The death penalty has been abolished in all but one western country: The United States still practices it (in 31 of the 50 states), and since the Supreme Court affirmed the legality of capital punishment in 1976, over 7,800 defendants have been sentenced to death and more than 1,400 have been executed. Capital punishment has wide support among the general American public, but what is the appropriate position from a libertarian point of view?
In a libertarian society, there are only two parties to a legal dispute: the plaintiff (the victim or the victim’s heir) and the accused, and it is for the victim to decide what punishment to seek under the law. The principle of proportionality, as put forward by Murray Rothbard (The Ethics of Liberty, Chapter 13, 1982), further asserts that only murder can be punishable by death.
The purpose of punishment is twofold: restitution and retribution. Other aims are frequently proposed, but they are unattractive. Deterrence is an improper aim of punishment in general: murder is against most people’s morals, and therefore arguably requires less deterrence than petty theft for example, preposterously suggesting than punishment for murder should be relatively milder. Similarly, rehabilitation as a goal of punishment can lead to arbitrary results which are incompatible with what most people see as justice.
In cases of physical harm, direct restitution is simply not possible: you cannot repair the damage by way of punishing the perpetrator. You can however aim for other forms of compensation, typically financial. But what about retribution? As a punishment, it has a bad reputation. Philosophers have long derided retribution as “barbaric” and for many it is a concept which they see as confined to the dark ages; much too primitive for a modern, enlightened society. These are not valid criticisms, however, grounded as they are in nothing but feeling. Retribution is indeed a perfectly legitimate aim of punishment, and, in the case of murder, proportional punishment dictates that the death penalty should be considered acceptable (although of course there are often mitigating circumstances, but that is besides the point in principle).
The problem with the death penalty, therefore, is not theoretical. However, the implementation of the death penalty leaves a lot to be desired. It is easy to dismiss many countries which practises capital punishment, but have inadequate legal systems and blatant corruption, leading to perverse justice outcomes. But the US would not want to compare itself to Zimbabwe or China. Sadly, however, there are also many, many things wrong with the way the death penalty is implemented in the US.
First, there is the cost. The perverse practice to let the victims pay, in the form of taxation, for the punishment of perpetrators of crimes is common to all sentences. But when it comes to the death penalty, those costs are enormous: the cost of a capital punishment case is up to twice that of one where the death penalty is not on the table, and figures from California suggests that the average cost of a death row inmate is around $90,000 more per year than for a general population inmate. It takes, on average, around 15 years from sentencing to the eventual carrying out of the death penalty, as a result of the elaborate appeals process for all capital convictions.
Bizarrely, the retribution aspect is muddled by the drawn-out process: where life without parole would have consigned the offender to the past, the wait for execution defers finality to the victim’s loved ones and, in case of a stay or even a pardon, denies it. Life in prison, other than death the hardest punishment under the law, suddenly seems a gift to the previously condemned, and the victims feel justice has been denied them.
The finality of an execution highlights the importance of there being (as close as possible to) no risk of a miscarriage of justice. But pressure to solve high-profile crimes sometimes leads to unsound arrests and convictions. Public prosecutors vying for re-election can find themselves under pressure to be tough on crime, and sometimes deny legitimate claims for judicial review of cases because of political convenience. In a libertarian society, police and prosecution would put their own bodies on the line when performing their jobs and be liable to prosecution for deliberately pursuing the wrong man for the crime. Where innocent men have been sent to death row due to what looks like deliberate actions by law enforcement, the appropriate response is to charge those responsible with attempted murder (or murder, if the execution is carried out). In the US today, however, this does not happen. It is a disgrace.
Since 1976, almost 150 men have been freed from death row after having their convictions overturned, and a 2014 study led by University of Michigan law professor Samuel Gross claims that 4.1% of death row inmates are wrongfully convicted. If true, it means that people have certainly been executed for crimes they did not commit. These are scary numbers, which should give anyone pause for thought. And another thing: the US legal system, which dishes out enormous punitive damages in cases against private individuals and companies, is much less generous when it comes to mistakes by the state: a person can be awarded only up to $100,000 per year spent on death row, a measly compensation for a life wasted under hellish conditions.
Finally, there is also reason to be concerned about the fairness of a justice system which seems to disproportionately sentence poor people and blacks to death, and where the racial identity of the murder victim also seems to be a factor when prosecutors decide whether to pursue the death penalty.
This all leads to one conclusion: capital punishment is a dangerous tool in the hands of the state. The government should never have the power over life and death. Libertarians can advocate capital punishment in principle, for the crime of murder only and exclusively if the victim’s heirs ask for it. But justice is supposed to be blind and fair. And the fact is that errors, accidental and deliberate, means that anyone concerned about the individual’s rights should have grave concerns about the death penalty as it is currently implemented in the US.