THE TWO FACES OF LIBERTARIANISM
and
THE LEGAL INSANITY OF LEGAL INSANITY
by Kirk Brothers
CLICK HERE to return to Index
INTRODUCTION These two brief articles were written as comments on what many readers might consider minor matters, because they deal, not with obvious major and undisputed threats to basic rights of all Americans, but only as comment on what I perceive to be a serious internal problem of the Libertarian Party. Specifically, I refer to Libertarian political philosophy--or the lack of same. Various newsgroups provide forums for the expression of numerous--and therefore conflicting--political opinions. Such intellectual disputes are both inevitable and correct. It has been my observation, however, that many articles by writers who appear hostile to Libertarianism fail to recognize that so-called Libertarians are by no means homogeneous in their persuasions--and thus in their actions. As a result of our disparate philosophies, it is my belief that we Libertarians fail to recognize a serious "credibility gap" between ourselves and our critics--and it is my hope in these few short pages to define the reasons for this gap, in the hope that defining the problem accurately may be half of the solution. THE LIBERTARIAN DILEMMA In some of my earlier articles I alluded to Libertarian ideology, without attampting to assign any specific parameters. Translation: I was vague and imprecise. Problem: so are all other Libertarians I've ever met. If we can't agree on anything except the right to disagree with other Libertarians, how can we hope to find a viable slate of candidates, and mount a credible campaign that addresses crucial issues in inspiring terms? Let's not forget that Ross Perot rolled over the Libertarian candidates for President in 1992 and 1996. Why? Well, one reason might be that in 1992, as I recall, the candidate for President advocated eliminating the deficit and balancing the budget by a national lottery. I for one found such a platform embarrassingly simplistic-- based on short-term, superficial expediencies, and lacking in any long-range vision to instill enough confidence to win even my vote. And as a rule I've found that Libertarians speak very eloquently on what they're AGAINST, like death and taxes--taxes more than death--but have no eloquence when asked what they're FOR, except freedom. And there's the rub. LIBERTARIANISM AND FREEDOM In THE REVOLUTIONARY RIGHT I mentioned briefly that we, as Libertarians, hold that the right to be let alone, free from governmental meddling, is the most important right of all, as it implies all others. It is, in essence, the right to do what one wishes, EXCEPT INJURE SOMEONE ELSE. I noted that no freedom is absolute, and now add the central presumption: ASSUMING that one chooses to remain a part of any society. I submit as self-evident that every freedom is like a coin with two faces: a RIGHT as the "heads", and a concomitant RESPONSIBILITY as the "tails". A right, with no responsibility to exercise it properly, is inconceivable to a TRUE Libertarian. A second point to introduce here: all Libertarians appear to be "free enterprise" oriented--but many seem to advocate unbri- dled freedom as a panacea for our economic and social problems. Well, here I begin to respectfully but emphatically disagree. The key word is "unbridled", which implies ABSOLUTE freedom to make a profit, with no moral obligations whatsoever. Thus I submit that these "Libertarians" create a bad image--i.e., that our movement is dedicated merely to making money, and has no philosophical basis other than the profit motive. I submit that we must temper our economic Libertarianism with a degree of social responsibility. Let me give you an example. Mr. Jay Hanson has filed two scholarly articles on alt.politics.economics on the subjects, THE FATAL FREEDOM and KNOW THYSELF. To quickly summarize the theme to which Mr. Hanson devotes in-depth treatment, he cites Hobbes and Locke, among others, for their writings on the concept of "the Commons"--that is, the gifts of nature which are common property IN EQUAL SHARES to each and every member of any social group. These Commons are to be protected from abuse by any member of a society to preclude their exhaustion by damaging exploita- tion. Destruction of the Commons, in fact, is an injury to the common rights of all other persons. In a nutshell, we're talking about conservation--a/k/a environmental protection--to preserve as best we can the quality of life for ourselves and our poster- ity. The oldest book in the world refers to the preservation of the Commons as a basic part of the "social contract". The book is from China, and is called I CHING (pronounced roughly "yee jing"), which is the basis of Taoism (pronounced roughly "dowism"), Confucianism, and