I have never been to Illinois, where the decision has been taken by an out-going State Governor to pardon four convicted murderers and commute the sentences of all “death row” inmates to life prison sentences. Unlike some libertarians, I see nothing especially wrong in a court sentencing a person to death for a crime. I would prefer the court not to be an instrument of the state. But more important than who pays the hangman’s wage is the question of due process and presumption of innocence.
Assuming that a person cannot be charged without evidence having been presented to a magistrate or (better) a grand jury. Assuming that the charge is for a crime: murder, as opposed to not wearing a seat belt in the back of a taxicab, or having a cardboard cutter in the trunk of one’s car, or other bizarre regulations of the ‘welfare’ society. Assuming that the suspect is made aware of his rights: to silence, to legal counsel, that any statement made to police may be used. Assuming that the accused is presumed innocent until convicted, has the benefit of not having to assist the prosecution, or even presenting no evidence to the court if he so wishes. Assuming the right to trial by jury (although in France there is the oddity that murder suspects prefer to be tried by a panel of judges than face juries, who tend to convict killers and whose verdicts cannot be easily appealed against). Assuming the right of appeal in the grounds of error, mistrial, new evidence.
Despite all these safeguards, which certainly no longer exist in the United Kingdom, there will always be miscarriages of justice so long as there are incompetent, corrupt or simply mistaken criminal investigations. As a libertarian, I take the view that individual people are not to be used without their consent and in violation of their lives, liberty or property as the means to other people’s ends, unless they have forfeited such rights by initiating agression against other people. As far as criminals go, there is no problem, they have declared war on society: violating the rights of their victims. But a wrongly convicted person is the victim and the culprit is the legal process that resulted in the error of justice.
There is a defence from the charge of murder, where the accused believed that killing the victim was a necessary act, even if this belief was mistaken. But such a defence is dependent on being a able to sustain a credible plea that one wasn’t reckless: shooting at passers-by at random in the street because one of them might be a mugger is plainly not justifiable.
In the same way, I cannot support the application of the death penalty in any jurisdiction where there is evidence that a wrongful conviction may have taken place. Governor Ryan would have felt doubts about this when he reprieved a convicted killer who was exonerated within 48 hours of being executed. At least if a person serving a life sentence is found to be innocent, we can release him, say sorry, and negotiate some sort of compensation. This is – to say the least – difficult where the hangman’s noose has come into play.
“I would prefer the court not to be an instrument of the state. ” Pray tell, whose instrument should the court be? Libertarians lose me when they start arguing for private armies; now private courts as well?
You should read The Machinery of Freedom by David Friedman.
Chapter 29 in particular describes how private police and courts might work.
From Illinois, where I reside, this whole affair has a strange feel to it. Ex-Gov. Ryan is a fully corrupt politician, but his stand on the death penalty is apparently the single attack of actual principles in his entire sorry life. His government is a sinkhole of crime, but it would appear that the one death warrent he did sign gave him a serious case of the willies. Of course, the fact we had 14 condemned men found innocent in a few years might explain that.
The difficulty is that alongside some very questionable cases, of near retarded criminals, of probable tortured-induced confessions, are undoubted murderers. One man whose sentence was commuted cut open a near-term pregnant woman so he could give her baby to his girlfriend. He murdered the victim’s 10 year-old daughter and 6 year-old son. The boy was forced to drink bleach before he died. The baby was found in the couple’s possession, and the girlfriend ratted him out. There is no doubt that he committed these foul acts. His sentence has now been changed from death to 50 years of oral sex at taxpayer expense.
Seven of the men with commuted sentences committed their murders while in prison. It was an intellectually barren exercise. If it had been case by case, ok, but all of them? Not one of them deserved the legal and proscribed punishment for their crimes? All this does is call into question the pardon and commutation powers of the governor. It does nothing to advance the anti-death penalty arguements.
I blogged HERE.
I call this the equivalent of a spite painting. You know, the guy in the neighborhood who paints his house Day-Glo orange. He legally can but it’s not very neighborly. The Pompous Pimple gave Illinois the finger on his way out of Springfield.