The Moral Imperative of the Death Penalty, Part II

Taking on two of the main arguments against capital punishment.

Last week, I argued that the death penalty should be preserved as an option for a society confident of its decency and its way of life —as ours has a right to be — in order unapologetically to assert its moral demands against its most grotesque criminals. In the comments section to that post, a number of serious-minded objections were raised. I want to discuss two of them here.

— Error is inevitable, so if we don’t end the death penalty, sooner or later we’re going to execute an innocent person.

That’s correct (or I’m willing to assume it is), but its tacit assumption isn’t. The tacit assumption is that the death of an innocent person at the hands of the state is a price a decent society must refuse pay.

The objection has two related flaws. First, if we don’t execute stone-cold killers, they’re not just going to disappear. They have to be held somewhere, namely, in prison. When they are, some of them are going to do it again. Because errors in prison security are every bit as inevitable as errors in courtroom judgment, killings by previously convicted murderers are going to happen, and have happened dozens of times. The victims will be varied: a fellow inmate who refuses sexual favors, or shows “disrespect,” or gets in a beef in the exercise yard; guards, nurses, counselors, infirmary staff, you name it.

Just last December, I ran across this story, “Inmate killed at Supermax in Florence, 3rd death in new spate of federal prison violence.”

A federal prisoner at a high-security penitentiary in Colorado died Monday in an altercation with another inmate, marking the third time an inmate has been killed in a U.S. federal prison in the last month.

If you have three inmate murders in a month in the federal system, including in Supermax, you know the situation is a good deal worse in the state systems, which don’t have anything like the same standards or funding.

In addition, again because of the inevitability of error, there are going to be escapes and mistaken release. Those too have resulted in episodes of murder — murder that, obviously, could and would have been prevented if the killer had been executed.

So deaths of the innocent because of state error are going to happen whether we have the death penalty or whether we don’t. There’s no use pretending that if we’d just use LWOP (which the Left is furiously campaigning to abolish) we can avoid this. We haven’t and won’t.

All of which raises a question I have never heard a death penalty abolitionist answer: If capital punishment is abolished, and an imprisoned murderer serving LWOP kills again, what’s his punishment? Loss of canteen privileges? Meatloaf instead of turkey at Thanksgiving? Fifteen minutes less in the exercise yard? And then — what if he does it yet again? How much freebie murder are we prepared to allow in the name of — how should I say this — humanity? (And no, life in solitary is not an option, first because it’s a clear violation of the Eighth Amendment, and second because it’s not really going to be solitary. At some point or probably numerous points, he’s going to need medical attention, and have a right to meet with is lawyer).

The second answer to the “a-moral-society-cannot-knowingly-risk-killing-innocents” argument is that we do it all the time and don’t give it that much thought. That’s because we believe pretty deep down that what we get is worth the cost.

We kill innocent people — and we know we’re going to kill innocent people — in big construction projects like dams and skyscrapers (96 people were killed building Hoover Dam; five were killed in the construction of the Empire State Building, and 30 more (predictably as a general matter) have committed suicide). We kill them in experimental medicine, space travel, and sports, including boxing, football and auto racing. Mostly, we kill them in traffic accidents. Tens of thousands of people die in auto wrecks each year (last year it was about 42,000).

Has anyone ever seriously proposed doing away with automobile travel? Has anyone ever even proposed cutting the national speed limit to, say, 25? No, they have not, despite the fact that either of these things would save a huge amount of innocent life, massively more innocent life than ending the death penalty would in 100 years.

Why haven’t we seen such proposals? Convenience mostly. Some commercial savings by having trucks full of goods arrive sooner rather than later. But mostly being able to get the car to Grandma’s house for Christmas in three hours rather than six hours.

Bottom line: We have interstate roads and fast cars and high speed limits and sports and space travel because, even knowing for sure that innocent life is going to be lost, it’s worth it in view of the value we place on the things we get in return.

Same deal with the death penalty. The idea that a prison sentence, no matter its length, is justice for Timothy McVeigh or John Wayne Gacy or Ted Bundy (or hundreds if not thousands of others who kill and enjoy it and will keep doing it) is preposterous. There is a very, very small risk that at some point we’ll execute an innocent person, yes. But it’s worth it to affirm our right to put a final end to those who willfully act outside the bounds of civilized life.

— We can’t trust the government with a power this grave.

Short answer: If one believes that, in the most grotesque instances, the death penalty is the only punishment that fits the crime, who else is going to do it? The family of the victim? They’re going to be able to take on the mob? And even if they are, there’s a much more fundamental problem. We developed criminal law as a power of the state precisely to avoid the massively more dangerous and standardless option of private vengeance. If you want private vengeance, you’re paving the road, not to libertarianism, but to the jungle.

Second short answer: If the government can wage war, and alone can wage war, as is the case under our Constitution, then we’ve already entrusted it with vastly more lethal power than the death penalty will ever entail. And the risks of an arguably “erroneous” war ( say, possibly, Iraq) vastly exceed the risks of an arguably erroneous execution, since the decision to go forward with the former happens in days or weeks, while the latter gets reviewed (and reviewed and reviewed) for years (more than 12 years is the current average) by one court after the next.

Again: The government can get it wrong in things big and small. It’s not infallible; to the contrary, it’s plenty fallible. That’s because we are. But if one believes, as virtually every sane person does, that we have the right and sometimes the need to kill, the best we’re going to do is choose the system least likely to err, the entirely unerring one being the province only of Paradise.