plays some role in Zen Buddhism. The title means, "The Book of Changes", and the book consists of 64 symbolic six-line figures called hexagrams, each one bearing a symbolic title, and given a spiritual meaning which was origi- nally in poetic form. Number 48 is called "The Well," and refers to the tradition- al well--central to every town in ancient China--which was the source of water essential to sustain the quality of life for EVERYONE. The theme of the relevant poem is to PRESERVE THE WELL--the town might change, but the well must remain the same. Forgive me for interpolating a very crude and even vulgar inter- pretation--but I can think of no "polite" version that would make the point as well. One meaning of this hexagram might be quite coarsely rendered: "if you're going to live in the town, don't shit in the well." Back from Chinese philosophy to modern-day Libertarianism! To many so-called Libertarians, the idea of environmental pro- tection is high on their "hit" list. Get the government off our backs, say they--let people do what they want. I submit that these so-called Libertarians are nothing more than short-sighted opportunists, who see a chance to make a buck by exhausting irreplaceable natural resources as one of their primary rights. I say they are wrong. Here's one reason why. A couple of years ago a narrow dirt road near my home was widened and paved. In order to widen it to let a few cars drive a little faster and easier, crews cut down a fairly large tree because its spreading roots lay where the all- important concrete had to be poured. It took nature about 100 years to grow that tree, and it took those men with power saws about 100 minutes to destroy it forever. Do I feel sentimental about a tree? Not in the sense of the familiar poem. But consider for a moment the similar destruction of the Amazon rain forest--or the arguments to cut down most of the Sequoias in California to make money on their lumber. There are, essentially, two rights in conflict in the dispute: the right of "free enterprise" touted as all-important by so-called Libertarians, and the right of future generations to be born into a sane and healthy environment, as we were early in this century. True Libertarians must be willing to accept the "tails" of responsibility of providing for our posterity over the "heads" of a quick profit on the coin of commercialism. I say a coin with two "heads" for freedom is counterfeit. THE SOCIAL CONTRACT Thomas Paine, previously cited numerous times, wrote that society is always a blessing, and not to be confused with govern- ment, which is essentially a police force--coercion, for short. At that time I added that SOME government--as little as pos- sible--is NECESSARY to protect the rights of the majority in any society, who act in good faith, from INJURY by the selfish few to whom "good faith" is an oxymoron. Many so-called Libertarians will disagree vehemently with my viewpoint, because I talk about moral obligations. Such persons have no sense of moral obligations that I can discover. To them, conscience--as Mencken wrote--is just the voice inside that tells them someone might be watching. In short, they want a license to steal--and they attempt to justify their selfishness by saying they're Libertarians. CONCLUSIONS I submit that Libertarians must examine their own thinking very carefully and decide if they are willing to accept the ideal of social responsibility or not. If no, I suggest they get out of the Libertarian Party, or that true Libertarians unite to issue a Manifesto on a philosophy that addresses (a) the necessity of accepting a responsibility with every right; (b) the necessity of protecting the rights of unborn Americans to as healthy an environment as our generation inherited; and (c) the necessity of protecting those innocent and unfortunate persons who are unable to protect themselves from the rapacious greed and amorality of sociopaths who seek to live by the law of the jungle. If the Libertarian Party cannot concoct a platform of basic ethical principles that go beyond mere freedom, the party should be prepared to close up shop. * * * * * * * * * * * * * * * * * * * * THE LEGAL INSANITY OF LEGAL INSANITY * * * * * * * * * * * * * * * * * * * * INTRODUCTION It is my opinion that there are numerous problems to which I submit that we Libertarians must give a great deal of serious thought, with a view of developing a meaningful philosophy for our party. I have written before that too many Libertarians have a reputation of ignoring social and ethical considerations in the pursuit of a laissez-faire marketplace. While laissez-faire is well and good, it cannot solve many problems which plague our country (and the world)--and if we fail to offer voters positive