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Source link: http://archive.mises.org/13249/the-libertarian-position-on-capital-punishment/

The Libertarian Position on Capital Punishment

July 13, 2010 by

Libertarians should advocate capital punishment for all cases of murder, except in those cases where the victim has left a will instructing his heirs not to levy the death penalty on any possible murderer. FULL ARTICLE by Murray N. Rothbard


jl July 13, 2010 at 8:58 am

Interesting how someone could buy his way out of punishment–but only if the victim or his heirs agree to this. One can imagine the accusation that the rich could commit murder with abandon, but they still risk the possibility that the victim chooses to inflict full punishment. And as Rothbard points out, the matter is really only the business of the perpetrator and the victim, not of “society”. So what deal is worked out is up to those involved.

I can still see how some might argue against just setting a murderer free because a pacifist victim chooses not to punish. Who would want to live next door to such a criminal? But then we get into things like social ostracism, freedom of association, even restrictive covenants that deny residency to such types of criminals. More groundwork needs to be laid in protecting contracts and property rights for the whole thing to work. But one step at a time….

Curt Howland July 13, 2010 at 10:23 am

“But one step at a time…”

Indeed. Getting to private arbitration would help in finding better ways to deal with criminals, including murderers, will allow for innovation in sentencing I don’t believe it’s possible to understate how that would improve things.

Ash Navabi July 13, 2010 at 12:25 pm

In Islamic law, the family of a murder victim is free to forgive the murderer, ask for a death penalty, or ask for monetary compensation. There are fixed rates for monetary compensation, though, and depending on the country, can differ based sex, religion, and time of year the murder was committed.

wastate July 13, 2010 at 4:04 pm

It is interesting that the rates are different for different classes of people; a concept not dis-similar to a death penalty sentence based on whether the victim was a government official or not. Simply sentencing based on a more broad categorization of society.

Jokingly….I wonder how much my wife would settle for if someone off’d me????

Ryan July 13, 2010 at 9:30 am

Interesting argument, but I note that it hinges entirely on the belief that the actors can determine with certainty whether the person prosecuted/convicted is in fact the actual murderer.

A good first step.

iamse7en July 13, 2010 at 2:06 pm

This argument is now being used by Ron Paul to explain his relatively recent change on this issue. The thing is, this same argument could be used to the punishment of spending decades in prison. Capital punishment cannot be reversed, but neither can spending 30-40 years in jail (when they finally exonerate the supposed killer). You could make this argument for making any punishment at all. I guess this gets into the argument whether it’s worse to spend 40 years in a U.S. prison, or to be sent into the after-life. Perhaps the victim’s family should have some say on this.

I’m with Rothbard. Society relies on the rule of law by allowing Justice to be served. I think our current system of capital punishment is corrupted, but I support the death penalty on the bases of civil rights and justice for the victim.

Gil July 13, 2010 at 9:42 pm

I agree. So are some people going to be total pacifists because they don’t want to risk an innocent person being wrongly convictly?

Shay July 14, 2010 at 12:06 am

You can’t be a partial pacifist, just like a woman can’t be partially pregnant. And if someone is a pacifist, innocence isn’t the question; he would be against the death penalty, period. I’m giving you the benefit of the doubt, since you seem to have used the term “total pacifist” as an insult, rather than a description of a person’s principles.

Gil July 14, 2010 at 3:12 am

A total pacificist would theoretically be against all punishments not just the death penalty because all punishments mirror a type of crime (jail vs kidnapping, fine vs theft, corporal punishment vs battery, etc.). Not to mention the risk of an innocent person getting punished regardless of how small the punishment is.

DW July 13, 2010 at 9:34 am

Rarely do I disagree with Rothbard, and this is one of those disagreements. While I do agree with Restitutional Justice, I don’t agree with the notion that an aggressor surrenders his rights when he violates the rights of others. Haven’t we all agreed to this point that these are Natural Rights, rights which are ironclad and irremovable without the consent of the person in question? From what Rothbard had argued, it all seems periously close to Vengeance than Justice, which has more to do with consoling the victim than undoing the harm that has been done.

