The Mercy Seat

            At this very moment, over two million Americans are imprisoned under a regime that boasts a higher incarceration rate than the Gulag death camps of communist Russia (Gopnik, 2012). With more than tens of billions spent annually alone on the failed war on drugs and the rising millions of people being arrested each year for victimless crimes, conservative and liberal methods have been clashing for decades to best present a strategy that will succeed in reducing crime (Drug Policy Alliance). Would the institution of longer sentences and harsher penalties service to deter crime overall? Would an increase in the prohibition or regulation of substances, businesses and permissions decrease offenses? Or should the justice system be, upon the consideration of reducing violence, be transformed altogether? In the pursuit of logic and truth over faith and myth we must examine how the current system works to reduce crimes, if at all.

From harsher sentences to increased forfeitures, the death penalty occupies the extreme end of this spectrum. Crimes that are decidedly deserving of such extreme punishment include murder, rape, espionage and treason. Legal in 31 state governments, this method of deterrence, however, can be found under the employ of all state governments – sometimes even championed by its supporters – for victimless, non-violent crimes. Resistance or refusal to comply with the law, or a system of opinions enforced via the use of government coercion, can lead to immediate and sudden death. Take Eric Garner or Derek Cruice for example. Garner was murdered on a public sidewalk by police officer, and government employee, Daniel Pantaleo for allegedly selling untaxed single cigarettes in New York (“Medical Examiners Rules,” 2014). Cruice was murdered in his home by police officer Todd Raible for having cannabis plants in his residence in Florida (Smith, 2015). Or consider Samuel DuBose, murdered by police officer Ray Tensing after being pulled over for allegedly missing a license tag (Ford & Payne, 2015). The list of people sentenced to death by government opinions for victimless crimes is lengthy; the number of lives, reputations and futures destroyed, innumerable. The assertion that capital punishment is effective in universally deterring crime becomes irrelevant when the government’s monopoly on justice results in the death penalty, or permitted murder, for individuals exercising opinions that vary from those held by authority. Further, these legal opinions, or statutory codes, cannot be proven to be applicable to any individual, which leads to another argument used to justify harsher punishments for determent – the U.S. Constitution.

The Eighth Amendment to the United States Constitution concerns itself primarily with prohibiting government from administering cruel and unusual punishments, which is of course too vaguely stated to define what exactly constitutes a punishment to be cruel or unusual. For many criminal justice advocates, the U.S. Constitution is always used as the last saving grace to draw authority from when pressed for justifying laws. But they’re wrong. No one can prove with demonstrable facts and evidence that their laws apply to anyone. Since the basis of proving any jurisdiction ultimately falls back onto the U.S. Constitution, a document that can only prove, without question, that it is a document written over 200 years ago. That is not, however, evidence to show jurisdiction. In the end, frustrated judges will argue, “it applies because I said so,” revealing the true brutal nature of the criminal justice system – one that is founded on faith, myths and the initiation of force – and their weakness for logically fallacious arguments (circular reasoning in this case). Aside from no one signing the U.S. Constitution as a binding contract, signatures were placed as “witnesses whereof,” which is what a notary does in validating that the document is authentic. And even if it were signed as a contract, it would be binding only to the parties involved, not to anyone else. There was no power of attorney granted by children, women, landless men, slaves, indentured servants, etc. to bind them to such a contract. There is no factual evidence to show the document even received consent from a majority of the population. Contracts, on the other hand, are important. In a free society, you would be free to choose a community that catered to your lifestyle and preferences with outlined rules and consequences to which you could give contractual consent. Real and tangible contracts currently exist in many facets of society such as a leasing agreements, cell phone contracts, car loan, Netflix accounts, etc. Could there be capital punishment found in a free society that has market competition for arbitration? It’s possible, but unlikely because of economics.

As it currently stands, it costs millions for a potential death penalty case to get through a trial. This does not even include the appeal process costs (Wilson & Petersilia, 2002, p. 103). Without the billions of dollars stolen through taxation in order to subside these costs, the funding would have to come directly from the wallets of those supporting the death penalty as an option. And when you examine the number of people on death row who have been found to be innocent due to works like the Innocence Project, finding an insurance company who would risk covering the liability for such cases would be most difficult. Economically, the cost of seeking a capital punishment option in a market of arbitration would be too great to outweigh the benefits. Justice for the victim would be bettered served by via economic reparations instead. It is after all only the victim that decides how to proceed with charges and damages sought. If the victim is one of homicide, then anything outlined in his will & testimony in the event would preside over the matter, or in the absence thereof, the closest family member would decide in accordance to the rules outlined in the respective community the crime took place in. The Amish for example practice forgiveness for all in their culture, which even extended to Charles Roberts in the 2006 school shooting in Lancaster County, PA.

