The Declaration’s logic lends itself equally well, however, to condemning governments that jeopardize our inalienable rights through sins of omission. The petty criminal and the sadistic murderer are, as much as the terrorist, making a political statement: “Your rights mean nothing if I can get away with violating them when it suits me.” The reason governments are instituted among men is to refute that assertion, to insist that by acting collectively through government we can secure and enjoy our rights far more reliably than we can by fending for ourselves individually in the state of nature’s war of all against all. This idea that a crime against one is a crime against the whole is conveyed by the nomenclature for criminal trials, such as The People of the State of Colorado v. James Holmes. Holmes stands accused, that is, not only of violating the rights of those he killed and wounded, but of a crime against all Coloradans. The failure to prosecute and punish this crime would call into question their ability to maintain a social and political order.
A government like Belgium’s or Scotland’s — so feckless, myopic, or morally fastidious that it compassionately abbreviates prison sentences for savage killers — sends exactly the wrong message about the most important political question. It tells prospective criminals that committing crimes, even the most depraved ones, will not necessarily prevent them from pursuing a satisfying life. A soft-hearted, soft-headed functionary can be counted on, after years have passed and memories faded, to clear the way for the criminal to seek out rich, diverse experiences despite the distant, awkward detail of that conviction for a horrific act.
At the same time, it tells law-abiding citizens they’re chumps for counting on the state to defend them by zealously disabusing criminals of the idea that it’s no big deal to violate others’ rights. Worst of all, it salts rather than salves the wounds of murder victims’ families, who counted on the government for justice. The government echoes and validates, rather than drowns out, criminals’ assertions about the irrelevancy of their victims’ rights, and the concomitant derision of the survivors’ grief. “I believed this would not happen,” said the father of one of the girls Michelle Martin’s husband murdered. “If Martin gets an early release, then who will they keep in prison?”
If the worst penalty the state can inflict on a convicted murderer is life imprisonment without the possibility of parole, then it will have to either punish the most monstrous crimes no more severely than less terrible ones, or ratchet down the punishment for every other crime to maintain proportionality. And there is a second respect in which one thing leads to another. Before America decides to emulate the enlightened nations that have abolished capital punishment, we should ponder the fact that such enlightenment culminates in the aversion to any punishment. Saw off the top rung of the penal ladder and there’s no good reason not to remove the one below it, and then the next. For example, Anders Behring Breivik, the Norwegian convicted of 77 murders, faces a maximum prison sentence of 21 years. And he is unlikely to serve all of it since, as The Daily Beast reported, “even murderers are fully eligible for parole after just a few years in prison.”
Such leniency comes naturally to “a country that considers the idea of punishment barbaric,” and that takes “great pride in rejecting a justice system based on revenge and retribution.” If opponents of capital punishment want America to join in rejecting retribution, they should make something clear: Does their campaign stop once the death penalty is abolished — and, if so, on what basis can wringing every trace of retribution out of the criminal-justice system be limited to abandoning executions? Or is the goal to follow such moral sensibilities to their logical conclusion, rendering American justice indistinguishable from the kind provided in Belgium, Scotland, and Norway?
— William Voegeli is a senior editor of the Claremont Review of Books, a visiting scholar at Claremont McKenna College’s Salvatori Center, and the author of Never Enough: America’s Limitless Welfare State.