Due Process and the Death Penalty

No one would contradict me, I suspect, if I were to assert that human beings are not always wholly consistent. Indeed, those who are much more consistent than average are apt to excite our fear or condemnation rather than our admiration. To be faithful to a bad principle is worse than having no principle at all. And, as Emerson said, consistency is the hobgoblin of little minds.

Yet by what other law than that of non-contradiction are we supposed to argue? Argumentation cannot just be a cacophony of incommensurable assertion, with the one who shouts loudest, speaks longest or employs the best phrases, taking the honors. And this is so even if Gödel was correct, and there is no entirely consistent system of logic without necessity to assume, without proof, the truth of some of its suppositions.

Yet there are contradictions and contradictions. I mention this because I am going to write about the death penalty, a subject about which almost everyone is contradictory, including me. I am against it though I am not a complete pacifist and do not believe that it is always wrong to kill, and though I happen also to believe that it, the death penalty, works – as a deterrent. I found unexpected evidence of this in the British historical experience, which I cannot here divulge because I confided it to a colleague who wants to use it in a book he is writing. To reveal it now would be to spoil its effect in his book.

My main objection to the death penalty is that, even in the most scrupulous of jurisdictions, mistakes are sometimes made, and for the law to put someone to death wrongly is an injustice so monstrous as to undermine trust in law itself. I once used this argument in company in which someone claimed to be able to refute me easily; for it was a fact, he said, that more people had been murdered by murderers who had not been executed than who had been wrongfully executed.

Granting for a moment his empirical premise, though I was not absolutely sure that it was factually correct, I replied that his argument was valid only if one accepted a very narrow interpretation of utilitarianism: and since I knew him to be not that kind of utilitarian, he was guilty of self-contradiction. My problem was that, on occasion and if need be, I resort to precisely the same kind of utilitarian argument myself; and therefore I was guilty myself of the very philosophical inconsistency of which I accused him. My interlocutor had the grace not to mention it.

I would not myself be prepared to participate in an execution, but I am not sure of the moral relevance of such an argument. I think that what is true of me is probably true even of most supporters of the death penalty: and have they the right to demand that others do what they themselves would not be prepared to do? Possibly, for there are many things that I would not do myself that I am nevertheless glad are done (though mostly my objections to doing them are aesthetic or psychological rather than moral). Still, there are many things that for moral reasons I would not do that I would not prohibit. But not to wish to prohibit something is not the same as to think it should be done.

At any rate, I am glad that the death penalty had been abolished long before I became a prison doctor: I would not have relished the task of certifying the fitness of someone to be executed. The criteria of fitness for execution is not one of the things taught at medical school; under common law, a person executed must be at least compos mentis, though it is not easy to see why, since execution can hardly be carried out to teach him a lesson. I would have been tempted to excuse everyone his execution on medical grounds.

The motives of abolitionists are, like those of other men, sometimes strangely mixed. I realized this when reading an article in the French Sunday newspaper, the Journal du dimanche about the forthcoming execution by lethal injection of Joseph Paul Franklin, the white supremacist guilty of several murders and of shooting and paralyzing Larry Flint, whom the newspaper called the Porn King. According to the article, Mr Flint is pleading that the man who rendered him paraplegic should not be executed.

The French, at least of the intellectual and writing class, are now outraged by the death penalty in itself and treat it as if it were a manifestation of mediaeval barbarism, though in fact it was abolished in their own country as late as 1981 (that is, a year after Franklin killed). The curious thing is that it is only executions in the United States that outrage them, not those that are carried out in, say, India. Various interpretations of this strangely narrow focus of moral outrage are possible, not many of them creditable.

However it does seem to me that to execute someone more than thirty years after he has committed his crimes, not because he has in the meantime evaded justice but because it takes thirty years to exhaust all legal expedients, bespeaks a judicial system that is not scrupulous, but grossly cruel and incompetent, to put it mildly. If there are enough grounds for postponing an execution for thirty years, there are either enough grounds for postponing it for ever or the whole system ought to be overhauled. Justice should be swift without being summary; a case such as this make it seem slow without being sure.

