A Silver Lining in Unjust Executions

I. Introduction

On 8/11/03 I wrote a column for called "Second Thoughts on Drug Legalization."

I received more mail in response to this one column than to all the other ones I have written; possibly, more on this than from all the others combined. While much of it was supportive, there were numerous libertarians incensed that I favored drug prohibition. A careful rereading of my article, however, will convince doubters that I did no such thing. Instead, and very differently, I merely noted that there were benefits from the present unjust criminalization of addictive substances (some real criminals who might not otherwise have been caught are now imprisoned), and drawbacks of legalization (the government would likely attain greater revenue and it already has far too much). Despite this, I continue to adamantly oppose the present legal status of marijuana, heroin, etc., which I have done in numerous of my previous publications, and continued to do so in the column under discussion.

However, I think I was greatly remiss in the title I chose for that article. I should have called it "A Silver Lining in Drug Prohibition." This would have been far less confusing. I would like to single out Dr. Stephen Madaras for making this point to me. (In my archive, the piece has been re-titled.) Another retraction: While I was correct in characterizing Becker’s call for welfare for two-parent families as unlibertarian, I also castigated him for maintaining that this would help solve the problem of black family breakdown, and cited Charles Murray’s Losing Ground in support of my contention. I still do not believe that this government program can solve any such problem; I am of the view that it will only be worsened as a result.  On reconsideration, I can see that Becker’s proposal, however objectionable, does take cognizance of Murray’s book. I owe this point to Sheldon Richman.

While I am discussing feedback from readers, I want to say, and I think I speak for all the writers on on this matter, that one of the greatest incentives we have for contributing to this venue is the quantity and especially the quality of its readership. As I say, I have been inundated with replies to this one column, many of them highly critical. But without exception, they were well written, reasonable, erudite and knowledgeable. We authors are privileged to write for such a group of intelligent readers.

Today, I am embarked upon a column that will be even easier to misinterpret, and with still greater costs to an understanding of what libertarianism is all about. So I want to tread even more carefully, very carefully indeed. My present thesis is that there is a silver lining in the executions undertaken by the government which DNA testing has later shown were unjust. That is, innocent men were murdered by the state, and here I am, seeing some good — from the point of view of libertarianism — in these horrific occurrences.

Let me be very clear. I do not (NOT!) favor the murder of innocent people. Even less do I do so in the name of libertarianism. I think such acts the very paradigm case of a violation of libertarian principles, perhaps the worst sin against the philosophy possible, apart from mass murder of which this is but a necessary part. Yet, I persist in my claim that some good from a libertarian perspective can eventuate from such travesties of justice. To immediately see why, gentle reader, please skip down to section IV below. For those with more patience, I will first establish that the death penalty is compatible with libertarianism in section II and that this punishment may legitimately be imposed even by an illegitimate government, in section III.

II. Death Penalty Justified

The essence of libertarianism is the inviolability of the person, and of course of his property too, but that is secondary. E.g., murder is a worse crime than theft. Private property rights of the human person, and the non-aggression axiom, lie at the very core of libertarianism.

But when crimes occur, the emphasis is, properly, not on reforming the criminal, nor yet even on deterring future crime, however important are these tasks, especially the latter. No, the focus is on making the victim whole, insofar as is possible. Not for libertarianism is making the victim pay, once, through the theft, and then a second time through taxes to put the perpetrator into an air-conditioned cell, with three square meals a day, color t.v., etc. No, the goal is to force the criminal to compensate the victim. Under libertarianism, jail would be work camps, to keep the miscreants at hard labor, the proceeds of which would be used to pay off the injured party.

This scenario is a reasonable one, even for non-libertarians, when it comes to stolen cars, cash, etc. But what about murder? Here, we must venture into science fiction land, a trail blazed by Robert Nozick in his Anarchy, State and Utopia, where he introduced all sorts of weird "machines." Well, here is another one: assume we have a "machine" into which we place two bodies. One of them is that of the dead victim of a murder, the other is that of the live murderer. We flip a switch, and presto!, the life is transferred out of the latter, and into the former. That is, after our "operation," the now resuscitated murder victim walks out of the machine, and the dead body of the murderer is dealt with appropriately.

