Tackle new issues with humility and without fear: Capital Punishment, Vol. 2

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I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me. Gilbert du Motier, Marquis du Lafayette (yes, that one)

I find that I am essentially for the death penalty in theory, but against it in practice. That’s one of those statements that is in danger of meaning nothing, like “supporting the troops but not the war.” In this case, however, I understand my position well enough to use such a platitude with my eyes wide open.

Short version of this post: Execution of a guilty person, for a finitely determined type of crime, is just. But in order to be a morally adequate human being, I have to privilege the (judicially) innocent. In a practical, real-life society I don’t know if there is any solution short of full abolition/repeal that can do justice (a terrible pun) to both needs.

And into the weeds we go. 

The death penalty: called unjust because it is expensive, non-deterrent of crime, and may kill innocents; more philosophically indicted as explicitly giving the State the right to kill its citizens. Those are all important concerns. However, I don’t believe those concerns are the proximate determinant for justice. It is not hard to think of an unjust deterrence-oriented punishment (e.g. any news story about an “unconventional” judge employing a shaming-based punishment). Likewise, the fiscal argument against capital punishment is a strong one, pragmatically speaking, but neither is expense truly a respecter of justice writ large.

I believe that the execution of a guilty criminal can be just. If we reject the notion of breach and remedy to the social contract as a justification, that does not mean that the exercise of the death penalty is one purely of vengeance or retribution. I imagine a judicial execution as the State, reification of popular sovereignty, moving to create a just world from the one we have.

We venerate self-defense as a personal right, and celebrate instances where a violent malefactor meets their demise at the hands of a would-be victim. Tragically, the human events that give rise to capital cases are those in which the victim(s) is (are) unable to defend themself(ves). The judicial process gives us the remedy of identifying the wrong that has been done to our peace and our unity, and the responsible party.

Addressing the question of “what is to be done with the responsible party?” brings us to this argument. Our Constitution and laws do grant the authority to kill under limited circumstances, especially where lives are at stake. I, in idealized terms, describe the death penalty as an philosophical extension of the life-or-death moment, the difference between self-defense and victimhood. We the People do for the victims what they had the right to do if they could have.

A judicial execution may have the fringe benefits of being a punishment that fits the crime (murders of various kinds) or providing even limited deterrence, but most importantly it is an act of affirming the value of law abiding citizens’ lives. I believe that is a principle that pops up in other places under conservative/libertarian government. Here, we do seemingly run afoul of the idea that “it won’t bring [the victim] back.” I can’t argue that. I can argue that the victim and their family are not the only stakeholders being messaged by judicial execution, and I can also argue that the danger of re-offense, especially while incarcerated–which would again create a real-time self-defense situation–is a very real one.

“In idealized terms”, then, I would suggest that there is a place for capital punishment in our judicial system. Unfortunately, our judicial system itself is nowhere near “idealized terms”. Judicial execution may be just in a vacuum, but its supporting institution is only just as a whole if it only executes the guilty. The justice of the system fails completely if one innocent person is executed. This has already happened.

The only real argument is whether that failure can be prevented only by full abolition, or whether it can be rendered impossible by reforms. (On the note of reforms, it bears some thought that deterrence may no longer occur because of the isolation in space and time of executions from the population, which is not how they were carried out in times past. But I digress.) On one hand, I have every opposition to the wrongful execution (or punishment of any kind) of the judically innocent. On the other, the pragmatist in me doesn’t like the idea of taking an option off the table. Another conservative friend told me that it is easier to be against the death penalty in concept “than when it comes up against the concrete example of evil.”

Back to my original friend, whom we shall call “Cesare“:

Even if you believe that some people may deserve death, this program is not worth the risks and costs.

I have to agree. But even that statement leaves open what is to be done instead of “this program”. I am envisioning a system of capital punishment that does better than this. But this one has to go.

For it in theory, but against it in practice, indeed.

I leave you with this lovely bit of inappropriate public policy humor.

Cesare: To put another way, imagine that we aren’t talking about the death penalty. Imagine that we are talking about any other government program. Would you support program X that is administered by an error-prone government/humans when it was proven to put innocent US citizens’ lives at risk, hemorrhages billions of dollars when cheaper alternatives are available, and doesn’t provide any benefit? Probably not.

ADM: As a Veteran and an international affairs wonk, I can’t pretend to be the greatest of fiscal hawks. The hypothetical government program you describe, I would assume to be related to the one of those two government activities.

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