Blogs > Liberty and Power > Ethics Quiz

Jan 29, 2008 5:46 pm

Ethics Quiz

[cross-posted at Austro-Athenian Empire]

If the difference between an innocent person’s going free and that innocent person’s serving a ten-year prison sentence depended on your say-so, and if you could set that person free with zero risk to yourself, what would you do?

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Less Antman - 1/31/2008

As I said, someone who believed violent offenders shouldn't be jailed couldn't vote to convict. Most of my response was to your point about the use of tax money to finance the punishment.

I think we're dealing with 2 questions here, both of which are individually quite interesting. I've said my peace on the first. On the second, I am a believer in restitution as the foundation for justice, rather than punishment, as you are. IMHO, however, there is a valid basis for defensive confinement of the most violent offenders: not punitive, but defensive.

In an anarchist society, some form of customary law-based judgment that a convicted killer or rapist represents an ongoing threat of violence ought to authorize defensive force in the form of imprisonment. In my judgment, a just society could use it against those who are established threats to lives (not merely to property). I'm not a total pacifist, and do believe that someone who has already killed may be properly treated as an ongoing threat of violence in at least some cases. And since I am living in today's society and not my ideal, I do think I'd be comfortable supporting life imprisonment by the state for a convicted serial killer. Where it appeared there was no significant risk of the person killing again, a purely restitutive standard can be appropriate, along with full publicity to take advantage of reputation, ostracism, and boycott responses.

I also don't think this is unrelated to the question of whether people should be allowed to own WMDs.

What say you? Is there ever a situation where you believe a person can be justly imprisoned on grounds of being an ongoing threat? This isn't some ludicrous ticking bomb scenario question, but one that has definite real life applicability.

BTW, no question this ought to be its own entry. Who do I need to kill to get article posting rights?

Anthony Gregory - 1/30/2008

But even many real criminals shouldn't be thrown in prison.

Less Antman - 1/30/2008

I've thought about this one a great deal. I don't think draining the government of financial resources is unlibertarian, and generally believe that government employees who personally do not engage in enforcement of coercion, welfare recipients, social security recipients, and attendees at government schools are not violating the libertarian moral code. So redirecting government resources toward doing things that are not themselves inherently immoral (such as war and the prosecution of victimless crime laws) seems to me to be acceptable.

I remember a brief conversation in 1982 with a man of whom I was very fond: the late agorist Sam Konkin. We were arguing about the morality of taking government funds, and after I handed over a central bank note to purchase one of his publications, I asked where he thought that note originated.

Strategically, I think it useful to direct stolen funds toward actions that are not themselves additional violations, and that might reduce such violations. In a direct sense, putting a violent predator in prison takes up space that might otherwise go to a non-violent individual. On a steady basis, jails do early release of non-violent offenders because of overcrowding, so in a literal sense, putting one violent predator in jail usually means several non-violent individuals are going to get their freedom sooner (it isn't one-to-one because the length of the sentences of the non-violent offenders will, on average, be shorter than those of violent offenders, so a murderer in jail for 30 years might mean 365 different non-violent offenders avoiding 30 days in jail).

I believe that someone who opposed even PDAs putting violent offenders in jail wouldn't be able to vote to convict, though.

Anthony Gregory - 1/30/2008

Does putting even violent predators in prison protect people's rights on average? I'm not completely convinced. And keep in mind also the innocent people in prison. Sending more guilty people to prison isn't fair to the peaceful people there, either!

Certainly, most property crimes shouldn't be addressed through prison. I don't think I'd want to send property criminals to those rape rooms.

Less Antman - 1/30/2008

Thanks: that's exactly the type of response I was looking for. I'm not sure I could successfully pretend to be a Simpson juror, but the second suggestion seems obvious now that you've said it: if they mounted a defense, they had to have made some arguments that might sound non-insane to some people. Having not gotten that far in jury service (the prosecution always challenges me), I missed the obvious. It might not avoid a retrial, but it might, and is a very low risk strategy as far as contempt (I can never get out of my mind the Mae West trial for obscenity where the judge asked if she was trying to show contempt for the court and she responded, "No, I'm doing my best to conceal it.").

