Posted by Eugene Volokh:
Arguments Against the Death Penalty:
The recent exchanges about the deliberate-infliction-of-pain
punishments remind me that I've long wanted to write a few thoughts
about the death penalty -- and especially about why even people who
are generally conservativish-libertarianish like me may want to oppose
it. I should note at the outset that many people have thought much
more than I have about the subject, so I'm not sure how much I can
add. Nonetheless, at least some of these points aren't, I think,
disucssed as often as they should be.
First, let me mention again that I do support the death penalty,
because I think it's the just punishment for sufficiently heinous
murders. I'm not sure how much of a deterrent effect it has, and I
don't think the financial arguments alone (even if the cost of the
death penalty appeals and delays is reduced) suffice to justify it. So
the ultimate and in my view adequate justification for it, I think, is
retribution.
Nonetheless, I think there are some very important arguments against
it. The risk of error, and the irreversibility of error, are two
obvious ones. In practice, I think errors in death cases are on the
aggregate more likely to be corrected than in life imprisonment cases,
because death cases draw much more attention from lawyers, judges, and
others. But the availability of new technologies (such as DNA
evidence) might change the balance here; likewise, greater acceptance
of the death penalty might change the balance, too. In any event, I
will set this point aside just because it's so obvious. Let me mention
instead three arguments that are less commonly heard, but that
conservatives and libertarians should take seriously:
1. The Utility of the Death Penalty as a Means of Silencing
Dissenters: The death penalty is an especially powerful tool for
repressive governments, because it can let them easily -- and with
seeming legitimacy -- dispose of dissenters. This is so even if the
death penalty is limited to murder; they can trump up a charge of
murder, and quickly put the dissident to death. Had he been allowed to
live, he might have eventually been freed when the government changed,
by revolution or just by softening; he might also have become a focal
point for public agitation, both in the country and outside it. (That
happens to martyrs, too, but under many plausible conditions a live
imprisoned dissident attracts more attention than an executed one.)
Now this is likely to matter only to governments in the middle. We
don't worry much about decent governments doing this; and the really
heinous ones will kill whomever they want no matter what the legal
rules surrounding the death penalty have been. Moreover, even if the
death penalty is illegal, and an oppressive government cares about
legality, it can always change the law. And some oppressive
governments may find themselves politically constrained not to use the
death penalty for dissidents even if the penalty is actively used for
murderers (consider the Soviet Union in the 1960s and later).
Still, one can certainly imagine many governments (1) that are
oppressive but not completely unresponsive to popular opinion, within
the country or outside it (2) that find it too politically costly to
reverse a firm, well-entrenched, and broadly agreed-on
no-death-penalty rule, and (3) that would be willing to trump up
capital charges to dispose of dissidents even if they aren't willing
to just kill the dissidents extrajudicially. When those governments
are in power, and they may one day be in power even here, a firm
traditional rule that the most they can do is lock up convicted
criminals may provide a check on them.
2. The Utility of an Anti-Death-Penalty Rule in Free Countries:
Moreover, even if we don't worry too much about possibly oppressive
future regimes here -- or if we have confidence (whether or not
misplaced) that the error rate for the death penalty in our country
won't be too great -- we may want to discourage the death penalty in
other countries, such as emerging but fragile democracies or mildly
oppressive autocracies. Even if we trust our system, we may not trust
theirs.
Naturally, we could try to persuade them that the general rule should
be "No death penalty unless your legal system is really good; yours
isn't as good as ours, so you shouldn't have the death penalty, even
though we do." We might even believe that this argument is both
morally and factually accurate. But it may well be quite unpersuasive
nonetheless. The most effective way to deter the death penalty in such
countries -- a death penalty that, as I argue above, could be a tool
for political oppression as well as posing a risk of normal error --
might be to have a flat "No death penalty, either in our country or in
yours" rule.
Those who are hostile to molding U.S. law to European norms (and who
don't think that there's much of a risk of internally oppressive
government in the U.S.) might look at it this way: Don't think of
abolition of the death penalty as surrendering to European views.
Rather, think of it as a tool for us to help protect Europeans the
next time some European countries turn internally oppressive.
3. A Precedent for Limiting Government Power: Finally, recall that in
the modern state the government has very broad constitutional
authority. It can take our property, either because of our crimes or
for a variety of other reasons. It can lock us up. It can put is jail
for saying certain things (relatively few things in the U.S., but more
in other democratic and otherwise liberal countries). It can broadly
interfere with our professions and businesses. Maybe it shouldn't be
able to, but in fact it can.
The governments or free countries often refrain from exercising these
powers, and are often legally constrained in exercising them. But
they're always available, either within the existing law or with a few
changes to the existing law. People may grow up hearing that they have
an inalienable right to liberty, but when they see the world as it is,
they recognize that their own countries -- whose legal systems and
institutions they are generally taught to respect or even love --
restrict liberty in all sorts of different ways.
Clear, simple, and consistently adhered-to rules that limit the
government's power can help fight this sense that the government is
all-powerful. We can't have a clear rule that the government can never
lock people up, or can never take their property, or can never
restrict their speech, or even can never kill people. But as to
killing, we can at least have something close -- at least during
peace-time, government officials may not deliberately kill people
except in actual self-defense (or defense of others) against imminent
crime. Both the exceptions (war and self-defense) are intuitively and
historically understood. Both involve the most urgent of necessity.
The rule isn't perfectly simple (few rules for behavior can be); but
it's probably as simple as possible, and if it's broadly accepted and
internalized it reminds both the governors and the governed that there
are strong limits to legitimate government power.
4. Radical Distrust of Government: Finally, for really hard-core
libertarians (and I'm not one), the "risk of error" argument isn't
simply "all legal systems have risks of error" or even "we have
particular problems in our legal system that magnify the risk of
error." Rather, hard-core libertarians believe that government is
naturally extremely prone to error, both moral and factual. They
believe (and this is an oversimplification, but I think not a gross
one) that government posts tend to attract not very good people; that
they tend to make good people worse, by a combination of bad
incentives and the corrupting effect of power; and that the
institutions tend to limit good officials' power to good, and magnify
bad officials' power to do bad.
If this is so, then one might oppose the government-imposed death
penalty because government is simply inherently corrupt, and not to be
trusted to do anything but the absolute bare minimum to prevent
murderers from roaming the streets. (The true anarchists wouldn't even
have the government do that, but I'm sticking with hard-core
libertarians here.) In fact, one might wonder why many hard-core
libertarians do support the death penalty, as in my limited personal
experience they tend to do. My guess is that many libertarians believe
there's a basic human right to retribution for crimes done to yourself
or your close relatives, and that if the government is to take it away
from us, it has an obligation to provide us with some
government-conducted substitute.
* * *
These, it seems to me, are powerful arguments that conservatives and
libertarians need to seriously consider. (I stress again that they are
only a subset of the arguments in the debate, chosen by me precisely
because in my likely idiosyncratic view they're especially likely to
be appealing to conservatives and libertarians.)
In the face of these arguments, it seems to me, the strongest reason
to support the death penalty is a belief that it is morally wrong to
allow some people to live -- the view that every day that (say) a mass
murderer can live and enjoy life is a continuing wrong to his victims
and to the victims' loved ones. That is my strongly held view, and I
suspect that it is the reason why most supporters of the death penalty
ultimately support it. Yet I must recognize that there are substantial
potential practical and moral costs, including costs that especially
resonate with me because of my conservative and libertarian views, to
accepting this moral imperative.
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