In “An Argument against Capital Punishment,” Dr. Charles N. Steele raises interesting objections to my advocacy of the death penalty for murder in “The Necessity of Capital Punishment to Enforce the Right to Life.”

Criminality and Forfeiture of Life

Previously, I wrote that a criminal forfeits his right to life when murdering another. I addressed the contradictions of a system where no capital punishment exists, where “some individuals may be allowed to proceed to violate others' rights to life while theirs remain respected.” Dr. Steele writes in response:

“To the contrary, all the rights of all individuals, criminals and non-criminals alike, must always be respected.  One may resist or punish a criminal only because, and to the extent, s/he violates others’ rights.  Since the criminal has no right to violate the rights of others, one does not violate her/his rights by using force – so long as one does not go beyond whatever force the crime justifies.”

I think the difference in our respective arguments here is a semantic one. The claim which I make regarding criminal punishment is that a criminal forfeits certain of his rights to the extent that he has violated those same rights in others. If he has stolen one television set from another, he thereby forfeits his own right to own one television set. If he has deprived another person of life, he thereby forfeits his right to his own life.

Dr. Steele argues that the criminal does not forfeit his rights by committing a crime, because he had no rights to commit the crime in the first place. But I think the practical consequences of both of our arguments are the same: it is legitimate to punish a criminal to the extent of his violation of others’ rights.

However, I further contend that this principle implies the legitimacy of taking the life of a criminal who has taken the life of an innocent individual. After all, killing a murderer does not exceed the extent of his own crime. On the other hand, this view also implies that capital punishment can only be restricted to those who commit murder, and lesser criminals ought not be put to death.

Of course, I agree with Dr. Steele that killing an attempted murderer in self-defense, while the criminal endeavors to commit the act, is perfectly justified.

On this specific point of the argument, then, I think the difference between Dr. Steele and myself is more in the words we use, rather than in the substantive implications of our claims.

Capital Punishment and Adequate Retribution for Crime

Continuing his objections, Dr. Steele addresses the question of adequate retribution for criminal acts. He writes:

“In the case of murder and attempted murder, ‘adequate’ [retribution] first of all must satisfy the condition of stopping further instances of the behavior.  Beyond this, other concerns, e.g. restitution (to the extent it is possible) might be reasonable, but stopping the behavior is primary, if the objective is a society in which all rights are respected.  The implication is that murder and attempted murder should be addressed with very strong punishments -- but capital punishment is not a necessary conclusion, and would even possibly undercut auxiliary goals, such as restitution.  Imprisonment, for example, works as well.  So might, in some settings, banishment.”

If the criterion for punishing murder is stopping further instances of the behavior, then capital punishment fulfills it perfectly. Executing the murderer ensures that he will never kill anyone else again. Furthermore, it can serve as a deterrent to other would-be murderers, who, knowing that they will face the death penalty if caught, will be much more hesitant to embark upon the killing of innocents in the first place. And if some murderers are psychologically imbalanced individuals who are not subject to the deterrents that would dissuade most individuals from murder, then the death penalty for those murderers would be akin to putting down a violent rabid dog -- as I argued in “The Travesty of Mercy to Andrea Yates.”

Dr. Steele claims that imprisonment or banishment would work just as well in preventing further instances of murder. The problem with imprisonment, however, is that it is a subsidy to criminal activity at taxpayers’ expense. For having committed a crime, the perpetrator is supported for many years, if not for life, by the funds of innocent people. Even if his living conditions are wretched (which often they are not), they are still an expense and thus undermine the goal of restitution which Dr. Steele mentions.

With regard to banishment, there always exists the possibility of the criminal returning despite the prohibition and having even more force at his disposal than previously. This is the case, for instance, with certain illegal immigrants from Mexico who have committed murder in the United States repeatedly and each time returned to Mexico to avoid prosecution. They imposed banishment on themselves, so to speak, and then used it as an opportunity to facilitate future crime.

This is not to say that capital punishment is the only possible response to murder or that all murderers ought to face the death penalty -- but imprisonment ought not be used as a punishment because it is a wasteful expense, and banishment is simply ineffective.

A possible alternative to capital punishment could include “hiring out” condemned murderers to perform unpaid heavy manual labor for private firms. The private firms would pay a certain amount of money to the government for the privilege of using these criminals, under the condition that the government would then distribute the entirety of this money to the family and/or legal heir(s) of the murder victim(s). This would fulfill the goal of restitution and prevention of further crime -- but measures would need to be taken to ensure that the criminals so “hired out” would not attempt to escape from their duties or commit further crime. Of course, this measure could not be implemented with regard to perverse or “mentally unstable” murderers, executing whom is an imperative if only to prevent further crime.

Why Murderers Cannot Hold a Logically Consistent Theory of Individual Rights

Can a criminal hold a logically consistent view of individual rights while committing acts of murder? I argue the contrary.

Dr. Steele writes:

”Mr. Stolyarov also argues that a criminal necessarily adopts the principle that no one, including him/herself, holds the fundamental right to one’s own life.  But this is not so.  For example, a criminal might fully believe that certain people have rights and others don’t (many white slave owners seem to have been genuinely convinced that blacks were not properly sovereign individuals).“

There is no doubt that many people have held and still hold ideas which claim that only some human beings have rights -- including the basic right to life. However, the fact that these ideas are believed does not make them consistent or non-contradictory. There is no logical basis for grounding natural rights in a particular skin color or national background, and doing so leads to some real-world scenarios which the racist theory of individual rights cannot resolve. (For instance, what rights would a person of mixed racial or ethnic origins have? What about someone like Michael Jackson, who decides to change the color of his skin?)