Mr Flint was reported as having said that he was against the execution of Franklin because ‘The death penalty has no deterrent effect.’ He added that if the death penalty were proved to exert such a deterrent, he would approve of it. But this is to render justice completely subservient to utility, which it cannot be and still remain justice.

There remains the humanitarian argument, but Mr Flint is not a convinced humanitarian, far from it, at least if the newspaper report is to be believed. For he said that ‘as for life imprisonment, to be condemned to a cell one yard by two [his own wheelchair] for more than thirty years is a punishment far worse than death by syringe.’ By implication, therefore, execution by lethal injection is not to be reprehended because it is too severe a punishment but because it is too lenient. He wants the suffering of his attacker to linger indefinitely, not to have a term. I am reminded of the famous, or infamous, eighteenth century pamphlet, Hanging Not Punishment Enough.

Yet I think it likely that Mr Flint is not, in fact, motivated principally by cruelty. He is merely, like me, like all of us, inconsistent.

One last point. The German company that makes propofol, the drug used in Missouri for execution by injection, has threatened not to allow it to be exported to the United States where, apparently, no one makes it. Germany, of course, has an unfortunate past where execution by chemical is concerned. But there is the slight difference of due process, due process that took thirty years to exhaust! What hay Dickens would have made of it!

Reader Discussion

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on November 18, 2013 at 08:50:38 am

Dr. Dalrymple, Emerson did NOT say that consistency is the hobgoblin of little minds. He said that foolish consistency is the hobgoblin of little minds. That’s a very different statement.

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David R. Henderson
on November 18, 2013 at 09:40:35 am

"Give me liberty, or give me death." So, at least according to William Wirt, said Patrick Henry. It is a noble sentiment, when applied to political society; whether Henry said these words or not, they do seem to capture something important about our highest public aspirations. Nor is it completely clear that it does not apply in our private lives. If liberty is our highest public aspiration, then isn't life-time incarceration worse than death?

It seems to me that this may be true even if, confronted with the choice, most of us would lack the courage of our convictions. Faced with a choice, most of us would choose life, even a life lived under absolutely awful and degrading circumstances. I would argue that there is a kind of admirable hopefulness to that, reinforced by our most basic and fundamental animal faculties. The impulse to self- preservation stems from some place deep in our natures.

But isn't that in itself a kind of condign punishment--to put someone in a hopeless situation, knowing all along that they will continue to hope? This strikes me as one of the deepest ironies of our current system--we have all these protections designed to prevent the innocent from being executed, which have the effect of even further heightening the agony of incarceration. If our system of justice strives to ensure that the punishment fit the crime, then surely what we have now is appropriate for the most heinous of offenders. Far worse to make some one live in deprivation, and under the constant threat of imminent and arbitrary death, than just to kill them quickly.

So Larry Flint may well have it right, it seems to me. But what does that say about our justice system, if our current hierarchy of punishment is misconceived? By Patrick Henry's measurement, death is not the worst thing we can do to an offender--lifetime imprisonment with no prospect of parole is worse. If, as seems likely, we have executed very few innocent persons, can we say the same for the many tens of thousands more whom we have condemned to lifetime imprisonment?

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Kevin R. Hardwick
on November 18, 2013 at 12:15:49 pm

Dr. Dalrymple:

Perhaps what you are struggling with is the difference between consistency and constancy.
Consistency (foolish or otherwise) may well be the hobgoblin of little minds; Constancy, in support of a higher moral principle, allows for incidental inconsistency, and may be said to be derived from a "core" of virtue and belief.

As an example, one may be called inconsistent for supporting the death penalty while condemning abortion in that both involve the taking of human life. Inconsistent - perhaps? However, the constant value is in the recognition that human life may be so precious that the willful act of taking such life (homicide) may warrant that society administers the ultimate penalty to all those who so violate basic human decency by murdering one of our own. again, the constant value is "the preciousness of human life" that is being advanced and protected.

