The Power To Kill
EDITOR’S NOTE: This article first appeared at The Roots of Liberty May 2016. With South Carolina’s recent addition of firing squad as a means of capital punishment, revisiting the matter of the death penalty itself is worthwhile.
It was announced yesterday that the jury considering the penalty for Dzhokhar Tsarnaev, the recently convicted Boston Marathon bomber, elected to sentence him to death. The reaction I've read on social media has been overwhelmingly favorable, with many expressing strongly emotional responses to this decision. All this seems like the perfect moment to discuss my opposition in principle to the death penalty. This is, of course, sarcasm. Rational, dispassionate debates don't do very well in the context of highly charged and egregious cases and issues.
Nevertheless...
I don't hold a microgram of sympathy or empathy for Tsarnaev. His murderous actions and the certainty of his guilt make him a poster boy for application of the death penalty, and his death won't prompt even a gram of sadness on my part. When it comes to controversial issues, we inevitably choose battles, heroes and "faces," and the chances of him being presented as a test case or good candidate for a challenge to the death penalty itself are rather slim, to slay the least.
Nevertheless...
I haven't always been opposed to the death penalty. I never found the moral argument against death as a punishment for the most heinous crimes particularly compelling. I accept and agree that there is a point where criminals and crimes cross beyond redemption, and no sanctity of life argument has ever been compelling. There are monsters out there, and there are acts so monstrous that the actors don't deserve a chance at atonement. No, my opposition derives from an entirely different source: the distrust of government.
The death penalty is permanent and irreversible. It is a punishment that cannot be undone, and its application by a government that has a long and rich history of error, incompetence, bias, bigotry, malice and selectiveness is an immoral affront. How can we, when presented by an endless barrage of government failures and errors, grant such a permanent and final power to its representatives? Why would we trust government with the power to kill those it was established to oversee and protect, when it has demonstrated in so many other areas that it doesn't deserve our trust? Pick a government endeavor at random and look at its history. Odds are quite good you'll find incompetence, inefficiency, selfish and unprincipled actors, and a general sense of disappointment. Criminal justice certainly isn't immune from these characteristics common to government efforts.
Consider how often we've heard that prosecutors' careers depend highly on their conviction records, and how this can create incentives that are in conflict with the pursuit of truth and justice. Consider that there's little in the way of checks and balances against prosecutors who go too far, with the immunity granted to them. Overly zealous prosecutors have ignored, hidden and/or buried exculpatory evidence, fabricated false evidence, suborned perjury, etc, in order to close cases, obtain convictions and keep their percentages up.
Consider the culture of conviction and the culture of misconduct.
Consider the sordid tale of Steven Hayne, formerly a medical examiner who performed the vast majority of autopsies in the state of Mississippi from 1987 to 2008. Hayne's career reads as that of a man looking to help prosecutors convict people, rather than of someone looking to uncover the truth and see that justice be done. Hayne's history reportedly includes perjury, falsifications, testimony completely unsupported by science, sloppiness and highly improbable thoroughness (he allegedly performed 1500-1800 autopsies per year, or 5-7 a day). A number of convictions based on his work and testimony have been overturned, but we will always wonder how many of those he helped prosecute were wrongly convicted.
Consider that not everyone charged with a crime gets the same level of competence on the defense side. A rich defendant can hire the best. A poor and uneducated one is often left at the mercy of the public defense system and reliant on the charity of others. Put simply, some get better defenses than others, and while there is a robust appeals process, screwing up the trial phase is not something that can be waved off that easily.
There's ample evidence out there that government simply isn't pure or perfect when it comes to criminal prosecution, yet many claim that all this is sufficient offset by the fact that convictions and sentences of this sort are handed down not by the government, but by jurors who are not government.
Lets consider that. Lets consider jurors and the jury system.
The government, in the form of judges and attorneys, controls juries and jurors. It controls who gets to be on juries, it regulates their behavior, it decides if a juror should be removed from a jury. It controls the instructions given to juries. Prosecutors and defense attorneys get a say as to who gets to be on a jury, and can dismiss jurors with or without reason during the selection process. People who express too much understanding of the law may not be wanted on a jury, since they're less easily managed. As an example, consider that it is a juror's absolute right to vote to convict or acquit, for whatever reason or lack of reason that juror chooses. Included in that absolute right is the right to acquit someone being prosecuted for a law he considers unfair or unjust, even if the evidence supports conviction. This is called nullification, and it is a well-established principle in both common law and judicial precedent. Yet, despite all this, judges rarely inform juries of their right to nullify, and are permitted by Supreme Court precedent to deny that information to a jury. I, as part of a pool of prospective jurors, was once asked under oath whether I would apply the law as explained by the judge to my decisions. An understanding of the nullification principle meant that I would have to answer in the negative. I never got the chance to answer (they dismissed me for other reasons) but I fully expect that had I answered truthfully they would have dismissed me for that very reason.
Thus, even the jury pool is managed and restricted by the government, and jury outcomes are affected by this management.
We can find countless other flaws, and countless other reasons to distrust the perfection of the system, something that we should absolutely demand if we are to grant the government the power to kill. We must also consider how bad or disingenuous actors within the system can use the overwhelming power of the government to pursue agendas at the expense of the innocent. Death penalty plea-bargaining is a tactic that has enormous coercive power, and an overly zealous or dishonest prosecutor can bully an innocent defendant into opting for prison rather than risking a jury trial and execution. If we are to believe that the jury is the ultimate check against government abuse of power, we must consider how this tactic can be used to bypass juries entirely.
Even the best system is imperfect, and an imperfect system will convict the innocent from time to time. Fortunately, our system has features that serve to minimize conviction of the innocent, features that give us reasons to trust that the system will get it right a large percentage of the time. These features also enable reversal of bad convictions, and even an innocent person who spent a decade or two in prison before being exonerated still gets a chance to live life after exoneration. An execution cannot be reversed.
One of the proper roles of government is the protection of individual rights against violation by others. That is the purpose of the criminal justice system. Despite all the flaws discussed herein, this nation's system is a pretty good one. It's why we trust it to prosecute the accused and punish the convicted. It's why we don't turn to vigilante justice or take the law into our own hands when wronged. But, pretty good is not perfect, and if we are to value the lives of the innocent, we should demand perfection before we grant the government the power to kill.
A big part of the appeal of the death penalty is emotional. It provides a sense of balance, it's biblical, it says ‘take others' lives and yours is forfeit.’ As I noted earlier, I don't have an objection to the death penalty from a moral sense, and if it could be applied with absolute certitude of guilt, only to the most heinous of criminals, and only by a government free of any motive other than justice, I wouldn't be writing 1500 words in opposition. But, it cannot. Given what is evident about government - the flaws, the conflicting motives, the incompetence, the indifference, the lack of accountability, I cannot fathom trusting government with the power to kill the people it governs.
An addendum: Here is a list of executed people who may very well have been innocent, or at least not guilty beyond a reasonable doubt. Some argue that the appeals process and the span of time between conviction and execution are sufficient to let the truth emerge, but there are examples of people being exonerated decades after conviction, with one man released just last November after 43 years behind bars for a triple homicide. He is 62, and has potentially two to three decades of freedom that he’d have been denied were he executed.
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Yours in liberty,
Peter
Very well said.