It is possible for a murderer to be punished without violating his natural rights. Simply being marked as a murderer in the first place in public means he will likely be economically exiled, if not completely exiled. In the theoretical world of anarchistic Libertarianism, such people would have a tough time affording insurances of any sort; their life would likely become short and painful. The good news is that in such a world there are plenty of avenues to regain trust, even for crimes as monstrous as murder, although they would always be tough. In prison, or in this case capital punishment, there is no avenue to productively regain the trust of the local community.

Sure capital punishment can deter future crimes but with human beings as imperfect as they are, I don’t think its wise to let them take away lives not rightfully belonging to them. Innocents could always be caught in the crossfire, as too often they have.

Ryan July 13, 2010 at 9:53 am

Yeah. I think I agree with you. Well said.

Matthew July 13, 2010 at 10:33 am

I don’t think that argument holds up. If I steal your property, how is it not a violation of my “natural rights” for you to seek retribution by confiscating a portion of my property? At some point, to some extent, you necessarily sacrifice certain rights when you commit a crime.

You can argue the extent of those rights, but to say they are all fixed and immovable doesn’t work.

iain July 13, 2010 at 10:41 am

Forgive me if this is complete drivel.. (or i just repeat you)

It’s tricky (of course) because the victim may be of the opinion that their only possible consolation is the murderers death. Perhaps that’s not a reason for removing the murderers Natural Rights – i like that idea anyway.

Does it work? the murders exile till death or someone takes pity seems like a situation where desperation would push them into more crime.

Or, if they murdered someone society hates and society instantly forgives/praises isn’t there a problem?

The difference between vengeance and justice isn’t clear to me. Vengeance that is just (and depends on the individual victim) is perhaps the goal?

In a society that accepts capital punishment, if a person was executed and then they were discovered to be innocent can/should the executioner/judge/jury then be executed for taking the innocent persons life? Surely it would be used sparingly?

I really like the idea of being able to stipulate that the death penalty isn’t used in the case of your own murder.

StrawVince July 13, 2010 at 3:37 pm

Instead of talking about rights, I would rather talk about free will as it is to me the fundamental principle from which can be inferred rights. We don’t have the “right to live”. It is just that nobody can violate our free will and if it includes life, then it can’t be taken (this obviously implies that it could if agreed so).

In this context, I wouldn’t say that Murray Rothbard is wrong. I would just say that he wasn’t looking at the “big picture”. I wouldn’t say that by violating someone’s free will, one loses a portion of his own. I would rather say that in such a situation, balance is needed. Infringement upon free will is taking away the opportunity for the victim to make effective use of free will. To this loss of opportunity should match a proportional loss of opportunity for the one held responsible. Which is lost is not free will, but the opportunity to use it.

The argument of death penalty in case of murder perceives that as one has caused to the other the loss of all his opportunities, balance requires that he should lose all of his own. This is incorrect. The loss caused by the murderer extends to all opportunities that any individual could have had with the victim. The proportional loss undergone by the murderer should then be balanced around the entire loss caused by his violation. It is quite obvious that we can’t evaluate this correctly.

I realize that putting it that way, it may seem that death penalty is even more obvious and that the punishment should be even worse if possible. But that’s not the case because we can’t evaluate the total loss of opportunities to which the murderer’s dead will lead. It could be more. It could be less. We can’t know. Death penalty is quite a risky business, even more if we consider the possible loss of all opportunities of an innocent. This risk could be balanced with the one of deterring further murders, but, again, we can’t know the result.

So, as always when in the unknown, it is a matter of choice. I personally choose to be against death penalty, and my choice is even stronger as I realize that alternative ways of balancing exists that could bear the potential for even more opportunities that which were lost.

One of these ways has been pointed out by DW, and I rejoin him on this action to take, even though I am aware (I’m sure he is too) of its limits (notably that one could very well not have noticed the information). I would say that the goal to achieve it to maximize the opportunities for everyone to experiment the use and consequences of free will. In fact, I’m pretty sure that pinpointing a murderer would result sooner or later in his murder. The difference with “automatic” death penalty is that everyone has the choice: forgiving (with or without conditions) or sentencing (with or without conditions).

I would also add that I disagree with the concept of “forgiveness from the victim means forgiveness from all”. Indeed, it would disable those whose use of free will would be unforgiveness (and maybe revenge) and would therefore be an unnecessary infringement upon their free will.

