Libertarians & capital punishment

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.

Comments

[Time Traveller]

"It’s that libertarians - even more than others - must never trust the honesty or competence of the state and its officials."

Agreed!

[flyingrodent]

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.

I really doubt it, unless you're going the full Saudi Arabia. This a bit like saying "People might commit less crime if they knew they might get caught", which doesn't work too well at the moment.

It also misses the point that most murders are committed in hot blood, on the spur of the moment; and that those who commit the type of crimes Guido is talking about are usually too wacko to care about getting caught.

If the deterrent effect is so small, then the only reason for having a death penalty is to assuage the pain of the victim's loved ones*. That's a noble motive, but I'd still counsel against in on the grounds that, in the modern age, states that use extreme punishments tend to become more, rather than less, extreme in other areas of policy.

Still, supposed libertarian's libertarianism turns out to be somewhat less libertarian than previously advertised shocker. That's because libertarians come in two shades only - cranks who actually believe what they're saying, and bullshitters with an undeclared agenda.

*There's also "spare the public purse the expense", but that doesn't lead in a very pleasant direction either.

[Nick]

"People might commit less crime if they knew they might get caught"

Actually, it works pretty damn well. One of the most robust influences on most types of crime is likelihood of getting caught. A partial exception applies to drug addicted offenders who, as a consequence, are now responsible for a large proportion of crime. But it works to reduce likelihood of offending for a great many people.

[flyingrodent]

It does indeed, but it works on the type of people who are easily deterred, largely because they're capable of imagining consequences. Those people don't often commit the types of crimes under discussion, I imagine.

Plus, that point about how drug addicts (and people with serious mental health or alcohol problems) commit most crimes should really be shouted from the rooftops every time justice issues are raised.

[Keith]

It is not clear why we would care what Libertarians think about the death penalty or anything else. As the Democrat said a "Libertarian" is a republican who "wants to watch porn and snort coke." If you just define anything you like as private property then the state is immediately forbidden to regulate or ban it under Libertarian type theory, so you can reach any result you like. If my life is property that I own then the death penalty is anti libertarian. It is a good trick to allow you to have the advantages of society while denying any obligations you dislike such as paying income tax. Self serving properganda cannot be expected to produce consistent philosophical conclusions. And it does not. Libertarianism is merely ad hoc self interested ideas wrapped up as a profound theory.

[Phil]

Research says, increasing the apparent likelihood of getting caught has a deterrent effect; increasing the level of punishment doesn't. But Chris wasn't talking about deterrence in this sense; he was arguing that increasing the level of punishment - specifically increasing it to cruel and inhumane levels - would deter people from identifying with the state. In other words, the state should do more horrible things so that more people think that the state does horrible things. I think this is frivolous.

[Justin]

One notes that that post on the Fawkes blog was posted well after lunch on a Friday.

Whether it was written by the notoriously crapulent Staines or his jester, the point still stands.

[Richard]

Murray Rothbard was a supporter of the death penalty for murder, albeit in an anarcho-capitalist society. You don't get much more libertarian than him!

Incidentally I have always admired Peter Hitchens' stance on the issue - it should only be reintroduced providing the right to silence, unanimous jury verdicts etc are restored at the same time i.e. the accused must not have their rights infringed if they possibly face death.

[Sean]

Its does not suprise me that materialists should support CP, that seems quite logical see Kant, and indeed conservatives who should believe in ritual.

Personally as someone who saw the vulgarity of an execution in Saudi many moons ago from an office facing a mosque ive got reason you would think to be against it...but I am not.

i think Japan has got it right, have it and use it very sparingly.

I dont think the state killings argument really works, justice in the UK does not belong to the state, and it would be a duty served by the state to the independence of the justice system.

The fact is state killings happen all the time, we just dont call them executions..too vulgar it seems.

[Tim Almond]

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.

No. Most people just assume that it won't happen to them. Listen to pub talk about released prisoners and people always assume that they were wrong 'uns anyway.