Should Tsarnaev Be Put to Death?

 | 

The verdict in Boston — death to Dzhokhar Tsarnaev — may cause some libertarians to reaffirm or reconsider their position on the death penalty.

To me, the arguments against the death penalty seem obvious.

  1. The state always has too much power — why give it the ultimate power?
  2. While some crimes of passion can be excused as, well, crimes of passion, cold-blooded killing is always ugly and sickening.
  3. There is always the possibility that an executed person will later be found innocent. There is a somewhat larger possibility that even a person so worthless as Dzhokhar Tsarnaev could change and become, in effect, another person.

But I confess: these arguments, though obvious, do not seem conclusive to me. They might seem conclusive if it weren’t for the weakness of the arguments that are often added to them by anti-death-penalty people:

  1. The Bible says, “Thou shalt not kill.” It’s just as wrong to kill a killer as for the killer to have killed someone else.
  2. In proportion to the population, more black people than white people are executed.
  3. The incidence of murder in states that lack the death penalty is sometimes lower than the incidence of murder in states that have it.
  4. It costs a fortune to execute someone.

When I listen to these latter anti-death-penalty arguments, a strange thing happens to me. I get the feeling that the full ensemble of arguments is not as good as I thought it was — or why would the arguers (many of them professionally devoted to the cause) fill out their case with such weak and (I can’t help thinking) disingenuous pleas.

The Bible condones plenty of killings. The same biblical book that commands “Thou shalt not kill” also commands executions for various crimes. In the very next chapter, we find: “He that smiteth a man, so that he die, shall be surely put to death.” So “kill” in the first instance must mean “murder.” Even on non-biblical grounds, it seems very counterintuitive to suggest that it is as wrong for me to kill a man who casually murdered two teenagers and then happily ate the hamburgers they were carrying, as it is for the man to have killed the teenagers. Think of your own, doubtless even more horrible examples of crimes thought to merit the death penalty. Examples abound.

The state always has too much power — why give it the ultimate power?

The question to be asked about “racially disproportionate use of the death penalty” is whether particular black people or white people received a fair trial — not whether those people were black or white. If you want an assurance of fairness, nothing will satisfy you if the elaborate provisions of the death penalty codes fail to do so.

Does it make sense to compare murder rates in Massachusetts (2.0 per 100,000), which has the death penalty but hasn’t executed anyone since 1947, with murder rates in Texas (4.3 per 100,000), which executes people all the time, or Vermont (1.6) and Maryland (6.4), which have no death penalty? A deterrent that is rarely used can hardly deter; but would the death penalty, even if frequently used, explain the difference in murder rates between, say, Utah (1.7 per 100,000), which has the death penalty but also has a lot of Mormons, and Michigan (6.4 per 100,000), which abolished the death penalty soon after statehood, but which also has Detroit? The argument on each side seems impossible to make, on such evidence. Yet is there any possibility that the lack of a death penalty would actually lower the murder rate? How could that be?

It is childishly easy to answer the fourth objection, “It costs a fortune to execute someone.” It costs a fortune because of the legal ploys of the same people who are making the objection — ploys that are, in most cases, as intellectually dishonest as the objection itself.

It appears much less likely that an innocent person will be executed in today’s America than that I will kill an innocent person on my next drive downtown.

Where does this leave us? It leaves me acknowledging that there is something right, and something wrong, about the legitimate arguments on both sides. It leaves me with roughly the same questions that I think even anarchists would ask themselves about crime and punishment, if they succeeded in creating a society in which justice services were privatized.

Despite all attempted legal guarantees, is the death penalty sometimes wrongly carried out? Yes, probably it is, though it appears much less likely that an innocent person will be executed in today’s America than that I will kill an innocent person on my next drive downtown. Yes, it’s possible that I will suddenly confuse the accelerator with the brake, but that’s not a reason for me to give up driving.

It seems certain that the real prospect of a death penalty would deter certain crimes, but not others. As libertarians, we must pay enough respect to individual psychology to admit that. We must also specify that killing is ugly, no matter who carries it out. Also, I think, we must specify that the world would be better off without some of its inhabitants, especially those who wantonly murder other people.