            The last issue to address when considering arguments for or against the death penalty is that of morality. Morality, of course, must be universal. If it’s immoral to steal then that must be applicable to any individual regardless of title or status. Ingraham’s (2015) reporting found that the police now steal more than private theft in the billions:

Officers can take cash and property from people without convicting or even charging them with a crime — yes, really! — through the highly controversial practice known as civil asset forfeiture. Last year, according, the Treasury and Justice departments deposited more than $5 billion into their respective asset forfeiture funds. That same year, the FBI reports that burglary losses topped out at $3.5 billion

If exceptions are made to what is moral, to what is theft, then it can no longer be claimed to be moral. Therefore if morality is of such concern to the advocate of criminal justice then logically you cannot advocate for an organization that must first commit immoral crimes in order to then perform moral ones. A thief is a thief is a thief. This is of particular importance when the mythical claim arises that the criminal justice system is here to protect you, despite that it must first rob you of your property via taxation before it can make protection claims. Moral arguments aside however, government has already decreed through many Supreme Court rulings such as in Deshaney v. Winnebago County or Warren v. District of Columbia that it has no obligation to protect you. You are forced through taxation to pay for a monopolize service that does not exist. And if a citizen is defined as an individual who gives allegiance to a political body in return for protection, then logically speaking then no such thing as a citizen or a state exists (Stevens, 2006).

Does harsher punishments and increased penalties deter crime? The question avoids what makes an action a crime in the first place. For gun ownership alone there are nearly 20,000 laws dictating what you can and cannot do with your property that would make you a criminal if you disobeyed. Every law government passes creates new crimes. And every crime a person is caged for that has no victim is a crime in itself. Currently over 80% of people suffering in federal prisons are in there for victimless crimes (Prisons, Jails & Probation, 2016). One such victimless crime that has done a lot to harm the lives of peaceful people is the series of laws that target those who imbibe on alcohol. Without even producing a victim, the presumption of innocence is stripped away from those that have caused no harm. Using inflated numbers attributing 25,000 deaths to alcohol it “included any highway fatality in which alcohol was in any way involved: a sober motorist striking an intoxicated pedestrian, for example” (Balko, 2004). The actual number was closer to 5,000 in the 1990 case Michigan v. Sitz, but that wouldn’t fit the epidemic narrative Mothers Against Drunk Driving were creating. If concern for preventing traffic deaths were of genuine interest then it would be government’s poor road management that produces nearly 30,000 deaths annually since 1949 that would be targeted instead (Neville, 2011). With government shutting down Uber and Lyft in Austin, Texas recently, came an increase of driving under the influence arrests up by 7.5% (Masnick, 2016). So much for the myth that drunk driving is a public safety concern.

More crimes mean more money to profit off for the parties involved in arresting, prosecuting, and sentencing peaceful people. Longer sentences and harsher penalties is no the solution to curbing crime. Attempts to reform few laws in the face of hundreds that come in pouring every year will turn you into Sisyphus with no clear measure of success in sight. Abolishing the government’s criminal monopoly on law, security, and arbitration is the only thing that can lower the crime rate. A market for creating polycentric legal services, which would have real respect for property rights and contract agreements, is the only solution in deterring real crimes that have real victims. There is no guarantee that in a free society, without government’s criminal monopoly on justice, you will never become a victim of crime, but under the control of government, victimization is guaranteed.



Balko, R. (2004). Drunk driving laws are out of control. Cato Institute.

DeShaney v. Winnebago County Department of Social Services, No. 87-154 (7th Cir. Nov. 2, 1988).

Drug war clock. Drug Sense.

Drug war statistics. Drug Policy.

Ford, D. & Payne, E. (2015) Ex-university cop in Samuel DuBose shooting death pleads not guilty. CNN.

Gopnik, A. (2012). The caging of America. The New Yorker.

Ingraham, C. (2015). Law enforcement took more stuff from people than burglars did last year. The Washington Post.

Kinsella, S. (1996). Punishment and proportionality: the estoppel approach. The Journal  of Libertarian Studies, 12(1), 51-73.

Masnick, M. (2016). As Austin struggles to understand life without Uber & Lyft, DUI arrests on the rise. Tech Dirt.

Medical examiner rules Eric Garner’s Death a homicide, says he was killed by chokehold. (2014, August 21).

Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990)

Neville, S. (2011). U.S. road deaths at lowest levels for 60 years but still one killed every 16 minutes. Daily Mail.

Prisons, jails & probation – overview. (2016)

Smith, P. (2015). Florida SWAT cop guns down unarmed man in marijuana raid. Stop The Drug War.

Stevens, M. (2006). Cutting through the dogma. Marc Stevens.

Wager, P. & Rabuy, B. (2016). Mass incarceration: The whole pie 2016. Prison Policy

Wilson, J. Q., & Petersilia, J. (2002). Crime: Public policies for crime control. Oakland, Calif: ICS Press.

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