WHY CONSERVATIVES SHOULD OPPOSE THE DEATH PENALTY

Kenneth Haas

University of Delaware

Introduction: What Does It Mean to Be Conservative?

For more than two centuries, Americans have been arguing passionately about the death penalty. The pendulum of public opinion has swung back and forth over the years, but we have never come close to reaching a moral, legal, or practical consensus. For at least the past 25 years, however, one feature of the death penalty debate has remained constant. Support for capital punishment is nearly always viewed as a "conservative" position while opposing capital punishment is inevitably portrayed as a "liberal" position. It is my position that this state of affairs shows that those on both sides of the death penalty debate are philosophically confused. In this essay, I argue that a true conservative should be firmly opposed to all government-sponsored killing of human beings outside the context of a lawfully declared war. Support for the death penalty, on the other hand, reflects the abiding faith in the goodness and competence of government that is the hallmark of the liberal mindset. Confusion over ideological labels has always characterized American political discourse. A key question in this essay, of course, is how to define the word "conservative." Today there is a great tendency to do this by using purely personal descriptions such as: "A conservative is someone like Ronald Reagan or Newt Gingrigh or Jesse Helms or Barry Goldwater." But this is not particularly helpful. Take Barry Goldwater, for example. The hero of American conservatism in the 1960s, he is now excoriated by "new conservatives" as a "liberal," primarily because of his recent pronouncements in support of the rights of homosexuals. And if labels can become so confusing in a single generation, imagine how confusing they can become over the centuries. Is twentieth century conservatism essentially the same philosophical package once known as nineteenth-century liberalism? Or does modern conservatism more closely reflect the ideal polity of the British liberals of the eighteenth century? For that matter, how do we categorize the twentieth century writings of the great "libertarian" philosopher Friedrich A. Hayek? On the one hand, his 1944 classic The Road to Serfdom has been hailed as perhaps the most eloquent of all attacks on the "liberal" or "socialist" or "collectivist" idea of increasing the political and economic power entrusted to government. But sixteen years later in The Constitution of Liberty, Hayek pointedly included an epilogue entitled "Why I am not a Conservative." So what do we call him today? A "classic liberal"? A "conservative liberal"? A "liberal conservative"? An "economic conservative" and a "liberal individualist"? The possibilities are endless, and it is Hayek himself who best explained the dangers of using conventional, time-bound philosophical labels: The difficulty which we encounter is not merely the familiar fact that the current political terms are notoriously ambiguous or even that the same term often means nearly the opposite to different groups. There is the much more serious fact that the same word frequently appears to unite people who in fact believe in contradictory and irreconcilable ideals. Terms like "liberalism" or "democracy," "capitalism" or "socialism," today no longer stand for coherent systems of ideas. They have come to describe aggregations of quite heterogeneous principles and facts which historical accident has associated with these words but which have little in common beyond having been advocated at different times by the same people or even merely under the same name.

The Death Penalty: A Conservative Perspective

Over the past several decades, no political term has been distorted so much as "conservatism." It has not only been twisted into a simplistic caricature by its opponents; it has been badly used by those who proclaim themselves to be staunch "conservatives." For some, apparently, a conservative is anyone who claims to be one. The best way to rescue such an abused and misunderstood word, I submit, is to (1) identify certain core ideas and principles that reflect the essence of twentieth century conservative thought and (2) apply each of these principles to a contemporary political or social issue. In this instance, the issue is capital punishment, and my contention is that a true conservative should oppose capital punishment.

