had-some-economists/


Eric M. Jones

The victim deciding on the punishment is unreasonable. And I can't believe we are talking about letting the victim whack the perp with a baseball bat. This is just so wrong. Perhaps the fever got to you a bit.

When Michael Dukakis (who opposed capital punishment)was asked by reporter Bernard Shaw what he would do if someone raped and murdered his wife, he should have replied. "I certainly would want revenge. I would want to kill those who brutalized my loved one. But we live in a society where we seek justice under the law. As difficult as it often is, that is the right way to go."


After reading this article
...I hope you get well soon, Ian.


Maybe I'm just being stupid, but I can't follow what's being proposed at all.


This falls foul of the problem of all things being equal.

Rather than simply settle for realistic examples I'm going to choose an extreme one. I tie you up and force you to watch as I torture your pets to death and eat them in front of you, smearing you with the messier leftovers. How exactly do you intend to do the same to me? My pets are innocent. Or they would be if I owned any.

Matthew R.

I wish all the contributors to this blog would realize that their entries are almost always interesting departure points for serious discussion, but are rarely The Answer to any of life's problems.


Hello Ian,
I'm sending you a frame about swine flu:

get weel soon!!

muscletech celltech

oh so sad, people are so scared if every one infected with swine flue than happen in social systems



Victims don't have a 'right to punish' under our legal system. They have a 'right to compensation.' The babysitter in question could file a civil suit to recover monetary compensation from her assailants. The right to punish belongs exclusively to the state, as part of the state's monopoly on violence.

Therefore, a judge isn't taking a victim's rights into concern when sentencing. He may take a look at the impact on the victim so as to determine a just punishment, but definitely not to a 'right' of a victim.

That's why the victim's 'rights' are not being violated, and cannot be vindicated in a suit against the government, if the government fails to prosecute an assailant.


Congrats on coming out of the flu cycle. I'm doing the same thing right now, though my repetitive nightmare involves customs forms whole traveling. What's with the repetitive dreams when you're sick?


Hmm...rather than allowing the victim to exact revenge, you could have a base sentence from the judge that the government is willing to pay. Then allow the victim or immediate family to pay the costs of keeping the criminal locked for an additional period of time. You could make the contact contingent on victim's income as well, it would just depend on how you want to maximize welfare.


If I understand correctly (my only source is Bertrand Russell, but then, I don't imagine the facts have changed markedly since he wrote some 60-70 years ago) at Socrates' trial the standard practice was engaged in wherein the convicted party could propose an alternate punishment to that proposed by [not sure whom exactly, effectively the prosecution I expect] and the jury (or whatever the panel was) could pick between the two sentencing alternatives.

In the case of Socrates, he proposed as an alternative to the death penalty a trivial fine. It would have been in his interest, assuming he wished to avoid the death penalty, to propose a substantial fine. The panel voted for the death penalty by a larger majority than found Socrates guilty in the first place. As told by Russell, it is presumed that Socrates did not in fact want to propose a realistic alternative since that would have suggested some acceptance of wrongdoing on his part.

This is different from the scenario proposed by Dr. Ayres of course since it is still a third party, not the victim, who makes the choice between the original sentence and the alternative propose by the convicted party.


Mike Symons

Funny, when I read about your dream and the babysitter's story, I thought you were going to segue into a discussion of gun ownership laws (and the desirability of arming non-criminals). I guess I would classify your punishment idea as an "overlooking the obvious" idea.

As for the merits of your idea, it is, it goes without saying, absurd. Criminals would never augment because they would realize that generally victims, after already being victimized, would be unwilling to then endure the additional victimization of having to go to jail to ensure that the criminal received an adequate sentence. And of course the exceptions to this general rule, would be equally perverse, for instance, where fanatics who happened to be victims of minor property crimes, imposed lengthy sentences on the perpetrators.


I don't get it either...