I believe that this is not inconsistent with Kevin's position on the differing level of cruelty involved. surely, it is a cruel fate to be confined to a "hopeless hope."

Finally, I think that the 30 year "pageant play" (not uncommon, of course, in these matters) speaks less to our society's fundamental concepts of justice than it does to the cleverness of lawyers and interest groups that, if Kevin is correct, do nothing more than inflict a deeper and more pervasive punishment than the executioners needle.

take care

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on November 18, 2013 at 14:38:48 pm

Our current practice of decades-long appeals is unsatisfactory to everyone, and is cruel to both murderers and the families of their victims, but it is superior to the alternative. In plain terms, here is what the abolition of the death penalty means: “The state guarantees criminals the absolute right to kill as many innocent victims as they want, in as cruel and sadistic a manner as they can devise, without even having to face the theoretical possibility that they will be placing their own lives at risk.” I cannot think of a more profound betrayal of the fundamental values of civilized society.

As a practical matter, abolition also means that once a murderer has been convicted of a crime and sentenced to life, there is no consequence to him if he chooses to kill again – other than a purely symbolic second (or third or fourth) consecutive life sentence. We currently have more than 30,000 inmates serving life sentences in California alone, most of whom have little or no prospect of parole. Despite the fact that hardly anyone is ever executed, it appears that the mere threat – however remote it may be – is sufficient to keep these convicted murderers in line. I doubt that their guards and fellow inmates are eager to find out what would happen if we were to abolish the death penalty and immediately confer on them a license to kill. And in the event that inmates and guards were to be killed by criminals who literally had nothing to lose, I would not want to be the one who had to explain to their loved ones that we planned it that way.

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Jim Belna
on November 18, 2013 at 17:50:36 pm

Very good points! Your comments reminded me of something I neglected to add in my earlier post. The question of "innocents"
Our current way of thinking asserts that it is permissible to kill innocents -unborn human beings - but impermissible to execute the guilty - murderers!
Ah, what a marvelous world in which we live, is it not?

take care

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on November 20, 2013 at 22:15:14 pm

Strangely, few - very, very few - people evince any concern at all for the men who will be charged with the task of incarcerating convicted criminals who would have received the death penalty but for its abolition by the well-intentioned. Charge me with introducing a utilitarian argument if you will and I will counter-charge that you have implicitly argued that those men's lives are worth less than nothing, for you have taken from them even the worth and dignity of the innocent in order to play humanitarian to hardened, deadly criminals.

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Micha Elyi
on December 01, 2013 at 16:27:19 pm

Advocates of capital punishment in Britain have to accept the fact that had their wishes been obeyed there is a non-trivial chance that the Birmingham Six, the Guildford Four, the M25 3, the Bridgewater Four, Andrew Evans and Abdelbaset Ali Al-Megrahi, all of whom were either innocent or never proved to have been guilty, may have faced the chair, the rope or the syringe, which would have been bad for them and bad for British justice.

Incidentally, the pornographer is named Larry Flynt.

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on December 01, 2013 at 21:31:32 pm

Jim – your first point is a neat bit of rhetoric, but little more than that. Assuming that you oppose the use of torture against conventional criminals, is it not just as profound a betrayal of 'the fundamental values of civilised society' for the state to guarantee criminals the absolute right to torture as many innocent victims as they want etc. without having to face the possibility that they might have the same pain visited upon them? I fail to see why the values of a civilised society should commit one to such a simple-minded conception of proportionality.

Your second argument has a good deal more force, but the facts seem not to bear it out. Prisoners serving life without parole have a considerable incentive – a greater incentive than most – not to break the rules, because even small privileges matter a great deal when one is facing a lifetime without them. They are in fact less likely than other inmates to break prison rules, as most of the empirical literature on this subject attests. Members of the prison staff are, somewhat counter-intuitively, many times less likely to be murdered by an inmate than the average person.

And even if this were not so, your argument would seem to support the pre-emptive execution of violent criminals besides convicted murderers, which I take it you would regard as an unpalatable conclusion.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.