Capital Punishment


Murder and capital punishment are not opposites that cancel one another, but similars that breed their kind.  G B Shaw

Introduction

This article is based on notes prepared for an Adam Smith debate held under the auspices of the Libertarian Society in May 1999.

Definitions

It is always a good idea to try and establish the size of the playing field and position of the goal posts before starting the game.  Following are my definitions of the meaning of the terms used in this debate.

Capital punishment

The death penalty, legally sanctioned killing, with or without the support of the community

Life imprisonment

Imprisonment for life without parole

Capital crimes

Commonly, premeditated murder with aggravating circumstances.

During history, anything from sheep stealing and cattle rustling, through treason, rape, poaching on the King’s lands, etc

Hot pursuit

A catch-all phrase for violent acts committed in self-defence, or at the scene of a crime against the identified criminal during the crime’s commission.

War

General conflict between armies of two opposing states where the combatants are generally not personally known to each other.

My position

I oppose ceremonial, legally sanctioned executions undertaken by agents uninvolved in the original crime, against a captive individual who poses no immediate threat.

I do not oppose immediate retaliation against an identifiable aggressor in the act of committing a violent crime, commonly known as “Hot pursuit”.

I support the punishment and rehabilitation of convicted criminals, and the restitution of the victim for losses suffered, where possible

I support the right of every individual to a sturdy self defence

Reasons advanced for capital punishment

Capital punishment is commonly advocated for some or all of the following reasons:

  • Economy – it is cheaper to hang a man than to feed him
  • Revenge, anger – society has a right to exercise its emotions upon individuals
  • Punishment – justice must be served
  • Justice – punishment must be seen to be done, the punishment must fit the crime
  • Deterrent – nothing concentrates the mind like a good hanging
  • Permanent solution – dead men don’t rape no little girls
  • Protection – we’ll be safe when all the bad guys are dead
  • Will of the majority – can 31,000,000 Frenchmen be wrong?
  • Titillation – nothing sells newspapers like a good murder, trial and execution
  • No obvious principle – there is no single, consistent, unifying principle to justify capital punishment

Reasons against

I oppose capital punishment for all of the following reasons:

State incompetence

Why do we trust the state, which gets nothing else right (in our critical Libertarian opinion), to get this fundamental and irreversible issue right?

Since 1970, 78 people in the US alone have been released from Death Row with evidence of their innocence (Ref: Innocence and the death penalty: The increasing risk of executing the innocent)

Researchers Radelet & Bedau have found 23 cases since 1900 where innocent people were executed (ref In spite of innocence, Northeastern University Press, 1992).

The Guildford 4, the Rillington place murders, the Eikenhof 3 here in South Africa are just a few examples of wrongful verdicts that quickly spring to mind..  When the state establishes a specific “dirty tricks” department as it did under the leadership of Eugene de Kock,  no doubt one can expect many other cases of wrongful verdicts.

Economy

US studies show it is 3 times cheaper to imprison for life than to execute

Florida has spent an average of $3.2 million for each person it has executed  since 1972. The comparable figure for Texas is $2 million per case that has  gone through all levels of appeal. The cost of executing Ted Bundy was at  least $6 million dollars.

Make criminals pay their way – it is only the state’s ineptitude that make them expensive.  You can make much more money out of a living person than a dead one.

We need to emphasise restitution and compensation of victims above revenge against the culprit.

Deterrent

The death penalty is widely discredited and rarely quoted as a deterrent nowadays.  Murder rates are lower in American states that have abolished the death penalty. In 1990, there was an average of 5.0 homicides per 100,000 population in states that had abolished the death penalty. In death penalty states without executions, the homicide rate was 6.0 per 100,000. The highest homicide rates were in death penalty states with executions: 9.7 homicides per 100,000.  The fear of execution may be what stops people who don’t commit murders from committing murders, but this is an unverifiable assertion. We do know for certain that fear of the death penalty does not deter those people who DO actually commit murder.

Permanent solution – irreversible

As the mother of a samurai says in James Clavell’s “Gai Jin”,

“Killing is easy, unkilling impossible”.

If you accept that the end justifies the means, then that means the end – of this debate, and of civilised discussion.

Many of life’s problems could be solved in a similar final manner. AIDS could be eradicated, bad stock removed from the gene pool, insane asylums emptied, even the problem of politicians could be solved by widespread usage of a “final” solution.  However, that’s just not how civilised people do things.

Protection – prevention of future crimes

The death penalty is no protection from future psychotics and future murders – new killers arise constantly. South Africa had the most aggressive execution policy in the world in its past, and yet never ran out of people to execute.

Protection must be sought elsewhere – by reducing poverty, improving defence systems, rapid response to emergencies, counselling, psychological testing, personality altering drugs.

Worst cases – multiple repeat offenders

What should society do with its worst cases? Where does one put people like the fictional Hannibal Lecter, and the real Geoffrey Darmer and Ted Bundy?  These people were all psychopathic and  truly mentally ill, to be pitied as much as despised.  Confine them securely, certainly, but is it right to eradicate them for being inflicted with a mental disease over which they have little or no control?

Society has solved the problem of accommodating evil people without executing them in the past.  Penal colonies like Australia and Devil’s Island successfully dealt with society’s dregs, and even went on to become halfway decent societies in their own right.  If we could confine people without executing them in the 19th century, surely we can get  this right again in the 20th.