Distrust of Government

First, and most important, from Edmund Burke in the eighteenth century to Russell Kirk in the twentieth century, conservatives have warned that no government can be entrusted with excessive power over the individual. The conservative hand trembles at the mere thought of unrestrained government power. Conservatives are quick to assert that they, not liberals, are the ones who perceive the benefits of limited government and the dangers of big government. Conservatives believe that government's principal function is to preserve private property and individual freedom, but they worry that the post-New Deal State inevitably moves in the opposite direction -- toward enlarging its police powers and placing restraints on individual liberties. If it is fundamental to the conservative temperament to worry endlessly about using the powers of the modern state to address social problems -- and I submit that it is -- then why would a true conservative support capital punishment? After all, if a government is audacious enough to assert the power to extinguish human life, then what is to stop it from extinguishing all of the other civil liberties for which it ostensibly stands? Apparently this question never occurs to the many Americans who vigorously support capital punishment but who oppose nearly all legislative efforts to control firearms. Don't they realize that if a government is powerful enough to take people's lives, then it certainly is powerful enough to take their guns? Indeed, if the government can take away a human life whenever it feels it has the right and the authority to do so, is there anything that it cannot do to the individual? Strip him of his citizenship. Tell him what he can and cannot read? Take his property and redistribute it to the less fortunate? Force his children to salute its flag, pray to its God, and attend schools in faraway neighborhoods? Arguably none of these events is as catastrophic to the individual -- nor as inimical to the spirit of conservatism -- as is the premeditated taking of life itself. I believe that this helps to explain why every European democracy has done what the United States refuses to do -- abolish the death penalty. Having suffered far more from the ravages of the Holocaust than their American counterparts, Europeans -- conservative and liberal alike -- understand that the death penalty is the prerogative of tyrants. They have come to realize that the best way to prevent holocausts is to make it clear that no one, not even government employees, can participate in the premeditated killing of a human being who poses no immediate threat to anyone else's safety. Europeans apparently understand that the real question in the death penalty debate is not whether we should be entitled to use lethal force when we have a reasonable and well-founded belief that such force is necessary to save ourselves or others from a person who constitutes an imminent or immediate threat to our safety. This is a "no brainer" as far as I am concerned. I can assure you, for example, that I would not hesitate to use potentially lethal force against someone who breaks into my home armed with a gun or a knife and seems intent on using it against me. Strictly speaking, therefore, I am not opposed to the death penalty. A rational, well-ordered society must permit its citizens to use self defense to protect themselves from death or a life-threatening crime. A truly civilized society, of course, also realizes that this right to use lethal violence against another disappears the instant the threat has disappeared. The real question, therefore, is: Should we authorize the government to commit premeditated murder against someone who no longer poses a threat to public safety? Is this not the equivalent of the premeditated slaughter of a hogtied man? Some will argue that an execution really isn't a murder when it is carried out under the authority of a government. But I contend that a government-sponsored execution is far more immoral than the typical murder committed by a private person. The typical murderer, after all, is a mentally disturbed, emotionally impaired person. Like Jeffrey Dahmer, Steven Pennell, Charles Manson, or David Berkowitz, he may not meet a given state's definition of legal insanity, but do any of us really believe that murderers (regardless of whether they hear imaginary voices or eat their victims for dessert) are truly sane, rational, mentally healthy, fully responsible people? Many murderers, in fact, commit their crime in a moment of extraordinary, unpremeditated rage. Even premeditated killers can usually cite at least one mitigating factor -- mental illness, mental retardation, the provocative actions of the victim, the influence of a manipulative co-conspirator, the influence of alcohol or some other drug. The particular factor may not be sufficient to excuse the murderer's behavior or to convince us to reduce his punishment, but at least we can understand his frailties and distinguish him from the rest of us. "He, not I, is 'weak,' 'stupid,' 'sick,' 'pathetic,' 'deranged,' 'inhuman,' a 'wacko,' a 'psychopath,' a 'cold-blooded killer.'" Shouldn't we characterize the government in much the same manner when it plans and carries out an execution? Is it morally justifiable for the state to do what is universally despised when done by an individual? J. Neil Schulman, a well-known conservative writer who opposes governmental efforts to ban guns and state-sanctioned killings answers this question in the negative: Strictly speaking, the State is no more than a group of individuals acting for common purpose. It is hard to imagine how it may rightly do more than the sum of the rights of the individuals comprising that group. How, then, does this transformation -- whereby homicide is justified long after the threat has ended -- occur? Does mere group procedure sanctify killing? If so, how many individuals must be in a group before it earns a license to kill?... Logic dictates that if it is morally justifiable for the State to kill in just retribution, then it must likewise be morally justifiable for other individuals or groups to do so as well -- the Mafia, the Crips, and the Bloods included.

