America's long-simmering debate over capital punishment reached a boiling point this spring as the scheduled execution of Oklahoma City bomber Timothy McVeigh approached. Several polls showed overwhelming approval for McVeigh's execution—up to 80 percent—but also a good deal of ambivalence about the death penalty in general.
For opponents of capital punishment, McVeigh's date with death became a test case for the consistency of their stance, even when it comes to the most heinous crimes. The arguments are familiar: Killing a murderer, critics say, reduces us all to his level and amounts to "legalized revenge." Writing in the Los Angeles Daily News, Elisabeth Semel, director of the American Bar Association's Death Penalty Representation Project, saw a special, sinister irony in the case. McVeigh viewed his deed as vengeance for the 1993 deaths of the Branch Davidians in Waco, Texas. His own executioners, wrote Semel—making an argument echoed by a few other commentators—were simply perpetuating the grisly cycle of hate and revenge.
The argument that state-sanctioned killing is a bizarre way to reinforce the message that killing is wrong seems, on the face of it, convincing. One might think, too, that supporters of limited government should be especially troubled by the notion of placing the power of life and death in the hands of the state.
Yet many libertarians who are generally wary of expanding the prerogatives of law enforcement see, at the very least, no philosophical contradiction between small government and capital punishment. (Nor, obviously, did America's classical liberal Founders: The Bill of Rights offers guarantees only against being deprived of life without due process.)
Roger Pilon, vice president for legal affairs at the Cato Institute, points out that in Lockean liberalism, the government derives legitimate authority from the consent of individuals who agree to delegate to it some of their natural rights—including, in most circumstances, the right to use justifiable force. In the hypothetical state of nature, says Pilon, "When A takes B's life intentionally and gratuitously, he alienates his own right to life and creates in B or his heirs a right to take A's life. It's more than a right of self-defense; it's a right to right wrongs. And it is that right that we ask government to exercise on our behalf."
If the government's monopoly on the use of force is legitimate, then, like it or not, the state may commit acts that would be criminal and immoral if committed by individuals. This extends not only to capital punishment but to all lesser penalties: If execution is legalized murder, then imprisonment is legalized kidnapping. One could argue that the taking of a life is radically different from other forms of force, but confining a person to a six-by-six cell for life is still a pretty drastic form of coercion.
But the more interesting philosophical issue is whether capital punishment is in fact a form of vengeance—and, if so, whether that makes it bad.
An intriguing dissent from the standard anti-death penalty view is offered by Susan Jacoby, author of a thought-provoking book called Wild Justice: The Evolution of Revenge (1983). Both in the book and in a recent article on the McVeigh execution in Newsday, Jacoby argues that although the death penalty is beneath a civilized society, revenge or retribution—the desire to make the offender "pay" for his crime and to "express society's outrage at serious violations of its norms"—is inherent in all forms of punishment and is an important purpose of the justice system.
Jacoby treats revenge and retribution as synonymous, but perhaps there is a subtle difference. The targets of McVeigh's "revenge" had the most tenuous connection to the perpetrators of the Waco raid. In other cases, private vengeance may be directed at the wrongdoer's relatives or loved ones. (Imagine the reaction if someone were to suggest exterminating McVeigh's family as "payback.") Vengeance may also be disproportionate to the offense and unconcerned with intent. If a child is killed in a car accident, the parents in their grief and rage may well want to see the driver dead, even if he was blameless or at worst negligent; in a few cases, they may even act on that wish. Yet we can hardly imagine official authority carrying out such revenge.
Retribution, on the other hand, addresses moral culpability. This is perhaps most forcefully revealed by the reaction to executions of people with diminished mental capacity. In 1992, the execution of Ricky Ray Rector in Arkansas sparked a controversy not only because then-Gov. Bill Clinton took time off from the presidential campaign to fly back to his home state and sign the death warrant, but also because Rector was severely brain-damaged following a suicide attempt. One detail repeatedly cited as evidence of the barbarism of his execution was that on his way to the death chamber, Rector asked his lawyers to save the dessert from his last meal for later.
The story is cringe-inducing, but why? Not because of the suffering inflicted on the condemned; surely, it's far more cruel to send a man to his death when he is fully aware that there will be no "later." Rather, the issue is the defendant's perceived lack of moral agency, his inability to feel responsible for his act and to connect it to his punishment.
