A reader emails:
Why is it that Rothbard was okay with police torturing suspected criminals? I was shocked to read that. I understand there’s some qualifiers like: Only in cases where the “punishment fits the crime” and the police would be subject to arrest if the suspect was innocent.
When he speaks of Rothbard being “okay” with police torturing criminal suspects, he is referring to the following passage from Chapter 12 of The Ethics of Liberty:
Take, for example, the police practice of beating and torturing suspects – or, at least, of tapping their wires. People who object to these practices are invariably accused by conservatives of “coddling criminals.” But the whole point is that we don’t know if these are criminals or not, and until convicted, they must be presumed notto be criminals and to enjoy all the rights of the innocent: in the words of the famous phrase, “they are innocent until proven guilty.” (The only exception would be a victim exerting self-defense on the spot against an aggressor, for he knows that the criminal is invading his home.)
“Coddling criminals” then becomes, in actuality, making sure that police do not criminallyinvade the rights of self-ownership of presumptive innocents whom they suspect of crime. In that case, the “coddler,” and the restrainer of the police, proves to be far more of a genuine defender of property rights than is the conservative.
So far, so good. From these two paragraphs it seems fairly clear that Murray Rothbard was opposed to the practice of the torture of criminal suspects by police. However, his next statements may contradict this seemingly strong position against torture:
We may qualify this discussion in one important sense: police may use such coercive methods provided that the suspect turns out to be guilty, and provided that the police are treated as themselves criminal if the suspect is not proven guilty. For, in that case, the rule of no force against non-criminals would still apply.
Suppose, for example, that police beat and torture a suspected murderer to find information (not to wring a confession, since obviously a coerced confession could never be considered valid). If the suspect turns out to be guilty, then the police should be exonerated, for then they have only ladled out to the murderer a parcel of what he deserves in return; his rights had already been forfeited by more than that extent. But if the suspect is not convicted, then that means that the police have beaten and tortured an innocent man, and that they in turn must be put into the dock for criminal assault.
In short, in all cases, police must be treated in precisely the same way as anyone else; in a libertarian world, every man has equal liberty, equal rights under the libertarian law. There can be no special immunities, special licenses to commit crime. That means that police, in a libertarian society, must take their chances like anyone else; if they commit an act of invasion against someone, that someone had better turn out to deserve it, otherwise they are the criminals.
Rothbard here seems to still be against torture as a police tactic, but only if it turns out the suspect was innocent, at least in the case of a crime such as murder. He is certainly correct that in a stateless society, the police should have no special license to commit crime, including torture, and must be held to account for any crimes they commit. The problem with Rothbard’s logic here is that, regardless of a future decision regarding guilt or innocence of a jury, at the time of the police beatings in question, the person is a suspect, and has been convicted of nothing. It should not matter whether the suspect is found innocent or guilty in the future.
In For a New Liberty, Rothbard writes:
Even the accused criminal or tortfeasor should not be forced
to attend his own trial, since he has not yet been convicted. If
he is indeed—according to the excellent and libertarian principle of Anglo-Saxon law—innocent until proved guilty, then the courts have no right to compel the defendant to attend his trial.
This is a much more consistent libertarian position and would seem to contradict Rothbard’s statements regarding police beatings in Ethics of Liberty. If a suspect cannot be compelled to attend his own trial since he has not been convicted, how can beatings or torture of a suspect prior to conviction be allowed?
I would argue that, even if a suspect is later found guilty of the crime in question, any beatings or torture he received from police prior to his conviction should still be considered a crime. The torture and beatings in no way compensate the victim of the original crime, which should be the only purpose of any justice system. By this token, even the convicted criminal should be able to hold police accountable for beatings and abuse, regardless of the result of his trial.
The purpose of this weekly feature is to highlight the positions of Murray Rothbard, whom I believe to be one of the most important libertarian theorists in history, not to necessarily endorse the minutiae of every single position he has taken. In this case, I break with Rothbard on the issue of torture by police. Torture of anyone, criminal suspect or not, by anyone, police or otherwise, should be seen as an equally criminal act from the libertarian point of view.
Check out our past editions of Mondays with Murray!
8/24/13 – Rothbard on “Libertarian Populism”
8/17/13 – Rothbard on Libertarian Qualifiers
8/12/13 – Rothbard on War Revisionism
7/22/13 – Rothbard on the George Zimmerman Verdict
7/15/13 – Rothbard on Orwell’s “1984”
7/1/13 – Why Be Libertarian?
6/17/13 – Who was the “best” U.S. President?
6/10/13 – Rothbard on State Surveillance
5/27/13 – Rothbard on America’s “Two Just Wars”
5/20/13 – Do Animals Have “Rights”
5/13/13 – A Further Insight on IP
5/6/13 – The Boston Lockdown
4/29/13 – The Problem with Empirical Studies
4/22/13 – The Real Story of the Whiskey Rebellion
4/15/13 – What is an Entrepreneur?
3/11/13 – Rothbard on Lysander Spooner
3/4/13 – Rothbard on Statism
2/25/13 – Rothbard on John Bolton and Ann Coulter
2/18/13 – Rothbard vs. Krugman on $9 Minimum Wage
2/11/13 – Time To Hoard Nickels
2/4/13 – The Death of Keynesian Economics
1/28/13 – Competition and Monopoly
1/21/13 – Rothbard Down The Memory Hole?
1/14/13 – We Are Not The Government
1//7/13 – Why Does Someone Become A Statist?
12/10/12 – Rothbard on Conspiracy Theory
12/3/12 – Rothbard on Secession
11/26/12 – Rothbard on the Drug War
11/19/12 – Rothbard on the Euro Crisis
11/12/12 – Rothbard on the Lions of Liberty
11/5/12 – Rothbard on Voting and Gas Lines
10/29/12 – Mythbusting the “Free Market Cartel”
10/22/12 – Rothbard on the Two Party Charade
10/15/12 – Rothbard on Private Roads
10/8/12 – Rothbard on Private Law
10/1/12 – Rothbard on Ron Paul
9/24/12 – Rothbard on Quantitative Easing