The Libertarian Case Against the Death Penalty

On Friday, August 7, 2015 the perpetrator of the Aurora Theater shooting (I will not use his name) was handed a sentence of life in prison without the possibility of parole for the heinous crimes he committed on July 20, 2012. While many people were disappointed by this result, I was not. I have been giving considerable thought to the issue of the death penalty over the last couple of years and have arrived at what I consider to be a libertarian case AGAINST the death penalty.

The State Should Not Be Empowered To Take Life

Throughout history, putting someone convicted of certain crimes (usually rape and/or murder, sometimes theft) to death has been an accepted method of punishment. Indeed, in Europe until the 20th century it was commonplace and being an executioner was a recognized, though not honorable, profession. As is described in The Faithful Executioner a sixteenth century man went through an apprenticeship to become a torturer and executioner employed by the city of Nuremburg. He had to learn various methods of putting people to death: burning at the stake, breaking on the wheel, hanging, exsanguination, drowning and others. Various methods of putting criminals to death were prescribed depending on the nature and severity of the crime. I’m sure some people think any of these punishments would be suitable for the theater shooter. However, many people including some victims’ family members did not want him put to death.

Legally sanctioned executions in Europe were harsh and cruel. Anyone who is a fan of the Game of Thrones series is familiar with some of these methods. Because of evolving sensibilities on the issue the Founders included the Eighth Amendment to the US Constitution which prohibits “cruel and unusual punishment”. While the death penalty was certainly an accepted form of punishment at the time, they recognized that methods including excessive pain and suffering were losing acceptance.

Indeed, perhaps because of modern revulsion against barbaric practices employed in the past, many modern nations have abolished the death penalty. The United Kingdom abolished it in 1998, France in 1981 and post-war Germany in 1949.

However, it is a hallmark of the twentieth century and the failed experiments with socialism, communism and fascist tyranny that 262 million people were killed by their governments in accordance with their sovereign laws.

Because I am wary of the institution of government and the tendency of government toward tyranny, I have come to the conclusion that the power to take its own citizens’ lives is not one that should be granted to the State.


Getting It Wrong

The theater shooting incident and the Chuck E Cheese incident were pretty cut and dried. The perpetrators were found guilty and there’s little to no doubt that they actually committed the crimes. However, as is depicted in fiction and real-life stories, there have been times and places where innocent people have been wrongly convicted and sentenced to death. There have been people who have been exonerated through new evidence while on death row. Even though there is an argument that in many of these cases the criminal deserved it anyway due to other crimes he or she may have committed, the fact remains that it would be horrible to be put to death for a crime NOT committed.

While a person who is imprisoned can be released if new evidence comes to light, a person who is executed wrongfully cannot be brought back to life.


Racial Disparity

It is an unfortunate fact that African-Americans commit a disproportionate number of murders. In 2013, according to the Bureau of Justice Statistics, black offenders committed 52% of homicides recorded between 1980 and 2008 yet account for less than 15% of the US population. For this reason it is statistically likely that more blacks are sentenced to death for their crimes. Was Nathan Dunlap sentenced to death because he’s black and the theater shooter given life because he’s white? There’s no way to answer that question. But the perception and the doubt remain. One chart – that of executions for interracial murders since 1976 – tells the whole story for me.

Executions for Interracial Murders

Roughly 55% of current death row inmates in America are black and Latino. Because race relations have deteriorated significantly in recent years, I believe that removing this legitimate perception of bias from the discussions about race in America will go a long way toward healing racial divides.


Cost vs Deterrence

It costs more to litigate a case where the death penalty is sought. One estimate is that it costs almost $.5 million more to prosecute a death penalty case. The Aurora Theater case was estimated to have cost the taxpayers $2.2 million before the trial itself had even started. That figure does not include the cost of taxpayer-funded defense lawyers.

Once a criminal is found guilty and sentenced to death, years or even decades of litigation have just begun. Typically the trial is appealed. Then the sentence is appealed. Then the death penalty itself is litigated. Then the method of applying the death penalty is litigated. Finally after years of court battles and thousands or even millions of dollars in attorney and court costs the criminal is finally put to death. During those years, it costs the taxpayers more to house an inmate on death row than in the general population.