Is it an utterly naïve way of thinking? Well…probably yes, if we consider it in a unified world. However, it isn’t if we consider multiple communities, pinpointing (or marking) and forgiveness with conditions (where a condition could be the unanimity of unconditional forgiving). It is a shame to have to see in separation the “condition to make things work”. However, those who separate are those who chose to and it results in a shift in their opportunities. From their point of view, it is most probably a loss in the short term, but the result in the long term is quite uncertain. From “our” point of view, it would be both a loss and a gain (the loss of a member, the gain of safety) in the short term with also uncertainty about future. The balance is in this uncertainty and should, in my opinion, be accepted.

DW July 14, 2010 at 11:02 am

Thank you StrawVince for the remarks. Indeed, I am well aware of the limitations of the theoretical insurance-based world of anarchistic Libertarianism. Heck, I’m a Criminal Justice major and so I can attest that no Justice system will be perfect. Yet I do believe it is a more productive and peaceful one than the one we have now.

In response to Mathew, in no way does Restitution mean taking away MORE than what is owed to you. If I steal you car, you have every right to acquire it even if it means using REASONABLE force to do so. Excessive force would only excacerbate the existing problem of dis-equilibrium of property rights. Kill me for stealing you car, and whats to stop my family from doing the same to you for killing me?

Anyone who is interested in ancient Greek literature should read Antigone’s Oresteia concerning this subject. Mad cycles of vengeance existed then as they do now.

Gil July 13, 2010 at 9:39 am

The obvious points that emerge from such an article are:

* Why is “an eye for an eye” the standard bearer for what punishment should be restricted to? A society that has the death penaly for all crimes no matter how small (provided the perpetrator can be correctly identified and quickly executed) would be quite safe from crime. If private restitution courts could exist in Anarchtopia (and I doubt they could because they have no jurisdiction to claim what is lawful and what isn’t) then they’d make their money from cleaning out the convicted not to mention victims who hire the court get more personal and financial satisfaction from seeing harsher punishments and restitutions.

* What if the victim’s family don’t want to press charges? Gee, a family could legally bump off a relative they don’t like. (“Grandpa was a pain in the arse anyway and we’re finally glad he’s gone so we’re cool.”) Or if a homeless bum has no relatives and is murdered? No cares therefore there are no charges?

* A violent crime is different from personal non-violent crimes because someone who blatantly disregard the rights of one person will think nothing of using violence to someone else. If a women who was raped won’t testify imperils other women because she emboldens the attacker to think he can do it again and get away with it. Not to mention what if the victim, victim’s family or witnesses refuses to press charges/testify because the criminal (or his gang) is threatening them?

* Society has no place for criminals, period. If there are pacifists who would be that stupid as to let themselves be victims and not press charges then it’s easy to why the pacifist gene is an abberration rather than the norm.

* At least Libertarian such as Walter Block had to state there’s nothing contradictory about the State executing a serial killer because he should be executed in free and moral society too. It would sad to think are so anti-government that Libertarians would side by violent criminals because the criminals’ enemy is also the State.

jl July 13, 2010 at 11:10 am

As for having no relatives, a person could still have a will and assign an heir, if only to assure that someone makes sure justice is done on his behalf. I could imagine companies doing this for a fee.

Gil July 14, 2010 at 6:55 am

I doubt you can bequeath duties on to others.

Rick July 13, 2010 at 6:30 pm

…If there are pacifists who would be that stupid as to let themselves be victims and not press charges then it’s easy to why the pacifist gene is an abberration rather than the norm.

I’ve wondered if people generally regard the “libertarian gene” as an aberration too.

Dr. Acula July 13, 2010 at 10:23 am

Interesting article, but I don’t really understand the “two eyes for an eye, two teeth for a tooth” position.

“If there are pacifists who would be that stupid as to let themselves be victims and not press charges”

Well, if a driver accidentally hits a relative I probably won’t insist on their execution.

Matthew July 13, 2010 at 10:37 am

I imagine Rothbard would distinguish between types of murder (first degree vs. negligence). And even if not, you could distinguish accordingly in your own will.

I like the idea of someone broadcasting (credibly) to the world that they would not seek any punishment if they were murdered. I envision it being like the first day of hunting season in a Merry Melodies cartoon.

