death penalty – Pursuit of Liberty

Frying a Red Herring

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I wonder if our country would be in better shape if we spent more energy in a war on bad arguments rather than a war on terror (or poverty, or drugs, . . . or prosperity). Just a thought.

As an example, we see the often repeated argument by abortion advocates that it is hypocritical to claim to be pro-life and simultaneously support capital punishment. This is a very nice red herring for them because there is a lot of overlap between those who oppose abortion and those who support capital punishment. The problem is that holding those positions simultaneously does not amount to hypocrisy. For those who care, here is a long, well-written explanation of how the two are perfectly compatible. For those who are in a hurry or in the middle of a debate where this argument is trotted out, here’s my short proof.

The founders recognized life, liberty, and (private) property, as human rights to be protected. It’s not really necessary, but for the sake of clarity let’s view these as a hierarchy of primary individual rights – life being the most important of the three and property as the least important of these inalienable rights. “Inalienable” means that they are “incapable of being alienated, surrendered, or transferred .”

Now, if we cannot surrender or transfer our right to property I would ask if property can ever be legitimately taken from our control? The answer is clearly “yes.” Taxes, fines, and restitution for wrongs committed by a person are all examples. If we cannot surrender or transfer our right to liberty, can liberty ever be legitimately taken from us? Once again, the answer is “yes.” Saunter on down to the nearest jail or prison and see that it has been taken from some. Note also that even in cases where a person is later proven innocent the state at times has a legitimate right to suspend liberty while determining the question of guilt. Finally, if we cannot surrender or transfer our right to life, can life ever be legitimately forfeit based on our actions (according to the best evidence available at the time)? I will stop short of answering in the affirmative because I recognize a lack of complete consensus on the question but I submit that the affirmative answers on both preceding questions is ample evidence of what I set out to prove – that simultaneously being pro-life and supporting capital punishment is insufficient evidence to convict someone of the sin of hypocrisy.

Case closed – pass the fish.

Why Life Imprisonment is Wrong

photo credit: BlatantNews.com

When I read Jay Hutchinson’s post about Why Capital Punishment is wrong I could not sit still without sharing the opposite perspective so that some people can recognize that the issue is not one sided or clear cut. I am not one who believes in excessive punishment and I would not argue that a justice system without an option for capital punishment is inappropriate, but the longer I live the more I recognize that I have never heard an argument against capital punishment that did not ring hollow on some level.

When Jay speaks of the “hypocrisy” of a government killing to prove that killing is bad he both makes a very poor argument and misses the point of capital punishment entirely. The shallowness of that argument is apparent when we recognize that government has a legitimate position of authority with regard to society and thus has some limited permissions not available to society as a whole. For his argument to work you would have to be able to argue that a father was being a hypocrite for making a rule that his child could not use matches when he uses matches to light the furnace when it goes out. Another example would be trying to argue that police departments are hypocritical for enforcing speed limits on the population while they and other emergency workers regularly exceed the speed limit in the course of their work. The use of capital punishment is not to show that killing is bad, it is meant as a consequence of certain actions as a way to demonstrate unacceptable behavior through the punishment and as a way to remove future threats to society. That certainly does not mean that capital punishment is the only way, or even necessarily the most desirable way to meet these goals, but it is not simply to show that killing is bad.

Of Jay’s three official arguments, two of them hinge on far from common occurrences – the change of heart and the wrongful conviction. That these are not true in the majority of cases does not mean that they are not legitimate concerns, but governing based on exceptions is a very dangerous practice. The fact is that most of the time the person convicted is the guilty party and of those convictions that are overturned a sizable number are overturned on technicalities, not necessarily because the defendant was innocent – nothing we can do in our justice system will ever make it 100% accurate, but we do fairly well. Jay gives exactly one exceptional example of a change of heart while claiming that “people often have a change of heart on death row.” I’m not sure how we could determine “often” since no metric, including professions of innocence, can accurately draw a line between those who have a change of heart and those who don’t. Even if we could draw that line accurately part of a change of heart for those who are guilty is an acceptance of the consequences of their actions. If society has determined that death is the appropriate consequence for our actions then a real change of heart would include coming to terms with that punishment for our actions. (After all, just because Bernie Madoff changes his heart about defrauding millions of people out of billions of dollars and promises never to manage money again does not mean that he should not face the consequences of his previous actions.)

His third argument is not dependent on the exceptional case – the financial cost of capital punishment is almost universally higher than the financial cost of life imprisonment. Like governing based on exception however, governing based on financial considerations alone is dangerous. Besides that, there are things we can do to change the equation (considering that the vast majority of appeals result in no change of sentence one option would be to reduce the number of available appeals).

For those who are still convinced that capital punishment is just wrong please consider the alternative and see if we are not stuck between a rock and a hard place.