Rejecting the “conservative” case against the death penalty

In an upcoming essay, I make the point that the biggest threat to the death penalty today would be a well-executed and significant campaign of prominent political conservatives seeking to abolish it.  The same Liberal angst about the death penalty that we have heard for years is not going to move the needle.  But if you take a group that, as a whole, has long been for something that they are now suddenly against, folks who are on the fence start to take notice.  So, as with the current movement for criminal justice “reform,” once Liberals and conservatives start to join forces, the chances for change increase dramatically.

On this point, I note Doug Berman’s post at SL&P, linking to a recent piece at The Week on “the growing conservative movement to end the death penalty.”  It’s worth a read, if for no other reason than to get a sense of who is behind this “movement” and what they are thinking.  George Will is also one, and Bill Otis had a devastating response to Will earlier this year.

The “conservative case against the death penalty” has been around for awhile.  I’m not yet persuaded that it is widespread.  And there is not much “conservative” about it.  Rather, as I point out in my paper, many of the arguments are the same as the Liberal ones, but couched in conservative buzzwords and phraseology.  The argument about death penalty costs may be uniquely appealing to conservatives, but is illusory.  What are the costs of the alternatives to the death penalty?  The arguments about “limited government” are also unconvincing.  Punishing crime is a traditional function of the state.  And the prosecutorial machinery of government operates much the same when imposing life in prison, or any other sentence.  There mere fact that the death penalty is state-sanctioned killing might make it “different” from mere incarceration, but that is hardly persuasive as a claim for abolition – the state also sanctions killing in war and in self-defense, and I don’t see conservatives opposing those forms of state-sanctioned killing.  It is hard to see how the goal of “limited government” is served by abolishing capital punishment and replacing it with a regime of life in prison.  Of course, the government should never execute an innocent person and should take appropriate steps to ensure that it does not.  This is a compelling argument against capital punishment in particular cases.  But it is not a uniquely “conservative” notion.  And it tells you nothing about how you should punish the clearly guilty defendant.

Ultimately, then, the “conservative” case against the death penalty fails to grapple with the ultimate question: how, then, should we punish brutal, highly aggravated killings where there is minimal mitigation, the defendant is criminally responsible, and there is overwhelming evidence of guilt?  Think McVeigh.  Think Tsarnaev.  Think Hayes and Komisarjevsky.  And many, many others.  Neither Will nor the others on board with abolition tell us how we should punish.  Saying you are against capital punishment in the abstract is one thing; actually having to impose punishment on real killers like McVeigh or Tsarnaev is quite another.

Conservatives should reject abolition, and instead favor a limited and effective capital punishment regime that provides extensive process for capital defendants but that also ensures that executions of the guilty are carried out in a timely manner when the inmate no longer has a claim to legal relief or mercy.

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