A liberal case for the death penalty

Andres Kupfer raises a nice problem for the liberal left: should its opposition to the death penalty extend to opposing putting Saddam Hussein to death?

I think the issue highlights the weakness of the left’s thinking. Most leftists, I suspect, see support for the death penalty as a primitive instinct, to which rationality is opposed. My view is the exact opposite. Instinctively, I detest the idea of giving the state the power to kill people. But rationally, I can see a case for it.

Start from a simple premise – that society, and the rights we have, arises from an implicit social contract. This Dworkin/Rawls view gives a foundation for the liberal-left view that individuals have obligations to each other, and that people have more rights than animals.

The question is, then: is it possible for someone to forfeit their right to life by breaking this contract, or by merely being outside of it?

The answer, surely, is yes. Most liberal-leftists believe there are circumstances in which war is legitimate (whether these encompass Iraq is a separate issue). This means they believe the state can take the life of its enemies on the battlefield*.

Now, many of these enemies have done little to forfeit their right to life. They might be conscripts, or men fighting (maybe misguidedly) for their country. Contrast them to a persistent serious offender, who by his freely-chosen actions, breaches the implicit contract on which society is founded. Why should the latter have a right to life but not the former?

The left will reply here that killing our enemies on the battlefield is the only way of removing the danger they pose. But there is an easy way of removing the danger posed by criminals – to imprison them.

But is life imprisonment really better than death? John Stuart Mill thought not – which is why he supported the death penalty. He said:

I defend this penalty, when confined to atrocious cases, on the very ground on which it is commonly attacked--on that of humanity to the criminal; as beyond comparison the least cruel mode in which it is possible adequately to deter from the crime…What comparison can there really be, in point of severity, between consigning a man to the short pang of a rapid death, and immuring him in a living tomb, there to linger out what may be a long life in the hardest and most monotonous toil, without any of its alleviations or rewards--debarred from all pleasant sights and sounds, and cut off from all earthly hope, except a slight mitigation of bodily restraint, or a small improvement of diet?

Maybe, then, there is a liberal-left case for the death penalty. If we believe people are free agents capable of making moral choices, can’t we believe they might make choices so horrible as to put themselves beyond the care of society? Could the death penalty be a way of demonstrating our belief in our common humanity and in individual autonomy? Mightn’t genuine life imprisonment be so terrible an existence that a quick death is more humane?

Maybe, there is a case – in principle – for the death penalty.

For me, the strongest counter-argument is that, in most ordinary criminal cases, we can never be so sure of guilt as to justify the ultimate penalty; there have been enough miscarriages of justice to demonstrate this. But this argument doesn’t apply to Saddam Hussein.

There is another counter-argument I’m less sure about. It’s that a state which has the power to kill its people (I don’t use the word citizens, as I don’t consider criminals to be citizens) is, by definition illiberal, or that the death penalty brutalizes the state.

I’m not convinced. 19^th century England was more liberal and civilized than the later 20^th century Soviet Union. And the US is not more repressive than western Europe. Maybe a liberal society can be one in which the state has a few severe powers, rather than a lot of less severe ones.

* If you believe it’s acceptable to kill civilians, the argument for the death penalty becomes trivially obvious.

Another thing: I’m not happy with Andres’ point:

I don't know if the Iraqis are ready to spare Saddam's life. If they are, I'll be glad; if they aren't, I'll respect their decision.

This, surely, is inadequate as it stands. The question of whether a man should live or die cannot be left to mere majority will. Before arguing that it should be, you have to show that he has forfeit his right to life - that he's opted out of the social contract.

Comments

[Andres Kupfer]

I don't disagree with you. I do believe it must be proven that Saddam has opted out of the social contract before he is put to death: that's the very purpose of his trial.

If his trial results in a verdict of guilty, I would expect that the decision on whether or not to execute him will involve quite a lot of political wrestling.

At the end of the day, it will be a political decision. That's what I mean when I spoke of the 'readiness' of Iraqis.

Best,
Andres

[stu]

"The question is, then: is it possible for someone to forfeit their right to life by breaking this contract, or by merely being outside of it?

The answer, surely, is yes."

I think you are reaching your conclusion here before putting forward the argument. The answer is not, "surely yes" - at least for those of us who oppose the death penalty. One can accept the loss of liberty as a consequence of breaking the social contract as this is required to protect society but the presumption of death is not obvious nor automatic.