Russ July 13, 2010 at 4:11 pm

“…I don’t really understand the “two eyes for an eye, two teeth for a tooth” position.”

The principle is really quite simple. Say a thief steals $1000. Then say he is caught. With an “eye for an eye” law, the only punishment would be that he loses $1000. Since he stole the $1000 in the first place, he really loses nothing, and his “punishment” is simply to be restored to the position he was in before the theft. So, if he doesn’t get caught, he’s $1000 ahead, and if he does get caught, he’s even. Not a good incentive system for discouraging crime.

In the “two eyes for an eye” system, if the thief gets caught, he’s out a $1000 of his own money. This is an actual disincentive for stealing. Also, since he must suffer a loss exactly equal to the loss he inflicted on another, this system insures that the punishment is proportional to the crime.

Curt Howland July 13, 2010 at 10:26 am

The only thing about a death penalty that bothers me is that it cannot be undone.

A prisoner can be released, restitution restored, but life…

The only “death penalty” with which I whole heartedly agree is, as L. Neil Smith wrote, “At the time and place of the crime, at the hands of the intended victim.”

Gil July 13, 2010 at 10:37 am

Many punishments take something from the wrongly convicted that cannot alway be undone. If someone was jailed committed for a violent crime and sentenced to life in prison yet is found innocent 20 years later then that person can’t get back those missing years.

Eric July 13, 2010 at 12:09 pm


They can pay them for lost earnings. Granted it’s not full restitution, but it is better than having them take your life which no aspect of that you can get back.

Drevko July 13, 2010 at 1:21 pm

You are wrong.
The man who enters jail at 20 is not the same man with 50. They are different.
You of course know that, inflation for example, it’s not the same a dollar from 30 years ago to a dollar now isn’t it?
So, the prisoner will never ever be released, it will be a completely different man, not the innocent unjustly kidnapped. So, that argument is void.

Bobby July 13, 2010 at 10:54 am

I find it interesting that an argument predicated on compensating the victim 2 fold for the loss, ends with zero compensation in the case of murder.

I’m sorry, but where is the compensation for the loss of a life by killing the killer? When a life is taken, you take any potential financial gains, educational contributions, and emotional support that person could have provided had their life continued. By killing the killer, you remove any way for the killer to compensate. It is strictly vengence and possibly deterrance at best.

ABR July 13, 2010 at 7:47 pm

The key here is the threat of execution. How much will the murderer pay to keep his life? Thus, there is room, indirectly, for compensation to the victim’s family.

mpolzkill July 13, 2010 at 11:02 am

I disagree with Murray on this one, too. I don’t think Murray ever really studied his Dostoevsky. One can’t do everything.

J. Murray July 13, 2010 at 11:02 am

I don’t agree with a death penalty. A justice system should only have to options regarding prisons. Either life in prison becuase the person is apparently too dangerous to be left out in public or no prison at all. The concept of parole should also be disposed of. Rehabilitation is basically a fantasy that has not held up in all the attempts at it.

Anything else, full resitution to the victim should be the only punishment.

Todd S. July 13, 2010 at 3:13 pm

Who pays to maintain the prisoner in prison?

J. Murray July 13, 2010 at 6:30 pm

The prisoner himself. All property obtained by the prisoner is to be confiscated and put into trust to pay for his expenses. Keeping a prisoner housed for life isn’t exactly an expensive proposition. Put him in a cell, hang up the key, and toss in some expired SPAM every now and again. The only reason prison is so expensive today is all the luxuries afforded to the prisoners. Take away the healthy meals, the regular exercise, the equipment, the television service, the Internet service, remove the lights from the cell (why does a prisoner get the luxury of electricity?), and basically stuff the person into a bare cell with nothing but a drain for waste. With overhead of such a bare-bones facility, the costs would be miniscule, possibly a thousand or two a year per prisoner.

Randy July 14, 2010 at 7:05 am

And would you really want someone kept in those conditions for anything over a week released?

J. Murray July 14, 2010 at 7:11 am

Uh, read up further. No one goes to prison unless it’s life without parole. That person only comes out of the cell in a body bag. There is no release when being sent to prison because prison is where we put people who are too dangerous to be out in the world. If we have reservations about putting them into that kind of prison, we clearly don’t believe them to be a danger to others and, therefore, won’t go.

