Why Supporting the Death Penalty Goes Against Conservative Values

Back in the 1970s and 1980s, crime rates were spiking in the United States. In response, both the Left and Right in the U.S. took a "tough on crime" approach in which tougher sentencing was seen as a solution to a dire problem. The strict sentencing and mass incarceration have shown their uglier unintended consequences, which would help explain why prominent figures on the Left and Right have been denouncing "tough on crime" policy in recent years. As nice as it is to have clarity on such an important issue, there is one issue within criminal justice policy that is lagging a bit: the death penalty. At the same time, support for the death penalty has declined from its 83 percent peak in 1993 to 54 percent in 2021, according to Gallup. The Pew Research Center puts support for the death penalty in the U.S. at 60 percent. In any case, there is still a fair majority that supports the death penalty. 

That is why it was intriguing to come across an article published earlier this month from Left-leaning news site Vox about how Republicans are becoming increasingly anti-death penalty. Looking at the Pew findings (see below), there remains a staunch majority of Republicans who support the death penalty, at 77 percent. Such red states as Kentucky, Georgia, Missouri, and Kansas are looking to curtail or eliminate the death penalty (Vox). The Utah legislature made an attempt to repeal the death penalty, although it was rejected by the majority of the state legislature. 

This trend on the Right to be more anti-death penalty is captivating because being pro-death penalty has been a notoriously conservative stance as long as I can remember. As such, this particular question wanted me to dig into why this is happening. I am sure that there are those on the Right who have done some soul-searching and realizing something incongruent with their other conservative beliefs and their position on the death penalty. I am neither speaking as someone who is conservative nor is pro-death penalty. At the same time, I used to be conservative and I used to be pro-death penalty. I understand the arguments in no small part because I used to make them myself. That is why I want to look at the death penalty from a conservative vantage point and outline facets that show why the death penalty is at odds with conservative values. 

1. Innocence and Error Rates. The government is run by people, and thus, is prone to error because humans are fallible. Here are some payment error rates from government programs: 25 percent error rate with the Earned Income Tax Credit [EITC], 21.4 percent for Medicaid, and a 10.7 percent improper payment rate for unemployment insurance. Since the government is fallible, why do pro-death penalty conservatives suddenly believe that the government is going to be flawless when it comes to the death penalty? Is it simply because it is a policy idea that these conservatives happen to like? The government does not magically give us what we want because it is appealing to our moral sensibilities. The truth is that government also makes mistakes when it comes to the death penalty. The risk of executing an innocent person is real, whether a wrongful conviction is brought on by a mistaken eyewitness, an overzealous prosecutor, an incompetent defense attorney, coerced confessions, scrupulous jailhouse snitches, or botched forensics. In addition to the 186 individuals that have been exonerated since 1973 (Innocence Database), the National Academy of Sciences made a conservative estimate that 4.1 percent of those prosecuted under the death penalty are innocent (Gross et al., 2014). Not only does the government wrongly execute people from time to time, there are times where the errors take place with the execution itself. According to University of Amherst professor Austin Sarat, 276 executions, or 3.2 percent of executions, between 1890 and 2010 were botched. 
• We are talking about a literal matter of life and death. One mistaken execution is too many, never mind an erroneous conviction rate greater than one in 25. If conservatives find comparable improper payment rates unacceptable with various government programs, they should a fortiori be all the more outraged with the death penalty's erroneous conviction rates. 
2. The death penalty is not shown to deter crime. One of the main arguments that the pro-death penalty side uses is that the death penalty is a deterrent, particularly for would-be criminals who are thinking about committing heinous crimes. The issue is that there is not evidence showing that the deterrent effect exists. The National Research Council reviewed more than three decades of evidence and were unable to find credible evidence that the death penalty deters. The studies the NRC analyzed that claimed a deterrent effect were considered flawed since they did not take non-capital punishments, e.g., life without parole, into account. The Brennan Center for Justice released a report to figure out what caused the decline in crime in the 1990s and 2000s (Roeder et al., 2015; p. 43). Among the Brennan Center's findings was that there was no evidence that the death penalty contributed to this decline. 
• If the death penalty were as unambiguously as much of a deterrent as proponents believe, the evidence would be there. I know there are multiple factors that can attribute to the murder rate. However, it becomes difficult to argue that the death penalty is such a strong deterrent when the murder rate of death penalty states consistently remains higher than the rate of non-death penalty states (Death Penalty Information Center; Federal Bureau of Investigation). 
• My final point has to do with expert opinion. Yes, the following data come from 2009 since that is the most recent polling available. At the same time, both criminologists and police chiefs at this time overwhelmingly believed that the death penalty does not act a deterrent. 
• Deterring future crimes is one of the main arguments used by proponents of the death penalty. The lack of evidence for a deterrence effect means that the death penalty is not keeping us safer. 
3. The death penalty collides with a pro-life stance. Not everyone on the Right holds to an anti-abortion stance, but most do. As of 2021, 74 percent of Republicans identified as pro-life (Gallup). The premise behind the pro-life stance is the belief that human life is sacred. Those who are against abortion argue that personhood is [one of] the main considerations for their anti-abortion position. If applied consistently, advocating for the totality of life would include accused murderers. Since alternatives such as life without parole (LWOP) can adequately punish without making the permanent decision of ending a life, a pro-lifer should prefer LWOP over the death penalty. 
• It presents a moral conflict to consider oneself pro-life but support a practice that literally has the word "death" in its name. The moral qualm from a pro-life stance is more pronounced when considering the erroneous conviction rate or that the death penalty has not been shown to protect more lives, as previously detailed. 
4. High cost of death penalty goes against fiscal conservatism. I wrote about the fiscal costs back in 2014, but it is worth a bit of an update. In 2017, the Oklahoma Death Penalty Review Commission found that capital cases cost over three times the amount of non-capital cases. For Nebraska, that would be a difference of $1.3 million between a capital case and a non-capital case. A fiscal impact report from the State of New Mexico calculated that it would cost the State an additional $7.3 million over the first three years of implementation. Susquehanna University also calculated the extra cost of a capital case, which is $1.12 million [in 2015 dollars] (McFarland, 2017). It makes sense that a capital case would cost more. There are greater expenditures in a capital case, ranging from more lawyers, witnesses, experts, and pre-trial motions, as well as a more extensive jury selection process and a separate trial for sentencing. Those are the costs before accounting for the lengthy and costly appeals process. 
• Looking at the death penalty from a strictly fiscal lens, a capital case is a bloated, inefficient program that drives up the costs of law enforcement. These are dollars that could go elsewhere in law enforcement, such as numerous unsolved homicides, violence prevention programs, services for victims' families, or modernizing crime laboratories. They could go to other programs, as well as helping reduce government debt. The cost of implementing the death penalty is more startling when you consider that the death penalty has taken innocent lives or that there is no evidence that it keeps us safer. 
5. Limited government. For those who are limited-government conservatives, the main premise is to restrain government power to make sure it does not overreach. Just read the amendments in the Bill of Rights and you can see a pattern of limiting what a government can and cannot do. Limited government also implies that the government still has some powers, including prosecuting murderers, arsonists, rapists, and fraudsters. Even in a pursuit of justice for victims of the most heinous of crimes, we need to limit the power of government. The death penalty is state-sanctioned power over life and death. As Lord Acton once wrote, "Power corrupts and absolute power corrupts absolutely." How is supporting the death penalty congruent with supporting limited government? 
• Giving the state a power that potent and that fatal is the opposite of being for limited government. There are nonlethal methods that are less costly (see previous point) and still deliver justice, which means that the size of government stays smaller as a result of not having the death penalty.

Postscript

The death penalty comes with multiple issues from a conservative point of view. If conservatives were to apply its criticism of government inefficacy consistently, they would scrutinize the death penalty as much as they scrutinize government welfare programs, unemployment insurance, and numerous government regulations. The costliness of the death penalty alone should make a conservative cringe. Combining that with conviction error rates, the percentage of botched executions, and the lack of evidence on deterrence should make that cost all the more unjustifiable. The fact that the death penalty is not proven to save lives makes the "pro-life/pro-death penalty" moral stance all the shakier. And how can a conservative maintain a limited government stance while supporting a Big Government policy that is inefficiently run and makes mistakes? I hope that support for the death penalty continues on a downward trend and that conservatives contribute to that decline. 

