L. Neil Smith's
Number 177, June 10, 2002


The Death Penalty, Revisited
by Patrick Martin

Exclusive to TLE

When I started writing for TLE, I made a decision that I would not attempt to answer my critics directly. I realized that to do so would eventually cause me to expend so much time and effort that I would end up doing nothing else. However, I have decided to make an exception.

First I would like to say that I write for the TLE for my own benefit, not anyone else’s. I write to help clarify my views for myself, and to work on my writing skills. That some people find my writing useful or informative is just an added benefit. In the case of my article though, I reread it in light of the criticism I received, and I decided that I had failed to make my points clearly. So, I will now answer some of the criticisms, while attempting to make my views more easily understood.

The first, and probably the most important criticism I received was this;

"Mr. Martin, you make the classical collectivist error. There is no "society" and it has no "rights"." -- Julian Morrison

Really? Let’s look at what ‘Society’ is defined as;

1a. The totality of human interrelationships. b. A given human group distinguished by participation in characteristic economic and political relationships and a common culture.
Webster’s New Reference Library (1984 edition)

Obviously our discussion revolves around definition b. Now, does an Anarchy fit the definition? Well, anarchists would be involved in ‘Characteristic’ economic activity (Free-market Capitalism), have political relationships (based on individual sovereignty), and a common culture (based on the pursuit of personal self-interest). The problem is that the word ‘society’ is now more often used to describe the state, rather than in it’s proper context. Today, most ‘Societies’ are held together by force and operate according to the dictates of some central authority, but that does not mean that the word is intended to describe this state of affairs. Quite the contrary, a group of anarchists who simply engage in mutually beneficial trade and other activities designed to allow each individual to pursue his, or her, own self-interest would also be a society.

As my critic suggests, a society does not have rights, but the individuals within it do, and they can exercise these cooperatively as well as independently. The Libertarian Enterprise itself is a shining example of people exercising free-speech in a cooperative manner. I and the other writers are provided a forum for our thoughts, and the publishers get to operate without having to fill all the pages themselves, mutual cooperation for mutual benefit. I submit that the right of each person to defend their lives and property may also be exercised in just such a cooperative manner. I can defend my neighbors life and property, to a limited extent, because a threat to his also represents an indirect threat to mine. The criminal who would prey on my neighbor is showing his disregard for everyone’s rights, including mine, and everyone benefits if I end this threat. Unfortunately life tends to be more complicated than we would like. Blowing away the guy breaking into my neighbors car might prevent a theft, or it might be the murder of someone simply intent on repossessing that car for the bank which made the loan.

Obviously we don’t want everybody running around blowing away anyone who looks like they might be doing something wrong. But, at the same time, we would all prefer that our fellow citizens not ignore us as we are being raped or robbed or killed. So what do we do? What middle ground can we achieve? The answer thus far in human history has been an imperfect one, we call it Law, and the means by which it has been implemented are the police and the courts. While I agree that this method has significant problems, I have not yet been persuaded that it can safely be abandoned completely.

Which brings us to the next little quote from a letter writer;

"In short, leaving capital punishment in the hands of the intended victim, at the time of the crime, is the best, simplest way to insure a system consistent with a free society." -- Jonathan Taylor

Ok, so what happens if the criminal gets away? We are not all Rambo’s, no matter how well trained and prepared we might be, an attacker has certain advantages, like surprise. Do we just say, "Oh well, she got raped, nothing to be done about it, she’ll get over it."? What if she runs into the guy later? Should she just keep it to herself? Bust a cap on him? Or spend the rest of her life trying to convince the world that he did it to her? If courts and police do not exist, how will she prove her accusations? What evidence could she bring, and to whom would she bring it? If you believe the court of public opinion is enough, how will you defend the innocent person from false accusations?

A little example from my own life. While walking through a local mall one day, I found myself walking towards a very attractive young woman. She appeared angry and was looking in my direction. I looked behind me to see if the object of her anger was there. As I turned back I was greeted with a tooth-rattling slap across the face, and such a torrent of profanity as I had never experienced before. In the middle of all this I said something like, "What the hell do you think you’re doing?" She stopped cursing me and got a stunned look on her face. As I spoke again, she began to apologize and explained that I looked exactly like someone else. I never did find out what this other person did to her, but it must have been pretty bad!

Some years later, my sister was working in a doctors office when she looked up to see, me. Or so she thought, until this person signed in and spoke to her, whereupon she knew it was not I. Consider this for a moment, a person who looks so much like me that my own sister could not tell the difference at two feet. I don’t know that this was the person responsible for the slapping incident, but I hope so, as the alternative is that there are three people who look like me. Why three you ask? Because when Tim McVeigh was shown for the first time, leaving the jail in Oklahoma, my own parents said that if I had still had a flat-top haircut, they would not have known the difference. This often caused me to wonder about some of the reports of McVeigh hanging out with "Mark from Michigan" Koernke (a well known "Militia" figure), because I know I never saw him there.