Randy July 14, 2010 at 7:51 am

Unless at a later time they are found to be innocent. If they are unfit for release after being imprisoned, how does that differ from executing them?

Zach Bibeault July 13, 2010 at 11:14 am

I think it really should be stressed that, even though Rothbard is correct that in the natural rights schema an eye for an eye would be pursuable and not unethical, libertarians don’t *have* to advocate this. Can they? Yes. But I think it’s poorly communicated to say they “should” pursue this (this implies a value judgment of individuals favoring punishment, when in actuality it is their sovereign choice).

George July 13, 2010 at 11:15 am

Eye for an eye is simply cruel. If someone is killed in self-defence, and the killing could not be avoided, then so be it, but when we choose to kill a murderer after the fact, it is as cold blooded as the murder itself.

Matthew Swaringen July 13, 2010 at 1:40 pm

Do you say the same thing for fining someone who steals or taking away someone’s freedom by throwing them in jail? And if not why not? Shouldn’t we just choose not to punish them at all, because that’s the nicest way to deal with crimes? Anything else is just too mean.

George July 13, 2010 at 2:29 pm

Why not? I don’t steal from those who steal from me. I didn’t say no punishment; I said no eye for an eye. There’s a difference.

Matthew Swaringen July 13, 2010 at 8:09 pm

Define punishment. Without knowing what you would impose it’s impossible for me to know what you’re advocating here.

RTRebel July 13, 2010 at 1:24 pm

The only problem I have with issuing the death penalty for murder in a trial court is the fact that he might actually turn out to be innocent. You can’t reverse death like any other property in wrongful judgments. Perhaps it would have to be “really really REALLY beyond a reasonable doubt” for allowing the death penalty for a man convicted of murder. Killing someone who is, at the time, blatantly trying to kill you may be justified, but the death penalty in court is harder to justify because there’s little recourse for defendants.

Perhaps a lifetime of slavery (so he’s giving his whole life to the murder victim’s heirs) is a more viable alternative, so at least there is some recourse for the defendant if need be. In fact, maybe that better fits the double restitution requirement that Rothbard requires for libertarian justice. One restitution is the life time of labor to compensate the victim, the second restitution is total control over the murderer’s life itself.

I’m sure it has some holes, but it’s just food for thought…

Guard July 13, 2010 at 2:44 pm

This ignores completely the loss to the community when one of its members is murdered and the continued danger to the community of someone who has demonstrated a willingness to commit murder. We may hope to eliminate the state but we surely cannot eliminate society nor claim that every man, or even every family, is an island unto itself.
The focus of any process of justice is never punishment but protection of the innocent and restitution for criminal damages, a focus the present government operation has almost completely lost, turning the whole thing into a profit center.
The insanity defense is a good illustration of this point. A murderer who does not understand the seriousness of murder is all the more dangerous to the community and should be executed.

John 8:7 July 13, 2010 at 3:57 pm

Libertarians are well-versed in the non-aggression principle. I would like to propose a similar rule, the Minimum Violence Principle. Simply put, any violence against an aggressor, beyond what is strictly necessary to defend against aggression, would be prohibited.

Think about it. Civilized people loath violence. Why would civilized people choose to commit an act of violence that is not necessary? Locking up a murderer prevents him from killing again. Since libertarianism would be not permit people to be taxed for prisons, the murderer’s assets would need to be confiscated to pay for his incarceration. And since nobody wants to to be locked up or have their assets confiscated, it would be a sufficient deterrent to prevent rational people from murdering someone.

So there. We deter crime, and we restrain criminals, without killing anybody. Whether or not the murdered deserves to be killed is irrelevant; it is unnecessary. Killing him, then, would be an unjust and sadistic act.

Any man being presumed innocent until he is declared culpable, if it is judged indispensable to arrest him, any rigor which would not be necessary for the securing of his person must be severely reprimanded by the law.

Declaration of the Rights of Man, And Of the Citizen

Another thing. You do realize that when a death penalty is on the books, it results in an increase in guilty pleas. The accused is more likely to plea-bargain with prosecutors to save his skin. This should be a serious concern, because confessions made under duress are unreliable. We don’t know, we cannot know, how many criminals have gone free due to innocent men pleading guilty.