Furthermore, just because life imprisonment, without the chance of parole, is more dehumanizing than a quick death, is no justification for the death penalty.

[Blimpish]

Good post, Chris (but I would say that...). There's a certain amount of squeamishness over the death penalty, which masquerades as moral argument when it's more simply aesthetic - as you say, most people accept that states can and should wield lethal force. You don't even have to go to the war power - most of us are willing to accept that the police can shoot criminals in siege situations, even though there's often very limited clarity on why the situation has come about. But that's ok, it seems, because there's no due process about it, and so we the public aren't implicated in the killing.

Stu: on that last point you make, do you also oppose life-without-parole? (serious question)

[another chris]

It seems to me that you are treading in the footsteps of Thomas Hobbes' "Leviathan". The thesis being that everyone is a part of society; that society imposes a contractual relation among citizens. Thus the death penalty is not abominable, indeed it is a consequence of "breach of contract" of the condemned.

The liberal critique of this point of view is an appeal to the matter of justice. Is it just that blacks face the death penalty more frequently than whites for similar crimes (in the US anyway)? Is it just the poor are convicted more frequently for similar acusations than the rich? Is the death penalty just when it is overturned as frequently as it is?

And if one wished to delve deeper into the issue of Hobbes' social contract, what of an individual who would be born into a society like that of Iran? Is the state preeminent in its right to enforce their social contract? What if the contract says that a woman outside of her house without a male escort should be attacked by another who should happen upon her? Is the social contract the gold seal upon which we must base our decisions. Surely you are not suggesting that we should forfeit our good judgement about the rightness or wrongness of law strictly on the basis of social contract are you?

In the end, I do not see how the trial of Saddam Husein has any implication for the left wing view of capital punishment. There is no basis for attacking the trial as unjust, and the original argument concedes as much. It is, as they say in the US, a strawman - it erects a simplistic characterization of the other side's point of view, and vociferously attacks it.

[sean]

What is interesting about CP in the states, is that the "right" are seen to be in favour, while against abortion, and the "left" ae seen to be against, and in favour of abortion.

But as we see here, the "american left" too are much more in favour than understood here in Europe.

http://www.deathpenaltyinfo.org/article.php?scid=23&did=1266

Personaly I see CP. Abortion. Euthenasia. and War and Policing, As issues which the state reserves the right to kill, and as long as this power is limited by democratic and legal power (seperation of powers) I see no fault with it.

Its also interesting that the "lefts papers" were last week pointing out that "only" 64% of Americans support CP (which was still in the margin of error for the previous 67%)..while not pointing out that 70% of britions support CP.

Another interesting titbit from the Gallop poll, is that secularists/atheists support CP

"Fifty-seven percent of those with no religious preference favor the death penalty for murder."

So not so much "bible bashing old testement" types, but ordinary Joes too!

I think Naural law is what expalins all these polls, People understand the arguments better than our own Mps, and Judges, would dare to give them credit for.

[Phil]

"many of these enemies have done little to forfeit their right to life. They might be conscripts, or men fighting (maybe misguidedly) for their country."

That's a good liberal argument against conscription and a classic internationalist argument against war. Whether you accept the anti-war argument depends on whether you recognise the authority of nation states. I don't know any good reason for not accepting the anti-conscription argument.

"Contrast them to a persistent serious offender, who by his freely-chosen actions, breaches the implicit contract on which society is founded. Why should the latter have a right to life but not the former?"

This is hopelessly confused. The enemy combatant is a participant in a conflict between two nation states; his life is forfeit from the moment that conflict begins, because his society has accepted that nation states are entitled to settle their differences over the bodies of their armed forces, and because he's joined up. The criminal is first and foremost an offender against *society*, not against the state.

The question is whether the state, in its function as protector of society, should be entitled to kill members of society. It's a big question, and I don't think either the war analogy or the comparison with the rigours of life imprisonment really address it. What strikes me is the relationship between the death penalty and vendetta, which it simultaneously sanctions and neutralises. I've written about this here:
http://existingactually.blogspot.com/2005/11/because-hes-big-bloke.html
There are some interesting comments.

[stu]

Blimpish,

I do - or to be more precise, i oppose life, without chance of parole.

