Common ground on the death penalty

Going by the polls, the execution of convicted Oklahoma City bomber Timothy McVeigh has been one of the least controversial acts carried out by the US government in a while. Support for capital punishment in this case ran as high as 80 percent in some polls, due to the heinous magnitude of McVeigh's crime. Nevertheless, his off-again, on-again date with death has renewed the debate about the death penalty, an issue on which Americans are increasingly ambivalent.

The philosophical arguments are familiar. Death penalty opponents say that it is nothing but a form of "legalized revenge" (which is especially ironic in this case, since McVeigh viewed his deed as vengeance for the deaths of the Branch Davidians in Waco, Texas, in 1993) that reduces us all to the murderer's level. If it's wrong for an individual to take a human life, how can it be right for society?

This logic is badly flawed. An execution is not a lynching; it follows a trial and appellate review. More important, the American Republic was founded on the premise that individuals agree to delegate some of their natural rights to the state—including, in most circumstances, the right to use justifiable force. If the government has a legitimate monopoly on the use of force, then it may commit acts that would be criminal and immoral if committed by individuals.

This extends not only to capital punishment but to lesser penalties. If execution is legalized murder, then imprisonment is legalized kidnapping (what would we say if one individual forcibly kept another locked up in a tiny room for years?) and monetary fines are legalized robbery.

Perhaps a more interesting philosophical issue is whether capital punishment is vengeance—and, if so, whether that makes it bad. Susan Jacoby, author of the thought-provoking book "Wild Justice: The Evolution of Revenge," is a death penalty opponent who nonetheless believes that revenge or retribution—the desire to make the offender pay for his crime and to express society's outrage at the deed—is an important element of justice.

Jacoby treats revenge and retribution as synonymous, but there's a subtle difference. The targets of McVeigh's revenge had no connection to the Waco raid. Private vengeance may be directed at the wrongdoer's loved ones (imagine the reaction if someone suggested exterminating McVeigh's family as payback!) and unconcerned with proportionality or intent. If a child is killed in a car accident, the grieving, enraged parents may well want to see the driver dead, even if he was blameless; yet we can hardly imagine official authority carrying out such revenge.

Retribution, on the other hand, addresses moral culpability—which is why virtually everyone is repelled by the idea of executing a person with diminished mental capacity. Many death penalty supporters, such as conservative political scholar Walter Berns, explicitly defend capital punishment in moral rather than practical terms—as a way of righting a purposefully committed wrong and affirming the offender's ultimate responsibility for his or her acts. Some opponents, on the other hand, seem to see few wrongs as truly purposeful.

But there are also those like Timothy Lynch, director of the Cato Institute's Criminal Justice Project, who endorse many of the moral arguments for the death penalty yet have come to oppose it on practical grounds. "To support the death penalty requires placing your trust in state actors in our criminal justice system: police, prosecutors and the courts," says Lynch. "There have been so many mistakes and misconduct, it just does not warrant our support for something like the death penalty, where the results are irreversible."

In a recent Washington Post-ABC News poll, about two-thirds of respondents favored the death penalty for murder. But 68 percent said they were troubled by the possibility of innocents being put to death, and 63 percent thought the death penalty was unfair because of its uneven application. More than half supported a temporary halt to executions until issues of fairness and wrongful convictions are sorted out. Unless there is evidence that the death penalty saves potential victims, the argument that one innocent person executed is one too many seems compelling. At the very least, such concerns justify a moratorium.

Death penalty advocates should be more willing to confront the danger of wrongful executions. Opponents, meanwhile, should reexamine their assumption that "retribution" is a dirty word (death, after all, is not the only means to exact retribution). Then, we might not only find common ground but actually break some new ground in this debate.