"Then they can count on a quick and painful bankruptcy.
In fact, they may as well take the capital spent on and burn it."
I agree with this. This subsidization of murderers is akin to the problem with the “right-to-lifers” and the environmental communists. As a maximum punishment for murder, taking the murderer’s life is certainly justified. If people want to keep a murderer who refuses to take any steps toward retribution alive, the costs will have to be taken upon the victim who offers this measure of forgiveness or some organization like “Friends of Murderers”, to buy out the victim in return for the murderer’s freedom.
David Friedman makes an excellent point on the economics of capital punishment. When a robber knows that he might face life in prison for his crime, but the punishment is the same for murder, he is more apt to commit murder, if necessary, in order to aid his attempt at robbery.
In terms of property damage, there can be a mixture of theft and destruction. If a thief destroys of consumes some thing and has no assets to be seized, the victim is faced with the possibility of total loss (and of course many will be interested in being insured against these cases.) We have a practical limitation regarding murder that a victim’s life cannot be restored. Although the life cannot be transferred, it can still be owned legitimately by the surviving kin. This means that the murderer is enslaved, and the kin may legitimately punish the murderer as they see fit. The kin might find satisfaction in torturing and killing the murderer, but maybe they prefer reparation. The security market is thus likely to develop standards for weregeld or “blood money”.
If the kin prefer weregeld, the murderer has a bargaining chip in that while his body may be imprisoned, his will, again as a practical consideration only, cannot. The murderer can choose to continue his violent behavior, rather than working to possibly buy his freedom. In this case, the owner is faced with not only total loss but an increasing liability. A lot of workers might prefer flipping burgers to herding prisoners who want to kill their jailers and toss feces at them. Victims have no obligation to provide anything to such folk.
The actions of the juror can’t be left out of the equation. If a security firm is unsure if it may face future charges for killing an innocent man, it will be less likely to act in such a way, but, for now, we can assume that this firm acts with a sufficient amount of certitude with regard to the criminal’s guilt. In cases less serious than murder, the necessary risk-benefit analysis becomes even more important. The issue of partial-slavery, or the question of what means a penal system may employ in certain situations, becomes more complex.
If a prisoner expresses interest in making reparations in return for his possible future freedom or his life being spared, the costs of this procedure are, at least as a starting point, the responsibility of the prisoner. Proportionality divides into at least 3 basic categories. To what degree the criminal posed a risk to the victim necessarily remains always a matter of history. Evidence regarding the circumstances and the history of the criminal may serve as a guide, but the juror qua historian’s judgments are always colored with his own prejudices and are insomuch arbitrary. If the evidence shows that a homogeneous good, say an ounce of gold, was taken with intent, it is easier to say that the proper procedure for “turning back the hands of the clock” and the transaction, of which the victim was an unwilling participant, must be completed by both the ounce of gold being returned, twice over as what was done by the criminal can be legitimately then done to the criminal. The matter of the actors’ subjective valuations, for instance in the case of rape, add further complexity to this category.
Finally, the category concerning the penal system is that of the “costs of capture”. More accurately, the criminal at this point has been captured and judged, so the penal system is tasked with “recapturing” the, hopefully agreed upon by both victim and criminal, compensation. If certain amenities are necessary to secure the cooperation of the criminal, the jailer might decide to provide such. For sure, this presents a a picture of a very different prison system in a future free society.