If anything, Schulman's condemnation of the government's right to kill is not strong enough. When members of the Mafia, the Crips, and the Blood kill, we arguably can point to the influence of a "criminal culture" or a "gang mentality," or to the effects of decades of poverty, discrimination, and hopelessness. The government has no comparable excuse for behaving as a gang or a lynch mob. Moreover, the hit men of the nation's mobs and gangs arguably dispatch their enemies in a far more humane manner than does the government. As Camus pointed out: [Capital Punishment] is... the most premeditated of murders, to which no criminal's deed, however calculated... can be compared.... For there to be an equivalency, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.

No doubt some will argue that the flaw in this argument is that there are some murderers who do constitute an ongoing, if not immediate, threat to public safety. At least one of the men executed in Delaware over the past few years seems to fit into this category -- James Allen Red Dog, a repeat offender who, if not "put down," might have escaped from prison or attacked another inmate or staff member. But does anyone truly believe that a nation that can send men to the moon and bring them back alive cannot devise humane ways to keep dangerous people behind bars and keep them from hurting anyone while they are there? For that matter, it is important to know that, contrary to the popular wisdom, killings inside prisons are very rarely committed by convicted murderers. The vast majority of prison homicides are committed by inmates who have been convicted of burglary, robbery, or larceny. Similarly, murderers released from prison are far less likely to commit a new crime than thieves, burglars, robbers, or any other type of offender. Shall we kill all of these people in reliance upon our questionable ability to predict future dangerousness? In the face of overwhelming evidence that we cannot, in fact, predict future dangerousness with any reliability, the conservative course is one of prudence. Must we incapacitate the violent offender? Of course. But it is not "conservative" to kill all or even some of those who might commit some future act of violence. Conservatives, as Russell Kirk reminds us, are guided by the "principle of prudence"; they judge a public policy not by its temporary advantage or its popularity, but by its long-term consequences. Accordingly, the true conservative reasons that if we can achieve our incapacitative goals by long-term imprisonment, a method that (1) gives us the opportunity to correct the inevitable errors that occur in the criminal justice process and (2), as we shall see, is considerably less burdensome to the American taxpayer, then this surely is the prudent path to follow.

Skepticism Toward Governmental Competence

Another core belief that unites virtually all conservatives is that government can't do anything well. Whereas liberals tend to be optimistic about the government's capacity to redress social ills and make things better for the average person, conservatives routinely question the intelligence and competence of government officials. When it comes to the death penalty issue, for example, it is the conservative mind that worries most about "bleeding heart" judges and juries and "easily conned" prison officials and parole board members. It is because of the naiveté and stupidity of such people, we are told, that the James Allen Red Dogs of the world are free to kill and kill again. But by the same token, if there is good reason to be skeptical about the common sense and good judgment of those in positions of public trust, shouldn't there also be good reason to be especially concerned that these same people will also make mistakes that lead to the execution of the innocent? For the bona fide conservative, the answer to this question can only be "yes." As Russell Kirk again reminds us, conservatives "are chastened by their principle of imperfectibility." They know that human beings suffer irremediably from lapses of reason, logic, intelligence, credulity, honesty, and decency. They know that even the best police officers and prosecutors can sometimes find themselves so caught up in the righteousness of their cause that "little lies" become morally justifiable. They know that even the most sincere witness can make an honest mistake with horrible consequences for the accused. In short, they know that as a result of inherent human fallibility -- both moral and perceptual -- the process of determining guilt in our courts will always be plagued by instances of mistaken eyewitness identification, perjured testimony, coerced confessions, laboratory errors, ignored (or hidden) exculpatory evidence, and confused, inattentive, or prejudiced jurors. As it turns out, the conservative's concerns about the competence of government and the limitations of human reason are well-founded -- and well-documented -- in the context of capital punishment. There is now a voluminous literature on miscarriages of justice in the administration of the death penalty. Legal scholars have carefully documented hundreds of twentieth-century cases in which wrongful convictions in capital cases have been proved beyond any reasonable doubt (and many others in which the preponderance of the evidence now indicates that a capital defendant was erroneously convicted). One of the more recent studies on miscarriages of justice in capital (and potentially capital) cases has been published by Michael Radelet, Hugo Adam Bedau, and Constance Putnam. In the new and expanded edition of

In Spite of Innocence: Erroneous Convictions in Capital Cases, Radelet, Bedau and Putnam painstakingly chronicle 416 cases in which innocent men and women became trapped in the cogs of the criminal justice system, and through inexperienced or incompetent defense attorneys, overzealous prosecutors, false witnesses, or racist juries, found themselves on death row. Many of the cases are truly bizarre, including seven cases in which the "murder victim" showed up alive after a conviction had been obtained. In many cases death-row inmates, after many years and many close brushes with death, established their innocence on appeal -- sometimes only as the result of the persistent efforts of a courageous police officer, reporter, or lawyer who simply refused to let the case -- or the inmate -- die. In other cases, death-row inmates received executive pardons or commutations when, after many years of imprisonment, luck and circumstance led to the disclosure of new evidence which exonerated them. However, In Spite of Innocence also tells the stories of 23 victims of the worst and most egregious error any government can make -- 23 cases in which the evidence now indicates that innocent people went to their deaths knowing all too well that no government is wise enough or pure enough to be entrusted with the power to kill. Without doubt, there are many more factually innocent Americans who have been sent to their deaths; once an execution has taken place the authorities rarely continue to investigate the case. Perhaps this is why the magnitude of the problem of wrongful capital convictions constantly seems to elude the American people. Whereas it took only a few wrongful executions to convince the people of England that no punishment should be irreversible -- a prudent and conservative approach -- Americans seem to miss, ignore, or discount the true horror stories of unjust convictions that appear with alarming regularity in the nation's leading newspapers. Perhaps the most chilling finding in In Spite of Innocence is that the problem is steadily growing worse, in part because an increasingly activist (but not truly conservative) Supreme Court, led by Chief Justice William Rehnquist, has chosen to rewrite the federal habeas corpus statute. Now that the Court has reinterpreted the statute so as to accomplish by judicial fiat what Congress refused to do, it has become extraordinarily difficult (though no less expensive and time consuming) to establish innocence on appeal or to overturn even the most egregious state court violations of federal constitutional rights. Indeed, this was one of the factors cited in a 1993 report by the House Judiciary civil and constitutional rights subcommittee that studied the cases of 48 people who have been released from death row since 1973 as a result of "significant evidence of their innocence." One development that may help to convince Americans to take their heads out of the sand on this issue is the emergence of DNA testing. In the past three years alone, there have been dozens of cases in which DNA testing (often conducted over the vigorous objections of prosecutors) has exonerated people who had been wrongfully convicted of rape or murder. Of course, DNA tests will not help the vast majority of the 3,000 Americans scattered across the nation's death rows. In most of these cases, DNA evidence was either not collected or not preserved by the authorities. But in the cases in which DNA evidence has been preserved in the aftermath of a conviction and in which an appellate court has granted the defense's motion to test the evidence, the results have been astonishing: approximately one-third of all post-conviction DNA testings have led to the release of wrongly convicted inmates. Not only does the government erroneously condemn to death people who turn out to be factually innocent, it also metes out death sentences to people who have been victimized by significant legal and constitutional errors. A recent study by the American Bar Association found that 40% of the state death-row inmates who were fortunate enough to overcome the Supreme Court's many barriers to obtaining a full and fair hearing of their constitutional claims in a federal court were successful in winning reversals of their convictions. Similarly, the system by which the government chooses people for death is not only mistake prone; it is so saturated with standardless and arbitrary discretion that it inevitably results in death-sentencing discrimination against minorities and the poor. The new death-penalty laws upheld in Gregg v. Georgia were intended to ensure that judges and juries were constrained by legal guidelines and not distracted by race and class factors when meting out death sentences. However, the intelligent conservative, ever alert to man's fatal flaws and especially concerned about the self-righteousness, excessive zeal, and arrogance of those to whom the government has given the power to take human life, knows in his heart that the death penalty will never be meted out solely -- or even mostly -- on the basis of the severity of the crime, the defendant's culpability, and the defendant's prior record. While wealthy defendants like O. J. Simpson nearly always escape the death penalty, deathrows continue to be filled by the poor and the powerless. The vast majority of the nation's death-row inmates -- black, white, or Hispanic -- were too poor to afford private counsel and had to rely upon an overworked and underfunded state-supplied attorney. And there can be no doubt that race continues to play a dominant role in American death-sentencing practices. For example, a comprehensive study of 2000 murders that occurred in Georgia during the 1970's revealed that defendants charged with killing white victims were 4.3 times more likely to receive a death sentence as those whose victims were black. Moreover, the death penalty had been imposed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 3% of the cases involving white defendants and black victims; and 1% of the cases involving black defendants and black victims. Similar results have been obtained in nearly every published post-Gregg study of state and federal death-sentencing practices. The capricious, discriminatory, and crazy-quilt pattern of death-penalty sentencing appears to be a national phenomenon. In fact, the death penalty remains largely a southern phenomenon. As of January 1994, 207 of the 227 post-Gregg executions had been carried out by 13 southern states, 71 in Texas alone. It is absolutely clear that local idiosyncracies, community prejudices, and regional attitudes play a much more important role in determining who gets the death penalty than do the heinousness of the crime or the defendant's criminal record. To the conservative mind -- a mind that always strives to place moral and intellectual values above man's baser nature and his tendency to seek governmental approval for his irrational, prejudicial, and vengeful impulses, this state of affairs is intolerable.