solutions within a Libertarian framework we cannot hope to ever become a viable political force. My series as a whole will deal with a variety of legal and political problems which "the system" adamantly refuses to change --apparently merely because shysters are in favor of shysterism-- which I define as legal hair-splitting for the sake of splitting hairs, and to hell with practical considerations. One of these problems is the cracks in our criminal justice system--two in particular being the defense of insanity (and thus disposition of cases involving mentally-defective parties), and the granting of parole and/or medical release to career criminals and (in common terms) "crazy" killers--which I submit demands total overhaul. In order to bring about such an overhaul--and make it binding, I submit that we must make changes in a number of outdated laws and legal rules, and to force such changes might require a Constitutional amendment. Please note, especially in these minor articles, that I write as a JOURNALIST presenting facts from journalistic sources, in a style immediately understood by laymen, for the purpose of stimulating serious thought on subjects of public interest. It is my hope that readers with scholarly credentials will be sufficiently interested in this rough presentation to address the same problem in more learned style for academic study by research students in the applicable professions. THE NEED FOR REFORM Pick up your favorite newspaper just about any day of the week and you'll probably see a story like one of these: A woman in Maine is charged with murdering her young children because "God told her to do it." She is obviously delusional. Is this a tragedy? It's only half of it. The real tragedy is that she also killed her (then) children some years before--for the same reason--was found not guilty by reason of insanity--was "treated" in a mental hospital until she was "cured" and sent home to her husband--had a new crop of babies, and then killed them as she had the first. The case created a sensation about 30 years ago as I recall, but the subject matter, and the problem, is timeless. A similar case just a year or two ago from South Carolina will be remembered. A young mother strapped her two sleeping infant sons in their car seats, let the car roll into a lake, and told police the car had been stolen and the boys kidnapped by two black men. Her arrest led to a series of heartbreaking stories-- the culmination of which she was first found guilty of murder, and then found by the same jury to be delusional, and therefore spared the death penalty. A fairly recent horror from Chicago. Two mentally retarded blacks in their early teens with reported IQs of 80 and 68 were convicted of murdering a younger black by dropping him headfirst from a high-rise window--the victim's older brother looking on-- because the younger boy refused to steal for his two murderers. The killers were so young they could be sentenced to imprisonment only until they are 21 years old--when by law they must be freed, having had a few years in an adult prison, where they learn how to commit other atrocities. Another recent ghastly tale from the upper midwest, from which the families of the victims can never recover emotionally. Two young white males and their black girlfriend conspired to murder a woman nine months pregnant and cut her open to deliver her fetus--because the girlfriend wanted a baby. It was reported that, in court for her arraignment, she asked, "Why I am I here?" A recent case in Florida, involving a man who some years ago raped a teenage girl in California, cut off her forearms and left her in a ditch to die. She did not die, but was horribly mutilated for life. Her rapist was given a lenient sentence, then granted parole after a few years--returned to his home in Florida where he attempted suicide a few times--and was a year or so ago convicted of murdering a woman whose body was found in his home. The Florida jury was wise enough to recommend the death penalty, and he is now on Death Row awaiting proper justice. Add to this list the names of serial killers such as Wayne Gacey and Jeffrey Dahmer, and others less notorious but just as willfully--if not satanically--evil. When one reads of such out- rages, the first reaction of most citizens is, "What the hell are the Courts doing? Why don't they just take those bastards out and kill them?" While Libertarians are in the forefront of those who demand due process for all criminal defendants, we should also feel that the VICTIM of a heinous crime must not lose his right to justice --retribution, in a word--simply because he may be dead. In some cases, the victim might not be dead, but have absolutely NO LEGAL PROTECTION. Here's a grim case to illustrate