The State and Death
On the 16th of August in the year 1660, in the town of Chipping Campden in England, a man named William Harrison left his house to go for a walk. Mr. Harrison disappeared, save a few articles of slashed and bloody clothing. Following a convoluted series of pleas and trials (including one offered and then retracted guilty plea), three servants were charged with, convicted of, and hanged for the murder of Mr. Harrison. Then, in 1662, William Harrison came home. His story of his disappearance wasn’t very believable, but one thing was abundantly clear: he was very much alive, so the three people executed for his murder hadn’t killed him.
The earliest hard evidence of encoded death penalty laws enforced by a state actor dates to the 18th century B.C. and Hammurabi of Babylon. There were 25 different crimes punishable by death. In the 7th century B.C. Draco of Athens just went ahead and made everything punishable by death, although in his defense the Athenians did ask him to do it (he was subsequently ostracized and driven out of Athens, proving that The People have always been fickle). The Judeo-Christian tradition also obviously has historical and religious justifications for the death penalty. Modern America’s use of the death penalty, as rare as it is today in historical terms, is keeping with what has been considered a societal norm in most places at most times. This is not, however, a very compelling argument for its continued use.
The state of Arkansas, in its haste to make hay while the sun shines, has brought the death penalty to the political fore in a way that it isn’t much anymore in America. The conventional wisdom is that people on the Right will be for the death penalty, those on the Left will be against it, and that is still largely true. But support for the death penalty on the Right offers a glaring contradiction beyond any moral or religious argument: why, if you distrust the government to the extent that so many on the Right purport to, would you trust the government to get the death penalty right?
This contradiction actually applies to the justice and legal systems as a whole. Most police officers, prosecutors, and judges are undoubtedly good citizens just trying to do their jobs. But so are most people at the DMV. It doesn’t necessarily make them above reproach, or even particularly competent. The idea that being reflexively in favor of law and order as a “conservative” principle in any traditional understanding of the term is to lose sight of the fact that those police officers, prosecutors, and judges are, in fact, the government. They should frankly be viewed with the skepticism traditional conservatives view any arm of the government. And they should certainly be viewed with the utmost skepticism when the question involves the state taking the life of a citizen.
Barring a Constitutional amendment banning it, states have the right to carry out the death penalty if their voters so wish. But at some point, it became, like everything else in America, a purely political proposition. Voters tend to believe that their side, the people they’ve elected, will get it right. For politicians in red states or conservative districts, being against the death penalty means you’re soft on crime. That these politicians get elected by decrying government corruption, ineptitude, and waste is an irony seemingly lost on most voters. Skepticism of the government should demand that we are skeptical of all government, not just those aspects of which we disapprove.
Which brings us back to Mr. Harrison. His reappearance and the subsequent realization that the authorities had executed three innocent people is said to have led to the English common law principle of corpus delicti, literally “body of the crime.” Literally needing a body to convict of murder actually persisted well into the 20th century in the English-speaking world. Yes, some guilty people undoubtedly escaped justice. But (getting back to that Judeo-Christian tradition) as Maimonides put it, better to acquit a thousand guilty persons than to put a single innocent one to death. And where the government is concerned, do you really believe they only screw it up one time in a thousand?
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