Should Draco Malfoy have gone to prison? I'm interested in people's answers on any basis: legal, moral, political, etc.

Personally, I find it interesting to consider how Draco Malfoy would have been treated by the (Muggle) English justice system.

Attempted murder

It seems almost certain that Malfoy would be convicted of multiple counts of attempted murder: on Dumbledore, Ron, and Katie (the latter two by virtue of the principle of transferred malice).

He was 17 at the time of his various attempted murders. That's more than old enough to understand that killing people is wrong. In 1993, two ten-year-olds were tried as adults and convicted of murder, and countless older teenagers have been convicted of serious crimes such as murder and rape.

The defence of duress would not have been available to him. Duress cannot be used as a defence for murder or attempted murder.

Per Lord Hailsham:

Murder

This is the trickier one.

Ultimately, Malfoy arranged the circumstances that resulted in Dumbledore's death (actus reus), and he did so with the intention that Dumbledore would die (mens rea).

Now, Draco didn't cast the spell that killed Dumbledore. But nonetheless:

• But for Draco Malfoy's actions, Albus Dumbledore would not have died.
• Factually, Draco Malfoy's actions therefore caused Albus Dumbledore's death.

That's factual causation. Legal causation is a bit more complex. Per Lord Justice Goff in Kimsey [1996] Crim. L.R. 35:

Were Malfoy's actions not only a factual cause of Dumbledore's death, but also one which "contributed significantly" to it? I think yes - the entire thing was a scheme thought up by Draco.

While Malfoy's defence would probably argue that Snape's actions were the free, deliberate and informed acts of a third party such that they broke the chain of causation, this seems unlikely to succeed. Snape was part of the same organisation as Malfoy and was his associate in the commission of the crime. He is not a true "third party".

So in short, I think Malfoy would have gone down for 1 count of murder and 2 counts of attempted murder. He's going to prison, and not for a short time.

 

Do you know what they do to blonde boys in Azkaban, Taure?

If not, may I suggest that for your next discussion thread?

I am not a lawyer, so as fascinating as this is I can’t say anything to the contrary. What I found myself wondering is if there’s any muggle civil war post-victory cases where crimes were not sentenced or were mitigated by the victor for the sake of stability.

I also wonder, although it is a civil guerrilla sort of war, if there are any exceptions where international or domestic ‘military’ law would complicate factors.

 

No, Malfoy should not have gone to prison because he is not subject to Muggle law.

Dumbledore's death was a suicide.

You mudblood.

 

I mean, under magical law we know he cast the Imperius on Rosmerta. So that's a life sentence in Azkaban right there.

Though by that rule, Harry should be in Azkaban as well...

 

I forget, did Harry cast it on just a Goblin or anyone else too? Fake Moody got dispensation to use the curses on Spiders, just saying.

 

He casts the Cruciatus on Amycus Carrow.

But yes, using the Imperius on a goblin may not count.

 

Harry also cast (or tried to cast, I'm not sure) the Cruciatus on Bellatrix back in Order of the Phoenix. Really, he shoulda been enjoying his new life as a Dementor's plaything for the events of HBP and DH.

 

Malfoy's family also harboured what can be not generously described as a known terrorist cell and while that may come down to Lucius' feet, he acted in consort and carried out the commands of the terrorist leader.

Also he's a turd.

 

Can't disagree with Taure's reasoning.

It's implied in canon, rather than stated outright, that he didn't go to prison, right? Probably a situation where Harry's testimony about Draco and Narcissa's 'help' is taken as gospel, just as Dumbledore's was for Snape. Did anyone outside the trio even know that Draco let the Death Eaters in? If not, he might not have stood trial if they didn't speak up.

But yeah, in a fair trial, he goes down hard. So does his dad. And so does Dumbledore, if he had lived, for not doing enough to protect students like Katie Bell from Malfoy.

