What's Killing the Death Penalty?
More than guilt over executing the innocent, or fear of an all-powerful state, the death penalty might be on its way out in the medium term because of a simple shift in mores. Over at The Weekly Standard I take a look at two key claims underpinning the polarizing practice:
First, there’s the claim that the surrender of one’s life can be a just penalty for a crime commensurate with one’s own execution. (In a stateless society, sovereign individuals might freely agree to give up their lives if, say, they take the lives of others.)
Second, and just as important, there’s the claim that the seriousness of such an arrangement can only be procedurally authorized if the defendant is tried by peers presented with the face-to-face evidence of peers (or, as the standard slips, the next best thing). Politically and morally, the legitimacy of capital punishment depends in crucial measure on our bearing the onus and responsibility of witnessing acts punished by death, bearing that witness, and together exercising judgment on its basis.
If the mood of the country is turning against capital punishment, it’s because these foundational principles no longer strike powerful chords in our guts. The power of the state and the fate of innocents are important issues, but not root issues. If it stops making sense for most Americans that people should want to agree to give up their lives if they take lives, or that personal witness and judgment – rather than lab work and mandatory minimums – are essential to justice in a free society, then capital punishment becomes an absurdity.
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Aug '10
Re: What's Killing the Death Penalty?
John Locke expressly argued against your first point. It was a part of his foundation regarding the injustice of slavery.
What is completely overlooked in your comments here, and I'll have to look at your article at the Standard, is that the action that brings about the conviction is an act of war against the social contract. When an individual kills another individual within a society, they have created a state of war between themselves and the society at large. They have violated the social contract in the most heinous way. The state has a right to defend itself and its citizens as much as the individual, as it is a contract between individuals.
Problems arose in the legal proceedings surrounding the Death Penalty when we allowed families to speak about how their experiences in the wake of the loss of a loved one. That shifts the conversation from social to personal and from justice to vengeance.
The ability to use lethal force to maintain the social contract -- whether by police in the instant or by execution -- is the ultimate power of the state. Without that power, properly limited of course, the state has no real authority.
Sep '10
Re: What's Killing the Death Penalty?
James Poulos: Politically and morally, the legitimacy of capital punishment depends in crucial measure on our bearing the onus and responsibility of witnessing acts punished by death, bearing that witness, and together exercising judgment on its basis.
My morality is not based strictly on religion, which is probably why I do not see the use of our as meaningful in this context, either morally or politically. ... To me what makes capital punishment morally legitimate is if—and only if—there is no doubt as to the guilt of the accused and the accused demonstrated utter contempt and disregard for the victim. That such a definition would likely limit the use of the death penalty is all the better, in my opinion. As for politically, well, I've given up on taking that road in trying to grapple with such issues.
Jul '10
Re: What's Killing the Death Penalty?
Most of the arguments against the death penalty seem to be less about its legitimacy for someone who is undoubtedly guilty; it is against the wrongful execution of an innocent person. That is a cry for judicial reform like mandatory DNA testing in all applicable cases before the death penalty can be assigned. That society may no longer find execution efficacious lends more to the fact that it appears to have no deterrent effect when convicts are given another 20 years to make appeal after appeal.
Dec '10
Re: What's Killing the Death Penalty?
I agree with Nathaniel. Both of the points in the article are based on the perspective of the felon. I use the term 'felon' rather than 'defendant' because the use of the death penalty is decided after a conviction.
All of the various costs to society of not executing a murderer have to be considered as well. In other words, the most obvious defense of a society executing felons who meet the standard required to trigger the choice of execution is a matter of waste disposal.
Defense of a society that uses the death penalty depends not only on whether the punishment for a murder is fair to the murderer but also the question of whether the execution is of service to society.
While this might never seem to be in Johnny Scumbag's best interests, it very likely is to the long term benefit of Johnny's neighbors.