It is also a fact that a black man is far more likely to be executed than a white man convicted of the same crime. I don’t have the statistics on hand, but we cannot allow big scary black men to be at the mercy of hanging judges and juries.

The existence of the death penalty allows governments to get rid of inconvenient demographics with the appearance of due process. This is much more of a problem in totalitarian countries that suppress the free choice of religion.

If, for example, the government wanted to get rid of you, they could accuse you of a capital offense. They could either fabricate the evidence or tamper with the jury. Either way, you fry; and it looks legal, legitimate, and democratic.

On the other hand, if there is no death penalty, you can wait until the next election, then file an appeal, prove your innocence, and get out scot-free. The evil or incompetent cops and judges resign in disgrace.

I desire few things more than to see this peculiar and barbaric form of punishment repealed on a global scale. Especially in Muslim countries where it is used to suppress Christianity. The United States needs to set a positive example and repeal the death penalty completely.

dobropet July 13, 2010 at 4:29 pm

But even if selling off the perpetrators belongings(house, car, valuables) isn’t that number a finite number and not an endless supply of incarceration funds?

John 8:7 July 13, 2010 at 10:20 pm

That’s what prison labor is for.

dobropet July 14, 2010 at 9:21 am

Oh, like marriage. Lol.

Jesus July 13, 2010 at 3:59 pm

So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her.

Roman July 13, 2010 at 4:08 pm

I like it, but one difficulty with this scheme of putting punishment decisions in hands of the victim is the possibility of intimidation by the criminal or his allies.

I’d be interested to hear perspectives on this.

Russ July 13, 2010 at 4:22 pm

I have to agree with you. It would be too easy for a gang or mafia to intimidate its victims, and thus get away with pretty much anything. Besides, even in an ancap situation, a PDA would be remiss in its duty to its customers if it let a known criminal off simply because the victim did not want any action against the criminal.

Walt D. July 13, 2010 at 4:15 pm

The big problem with this is that it does not take into account the corrupt justice system. Without the crusade from people like Bill Anderson, it is likely that the falsely accused members of the Duke lacrosse team would have been convicted or rape. Project Innocence gets reversals on about 30% of the cases it takes on when the suspect was convicted on the basis of circumstantial evidence. – it also shows and alarming rate of coerced confessions. Even if we accept a 1 in 100 rate of wrongful conviction, that would mean that about 30 out of 3000 people on death row are innocent.
BTW while were on the topic, the biggest murderer of all is the state.

dobropet July 13, 2010 at 4:19 pm

I agree Guard, you cannot take from the equation the fact that someone has already been murdered, and that for justice to serve a penalty, equal to the crime, to be sufficient to the eyes of the community is expected. Look at the recent decision by a jury to find a murderer guilty of the crime of involuntary manslaughter instead of voluntary manslaughter in Oakland. Would that not be considered “judicial activism”? Or is simply to help illustrate Murray’s view that the conclusion that was reached involved an officer shooting an unarmed citizen, of which, he points out is a “grotesque travesty of justice” when officials are not held to the same accountability as citizens are when capital murder has been commited?http://www.reuters.com/article/idUSTRE66763A20100709

Rick July 13, 2010 at 6:21 pm

I’m not sure it would be much different in private courts or with the type of Restitutional Justice Rothbard describes. There would be some verdicts and sentences that would seem over-the-top, like some do now, and others that seemed too lenient, like some do now.

ABR July 13, 2010 at 7:51 pm

Let each legal society decide what the penalties ought to be for murder. If a murderer belongs to Society X, and murders a member of Society Y, let a side-agreement between X and Y determine the penalty.

bill July 13, 2010 at 8:23 pm

The libertarian position would be to defer to the individual states and the people to decide the matter for themselves. We libertarians know that the Founders did not want a one-size-fits-all policy. However, I myself do not believe in the death penalty. Firstly, humans make mistakes and sometimes the wrong people are executed. People wrongly convicted have been set free on new evidence. Secondly, I am heavily influenced by the Christianity that built Western Civilization. I only believe in killing as a means of self-defense when my life is threatened. Capturing and killing a murderer, after the fact, is murder itself. I think separate communities should be free to choose, though. I would not impose my will on an entire nation.