Common Sense

Conservatives, from Thomas Paine to William Buckley, have long praised the vitures of common sense. And common sense is all that is needed to debunk what is the most frequently cited justification for capital punishment -- deterrence. Again, for the thinking conservative, this is a "no brainer." Obviously the death penalty will deter a good many serious crimes including murder. (Just imagine how many more murders would be committed if the maximum penalty for murder was a small fine.) But the real question, of course, is not whether the death penalty deters murder; it is whether the death penalty deters murder any better than does lengthy (or life) imprisonment in a penal facility. That is the real choice judges and juries usually must make in a capital trial. Common sense tells us that a potential killer may be so angry, insane, irrational, or out of control in a given situation that he simply cannot be deterred. Indeed, his desire to kill may stem from such a deep hatred of his victim and himself that he wants to kill both his victim and himself. This helps to explain why so many murderers attempt to commit suicide after dispatching their victim. Equally important, what does common sense tell us about a potential murderer who is relatively sane, rational, and not inclined to want to endure prolonged pain, agony, and suffering? No conservative who values his reputation for common sense will try to convince us that such a person would be likely to reason that he will go ahead with his murder in a state where he faces only a lifetime behind bars, but that he will not dare to murder in a state where he faces the death penalty. If our hypothetical "rational potential murderer" also happened to be well-informed about the overcrowded and dangerous conditions in America's prisons, he might very well choose to commit his murder in a strong pro-capital-punishment state, as did Ted Bundy in moving from Colorado to Florida. This is another instance in which all of the research evidence supports the common-sense perspective of the thinking conservative. Hundreds of studies have been published in scientific journals, most of which either (1) compare a state's execution rate to its homicide rate; (2) compare the homicide rates in death-penalty states with the homicide rates in lengthy-imprisonment states over the same time period; or (3) examine how homicide rates changed in a given state when it abolished and/or reinstated the death penalty. The evidence from all of these studies is overwhelming. There simply is no scientific evidence that the presence of the death penalty -- in law or in practice -- deters murder any better than does lengthy imprisonment. In fact, a growing body of research indicates that death-penalty states have slightly higher homicide rates than do lengthy-imprisonment states. For example, using a sophisticated time-series analysis that controlled for war, economic depression, seasonality, and other factors known to affect murder rates, sociologists William Bowers and Glenn Pierce documented that, on the average, each of the executions carried out in New York State between 1907 and 1963 added a net increase of two murders to the total committed over the next three months. Similarly, a 1994 study of the effect of resuming executions in Oklahoma in 1990 showed an abrupt increase in the rate of argument-related murders in which one stranger kills another. Such findings are in line with the psychology of homicide. People on the fringe of sanity -- the many murderers who feel that they have been betrayed, dishonored, or humiliated by another person -- receive the wrong message from a publicized execution. Such people are likely to identify with and assume the role of the state -- the executioner -- and not the executed offender. For the severely mentally disturbed offender, the message of a state-sponsored execution is not one of deterrence; it is one of lethal vengeance against those who have "done him wrong."

