My Position on Capital Punishment

A few minutes ago, on Twitter, I suggested that if illegal use of lethal force by the police were a capital crime, it would be much harder to fill the ranks of police forces, and also have additional benefits.

It was, in some degree, a snark, but it led someone to ask about my stand on capital punishment.  I’ll answer that here.

For most practical purposes, I believe the state doesn’t have the moral right to take a human life.  I do not, however, take that as being true for all times and all places under all circumstances.   Usually, when someone says, “Well what about…” it is followed by a description of some heinous crime.  But the more heinous the crime, usually, the more likely it is that the person who committed that act is sick; and taking the life of someone who is sick merely for being sick is barbaric.  It should also be noted that, in addition to the number of death row inmates being disproportionately minorities, and wildly disproportionately poor and working class, there are also a huge proportion who are mentally impaired to some degree or another.  Killing such people is monstrous.

Are there circumstances in which I would favor capital punishment?  Well, if you’re talking about State killing, my first question is, what State?  A government responsible for Hiroshima, for Nagasaki, for the war crimes against Vietnam and creating dictatorships in South America, the Middle East, Ukraine, a State that, today, is encouraging its police forces to simply shoot us down for the most trivial excuses, well, such a State long ago lost the moral right to take anyone’s life, ever, for anything.  Show me a State I can support–for example, a workers state, and show me that, under certain circumstances, it must be willing to take lives and use other terrorist means to preserve itself from Imperialism, and then, yes, I’d be willing to concede that such barbarism might temporarily be necessary.  If I am to support the right, in fact the duty, of the working class to take power into its hands, then it would hypocritical not to also support actions necessary for the working class to protect itself from fascist counter-revolution.


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21 thoughts on “My Position on Capital Punishment”

  1. My big issue with making capital punishment illegal is that I don’t see putting someone in prison for life for an innocent crime is any better. At least with capital punishment, there are advocates working on their cases.

    There are a lot of things wrong with my country’s punishment system.

  2. Even if there were a moral right, the error rate is too high and there is no way to take back that kind of mistake. Besides, it’s cheaper to lock someone up for life than it is to go through the legal process.

  3. Last time I looked at the death row stats and corrected for class, the result wasn’t racist. I ran these numbers a few years back, so Texas might’ve made things more racist by now:

    Percentage of people in poverty who are white: 50%
    Percentage of people executed who are white: 58%

    Percentage of people in poverty who are black: 25%
    Percentage of people executed who are black: 34%

    Percentage of people in poverty who are Hispanic: 23%
    Percentage of people executed who are Hispanic: 6%

    Percentage of people in poverty who are Asian: 3%
    Percentage of people executed who are “other”: 2%

    The fascinating part is the spread on HIspanic folks. Either they’re more law-abiding than white or black folks, or the tendency of Hispanic poverty to be rural makes a difference. Though white poverty is also more rural than black, so I’m not sure how that plays out.

    I didn’t dig deeply into the wealth of people on death row, but the US doesn’t kill people who can afford a good lawyer. And I keep coming back to this: “Most prisoners report incomes of less than $8,000 a year in the year prior to coming to prison. A majority were unemployed at the time of their arrest.” —Paul Wright, Prison Legal News

  4. Illegal use of lethal force by the police is already a capital crime, under Section 242 of Title 18.

  5. Steve, just because you like a particular form of government doesn’t suddenly make killing people moral or prosecutors more honest. Are you saying that just to yank our chain?

    I might under some ideal condition support the death penalty. If one could be really sure all the facts were correct and that the person could never be rehabilitated. The trouble is, in about half the cases on death row (or some other similar percentage), the facts are either false or in question or the “criminal” was conned, tortured or coerced into a confession. For example, checking into people with life or death sentences has often brought up DNA evidence clearing the prisoner. In some cases, even with that evidence, prisoners are still executed. The system is nothing about justice. It’s more about a prosecutor or judge getting a notch in his gun.

    So in the real world (even a socialist one, Steve), I am against the death penalty for that reason.

  6. skzb

    It seems to me that your position is logical; I disagree with it but you are being scrupulous in considering the consequences of your premises. I live in a country where there is no formal death penalty, and where there is considerable resistance to officers of the state killing people on an informal basis; it doesn’t always work but it does exist.


    I’m having difficulty in tracking down figures to support the ones you cite; see, for example,

    Part of the problem may be that the ‘Hispanic’ category is not based on race, which makes it rather difficult to fit into a race based analysis, but I cannot find any evidence supporting your statement that 50% of the white population of the US is in poverty.

