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173



[Get Opera!]

THE LIBERTARIAN ENTERPRISE
Number 173, May 13, 2002
YOU'RE ON MY LIST

The Death Penalty: Cruel and Unusual Punishment,
Or Societal Self-Defense?

by Patrick Martin
warhawke@ameritech.net

Exclusive to TLE

Now, for the record, I do not support the death penalty as currently applied in America today. The system, excuse me, the multitude of systems currently used to determine whether or not capital punishment is warranted or will be applied tends to be both capricious and illogical. Additionally, a number of so-called ‘Capital Crimes’ consist of acts carried out against the State or in contravention of State authority which would not be considered ‘mal in se’ if carried out against an individual or lesser group. Thus, in this article I will discuss the death penalty as a general concept rather than its current application.

I have noticed that a number of Libertarians (the esteemed founder of this publication among them) are very much against the idea of Capital Punishment. Many seem to feel that the killing of a person for the commission of a crime, no matter how heinous, by the state, is inconsistent with Libertarian principles. I find this notion rather misguided, especially considering that the use of lethal force to defend lives and property is a fundamental part of Libertarian philosophy. Yes, I understand that rights are not cumulative, and that the community at large has no more or greater right to pursue any course of action than does any individual. However, I submit that the community, in the form of a properly limited government, has no less of a right to act in defense of its members than does any individual within it.

In the context of this article I would submit that there are a very few crimes which warrant the elimination of the individual, or individuals, who carry them out. Chief among these would be Rape, Murder (being the unjustified killing of a sapient being), and Arson (but only when carried out with depraved indifference to human life), or the obvious attempt to carry out these crimes. While other specific crimes might be included, they would have to be of the same clear-cut and unambiguous nature. The motivations for these crimes, the status of the victim, or other factors, are to me immaterial. The killing of a person without justification is murder, whether the victim is the President of the United States or Joe the wino is immaterial.

Neither should many of the so-called ‘mitigating factors’ be considered. Mental illness or ‘diminished mental capacity’ is no excuse for these kinds of acts. That a person is not of their right mind when they commit such a crime is no more than self-evident, as the Zen proverb tells us "Conflicts of right and wrong are a sickness of the mind, for when right action is known, how can there be conflict?" The capacity of an individual to commit a crime of this type should be considered a demonstration that the person is unable to conform to the most basic rules of the community and thus presents a hazard to all members of that society. Such a peril must be dealt with if the safety of the community is to be restored and whether that menace comes as the result of a deranged mind is irrelevant.

The idea of deterrence is another nonissue within the context of this discussion. While I admit to the possibility that the threat of loss of life might cause some portion of those inclined to criminal acts to reconsider doing so, this is not a proper concern. The only person I wish to deter is the one person who has demonstrated the inability to conform to societies penultimate rules, ie. the condemned. The person who commits a rape or a murder has shown his or her contempt for the lives of their fellow human beings and their continued existence represents a clear and present danger to all other members of society. Just as a dog who has bitten someone without provocation is killed to prevent a repetition of that act, or the possibility of causing greater harm, the killing of a human being who has demonstrated a criminal disregard for another should be no different, either in concept or application.

Libertarians feel that if a person is attacked, that person has a right to use any force necessary to defend themselves. The problem is that often, despite everything that victim does, the attacker succeeds and escapes. I do not believe that success in such endeavors should be allowed to prevent punishment. Not that I imply that others believe this specifically, but the idea that a proper retaliation should consist of shunning the individual in question until they agree to make restitution (as if such would be possible) is to take naivete to a new level. A society which allows the truly criminal person to exist, assuming that once this person is identified others will refuse to trade with them, is assuming that the law of supply and demand can be ignored. While the majority may indeed refuse to treat with such a person, there will inevitably arise a segment of society which will see a profit in suppling the needs of such criminal types, at a hefty premium. In truth, we must all recognize that the existence of the criminal (the true criminal, not simply those who refuse to accept the arbitrary whims which politicians and bureaucrats call law) represents a danger to society and every individual within it. While the petty criminal who steals the property of others without violence might yield to ostracism and repent of his or her crimes. The Ted Bundy’s and Jack the Ripper’s of the world will place every citizen in jeopardy if allowed to exist, this kind must be removed from society on a permanent basis.

Once we realize that we must remove this kind of person from our community, what in a Libertarian society what are our options for doing so? Incarceration, you say? Well, does a society based on the principle of individual sovereignty have the right to deny basic freedoms to any individual for any reason? If so, how will this confinement be paid for, and by whom? Perhaps some might favor "Coventry", a place where persons who commit crimes might be exiled to exist by any means available. However, if we banish people to exist away from the rest of society and therefore away from the normal, material means of basic survival, do we not then have an obligation to provide those means (food, water, shelter, etc.) or are we not simply trying to avoid the taint of killing them ourselves by allowing nature to do it for us? I won’t even discuss the idea of behavioral modification because, simply put, either it will be prone to failure, negating its usefulness, or it will be so drastic as to be little more than the murder of the individuals’ personality as opposed to their body. I for one see little moral difference between killing the who of a person and destroying that person bodily. Additionally, should this become an option where will it end? If we can alter a persons mind to the point of conformity to our standards of behavior, will we not inevitably face the day when others decide that the idea should be extended to all citizens to insure conformity to some universal standard?

In the end it comes down to a matter of which we hold to be more important, an individual who has demonstrated contempt for the lives of others, or the innocent victims who stand at risk if we allow known killers and rapists to exist within our society. I submit that killing such persons are the lesser of two evils. A society is a collection of individuals who gather together for mutual benefit and those who consciously act to grievously harm or kill other members of that group are owed nothing by the rest, including the right to exist at all.

By the same token, the guilty party has no less of a right to exist free of coercion by others. I know that seems paradoxical but I hold it to be otherwise. Human beings have free will and should be allowed to exercise it. If they should choose to harm or kill their fellow human beings, we do have the right to remove those persons from our midst permanently, but I do not believe we have the right to enslave anyone, which is what any form of compulsory imprisonment amounts to. I’ve heard it said that in ancient Rome a free man might be crucified but that he would never be chained, because chains were the mark of a slave. While I cannot verify the historical accuracy of this, I do believe that it represents a basic truth, to deny a man freedom is a far greater crime than to deny him his life, no matter what the justification.

If you are attacked and kill the attacker, the moral responsibility for that death lies with the aggressor. If that attacker escapes the immediate consequences of his or her actions and is found later, the elimination of that person by society is no different. We are each, as individuals, responsible for our actions and for anything which occurs as a result. We, as a society, must act to defend all members of our society, and do so in as fair and equitable a manner as human imperfection permits. To that end we establish a simple and objective set of rules governing the behavior which is expected from the member of our society. Those who violate the rules should pay a penalty and if they break the ultimate rules they should pay the ultimate price, anything less places the burden on the rest of society instead of on the individual to whom it belongs.


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