If we had such a machine, would its use be justified? Under the assumption that it was the guilty party and no one else who was forced to give up his life in this manner, it is the rare person, libertarian or not, who would object. Certainly, no one espousing this philosophy could see this occurrence as anything but a highly just one.

We have just proven that the death penalty is justified. Q.E.D. True, we have no such machine available, and might not for another 5000 years. But we have proven, by the use of this example, that the murderer’s life is forfeit. (For a far more eloquent and scholarly proof, see Kinsella.)

III. May the illicit government utilize the death penalty?

Suppose there to be an illicit government. (I know, I know, this is unlikely in the extreme. But bear with me.) Would such an institution be justified in imposing the death penalty on the actual murderer (e.g., not an innocent person)? My claim is that it would. In order to convince ourselves of this, consider a few scenarios.

  1. A steals a radio from B. The unjust government (a redundancy if ever there was one) forces A to give it back to B.
  2. A steals a life from B; that is, A murders B. The unjust government forces A to give this life back to B by forcing both the live A and the dead B into our Nozickean machine. Out walks a live B, and out is trundled a dead A.
  3. There are two equally culpable criminal gangs, the Hoods and Thugs. One day, while the Hoods are about to rape a woman, the Thugs intervene and stop it. The woman goes free.
  4. A Soviet policeman saves a drowning man (a non-bourgeois, of course).
  5. A Nazi concentration camp guard saves a drowning man (a non-Jew, of course).

The point is, no matter how illicit is the unjust government, no matter how illegitimate are the Hoods, the Thugs, the Nazis and the Soviets, in this particular one single act they are on the side of the angels. God, presumably, may strike them down at almost any time, but not at the precise moment they are doing these good deeds.

So my answer to the question is Yes, the illegitimate government may indeed execute a murderer who is guilty of that crime.

IV. Benefits of executing innocent men on death row

There has of late been a brou-ha-ha about the execution of innocent death row inmates. Gov. George Ryan of Illinois has gone so far as to call a halt to all executions in that state due to the fact that several inmates have been killed, who have been later proven to be innocent of the charges for which they were executed. (See on this: the ACLU and Rod Dreher of National Review.)

Let us make no mistake about this. No man of good will, certainly not a libertarian, can applaud such an outrage of the elementary aspects of justice. But, is there a silver lining? Is there any good whatsoever that can come about as a result of the trashing of righteousness?

There is, indeed.

Even though the man was innocent of the crime for which he was executed, he might well have been guilty of committing an entirely different murder. Many of those on death row have murdered on numerous occasions, and were only caught, found guilty and sentenced for, one such crime. Suppose, then, that A has murdered victims B, C, D, E…J. And, posit, too, that he was erroneously found guilty of, and executed for, only murdering K. Now this latter was a vast mistake; even, an unspeakable one. However, under these assumptions, still, justice of a sort has been done. A murderer was executed. True, this penalty was imposed upon him for the murder of K, and A is entirely innocent of that particular transgression. But he is guilty of murdering B, C, D, and thus richly deserves his fate.

But what of due process? Is this not an entire denigration of this bedrock of our legal system? My response is that due process is only a means toward an end, justice; it is not, and it not to be confused with, this goal itself. In the present case we are stipulating that at least some of those executed for murders they did not commit were in fact guilty of committing other such vile acts. Thus, we do not need any due process to determine this; we assume it as a fact. If it is not the case, of course, then none of these executions can be justified.

Let me, at the very real risk of repetitiveness, state that I do not welcome such occurrences. Criminals should be executed not for the murder of those they have not killed, but for their actual transgressions. However, honesty compels me to acquiesce in the notion that sometimes a sort of justice can occur even when this does not take place; when people innocent of a specific crime are executed for it nonetheless.