The “conservative” argument that refuses to die

Thanks to SL&P, I saw this piece over at The Week, discussing yet another variation of the “conservative case” against the death penalty.  I (and others) have rebutted this theory in the past, but it just will not die.  Let me say just a bit more in response to this recent article, though I repeat myself.

The most egregious flaw in the piece – and, it seems, the point of the piece – is to suggest that one cannot be pro-life on abortion and in favor of the death penalty.  To hold those positions, the article suggests, is to be a hypocrite on the issue of protecting life.  Nonsense.  When the state imposes capital punishment, it does so exclusively in the case of someone who it has determined that have committed a serious crime against the political community that has resulted in the death of another person (typically, the condemned person caused the death intentionally or knowingly, or at least under circumstances manifesting a reckless disregard for human life).  The same cannot be said of the unborn child whose life is taken in an abortion and who has done nothing wrong.  Unless the defendant pleads guilty to the capital offense and avoids trial, a person sentenced to death had his guilt determined by a fair and impartial jury composed of people from the political community who objectively viewed the facts and evidence before imposing their moral condemnation upon the defendant.  The defendant had a right to counsel and to cross-examine witnesses, and at his trial the evidence against him was subjected to well-defined rules of admissibility.  The defendant then had a second trial, on punishment only, where the defendant had the opportunity to present evidence mitigating his offense and persuade the sentencer as to why he should not be sentenced to death.  The same cannot be said in the case of an aborted child, who is afforded no process whatsoever.  Before his life is terminated, a condemned defendant has the opportunity to appeal his conviction and sentence to the jurisdiction’s court of last resort, seek review by the United States Supreme Court, seek review on state post-conviction review, seek federal post-conviction review, seek additional post-conviction review in limited circumstances, seek additional review from the United States Supreme Court on an original writ, and seek clemency from the executive branch (that is, to again ask for mercy).  An aborted child is afforded none of these procedures before its life is terminated.  My point here is not to make an argument against abortion rights.  Rather, my point is simply to respond to the claim that it is hypocritical to oppose abortion rights and support the death penalty.

Any effort to conflate abortion and capital punishment misunderstands the important distinctions between these two issues, and ignores a key factor: moral desert.  One of those quoted in the piece says, in discussing the polling among conservatives on these two issues, there is “‘no significant correlation between attitudes about the legality of abortion and views on capital punishment.'”  But we should not expect there to be any such correlation; the two issues are not correlated. The unborn child has done nothing to deserve condemnation; the same is not true of the capital defendant.  An unborn child and a death row inmate are not similarly situated.

Moreover, the article makes no effort to grapple with the reality of other forms of state-sanctioned killing that conservatives typically defend.  If conservatives should – as a spokesperson for Conservatives Concerned About the Death Penalty says – oppose “‘giving an error-prone government the power to kill its citizens, especially when many of us don’t trust the state to even deliver mail,” then those same conservatives need to explain whether they support giving police officers the power to use deadly force, or allowing the American military to kill citizens in combat.  We legally permit both of those, even though doing so brings with it the possibility that police or military personnel will make a mistake.  Now, of course, there are important differences between imposing capital punishment and killing a person on the reasonable belief that the person poses an imminent threat.  But still, if conservatives really believe that there is moral equivalence among all killings and that the government cannot be trusted with the power to kill, then they must be prepared to account for law enforcement and military uses of lethal force against other citizens, or at least explain why – distinctly as a matter of being “pro-life” – those are permissible but capital punishment is not.

Finally, the article – and the folks interviewed in it – utterly fail to give an alternative.  They do not explain what the state is to do with McVeigh, or Tsarnaev, or Manson, or Hayes and Komisarjevsky, or those who planned and facilitated the September 11 attacks, or a whole range of other killers (or alleged killers, like Roof).  In the world of combating evil, it will not do to simply say you are against a particular punishment; at some point, you must actually punish and be prepared to explain why that punishment is just and appropriate.  As I have said before, conservatives who default to life in prison may find that many of their concerns about capital punishment extend to life sentences, too.  If you really cannot trust the government to deliver the mail, then why would you trust it to secure violent and dangerous people for the remainder of their natural lives?  Or, for that matter, for any meaningful length of time?

To be clear, there are conservative critics of the death penalty that I like and admire (e.g., S.E. Cupp, George Will).  And some of their criticisms are sensible and worthy of further consideration.  I simply disagree with many of the contentions that some conservatives are peddling in this area, and that are featured in the aforementioned article, and I reject the notion that there is much that is distinctly conservative about the theory more broadly.  And with respect to some of those (not Cupp and Will, but others) who are peddling this theory, I wonder whether they simply occupy an isolated element of the political Right that has taken distrust of government to another unhealthy extreme.


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