Capital Punishment in a Libertarian Justice System

By Mike Tront

Last week I wrote about how a criminal justice system might look without government.  This week I’d like to look at death as a possible penalty in a private criminal justice system.  First, I’d like to say that I’m 100% against the death penalty in today’s world.

Government should never have the right to administer a death sentence against anyone.  First of all, government is notorious for wrongful convictions.  Second, and perhaps most importantly, there is no oversight.  Sure, there’s a court and an endless appeals process, but that’s not real oversight.  Real oversight means there are consequences for the people involved.  Today, if a prosecutor, or police officer, or judge, or jury sentences someone to death, and they get it wrong, their lives don’t change.  Not one of these people that were responsible for sending an innocent man to die is ever held liable.  Not only are they unable to be personally sued, but they can’t even be removed from their jobs!  Without a possibility of being held liable for an improper decision, no one in the court case has an incentive to truly make sure they are doing the right thing.

Is a Death Penalty Ever Moral?

The main argument against the death penalty, even in a libertarian future where there is no government to screw it up, is that it’s just flat out wrong.  At least as a punishment.  After all, I’m sure everyone can agree that it’s right to kill someone in self-defense, so as long as they are actually threatening you with death or great bodily harm.  But what about after a murder has happened?  Is it right to kill someone that killed another person unjustly?  To answer this, I defer to Walker Block:

Block poses a hypothetical.  He imagines a machine where you could put a dead murder victim in, and the live murderer in along side him, and you could flip a switch and it would take the life of the murderer and somehow put his life into the victim’s body.  So the victim would be alive again like he was before his death, and the murderer would be dead.  He asks if such a machine existed, would it be moral to use it?  Of course!  If you could cure the death of a murdered person, but only at the cost of the life of the murderer, you’d have every right to compel the murderer into such a machine.

If you can agree that this hypothetical is just and fair, then you can agree that the murderer no longer owns his life.  His life belongs to his victim, or in a world without this machine (yet), his life belongs to the estate of his victim.

When Will Capital Punishment Be Used?

Even if we can agree that capital punishment can be used, there’s still the very tricky question of when?  What if a person accidentally kills someone?  What about a case of drunk driving that results in a death?  Or maybe a simple fist fight that results in a death when someone gets punched but falls down on the sidewalk wrong?  Or how about negligence during a medical procedure?  There are endless situations we can bring up that result in an innocent person dying where there was no intent to murder.

I’d say none of these situations can result in a death penalty.  You may ask “Well smart guy, why not?  Even if you accidentally kill someone, don’t you still owe your life to him?  If you can make him whole again by giving up your life, shouldn’t you?”

My answer is a definite no.  The reason is because of liability.  In the case of me walking up to a stranger, pulling out a gun, and shooting him until he is dead, there’s no question that I’m 100% liable for his death.  Therefore, I’m 100% liable for the restitution of his life.  I can’t stop the victim’s estate from taking my life if they see fit.  But in a case of an accidental death, or some other unclear situation, my liability for his death probably won’t reach 100%.  Meaning that even if I’m found 99% liable for the death of someone, the estate can not claim 100% restitution.  My life is safe.  I may owe millions of dollars, and they may be able to compel me to pay that back through forced labor, but they can not kill me back.  I still own 1% or more of my life.

Wrongful Convictions

Like any private system, there will be profit.  There will be profit made by the courts, prosecutors, juries, lawyers and everyone else involved in carrying out a hypothetical death sentence.  I even imagine that if a murderer is found 100% liable for his victim, the estate may put him to death and stream it as a pay-per-view type event with all proceeds going to the family of the victim.  So with all this “evil” profit going around, wouldn’t there be tons of wrongful convictions?

Compared to today, we’d have much less wrongful convictions.  There can always be mistakes, and quite possibly corruption, but the big difference is that when something wrong happens in a private system there is no immunity.  If a prosecutor withholds evidence that would exonerate the accused, he is now responsible for the murder of this now innocent person.  So he’s risking a potential death sentence himself, or at the very least a tremendous restitution payment that he’d be forced to pay back for the rest of his life, just to put away an innocent person.  Hardly seems worth it.

Same with a judge and/or jury that is bribed to rule against an innocent person.  They are now personally liable for the harm they caused.

So I ask you, what system would have more wrongful convictions?  Today’s system, where judges, juries, and prosecutors can put away an innocent person with no consequences, or a private system where a wrongful conviction could result in everyone involved being put on trial themselves?

In a private system, everyone involved in the conviction of any criminal would have a tremendous incentive to get it right.  After all, their job, money, freedom, and possibly life is at stake if they get it wrong.

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