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Oct 24, 2013

The Libertarian Case Against the Death Penalty

Should libertarians support the death penalty? Ben Jones argues that both evidence and philosophy say no.

For many years, the death penalty has divided libertarians. Recently, however, a number of high-profile figures in the liberty movement have expressed concerns about the death penalty and called for its repeal. In 2012, Libertarian presidential nominee Gary Johnson made clear his opposition to the death penalty. Former congressman Ron Paul also voiced opposition to the death penalty during the presidential debates, and supports efforts to end it. Nick Gillespie of Reason.com, Jeff Frazee of Young Americans for Liberty, blogger Julie Borowski, and Lew Rockwell of the Mises Institute have joined the expanding ranks of libertarians opposed to the death penalty. Together, these voices reflect a growing consensus within the liberty movement.

What has inspired this shift? Well-publicized problems with the death penalty process—wrongful convictions, arbitrary application, and high costs—have convinced many libertarians that capital punishment is just one more failed government program that should be scrapped. Edward Crane, founder of the Cato Institute, succinctly sums up this position when explaining his own view: “[T]he government is often so inept and corrupt that innocent people might die as a result. Thus, I personally oppose the death penalty.”

Government’s abysmal track record in administering the death penalty is reason enough to reject the practice. But what does libertarian theory say about the death penalty? After surveying how the death penalty fails as a policy, we tackle this deeper question. Capital punishment inevitably expands the power of government, and for that reason it proves to be deeply at odds with libertarian ideals.

Death Penalty’s Failures as a Policy

Libertarians believe that government needs to justify any policy that limits individual liberty. Since the death penalty is the most severe curtailment of liberty that a state can impose on an individual, the state must be able to offer an especially compelling justification for it. This burden becomes even greater when we recognize that the death penalty’s effects reach beyond the person executed. The government must expend significant resources whenever it seeks to execute one of its citizens, which ends up impacting every taxpayer.

Law enforcement always will be a state expense, and thus a burden on taxpayers, so we cannot criticize the death penalty solely on the basis that it costs money. Any libertarian who supports a version of the night-watchman state must accept some level of taxation to provide for law enforcement and public safety. The death penalty is not troubling because it costs money, but because it costs significantly more than alternative penalties—such as life in prison without parole—that are equally effective at meeting the state’s responsibility for security.

Capital punishment is expensive because, although any system is fallible, its failures cannot be reversed. In response to innocent people being sentenced to death, American courts have mandated “super due process” in capital cases. The result has been a legal process involving extra preparation, lawyers, and investigators; a separate sentencing phase; and lengthier and more complex appeals. Incarcerating those sentenced to death proves costly, too, since they reside on death row, a higher security area. All together, this process is not cheap: the death penalty ends up costing state governments millions of dollars more than the alternative of life in prison without parole.

Taxpayers most directly feel the cost of the death penalty as a result of local cases. A single death penalty case can devastate the budget in a rural county, which lacks the bureaucracy to handle capital cases with regularity. Counties in Kansas, Utah, Texas, Mississippi, and Georgia all have had to raise taxes to pay for the legal process required by a capital case. After deciding to seek the death penalty, Jasper County, Texas—whose entire annual budget was $10 million—found itself facing over $1 million dollars in expenses just from trying the case. Over the next two years, residents endured a 6.7% increase in property taxes to pay for these expenses.

Even when a conviction leads to execution, which is hardly guaranteed, 10, 15, or even 20 years will elapse before the punishment is carried out. Other than subsidizing attorneys and bureaucrats, do our tax dollars accomplish anything through this policy? There is no evidence that the death penalty makes us safer. States with the death penalty have higher murder rates on average than states without it. Majorities of police chiefs and the public both recognize that the death penalty is an ineffective deterrent.

Instead of making us safer, the death penalty threatens the lives of any innocent citizens unlucky enough to be caught up in a capital trial. Unsurprisingly, like many government programs, the death penalty is prone to error and abuse: since 1973, over 140 individuals in the U.S. have been sentenced to death and later released when evidence of their wrongful conviction came to light.

