[Further reading: The French Revolution supplies a terrifying historical example of capital punishment and tyrannical government power supporting each other.]
Even if you believe that the government ought to enforce “eye for an eye” justice—and you really shouldn’t—you should oppose the practice of capital punishment. I’ll get to the “and you really shouldn’t” part later, but first, let me try to convince you that if you believe in retributive justice (or lex talionis), then you should favor life without parole (LWP) over the death penalty as the most fitting punishment for murder.
At first, it seems quite natural: Of course execution is the only punishment truly proportional to murder. If criminals deserve to be deprived of what they took from their victims, then execution seems to provide the match you’re looking for between crime and punishment. But what do you really mean by “match”? Are you trying to match the value of potential positive experiences lost by the victim? Or perhaps you are attempting to match the suffering they endured? Either way, it’s a hopeless endeavor because it’s impossible to accurately or reliably measure (much less produce) suffering in the criminal. Neither is it possible to measure the value of which the victim and their community has been deprived. For example, suppose an elderly criminal murders an infant—would it really balance the scales to execute the murderer? In a case like this, the murderer may only be deprived of a few years, while the infant is robbed of anything a person could ever hope for.
Suppose, though, that you’re not all that concerned with precisely matching the suffering and loss of value caused by the crime to that inflicted by the punishment. Perhaps you believe that no legal penalty the state could possibly inflict upon a murderer approaches the true punishment the murderer deserves—but that lethal injection, often regarded as the most severe punishment permitted by U.S. law, comes closest to achieving this end.
In response, I would emphatically refute the suggestion that execution is a harsher punishment than LWP, since incarceration forces the convict to rot indefinitely in prison. Furthermore, LWP leaves the criminal to dwell upon the consequences of their actions for the rest of their miserable life. Make no mistake: prison time is certainly a cruel form of punishment, yet it is a self-inflicted and deserved cruelty caused by the criminal’s own poor judgement and malignity in the overwhelming majority of cases. [This last opinion about Life Without Parole belongs solely to the author of this article. It doesn't reflect the views of DPN's editor, who believes that Life Without Parole (listed as LWOP on this site), should be abolished, as it constitutes a form of torture by depriving the prisoner of all hope and killing any desire to amend himself/herself with the aim of one day being released from prison and becoming a useful member of society. Suggested reading: De la haine à la vie (From Hatred to Life), by Philippe Maurice, a young and immature French cop-killer saved from the guillotine by President François Mitterrand, who obtained a PhD while incarcerated. Maurice was released after 18 years in prison, and is currently teaching medieval history at a French university. -- DPN] Additionally, unlike the death penalty, LWP allows for the possibility of redemption and release from prison in the rare event that the suspect was wrongfully convicted. [DPN's editor doesn't not believe that "wrongful convictions" are "rare". Please see The Death Penalty Information Center's article about "Innocence": "Since 1973, more than 170 people who had been wrongly convicted and sentenced to death in the U.S. have been exonerated." -- DPN] Putting this benefit aside, it’s clear that LWP more closely approximates the goal of lex talionis than does capital punishment—because LWP is actually harsher than the death penalty.
But in any case, I doubt that anyone whole-heartedly believes the state should strictly adopt lex talionis as the overarching principle for determining punishment. To do so would lead to countless problematic implications. For one, it would instruct us to torture torturers and to hijack the vehicles of hijackers—practices that few citizens would endorse. These exceptional circumstances being acknowledged, I’d like to stress that there are significant problems with applying lex talionis to common crimes, too. Take the case of an illegal opioid distributor, for example. What do you do with him? Compel him to get high off the drug to which he helped fatally addict others? Or for that matter, consider the all-too-common but not-often-talked-about crime of illicit prostitution? Could forcing the perpetrators to experience the temporary pleasures they caused in others truly function as a form of punishment? These hypotheticals may seem fanciful, but they point to a very serious problem: lex talionis is far too literal to inform punishments for the vast majority of crimes.
Besides, this is all not even to mention that it’s significantly more expensive to kill convicted murderers than it is to keep them alive, and there’s no credible evidence that the practice of capital punishment serves as an effective deterrent against heinous crimes. In fact, contrary to popular belief, national crime statistics actually report higher murder rates in regions that administer lethal injection than in areas that don’t.
