A long disquisition on the death penalty that ultimately doesn't resolve anything

The death penalty is again in the news and on Twitter because of the execution of Troy Davis. It seems apparent that there is more than a reasonable doubt that Davis was in fact innocent and so that whatever one’s position on the death penalty, this was an unconscionable miscarriage of justice.

And indeed I should stress that everyone, regardless of position on the death penalty, indeed especially advocates of death penalty, should be strident advocates for due process and stringent standards of evidence.

But predictably enough people are also using this time to argue (or rather, hammer on) against the death penalty.

I ultimately and reluctantly support the death penalty, but perhaps more importantly I just think most of the arguments against the death penalty are bunk. (To be sure, most of the arguments for the death penalty are also bunk.) It reminds me of when I was against the Iraq War, and also against the arguments against the Iraq War.

The arguments most often brought up against the death penalty are, in my view, bunk. There’s only one valid argument against the death penalty. It’s also the one least often brought up.

So after reviewing some of the wrongheaded arguments against the death penalty, I hope to argue that the death penalty is preferable to alternatives, or at least justifiable and defensible.

Frustratingly, I had written many pages about this a while ago but lost them in a laptop theft, so I will try to breeze through the arguments and might be curt.

Here are some of the arguments we hear against the death penalty:

The death penalty is not a deterrent. That’s right. There is strong evidence to back this up. But it presupposes that deterrence is the only goal of judicial punishment, which I don’t think is correct. More on which below.

The death penalty is vengeance. No it’s not. If you brutally beat, torture and murder someone, vengeance is to brutally beat, torture and murder you. That’s what “an eye for an eye” means. Affording you all the privileges of due process, an attorney, human detention at trial, and as painless an execution as we can, all of which we should certainly do, might be bad, but it is just not vengeance. In a sense, it is even an opposite of vengeance, which is motivated by rage and hatred, whereas the death penalty carried out under judicial due process is (must be) dispassionate and careful.

The state should not have the power to kill people. This is a facially conservative/libertarian argument; a more liberal version goes something like a civilized society should not have to rely on killing. Again, this strikes me as so self-evidently bunk that I don’t understand why smart people say this stuff. Every society in recorded history that I’m aware of makes allowances for lawful killing. Exemples of society-sanctioned lawful killing include self-defense, defense of an other, police and military action. These things are highly regulated (literally, in the sense that there are rules on when self defense or discharge of a police firearm or war are legal) but I’m aware of no society that does not allow the killing of its members under certain circumstances, including through arms of the state. These days, even London bobbies have guns. And few proponents of this argument against the death penalty argue for the unilateral disbanding of the military and law enforcement, or the immorality/illegality of self-defense.

I seem to remember Will Wilkinson, who makes the vengeance argument here, arguing elsewhere that soldiers who kill under the laws of war are murderers. Which… fine. If that’s where he is, I’m not going to be able to convince him of anything. But I’ll point out that while libertarians might bristle at any kind of killing by the arms of the state, they tend to be fans of the right of self defense, and while that is not killing by the arm of the state, it is certainly state-sanctioned killing.

The death penalty is cruel. It certainly is. It certainly is, and yet like any policy it must not be weighed in a vacuum but in relation to alternatives.

I remember then-presidential John Kerry trying to explain his opposition to the death penalty in terms that swing voters might agree to. The alternative to the death penalty, life imprisonment, is so hard, so cruel, that it’s actually worse punishment than the death penalty, Kerry said (my words, not his). I agree with John Kerry! I happen to draw the opposite conclusion. And here we get to arguments for the death penalty.

I cannot imagine punishment more cruel than life imprisonment, or indeed, any kind of extended imprisonment. It seems to me to be incredibly, furiously antagonistic to human dignity.

It seems to be a fact that any given society will have cold-blooded, inexcusable killers of shocking cruelty. And we all seem to agree that these people should be punished. How do we suitably punish them? The question then becomes not, is this punishment cruel or that punishment cruel—to some extent, all are. The question would be better phrased, at what threshold of cruelty should civilized society blanch, and where do possible punishments fall below or above that threshold.

And it is my sincere conviction that this threshold should be somewhere below life imprisonment. And therefore, because there needs to be some ultimate punishment for the most heinous crime, that threshold should be somewhere above the death penalty.

But it’s not just about what I believe, it’s about what society should believe. And I believe there are important society-wide considerations in favor of the death penalty.

They go something like this. (Argument two.)

When I was a first-year student in law school, we spoke about the difference between civil law and penal (criminal) law. The reason we have two different legal systems is because civil law is about protecting individual persons’ interests, while penal law is about protecting society’s values. It was not always thus: under some ancient moral codes, after being convicted of a crime you could either face punishment or “reimburse” the victim’s family, and in some societies “blood money” is still a thing. I believe this distinction is one of the features of civilizational progress.

To take an academic example: suppose I kill an unattached, homeless vagrant. Why should I be punished? Whose interests are harmed? If the victim has no loved ones, who can claim reparation? And under a morally blind, utilitarian argument, you can made the case that I’ve actually helped society’s material interest by removing a net burden. And yet, we decide that I should face punishment. Not because of any utilitarian calculus, but because we as a society have decided that we hold life to be an important value and that killing is gravely offensive and deserves to be punished.

(You could make some utilitarian arguments against wanton vagrant-killing: maybe that person is homeless but will one day discover a curse against cancer, so society should preserve the option value of the homeless becoming productive members of society; or maybe there’s a likelihood that someone who kills vagrants will move on to killing “valuable” members of society and so punishing vagrant killing is a deterrent against “actually harmful” killing. Whatever. These arguments make some sense, but if you believe that they’re the actual reasons why we punish killing vagrants, I suggest you give up your tenured professorship and sample the real world.)

Penal law is not about retribution. We don’t have the death penalty (as seen above) because of “an eye for an eye.” And though it should definitely have deterrence as a strong objective, the only criterion for penal law is not deterrence. Penal law is ultimately about a society deciding the hierarchy of its values.

And this is where the second argument against death penalty comes in: there is something skewed about a liberal, democratic society, saying, in essence: “We won’t take your life because that’s just so awful, but we reserve the right to take away your liberty in the most complete way imaginable.” It suggests that that society places life as a more important value than liberty. I submit that this is a serious and bad thing for a democratic society.

Life is a very important value. I want to live in a society that values life highly. But it is not, and cannot be, the most important value under any conceivable moral order. And particularly in any democratic order.

I just want to underline this point for my libertarian and pseudo-libertarian friends: you should be concerned about a society that says “Taking your life is beyond the pale, but taking your freedom is not.” That’s backwards.

So, that’s my two points in favor of the death penalty:

  • Prison is immoral, cruel and unjust, and particularly life imprisonment. If we want to talk about what punishments are too cruel and beyond the pale, and we should, extended prison terms strike me as much more cruel than the death penalty.
  • A free society should reflect in its laws the judgement that liberty is a higher value than life, though life is very important.

You might say that my argument for the death penalty as an alternative to prison is an argument against prison, not for the death penalty, but the thing is that there are evil, inexcusable murderers in the world. The question is what to do with them and, again, how far we are willing to go in terms of cruelty toward them. There might be an insanity defense for Anders Breivik, but not for Lawrence Brewer.

I just want to stress how horrible prison is. Except perhaps in Scandinavia, I’m not aware of any “good” prison, anywhere. They are everywhere a form of torture. Everywhere, violence and rape are rife. Everywhere, they are a laboratory and a school of crime. They are not only torture, not only institutionalized torture, but grotesquely and intrinsically so. And everywhere, the way politics work ensures that they will remain this way, because there will never be strong coalitions in favor of making prison “livable”, if that were possible. And even if it is, on principle alone, it remains an institution that is profoundly shocking to any notion of freedom. There is an argument for short and “medium” prison terms as punishment and rehabilitation, but I don’t believe there is one, in a democratic society, for very long ones.

“We will torture you with no reprieve for 20 years, but we won’t kill you, that would be too cruel.” Give me a break.

So that’s my case against prison, and for the death penalty.

All that being said, I haven’t broached a final argument against the death penalty, which is the risk of a miscarriage of justice. The death penalty is irreversible, and in the case of a miscarriage of justice there can be no reparation to the condemned.

And my answer to that is… That there’s no good answer. It is surely better to let a hundred guilty men go free than let one hang, and the mind reels at the thought of an innocent man hanging, as they surely have throughout history. That’s the reason why John Paul II personally opposed the death penalty. It’s also the reason why my parents and my wife do.

There are rejoinders: someone who is wrongly executed cannot ever be compensated, but can someone who was wrongly imprisoned for 10 years ever truly be compensated in any meaningful way? Punishment of the innocent is terrible to contemplate whatever the punishment, and yet society must punish and will always be imperfect. With increasing prosperity and improving evidentiary science miscarriages should only become less likely, not more.

Because of the concerns outlined above, I ultimately and reluctantly still come down on the side of the death penalty, but I don’t think there’s a logical “proof” that the possibility of miscarriage of justice can be overcome. I think it comes down to personal conviction and a personal weighing of values. If this is the reason why you oppose the death penalty, I disagree with you….and yet I can’t disagree with you.

(Going back to Troy Davis, this case becomes even stronger when it’s limited to the contemporary American criminal justice system, which is frightful in many ways.)

So there you go. A long disquisition on the death penalty that ultimately doesn’t solve anything. But I hope it does slay a few wrongheaded ideas and puts forward some useful ones, about how we think of legal punishment, freedom and hierarchies of value.