The Libertarian Case Against the Death Penalty

It happened again. Last
week another prisoner on Illinois’ death row was exonerated after new
evidence (DNA tests in this case) proved someone else committed the crime.
This is getting to be a habit in Illinois. Since 1987, an average of one
death row inmate every year has been cleared of the crime for which they
were sentenced to die in Illinois.

In the current case Ronald
Jones, 49, had been sentenced to death for the brutal rape and murder
of Debra Smith, 28, in March of 1985. Blood tests introduced during Jones’
trial demonstrated he might have been the killer, but what really cooked
Jones’ goose was a confession he gave police admitting he raped and murdered

During his trial and numerous
times during his 12 years of incarceration, Jones maintained he signed
the confession only to stop the beating he received from the police assigned
to interrogate him. Of course now that this “confession” has been proved
to be false, Illinois prosecutors quickly announced they weren’t going
to bother to investigate Jones’ charges that he was assaulted by police

In fact, even though Cook County
prosecutors announced on May 18, 1999 that they wold drop all charges
against Jones and not retry him, the test results on sperm taken from
Smith that proved someone other than Jones raped her was completed in
1997. Prosecutors kept Jones sitting in an Illinois jail for two years
while “investigating” whether or not they wanted to retry Jones for Smith’s
murder after the Illinois Supreme Court threw out the conviction in July

There’s nothing like speedy

Jones is certainly no choir
boy. Rather than being released from prison, he will be extradited to
Tennessee where in 1980 he walked off a prison work release program while
serving a sentence for armed robbery. But at the same time neither was
he a murderer, and without innovations in DNA testing and the numerous
delays in carrying out capital sentences that law and order types despise
so much, he almost certainly would have died for a crime he didn’t commit.

This outcome should be no
surprise to libertarians — the state is just as inefficient at ensuring
the people it sends to their deaths are truly guilty as it is in delivering
any other good or service. In other words, barely one step above what
well trained chimpanzees could do. Should it really come as any surprise
that the same government that can’t provide decent schools for children
or properly maintain roads can’t be bothered to make sure people on death
row are really guilty?

Certainly most people who
consider themselves libertarians wouldn’t hesitate to point out the abuses
of the police power that the modern Leviathan state makes all but inevitable.
The drug war tends to create and reinforce racial stereotypes among police
as well as alienate officers from the people they are supposed to protect,
creating a strong us vs. them culture in many jurisdictions. Police officers
and chiefs often turn around and become the primary advocates for banning
all sorts of consensual activities from pushing for stronger drug legislation
and more resources to go after drug users to strong opposition to citizens
arming themselves with concealed weapons. It is no secret that significant
numbers of police officers see themselves as above the very law they enforce.

But would simply eliminating
the corrupt laws, police officers, prosecutors and judges be enough to
prevent miscarriages of justice as almost happened with Robert Jones?
Perhaps if we lived in a libertarian paradise where government was minimal,
billions of dollars wasn’t wasted on the drug war, and the state respected
people’s Constitutional rights, the justice system would get it right
and the odds of an innocent person going to jail would be almost nil.

Perhaps. And perhaps in this
world of minimal government things would also be so wonderful that nobody
would really need to own a handgun for personal protection, thereby making
gun control a viable proposition (since the state is minimal, after all,
what harm can it do to the gun owner or innocent man?)

Just as most libertarians
would object to the claim that a truly just government would obviate the
need for gun ownership, so they should reject the notion that the state
should have the right to kill its citizens as an officially sanctioned
penalty for crimes such as murder.

This should not be taken to
mean that the right of individuals or agents of individuals, including
the state, lack a right to defend themselves against an imminent danger.
People certainly have the right to kill other people who pose a direct
and immediate threat to their own safety, but once a criminal, even a
murderer, is in custody and placed on trial he or she rarely poses such
a direct and immediate threat. Killing him or there, therefore, is more
akin to cold blooded murder than an act of self-defense.

Similarly, this should not
be taken as a call for the sort of coddling of serious criminals advocated
by some misguided activists (usually of Leftist persuasions). A prison
system that wasn’t bogged down with the overwhelming number of drug and
other consensual crimes could easily handle the permanent, lifetime incarceration
of those who intentionally commit murder. Those falsely accused of such
crimes could be released and compensated by the state when the error is
brought to light — an option unavailable to those killed by the state.

The historical record of the
20th century is quite clear that giving any group of people
the power to kill those who don’t pose an immediate and direct threat
inevitably leads that group to apply its power against the innocent, whether
intentionally or not. The power to kill those who don’t pose a direct
and immediate threat should be one firmly opposed by libertarians.

2 thoughts on “The Libertarian Case Against the Death Penalty”

  1. I was very interested to read how you would approach the death penalty, e.g. what your main argument would be. I know little about the American Justice System but I’m curious about your statement “This outcome should be no surprise to libertarians — the state is just as inefficient at ensuring the people it sends to their deaths are truly guilty as it is in delivering any other good or service” However in this case, (especially if we ignore the potentially forced confession), isn’t the guilty verdict largely the fault of the jury, and the defendant? The defendant wasn’t able to defend himself properly, and the jury made the final decision. We don’t know that the confession was forced (it seems likely now, but the jury didn’t have that knowledge then). Exactly what role did the state play in him being sent to death row? Obviously, the police must arrest some innocent people.

    Indeed, doesn’t the argument that we shouldn’t punish people because we can get it wrong, apply to all punishments? You can say the death penalty is irreversible, but how reversible is 25 years behind bars? (obviously more so, but still not entirely, or in my view, significantly).

  2. The above poster makes a good point, one which I thought of as well. But I also agree with the original argument. It seems like an almost paradoxical issue.

    I agree that we cannot assume a person convicted a crime is actually guilty. Human fallibility, whether it be in free market courts or government ones, in smart juries or dumb ones, will always exist. People will always make mistakes. For that reason alone, we can never assume that the convicted individual is actually guilty. For that reason, they should forever be allowed to present evidence that would change their verdict, and be compensated for time spent in prison.

    If you spend 25 years in prison, and are released, you can still try to prove your innocence and be compensated for that time if it is found you are not actually guilty. The death penalty robs all individuals of this chance, which is how I distinguish it from Bill’s example about all other punishments.

    Yes, you can and should apply the argument to all other punishments. But death penalty is the only punishment where you can never be compensated if wrongly convicted, which is why it should not be considered a just punishment.

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