The Fiscal Costs of the Death Penalty and How It Costs More Than an Arm and a Leg

The death penalty has caused much debate in this country. Does the death penalty deter crime? Should the government have the power over life and death? Is the death penalty appropriate if even one innocent person is executed? These are questions that typically surround the debate, but there is one I would like to cover: does the death penalty cost more than life in prison? This was a question the state of Nevada's Legislative Auditor seemed to answer in its audit released recently.

Looking at 28 death penalty cases in Nevada, the average death penalty case costs $532,000 more than a case when the death penalty is not sought (p. 10), which is nearly twice as much as a murder case for life without parole. Although incarceration costs were less for cases that sought the death penalty (Exhibit 7), what caused the death penalty cases to supersede the non-death penalty cases was average case costs (Exhibit 5). Most of the costs are racked up even before the trial begins (Exhibit 10), which is all the more damning since most cases in which the prosecutor seeks the death penalty does not actually impose the death penalty (Exhibit 2). For death penalty cases, they require more lawyers, more preparation, more investigators, more special motions, more witnesses, more experts, a longer jury selection, not to mention a longer appeals process (Exhibit 6).

Many other states, such as California, Indiana, Maryland, Louisiana, New Jersey, Montana, Connecticut, North Carolina, Ohio, and Kansas, have attempted to capture the costs and have come to the same conclusion: the death penalty costs way more than life without parole. The money that was spent on the death penalty could have been spent on real crime control measures, such as solving, preventing, or prosecuting other crimes. The evidence is clear. If one wants to make an argument for the death penalty, trying to make the argument based on cost savings is not the way to go.

Finding Death Penalty Deterrence Evidence Is Like Finding a Needle in a Haystack

Although there are only a small handful of executions per annum, the death penalty remains a hot-button issue, even with decreasing support. Today, I don't want to get into how many innocent people die on Death Row, ethical qualms with capital punishment, or how your "typical conservative" advocates for the death penalty while claiming to be pro-life or wanting less government in our lives. What I simply want to ask is whether the institution of the death penalty acts as a deterrent for people committing more crimes or not.

It's obvious that deterrence involves the discouragement of a certain act. In this case, one of the goals of the death penalty is to discourage crime, specifically murder. The question here is "Who are we trying to deter?" Are we only trying to deter those who have previously murdered and are currently imprisoned? If so, then the death penalty is very effective as a deterrent. After all, dead men can't commit more acts of murder.

If we are trying to deter society as a whole, then that is a different story all together. In an American context, if I had to guess why the death penalty would not be effective, it would be because it is so infrequently and arbitrarily implemented. Also, with most capital crimes such as these, either the murder was in the heat in the moment or the murderer is so depraved and callous towards human life that nothing will deter the individual.

Any conducted studies that have allegedly found correlation never considered the possibility of noncapital punishment effects on homicide rates. In a 2012 report by the Committee on Deterrence and the Death Penalty, the main finding was that there was no proven deterrent effect that was unique to the death penalty (p. 29). The vast majority of criminologists have also found that the death penalty does not create any additional deterrence that life in prison would create (Radelet and Lacock, 2009).

I have major apprehensions giving the government power over life and death itself. Even if I were going to analyze the death penalty based on consequentialist terms, you better believe that I would like some evidence that the death penalty actually works. This is all the more so true when we are talking about the government curtailing personal liberty. The only thing that we know about the death penalty are its liabilities, not its benefits (Lamperti, 2010). I also have to wonder why one would even use deterrence as a primary argument for the death penalty. If deterrence were a factor, why not televise it so everyone can see it? How about making it long and excruciating as possible so it scares would-be criminals? Why not apply it to other crimes? Not only is the evidence of deterrence lacking, but even if the evidence existed, it would hardly make the death penalty a justifiable practice. There are certainly better alternatives for deterring crime.