  7. Your phrasing is precise, indicating only your support for use of deadly force (under some as yet unspecified preconditions) by a government you support, but I think you’re splitting an unnecessary hair there. I doubt you’d ever find yourself saying “this government is legitimate enough that I support it collecting taxes, but illegitimate enough that I do not support its use of deadly force.” If you did, I think you’d simply be in an untenable position. A government is either legitimate or not, and if not, adjusting its authority piecemeal isn’t a useful exercise.

    I think a government has the right to use deadly force to meet a clear and present danger to itself or its citizenry. I believe that good governments have systems in place to review uses of that power and punish those who misuse it. I agree with your initial tweet that ultimately that punishment needs to be applicable to individuals, not just the state. None of those systems are worth a damn without an engaged and empowered citizenry.

    This puts me in a situation where I can only redress abuses – people killed unrighteously – in the past tense, but I think that self-preservation at the personal or state level simply requires that one can kill when no other option is available. That means that the deterrents need to be strong and used, which also agrees with your tweet.

    My primary distinctions are we need to recognize that the power exists so we can lawfully (or even informally) constrain it. Second, punishing someone who has exceeded their authority to use deadly force as a state actor is not punishable by death. I’m willing to define that as a case where there is no clear and present danger to the state, so the state cannot apply its power to kill.

  8. Howard

    I’ve always thought that the city state of Pisa got it right many centuries ago; they decided that the penalty for a banker screwing up was execution in the public square.

    A good robust policy like that would be immensely useful in our current financial difficulties…

  9. My view on Capital Punishment is that it is means to an end to provide “Justice” for those who are the victim of certain types of crimes. Perhaps it’s a bit hypocritical to say that I also hate violence and killing people in general. No one deserves to die, but the government should have a right to protect citizens from people who would do citizens harm. Sometimes that means putting someone to death. This should always be a last resort and the reasons why should be clear to everyone involved.

    The only problem I have is when poor people get caught up in “the system” only because they can’t afford a good lawyer. This can sometimes give The State an opportunity to ruin someone’s life needlessly.

  10. The only ethical justification for killing is to prevent harm to others, including oneself.

    In my mind the state never ever can use this justification for a prisoner. It is not an ethical punishment for a crime. If you can lock someone up to prevent them hurting anyone else, that is much more preferable than killing them. At least from an ethical point of view.

    On the other hand, if someone is not yet a prisoner, the police have every right to prevent harm to themselves and others if it is imminent, and lethal force is one way to do so. Personally I would prefer another way, but I do not blame the police for protecting themselves however they deem necessary.

  11. howardbrazee: You remind me of the old line about, “I’ll believe corporations are people when Texas executes one.”

  12. > barbarism might temporarily be necessary

    When is it ever temporary? Once the state is permitted barbarity, why would they give it up? Even if there is some kind of revolution to throw out the despots, does it even last? Look at the Soviet Union – two decades and a bit after Perestroika and they’re practically back to having a Tsar.

  13. “When is it ever temporary?” Pretty much always. A State will always prefer as little tyranny as is necessary to keep the ruling class in power, because it’s cheaper. The cost of a domestic intelligence service and a militarized police force is enormous, and the ruling class would just as soon not pay it. When tyranny lasts a long time, it’s because the ruling class, or caste, or elite, continues to be threatened.

    There are several easy and obvious examples without leaving America: the relaxation of extreme measures after the Whiskey Rebellion would be one; the removal of military tribunals for civilians and the reinstatement of habeous Corpus after the Civil War would be another. But European history has many more examples, and, if memory serves, Chinese history even more than that. For a recent and extremely obvious example, look at the last years of Franco’s rule in Spain.

  14. When I contemplate capital punishment, I find that the implementation details always swamp the more abstract question of whether or not it is moral. If one temporarily assumes that there are situation in which it is moral for “the state” to take the life of one of the citizens, then one is left an indigestible lump of impossible problems. Again, for the sake of argument, let us assume that there is some number greater than zero of actions for which we all agree that capital punishment is appropriate. So, first, we have to determine whether or not such an action has been committed by a particular person.