 

He tried to cast the Cruciatus on Harry during their duel in Myrtle's bathroom, so that alone ought to have sent him to Azkaban, not that it would have done much good at that point I suppose. Everything else is just icing on the cake, as it were. That said, he also attempted, if half-heartedly - and viewed with a touch of generosity - to sabotage Death Eater efforts later in the war, namely his denial that it was Harry in front of him, so I can kind of agree with him not getting a life sentence or anything like that. I certainly don't think he's at risk of reoffending, and probably does hold a measure of remorse for his actions.

 

I think this can be a thread on its own. Life sentences over them seems way too harsh. Especially for killing curse. Unless it has some esoteric side effect - like stretching dying moment to infinity while causing infinite suffering for victim in that moment or completely destroying victim's soul - it looks like very humane way to kill something.

Or we can look at your "Azkaban and Wizarding Justice" thread and claim that those curses require potentially immensely powerful wizards and being able cast those curses means that you have that potential and willingness to became terrible dark wizard. So society must be protected from these individuals. Which falls flat imho because we have Aurors usedto use those curses in first war in addition to Harry and Ron in second. And we are talking about Harry "I offer mercy to most terrible dark wizard ever" Potter. Totally terrible dark wizard material right there.

Another reasonaning can be cultural taboos. Maybe they are developed by such loathed individuals or used heavily in such terrible events that using them is hated by everyone now.

 

You jest, but there's an aspect of truth to this, in fact. When Harry crucios Bellatrix after Sirius' death, she recovers almost immediately and gets up laughing. I don't have the book handy, so I can't quote it, but the basic gist was "righteous anger isn't good enough, little boy. You need to want it, to delight in causing pain, to cast that spell properly."

The implication is that the Unforgivables aren't unforgivable for what they do (after all, you can replicate any of their effects pretty easily with other, not-forbidden spells we see in widespread use), but for what it takes to actually cast them. The mindset and emotions behind the magic are such that it's inherently addictive and corruptive, due to simple human nature if not a more explicit magical form. It's obviously not an immediate and/or irrecoverable form of such, and like any such thing can be turned away from, but it would be harder to do so the deeper in someone already is.

The 'automatic life sentence' part grows from that; all it would take is one politician running on a "tough on crime" platform paired with a PR disaster centered around the use of Unforgivables, a couple of speeches about how clearly the corruptive aspects of the magic are too great and there's no hope for this guy who just murdered a school bus or whatever, and you've got instant life-sentences codified as law.

 

Pretty sure that's the line.

Responding more seriously to the topic, Draco's task was also intended as a punishment for his father, and there is context for a reading that Draco wasn't exactly happy to be carrying out his task.

The way JKR kind of sped through a 'redemption' arc for the Malfoy family can be debated as to its quality, but it was present, and Draco's semi reluctance and eventual lying for Harry is a product of it. How much that could be/was taken into account for post war trials is up for interpretation.

 

I don't believe we would be trying Malfoy, or any of the Death Eaters, under standard laws. By the end, Voldemort's reign was a coup of a legitimate government and a civil war, more so than a terrorist organisation. Aka, it was more like ISIL or the Taliban than the IRA. They actually had a fully functional government.

This would mean you'd have to have a war tribunal, hopefully with a third party overseeing the trials. It would be a complete mess, as the Nazi trials after WWII. Do you prosecute people who stayed with the government and committed genocidal crimes even though they were just doing their jobs?

Do you convict people who did horrid things because if they didn't their family would be killed brutally (ala Malfoy)?

When you add the fact that much of high society supported the reign of Voldemort, it becomes even more complicated. Do you convict sympathizers too? Even if it means going after a large minority of the population?

I would love to see a realistic post-Hogwarts fic, as it would be a bloody mess with both sides ending up unhappy, in my opinion. Draco Malfoy's freedom or conviction would be a mess all on its own. You couldn't make everyone happy.

My guess is a lot of smaller crimes were forgiven in the grand scheme of things in order to try and keep the peace and rebuild.

 

If we start saying Draco should have gone to Azkaban for casting the Unforgiveables then we'd have to consider doing the same for Harry (He casted an Unforgiveable spell on screen much earlier than Draco did and more times than he did). And, in Harry's case, they were for situations that (Even if they weren't punishable by a life sentence) wouldn't necessarily call for them.