Aeon J. Skoble - 1/30/2008

If the defendant is a violent predator, sure. While we're waiting for the renaissance of restitutive punishment or polycentric law, I think we'll all be better off with violent predators locked up. This isn't really any different from any of the other other moral compromises the state forces us into. I can't drive to work without using stolen funds. That's a reason to work to change things, but not a reason to stay home.

Anthony Gregory - 1/30/2008

Is it every permissible for a libertarian to vote to convict, knowing that he is voting to have someone caged at the cost of many thousands of dollars in stolen money? Even if the defendant is a criminal, is the criminal justice system itself something we can endorse?

John Kunze - 1/30/2008

In American elementary school I learned about John Peter Zenger being acquited in 1735 of libel thru jury nullification. It was a celebrated case school children learned about 45 years ago, if not now.

When I was first called for jury duty in New York City around 1982, the intro film they showed used the Zenger trial to highlight the importance of jury duty, but I think it has been replaced by a film that omits Zenger.

When a served on a NY grand jury I convinced 20-odd other jurors to vote against indicting someone for "possession of burglary tools". They agreed the law was wrong since we could imagine being caught on the street with screwdrivers. However in another case I failed to convince more than a couple to throw out a drug possesion rap.

When I was last called and interviewed for a jury, the judge asked 40 or more of us to raise our hand if we could not agree to accept the judge's interpretation of the law without question. I raised my hand and she briefly tried to shame me. (She probably didn't want to corrupt 40 other jurors.) She dismissed me when I said I had been on juries before and was always bothered by the requirement to swear to defer to the judge's interpretation. If I'd mentioned Zenger, she probably would have locked me up.

Roderick T. Long - 1/30/2008

It's always possible to just keep repeating "I wasn't convinced by the evidence. I don't know why, I just wasn't." You may come off sounding like an idiot, but real-life jurors often sound like idiots, and it doesn't necessarily lead to a retrial.

Also, the defendant's lawyers will presumably offer some reasons not to convict him -- that being what lawyers are for. However good or bad those reasons are, just seize on them and say you found them convincing.

Steven Horwitz - 1/30/2008


I find interesting your willingness to convict libertarians as a whole for the sins of individuals who stray from libertarian ideas, while you simultaneously seem far more willing to treat anti-liberty "deviations" on the left as "deviations" that don't condemn the left as a whole.

And before you start typing, yes too many libertarians have reversed your stance by being overly forgiving of "right" deviations and overly condemning the left as a whole.

My point is simply that libertarians probably need to apply a more consistent standard. Aeon's point that the "deviations" were immediately responded to forcefully (*and on Cato's own site*) is the key here. The libertarian movement has not, in my view, totally sold its soul to the right. Some individuals have for sure, but there's still a clear libertarian movement that remains true to liberty across the board if you don't go looking to cast every anti-liberty statement a so-called libertarian makes as a failure of the movement as a whole.

That said, what is driving ME nuts these days are people *calling* themselves libertarians who clearly are not (Reynolds for one) and libertarians trying to find any shred of libertarianism in politicians or academics who are clearly not. Reason is often guilty of this last sin - I can find no shred of libertarianism among any of the leading presidential candidates (Paul excepted), despite the fact that folks at Reason seem to want to imagine they they are in some way (see: "libertarian Democrat" for example).

I would much prefer to see a much more judicious use of the word "libertarian" than has become the trend.

Aeon J. Skoble - 1/30/2008

I don't see how this supports your point. One libertarian-oriented blogger does something illiberal, and he gets called on the carpet by dozens of his own commenters, as well as by bloogers on other sites. Which is what happened to Pilon also, as it happens: his fellow Cato bloggers dissented _on the Cato site_, and many other bloggers got in his face about it. So both of these are examples of "here's a libertarian who's made some mistake about how liberty works," not examples of "libertarianism as a movement is messed up and in need of reform."
As far as libertarians being "aligned with" the right, I have never seen that much of an alliance. Free-market economics was one small part of the conservative movement in the Reagan years, but even then it was more a rhetorical stance than a policy. But the Dems weren't even using the rhetoric! What's worse, using the rhetoric of liberty, and then not acting on it, or expressly disavowing the rhetoric of liberty in the first place? I say the latter. But that doesn't mean "the current Right is a great ally of libertarianism" - it's not -- nor does it mean (as the left would say) that "libertarianism is really a part of the Right."