I’ve noticed that when there is about to be an execution, intense emotions are evoked by the idea that John Smith is about to suffer “the ultimate penalty.” John is said to be a changed person, or a brutally misjudged person, or a sad, wayward, confused person, and people cry out for him on the internet. School children are told to write letters supporting him. Meanwhile, would-be enforcers of the death penalty dwell with badly hidden glee on his awful deeds. But immediately after he is executed or has his sentence commuted to life imprisonment, he is forgotten. The issue wasn’t John Smith; nobody really thought he was worth talking about, as a real person who had done real things; the issue was an identity-making cause called the Death Penalty. That doesn’t mean that John was, in the end, truly worthless. It does suggest that the contestants may harbor motives that have little to do with truth or justice.

My suggestion is that I, and other people interested in this controversy, put aside our eager concern with our identity as judges or sympathizers, warriors or reconcilers, and marvel, for a moment, at the complexity of the issue. In other words, I think it would behoove all the ideological contestants to become a little more reflective and a little less self-righteous.




Share This

Comments

Technomad

You speak of prisoners suffering during execution as though it were a bad thing. Being myself a victim of crime, I don't mind it a bit.

One of the stupidest things ever done during the history of the United States was to prohibit "cruel and unusual" punishment, without making very clear what was, and was not, considered "cruel and unusual." My own take is that it forbids "making an example" of someone...i.e., if the usual penalty for murder is hanging, we are not allowed to sentence someone to be burned at the stake instead, even if he really, really deserves it and hanging's too good for him.

Andrzej Lozowski

Just a small correction to a quote from the Bible. It does not say "thou shalt not kill" It says "thou shall not murder." (לֹא תִרְצָח) As you point out, the Bible proscribes death penalty for many transgressions!

Scott Robinson

Dear Andrzej and Stephen,

I do understand this debate, and it is interesting that the fifth commandment is "Thou shalt not kill" when you then consider that the Bible then lists many misdeeds that should be punished by death and the Egyptians and people of Sodom and Gomora (I might have misspelled) were killed, according to the Bible, by the actions of God. I think that this "commandment" is more advise. The message, that I see, is that even though you might kill wrong doers, you are still out of luck because more will be born and do their misdeeds in the future. You shouldn't think of killing the wrong doers of today as the end of your necessary deeds and definitely not the be all end all of your good pursuits in life. It is just a forewarning that even though you kill your enemies, your enemies will keep coming. I would not say that this means you should not punish misdeeds just because you'll never win (as if "win" means no more fighting). If that was true, then you should not eat because that evil, hunger, will just keep returning.

Have a Good Day,
Scott

Scott Robinson

Dear Stephen,

The closing of your article is the best, most important part. We should seriously consider our actions and not just react with our gut feelings.

That said, I think that the operative word here is penalty. As far as deterrent, I think that this is a rationalization argument that gets people feeling better, there is nothing empirical about it, because many criminals think that they can get away with it. Dodge the bullet as the appropriate catch phrase goes.

Getting back to penalty, for instance I think that John Albert Gardner (JAG for those who appreciate the irony) should be punished for his crimes of raping and killing Amber Dubois and Chelsea King (if not more) with death by pipe-bomb up the ass. I am a Catholic, and I also feel that this should be the penalty for any priest who raped an altar boy or school girl seeking counseling. In short, I sincerely believe that the proper punishment for rape of anyone under 18 (excluding statuatory rape, see I am considering my actions) should be death by pipe-bomb up the ass. Is this vengeful? Yes. But John Gardner does not deserve to get the welfare state for life. Catholic priests who raped altar boys (I was an altar boy and never sexually assaulted) do not deserve to get paid move to a new diocese. Finally, should Dzhokhar be killed (executed is another rhetorical sugar coating)? Yes, just like we killed thousands of Germans and Japanese, Dzhokhar attacked us, we should attack him.

I know, "do unto others as you would have them do unto you." So what would you have me do to you in response to you raping and strangling my daughter? Should I give you free housing, free food, and free medical care for life?

Best Wishes,
Scott

Daniel Wiener

Thank you for a very thoughtful article. As a libertarian who supports the death penalty, I agree completely that the four additional anti-death-penalty arguments which you list are exceedingly weak, and more of an example of throwing everything its opponents can think of against the wall in the hope that something will stick. However, your first three arguments are more serious.

1. I too worry about giving the state too much power, and certainly there are ample examples around the world of the dire consequences of doing so. But that argument could be applied to a lesser extent to all state laws and actions. Since I am not an anarchist (and this is not the spot to digress into a minarchist/anarchist debate), I simply acknowledge that governments should be severely limited and constrained and guarded against and (if they become too tyrannical) revolted against. But the danger of too much government power is a pervasive one, and not specific to the death penalty.