1. Casting Cruciatus on Bellatrix, a "fleeing" subject.
2. Casting Imperius on a goblin.
3. Casting Cruciatus on Amycus for spitting in someone's face.
4. Casting Cruciatus on Snape (Though I think he deflected it somehow?).

As for Draco's murder attempts, I know Taure has said that Duress isn't a legal excuse but I feel like if Imperius can be used as an excuse then the same can be said for duress (If not legally, then morally). His attempt on Dumbledore's life was due to the looming threat of Voldemort punishing Lucius for his failure in the Department of Mysteries.

As for housing a terrorist cell, if Hitler himself came into your house and made himself at home and had his men with hi to back him up, there's not much you can do, is there? Especially when he's controlling the government at the time.

 

There's an Arsinoe de Blassenville fic called The Golden Age that you might like. I think it might be in the library. It's well-written and features a Kingsley administration and war crimes tribunal that makes the trio very unhappy. It deals with the whole society being complicit. I absolutely hate the ending of the fic and some of the trio's characterization, but Arsinoe was a great writer (RIP) and you might like the story. I love most of her other stuff. (Forewarning: she likes the Malfoys and Snape).

Agreed on the likelihood of Harry getting some punishment too, but I don't think is a fair characterization of Malfoy. He wasn't a Jew who had his house seized by the SS for Hitler's use. He was more like a Himmler who found himself in disfavor. Doesn't make him any less of a Nazi, just an unhappy one.

 

This line of reasoning could be extended indefinitely.

 

I could see making the Imperius Curse a war crime, sort of like war rape, but the punishment might vary based on what you used the other person to accomplish. If you used it to rape the other person it would be the exact same, a life sentence, but if you used it to force the other person to drop his wand, as a mechanism of sparing his life, so that you could arrest and question him, a more nuanced court familiar with the brutalization effect might entirely forgive it.
The brutalization effect(I would assume you specifically know it, but there are other people who might not) is what happens when you increase the punishments of all crimes, elevate non-maximum sentence punishments to maximum sentence, or something else along those lines and people who commit crimes with ordinarily moderate punishments will have no reason not to commit other crimes, especially if they would help them get away with the crimes already committed. (If you get a life sentence for stealing something and that's the worst punishment available, you might as well shoot the cops when they show up to arrest you.) In short, the brutalization effect generates a reduction of crime in general, since the punishments for many crimes are worse than they were, but an increase in the crimes that ordinarily have the most extreme punishments. In universe, if you go straight to Azkaban(Crouch Jr says it) for performing a common dark curse, then you might as well join a magic terror cell intent on, among other things, making dark magic legal.
It's worthy of note that life imprisonment is actually not the worst punishment in universe that the Ministry or its leader uses, just the worst standard, legal punishment. Young Crouch was effectively executed at the end of book 4 with the Kiss, and the purpose of that was to keep Voldemort's return a secret. (He had committed a number of crimes, but he was not tried, so the Ministry didn't actually know which crimes he committed. Fudge knew that he had escaped from prison and he was saying Voldemort had come back to life[so was Dumbledore, but young Crouch would actually know], so really he was too dangerous to be left alive, and Fudge decided to forgo the legal process.) Any Ministry that has a secret super-punishment is not following its own rules and in need of serious reform, at the very least.
In terms of what should happen, the use of the killing curse is kind of like firing a gun. The court should consider whether or not it hit someone, then why it was used. Malfoy attacked innocent people and tried to use them to commit murder, so he's committed several counts of attempted murder, especially when we consider DH, though attempting to kill people could be considered an act of war in DH at the very least. Post-war, the fact that Voldemort was threatening his family is something that the court should take into account, and since no one could have killed Voldemort to remove the threat he posed, I could see him being pardoned if he successfully established the necessity defense.

 

Look, Silirt, I think we all appreciate your enthusiasm, but I don't think anyone will read your posts unless you figure out how to double-space your paragraphs, just for starters.