ABR July 13, 2010 at 8:42 pm

Currently, those responsible for a wrongful conviction are exempt from punishment, or restitution to the victim. Would that still be the case in a libertarian/anarchist world?

Randy July 14, 2010 at 7:10 am

The best way to handle that would be to impose the punishment of the wrongly convicted on any who acted in bad faith, withheld evidence, or committed purjury during the trial.

Heather July 13, 2010 at 9:39 pm

Maybe “Libertarians should advocate for capital punishment”, but individually I cannot. I don’t believe any person, jury or social system should hold the power to decide who dies and for what reasons. Rothbard doesn’t persuade me with any of his arguments here, I’m left completely confused as to why he thinks robbing one person of their life will make up for the loss of another. Both are heinous acts and should never happen. Even if we had a perfect justice system and no mistakes or malice were found, I still can’t stomach the thought of ending a human life by decree.

MJ July 13, 2010 at 11:47 pm

In a completely anarchic civilization, punishment would be replaced by insurance. Murder insurance companies would work out a premium with the policy holder much like they work out 3rd-Party car insurance premiums with motorists. The company would assess you for the risk you represent in murdering/damaging someone elses body and your premiums would be charged accordingly. Those deemed as a high risk would be charged a higher premium thus discouraging murderous/violent acts. Capital Punishment / 40 Years of imprisonment / Slave Labor etc would simply be ‘payment’ options you could select on your policy in addition to paying a monetary sum. It would then be the responsibility of private land owners to ensure that you hold a level and type of murder insurance that they will allow on their property as they are the ultimate managers of their land. Eg, If a land owner requires that Capital Punishment be part of your murder insurance policy before allowing you onto his land, then you will obviously need to check this box on your policy. However, the land owner may not require this but instead require you to be insured for say at least $10 Million to be paid to the family of the victim and $1million to the land owner should you murder someone on his property. Anyone else on the land will need to avail themselves of what murder insurance the landowner is requiring and by entering onto the land they would be agreeing to the ‘payout’ should they be murdered. Under this ‘insurance not punishment’ system, people will know what kind of ‘restitution’ is on offer should they murder someone or be murdered themselves and they can decide for themselves whether this is sufficient for them before they enter someone elses property.

Gil July 14, 2010 at 2:54 am

No it wouldn’t. In Anarchotopia people are free to act as they like as there’s no overriding power that is the government. Private property owners determine what’s best for their property. Businesses will have to calibrate what actions should be taken: light enforcements will lead to more crimes and deter customers yet harsh enforcements may turn away customers who don’t like harsh punishments. What people do in their private homes is their business and the onus of proof should be to the non-home owner as to whether the measures taken by the homeowner was unjust.

Dewaine July 14, 2010 at 2:28 am

Did Rothbard side with the pro-capital punishment argument because there cannot be a libertarian position for the funding of life in prison without parole (the popular alternative to the death sentence)?

The more difficult argument would be the position that a court, state-sponsored or otherwise, could be both sufficiently independent and without corruption so as to be able to render a just sentence of death.

André July 14, 2010 at 4:27 am

Insurances cannot really replace punishments – unless they are mandatory, but then there must be some kind of punishment for those who roam uninsured. There’s a circle here.Also, the idea that any insurance company would accept anything like “Capital Punishment / 40 Years of imprisonment / Slave Labor” as a form of payment clearly comes from someone who does not run a profitable insurance company.And so we come to the main point, at least for me. Punishments are not payments, there is not voluntary transaction behind and nobody can receive any economical compensation by inflicting pain to someone else. Punishments, at best, may represent the sheer joy of inflicting pain on those who did something unpleasant to us or to those we love. If someone hurt to my daughter, I would feel the absolute urge to massacre the bastard, and way beyond the damage he inflicted to my kid. I would not think of compensations or anything economical. That’s why we pay so much for all those cops and judges… so we can (foolishly) imagine that someone would help us in case we would need to revenge on someone physically stronger than ourselves. Capital punishment does not make anyone richer, nor it compensates any loss. The whole system is just anti-economical. It’s a dangerous toy that only uncivilized societies can enjoy.You want to know how really free societies (ancient Greek cities, for example) dealt with dangerous criminals? No jails, no hangings – they just write your name on a piece of a broken vase and you cannot show your face around here anymore. If you love freedom, that’s the way to do it – I think.Rothbard wanted to stay with the mob on this one. Maybe in those years he wanted the libertarian movement to be more appealing to a larger number of folks – so he just did what all politicians do… follow the vulgar part of the stream. I did not like this one bit, I have to say.