Life imprisonment without parole is a viable option in many modern states.  It appears to be cheaper than execution (in countries with long appeal processes), it allows the possibility of financial restitution to the victims, it is certainly a punishment, and it allows for the possibility of error recovery.

Titillation

Don’t underestimate the value of titillation in the death penalty debate. Nothing sells newspapers, or concentrates the mind, like a good hanging.

Life imprisonment is rather slow to watch, so us abolitionists have no real alternative here for the couch potato viewing public, other than watching Mortal Kombat movies and games.

Hot pursuit

There are some cases where immediate and violent response to a crime in progress is appropriate. Under these circumstances the defence of the innocent must be the prime imperative. Normally, the guilt and identity of the criminal is beyond question. In a firefight situation, enshrouded in  confusion and subject to great urgency,  we must allow some slack for error. Occasionally the innocent may be harmed in attempts to apprehend the guilty, but each case will need to be reviewed on its merits.

In all cases, the severity of the retaliation must be roughly commensurate with the severity of the attack.

Public support

One of the least defensible arguments for capital punishment is that lots of people want it.  Lots of people, almost certainly a majority, would like to forcibly redistribute the possessions of the rich too, but we try to avoid this in civilised societies.

But even the public support argument might be wrong. A 1987 U.S. Department of Justice poll found imprisonment was favored over the death penalty by a 2 to 1 margin as the sentence for  first degree murder.

Virtually every recent state poll has found the public ready to abolish capital punishment in favor of a sentence of 25 years or more, combined with some kind of restitution to the victim’s family.

The idea that the wishes of a majority, no matter how large, outweigh the rights of an individual, no matter how despised, is so abhorrent to Libertarians as to require no further argument.

Justice, punishment

“Crimes must be punished, justice must be served”, the advocates of capital punishment cry.

Camus said: “Capital punishment is the most premeditated of murders, to which no criminal’s deed, however calculated can be compared. For there to be an equivalency, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.”

Life imprisonment may well be more feared than death by criminals, who are often adapted to a life of violence, but not to one of captivity and boredom.

The death penalty does not serve the needs of victims’ families. The death penalty focuses the attention (and some sympathy) on the killer rather than the victim.

Revenge and retribution are not the objectives of the legal system – restitution and rehabilitation are.

Rehabilitation for single case murderers is certainly possible , as the case of Karla Faye Tucker would demonstrate.

When speaking of justice we must understand that the death penalty is no guarantor of  fairness or justice. The biggest predictor of the death sentence is the race of the victim. Those who kill whites are four times as likely to receive a death sentence as those who kill blacks.

The death penalty works like a rigged lottery. Approximately 20,000 murders  are committed in the U.S. each year. Of those, about 200 result in death sentences, mostly for the poor and black.

Revenge, Anger, Rage

These are not valid emotions for the basis of law in a civilised society.  Rather, they are generally the basis for the original killing, which society so despises.

A civilised society rises above these base emotions, we are not Sicilians, or Colombians, or Hutu, or even Yugoslavs.  Your behaviour as a society determines your label, and I don’t wish to live in a society labelled as backward and  brutal.  Attitudes to the Death penalty are the litmus test of a civilised society.

We do not tailor our laws in response to our fears, but through our intellect.  The ugliness of the criminal and the crime does not define the nature of the civilised people obliged to deal with it. If we become no better than the criminal, then the criminal mind, and evil, have triumphed.

Principle

For me personally, the really important argument against capital punishment is that it conflicts with my principles and philosophy of life.

Libertarian philosophy

You have a right to your life, you are its sole owner. For me, as a Libertarian, this principle is as fundamental, simple and unequivocal as “Thou shalt not kill” should be to a Christian.

No one may rightfully take a life from another that they cannot replace, and still claim to hold to Libertarian principles.

It is simply not worth abandoning our good philosophy for the few hundred executions a year that satisfy our collective bloodlust

Consistent message

Aristotle said that a worthy concept should be based on reason, should be consistent, and should have no divided middle. If we say killing is a bad thing, how can we then proceed to kill?  How can we kill some murderers, but not all murderers?  If killing is OK under special circumstances, do we also say that theft, fraud, rape are OK under special circumstances, and should be carried out by suitably appointed members of the state to punish certain criminals? We don’t punish rape with rape, fraud with fraud, assault with assault. Why do we punish murder with murder?

Distinction

How do we distinguish ourselves from the scum we seek to punish if we undertake the same act.  How do you explain this dichotomy  to your children?

Conclusion

I believe that the debate on capital punishment will end much like the debate on slavery in the previous century.  There were many well informed and educated people who made many reasoned arguments for the maintenance of slavery, including great minds like Thomas Jefferson.  However, their premise was wrong and flawed. Liberty and justice could not be reconciled to slavery,  and liberty and justice cannot be reconciled to capital punishment. It just takes some people longer than others to realise this.

I hope in this article, and in this debate, that I can  persuade a majority of libertarians, if not all of them, to choose the only approach to the right to life issue which is consistent with our philosophy

 

 

A murderer may not deserve to live, but who amongst us deserves to kill?

 

30th July 1999, Trevor Watkins

 

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