Capital Punishment

The issue of capital punishment divides libertarians just as it does other Americans. Debates among libertarians and others generally fall into two areas: the abstract question of whether the state may ever legitimately puts its citizens to death, and the more specific question of whether capital punishment is just and fitting as it is actually implemented in the American system of criminal justice.

Opponents argue that capital punishment is cruel and unnecessary, that juries in capital cases are almost inevitably unrepresentative of the community and skewed toward vengeance, that the risks of erroneous conviction and execution are unacceptably high, and that the breadth of discretion in charging decisions by prosecutors and sentencing decisions by juries renders capital punishment arbitrary and unfair, if not outright biased.

Proponents maintain that capital punishment is necessary to provide adequate retribution and vindicate the community’s sense of decency in the face of particularly heinous crimes. For proponents, any complications or inequities in the application of capital punishment are manageable and similar to concerns that might be raised about other necessary aspects of the criminal justice system. In addition, some proponents also argue that capital punishment acts to deter crime.

Libertarians can be found on both sides of these disputes. But they tend to approach questions regarding capital punishment with a common language and sensibility, emphasizing the need to defend individual rights. A fundamental question that divides them is whether capital punishment should be viewed as an extreme exercise of state power in derogation of individual rights or, instead, as a vindication of the individual’s right to retribution to be imposed in appropriate cases by juries as representatives of the community.

Some libertarians view capital punishment as an inherent abuse of state power. They argue that the execution of prisoners is never necessary to protect the public because the state can instead incapacitate them by imprisonment, for life if necessary. The use of capital punishment is therefore an overreach. If libertarians do not trust the government to handle tax dollars responsibly—so the argument goes—how can they entrust the government with the power of life and death over citizens?

The alternative view is that capital punishment is a legitimate and sometimes necessary vindication of the rights of victims, their families, and community norms of justice. In light of this understanding, the power to impose capital sentences may be entrusted to the state. As the philosopher Robert Nozick has argued, libertarians believe that individuals should entrust power to the state only for certain narrowly defined functions that would not be well handled through private agreements or self-​help. Enforcement of laws against violence is the quintessential example of such a power that could be entrusted to government. In addition, with the important exception of self-​defense, self-​help in response to violence is inconsistent with well-​ordered liberty and would lead to chaos, misdirected or disproportionate retaliation, and reverberating violence.

However, if individuals are to entrust the power to punish violence to the state and surrender their right to self-​help, the state is obligated to provide justice that would satisfy widely shared norms and provide adequate retribution. For some crimes, particularly premeditated murder, only capital punishment may satisfy those requirements. According to proponents, failure to apply capital punishment in such extreme cases undermines the legitimacy of the state and would lead to self-​help.

David Bruck, a lawyer who specializes in defending prisoners on death row, has aptly summarized much of the sentiment in favor of capital punishment:

Some proponents argue that, in addition to affording necessary retribution, capital punishment deters crime. That argument has intuitive appeal, but, in the minds of many, has never been conclusively established through empirical evidence. On close examination, the apparent logic of the argument also fades in some commonly posited scenarios. For example, economists Richard Posner and Gary Becker argue that capital punishment raises the “price” of murder and therefore should be expected—all other things being equal—to lower the number of murders through what they call “marginal deterrence.” That reasoning appears strongest for scenarios in which a criminal may engage in cost–benefit analysis (e.g., in deciding whether to kill witnesses at the scene of an armed robbery). Without the fear of capital punishment, the criminal arguably has little incentive to leave witnesses alive, particularly if he has a prior record and would likely face life sentences for either robbery or murder.

One problem with this line of reasoning, however, is that a murder would likely substantially increase the law enforcement resources devoted to apprehension of the criminal, when compared with an armed robbery. It is in fact a complex question whether and when a rational and well-​informed criminal would conclude that killing witnesses would lower his risk of apprehension.

The evidence regarding deterrence is likely to remain too murky to persuade the unpersuaded either for or against capital punishment. Positions on capital punishment are more likely to be based on subjective values. For some libertarians who believe that capital punishment is justifiable in the abstract, practical and institutional complications may counsel against its use in the American criminal justice system.

One institutional complication with capital punishment was pointed out more than 150 years ago by the libertarian writer and lawyer Lysander Spooner. In the American system of justice, contested felony criminal cases must generally be decided by juries representing a fair cross-​section of the community. However, within almost every community, there is strong (even if minority) sentiment against capital punishment. Therefore, the only reliable way for the state to implement capital punishment is to exclude opponents of capital punishment from juries in cases where capital punishment is sought. That was done in Spooner’s time, and is done today, through a process now called death qualification, which allows the prosecution during jury selection to strike all prospective jurors who admit to serious qualms about capital punishment that might prevent them from implementing it. The result, according to Spooner, is that in cases where capital punishment is sought, punishment (and even guilt) is not decided by juries representing a fair cross-​section of the community. Instead, juries will be unrepresentative, filtered to include only the portions of the community most bent on vengeance.

More than a century after Spooner wrote about this issue, the U.S. Supreme Court, in the 1986 case of Lockhart v. McCree, found no per se constitutional violation in using death-​qualified juries to decide guilt and punishment in capital cases, despite some statistical evidence offered to show that such filtered juries are more likely to convict than more randomly selected juries. But concerns about the fairness of death qualification remain. In theory, it would be possible for a court to avoid death qualification for a jury deciding guilt in a capital case by impaneling two juries, one to decide whether the defendant was guilty, another to decide whether the penalty should be death. But even then, the jury deciding whether to impose capital punishment would represent a filtered cross-​section of the community, so some of the concerns raised by Spooner would remain.

