As I was getting at in my hard determinist therapy post, there are strong enough philosophical arguments against free will to do away with retributive justice. If we ever do so, however, that would leave some serious gaps in the categorization of criminals in my view. I therefore propose the following new categories to fill in the gaps and retain the right to take responsibility if one wants to be an enemy of the state or society. To compensate for the loss of presumed free will we need a couple new categories out of respect for the criminals, or potential criminals which means all of us so we can be better citizens and feel we are taken seriously! Instead of the two or three categories we have today (common criminals, the criminally insane and in some countries those condemned to preventive detention), we need four categories in a future without retributive justice.
1. Common criminals. The garden variety criminals of today minus the retributive aspects, sentenced with an aim towards rehabilitation and deterrence only. Burglars, muggers, egodystonic sex offenders, affective and negligent murderers, white-collar criminals etc.
2. Enemies of the state. Quislings, whistleblowers, spies, activists -- obviously terrorists, but also conscientious objectors, civil disobedients, most egosyntonic sex offenders -- basically everyone who is at least somewhat normal or claims to be and would get insulted or risk having their identity destroyed by attempts at rehabilitation. I am naturally-born into this category.
3. Enemies of society. Those resistant or averse to rehabilitation but not for political reasons. Psychopaths, misanthropes, senseless mass murderers, serial killers, sadistic egosyntonic sex offenders, the criminally insane and dangerous who refuse treatment.
4. The criminally insane. Same as those considered insane today plus perhaps some more based on a deeper understanding of pathologically determined behavior. Subject to court approval, but must be voluntary! The certified insane are to be offered treatment instead of punishment, always with an option to decline since psychiatric coercion is wrong for convicts and non-convicts alike. If an apparently insane person considers himself sane, the most the justice system can do is to consider him an enemy of society if very dangerous, or else he will be treated like common criminal or enemy of the state if he so desires.
If, for example ten years is enough to rehabilitate a murderer and reasonably deter such crime, then ten years is all he should get without retributive justice. No more harsh punishments that serve no other purpose than revenge. The current trend is in the other direction (except perhaps in the US where retributivism is already maxed out), but there are good reasons to turn this around, which is in fact what I advocate provided that we make the compromises indicated herein.
My motivation for writing this is that I as a male sexualist activist -- a conscientious objector to the war against normal sexuality -- don’t want to lose the right to be taken seriously in the event that we ditch retributive justice. I am not planning to be any category of criminal, unless conscripted to go against my male sexualist values, but it is important to state this just in case, as you never know what you can be accused of and this also applies to false accusations.
Not that retributive justice is in danger of going out of style any time soon either, but just in case it does we must pave the way for some exceptions in order to preserve the sanctity of human free will, which is central to human dignity whether it actually exists or not. It should be an inalienable human right to be treated as though you have free will if you insist!
Under my system, most criminals can choose to be convicted into the common-criminals category, which is also the default when they don't indicate other wishes. There may be some exceptions forced into the enemy-of-society category as a pragmatic admission that rehabilitation is impossible for them, and that is the only other category anyone can be forced into, but even then they have the option to be an enemy of the state instead.
ANYONE convicted of a crime can be an enemy of the state if they want, which means you CHOOSE not to be rehabilitated for political or moral reasons. These can always choose category 3 and usually category 1 if they like instead -- but unless you wanted to be an enemy of the state, better not bother going through with something like terrorism in the first place.
It is reasonable that enemies of the state and society get longer sentences, but remember, we don’t have retributive justice so it must not get out of hand either. Current punishments should be an upper limit.
How do we categorize those who keep claiming innocence after conviction? They can be common criminals too or another category if they choose and qualify. It will also then as now be that case that some convicts are in fact innocent, and it is inhumane to force them to pretend that they are guilty or apolitical or give them significantly longer imprisonment.
Since "enemy of the state" is a label selected by the convict (an unconditional right to guard against political abuse by the state against the individual), it does not guarantee that one is a better person than a common criminal or even an enemy of society. There may therefore be no difference in how enemies of the state and society are handled except that dictated by the dangerousness of the crime. There is obviously a great deal of practical difference between a terrorist and a conscientious objector, but they are morally in the same category since they offend for political reasons, and conversely it should be possible to declare yourself an incorrigible parking violator if you want to, but that doesn't mean you need to be locked up as long the truly dangerous enemies of the society.
When I was accused of criminal incitement in 2012 I was de facto put in category 2: enemy of the state, so that is good. An attempt launched by my traitorous family to put me in category 4 luckily failed. Like I said, my system will become more relevant if and when we give up on the idea of retributive justice, since my categories are sort of how it works anyway at the present time plus more retribution for everybody minus the unconditional right to criminal sanity which is sadly lacking today.
We might say that a more aggressive version of category 3: enemy of society exists today, in Norway for example with preventive detention and sometimes with civil commitment elsewhere. Preventive detention and this odious new use of civil commitment basically means "enemy of society," so the concept already exists, but it is far too draconian. I am fine with forcing some seriously dangerous criminals into the new category 3 if they don't want to be political and don't want rehabilitation or treatment, but they will get longer sentences or perhaps even the death penalty instead of indefinitely extensible detention, which is fundamentally unjust because it's easily out of proportion to the crime.
We might even say that sex offender registries, where these exist today, are a sort of enemy-of-society category. Under my system -- well, firstly such registries shouldn't exist, but if they must -- we would break them down into my categories so that the political offenders are duly recognized.
People who break the law in an extremely deliberate, habitual and/or politically motivated manner are not the same as common criminals, and we need to recognize this. While I have little sympathy for enemies of society, it is a badge of honor to be an enemy of the state for ethical reasons, and we need to make sure this right is never taken away.
As an additional consideration, I acknowledge that there are two different types of political crimes: those done to protest and those done for intrinsic reasons that one politically thinks should be legal. Examples: violent activism vs. sex offenses. My system allows for them both to be in the same honorable category where they belong.