My adamant opposition to the death penalty, though, runs much deeper than the obvious practical shortcomings of lex talionis or the cost of executions. I’m opposed to the practice of capital punishment chiefly because I view it as an affront to human dignity that not only degrades the citizenry and perpetuates the very malevolence it alleges to condemn, but also gravely confuses the righteous role of the state. You see, I believe that a Creator gifted us all with inalienable rights to life, liberty, and property—and that the government exists primarily to secure these natural rights of ours from being transgressed, since we would be unable to do so effectively in a so-called “state of nature.” So when the state violates a person’s right to life by instituting the death penalty, it’s not only an injustice against the criminal and a violation of God’s will. It also insidiously undermines the government’s legitimacy as a whole because these inborn rights are supposed to exist prior to our man-made government apparatus. Therefore, the state woefully exceeds its moral purpose and intended role when it infringes upon these negative rights because it blatantly defies the will of the citizenry in doing so (from which it derives its authority to govern us via popular sovereignty).
[Further reading: this passage is inspired by the Second Treatise of Government by John Locke.]
At this point, you might think that my argument here “proves too much.” How can I oppose the death penalty on the grounds of cherishing our natural right to life while simultaneously agreeing that the state may abridge our natural rights to liberty and property as punishments for a crime, for example by imposing fines or, well, LWP? In other words, how can I justify viewing the right to life not only as a natural right, but as one that is absolute and inviolable? Unless we so-called “abolitionists” answer this challenge, we may appear to be making a convenient and arbitrary distinction in order to artificially advance our position.
I think we can make objective distinctions here in at least two ways. First, while property and liberty are goods that can be had—and confiscated—by a matter of degrees, life is not like that. Instead, it’s binary. Hefty fines and lengthy prison sentences reduce but do not entirely wipe out a citizen’s capacity to own property or to make choices. However, there is no analogous way for the state to take “part” of someone’s life. They can either kill the convict or allow them to remain alive—it’s all or nothing!
Secondly, I urge you to carefully consider the following question: if the right to human existence is not sacrosanct, then frankly, what is? The reality is that many citizens—people of faith and atheists alike—already embrace this cornerstone of value, on which is built everything else that is “meaningful.” Yet, if we continue to allow the state to deprive us of this most fundamental right through capital punishment, then we will have recklessly abandoned our constitutional duty to resist the state when it oversteps its bounds. Think about it for a moment: If we permit the state to kill us in cold-blood, then is there really anything we can stop it from doing?
Shying away from our civic responsibilities by failing to check the power of those who govern us and to actively resist policies that pave the road for authoritarianism—on American soil of all places—is especially shameful, since our country one of the only nations to have ever been founded upon the pluralistic ideals of limited government, the separation of powers, and federalism. All three of these democratic safeguards, to name just a few, were installed for the precise purpose of mitigating the ever-present risk of tyranny. To say the least, they aren’t random and they continue to distance us from this gruesome fate, so long as we citizens are courageous enough to actually participate in the political process and express our dissent!
I will only speak for myself now when I conclude by expressing my full and unwavering confidence that the practice of capital punishment has always been and will forever remain beneath us as a moral citizenry. We simply cannot afford to tolerate such ominous offenses to the very bedrock of our democratic republic, no matter how miniscule a portion of the population these threats may at first appear to target. As history has taught us, the only prerequisite for evil is for good people to do nothing—and human rights abuses are problems that almost always get worse with age. Rather than foolishly weaponizing the government against ourselves and tacitly encouraging it to exceed its proper role, I implore my fellow Americans to actually hold our government accountable to its constituents by voting to abolish the death penalty once and for all. This way, we can hold the government to the same ethical standard as the citizenry, which is only fair, given that government is comprised of otherwise ordinary citizens and was designed to serve the best interests of its people—not the other way around!
Source: browngadfly.com, Thomas Hunter Bickel, September 20, 2020. Tom Bickel ’22 is a double concentrator in Political Science and Economics. He is particularly interested in the American Founding and aspires to study constitutional law after Brown.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde