A reader wrote to ask me (below) about my views regarding criminal prosecutions and the death penalty. I thought it worth answering in depth because of the importance of both questions.
So here goes.
Jury selection for the Brendt Christensen trial should be finishing soon. Christensen is charged with the disappearance of Yingying Zhang. The feds are seeking the death penalty. I was unaware that you wrote about trials until I read about the Anthony trial here. So I have a few questions on this one. In this case there is no dead body. Do you think the government should be allowed to kill people when they can’t even prove the existence of a victim? Internet search histories. Like the Anthony case, what the accused looked up will play an important role in this case. What do you think about the current trend of using what people say and read online to determine their suitability or culpability by government agents? Finally, do you think the clovers have evolved to the point where the accused will be found guilty simply because the government needs more power to keep us safe?
At one time, I supported the death penalty. At one time, I was also a more-or-less “small government” conservative with Libertarian leanings.
First, I got to thinking about “the government.” What do we mean by this? It appears to mean a kind of entity, transcendent and superior. In fact, it is just a rhetorical device which drapes other people – the ones who hold offices, have titles and the legal power to apply murderous coercion – with those attributes, to make the use of murderous coercion seem legitimate in the manner of a god meting out justice.
But this “god” is extremely flawed – because we are flawed. No person acquires god-like powers of judgment, much less the right to impose them, by dint of acquiring a title or the wearing of a badge. But – a kind of psychosis – the title-holders and badge-wearers come to feel (and act) as if they were, in fact, god-like creatures – with the prerogatives that apply.
So, how to firewall that danger? That is the question. Well, one of them!
I reluctantly concede that some architecture for the resolution of civil and criminal issues may be inevitable in this far-from-perfect world. However, as a matter of logic, it is ridiculous to speak of “the government” (or even “the people”) as the victim/complainant in any civil or criminal proceeding since neither have any corporeal actuality and so cannot, in plain language, be harmed.
Only human individuals can be harmed – and this ought to serve as the foundational principle for every civil/criminal proceeding. If a victim cannot be produced – then harm cannot be established – and it would be absurd to speak of a crime having been committed and a moral obscenity to punish the “accused,” who would then become the victim of “the government” (or “the people”).
In a murder (or wrongful death) case it seems to me the first thing which must be established is that the alleged victim is, indeed, no longer living.
Absent a body (or major pieces of it, without which continued life would be in question) the evidentiary standard rises to the almost-insuperable. A very convincing video, of example, of someone being run through a wood chipper.
This of course opens the door to the meticulous killer – but few such actually exist and regardless, the principle applies: Better the occasional injustice (a meticulous killer “getting away with it”) than the regular application of injustice. It’s the same principle which raises its hand to object to taking the guns of people who haven’t shot anyone because someone else did – or might. And which casts a questioning eye on “checkpoints” that presume the guilt of all, who are then obliged to establish their innocence.
Establishing motive is secondary to the necessity of first establishing the fact that, indeed, someone has been killed.
That an accused killer researched X, Y or Z does not tell us he murdered anyone. It tells us he researched X, Y and Z – none of which are murderous acts though in context (of a body) may be suspicious act.
Someone seems swishy. Maybe he is a homosexual. It may be likely he is a homosexual. It may be entirely reasonable to suspect it, based on things inferred. But you do not know it unless he tells you he is – or you witness an indisputably homosexual act.
I think that standard – at the least – should apply to criminal cases.
Capital cases, certainly.
If “the government” is to be given (by whom? – another important matter for discussion) the power to execute people, it seems to me there must be more than the absence of “reasonable doubt,” given the stakes.
Unfortunately, there seems to be a general lust for punishing people who haven’t been proved guilty of anything.
Assertions of guilt now serve a- ipso facto – as “evidence” of guilt. The government would never accuse – much less prosecute – an innocent person. Ergo, if someone has been charged with a crime, he must be guilty of it – or of something.
We see this principle elaborated in the persecution of the Orange Man (and before him, of Martha Stewart). Both were – and the Orange Man still is – pursued not for the original charge alleged but alleged to have “obstructed” their own persecution.
So, yes – I am very uncomfortable with “the government” pursuing a capital murder case without having established that anyone has even been murdered – much less who performed the alleged act. And I am very leery of this business of daisy-chaining things read/researched online – thoughts, basically – with claimed actions.
I read morbid stories; Poe and Lovecraft. I have researched serial killers; read about (and watched) videos about death/embalming – and so on. Does this mean I plan to kill? That I have killed?
Not by any moral accounting.
I’ll end with a short story from the pages of history, which I think applies here. Some will already know it. There was a man named Thomas More, who was at one time the friend of King Henry VIII of England. Also his Lord Chancellor. The two men had a falling out over More’s imputed disapprobation of Henry’s divorce of his first wife – and marriage to Anne Boleyn, who would eventually lose her head (another story).
More lost his head, too.
But not because of anything he did – or even said. His silence condemned him. The lack of evidence, in other words, that he felt one way or the other about the king’s personal life.
And Henry was at least a flesh and blood man – not a hydra-headed entity, “the government.”
It was said Henry felt guilt over the execution of the man who had been his friend – and who had done him no wrong.
“The government” feels nothing. It is an impersonal machine that obviates even that human check on potential atrocity – which is precisely why it so very dangerous to allow it any power at all.
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