A variety of factors lead to wrongful convictions, from mistaken eyewitness identifications to police beating suspects into making false confessions. Reforms in the criminal justice system can reduce wrongful convictions, but the problem will persist even if we adopt reforms. Human error and misconduct are inevitable and manifest themselves in ways that are difficult to detect. For instance, a myopic focus on obtaining a conviction leads some prosecutors to suppress key evidence that could exonerate an innocent defendant. Such misconduct puts a defendant in an impossible position: how can you address misconduct if you are completely unaware of it?

The New Orleans District Attorney’s Office has provided abundance evidence of the devastating impact of withholding evidence. Between 1973 and 2002, New Orleans prosecutors obtained death sentences in 36 cases. It turns out that they withheld exculpatory evidence in nine of these cases. This misconduct led to the exonerations of four men, one of whom was John Thompson. Prosecutors charged Thompson with murder and armed robbery, which together allowed them to seek the death penalty. But the prosecution had a problem: blood left by the perpetrator on the robbery victim’s pants did not match Thompson’s blood type. Prosecutors suppressed this and nine other key pieces of evidence in their two cases against Thompson. When Thompson sued, a jury awarded him $14 million damages. The U.S. Supreme Court, however, ruled the DA’s office not liable and took away Thompson’s compensation.

Despite this injustice, at least Thompson escaped with his life. Not everyone is so lucky. A recent report by Columbia Law Professor James Liebman goes into detail how mistakes in Texas likely led to the execution of an innocent man, Carlos DeLuna. A jury found DeLuna guilty of the 1983 murder of Wanda Lopez. DeLuna steadfastly maintained his innocence, and pointed to another Carlos, Carlos Hernandez, as the person who murdered Lopez. Prosecutors dismissed Hernandez as a figment of DeLuna’s imagination. But Hernandez was a real individual, with a long history of violent crime. Hernandez even bragged to numerous people that he had killed Lopez. Unfortunately, the investigative work at the crime scene was so shoddy—no blood samples were collected, for instance—that little usable evidence was available to definitively exonerate DeLuna. So in 1989 Texas executed him.

In light of these cases, reducing the death penalty’s costs through shortening trials and appeals is problematic to say the least. The death penalty in the Jim Crow South—where defendants sometimes were charged, tried, convicted, and executed in a matter of days—was much cheaper than the current system. But it resulted in even more mistakes. Limiting due process in capital cases leads to more fatal errors in a system already known for spectacular mistakes.

In a nutshell, our system of capital punishment is a government program that imposes an extra burden on taxpayers, fails to make us safer, and can kill innocent people. For anyone committed to limited government, it is a difficult system to stomach.

Capital Punishment in a Libertarian Society?

Clearly, our experiment with capital punishment in recent decades has been an abysmal policy failure. That’s hardly surprising for libertarians: the United States falls well short of libertarian ideals. But what if we found ourselves in a society embodying libertarian principles? Could we justify capital punishment in such a society?

In The Ethics of Liberty, Murray Rothbard gives what is perhaps the classic libertarian defense for the death penalty. Rothbard emphasizes that, in a libertarian society, individuals rather than an abstract state are the injured party when a crime occurs. Individual victims can choose what punishment, restitution, or combination of the two should be imposed on an offender. The principle of proportionality—that is, the punishment or restitution is proportional to the harm caused—serves as a constraint on what sentences victims can demand. According to the principle of proportionality, the death penalty only is available as an option for the crime of murder. If someone is murdered, the victim’s family can choose the death penalty or an alternative penalty, such as restitution.

Rothbard’s recommendation that a victim’s family should decide the punishment is understandably popular: since they are the ones most directly affected, a victim’s family members are best positioned to decide. Rothbard’s argument also has the virtue of putting the focus back on victims, who so often are ignored by the criminal justice system. Yet what if a victim’s family members disagree amongst themselves? If a single mother is murdered and her daughter opposes the death penalty but her father supports it, whose wishes should count? And what is the proper response to the murder of someone with no family connections? Finally, who counts as “in” and “out” of a victim’s family? Do cousins get a say or only “immediate” family members? There is no straightforward solution in these situations.

