Most of the time, cases against the death penalty rest on the following sorts of claims:
- Innocent people get killed
- It's often cruelly painful to the subject
- It disproportately impacts the poor and minorities
- It isn't a deterrent, and may even increase murders
- It's too expensive
- Victim families do not get closure
- It dehumanizes the guards, executioners and society generally
- Juries may be reluctant to convict defendants if the death penalty is a possibility
- It puts the US in the company of China, Iran and Saudi Arabia for using it
- Killing is just wrong and the state shouldn't be in the business of doing it
I believe all of these are true, or at least have strong evidence to back them. However these sorts of arguments miss the point in the capital punishment debate. They assume that we who argue against the death penalty must prove it is wrong. Instead, it is the opposite that is true. The problem with capital punishment is that proponents have utterly failed to make the case for it. That alone should cause the practice to end, if we are true to the philosophical roots of how a free society should be governed.
Why It's Wrong: A Violation of The Basis of a Free Society
One fundamental value, is the default assumption that all behaviour not illegal, is legal. It doesn't have to be that way, one can imagine a society of repression where government acts to legalize behaviours which would otherwise be forbidden. Sufficiently repressive societies will more or less end up functioning much like that anyway - if the secret police can drag you away at a whim, you'll probably self regulate yourself out of doing a great many things that there are no written rules against. So that assumption is vital, the presumption of permissiveness. It is the very basis of a "free" society.
Given that, one is left with the question of "under what circumstances can behaviours be made illegal then? When can society mandate certain acts?"
A good starting point is John Stuart Mill's Harm Principle, which stated:
That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.
It's a simple expression that underlies the liberal vision of the rational State and society. It doesn't resolve everything, as the details of what measures "prevent harm to others" is contentious, but it does rule out a great many things. Interpreting this principle more broadly, you can arrive at something like section 1 of the Canadian Charter of Rights and Freedoms:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
It is here that capital punishment fails the test. Obviously the Canadian charter has no legal effect in the US, but I'm using it as an expression of a relevant philosophical premise: If you want to propose that the State should have the power to kill certain citizens for engaging in certain behaviours, you are proposing to give the State a massive freedom curtailing power (to revoke life itself), in service of...what exactly? What greater end can justify this abrogation of the ultimate human and civil right?
And things do work this way in the US. Many laws are premised on their service to the "general welfare" or that they are "necessary and proper" for the fulfilment of government's role. It's just that the Charter states it more succinctly.
Opponents don't have to cite studies or do comparative research to other countries. In this understanding of a free society, the onus should properly rest with those who wish to curtail freedom to explain why, rather than those who wish to keep freedom to explain why not. You want government to act, particularly in such a severe and irrevocable manner, you need to show it works.
It's certainly true that capital punishment is very popular, but that's more to do with some kind of ingrained human appetite for vengeance that sees itself expressed in capital punishment rather than the practice meeting the threshold for societal utility. I say that because I've not see a good argument for the practice, so the fact of its popularity must rest on something other than an empirical case.
Does capital punishment save lives? Does it comfort the loved ones of victims? Where is the evidence for these propositions? The logical theory about why these things might be true is simply not good enough. In a world that had never tried the death penalty, we might accept this, but we now have more than enough statistical data on which to base or refute these assertions, and they are easily cast into doubt.
It is as if the prosecution made opening and closing arguments, with nothing in between. The defence doesn't actually even need to call a witness.
The Fall Out
Once you arrive here, capital punishment becomes a very dangerous deviation from the fundamental nature of a free society. The meritless arguments for capital punishment (usually "punishment" meaning "vengeance") are not valid reasons for government action, and if we accept such things, we risk other illegitimate encroachments on freedom that perhaps have intuitive/emotive appeal but lack substantive societal merit. A not insignificant example are the prohibitions on felons and prisoners voting. These too serve no useful societal purpose, and have many deleterious side-effects. Why are they supported?
After that, the negative effects of capital punishment are just insult upon injury. Not only is it not demonstrably saving lives or comforting victims, but it is killing innocent people, and inflicting psychological harm to the guards, executioners and other officials in the judicial system who have any role in executions. It costs more than life imprisonment, and adds incentive to people on the run from the law to kill police officers rather than face death behind bars. It might even be setting murderers free, since any jury is liable to have at least one person more than queasy about convicting someone of a crime for which they will be put to death. Who wants that on their conscience?
In short, it is bad policy that not only fails to achieve its aims, but makes things much worse. As a violation of the principles of a free society it is simply morally wrong. If liberalism really is resurgent in the US, it is time to start making these sorts of moral arguments that return to the foundations of how democratic societies are organized. Liberalism is coherent and holistic, and cafeteria "pick and choose" ideologies leave society prone to accept atrocity where they don't feel personally harmed by the bad policy. |
