It's been almost eight years since I studied criminal law, but with regards to Dumbledore's death, wouldn't the obvious answer be to charge Malfoy with aiding and abetting or conspiracy?

With regards to the Imperio-defence, to me this would seem to fall under automatism. An ingenious defence, really, since it must be almost impossible to disprove beyond reasonable doubt.

On a more general basis, should we assume that wizarding law is particularly similar to English common law? At the very least, we should expect that it has developed mostly independently since the statute of secrecy. However, since the British wizarding society appears to have been rather academically minded for a long time, I would posit that it is more likely that their courts developed along the lines of the ecclesiastical courts. So, perhaps we should be looking at Scots law instead?

 

I mean, the actions of the Death Eaters were against innocents. And we know that the ministry is willing to authorize the use of unforgivables in certain cases, so I could understand them being okay with Harry casting them, especially after winning against Voldemort.

 

Yeah, nobody seems to consider Harry tossing around Unforgivables in the last book to be any sort of crime, it seems likely that the laws against them are more akin to the normal laws than some sort of special magical law. In other words, the Killing Curse is illegal because murder is illegal, the Cruciatus Curse because torture is illegal, and so on.

It's pretty well recognized that a lot of the standard laws of civilized society don't apply during wartime. It seems likely that in the aftermath of the war, Kingsley's administration would put through whatever legislation it took to establish that Britain had no functioning legitimate government after the Death Eaters took over, and any laws broken in the course of resistance against Voldemort's regime don't count.

 

Adjudication falls to judiciary but prosecution and actual punishment are in executive's domain. From a purely legal point of view Draco is guilty, but whether he should be prosecuted or not is based on different considerations.

In the post-war period focus is on reconciliation and rebuilding. To prosecute everyone will appear like persecution. If a strict approach is taken then Harry too has to be prosecuted which is untenable. Its easier to grant pardon to likes of Draco and punish the worst offenders from both sides.

 

Do we even now this from the books ?

 

It's the next logical step. After every war focus shifts to reconciliation and rebuilding. The books are silent on what happened in the immediate aftermath. If Draco is allowed to be free then reconciliation is easier to swallow than graft.

 

Draco Malfoy Did Nothing Wrong.

 

• Draco tortured multiple people with the cruciatus on Voldemorts orders
• attempted to use it on Harry in the bathroom
• used the imperius to enslave Rosmerta for a year
• almost murdered Katie, Ron, Harry and Slughorn(the last two also almost drunk the poison),
  
• he was responsible for letting Death Eaters into Hogwarts, including Greyback who procceeded to partially ate and disfigure Bill Weasley
• was at the very least accesory to the murder of Dumbledore
• During the battle of Hogwarts he actually tried to capture Harry
  
• and he was old enough to understand the severity of what he was doing during all of that.

At no point does he acutally try to redeem himself or at least show that his views on blood purity dont allign with Voldemort and his followers. And the nicest thing hes ever done in the books, is not identifying Harry in his manor. So yes, I think he should have gone to prison, you dont deserve a get out of jail free card, because you were to cowardly to look a person in the eyes when murdering them.

Though this got me thinking on Narcissa Malfoy, whois a more complex case. I belive the only illegal thing we ever see her do is having Snape swear the unbreakable Vow, which seems like it would count as conspiracy to commit murder, but I dont think except for her anyone else knew about it at the end of the books. Does anyone remember anything else about what role she played and if she deserved prison?

 

By not having Draco in prison, we were saved from all Dramonie fics that would follow it.

In addition Narcissa is too hot for Azkaban.

With a more serious thought, Harry can claim Narcissa saving him, is her way to repay her debt for her actions leading to Sirius death.
(If he want to morally justify it for himself).

I expected the Magical World version of the Nuremberg trials, with enough DE choosing suicide.

Malfoy earned his time in Azkaban, most of his generation earned it, they had Death Camps for muggleborns/squibs and half blood.
Yet everything is swept under the carpet.

Did Umbridge survive book 7 and remained alive during the crapilogue ?

 

Do we know whether it was Draco himself and not some other Death Eater who cast that curse? It would be impossible for him to sneak out of Hogwarts to cast the spell -- that's the whole point of going through Katie Bell after all. And it seems unlikely that Draco cast it before the school year given that he was super confident that he would be able to fix the cabinet. The Katie Bell scheme was a desperate measure.