Rothbard suggests that individuals specify in their wills whether they would like the death penalty sought in the event they are murdered or appoint someone to make that decision. This suggestion could work if everyone, or their guardians, included what we might call “murder provisions” in their wills. But would there be sufficient incentive, especially for younger people, to draft wills with such provisions? The risk of being murdered tends to be extremely low. It is entirely rational, then, for young people with limited property to put off making out a will, leaving no clear guidance for law enforcement in case of their murder. Government could coerce citizens within a society to make out wills including a murder provision, but that is not exactly a libertarian solution.

Rothbard’s proposal also fails to address the issue of wrongful convictions. A libertarian society is not infallible but rather takes human fallibility into account when structuring itself. Rothbard puts the decision to execute an offender in the hands of victims, but the victims will not always have perfect information when making their decision. Their own eyewitness testimony could be mistaken, or law enforcement’s case against a suspect could be based on faulty evidence. These problems do not go away in a libertarian society. Indeed, it is unclear how a libertarian society attempting to exercise the death penalty could avoid the same problems plaguing today’s death penalty.

By imposing an irrevocable penalty in a context where wrongful convictions are inevitable, capital punishment poses an intractable problem. Rothbard fails to come to terms with this dilemma, which is evident in his endorsement of retributive justice carried out by the victims themselves. According to Rothbard, if someone is murdered, the victim’s family is fully justified to kill the person who they believe murdered their loved one. What is to deter them from killing the wrong person? If they make such a mistake, then they will face their own trial and punishment if found guilty. It is good to know that there are consequences for vigilante justice gone awry, but that is little consolation for innocent suspects who are killed!

These flaws in Rothbard’s argument show the difficulties of designing a just and effective death penalty compatible with libertarian ideals. After all, the purpose of a libertarian state is to safeguard individuals’ natural rights to life, liberty, and property. Each of these rights is fundamental, but it is safe to say that the right to life has a certain priority. Without life, it is impossible to exercise and enjoy the other two rights. Furthermore, whereas remedies usually are available to address violations of individuals’ liberty and property, it is impossible to restore a life wrongfully taken. Given the importance of the right to life, a libertarian society could not tolerate a legal system that violated this right by executing the innocent. Such an injustice would represent the ultimate perversion of libertarian ideals.

To avoid wrongful convictions, a libertarian society would need to put in place numerous safeguards to vet the accuracy of convictions. These safeguards would demand time, energy, and resources. Perhaps the society would require a higher burden of proof—absolute certainty of guilt—to sentence someone to death. But is such a standard realistic in a fallible human justice system? This experiment with capital punishment holds no guarantee of success. The more likely result is a bureaucratic mess that still makes mistakes—much like we find in the United States.

The Dangers of the Power to Execute

Libertarians are wary of augmenting the state’s power. In the final analysis, we must recognize the death penalty for what it is—an additional power possessed by the state that necessarily limits liberty. On those grounds alone, libertarians have strong reason to reject the death penalty.

Though capital punishment persists, there has been an encouraging historical trend toward limiting the power to execute. The American colonies largely rejected England’s Bloody Code—which permitted the death penalty for crimes as minor as horse theft and chopping down a tree—in favor of a narrower list of capital offenses. Pennsylvania emerged as a model, limiting the death penalty to first-degree murder in 1794. Other states would go even further in the 19th century, when Michigan distinguished itself as the first English-speaking territory to abolish the death penalty.

There is a long American tradition, then, of suspicion toward the power to execute, evident in measures limiting and even eliminating this power. But the federal government has bucked this trend recently. Federal laws have proliferated, and the federal death penalty has been no exception. During the 1990s, President Bill Clinton signed legislation that expanded the federal death penalty to apply to over 60 offenses, including some not involving a homicide (such as drug trafficking). This expansion in the death penalty should trouble us for obvious reasons: expanding this power only exacerbates the potential for abusing it.

Fortunately, more states are recognizing the dangers of entrusting government with the power to execute. Six states in the past six years already have abandoned the death penalty, and more are looking to do the same. Repeal of the death penalty will not solve all the ills of concentrated power, but it will move us toward a more limited government. Libertarians have every reason to support efforts furthering this goal.