‘On Executions’ I: The Actual Death Penalty

(This post is one of a series on the death penalty. You can find the others here)

I recently spoke in a debate on the abolition of the death penalty, arguing against abolition. My research turned me towards questions with far reaching and unanticipated consequences, and complicated my personal stance on the issue.

Indeed, while the academic literature on the death penalty is overwhelmingly abolitionist, this bias did not convince me of the dominant view. Books focused on the death penalty mostly focus on history, an the one hand, the suspect modern history of unjust executions, on the other an idealized biblical narrative of divine justice, only to skimp on normative argumentation.

This is probably because arguments about execution are difficult to separate from general theories of killing and letting die. The same grounds which legitimize executions might, if applied generally, legitimize noxious killings. Conversely, a general theory of killing might not provide the legal specificity required of the death penalty debate.

So, in discussing the ethics of execution, I will have to discuss a broader ethics of killing. I welcome this: I am more interested in ethics than history, although the latter surely informs the former.

But any argument for or against the death penalty must balance historical explanation with normative weight. So I will briefly discuss history, confining my account to a brief conspectus, in view of the ethical focus of successive posts.

Executions, Here and Abroad

State use of capital punishment has been in decline in the 20th and 21th centuries. After the World Wars, European nations successively moved to ban the use of capital punishment (for war and peacetime offenses), sometimes as a prerequisite for becoming a member of the EU. Since 2009, the only exception has been Belarus.

All Latin American states, Canada, and 19 US states have banned the use of capital punishment in peacetime. Australia, New Zealand, and about half of the African nations have also banned it.

The United States, too, saw a nationwide hiatus in executions from 1967 to 1976 due to the 1976 ruling of Furman v. Georgia, which struck down capital punishment statutes and reduced all pending death sentences to life sentences, although it did not declare the death penalty to be unconstitutional per se. Executions resumed following the 1977 reinstatement of the constitutionality of the death sentence and increased in subsequent years.

Thus, in the “developed world,” the 31 US states and the federal government are unusual in their retention of the death penalty, which has been a topic of heated public debate.

In the United States, approval for capital punishment hovers around 50-60%. The supreme court has continued to apply ever tighter restrictions on the application of the death penalty: it may not be mandatory, it may not be applied to those who offended as minors, and may not be applied to the insane, and generally may not be applied for non-capital crimes. These rulings are in keeping with the doctrine that the death penalty is not inherently cruel and unusual, although its application should be restricted.

Concerns

The actual implementation of the death penalty has been subject to much scrutiny, especially concerning the ostensible presence of racial bias and the costs of sentencing and execution.

Pre-Furman, there was a strong bias towards executing Blacks which some scholars have linked to southern cultures of lynching. Post-Furman, it is generally accepted that there is no significant racial bias on the perpetrator’s race, but there is bias on the victim’s race, in executions for capital crimes.

The state, in general, is more likely to execute if the victim is white than if the victim is black. This is a troubling indication that perhaps, statistically “Black Lives (don’t) Matter” when it comes to the lives of murder victims.

Nonetheless, the same study shows that the total rate of execution for whites is about twice that of the rate of execution for blacks (7.8% vs 3.8%).

Furthermore, the supreme court has ruled that while the presence of a racial bias should be rectified, it is not in itself cause to reason that the death penalty is unconstitutional.

The death penalty is enormously expensive in the United States, primarily due to legal costs associated with the complex capital appeals process. Nonetheless, 11% of executees post-Furman were volunteers (i.e. they waived their right to present mitigating evidence at their sentencing trial). Their legal costs are undoubtedly less.

While studies on the cost of housing an inmate for life (and most are not in fact housed for the remainder of their natural lives) vary in their estimates, most agree that, as implemented and for most kinds of criminals, the costs associated with execution are greater than those of life imprisonment.

The Burden of Proof

Practical concerns aside, who has the burden of proof? That is, should we presume capital punishment morally justified unless proven otherwise, or vice versa? In the absence of convincing arguments either way, what ought the state to do?

Basic principles of liberal democracies assert that the state may not invade upon the lives of its citizens unless doing so provably achieves some justly some aim which its constituents license it to seek. This manifests itself in the Principle of Minimal Invasion: the state must use the least invasive means possible to achieve its legitimate goals.

Thus, it would seem that it falls upon supporters of the death penalty to justify its application. In the absence of overwhelming proof, should we not let live rather than kill? This presumption against the use of force runs deep in Western liberal democracies, notwithstanding its inconsistent application. Even if this principle is a philosophical tenet of our democracy, skeptics of all political persuasions contend that it is improperly realized.

The correct proper bounds of state power are the implicit subject of this series, the death penalty its explicit subject.