A number of conservatives, such as political scholar Walter Berns, author of For Capital Punishment: Crime and the Morality of the Death Penalty (1979), explicitly argue for the death penalty on moral rather than practical grounds—as an act that affirms cosmic principles of right and wrong, one that repairs a tear in the moral fabric of the universe. To illustrate this idea, Berns turns to Shakes-pearean tragedy, asking, "Can we imagine the play in which Macbeth does not die?"
In her 1995 book, It's All the Rage: Crime and Culture, Wendy Kaminer dismisses Berns' grandiose vision, in which capital punishment is a moral act in response to a purposeful evil, as a poetic fable. "There are no Macbeths on death row," she writes. "Instead there are dull-witted people, damaged and crazy people, along with inexplicably cruel people whose sordid, secret deaths do nothing to set the universe in order."
Empirically, it's hard to tell which picture is more accurate. McVeigh's actions were certainly purposeful (and a modern-day forensic psychiatrist could undoubtedly mount an impressive insanity defense for Macbeth). Yet there is a certain irony in the fact that Berns' argument for the death penalty seems to be more respectful of human dignity and free will than Kaminer's argument against it.
Whatever one thinks of these two views of human life, does the criminal justice system have a function beyond protecting the basic rights of law-abiding citizens? If the state does have a role in affirming the moral order, where does that role stop? For Berns, as his other writings make clear, it extends to censorship of "immoral" materials (which is certainly a red flag). And yet it's fair to say that the notion of a legal system that is not moored in some principle of right and wrong would appeal to few people.
Timothy Lynch, director of the Cato Institute's Criminal Justice Project, does not see moral arguments for the death penalty as a slippery slope. In his view, "We can distinguish between a total state-imposed value system on the one hand, and passing moral judgment on violations of rights."
But while Lynch does not reject capital punishment on ethical or constitutional grounds, he says he has come to oppose it on practical ones. "To support the death penalty requires placing your trust in state actors in our criminal justice system: police, prosecutors and the courts," says Lynch. "That trust has been betrayed too many times. There have been so many mistakes and actual misconduct, it just does not warrant our support for something like the death penalty, where the results are irreversible."
Lynch echoes a view that surveys suggest is increasingly common. In a Washington Post-ABC News poll conducted in April, 63 percent of respondents—down from 77 percent just five years ago—theoretically favored the death penalty for murderers. But 68 percent said they were troubled by the possibility of innocent people being put to death, and 63 percent thought the death penalty was unfair because of its uneven application from state to state and county to county (and, one might add, from defendant to defendant, including co-defendants in the same case). More than half supported a temporary halt to executions until issues of fairness and wrongful convictions are sorted out.
The marked drop in support for the death penalty is undoubtedly related to the publicity surrounding the cases of people who have been released after years of imprisonment, sometimes on death row, when their convictions were overturned due to DNA tests or other evidence. A widely covered 1998 conference at Northwestern University School of Law in Chicago featured 28 exonerated former death row inmates; Northwestern law professor Lawrence C. Marshall, who organized the conference, told the media that there had been a total of 75 such cases since the Supreme Court reinstated capital punishment in 1976.
Death penalty proponents such as University of Utah law professor Paul Cassell suggest that the media attention to wrongful convictions is part of a well-orchestrated anti-capital punishment campaign. But even if that is true, it doesn't make these cases less troubling. Nor is it much of a consolation to argue that, since none of these innocents were executed, "the system worked." Others may not be so lucky, particularly given the push to streamline the appeals process.
Unless there is actual evidence that the death penalty saves the lives of potential victims, the argument that one innocent person executed is one too many seems quite compelling. At the very least, such concerns justify calls for a moratorium on executions. Illinois has imposed such a moratorium, and 19 other states are considering similar action.
It would be possible not only to find common ground, but even to break new ground in the debate about capital punishment if supporters were more willing to confront the danger of wrongful execution, and opponents were more willing to recognize the legitimacy of retribution—or, as Pilon puts it, of "righting wrongs"—as an element of justice. Execution, after all, is not the only way to exact retribution.
Perhaps, pace Walter Berns, we can even imagine the play in which Macbeth does not die. In the final scene, when Macbeth realizes that Macduff is the man destined by the witches' prophecy to take him down, he refuses to fight. "Then yield thee, coward," says Macduff, "and live to be the show and gaze o' the time;/We'll have thee, as our rarer monsters are,/Painted upon a pole, and underwrit,/Here may you see the tyrant."
Faced with this prospect, Macbeth—like McVeigh—chooses to die. It's a more dignified "closure" for him, but not necessarily for the rest of us.