Capitalism and What It Really Means to Be Pro-Life

About two months ago, I wrote a blog post on what it really means to be pro-choice. If those who self-identify as pro-choice were to take the concept of choice seriously, being "pro-choice" would go well beyond abortion. It would only be fair if I put this scrutiny under the other side's label of being "pro-life." I want to do this not only out of a sense of fairness, but also because Thomas Friedman recently wrote a piece entitled "Why I Am Pro-Life." I was happy to see that much like I did with the label of being "pro-choice," he sought to apply the label of "pro-life" beyond the abortion debate. He said that letting Democrats call themselves "pro-choice" and Republicans call themselves "pro-life" is highly distorting, and I agree. I also agree with his definition of pro-life, which is it "should be shorthand for the sanctity of life," which is a good springboard for discussion. If we're going to take the idea of pro-life as seriously as the idea of pro-choice, the pro-life label needs to go beyond the issue of abortion. The issues of life and death are much more complex than that of being pro-choice. After briefly looking at a couple of issues that directly relate to the idea of being pro-life, I want to take the "pro-life" label to a whole different level.

The first is the issue with the death penalty. Proponents of the death penalty say that the heinous level of disrespect that a murderer shows is so high that we need a punishment austere enough to a) reaffirm the sanctity of life, and b) have proportionality to the crime committed. Those against the death penalty say that our reverence for life should be so high that we that should apply that to all individuals, even murderers. I certainly worry about the state having power over life and death while at the same time ensure that people who commit murder are adequately punished for their crimes. This is why I am cautiously anti-death penalty. Since both sides make arguments based on the idea of respect for life, it is probably why pro-life groups don't take official stances on the death penalty.

Then there is the matter of war. Self-defense is easily justifiable on the individual level, so analogously, a pre-emptive war in the name of self-defense is equally justifiable. Aside from that, it is way more difficult to justify war because historically speaking, most wars have not been due to self-defense, but rather desires of expansion and conquest. Inefficient use of resources notwithstanding, the amount of casualties is certainly does not justify the aforementioned avarice. As such, short of wars in self-defense, I would have to contend that being anti-war is pro-life.

I can continue with other questions such as "Does our definition of 'pro-life' extend to zygotes or animals," but I would rather avoid such contentious topics and bring up a very important factor in this discussion: there is more to this discussion than just the preservation of life, which is a quantitative factor. There is a qualitative argument about, well, the quality of life itself. As Friedman points out in his article, "Respect for life has to include respect for how that live is lived, enhanced and protected--not only at the moment of conception but afterwards, in the course of that life." This makes sense because if you truly care about something, you want it to be the best that it can be.

By the end of his article, Friedman manages to take a jump into the deep end. He goes and says policies such as soda bans, smoking bans in bars, gun control, and climate change legislation are all "pro-life." Essentially, to be pro-life, at least according to Friedman, means support of the nanny state. If we are going to make such qualitative statements, let me assert the following: Capitalism is pro-life. Not only does capitalism give us the freedom to live our lives as we see fit, which helps make it a morally superior option to socialism, but it also historically provided more wealth and prosperity than socialism, mercantilism, communism, or any other economic model based on authoritarian tendencies.

I can definitely write more, but I would say this: Amongst other goals, my blog has been an endeavor of pointing out the flaws of nanny-state socialism and why liberalizing the markets is so much more preferable than letting a bunch of bureaucrats determine how individuals should go about "life, liberty, and pursuit of happiness." So if you want more specifics, I welcome you to search my blog because it addresses many issues related to this topic. In the meantime, I will say that if we are serious about being pro-life via the maximization the quality of life, working towards freer markets and increasing [respect for] liberty for individuals to pursue their life goals is the way to go.

I'll conclude with this amusing video about what the world would be like without capitalism:

Should the State Have Power Over Life and Death?

The execution of Troy Davis has made the news lately.  It has revitalized the anti-death penalty movement.  The reporting around this news made me think about the death penalty again.  Although I used to be gung-ho in support of the death penalty, I have taken a position of ambivalence for quite some time.