2. It would be nice if nobody was ever killed, and I hope I personally never have to kill anyone. But unpleasant tasks are sometimes necessary, or at least outweigh the alternatives. In those cases the proper attitude is to just "suck it up" and do it. If I had to, I think I personally could do it. Others' mileages may vary. But some people's emotional distaste is not a sufficient argument against the death penalty.

3. The risk of a mistake is probably the strongest argument against the death penalty, and I have long argued for a higher standard of proof-of-guilt to invoke it. Perhaps "beyond a shadow of a doubt" instead of "beyond a reasonable doubt"? To a large extent our multitudinous layers of legal appeals and prisoner advocates and commutation processes already provide that. From what I've read, there are few if any confirmed instances of an objectively-innocent person being actually executed (as opposed to being placed on death row) in the past half century. Nothing is perfect in this world, and I do not believe that the death penalty must be 100% error-free as long as the error rate is very low. The more certainty there is of guilt in individual cases, the less qualms there should be about the death penalty being mistakenly applied to those individuals.

Meanwhile I think there are strong arguments in favor of the death penalty. The concept of self-defense should not be limited to a time-constrained window of emergency reaction. If it's justifiable to kill a person who is in the process of trying to kill (or rape or seriously assault) someone else, why does it become less justifiable if the aggressor actually succeeds in committing the crime? I have no problem with retributive justice, and I believe it should be roughly proportional to the crime. In the case of really heinous crimes, the death penalty is often far less than what the criminal deserves. Prolonged torture prior to execution would perhaps be more appropriate, although in some cases still insufficient, but our society chooses to confine its response to either a quick death (e.g., a firing squad or hanging or electrocution) or a usually painless death (i.e., a sedative to produce unconsciousness followed by a lethal injection).

As far as Tsarnaev is concerned, he should be swiftly executed, and I think that's being very generous. Unfortunately it will probably be many years if ever before his death sentence is carried out.

Visitor X

Consider me firmly straddling the fence.

This 'anti' reason is nebulous but still persuasive: "The state always has too much power — why give it the ultimate power?"

A 'pro' reason I rarely see explored: How many prison murders, rapes, and beatings would be prevented if we put more of the most dangerous inmates to death?

TomInPA

With regard to the death penalty the first and most basic question is what we want out of the justice system; the confusion over this question is reflected in the debate about the death penalty. If we want the justice system to rehabilitate the criminal, as some do, the death penalty has no place. If we want the justice system to punish the offender we may debate the death penalty. If we want the justice system to protect innocent citizens the death penalty is called for in some cases. Until we determine what we want the justice system to do we can't really answer the death penalty question.

I personally think the justice system exists to punish the offender, and so I support the death penalty as an ultimate punishment (I also believe the government is given the authority to administer this ultimate punishment by God).

I'm also intrigued by the difference in administration of the death penalty, for example between some, e.g. Timothy McVeigh, who are executed comparatively speedily, and others, e.g Mumia Abu-Jamal, whose execution drag on and on, or are ultimately commuted for no good reason other than public opinion.

If 'life in prison with no possibility of parole' ever actually meant life, rather than 20 years or so, I'd think that would be a sufficient punishment to allow for the death penalty to be abolished, but it hardly ever means life.

In general, kudos to Mr. Cox for pointing out the weaknesses in the anti-death-penalty arguments.

Paul Studier

You underestimate the cost argument. My only relation with the law is as a tax paying citizen and I do care about the money spent prosecuting, court costs, and usually defense costs that I will pay for as a taxpayer.

THX1138

One has to be honest with himself. For my part, I freely admit that I don't care about your 'John Smith' , and I'm fairly certain that Tsarnaev is guilty. My problem with the death penalty is simply that I think strapping a man to a table, rendering him defenseless, and killing him is murder, regardless of what a law or a judge or a majority thinks. Simple as that.

As for the chances of killing an innocent, I trust my judgement as a driver a whole lot more than I trust the state to kill the right people. Just ask the attendees of any wedding or funeral at the wrong end of a drone strike. If that doesn't sink in, maybe you should start taking a cab.

© Copyright 2017 Liberty Foundation. All rights reserved.



Opinions expressed in Liberty are those of the authors and not necessarily those of the Liberty Foundation.

All letters to the editor are assumed to be for publication unless otherwise indicated.