Pilgrim Pathways: Notes for a Diaspora People

Incarnational Discipleship

A (Politically) Conservative Argument Against the Death Penalty

In the wake of Illinois’ abolition of the death penalty, conservative attorney and author Scott Turow has written an op-ed in the Chicago Tribune called “The Right Has Reason to Applaud.”  In the article, Turow advances three (3) politically conservative arguments for abolishing the death penalty.

  1. Capital punishment is one more government program that has failed.  Those of us who are not conservatives can safely ignore the conservative cant that implies that “government programs” usually or always fail–and that therefore we should just do away with government programs (and as much government) as possible.  Obviously, if one believes that government exists to make lives better, to promote the common good and help people do together that which they cannot easily do as individuals, then programs and policies are going to be experimental–and can fail.  Goals can need to be accomplished via different means.  A shift from an impractical approach to good ends (in this case, criminal justice) to a better one is no indictment against government. So, liberals, progressives, moderates and just people with common sense can safely ignore the “government is bad” conservative screed.  But we have every reason to agree with Turow that the death penalty is a “government program” that has failed–and failed rather spectactulary.  As Turow says, the Supreme Court struck down the death penalty (as then practiced) in 1972 as an unconstitutional violation of the 8th Amendment’s ban on “cruel and unusual punishment,” due to the arbitrary and discriminatory way in which it was applied (Furman v. Georgia).  States scrambled to rewrite their capital punishment statutes and in Gregg v. Georgia (1974), the Supreme Court ruled that the death penalty could be Constitutional if it could be applied in a just and fair manner.  Turow notes that this has been a giant failure of an experiment as states have completely failed to apply the death penalty in a just and fair manner.  Instead of death being the sentence for the worst crimes, it has usually been meted out to those represented by inept attorneys, usually  overworked and public defenders with little time and few resources to devote to the case  or court appointed attorneys  with little motivation.  Race continues to be a factor in who is and is not executed, especially the race of the victim. . And, as Turow found when he worked for then-Gov. George A. Ryan (R-IL), the innocent still end up on death row in a frighteningly his percentage of cases.
  2. The death penalty is a huge waste of taxpayer money.  As Turow notes, the death penalty is far more expensive than life imprisonment without parole.  This may be counterintuitive, but is nonetheless true.  It takes longer (and therefore costs more money) to prepare for a capital case.  All capital cases must go through two stages, one for finding of guilt and one for sentencing–and that costs money.  Usually, those indicted for capital crimes cannot be released on bail while awaiting trial because of flight risks and so must be housed at state expense.  Security for capital trials is higher.  Prisoners on death row must be housed separately from the general population and either given separate exercise facilities or separate times in the exercise yard while awaiting execution and this is expensive.  The appeals process, without which far more innocent people would be executed than even currently, is both expensive and time consuming–so that the average length of time from a death sentence to execution in the U.S. is ten years.  Conservatives concerned about saving taxpayer money from waste and inefficiency should naturally oppose the death penalty in the U. S. system of justice.  Thurow agrees that if the death penalty could be shown to save lives, by deterring violent crime, it might be worth it.  But there has been no credible study showing deterrence and many showing just the opposite, that violence increases in the wake of executions throughout the area in which the execution is published.  States and nations without the death penalty typically have lower violent crime rates than jurisdictions with the death penalty.
  3. The death penalty is incompatible with the conservative notion of limited government.  Here is a very strong argument that is seldom heard in conservative circles, surprisingly.  The conservative-libertarian view that the powers of government must be strictly limited supports drawing a clear line prohibiting a democratic government from ever taking the lives of its own citizens.  That way, a regime that vanquished its political enemies or executed despised minorities, no matter the legal rigamarole, as an outlaw.  (As a democratic socialist, I’ve always said that libertarians, while disastrous in their economic views, are excellent partners in the struggle for civil liberties.)

Here is one progressive who hopes that Turow’s arguments find a wide audience with his fellow conservatives.  As a Christian, I find the death penalty to be deeply immoral–and I welcome the help of political conservatives in the struggle to abolish this evil from our midst.

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March 19, 2011 Posted by | capital punishment, civil rights, ethics, human rights, political philosophy | 5 Comments