Last fall, a man broke into a family’s home in Wisconsin, murdered both parents and kidnapped their 13-year-old girl. After suffering three months in captivity, the girl escaped, thank goodness, and authorities arrested the suspect.
When I read about this story, my immediate reaction was that “they” should kill the perpetrator, after due process, of course. He richly deserves it. (This won’t happen because Wisconsin was one of the first states to outlaw the death penalty.)
As human beings, we often seem to have a visceral desire to hurt those who perpetrate such horrific crimes. For good reason, we’ve outlawed torture and other cruel punishments. But we still have the death penalty for the worst crimes. So long as the criminal dies a relatively painless death, is there anything wrong with that?
I used to think the case for the death penalty was a slam dunk. Now I think we should stop using it.
It looks like I’ll get my way, as far as the state goes. The Democratic legislature appears ready to abolish the death penalty in Colorado, and Gov. Jared Polis has indicated that he’ll support the move and even commute existing sentences.
The political question, strategically, is whether Democrats should spend their political capital repealing the death penalty and whether Republicans should spend theirs trying to salvage it. My sense is that many Republicans are ready to let this one go, but some will oppose the move.
Why should Republicans be skeptical of the death penalty? David Williams, a long-time Libertarian activist and a Colorado lawyer who once worked on a death penalty case in North Carolina, summarizes:
“Conservatives are supposed to believe in limited government. Yet there is no greater power to give to the state than the authority to decide whom to execute.
“Conservatives are also supposed to recognize the incompetence of government. Far too many are willing to overlook the government’s incompetence when it comes to putting innocent people on death row.
“Since the death penalty was reinstated in 1973 by the U.S. Supreme Court, 164 people on death row have been exonerated. How many more are there wrongfully?”
The argument that government often screws things up strikes me as a compelling one. If the state executes an innocent person, there is no going back. On the other hand, if the state sentences an innocent person to life in prison, at least there is a chance to correct the mistake and let the person go free (hopefully with compensation).
The death penalty also raises troubling constitutional issues. The Eighth Amendment explicitly bars “cruel and unusual punishments.”
Yet there is a nontrivial risk of the executioners botching the job. For example, just last year, Alabama did such a bad job of trying to kill someone via lethal injection that the prisoner survived to sue over the matter.
It’s hard to think of a punishment crueler than the horrific agony of a botched execution. But merely sentencing a person to death, knowing that the killing might be botched, is cruel.
Cruel, too, is the psychological torture of being sentenced to death, knowing that the legal process likely will take many years, and never knowing if you’re actually going to be killed on any given scheduled date.
Many will think, “The cruelty of the death penalty cannot match the cruelty of the suffering that the criminal inflicted on his victims.” I agree, but that is not a good reason to ignore the Eighth Amendment or to violate our principles of human decency.
Another constitutional problem is that the death penalty undermines the Sixth Amendment right to trial. John Herrick’s article for the Independent perfectly summarizes the problem: “District attorneys can use the threat of the death penalty to prompt a confession.”
DAs in such cases say, in effect, “If you don’t plead guilty without a trial, we’re going to try our hardest to kill you through legally established procedures.”
If there is no death penalty, will more criminals who are guilty as sin and who are caught red-handed go to trial? Probably. But jury trials don’t exist for our convenience.
Republicans take seriously the Constitution’s principles about the free exercise of religion and the right to keep and bear arms; they should take equally seriously the principles about punishments and jury trials.
What about deterrence? Doesn’t the death penalty deter other would-be criminals? As Herrick points out, Colorado has killed only one person since 1976. Not even the Aurora theater shooting gunman, one of the worst mass-murderers in state history, got the death penalty. Practically speaking, if the death penalty as used today has any deterrent effect, it is minuscule.
Government prosecutors sometimes get things wrong, sometimes through incompetence or malice. Government can guarantee neither that it will kill the right person nor that it will properly conduct the killing. Government is largely capricious in whom it executes and when it executes them.
If we are skeptical of government power and mindful of constitutional principles, abolishing the death penalty seems the logical conclusion.
Ari Armstrong (@ariarmstrong) publishes the Colorado Freedom Report and is the author of Reclaiming Liberalism.
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