Thursday, August 18, 2011

Christine Smith: Lethal injustice

  No political philosophy respects human rights, individual liberty, human dignity, and life itself more than libertarianism. Yet, one of the major civil-liberty controversies present in our society is largely ignored by libertarians: capital punishment.

  In 14 years of involvement in the anti-death-penalty movement, I have rarely met libertarians involved in the issue. Most concerned with it have been from the left “progressive” political spectrum, with the occasional, but rare, conservative who viewed it as a “pro-life” issue.

  It would seem logical that libertarians, more than others, would care about an issue as grave as the state-sponsored or state-ordered death of its own citizens. So why is it practically ignored?

  Perhaps the reason lies in the highly emotionalized reactions each of us has when contemplating the heinousness of some of the most egregious violent crimes. But does the horridness of a crime justify pushing libertarian principles aside, so that state-sanctioned killings can take place?

  As libertarians, we believe in the noninitiation of force. We also believe that the only legitimate role of government is to protect our life, liberty, and property from those who would use force against us to take these from us. This allows for self-defense: the use of appropriate defensive action necessary to stop another’s aggression or to stop the violation of personal rights, but no further force.

  The difference lies in the use of defensive force, consistent with libertarian principle, and offensive force which is a violation of the inalienable right of every individual. Capital punishment goes beyond the force needed to subdue a criminal and protect society. It enters the realm of permitting government, on behalf of the people, to become the aggressor by executing people solely for retribution. The force of the state then exceeds that of self-defense, as it becomes the perpetrator of the premeditated, cold-blooded killing society says it rejects.

  Some say capital punishment protects society from the future possibility of violence from the criminal. This is a specious argument. The principles that lead libertarians to oppose preemptive military strikes must also be applied to individuals. A libertarian does not condone the use of force or punishment for some presupposed imagined violent act of the future. Nor can the putting to death of one person be justified by whether that execution may have a deterrent affect. To do so is to unjustly use aggression against one, with the expectation that it will prevent aggression from another in the future. Again, such use of force is anything but self-defense.

  Justified killing occurs only at the time one’s right to life and freedom from bodily harm is threatened. Once apprehended, judged, and incarcerated (including the enforcement of a life-without-parole sentence), a violent criminal no longer poses a continued threat to society. Thus, the killing of such an individual serves nothing but to assuage the emotions of vigilantism.

  Vigilante “justice” is not the justice of a civilized society seeking peaceful coexistence. But emotions run high, and rightly so, as citizens are repulsed at the incredible depths of evil some have perpetrated. In human emotionalism lies our fallibility. Emotions must not be allowed to determine the ethics of an action. For this reason libertarians must, without exception, defer to the principles they have accepted to guide them, so that emotions such as strong anger and revenge are not allowed to cloud judgment and objectivity.

  Moreover, why would any libertarian, even if he believed that a sentence of death provided justice, trust the state in all its incompetence, error, costs, and corruption to take the lives of its citizens? Arbitrary and capricious, the death penalty has become a tool to advance political careers, as well as simply being the sentence for those unable to afford private counsel. Often, rather than due process, racial and economic bias determine justice or lack thereof in the criminal-justice system. Since 1973, some 130 death-row inmates have been exonerated and released. The possibility of mistakenly executing an innocent defendant, and the irreversibility of that punishment, is an unacceptable risk for anyone who values liberty and individual rights.

  Add to this the fact that juries across the nation do not consist of a true cross-section of the community. In jury selection, jurors will be excused from serving if they admit opposition to capital punishment (a question asked during jury selection in capital cases). The result is juries that are disproportionate and unrepresentative of their community. According to a National Omnibus Poll conducted by RT Strategies for the Death Penalty Information Center (DPIC) in early 2007, “Nearly 40% of the public believes that they would be disqualified from serving on a jury in a death penalty case because of their moral beliefs.” Moreover, subsamples within the same poll, though with a larger margin of error than the overall poll, clearly demonstrate underrepresentation of specific groups of people, with “over two-thirds (68%) of African-Americans in [the survey believing] they would be excluded as capital jurors; 48% of women reached the same conclusion, and 47% of Catholics.”

  Although I was once a strong proponent of the death penalty, upon closer examination and introspection, I realized that state-sanctioned killing, death instituted by the government, is in itself unethical. Whether it’s the execution of an individual guilty of a crime and in accordance with a death warrant, or the massacre of men, women, and children innocent of any violence, but whom the government claims grievance against, the decision of life and death is too great a power to be given the state.

  Thus it is just as wrong for the government to execute those such as Timothy McVeigh or Ted Bundy as it is to use deadly force against those such as David Koresh and his followers or Randy Weaver and his family. The power of government to kill citizens who pose no direct immediate threat must be fundamentally opposed and subsequently revoked in all cases. It cannot, in good conscience, be tolerated on a case-by-case basis.

  Punishments meted out by the state change as societal morals evolve. Society has changed both in its moral assessments and technological advances (for execution and incarceration), making that which was deemed just and necessary for public safety in early America, inapplicable now. Today, when offered the alternative of a sentence of life without parole, many people exhibit ambivalence about the death penalty. Support for it diminishes greatly when people are assured that a life sentence would mean just that: a prisoner spends the rest of his life incarcerated.

  Save for self-defense, the only other just execution would be one that is impossible: a truly restorative justice (one in which the taking of the murderer’s life for example, would bring back that of the victim). Barring that, the unnecessary taking of human life is not a prerogative for those who value human life. Evil does not justify evil. Nondefensive killing by the state is an injustice whether implemented against one or many. Like other unjust uses of violence by the government, whether internationally (such as in unconstitutional wars) or domestically (such as the drug war), capital punishment cannot be rationalized or justified dependent on the situation. It is neither moral nor ethical in today’s society in the United States.

  As Pascal Clément, the French Keeper of the Seals, Minister of Justice, said at the Sealing ceremony for the Constitutional Act of 23 on March 28, 2007, in Paris, “Human life is inviolable and sacrosanct. No woman, no man can be reduced to the atrocities he or she has committed. Each has, above all, a bit of humanity we must protect, keep alive, at times save. A society is judged on its members, but also on its rules. Killing other men and women is not a rule appropriate to an advanced society.... You do not respond to horror with barbarity. Our principles do not stop at the gates of conflicts.”

  The death penalty is inconsistent with libertarian principles. It is the ultimate denial of civil liberties, a draconian punishment that will remain as long as indifference to this human-rights violation remains. Law and justice are not always synonymous, and this is where libertarians must challenge the law. Advocating individual liberty and limited government requires putting an end to the lethal injustice of the killing state.

  Abut the author: Christine Smith is a writer from Colorado. You may visit her website:

  This article was published by The Future of Freedom Foundation.

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