Should I be forced to defend my self in the court of public opinion simply because I look like someone who committed a crime? How will I prove my innocence? How many people will disbelieve me regardless of anything I say? A "Free Press" is just as free NOT to print my story, so what do I do if the madia refuses to allow my protests to appear? Are you suggesting that I can only have justice if I can afford it? If I’m shot dead because of mistaken identity, should my family be forced to clear my name? What if they can’t? Would insurance pay-off, or would my wife be destitute by virtue of a lie? What if I am exonerated? Should my family then destroy the other person, even if that person is horror-stricken and wishes to spend the rest of his/her life making amends?

Another letter suggests: "The fundamental point is that state killing leaves no-one with personal responsibility for the act. OK you say, a lynch-mob is ... no it isn't. Each individual member of the lynch mob is personally responsible for his or her part in the action." -- John Pate

So, members of a lynch mob are responsible for their actions, but voters who put a tyrant in office are not? Mr. Pate suggests that, "There is not such thing as a limited government..." Well why is that John? Could it be because, like Americans have done for the last two centuries, you refuse to accept YOUR responsibilities for limiting it? If the American people had refused to allow our government to throw out our rights and our constitution, would we be in the mess we find ourselves in today?

Mr. Pate also suggests: "If someone wants to kill Joe the Wino then I don't have a problem with that. If he's anything like the winos that hang around here then good riddance to bad rubbish. If someone wants to kill my friend I do have a problem with that and retribution is on the way, in my own inimitable style. If a lynch mob does it then I'm going to have to go all Clint Eastwood on them and/or organize a big bunch of my pals (it wouldn't take very many of them to cause a lot of mayhem for sure)."

Mr. Pate thus believes that an Anarchy is what Ayn Rand called a society of "All against All". We should get our friends together and fort up, and kill anybody who bothers us? Killing a person is alright, as long as we don’t like them? "My gang is bigger and better than your gang", is this the basis of the society you want?

"I have a real problem with the state being given license by "the people" to murder in their name -- somebody else other than me is giving an "officer of the law" license to murder in my name! That way leads to war and madness. I mean does nobody round here read history books? Count me out!"

I submit, Mr. Pate, that it is you who does not read history. It is you, and people like you, which has given Anarchy a bad name. You don’t want "The State" to murder in your name, but you feel quite comfortable committing murder for yourself, or with friends, based on whatever you feel at the time? You don’t like ‘Joe the Wino’ so it’s a good reason to kill him? Well Mr. Pate, I would suggest you follow your own logic to it’s inevitable conclusion, and remember, MY gang just might be bigger and better than yours.

Still another writer: "Like most of the people who read this (if any do), I believe that the victim of a violent assault should (must!) have at their disposal the means to defend themselves. Preferably lethal means, since there is little doubt in the mind of a rapee who the raper is ...

"The answer? I don't know. And because of the imperfection of my knowledge, I prefer to fall on the side of caution. I will not delegate to the State the power to murder, because the State cannot be punished when it makes a mistake. For example, I have yet to see a legislator, cop, or judge punished because the enactment or enforcement of a 'law' resulted in injury or death." -- Curt Howland

To deal with Mr. Howland’s second issue first, I believe the state can be punished, we have just never done it. The State is supposed to work for us, not vice-versa, but we refuse to enforce our ownership. We Americans should have descended on the halls of power long before now and demanded our rights and liberties at gunpoint, but we never have. Instead, we have knuckled-under, we have put up with outrage after outrage, we have excused the most abhorrent behavior from our government and then we bitch that our government is out of control. Tell me, is the fault with your car if you don’t get a tune-up and the engine fails?

In response to Mr. Howland’s second point, there is a little known fact that presents an even greater problem with the idea of demanding everyone fend for themselves, it is called "The Safety Catch". I know most people are not aware of it, but an interesting fact turned up towards the end of the Second World War. S.L.A. Marshall (U.S. Army historian for the European Theater) had his historians carry out after-action interviews as soon after the battles as possible, in an attempt to prevent the soldiers from thinking about them and letting their imaginations take over. In doing so he discovered something strange, he discovered that only about twelve percent of these man were actually firing their weapons, and only about two percent were seriously attempting to hit people. Needless to say, this caused some serious problems for the military, as one officer put it; "A twelve percent firing rate among soldiers is like a twelve percent literacy rate among librarians." The military spent several years attempting to discover the reason for this problem until psychologist’s came up with the theory of the "Safety Catch".

