Due Process and the Death Penalty

At the Library of Law and Liberty Dalrymple declares his opposition to the death penalty, though as usual he goes to great lengths to understand dissenting arguments, and accepts some of them:

…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….

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.

2 thoughts on “Due Process and the Death Penalty

  1. APL

    I have to confess ambiguity about the death penalty, but I do not subscribe to Darymple’s view that “… for the law to put someone to death wrongly is an injustice so monstrous as to undermine trust in law itself.”. many times the various arms of the law and state (police, guards, military) wrongly put people to death based on very little evidence and spur of the moment decisions. In response, we rarely ask that the deadly force be prohibited. Indeed, most of the victims do not even get the benefit of counsel, trial, and sentencing by a jury of peers. The entire determination of life or death is determined by a single or small handful of state agents armed with deadly tools but very few of the facts in the case and little chance for examination or reflection. After cases of wrongful death, there are appropriate (if reluctant) apologies to family members and so forth. Some reassessment of procedures or techniques. But we still will allow deadly force. So on one hand we allow one arm of the state (police and so forth…) to de-facto execute citizens, but we will not allow another arm of the state (judiciary) to execute citizens even with greater information gathering, sober reflection, and ample time – lest an innocent person loses their life. Wrongful death at the hands of police is not the same as a simple automobile accident, it is done deliberately. The purpose is to deprive the citizens of life in order to protect or safeguard others. In many cases, it can be shown that victims of fatal police shootings posed no danger whatsoever. So we tolerate a certain number of innocent deaths to enforce the law and maintain community order from one arm of the state (police) but not from the other (judiciary). Either the wrongful death “undermines trust in the law itself” or not.

  2. TMay

    There are cases that come to mind where the death penalty seems appropriate, where there are plenty of victims and plenty of witnesses. The beheading of Lee Rigby in London is one such case. The armed robbery and kidnapping and assault and battery of Dr Petit who survived to testify, and the armed robbery and kidnapping and rapes and burning to death of the Petit mother and two daughters while conscious, and the burning down of the house to wipe out physical evidence, in Conn, is another such case. (The Petit crimes started with the motivation to get money.) The sexually sadistic murders of the children in Breslan Russia by Chechen terrorists starting on the first day of school is another. The Fort Hood Massacre in Texas where the policemen shot the man in the legs who was doing the shooting (labeled “workplace violence” even after the crime in order to be PC, and to help Obama get re-elected), is another. (They dilly-dallied for three years about whether he could grow a beard. They created a new diagnosis just for him called “pre-traumatic stress disorder”.) I don’t see how the concept of mistaken identity can be brought up as a reason to not have the death penalty in such cases. I don’t understand in the cases I mentioned how the argument of mistaken identity can be brought up as a reason to not have the death penalty. However, in Massachusetts, they felt themselves so morally superior that they did away with the death penalty, and felt the pain of the murderer, and saw the humanity in him, and basically suffered from a lack of imagination about murderers who would intentionally blow up children at a sporting event, laying the bomb at the feet of a child, and felt a lack of empathy for victims, and then had to twist law to come up with an excuse for a possible execution for the surviving Chechen-American brother of the Boston Marathon Massacre. For that crime, I think it would be fitting for Mass to have to pay taxes and to house and feed and guard and provide medical treatment to the surviving brother for the rest of his life, and pay for both sides of his appeals, and listen to his whining about being bored, and watch girls fall in love with him, and perhaps one would marry him, and have conjugal visits, and listen to the diatribes of his mother, so that people can have the experience of living with the effect of the decision that they made that all murderers should live, and thereby Mass can have some integrity. They thought that people who wanted to kill murderers were mean and unfeeling. Mass should live by their laws and they should enjoy it too, because he is the symbol of Mass. Perhaps they can even see him released early, following the liberal mindset. He should be a living reproach. If they don’t like what they decided on, then they can change it for the future. He has not been tried yet, and not been convicted yet. He is innocent until proven guilty. Prosecutors had to twist laws to find some excuse for finding a law that carried the death penalty with which they could charge him. The Obama administration was so disappointed to find that it was not a veteran who had returned to the US, nor a skinhead. He was given his Miranda rights about staying quiet, and he clamped up about possible co-conspirators and links and people who might have lent support and training and contacts. Four out of five of the cases that came to mind were done in the name of their god. There are plenty of vicious murders.


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