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 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.

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.