 

It's possible that another Death Eater cast the spell for him, but it's not exactly likely. He wasn't exactly supposed to succeed in the first place, the whole job was a punishment detail, so it would seem very strange to me if Voldemort allowed one of his other minions to help him. It's certainly not impossible, but I can't see why any of the other Death Eathers would want to do it.

Most likely, Draco snuck out through a similar passage as the one that Harry used in PoA, if not the exact same one, and the reason he went through Rosmerta instead of doing it himself was to have a rock-solid alibi for his whereabouts when Katie got the package.

 

I think it's worth remembering that the Ministry seems to operate more on the rules of politics than on the letter of the law. Remember that Stan Shunpike was arrested on "suspicion of Death Eater activity" because the government needed to be seen to be doing something to combat the threat of Voldemort, not because he was actually aligned with them.

Realistically, I think that given how tenuous the situation was post-Battle of Hogwarts, and with how Harry was very publicly the Savior of the Wizarding World, all it probably took to get the Malfoys off was Harry's word. Given that Pottermore says that the Malfoys avoided Azkaban because of their last-minute switch in allegiance, I think that it was the fact that it was Narcissa's lie to Voldemort that allowed him to be defeated, if not any sympathy Harry was feeling towards Draco due to lingering feelings about Snape's life and sacrifice, that caused Harry to give his word.

Objectively yes, the Malfoys should have ended up in Azkaban. But I think Harry was too tired of seeing death and broken families to allow that to happen.

 

Draco did say that Greyback would give Borgin a visit, didn't he? And Auntie Bella had been teaching him occlumency, so it''s not as if Draco had no assistance. Plus, Rosmerta could have been imperiused by the Death Eaters for any number of reasons, not just for the specific purpose of helping Draco.

Draco sneaking out through a Hogsmeade passage is not possible. The whole reason Draco had to use the Vanishing Cabinet to create a new passage was because he knew of no other way in or out of the school that the security measures would not have blocked.

 

That could just as easily have been an empty threat.

 

I agree that there should have been something like the Nuremnberg trials.

Draco should have done time in Azkaban. He is flat out guilty of multiple counts of attempted murder as well as conspiracy to commit murder. That's ignoring the Unforgivable spells usage & just looking at his crimes. His supposed 'redemption' is lame as hell.

It doesn't seem like even Lucius goes to Azkaban after the war, and that psycho unleashed a basilisk on a school. WTF?

 

Were there security measures, though? Somebody with a better memory of canon will have to remind me. Was there ever an indication that Dumbledore blocked and secured every secret passage in the castle?

Voldemort's unwillingness or inability to enter the castle always felt like a contrivance to me, given the ease with which Harry and the twins escaped it. Sirius had no trouble getting in and out. Neither did Crouch Jr. and Pettigrew. Even if LV didn't want to enter the castle with Dumbledore there, he could easily learn from Snape when Dumbledore would be away. Did Dumbledore set up some sort of Voldemort/Death Eater radar in the later books that I just can't recall?

 

I mean, yeah, it's totally possible that one or more of the Death Eaters would be perfectly happy to step in on Draco's request. But considering that it would require a) helping someone succeed after their lord and master explicitly set them up for failure, and b) assist someone at the absolute bottom tier of the influence ladder who has negative prospects for being able to repay the favor in future, it's not exactly likely, especially given that Death Eaters as a group aren't exactly inclined toward altruism or self-sacrifice.

It's a theoretical possibility, but for all practical purposes it may as well be impossible.

As for him being able to sneak out, you're gonna have to provide some measure of evidence. There's a world of difference between a single student, not materially different from any of the dozens of others that regularly come and go from the castle, and a large group of, essentially, enemy combatants with no existing tie to the school. It's certainly theoretically possible that Draco was singled out and his access through Hogwarts' wards was revoked, and it would certainly make sense for Dumbledore to do that if he was capable of it given what he knew, but there's no clear evidence of it. And, in fact, circumstantial evidence suggesting Dumbledore would do the opposite, given the chance, considering how he bent over backwards to accommodate Draco's ploy.

 

Is this fanon ?
We do not know how Kingsley became the minister. For all you know he simply did a soft coup by using his position in law enforcement. Think Kerensky's provisional government.
Kingsley and his supporters could very well have decided to clean house and create a new basis to prosecute purebloods who had too much support in established wizarding institutions.
Remember that if allowed to slip it would have been the second time in living history. A lot of people would demand blood.