The Corner

The Pragmatic Case Against the Death Penalty

Reading Noah Millman’s very interesting meditation on the death penalty, it occurred to me that I should admit that I think there is a defensible slice to the majority opinion in the child rape case. Once you start moving the goal posts on capital punishment, there is a risk — as Kennedy warned — of increasing the odds of wrongful executions. More generally, as Millman and many of his commenters note, there is a reasonable anti-death penalty position that this simply isn’t a job for government and the government, given its general level of competence, can’t be trusted with such responsibilities. One of Millman’s commenters writes:

From a conservative perspective, what’s wrong with saying that administering capital punishment is simply not a legitimate power of government?

When permanent incapacitation is a viable option, a limited government, cognizant of the fallibility of mankind, has no place exacting such an absolute and irreversible sanction as the death penalty.

I disagree with that, even if I find it a reasonable argument. The government has always been charged with seeking justice, not merely public safety. If the state were empowered solely with the latter, than it would be very hard to defend the death penalty in any circumstance since the public safety is served by incarceration. Justice is a tougher question. I think the death penalty serves justice, or at least it can when it is responsibly administered. But that’s a conversation for another time.

But what I can’t quite get a handle on is how someone can argue that the state should just get out of the business of deciding these life-or-death questions when it comes to serial killers and child rapists, but sees nothing wrong with the state making these decisions when it comes to, say, partial birth abortion. Millman writes:

For myself, I’m comprehensively skeptical, as I’ve noted before, of our rights-based discourse. I don’t think we have inalienable rights; I think we have inescapable duties. I’m more confortable arguing against the death penalty on the pragmatic grounds that we don’t want to grant ourselves the power lest we misuse it than arguing on the grounds that it violates a criminal’s inalienable right to life. But it does seem to me that if you start from a premise of such a right to life, then you can only barely justify the death penalty in cases of murder (on the grounds of satisfaction and/or expiation – the consequentialist justifications will never fly), and certainly not in any other cases. If our humanity is inalienable, that really does mean that nothing we do can take it away from us. In which case you cannot say that raping a child makes someone into such a monster as cannot be suffered to live.

This seems to me to a pretty good expression of a conservatism of doubt. We aren’t sure the death penalty is just, we’re not confident that the government is capable of making these decisions reliably, so we’d better just abdicate the power entirely. Well, it seems to me that’s a much stronger argument for, if not banning abortion altogether, than at least curtailing it a lot more than we currently do.

I have no objection to the idea that the whole class of humans identifiable as justly and properly convicted serial killers is eligible for execution by the state. But the pro-late term abortion position is that identifiable babies can be killed as a class if they are found to be inconvenient to their mothers and not yet fully delivered.

Obviously the analogy isn’t perfect. But it will not do to dismiss the analogy outright by saying that one has to do with individual choice and the other with state power. They’re both about state power. Remember, it’s not like we employ a pro-choice policy when it comes to the death penalty (euthanasia notwithstanding). I have no right to terminate the life of a serial killer, save in self-defense.

But in a lax abortion regime like our own, the state cedes the power to the individual to decide whether or not to end a life. (Indeed, when the mother wants the child, the fetus is often deemed to be a human being in many cases. So, for example, if the pregnant mother is murdered, the defendant is charged with a double homicide). If the conservatism of doubt position is that the state shouldn’t be in the business of ending the lives of murderers simply because it can’t be certain it’s right, shouldn’t that also apply to at least fetuses that are viable outside the womb?

Here’s how I put in a column last fall:

Every day, the government restricts what you can do with your body, from the drugs you can take to the surgeries you can subject yourself to. In other words, the line of personal autonomy is often blurry and narrow. The line between life and death is supposed to be bright and wide. Once a politician takes a stand that a certain population — be they fetuses, blacks, Jews, the handicapped or anybody else — has the right to life, their motive for changing their minds should be a lot better than fear of losing support from NARAL and the New York Times.

And that gets me to my more philosophical or principled reason for being pro-life: I just don’t know. I confess that I lack passion about debates over RU-486, Plan B, and other measures that terminate a pregnancy in the first few hours or days after conception, because that’s when I’m least sure that a life is at stake. But when it comes to, say, partial-birth abortion, I am adamantly pro-life. I don’t know if a fertilized egg has rights. But I am convinced that a baby minutes, days or weeks before full term is, simply, a baby. And despite what you constantly hear, Roe v. Wade doesn’t recognize that fact.

In death-penalty cases, “reasonable doubt” goes to the accused because unless we’re certain, we must not risk an innocent’s life. This logic goes out the window when it comes to abortion, unless you are 100-percent sure that babies only become human beings after the umbilical cord is cut. I don’t see how you can be that sure, which is why I’m pro-life — not because I’m certain, but because I’m not.

Now, I may be making the mistake of making a strawman out of Millman. I don’t know what his position on abortion is. But I think there are plenty of people who rationalize their opposition to the death penalty in exactly the manner Noah describes, but do not extend the same logic to abortion.

Anyway, I’m just thinking outloud while I try to avoid writing something else.

Update: Clarification

Recommended

The Latest