The theory stems from the well-known fact that higher animals have an instinctive aversion to killing their own kind. The most vicious mating battles (Big-Horn sheep, Lions, Deer) almost never result in death, and rarely in significant injury. This is an instinctive survival trait, as killing your own kind is detrimental to species survival. The "Safety Catch" is simply this same mechanism in human beings, and just like animals, it seems to be missing in about two percent of the population. This theory explained one of the most vexing questions about combat. Specifically, why were so FEW people killed in wars? Since the introduction of artillery the big guns have been the number one producers of casualties on the battlefield. Why? In the Napoleonic wars, tens of thousands of men could stand the length of a football field from one another, firing muskets and rifles at each other for hours, and only produce fifteen or twenty percent casualties, with about eighty percent of those being inflicted by artillery. In tests conducted by the British Army in the 1980's and ‘90s battles of the 1800's were recreated using MILES {Multiple Integrated Laser Engagement System} and produced ninety percent casualties in ten minutes, without artillery. The explanation is simple, most of the men in those battles were not trying to shoot anybody, and they succeeded.

The U.S. military began using techniques of classical and operant conditioning developed by behavioral psychologists like B. F. Skinner to overcome this problem in the late 1940's. The result was that by the Korean War the firing rate was forty-eight percent, and by Vietnam it had reached ninety-five percent. I won’t go into detail about these techniques, but I recommend that anyone who disbelieves should read the book, "On Killing: The Psychological Cost of Learning to Kill in War and Society" by Lt. Col. Dave Grossman. This book not only explains the how’s and why’s of human-on-human violence, it also shows how the very techniques used by the military to teach people to kill are now found throughout the mass media. While I disagree with some of Col. Grossman’s conclusions, this book is invaluable to understanding why a growing number of people within our society are capable of killing other human beings and others are not.

Therein lies the problem with the idea of requiring everyone to fend for themselves in the area of self-defense. Simply put, a large number of people simply cannot do so. They are incapable of inflicting death upon another human being, or even attempting to do so. What do we do with these people? Do we ignore them? Do we train them to do so using military techniques? What about the small fraction of people who cannot, or will not, be trained to overcome this aversion? Do we just throw them out of the sleigh to the waiting wolves? Remember too, that many of the methods used to produce soldiers capable of ending human life are now found in the mass media, which increases the percentage of people who can prey on others people. The ratio of wolves-to-sheep is increasing, do we ignore this factor (assuming we do not wish to censer the media), or do we guard the sheep? And if so, how?

The whole point of building a community is to have access to the goods and services of others. I don’t wish to grow my own food, build my own house, butcher my own animals, so I live where those who do these things, or at least their products, are near at hand. By doing so I have the ability to concentrate on those activities which I do best, instead of simply scrabbling to survive day-to-day. However, if this community has no mechanism for helping me assert my rights, no objective law by which the behavior of others can be measured, am I not better off on my own? If I am falsely accused of a crime, should there not be some means at my disposal for exoneration? A means which does not require spending my life and my fortune to gain it? If I can prove that someone has wronged me, should I be forced to then execute punishment myself? If I said that a member of your family committed a crime against me would you allow me to punish them?

The fact that governments tend to grow, to gather more and more power to themselves does not negate the theory behind government. Limited government presupposes that the PEOPLE will impose and enforce those limits, not that those limits will impose themselves. Benjamin Franklin said "A Republic madam, if you can keep it." He was right, and we did not keep it. Does that mean the founders were idiots for trying to give us a Republic, or that the people were too stupid to know when their rights were at stake?

As for the issue of Capital Punishment itself, I did not make my position perfectly clear in my previous article so I will state it now in no uncertain terms. The Death Penalty is the ONLY penalty which society should be able to impose on it’s members, and only for the most egregious crimes. The community has no right to imprison, enslave, torture, or otherwise injure it’s members for any reason. If the crime is sufficiently serious to provide justification to kill the person who commits it during it’s execution, then it is serious enough to justify killing that person after the fact. If the crime is not so serious as that, then we should have other mechanisms to punish the offender, but above all there must be some system for determining that facts and arriving at a conclusion about what must be done.

The system we have today is not designed to protect your rights, your life, or your property. The ‘Law’ in America today is designed to protect the state, period. Locking people in cages because they choose to pollute their bodies with mind-altering chemicals does nothing to protect others. The fact that some individuals who do so might commit crimes, no more justifies locking them up, than the fact that some women commit acts of prostitution justifies locking every woman into a chastity belt. Also, both ‘crimes’ are examples of things that are crimes by government definition rather than acts which harm the community. The fact that killing a mail carrier, or chicken inspector in a state like Michigan, where no death penalty exists, shows that it is not life which our system values, but government power. I believe that this is wrong. No citizen is more important than any other, no life is made more valuable by virtue of their job. I do not support the way in which our system works today, justice has no place in the morass which is our legal system. That does not mean that I believe that we should just give up and call "Every man for himself", none of that is a reason to abandon the very concept of law. To do so is to abandon the idea of civilization itself.


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