Fiscal Restraint

One of the hallmarks of contemporary conservatism is fiscal restraint. The conservative mind recoils at the thought of wasting millions of taxpayers' dollars on programs that don't work. There is no better example of a wasteful, high-cost, no-benefit governmental program than our current capital-punishment program. Like the issue of deterrence, this is a question that has been studied repeatedly, thoroughly, carefully, and in many different states. In Florida, each execution is costing the state $3.2 million, six times more than it would cost to incarcerate a person for life with no parole. Texas does slightly better, spending $2.3 million per execution, about three times the cost of imprisoning someone at Texas' highest security level for 40 years. A recent study estimated that financially strapped California could save a minimum of $90 million each year by abolishing capital punishment. Unless we adopt the execution systems of Iraq, Iran, or China (which no true conservative would advocate), the heightened due process required in the pre-trial, trial, and post-trial stages of a capital case will always require more money that it takes to lock up the offender for life -- even allowing for his appeals. Conservatives should shake their heads in disgust when they learn that by 1988 Florida had spent $57.2 million to execute 18 people while a 1988 budget cut of $45 million for the Florida Department of Corrections forced the early release of 3,000 inmates. But the government officials of Florida have nothing on their counterparts in New Jersey, which laid off more than 500 police officers in 1991. At the same time, New Jersey was implementing a capital-punishment system that will cost taxpayers $16 million per year, more than enough to hire 500 police officers at a salary of $30,000 per year. As time goes on, concerned conservatives will become increasingly reluctant to allow the death penalty to siphon off scarce resources that could be used to strengthen the police, courts, and correctional agencies.

Conclusion

Space limitations preclude a longer and more detailed discussion of the many canons of conservative thought that weigh heavily against capital punishment. I have thus limited this essay to four core principles of contemporary conservatism -- distrust of government, skepticism toward governmental competence, common sense, and fiscal restraint. Although not every aspect of conservative theory leads directly to a position against capital punishment (i.e. the conservative's adherence to custom or his respect for legislative majorities), I contend that most of the key principles of modern conservatism, when applied logically and consistently by intelligent conservatives, can only lead to repudiation of the death penalty. Every other western democracy has abolished the death penalty, and capital punishment is a dying institution in most of the free world. It is time for America's thinking conservatives to make it clear that conservatism stands not for mean-spirited mindless vengeance, but for liberty, limited government, common sense, and cost-effective policies. If they can do so, conservatives may yet help to convince their fellow Americans to renounce capital punishment as dangerous, useless, overly expensive, and self-defeating.