Part of that ambivalence is due to researching the "Jewish position."  The Torah proscribes the death penalty for multiple crimes, including first-degree murder, violating the Sabbath, and being a "rebellious child."  However, when taking a look at how it was put into practice in Judaism, the rabbis did their utmost to make sure that it was never enacted.  In the Mishnah Makkot 1:10, the oft-cited verse goes as far to say that "if we were on the Sanhedrin, we would have never used the death penalty."  In terms of the death penalty, theory and practice seem to have a considerable-sized gap between them.    

That got me to start thinking of why the rabbis would want to throw every obstacle in front of corporal punishment, making it virtually impossible to ever enact the death penalty in practice.  Maybe the rabbis did so because no judicial court should have that much power over life and death.  In secular terms, none of us are so concise all the time to consistently render fair and impartial verdicts.  Especially with the DNA testing that is exonerating those who have been sitting on Death Row all these years, I can hardly believe that the death penalty has been consistently carried out since we have been using it.  If I have been critical of other areas of government being imperfect, if not downright inept, why do I expect the government to carry out such a daunting task of determining who lives and who dies under our penal system?  To quote William Blackstone, it's better that "ten guilty escape than one person suffer."

However, I am still having troubles fully dismissing the pro-death penalty side.  What do you do when somebody with unquestionable guilt comes along, such as Timothy McVeigh or Adolph Eichmann?  Eichmann's guilt was never doubted, and even with all the terrorist acts in Israel, he has been the only person executed (with a quick hanging, mind you) in the history of modern Israel.  It is unambiguous cases such as Eichmann that I cannot completely go along with the anti-death penalty crowd.

Ambivalence still ensues, and I have yet a way to get around it.  Hopefully, someone will make an extremely valid point that will keep me in one camp or the other.    

Where I Part From The Right

I'm a Right-leaning libertarian.  I would assume that labeling myself as such would adequately differentiate me from a conservative.  After having a recent conservation with someone close to me who called me a "Rightie," I had to think about this topic.  Normally, it wouldn't have bothered me.  However, I chose to self-identify as a libertarian two years ago precisely because I didn't want to be seen as a conservative. 

Before continuing, I know I am going to have some detail with defining the Right because there are many types of conservatism.  Portraying conservatives as a monolith is not something I like to do just because I am aware of the variations of conservatism, but nevertheless will have to do so in order to illustrate why I am in the camp of libertarianism, as opposed to conservatism.

I certainly see how many people don't see the difference between a Right-leaning libertarian and a conservative.  The biggest similarity is advocacy of the free-market.  This will cover a wide range of issues upon which I will agree with conservatives, from the growing entitlements to taxation to wasteful government spending to health care.  Economic issues is what brought the libertarians and conservatives together during the Reagan era, and considering this recession, could reunite the two if the Republican Party truly puts its focus on the fiscal issues.  I also grew up with certain values, such as frugality and prudence, personal responsibility, respect for tradition, and a strong work ethic, that many in modern-day America would consider antiquated.  There are also issues like gun rights and affirmative action that I truly believe that the government should have very little to no business in.  I even believe that the amount of evidence for climate change is insufficient to merit the amount of government intervention that the Left is attempting to use.

You would think that based on the previous paragraph, I would be a bona fide conservative.  Alas, that is not the case.  Here is list of political topics in which I would disagree with your "typical conservative" as of date:

