A non-fatal objection to the death penalty

I’m not passionately in favour of the death penalty, but I’m not passionately against it either. Steve Sailer’s idea of reserving the death penalty for witness-murdering strikes me as a good one.

His reasoning is that perps already get long sentences for crimes like burglary, so it can be “rational” for them to murder witnesses unless there’s the additional threat of capital punishment. (A really long sentence for burglary plus murder isn’t that much worse than a long sentence for burglary alone, so why not reduce the risk of serving any time by silencing those who might report you?)

Anyway, the death penalty was in the news recently, after the new deputy chairman of the Conservative Party said he’d support bringing it back. “Nobody has ever committed a crime after being executed. You know that, don’t you? 100 per cent success rate,” he told the Spectator.

Anderson doesn’t exactly have the typical background of a Tory MP. He is the son of a coal miner, who worked as a coal miner himself. So he’s probably less concerned than some of his colleagues about being denounced as a “reactionary” and missing out on invitations to swanky West-London dinner parties.

There are various objections to the death penalty, but by far the most common is that we might mistakenly impose it on someone innocent. The same applies to prison of course, but in that case we can at least apologise and give the wrongfully imprisoned person some kind of compensation. Bringing wrongfully executed people back from the dead is much harder.

It’s a valid objection too, as innocent people have been put to death. The wrongful execution of a man named Derek Bentley “has long been cited as one of the main factors in the eventual abolition of hanging in Britain”. Though it’s worth noting that while Bentley did not commit murder (the crime for which he was put to death) he did take part in a violent robbery, so he wasn’t completely “innocent”.

The existence of this objection to the death penalty was not lost on Anderson. “You’ll get the certain groups saying: ‘You can never prove it,’” he noted. “Well, you can prove it if they have videoed it and are on camera - like the Lee Rigby killers.” (Rigby was a British soldier killed in broad daylight in London by two homegrown Islamic terrorists.)

I certainly agree that if the death penalty were brought back, one would want to use it only in cases where the evidence of guilt was overwhelming – so as to minimise the risk of type I errors (putting innocent people to death). But I disagree with the implication of Anderson’s statement that requiring such evidence “solves” the problem. After all, you can never bring the type I error rate all the way to zero.

Does this mean it’s a fatal objection? If there’s always some risk (however small) that we might kill an innocent person, is capital punishment a fundamentally bad policy? I don’t believe so. There are already at least two circumstances where we grant the state the power to use lethal force despite the risk of innocent people getting killed.

The first is police shootings. In the UK, ordinary police officers don’t carry firearms, but there are various units that employ “authorised firearms officers” (the equivalent of SWAT teams in the US). Such officers can often be seen at airports or other high-profile locations. They are generally despatched in response to hostage situations, or when an armed criminal is on the loose.

Insofar as these officers are human, they sometimes make mistakes and end up killing innocent people. One famous example is Jean Charles de Menezes, who was shot eight times by police after being misidentified as a fugitive involved in the previous day’s failed bombing attempt. Wikipedia lists several dozen police killings in the UK, not all of which were found to be justified.

Now, you might say that granting police the power to use lethal force against armed criminals is different because there’s a serious and imminent threat to public. Indeed, how else are we going to stop a lunatic with a gun? But then you’ve conceded that the state can use lethal force when there’s a risk of innocent people getting killed. As we’ve just seen, armed police officers sometimes make mistakes.

No one would suggest disarming the police entirely. We accept the small risk of innocent people being killed for the large benefit to public safety that comes with having armed police. (There’d be more victims of crime if perps knew the police could never use lethal force.) And this is just what proponents of the death penalty argue: the small risk of executing in an innocent person is worth the benefits in terms of deterrence or retribution.

As an opponent of the death penalty, you might dispute that the trade-off is worth it. You might claim that the deterrent effect is small, or that retribution isn’t a worthwhile aim. But unless you’re in favour of disarming the police entirely, you can’t object on the grounds that the state should never use lethal force when there’s a risk of killing innocent people.

The second circumstance where we grant the state such power is humanitarian interventions. Over the years, Britain has taken part in a number of military operations whose stated goal was “humanitarian” – to deter or a prevent another state from engaging in serious human rights violations. Some examples are given on Wikipedia.

I tend to be sceptical of such interventions, which are often less “humanitarian” than they appear. But I’m not against the idea in principle. Perhaps an early intervention in Rwanda could have saved a few hundred thousand lives?

Yet whenever we intervene military – especially by means of air power, as NATO is fond of doing – there’s a risk of civilian casualties. According to Human Rights Watch, around 500 civilians were killed in the 1999 bombing of Yugoslavia, and at least 72 were killed in the 2011 bombing of Libya. Those are innocent people who were killed by NATO (and hence indirectly by the British government).

You might say that many more lives would have been lost had NATO not intervened, and you might be right. The point is that unless you’re completely opposed to humanitarian interventions, you’ve conceded that the state can use lethal force even when there’s a risk of killing innocent people.

The most commonly heard objection to the death penalty is that we might put an innocent person to death. But this isn’t a fatal objection, as there are already circumstances where we grant the state the power to use lethal force despite the risk of innocent people dying. The question then becomes: are the benefits of the death penalty sufficiently great to outweigh that risk?

Image: Jacques-Louis David, The Death of Socrates, 1787

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