    Now, justice systems are more or less good, depending on time, place, precedent, and skill, but all of them boil down to a human being attempting to make a judgement about the actions and intentions of another human being. Experimentally, we seem to have determined that this process is best done by people not immediately affected by the crime, so we have people who were neither participants nor witnesses attempting to determine both facts and motivations. (Yes, motivations. This is why first degree murder is different than manslaughter. Intent actually matters a whole hell of a lot in law, and it should.) This is a hard problem, and the higher the stakes, the harder the problem becomes. When an actual life is on the line, the entire process gets warped by the weight of the possible decision. And since one of the outcomes has no possibility of a take-back, people on both sides of the issue have a huge stake in owning the “truth”. A prosecutor seeking the death penalty has a huge investment in having the outcome be unquestioned. This leads, inevitably, to a system which tries to defend those decisions, to hide errors, to minimize problems, and often, to cause proponents to double-down on their position. When making a mistake is unthinkable, people don’t stop making mistakes, but they do work very hard to remove institutions that make it possible to discover those mistakes.

    In any society where there is inequality, the death penalty will always fall most heavily on the disadvantaged. This is structural to the way jurisprudence and equality play out. Those in power will always be more willing to believe heinous things of people that are not in power than they are to believe it of their ownselves. Access to justice will always be mediated by access to the levers or power: money, influence, connections. And so, it will always be the case that those with less power in a society will be more likely to face stiffer sentences, including death. And this fundamental inequality on the most basic right, the right to live, highlights all the ways in which the justice system is flawed and failing. Fighting to make the system fairer is a good fight, necessary, we must do it. And I’d start with getting rid of the death penalty, because it is so completely permanent. Nobody ever recovers from a case of death. People do manage to build lives after having been wrongly incarcerated for decades. Not the life they would have had, but still, a life.

    Implementing the death penalty must always, as well, coarsen and damage the society that implements it. The public spectacle of hangings and the like of a hundred years ago is distasteful. More importantly, it causes the spectators to exercise the opposite of empathy. This is not good for those people, it teaches them ways to divorce themselves from the common weal. It helps people find ways ignore our interconnected lives. The damage it does to the executioner should not be ignored. Our current system of committing these acts in private, with the only onlookers grieving family and revenge-driven survivors, is despicable, hypocritical, and has the smell of pornography. It allows us to have this thing which is unthinkable, which is incredibly disturbing and for many people unwatchable, but hidden politely away so that we don’t have to think about it. I do think that of the two, the latter system of it being so obscene that it cannot be part of common experience, is the preferable. But I hate the idea that my society is condoning an act so obscene it cannot be carried out in the light of day.

    Killing people isn’t always wrong. But institutionalizing the killing of people comes with serious social costs which we often pretend don’t exist.

    Capital punishment is a systems problem. The system cannot be made to work.

  15. “Implementing the death penalty must always, as well, coarsen and damage the society that implements it.”

    I certainly agree with this.

  16. Look at Dzerzhinsky, just for example. He might well have started with the idea that capital punishment is regrettably necessary in the state of emergency to defend against rampant espionage, sabotage, and insurrection promulgated by the enemies of the people. And as a former spy, saboteur, and revolutionary, he knew better than anyone how it could be done.

    But for all his total dedication, his surprising lack of corruption (so far as I am aware he wasn’t corrupt at all), and what I suppose (hope) to have been initial good intentions, he ended up as a state-sponsored mass murderer who found torture and casual executions to be infinitely more convenient than judicial review or due process. Eventually it got to the point that young Chekists used mass killing of denounced suspects as a way to prove their dedication to the cause, to demonstrate that they had cast aside bourgeois sentimentality, (which they certainly did, along with their humanity). It’s plausible that Dzerzhinsky laid the groundwork for the oppressive tyranny that Stalin inflicted on the Soviet Union and provided the first example to Beria and his ilk how things should be done in a police state.

    Now Dzerzhinsky’s case obviously doesn’t prove anything either way as regards capital punishment, the value of due process, or anything else about how justice should be administered; but he does provide a minatory example of how the use of execution as a tool of the state can go horribly wrong.

    More recently the Khmer Rouge of course provide an even more extreme and obscene exhibit as do the current-day North Koreans. Perhaps this is just a SFnal alternate-world fantasy, but it’s conceivable that this whole dreadful line of history might never have developed if Iron Felix had cared more about the rule of law and less about the perfect devotion of his security agents.

  17. Good post. Sometimes, when I think about the very high degree of monetary corruption my politicians have, I remember that there are worse kinds of corruption and of True Believer crimes.

  18. Miramon: This is a good example of how an isolated person, Dzerzhinsky, and a given issue, capital punishment, cannot be understood in isolation from their historical context. Consider what I said to Falco, above, and then consider the situation of the Soviet Union in the mid-20’s.

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