Capital Punishment Means Unlimited Government

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As January drew to a close, the perennial issue of capital punishment once again elbowed its way onto America’s front pages. We’ve already seen executions in Florida, Georgia, Oklahoma and Texas this year, but recent developments cast doubt on the future of the death penalty in the United States. That’s good news.

On January 28, the US Supreme Court stayed three executions pending legal challenges over the drug cocktail Oklahoma uses to kill its prisoners. Two days later, Ohio postponed all seven executions it had previously scheduled for 2015; its anonymous hired killers need time to find anonymous suppliers of the drugs used in the state’s  new, “improved” death protocol.

But delays and deliberations aren’t enough. It’s time for libertarians and “limited government” conservatives to join hands with more traditional capital punishment opponents and bring an end to the practice of slaughtering caged prisoners in cold blood.

And that’s exactly what the practice amounts to. State executions are not performed in defense of self or of others. They are calculated vengeance killings carried out on disarmed and defenseless victims, distinguishable from murder only by virtue of representing government policy.

Capital punishment is incompatible with “limited government” in any meaningful sense of the word. If the state may kill its subjects — not in the heat of the moment when life and death decisions must be made instantly, nor in actual defense of life, liberty or property, but merely in leisurely pursuit of revenge and “deterrence” — what may the state NOT do to those subjects?

How can we plausibly dispute lesser state impositions like gun control schemes or the “individual mandate” requiring us to buy health insurance, having already cheerfully ceded power over life and death to the same authorities?

Too often we let death penalty supporters use sleight of rhetoric to focus our attention resolutely on the prisoner’s proven guilt, on the evil of a prisoner’s crimes, or on the suffering of his or her victims. Yes, those things are important and deserving of our full consideration, but we shouldn’t allow them to distract us from, or absolve us of, our own responsibility for the things we allow the state to do in our names and on our behalves.

It’s too late to make 2015 an execution-free year. But we have 11 months left in which to bring down the final curtain on a shameful and barbaric American tradition.

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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  • Terry Hulsey

    Thomas, in the underlying concept of the state regarding punishment, you follow the line set out by Rothbard in The Ethics of Liberty, Chapter 13 “Punishment and Proportionality” [http://tinyurl.com/nso4afe]. In that chapter Rothbard says that in a libertarian society, there are only two parties to any crime: the victim and the perpetrator — the state has “no standing,” and plays no part. He allows retributive murder by relatives of a slain victim, but that is really a separate discussion.

    My point is this: Suppose a slain victim with no kin — in other words, the classic subject of Phil Ochs’ famous song “I’m Sure It Wouldn’t Interest Anybody Outside of a Small Circle of Friends.” (You might not know it if you weren’t also a child of the 60s!) What agent represents such victims? Is there no abstract social interest in prosecuting this crime? If so, then who is to prosecute it, if not the state? If not, then do you really want to live in that kind of society?

    • Terry,

      I am not, strictly speaking, a Rothbardian — but I’ll plead guilty to largely agreeing with him on the subject. Before I go there, though, a note: This piece isn’t intended to take on the role of the state in “administering justice” in its totality. It’s meant to represent a perspective that hopefully all varieties of libertarian, from anarchists like me to “minarchists” like many in the Libertarian Party (and even in small annexes of the “major” political parties) can agree on. That perspective being, as concisely as I can put it, that if there’s going to be a state, its powers should be limited. And the proposition I’m trying to advance here is that if we confer upon the state a power to kill individuals as a matter of process (rather than as a matter of exigency), that’s the whole “limited government” ball game right there.

      Now, to your actual question:

      Yes, you’ve put your finger on a potential problem with treating all law as tort law (no victim, no crime; restitution to victim for damages as opposed to “punishment”). If the victim is dead and didn’t leave some kind of reasonable proxy (family, estate, what have you), may the killer just walk free and without consequence, or is there some kind of “abstract social interest” to which he might be held accountable?

      Shortest answer: I don’t know.

      First thing that comes to mind: The old saying that “tough cases make bad law.”

      Some possibilities: It seems to me that in reaching a free society, we’ll organically develop institutions capable of dealing with such situations. There are lots of visions for such a society. One that seems to answer to this query is the idea of “covenant of unanimous consent” communities which express their own “abstract social interests” internally and negotiate arbitration/mediation/enforcement agreements with other such communities concerning inter-community offenders against such interests. So if I’m a member of Community A (and have, as a condition of becoming a member, agreed to its rules and to its process for extra-community relations) and go kill someone who’s a member of Community B, I’ve bound myself to submit to whatever they’ve arranged by way of dealing with that kind of thing.

      But back to the shortest answer: I don’t know. But I suspect I’d prefer living in a free society with imperfect solutions to such problems rather than in the existing society with its ineffectual and evil non-solutions to the same problems.

      • Terry Hulsey

        Well, you have taken my short answer as well: I don’t know.
        This whole nest of problems (in my filing system they’re “Chapter 13 Issues”) is on my reading/thinking list, but I don’t have an answer yet. I will listen to anyone who claims superior wisdom.

        • Terry, I wish I had some superior wisdom to share with you, but I don’t. Problems like the one you brought up are things I think about, but they also go in my filing system under “OK, so maybe it won’t be utopia.”