Alex Massie scorns Guido’s call for the reintroduction of the death penalty. He’s certainly right to point to the absurdity of Guido citing majority opinion. Libertarians cannot be majoritarians, simply because majority opinion is often hostile to freedom. I’d add that it’s also absurd for a libertarian to support capital punishment only for some murders - those of kids and cops as Guido advocates. Murder is a crime because it deprives us of the right to life, but libertarians must surely believe the right to life is equally valuable for all people.
But does this mean there is no libertarian case for capital punishment?
Some libertarians say “no” on the grounds that criminal justice shouldn’t be a function of the state. But let’s assume that the state does have a right to punish. Can libertarians then support the death penalty? Three things suggest yes:
1. To a libertarian, crimes are wrong because and only because they violate others’ rights. What matters, then, is the victim and the victim alone; state and society have no interest other than those of the victim. If the victim would have wanted the death penalty enforced, then it should be. This was Murray Rothbard’s position.
2. Libertarians are libertarians because they believe that freedom is colossally valuable. A lifetime in prison, without hope of freedom, is therefore a crueller punishment than death. Capital punishment, then, is more humane than imprisonment, as John Stuart Mill argued.
3. History suggests that the death penalty can be consistent with a libertarian society. It was routinely applied in 18th and 19th century England, at a time when the state otherwise intervened barely at all in everyday life. As incarceration came to supplant capital punishment, so the state’s tentacles spread. As Foucault wrote:
By operating at every level of the social body and by mingling ceaselessly the art of rectifying and the right to punish, the universality of the carceral lowers the level from which it becomes natural and acceptable to be punished.
Of course, just because state power has widened as capital punishment has retreated does not guarantee that reintroducing capital punishment will force back the limits of the state; if a man’s been hit by a bus, you don’t restore him to life by reversing the bus. But it could do. The sight of the state killing people in cold blood might increase people’s fear of state power and so embolden them to push back its use. If there is a choice between state power being rare but horrible or common but mild, libertarians might prefer the former.
Against all this stands one other argument, which for me and others trumps other thoughts. It’s that libertarians - even more than others - must never trust the honesty or competence of the state and its officials. They must therefore be alert to the possibility - inevitability - that the state will wrongly kill someone. And to the extent that libertarians cannot be utilitarians the cost of such an horrific and irreparable denial of rights can never be offset by any other benefits that capital punishment might, very arguably, provide.