the point--it's another Florida case still unresolved. A young white couple of grossly unfit parents were arrested about a year ago for torturing their year-old son. The boy was returned to his parents by an idiotic (or perhaps legally hog-tied) judge after the parents were "counseled" or some other damfool excuse. A month ago the two-year-old boy was back in the hospital with even more brutal parental torture to be repaired. Medical evidence showed that, among other things, he had been punched in the stomach by his father--a strong working man--which might easily have been fatal if over the heart. A patch of hair, about the size of a half-dollar, had been pulled out by the roots. That's enough to prove the point. Obviously the boy was without standing or maturity to explain anything to a judge. What will happen? Will the boy be returned to his lousy, unfit parents AGAIN? Doesn't society care? Libertarians should. I submit that we need children's ombudsmen in each and every such case, with a statutory mandate to represent the child against his abusive parents. An ombudsman was originally a Swedish legal official whose job was to investigate and act on complaints against public officials by citizens without legal standing to do so themselves. I submit that a judge who holds the rights of obviously unfit and abusive parents superior to the rights of an obviously abused child must be instantly challenged in a higher court. I further submit that such parents should be legally sterilized and debarred from any future custody of their abused children. Anyone who respects the rights of victims must feel justifi- able fury at the way our sluggish legal system handles cases involving defendants who are, to use common language and common sense, either crazy or simply monsters--such as mentally unfit parents, or the two cretins who dropped a young boy out a window for being honest. In plain talk, such people are no damn good. WHAT IS INSANITY? In sensational criminal cases, juries may be forced to juggle medical and legal reasoning in compliance with laws and rules pertaining to insanity as a defense. They are called upon to decide what is quite impossible to know with certainty--what was going on in the head of the defendant at the time the crime was committed. It's an old saying that if you consult ten experts you can get twelve opinions--and if psychiatric experts cannot agree on such a crucial fact, how can laymen be expected to be Solomons? I apologize for beginning with basics with which most readers may already be familiar--but I write for laymen with little or no prior study or experience in the fields of law and/or psychology, so bear with me if the basics are obvious to you. Insanity is not the same thing as "being crazy". Is this insane? Almost--it's shysterism at work. Here's the gist of the apparent contradiction. THE NEED FOR UNIFORM CRIMINAL LAWS There is, from any logical or moral viewpoint, only one simple and easily-understood legal standard for behavior--willful injury of another person is a criminal offense. But we do not have a single, logical legal code--we have fifty-one. Each state has its own code defining crimes within its jurisdiction, and the federal government has a few--relatively speaking--criminal statutes separate from state laws. For years the American Bar Association (ABA) has tried to win acceptance of its Uniform Criminal Code, under which all crimes would be defined and punished exactly the same in each and every state in the nation. Why not? If the United States is one nation, how can anyone justify fifty-one sets of laws which often conflict with each other? A uniform criminal code is an idea whose time has come-- again and again--and been rejected by "the system". Why? Perhaps simply because lawyers have a field day under the present clumsy arrangement, and it serves their interest not to simplify anything. Then, too, we always run into the sophists who argue "states' rights". I submit as self-evident that such special pleading is all too often a "cover-up" for states' wrongs. How does this affect cases involving insanity as a defense? WHAT'S THE VERDICT? In an ordinary criminal trial, a jury must choose between two verdicts: guilty (meaning proved beyond reasonable doubt by the evidence presented), or not guilty (meaning there is at least a reasonable doubt that the prosecution has proved its case). Under the old laws of Scotland, a jury had a choice of three verdicts: guilty, not guilty, or not proved. I submit that this was a very sensible law, because "not guilty" should, by logic, mean that the defendant is EXONERATED. A verdict of not guilty, by logic, means that the prosecution was IN ERROR. But a verdict of "not proved" meant only that the defendant could not be found guilty