MJ July 14, 2010 at 8:41 pm

I didn’t mean that insurance companies should take capital punishment etc as a form of ‘payment’ of the premium (I can see how what I wrote is confusing) I’m saying that in the event you murder someone “Capital Punishment / 40 Years of imprisonment / Slave Labor” would serve as the ‘deductable’ or the ‘excess’

Randy July 14, 2010 at 7:24 am

Punishment of criminals seems to have three components; restitution, retribution, and deterrence.
Restitution is the repayment or ‘make whole’ of what was taken.
Retribution is the additional punishment after restitution to resolve a sense of ‘fairness’. ‘Two eyes for an eye’ is a good expression of this.
Deterrence is an additional punishment AFTER the above that is intended to prevent others from committing the same crime.

Punishment for intentional murder can’t progress beyond the restitution stage without assigning a value to someone’s life. Isn’t that the ultimate level where a homeless person and a corporation owner are ultimately equals?

Steve July 14, 2010 at 12:38 pm

I just think it was fun to read a completely different point of view on the subject. To execute or not to execute being left up to the individual victim (via a will). Being new to libertarianism my mind was still on the track that you either do it or not on a societal level. The individual nature of dealing with crime and capital punishment that he outlines was interesting. A lot of things to think about especially with the comments that help expand the conversation.

RogC July 15, 2010 at 9:19 am

When I was younger I was an ardent supporter of the death penalty. Growing older I’ve found that the logic for having such a penalty is still valid to me but I’ve become so mistrustful of the agents of our justice system that I can no longer support it’s application. If I believed that all involved parties, prosecutor, judge, defense, investigators etc worked honestly to see justice done then I could even reconcile myself to the rare mistake. Sadly I find that I cannot just assume that the sloppiness and shortcuts that result in so many criminals receiving super light if any sentences do not also occur in reverse.

TokyoTom July 22, 2010 at 12:13 am

Frankly, Rothbard’s essay is disappointing and disturbing:

- he relies on the state and its minions;
- he fails to consider the very high risk of false conviction;
- his “opt out” for those opposed to the death penalty is very restrictive (only who have gone to the trouble of declaring their opposition in a valid will);
- he fails to note or discuss the racially-imbalanced way that the death penalty is applied;
- he fails to see either how the death penalty further dehumanizes society, or how it aggrandizes the state (and provides political opportunities for politicians, judges and prosecutors);
- he completely fails to consider how murders themselves are the predictable consequence of state policies – in particular, the stupid and destructive “War on Drugs” that (i) turns not merely consumers but everyone in the supply chain into criminals – with those other than users having strong incentives to violence to protect illegal goods, and to corruption, (ii) gives us serious penchants for police abuse and confiscations, and (iii) undermines economic development in inner cities; and- finally,
- it’s clear that Rothbard is being a small-minded hypocrite when he closes by saying: “the rest of us can have the capital punishment we would like to have, free from the interference of liberal busybodies.” What Rothbard is doing here does not differs from what those “liberal busybodies” he rails against were doing – namely, attempting to persuade others with respect to state activities that they have an opinion on? I’m right, so please shut up? Please.


Frances_Coppola July 29, 2011 at 8:32 am

It is oxymoronic for there to be a “Libertarian position” on anything. I don’t have to agree with your views and I don’t have to do what you say. That’s the whole point of being a Libertarian, isn’t it? Therefore this article has nothing to do with Libertarian thinking and everything to do with promoting the author’s particular agenda.

freethinker July 29, 2011 at 9:40 am

Total fail. You just took a position as a libertarian. So the libertarian position is that there is no libertarian position? After all, that’s the “whole point of being a Libertarian….” What if someone disagrees with your view about you not having to do what he commands? Is that also included in your libertarianism? Does this opponent who wants to enslave you also count as a libertarian? He doesn’t have to agree with your view, after all. Everyone is a libertarian!

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