Sudha Shenoy - 1/30/2008

The common law does not, & cannot, prohibit what this particular piece of _legislation_ purports to 'outlaw'. The statute constitutes a decree from a bully ('I'm stronger than you are') to his victims: 'I'll put you in jail if you do such-&-such'.

Can you refuse to help the bully? Yes. Do you have to tell him? No.

The common law grows out of _interrelationships_ amongst _individuals_. It is impossible to legislate.

Less Antman - 1/30/2008

To put it another way, I think my question is how to lie in this case so that the lie is successful. Specifically, what should Franks have offered as his reason for a not guilty vote that would have prevented him from being removed from deliberations and would not have led the prosecution to realize that retrying the case was going to easily lead to a conviction?

Less Antman - 1/30/2008

When the lie is one that is going to be discovered, it won't save the defendant. That is the point on which I'm not clear. I have no qualms about a lie that would work to prevent injustice.

Charles Johnson - 1/30/2008

Less Antman: "Question: would you have lied to the judge when asked the standard voir dire question about whether you would follow the law as instructed by the judge? I've wrestled with this question since the first time I got dismissed for an honest answer, and would like to know the opinion of others."

Yes. I'd also lie to the Gestapo if they asked me whether there were any Jews in my attic.

If what's at stake is someone going to federal prison for ten years on a drug rap, I'd say that the difference between the one case and the other is only one of degree. And a smaller difference of degree than many people believe.

Less Antman - 1/30/2008

I don't think so, but I'm wondering whether it will actually help, absent a reason for being the holdout that doesn't translate into "I lied to the judge to get on the jury." The problem is that the judge gets the last laugh, can remove me from the deliberations, get the conviction, and then punish me with a charge of contempt that will cost thousands of dollars to defend.

Lying to stop the injustice works for me: lying and then NOT stopping the injustice doesn't.

The strange thing is that this would all seem doable if there were TWO holdouts instead of just one.

But maybe I'm just showing a lack of imagination. Given the ability of Supreme Court justices to come up with reasoning that supports the most absurd decisions, perhaps it wouldn't be difficult to come up with a reason that will roll the eyes but not lead to a removal from the deliberations.

Mark Brady - 1/30/2008

Is it inherently immoral to lie if you were conscripted for jury duty?

Eric Hanneken - 1/29/2008

I did exactly what you did: During voir dire, I told the judge I would follow my conscience when it conflicted with the law. After some drama (The judge sent the other candidate jurors out of the room and asked me some pointed questions designed to shame me), I was dismissed. The judge ordered his staff never to call me for jury "duty" again.

I don't know whether I did the right thing or not. As I recall, the case was a malpractice civil suit; nobody was going to prison, although the result still could have been unjust.

Less Antman - 1/29/2008

Had Franks refused to convict, and then refused to provide the reason, the judge could have removed him and replaced him with one of the alternates. Had he honestly indicated his unwillingness to follow unjust laws, he would have been dismissed (it happened to me). And if he had successfully held out, an 11-1 for conviction would have made a retrial a slam dunk. Still ...

Question: would you have lied to the judge when asked the standard voir dire question about whether you would follow the law as instructed by the judge? I've wrestled with this question since the first time I got dismissed for an honest answer, and would like to know the opinion of others.

Gus diZerega - 1/29/2008

unfortunately Dale Franks just helped illustrate my point about libertarians and the right. The Founders - most of the - believed in what is called jury nullification. Both Jefferson and Adams supported it - and they disagreed on much. But then, they believed in citizen sovereignty more than most on the right do no matter what fancy label they give themselves today.

Dale Franks is a big part of the problem rather than part of the solution.