Since the state of Oklahoma “botched” its execution of Clayton Lockett last week, the media have turned their fleeting attentions to the death penalty — mostly in a tone of voice that can best be described as censorious. This website, in turn, has pushed back against the impulse, Dennis Prager asking rhetorically whether “the side that can’t muster outrage over murder victims” is “really the one with a heart,” John Lott Jr. doing an admirable job questioning some of the sloppy thinking on the abolitionists’ side, and Jonah Goldberg taking to heart Radley Balko’s wise assessment that “both sides of the death-penalty debate have irreconcilable moral convictions” and concluding, for his part, that “Lockett deserved to die for what he did.” “Everything else,” Goldberg wrote, having run through the objections, “amounts to changing the subject, and it won’t convince me otherwise.”
National Review being a magazine that features a variety of different views, I thought it was about time that someone made the opposite case. So, here it is: I dissent.
While I am in agreement with their goals, I should say that many of the cases that capital punishment’s opponents level against the institution strike me as being embarrassingly weak. The fashionable claim that the Eighth Amendment outlaws the practice as “cruel and unusual punishment” is not merely historically and legally illiterate — the worst of the living constitutionalists’ political opportunism — but a transparent and counter-productive attempt to take away from the people a question that is ultimately theirs to decide. Also unconvincing: the breathless suggestions that a particular form of execution’s causing us problems renders the whole kit and caboodle unjust (why not find a better way of carrying out the death penalty?); a popular meme that puts the United States on a similar moral plane as other users of the death penalty such as Iran, China, and North Korea — it matters, after all, for what and how you are sentencing people to death; and the insinuation that the system is inherently “racist” — which, in our era at least, appears to be highly questionable.
Better, but not perfect, is the proposition that the state’s fallibility and death’s finality make dangerous bedfellows. This is indisputably true. But even this line is ultimately limited in its usefulness, implying as it does that if we had perfect information, equitable sentencing, and a reliable means of offing the unwanted, then killing the guilty would be acceptable. In my view, it would not, and this, I think, is the point that should be most forcefully made. Rather than waste their time with baubles, advocates would do much better to subjugate their ancillary arguments to their essential objection: That we shouldn’t be choosing to execute anybody when we don’t have to.
To my mind, this question is primarily an ethical one: Namely, “When is it acceptable to kill?” As a general rule, the best answer to this seems to be “sometimes.” Mohandas Gandhi was an admirable man in many ways, but his pacifism took on a self-destructive bent that I would not recommend Americans emulate, culminating in the suggestion that the Jews of Nazi Germany should respond to the unimaginable violence that was perpetrated against them by committing mass suicide. The unfortunate truth is that, in a whole host of situations, we really do have little choice but to kill. If soldiers come over the border, guns blazing in our direction, what can we do but to fire back? When a woman is confronted by a rapist who is immune to reason and unwilling to respond to her refusals, she has little choice but to fight — to the death if needs be. If one’s home is invaded and the lives of one’s family members are threatened, deadly force is a wholly appropriate — and arguably mandatory — response. Life is precious. But, by its very nature, holistic pacifism has a poor answer to the question of which life is more precious, and when they are pitted against one another, pacifists tend to choose the lives of the aggressors while non-pacifists tend to choose the lives of the targeted.
Still, in making the case for self-defense, one needs to tease out some crucial distinctions. If a man breaks into my house and threatens me and my family, I have every right to shoot him dead. But it seems reasonable to presume that this right lasts only for as long as he remains a threat. What if I neutralize the threat without having to use deadly force? What if I point a gun at an attacker and he drops to the floor shouting, “Don’t shoot”? What if I keep the gun trained on him and then call the police? What if I bind his hands behind his back and then involve the authorities? Would it still be acceptable for me to execute him for having put me in peril? I think not.
This situation is analogous to the death penalty in an important way. Nobody would deny that a police officer or regular citizen should be able to defend himself in the line of duty. Nevertheless, once he is safe we would all expect him to try to keep his suspect alive. Why? Well, partly because we value due process: It is, after all, not the officer’s responsibility to sentence the accused to death, but his obligation to submit him to his peers for judgment. But, I’d venture, we also expect him to spare his charge because we draw a moral distinction between people who are threatening us and people who are not. Morally, does this calculation really change if the guilty person has been through a court?
The analogy is not perfect. But, by and large, we execute people in the United States by choice and not by necessity: as retribution, or as an example to others (which we call “deterrence”), or because it brings closure to the bereaved. We do it not so that those inside the prison gates might be safer, but so that those outside feel that justice has been served — performing in ceremony what Albert Camus called “the most premeditated of murders.” Those we kill may be hideous, and their behavior may have been unspeakable. But we are appalled by them because their actions contrast so sharply with what we believe we are capable of, prompting us to share glances and to whisper in shock: “In a million years on earth, we wouldn’t do anything like that.”
— Charles C. W. Cooke is a staff writer at National Review.