But there is every logical basis for grounding individual rights in the very humanity of the subject, as this is the only internally consistent approach to the matter other than the assertion that nobody has rights. In order to avoid excluding any innocent entity which might possibly qualify as a rights-bearing entity, it is necessary to make the categorization of “human” as broad as possible -- including the unborn from the moment of conception, the comatose, the brain-dead, and (if they exist) other intelligent life forms.   

Dr. Steele writes:
 

“And individuals differ in what they suppose are legitimate grounds for justifiable homicide; hence A might kill B, believing it is fully justified given B’s behavior, while none of the rest of us would agree.  Yet A might fully agree with us that everyone has the right to his own life.“

The solution in this particular case would be to legally delineate the kinds of behaviors which would justify retaliatory killing. Then, analyzing A’s situation would be reduced to simply ascertaining what B was doing and whether A’s response was warranted. Depending on the severity of B’s actions, A’s punishment could be greater or less -- but capital punishment would still be an option if, for example, A killed B because he did not like the shirt that B was wearing. After all, that would simply imply that A grossly misunderstands the concept of individual rights and the areas to which it applies. And while A would grant “individual-rights-as-he-thinks-of-them” to everyone, he has still violated B’s “individual-rights-as-they-actually-are.”

Why Wrongful Criminal Convictions Do Not Invalidate Capital Punishment

Does the possibility that a man accused of murder might be wrongfully sentenced necessitate that the death penalty not be used? Do governmental injustice and corruption render capital punishment entirely undesirable?

Dr. Steele’s strongest objection to the death penalty “has to do… with the very real possibility that innocent individuals are sometimes convicted of capital crimes.  If convicted murderers are not executed, but kept imprisoned, then if subsequent evidence turns up that exonerates them, they may be at least partially restored.“

I agree with Dr. Steele that, whenever doubt exists regarding an individual’s criminality and there is even the slightest possibility of the individual being exonerated later, it is wisest to refrain from executing the alleged criminal -- at least for the time being. But in most cases, ample time is already given for such exonerating evidence to turn up, as appeals processes often take years, and the typical murderer sentenced to die gets executed more than a decade after his sentence is decided.

Furthermore, if additional grounds for doubt exist regarding any given individual, I still grant that punishments other than the death penalty can be used in certain cases of murder.

Yet there exist cases where it is clear beyond the possibility of future disproof that a certain individual is guilty of murder. These are cases where 1) the individual committed murder in clear view of multiple independent others who each witnessed the crime and tell the same story, 2) the individual committed murder and confessed to doing so, with ample other evidence to back up the confession, and 3) the individual committed a perverse form of murder in a state of “mental imbalance” and afterward admitted to doing so, either proudly or regretfully. This latter case was precisely what happened with Andrea Yates, of whom there exists no doubt that she systematically drowned her five children.

In each of the aforementioned cases, one cannot argue that the death penalty ought not be used because of the possibility of future exonerating evidence. At most, Dr. Steele’s objection would substantially narrow the scope for capital punishment, but it would not be able to eliminate its necessity altogether.

Dr. Steele concludes:

“But in real life, the uncertainties involved in establishing guilt, to say nothing of the problems of often dysfunctional and corrupt governmental justice systems, mean that we should forswear the death penalty in the interest of protecting individual rights.”

While it is true that governmental justice systems are often dysfunctional and corrupt, this, too, does not make a case against capital punishment itself. Rather, it implies that greater caution ought to be exercised in sentencing murderers to capital punishment, and that attention needs to be given to the possibility of governmental abuse in any given case. While this might in some cases lead us to decide against capital punishment simply on the suspicion that corrupt practices were involved in the trial, it does not repudiate the principle of capital punishment itself. The long-term solution to this problem, of course, would be the limiting of government power to the protection of individual rights and the encouragement of greater transparency and accountability from government officials.

G. Stolyarov II is a science fiction novelist, independent philosophical essayist, poet, amateur mathematician, composer, contributor to Enter Stage Right, Le Quebecois Libre,  Rebirth of Reason, and the Ludwig von Mises Institute, Senior Writer for The Liberal Institute, weekly columnist for GrasstopsUSA.com, and Editor-in-Chief of The Rational Argumentator, a magazine championing the principles of reason, rights, and progress. Mr. Stolyarov also publishes his articles on Helium.com and Associated Content to assist the spread of rational ideas. His newest science fiction novel is Eden against the Colossus. His latest non-fiction treatise is A Rational Cosmology. His most recent play is Implied Consent. Mr. Stolyarov can be contacted at gennadystolyarovii@yahoo.com.

Read Mr. Stolyarov's new comprehensive treatise, A Rational Cosmology, explicating such terms as the universe, matter, space, time, sound, light, life, consciousness, and volition, here.

Read Mr. Stolyarov's new four-act play, Implied Consent, a futuristic intellectual drama on the sanctity of human life, here.