An Example of Killing as Allowable Restitution
This example was generated by the plot of an episode of "The Practice" - a television drama about a firm of lawyers.
This article was written prior to the conception of the Self-Sovereign Individual Project and the discovery of the Theory of Social Meta-Needs. At the time this episode greatly moved me, particularly because at the end Nancy was being taken to jail for murder, and I felt compelled to show how and why this was a completely wrong and unjust approach to the events. The analysis given here came from my many years of libertarian/objectivist thinking and was an attempt to show how and why the procedures of the current society could be made better than they currently are and were portrayed in the TV episode. Some discussion of how a similar harmful event would be dealt with in the Freeman Society (see the Natural Social Contract) recently took place on a MoreLife Yahoo group thread, which has prompted these added explanations about this article.
Summary of the events of the story line.
- A woman (I think it was Nancy) has been arrested for shooting and killing a man (let's call him George) in front of his house during his arrest by the police. Nancy's guilt of George's actual killing is clear since it is in front of the police and many witnesses, including the TV cameras. Immediately after shooting George, Nancy drops her gun, puts up her arms and offers no resistance to arrest.
- George was being arrested for the rape and murder of Nancy's 7 year old daughter. She had heard about the impending arrest on TV news and at the same time heard that George, who she knows was the child's soccer coach, has now been found to have a prior history of child molestation.
- There is much legal agonizing about how Nancy should plead (not guilty, temporary insanity, manslaughter, etc). At first she steadfastly refuses to plead temporary insanity. Nancy apparently believes that her action was moral and fully justified, but the details of what she really thinks are obscured by the fact that she is a deaf/mute and must communicate in sign language. In the end, the lawyers convince Nancy that her only chance is to plead temporary insanity.
- Much of the episode revolves around the trial itself. As soon as it begins, it is very clear from Nancy's documented actions that she knew exactly what she was doing, and did it clearly because of her extreme pain of suffering, and a desire for closure and restitution for her only child's horrible death. This lack of any temporary insanity is so clear that the lawyer's psychiatrist refuses to testify that Nancy was temporarily insane. Thus, the possibility for Nancy's acquittal depends on the jury's agreement that the killing was justified, a case which appears to have some chance since the hearts of everyone are clearly moved in sympathy to her and her loss.
- However, the judge will not allow jury nullification to be argued (ie. that the jury may nullify the law in certain cases). Moreover, the prosecuting attorney makes a strong argument against allowing vigilantism, emphasizing that "George was not even given the chance to be tried and had not yet been found guilty". In the end, in spite of all the sympathy, 12 jurors unanimously toe the legal line and find Nancy guilty of 2nd degree murder - requiring life in prison. The episode ends with the lawyer telling Nancy that the firm will appeal, but the viewers know that it is hopeless. The defense attorneys then dash off to attend an office elopement as if nothing of any serious nature had just occurred. The last scene shows Nancy being carted off to end her life in prison with the prosecuting attorney looking on (having saved his job by "winning" this high publicity case).
Analysis of the rights issues involved.
- The perpetrator of the rape and murder has violated the right-to-life of the victim to the greatest extent possible. By his actions the perpetrator has forfeited his own life to those whom he has harmed, if they wish to take his life, instead of some form of monetary restitution from him for their loss. Note that the debt from the perpetrator is owed only to the victim(s); no one else has directly lost any value and certainly the "state" being a non-person who cannot suffer harm has not been violated. It is purely the rights-relationship between the victim and the perpetrator which has been violated by the perpetrator. He still retains all his rights with respect to everyone else.
- In this case, since the victim has died, the perpetrator of the crime cannot restitute the victim directly in any manner. However, the victim has heirs to whom this restitution is automatically bequeathed similarly to any other asset. Nancy is a single mother (her husband died several years prior) and is objectively her daughter's heir to the harm and loss incurred. Thus, Nancy becomes the de facto victim to whom the perpetrator owes restitution up to the forfeiture of his life if she should demand it.
- Although the rape and death of the child are clearly established facts implying that there must exist some perpetrator of these crimes, the proof that some particular person was that perpetrator is yet to be established. Here is where the script writers of this episode really missed doing something highly interesting and socially beneficial. At the point that the prosecutor strengthened his argument on the ground that George had not yet been found guilty, the defense should have jumped in and demanded that George be tried posthumously, in order to prove that he was in fact the perpetrator. This would have greatly strengthened Nancy's case even under the present legal/jury situation. In fact, the events of the drama left little question that George *was* the actual perpetrator and at the very least the defense should have made this point.
- By shooting and killing the alleged perpetrator, Nancy leaves herself open to the possibility that *she* is a perpetrator of a crime (initiator of aggression) because it is possible that the man she shot (George) is *not* the perpetrator. Thus, her act is certainly a dangerous and foolish thing to do. On the other hand, her need for restitution and closure is so great and society is so lenient on criminals, and so oblivious of the needs of the victims, that she may well think this is her only chance to achieve justice. Her action in immediately assuming the position of arrest, shows that she knows that she will now have to prove that she had the right to commit her violent action. However, she believes (correctly in my view) that once it is proven that George was in fact the actual perpetrator, she will be seen to have been clearly within her rights (of exacting restitution appropriate to the loss) to have shot and killed George.
- Thus, if it has been scripted properly, the episode could have made a very good case for a decision by the jury of not guilty because of justifiable homicide. Alternatively, if there were no mandatory sentencing requirements, then the judge could have simply given Nancy a suspended sentence, at least, until it was totally clear whether George was guilty or not. Note that the morality of mandatory sentencing will be covered in another essay about who are the restitutional rights-holders - ie the levels of victimhood - and how are the correct amounts of restitution for given crimes to be determined.
Added 1/31/10: The "other essay" referred to in the last sentence was never written because the entire analysis of this harmful event and how it should be handled has been much more fully elucidated in a completely general fashion by the Fundamentals and Solutions sections of the The Self-Sovereign Individual Project
Only individuals have the ability to evaluate and to act. Our society needs to understand that the relationships, rights, responsibilities, and restitutions involved in any actions are between individuals. States, corporations, etc. being non-human fictions are never an aggrieved party and at best should act merely to help decide the identities of the true victims and criminals and to help the victim(s) gain just restitution from the criminal(s).
Note: For more detail of the necessary basis for a society of individuals trading to mutal benefit, each seeking his/her (hir) own maximum lifetime happiness, please see the The Self-Sovereign Individual Project, at only an embryonic stage when this article was first written.
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