Saturday, January 2, 2016

Reconsidering My Earlier Justifications of the Death Penalty

NOTE: I am reproducing this essay from my now defunct blog. I have reproduced most of the essays it cites, yet somehow I never copied this one, which does a better job of presenting my arguments.

Recently, I have been reading old posts again and spending some time asking whether they still seem as true to me today as they did when I wrote them. In the process I have also been reflecting on the assumptions underlying my conclusions, asking if I ever adequately established the arguments supporting those assumptions, and if I think that both the assumptions are true and the conclusions obviously flow from those assumptions. And, in general, I have been pleasantly surprised. My old posts are better than I expected, generally arguing from pretty well founded assumptions and not making too many assumptions or jumping way beyond established facts without a lot of support.

The only thing that has made me think twice has been my argument about the death penalty. Not the basic arguments I made, I believe that everything I wrote is correct. I think, provided the unspoken assumptions I made going into the argument are allowed, the rest of my points are correct. (See  "Compassionate Execution", "The Death Penalty", "A Rational Approach to Punishment", "The Ends Justify the Means?", "Fair or Functional?", "Crime, Insanity, Incompetence, and IQ", "Sunday Morning Talking Heads", and "Revisiting the Death Penalty") My problem is not with the posts I made, but with the question of granting the government the power to take life.

This problem is not unique. It is similar to the problem many libertarians have, the one which leads them to fear the state. ("Faulty Logic", "All Life in a Day, or, How Our Mistaken View of History Distorts Our Understanding of Events", "The Libertarian Left", "Reticent To Adopt a Title") Likewise, it is the same thinking which leads to the same groups fearing the military and generally adopting an almost impotent, insular foreign policy. ("Rational National Defense", "Rights Versus Laws", "Last Word on Defense")  In each case, the people who fear police or military power are concerned that the state might be hostile to the citizens and use such powers abusively.

My concerns are not quite identical to the libertarians who fear police and military power. The libertarian fear tends to be based upon a view of the state as a "necessary evil", a view which I have criticized in the past. ("Some Libertarian Analogies", "What Happened?", "Third Party Problems", "Why I am a Republican") Instead, I tend to view the state as a tool, and one whose proper powers include the exercise of police and military functions. So my concerns do not have quite the same origins, but in effect they are very similar.

You see, the libertarians fear the state in general, and so worry about granting it any powers at all. On the other hand, I accept the state as a legitimate entity, so long as its functions are limited to a pretty narrow set of duties ("Government Quackery ", "The Inevitable Corruption of Protectionism ", "Zero Tolerance and Big Government "). On the other hand, I also recognize that the state requires a considerable amount of power to fulfill its duties, and that leaves it open to abuse, and the possibility of abuse of legitimate functions makes me very wary of giving the government the power of life and death. Which means, in some senses, though we have different reasons, the libertarians and I share the same concerns.

The difference between the two perspectives is significant. So long as you see the government as hostile,you will be unable to, in good conscience, grant them the powers they need. While if you think the government is simply a tool which can be abused, it is possible to grant it the powers it needs, requiring only that you institute safeguards to protect against its misuse.

And so, I asked myself, if we prize the lives of citizens, as the state exists to safeguard their rights, then what justification do we have for granting the state the right to kill? 

Please do not think I am making a left-sounding argument against all killing. I do think life is sacred and deserves protection in general, but I also recognize that at times defense of one's life or property may require the use of violence, even lethal force. But that is where the problem arises in my thinking. We allow that an individual has the right to use violence to prevent an assault against him, or even to protect his property, even the property or life of another. But what we grant the state in the death penalty is not the right to prevent violence, that power is embodied in the military, and the police's ability to prevent crimes. The death penalty is completely different. An individual has the right to use violence to stop a crime, but do they have the ability to grant to the state the power to kill an individual after the fact, as punishment subsequent to the crime?

At first, this seems a problem. In fact it was this distinction which first caused me to question my dedication to the death penalty. My reasoning was sound, as far as it went. But the problem is with an assumption I did not examine. And that is the question of how the state gains the right to use death as a punitive tool. Not to use lethal force to prevent harm, to protect rights, but the use of lethal force later, as a punishment for a crime already committed.

But a few moment's though convinced me I had been right in my initial assumption. And the solution was obvious, at least once I began to examine the question in terms of the most basic assumptions of the social contract. Once I asked what man could do in a state of nature, even more, what he would do, it became clear the state was doing nothing different than what man would do on his own. And thus, though it seemed wrong for a moment, was a perfectly legitimate right*.

In nature, confronted with an unknown, man would wait and see how it behaves, be it an animal, or a man. And, should it attack, he would then see it as hostile, and in his future dealings, he would then treat it with hostility. When man moves into a society things change somewhat, but not entirely. Those who are part of his society gain the presumption of peaceful intentions, but not the rest. Those outside of society, and those in society who later violate his rights, proving their intent to separate from society, they are treated as hostiles, just as they would be in the pre-social past.

And that is where our right to execute arises. We do not kill criminals to prevent them from committing past crimes, nor even to punish them for those crimes. They are killed because their previous actions have shown they both do not want to live by the rules of society, and also that they do not respect the rights of others**. In short, we execute them to prevent future crimes, which they have clearly indicated they intend to commit. As I said in another post, it is analogous to killing a rabid animal or a violently agitated man. It does not matter than it will not correct past crimes, the killing is intended to remove a present and future threat, one that has made clear its nature through its own actions.

Which at least answers my basic question, whether or not there is a justification for killing after the possibility of prevention has passed. As to whether it is practical, I will refer readers to my earlier writing. There I make the case that, despite the focus of most arguments, deterrence is not the only argument, and can even be ignored. The death penalty also prevents the possibility of a murderer killing guards, or even other inmates, while in prison, and also removes the possibility of not only future release, but escape as well. In all these ways, the death penalty prevents the killer from killing again, and serves to keep society safe, which is the primary goal of our criminal justice system.


* Some may ask why I care if an individual has the right to use violence subsequent to a violation of rights. As I have written so much about the practical approach to punishment ("A Rational Approach to Punishment", "The Ends Justify the Means?", "Fair or Functional?", "Not Completely One Sided", "Motives Unimportant", "Crime, Insanity, Incompetence, and IQ", "Sunday Morning Talking Heads", "A True Conservative Platform"), it seems odd to now worry about abstract rights. But I would argue that it is not that abstract. As I argued in "Symmetry and Asymmetry in Government" and "Negative and Positive Rights", our government's stability depends on rights being symmetrically distributed. If we establish a system with rights distributed in a non-uniform manner, for example, granting the state rights an individual lacks, then we introduce the likelihood of political turmoil. And so, though questions of rights and social contract may seem obscure and remote from practical concerns, but they are not. Such issues are much more practical than many ever comprehend.

** Some may ask how we can legally imprison criminals, as that is not a right possessed by individuals. But in that case, rather than a right which the state is deputized to enact, it is a social convention to which we all agree. In practice, the state could execute anyone who violates the rights of another, as he has shown his inability to abide by our rules. However, we are a compassionate people, and so we allow that for lesser crimes criminals can agree to spend time in prison rather than face execution.In this way, we establish lesser penalties for less serious crimes, hoping that such punishment serves as sufficient deterrent to prevent them from offending again. (In the case that they do, we then have resort to either the original death penalty, or to a longer period of imprisonment.)

Originally posted in Random Notes on 2010/06/28.

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