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A silver lining to unjust executions

Occasionally, a piece of argument comes along that almost begs to be taken apart. Usually, these kinds of arguments appear from the mouths of the undereducated, but in an essay on “A silver lining to unjust executions”, Dr. Walter Block, professor of economics at Loyola University in New Orleans proves that those who’ve done a PhD (Piled Higher and Deeper) can be ignorant of what an argument actually is.
Block starts reasonably, with a description of the libertarian theory of punishment. In this, the foremost aim of punishment is to repay the victim of crime for the action of the criminal. All well and good, and – at least – based on some kind of logical framework. However, when Block expands this to the problem of how to repay a victim of murder, he makes a criminally basic logical error.
He starts well enough, with a thought experiment. Suppose there were a machine which took the life force of the murderer, and gave it to the victim, resurrecting them and killing the criminal. That would be a form of repayment, and hence justified under libertarian punishment principles. Again, so far, so reasoned.
He then makes his first error, jumping from this thought experiment to saying that it proves the death penalty is justified, even though no such machine exists. Unfortunately, this is not the case, because without such a machine, the death penalty does not repay the victim and thus does not satisfy libertarian principles of punishment. To deprive the criminal of something is not the same as to repay the victim. It is as if, for a theft, the criminal was required to work to make money to repay the victim, and then both victim and criminal had to watch the money destroyed. No repayment, no punishment should be the maxim of libertarian punishment – and the death penalty doesn’t cut it.
The next logical failure is in his discussion on justice and due process. Block claims that the execution of innocent men may have a silver lining as, in his words, “many of those on death row have murdered on numerous occasions, and were only caught, found guilty and sentenced for, one such crime.” Hence, even though innocent of the murder they are to be executed for, the other untried crimes deserve the death penalty. This is “a sort of justice”.
This argument fails on two points. First of all, Block’s justification of it is profoundly anti-liberty, as it rests on the idea that “justice” means something other than due process of law. Due process is an essential safeguard of the rights of the individual against a state, and to suggest that a violation of due process can be “good” in libertarian terms is simply wrong. In practical terms, justice simple is due process.
Secondly, there is Block’s reasoning method. He starts with the sound point that it is an action that’s good or bad, not the person that takes the action. A Nazi camp guard can save a life, a gang can stop another gang committed rape, and so on. From this, he makes the jump to saying that something good can come from an unjust act – in this case, a person being killed for a crime they did not commit. The problem with this is the two things are not equivalents: In the first case, we are saying a bad person can commit a good act, and in the second case, that a bad act can mean a good act. I would hope it’s clear why these are not the same things.
At the end, Block hedges his bets by claiming that “Criminals should be executed not for the murder of those they have not killed, but for their actual transgressions. However, honesty compels me to acquiesce in the notion that sometimes a sort of justice can occur even when this does not take place; when people innocent of a specific crime are executed for it nonetheless.” In other words, Block’s argument comes down to the statement that “the bad guy got what he deserved.” Such a ludicrously simple notion of justice is unjust, anti-libertarian, and ultimately stupid.

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