Does the death penalty even act as a deterrent?  As with any other issue, there are studies that support either point of view.  The data I have found support my view that states like Texas and Florida with high execution rates also have higher murder rates than states like Colorado which practically does not have capital punishment. The deterrent effect is not easily measurable and probably can be discounted as a basis for public policy.

Arbitrary Changes

State governors have the power of life and death over the death row inmates in their states. Sometimes, bowing to political pressure from various groups, governors commute sentences or pardon criminals. Sometimes, for no apparent reason, they grant indefinite stays without setting a new date, as Colorado Governor John Hickenlooper did in the Nathan Dunlap case, making him into a political pawn in a tight re-election race. One could argue, and I’m sure his attorneys will, that just putting him in legal limbo like that could constitute “cruel and unusual punishment” and become the basis for overturning his sentence in later years after thousands of dollars more in litigation costs.

Giving an elected official this kind of power is contrary to the core value of limiting government power that imbues the libertarian movement. These officials are fallible and susceptible to outside influences and should not have this life and death power.


Which is Worse?

A person convicted of the crime of murder should be punished accordingly. While there are various degrees of murder and different levels of heinousness, the fact remains that some people should never walk free in society. In cases where the death penalty would otherwise be considered, a sentence of life in prison without the possibility of parole (LIPWP) should be imposed. And when I say “no possibility” that means “none whatsoever”, unless the person is exonerated through some means in a legal fashion.

I believe that LIPWP is a much worse punishment than the death penalty. I believe it would be preferable to be dead than to have to live in a cage.

As Kelly Phillips Erb wrote in Forbes: “We can, however, glean a little perspective from someone who has experienced both sides. Gordon “Randy” Steidl lived on death row and in the general prison population after his sentence was commuted to life. Wrongfully convicted, his sentence was eventually overturned. Today, Steidl has strong feelings about prison life, saying, “If you really want to kill someone, give them life without parole. It’s worse than dying.” “


The State Should Not Be Empowered To Take Life

It’s a slippery slope: Political correctness. Prohibitions on free speech. Censorship. Re-education camps. Concentration camps. Extermination camps. Sharia Law.

Those who advocate for virtually unlimited governmental power will scoff and mock those who warn against the dangers I mention above. The only thing that renders their mockery meaningless is the fact that these phenomena are prominent and well-documented throughout human history and especially the 20th century. When a government arrogates to itself the power to take life through “legal” means, then everyone is at risk and anyone can be put to death. I don’t think elected, appointed, clerical or bureaucratic officials deserve or should have that kind of power. A perfect example of the last phenomenon is how those guilty of “crimes” like being gay or leaving a religion can be legally put to death by a government or religious authorities.

Whether it’s the death penalty or drone strikes against US citizens overseas ordered by a president (whoever he is), governments should be instituted to preserve life, not take it.

Closing Thoughts

I followed the story of the theater shooting and trial very closely. I have nothing but praise for the way District Attorney George Brauchler and his team prosecuted the case. I have the utmost admiration for Judge Carlos Samour for his impartiality and conduct of the trial. I think the jurors rendered a series of just verdicts and administered justice. I credit the defense attorneys with their zealous defense of an obviously guilty and disturbed young man.

For the record, I despise “that guy” for the crimes he committed and the lives he took and damaged beyond repair; for the terror he inflicted on those present and the pain he inflicted on the Aurora and Colorado communities. It grieves me that gun-control advocates try to paint us Second Amendment supporters as somehow condoning that individual and his crimes because he chose a gun as his tool instead of a bomb as he considered and rejected. Because I value life I have sympathy for those who lost theirs because of “that guy”. I have sympathy for their families and friends.

I was surprised – but glad – that the jury returned life in prison without parole for the theater shooter. Now the case is closed, and he can live the rest of his miserable life behind bars with the anonymity he so richly deserves.

By Richard D. Turnquist

August 8, 2015


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