on the evidence because the prosecu- tion's case was weak. It was NOT an exoneration--it implied the possibility of guilt, which was clearly prejudicial in any future trials of the same defendant--which might be the reason the old law was changed under the Common Law of England. Now let's look at the normal dichotomy of guilty/not guilty in cases in which insanity is the defense. Juries in some states have traditionally had a choice of three verdicts: Guilty (on the evidence, beyond reasonable doubt); Not guilty (on the evidence--exoneration); Not guilty by reason of insanity (meaning the defendant did, in fact, commit the crime, but was not LEGALLY RESPONSIBLE FOR HIS ACTIONS AT THE TIME). In Media, Pennsylvania, quite recently, the heir to the DuPont fortune was found insane when he killed a man who was in athletic training on the DuPont estate. He will be confined to a mental hospital until "cured", and then eligible for release. So insanity has a narrow and specific legal meaning: that a party in a case is not competent to understand right or wrong, or (in civil cases) to handle his own legal affairs. Any person found incompetent is usually "crazy" as well, but the concept of "being crazy" is, essentially, an ILLNESS which the medical profession--most unwisely--is authorized to determine. This is unwise because the records show a dismal success rate in so- called "cures", and many if not most psychiatric patients relapse into their prior mental illness, sooner or later. VARIATIONS IN HANDLING INSANITY CASES In states where a jury must consider a verdict of NOT GUILTY BY REASON OF INSANITY, such a finding amounts to exoneration--the defense of insanity in those states, if successful, is an abso- lute defense. I submit that such verdicts are, unfortunately for justice, an absolute denial of any protection for society as a whole against true schizophrenics who are released from mental hospi- tals, only to repeat their insane actions with a new victim. A single such case is one case too many--but in my lifetime there have been dozens, if not scores, of repeated criminal acts by insane persons who had been supposedly "cured". In some states the question of insanity is determined first--it will be recalled that Jeffrey Dahmer was found compe- tent to stand trial for murder (though Wisconsin does not impose the death penalty, so a finding of sanity could not aggravate his sentence. In some states (as in the South Carolina case) the question of insanity is determined after a guilty verdict as a mitigating circumstance which precludes the death penalty. But the discrepancies between state laws, and consequently between court rulings under those conflicting laws, create a situation which is simply unacceptable to any sane person. Thus I submit the following proposals for thoughtful consideration. WHAT SHOULD BE DONE First, the long-proposed Uniform Criminal Code of the ABA should be adopted nationwide--by Federal statute if possible, since Federal statutes supercede state laws if Federal and state laws conflict. This legal principle is inherent in the Four- teenth Amendment, but it is often ignored by many Courts in keeping with the abuse of discretion exposed in Chapter Two of THE REVOLUTIONARY RIGHT. Second, in cases in which insanity is a criminal defense, the jury should be given three options instead of two: Guilty (on the evidence, beyond reasonable doubt); Not guilty (on the evidence or lack of same--exoneration); Guilty but insane (in a single jury decision, not two). Third, any defendant found guilty but insane should be deemed by Federal statute to be CRIMINALLY INSANE FOR LIFE, and never be eligible for release. The facts show that "cures" of mental illness are, at best, mistakes in the vast majority of cases--perhaps because the doctors want to make themselves "look good" by "curing" patients. It is time that medical doctors be permanently debarred from their current position of substitute jailers and parole officers--neither of which responsibities is part of their expertise or temperament. Fourth, criminally insane persons should be confined to a special cellblock in a prison where they would be treated like any other prisoners--with the exception of special precautions and some therapy where feasible. Fifth, insanity should be defined precisely--by statute rather than by judicial opinions--either as being incapable of understanding right and wrong, or being mentally defective and thus incapable of assuming responsibility for his/her actions. Thus, the retarded youths with IQs of 80 and 68 should be deemed criminally insane for life, due to genetically-defective inhtel- ligence. The prospect of their release at any time in the future is a grim reminder of the defects in our criminal justice system.