Proponents tend to see these concerns as hypertechnical and overblown. Even if death qualification were to filter some prospective jurors, that would not show that the remaining jurors would be unfair. Indeed, proponents argue, the ordinary process of jury selection, called voir dire, could still serve to weed out any jurors who might be unduly biased toward the prosecution or otherwise unfair.

Another practical concern for some libertarians with regard to capital punishment is the risk of erroneous convictions. This concern has provoked increasing interest since the recent advances in the use of DNA evidence have resulted in a number of exonerations of prisoners on death row, as well as others in noncapital cases. DNA testing can in some cases show, to a virtual certainty, who did or did not leave blood or other bodily residues at a crime scene.

To date, DNA evidence has not shown that an executed prisoner was innocent. But that could be in part because of state resistance to DNA testing in “closed” cases, where an execution has already occurred, and the lack of resources devoted by opponents of capital punishment in contesting cases where there was no longer a living client. However, some argue that exonerations through DNA show that the system is working and has the capacity to correct errors before they become fatal.

Some proponents of capital punishment argue that, even if the risk of erroneous conviction and execution cannot be entirely eliminated from capital cases, a rare wrongful execution would be an acceptable price to pay for the benefits of maintaining capital punishment as a sanction in the criminal justice system. Opponents maintain that capital punishment is not necessary to a well-​functioning criminal justice system, as shown by the experience of other Western democracies, and therefore is unacceptable if there is any significant risk of executing the innocent.

Some oppose capital punishment because of concerns about possible arbitrariness in its application, in addition to possible racial or other biases. This purported arbitrariness led the U.S. Supreme Court to strike down all existing capital punishment statutes in 1972 in Furman v. Georgia. Up to that time, juries had often decided whether to impose the death penalty with no clear criteria or guidance. Justice Potter Stewart concluded that the rare and seemingly random applications of capital punishment were “cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

In 1976, the U.S. Supreme Court approved some state-​level capital-​sentencing schemes that were drafted in response to Furman to provide juries with more guidance. Since then, much jurisprudence regarding capital punishment has focused on refinements in the selection criteria provided to juries to ensure that their decisions somehow consider all mitigating circumstances relevant to the offender and the crime and at the same time are sufficiently structured through instructions from the judge to prevent caprice. As Justice Clarence Thomas pointed out in the case of Graham v. Collins in 1993, this effort may be self-​contradictory and ultimately doomed to failure. How can jury decision making “consider everything” in the case at hand and yet also be channeled and rationalized through guidance from the court? However, a majority of the U.S. Supreme Court continues these efforts through case-​by-​case decisions about the adequacy of the evidence and instructions provided to juries to decide whether to impose the death penalty.

Over the years, the Supreme Court also has confronted claims of systemic racial bias in application of the death penalty. In Coker v. Georgia in 1977, the Court held that capital punishment was an unconstitutional sanction for rape. Although the Court reasoned that the punishment was disproportionate to the crime, use of capital punishment for rape also had been widely condemned as disproportionately applied to black offenders who had attacked white victims. However, in McCleskey v. Kemp, decided 10 years later, the Court refused to overturn a death sentence despite evidence offered to show that capital punishment was more likely to be applied in cases where the victim was white. Without evidence of actual bias in the case at hand, the Court was unwilling to act on alleged systemic bias.

In 1965, more than half of the American public opposed capital punishment in all circumstances. Support steadily rose after that and peaked in the mid-​1990s, when more than 75% supported capital punishment in at least some circumstances. Since then, support has declined, but not dramatically, to a fairly steady level of between 60% and 70% of the population over the last 10 years. The recent drop in support has been accompanied by drastic drops in death penalties imposed by juries and actual executions performed by the states. Death sentences by juries peaked at 276 nationwide in 1999, but were down to 114 in 2006. Executions peaked at 98 in 1999 and declined steadily to 53 in 2006.

Opponents attribute the drop in sentences by juries to waning support for capital punishment in general. They maintain that even if a majority of the country nominally supports capital punishment, far fewer are actually willing to impose it when confronted with the responsibility as jurors. Proponents attribute the drop in capital sentences to the overall decline in violent crime.

It is possible that that both sides are right, in that drops in violent crime may have caused a softening in public attitudes toward capital punishment, which may in turn have caused reluctance to impose the sanction even by death-​qualified juries. If that is the case, then a future rise in violent crime may cause public support and juror imposition of capital punishment to increase again.

Further Readings

Bedau, Hugo Adam, ed. The Death Penalty in America: Current Controversies. New York: Oxford University Press, 1998.

Bruck, David I. “Does the Death Penalty Matter? Reflections of a Death Row Lawyer.” Reconstruction 1 no. 3 (1991).

Goertzel, Ted. “Capital Punishment and Homicide: Sociological Realities and Econometric Illusions.” Skeptical Inquirer 28 no. 4 (July/​August 2004).

Nozick, Robert. Anarchy, State, and Utopia. New York: Basic Books, 1974.

Scheck, Barry, Neufeld, Peter, and Dwyer, Jim. Actual Innocence: Five Days to Execution, and Other Dispatches from the Wrongly Convicted. New York: Doubleday, 2000.

Spooner, Lysander. The Illegality of the Trial of John Webster. Boston: Bela Marsh, 1850.