• Religious freedom: There is no "separation of church and state" clause.  The clause in the Constitution is to not establish religion.  In spite of that distinction, I surprisingly agree with the secular Left, albeit for different reasons, on these issues.  I find that trying to bring prayer back in public schools would be a violation of the First Amendment.  Based on a technicality, displaying the Ten Commandments would be unconstitutional.  I would not have a problem with children learning Intelligent Design in school.  I find that a "higher power" that created the universe is a plausible explanation.  However, my issue is that many in schools in this country would attribute the title "Intelligent Designer" to Jesus, which would be a violation of the First Amendment.  
• Marriage: Marriage is nothing more than a contract.  As long as the individuals are consenting and doing this of their own volition, I do not care what you do behind your bedroom doors, whether you are gay or straight.  Gay marriage would simply be a contract between two consenting individuals of the same sex saying they want to commit their lives to one another.  To deprive consenting individuals from entering such a contract is a deprivation of contract rights, to say the least.  The conservative's aversion towards gay marriage, whether brought on by religion or ignorance, gets in the way of a typical conservative viewing the issue clearly.  With that in mind, I will go as far as saying that with that argument, I would also be pro-polygamy, providing that the individuals within the polygamous marriage are all consenting individuals.  I know that this is a widely unpopular view in America because "marriage is between one man and woman."  It has even been codified in American law under Reynolds v. United States.  Aside from arguing contract rights, I will say that Jacob, King David, and King Solomon all had more than one wife in the Bible.  From a Jewish standpoint, I will say that until very recently, polygamy was acceptable and practiced within the Sephardic world.  
• Marijuana: On a personal level, I am anti-marijuana.  I don't want to smoke the stuff, and I don't plan on doing so anytime soon.  Any individual I have met who has admitted more than one-time usage seems debilitated and stymied to grow as an individual.  In spite of personal opposition, I think that states' rights should fight it out, which is why I was disappointed at Proposition 19 last year.  If some states try it out and it turns out poorly, other states would have the empirical data to prove that marijuana reform might not be the best idea.  
• Defense spending and National Security: I'm with Doug Bandow and other Cato Institute experts.  We're spending too much on defense spending.  Written by Benjamin H. Friedman and Christopher Preble in 2010, Cato Institute put out a superb policy analysis about how we can cut the defense budget and still be just as effective.  I can see how a conservative can see this as unpatriotic or viewing this as not being pro-defense or have a sense of national security.  Nothing could be further from the truth!  I have had immediate family service in the Armed Forces and have great respect for those who serve.  However, much like with any other facet of the budget, I am an stalwart advocate of cutting out unnecessary spending to help avoid fiscal ruin in the long-run.  Since the Department of Defense has the third largest budget (#1 and #2 are Health And Human Services and Social Security respectively), it's not exactly a minute part of our budget.  Since America does a majority of the global military spending, it might not be the worst idea to have other nations share some of the burden while we figure out how to spend more effectively.  Although I believe in preventing further terrorist attacks, I find the Patriot Act to be a blatant violation of the Fourth and Fifth Amendments.  Just because the government hasn't used the Patriot Act to do search and seizure without a warrant on "everyday Americans" or search databases for private information doesn't mean the government can't.  After all, they have the carte blanche to do so with the Patriot Act.  On a side note, what are we doing in Afghanistan?  I'm no peacenik, but there is no valid reason that America should be using its limited resources on a lost cause.
• Life Issues: I'm not 100% in accord with conservatives on life issues.  I know that the one place where we would essentially agree is abortion: I'm anti-abortion, and yes, a libertarian can still be anti-abortion and maintain their libertarianism.  I have become more sympathetic to the pro-euthanasia side, particularly since our medical technology can better gauge an individual's probability of "making it."  Let's just say that I am for passive euthanasia, but still have an issue with active euthanasia.  As for the death penalty, that's more ambiguous.  Nothing says 100% deterrent like capital punishment, especially when we are living in a time with such lax criminal laws.  However, my ambivalence primarily comes in when you give the state that much power, especially if there's a prolonged issue of executing innocent people.
• Immigration: I figured that I would save this one for last.  Although my views on this topic used to line up perfectly with Right-winged mouthpieces, I have come to [appreciate] a more nuanced view on the topic.  I agree with conservatives that we should enforce our immigration laws in the name of national security.  I also find that the root of the problem is not the immigrants themselves, but the animosity is based off the entitlement programs that Big Government provides.  If we attacked welfare programs at its most base core, anti-immigration sentiment would subside, which is something we need considering that about 30% of immigrants have a Bachelor's degree or higher. 

Although these topics merit further detail, it should be safe to say that I have proven that my political views line up with libertarian thought.  I place a strong emphasis on individual freedom and the axiom of non-aggression.  It's a relatively simple political philosophy, but it's also a sound one.