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A Question of Capital Punishment
Posted by Kevin

Jeff at The Dawn Treader has a question about the death penalty:

Government is given the mantle of ensuring and protecting justice and preserving order. I would like to see a strong moral argument that shows how capital punishment weakens those purposes.

Before I answer, I want to comment on the form of the question. Jeff is not asking a moral question, he is asking a practical question. The extent to which capital punishment advances the goals of the government is a completely separate question from whether or not it is morally acceptable for the government to kill people. Consider his obvious and deeply held religious beliefs, I would be interested in hearing from Jeff how he came to the conclusion that it is morally acceptable for the state to kill people.

I, as you can probably gather, do not think the death penalty is morally acceptable. Killing a person is the worst thing you can ever do to a person. To steal a line, it takes away everything the person has ever had and everything the person will ever have. it is a monstrous act, justifiable in only the most extreme of circumstances. The state almost never faces those circumstances; it is almost never the case that the only way to protect society from a murderer is to kill him. And without the justification of preserving life, murdering murderers is still immoral.

On to the practical matters. To be completely honest, I see no way in which capital punishment preserves order or protects justice. Let’s start with order. Saddam Hussein died before he could be tried for his worst crimes. Because of that, people who helped him commit those crimes may never see justice. Even in a better run system, capital punishment has the effect of disturbing the good order of society. People are more likely to plead to lesser charges — charges that they may not actually be guilty of — in order to escape the possibility of death. Capital cases, because they are so final, take up a disproportionate amount of legal resources, especially when the number of appeals is factored into the original cases. The finality of capital punishment focuses public attention on capital cases instead of the systematic failures of the legal system. Capital cases set the bar for bad behavior by the state at such a high level that it’s almost impossible to discuss the effect on good order of the regular criminal justice system. The Innocence Project, for example, deals with capital cases almost exclusively. (Might not be true; see comments) There is precious little in the way of either state aid or public attention left to get unjustly convicted thieves out of jail as a result. Nor is there much room for discussions about whether or not severe isolation and supermax prisons serve society’s interests. The finality of the death penalty also means that some prosecutors will fight tooth and nail rather than having to admit the possibility that they either put on death row or executed a person who should not have been convicted. States have gone to court to prevent DNA testing that might have proven executed men were innocent. Death of any kind is an enormous weight on society. The weight of capital punishment on the justice system distorts its ability to produce good order. When the errors of the state are allowed to go uncorrected, whether it is because innocents accept jail to escape a death penalty trial, or the cultural and legal aid oxygen is swallowed by death penalty failures at the expense of broader systematic problems, or when the state defends a possibly flawed execution, good order is destroyed. The justice system simply cannot produce good order under the weight of capital punishment.

Which leaves the question of justice. And here, the case is even clearer: there is almost no way in which capital punishment can be considered just. Killing a person is a completely irreversible process. we cannot bring people back to life. We cannot do anything to correct the injustice of putting an innocent person to death. No, in the case of imprisonment, we cannot give those people back their lost years. But we can set them free and we can take care of them for their remaining time. None of that is possible when you are dealing with a corpse. And since there is no route to correcting an unjust application of capital punishment, then capital punishment itself cannot be considered just. Human beings are imperfect, meaning that their institutions and systems are imperfect. Any institution that does not allow for that factor, any system that does have mechanisms for correcting the inevitable errors, is inherently unjust. If a man convicted of stealing a car was alter found to be innocent, we as a society would not accept leaving him in jail to serve out the remainder of his term. We would rightly condemn that as unjust. And yet we are expected to accept that a system that allows for that very thing — corpses, after all remain corpses — is a tool of justice. That notion is silly on its face.

So even outside of the question of morality, the death penalty is inherently unjust and serves to weaken good order rather than strengthen it. The death penalty is not immoral, it is counter-productive.

January 9th, 2007 Legal Issues, Culture | 9 comments