If somebody still poses a danger to society and shows insufficient reform then there is no reason why they should not be locked up till the day they die but not offering the chance of parole is imho a "cruel and inhuman punishment" (also gives no incentive for reform but that is irrelavant to the moral argument)

i think there was a question in the summer about whether Spain would extradite a terrorist suspect to Britain because they have a policy not to do so where the suspect might face life (such as with UK policy on extraditeing those who face the death penalty)

[chris]

Stu - you've fallen into precisely the problem Mill addressed.
He agreed that life without parole was a cruel and unusual punishment - so much so that it was worse than death.
But the problem is, what if life with parole is too weak a penalty to deter murderers?
Then we have a dilemma - to either have life with parole, but with innocent people being killed, or tohave the death penalty.
It's a nasty trade-off. I fear that many liberals avoid facing it by using the empirical claim that the death penalty isn't a deterrent. But what if this claim were wrong?

[Phil]

"the problem is, what if life with parole is too weak a penalty to deter murderers?
Then we have a dilemma - to either have life with parole, but with innocent people being killed, or to have the death penalty. It's a nasty trade-off."

Even nastier than your formulation suggests. The second alternative should read "or to have the death penalty, with [at least some] innocent people [predictably] being killed *by the state*." The extension of the state's power to kill to its own citizens is where I draw the line, on grounds which I think are rational as well as visceral.

[Robert Schwartz]

Saddam cannot be left alive. If he is, he will be the rallying point for the rejectionists and FREs in the insurgency. He who raises a sword against a king ...

[stu]

With respect Chris, i don't think i have fallen into Mill's problem - simply because i do not think that either the death penalty or life without parole should be used - both forms of punishment are cruel and unusual.

as far as i am aware, the reason why we use that empirical claim is because the evidence is there. i think that the greatest factor in deterring those who are rationally choosing to commit a murder is the thether or not they will get caught.

[Blimpish]

Stu: the empirical claim is very messy and indistinct; it's one of those areas where conclusions mysteriously tend to reflect researchers' prejudices.

[Bloggers4Labour]

I don't see life without the chance of parole as especially cruel and unusual. In many cases the convicted won't be that far gone, but it may well be that they are unreachable to psychologists. So it may be a practical solution for someone who would be too dangerous to be at liberty in society. Improvements in prison conditions would allow such a person to, say, read and improve themselves for their own personal benefit - a far cry from working a treadmill or watching water drip from a bare stone wall. That wouldn't appeal to all prisoners, but at least there's a choice available to them, and I'm sure Mill would approve.

It's hard to say if the death penalty would be a deterrent. It must be, to some extent, but not as much as the likelihood of capture and conviction, nor could we say if the lives saved by introducing the d.p. would exceed those lost by its incorrect application.

As for the social contract, the fact that nobody in a liberal society has had to assent or be forced to leave, means we can't say any particular punishment for breach must apply. At least if the question was asked, some of us could up and leave for a society that doesn't punish by death, but until then, we'll stick with the law of the land (which is conveniently on 'our' side at present).

[Blimpish]

"Improvements in prison conditions would allow such a person to, say, read and improve themselves for their own personal benefit" - so that they can see more clearly their own guilt, which we as a society have declared beyond all redemption? Ouch.

[yet another chris]

The death penalty is an aesthetic. A recent MG poll revealed that 27% of Australians supported it, yet 57% (of Australians) supported the penalty in Asia. I don't know yet, whether these two questions were asked in the same poll... one hopes not.

Support may be based upon a NIMBY attitude; that we don't want something yucky like that, or worse still, we might be subject to it. But OK in asia.

The blogger notes that life imprisonment is worse than the penalty for hapless conscriptees. Maybe this is consistent. Maybe we should give our worst penalty to evil-doers. Let them rot in prison. Unfortunately death seems to provide "closure" for victims.

I believe that the vast majority of murderers *in prison* would not be deterred by the death penalty, simply because they are too stupid. But the death penalty may prove a deterrent for people who are smarter and actually value their lives.

The state currently kills by neglect. People in mental institutions, victims of drug laws, hospital priorities, response to the depressed and molested, driving laws, are all poor. The death penalty receives priority because it is an active decision and people don't like to get their hands dirty actively. People like to hide from their hypocrisy.