Capital Punishment Divides the Right, and Both Camps Deserve a Real Hearing

There is one question on which a conservative can be accused of betraying the movement from either direction. Support the death penalty and you may be told you trust government too much. Oppose it and you may be told you have gone soft on evil. Both accusations come with a straight face, and both come from people who think they are defending something sacred.

I think that is a sign of a real argument. So let me do what I would want done for me: state each case at full strength, bring in the actual law and history, and then say where I think the weight falls. Nobody gets a caricature here.

What we are arguing about

Capital punishment is the sentence of death imposed by a court for a crime. In the American system it is reserved for murder, with narrow exceptions, and it is carried out only after a long chain of trials and appeals. The Constitution assumes it exists. The Fifth Amendment speaks of a "capital, or otherwise infamous crime" and forbids depriving any person of "life, liberty, or property, without due process of law." The text does not require the penalty. It assumes the penalty can be lawful so long as the process is.

Three questions divide the right, and they are worth keeping apart.

1. Desert. Do some crimes deserve death? This is a moral question.
2. Competence. Can government be trusted to apply the penalty accurately and fairly? This is a question about institutions.
3. Cost and result. Does the system, as it actually works, deliver justice at a price worth paying? This is a question about outcomes.

A person can answer yes to the first and no to the other two, and conservatives do. That is the whole structure of the disagreement.

The retributive case

The case for the penalty begins in a moral idea older than the Republic: that justice is giving each person what he deserves, and that the gravest crimes call for the gravest punishment.

The argument has four parts.

1. Proportion. Punishment should fit the crime. A society that treats the deliberate murder of a child the same as a burglary has lost its sense of moral weight. The penalty expresses how seriously we take a human life.
2. The tradition. Capital punishment has deep roots in the Western tradition and in the Hebrew Bible. Genesis 9:6, in the King James rendering, says: "Whoso sheddeth man's blood, by man shall his blood be shed." Many Christians and Jews have read the passage as setting down the principle that the taking of innocent life is so grave that it forfeits the killer's own.
3. Dignity of the victim. The strongest version of the argument is not about revenge but about the worth of the victim. If the law will not impose its most serious penalty for the most serious crime, it tells the family that their loved one's life is worth less than a sentence anyone could receive for lesser crimes.
4. Incapacitation. For the worst offenders, such as a man who murders again in prison, there is a protective rationale too.

This case has constitutional support. The Founders did not doubt the lawfulness of capital punishment. The first Congress, in the Crimes Act of 1790, made several federal offenses capital. The Court's modern doctrine has treated the penalty as constitutional when applied by procedures that guard against arbitrariness. The leading case is Gregg v. Georgia (1976), which upheld Georgia's revised death penalty statute after the Court had struck down the older, standardless systems in Furman v. Georgia (1972). Gregg held that the death penalty does not violate the Eighth Amendment in all circumstances and that a carefully guided system, with a separate sentencing phase and consideration of aggravating and mitigating factors, can satisfy the Constitution. If you want the timeline of what followed, see The Death Penalty in the Supreme Court, a Timeline From Furman to Bucklew.

The skeptical case

Now the other conservative camp, in words its supporters would accept.

This camp does not say that murderers do not deserve severe punishment. It says that desert is not the same as authority, and that what the state may do is not settled by what the offender deserves. The case has four parts.

1. Distrust of government power. Conservatives are supposed to be wary of giving the state powers it cannot exercise reliably. The power to put a citizen to death is the most extreme power a government has. If you do not trust government to run a post office efficiently, why trust it to get life-and-death judgments right every time?
2. Fallibility. Courts make mistakes, and some of the mistakes are fatal. People who were sentenced to death have later been exonerated, and exonerations have happened in numerous states. Every exoneration is a case where the system came close to an irreversible error, and the penalty is unique in that it cannot be undone. A fine can be refunded and a prison term can be cut short. An execution cannot be.
3. Cost and delay. The skeptics point to a puzzle conservatives should find irritating. Capital cases, studies in several states have found, tend to cost far more than cases where the prosecution seeks life in prison, because of longer trials, more expert witnesses and the automatic and extensive appeals. And the appeals take years, often decades. A penalty that takes twenty years to carry out is not much of a deterrent, and the victim's family waits through the whole thing. If the point is swift and certain justice, the current system is neither.
4. The sanctity of life. For a conservative whose pro-life commitments cover the unborn, the elderly and the disabled, a consistent ethic of life may caution against the state taking life where it can protect society by other means. Not every pro-life conservative reasons this way, and I would not claim the positions are the same. But the argument is made sincerely, and it deserves to be heard sincerely.

The Catechism and the faith dimension

Religion runs through this debate, and one development deserves a plain account.

For many centuries, the Catholic Church's teaching accepted that the state may impose the death penalty in grave cases, though it urged restraint. In 1992, the Catechism of the Catholic Church said the traditional teaching did not exclude recourse to the death penalty when it was the only practicable way to defend lives against an unjust aggressor, while urging that bloodless means are preferable if they suffice. In August 2018, the Vatican announced that Pope Francis had approved a revised paragraph 2267, which now states that the death penalty is inadmissible, because it is an attack on the inviolability and dignity of the person, and commits the Church to working for its abolition worldwide.

How a conservative should respond depends on who he is. Catholic readers will treat the change as a matter of church teaching and will weigh it accordingly. Non-Catholic readers are not bound by it and many dissent from the reasoning, pointing to the Scriptural and historical record. Others, Catholic and not, read the revision as a statement about modern conditions, in which a state can secure society without execution. This is not a matter that a political essay can settle. But it is a fact that the revision moved some thoughtful religious conservatives toward the skeptical camp, and that it moved others to defend the older teaching more explicitly. Either way, the argument is happening inside faith communities as much as outside them.

Nebraska, 2015 and 2016: a state tries both answers

Nothing illustrates the split better than what happened in Nebraska, a state not known for flights of fancy.

In May 2015, the Nebraska legislature voted to repeal the death penalty. The repeal passed with the support of a mix of lawmakers, including a number of conservative Republicans who gave reasons ranging from cost to concerns about government power to the pro-life argument. The governor, a Republican who supported the penalty, vetoed the repeal, and the legislature overrode the veto, making Nebraska a Republican-leaning state that ended capital punishment through its legislature.

The story did not end there. Supporters of the penalty gathered signatures to put the question to the people. In the 2016 election, Nebraska voters approved a referendum that restored the death penalty. The result was clear: the public, in that state, was not ready to give it up, even as its legislators had been.

Notice what that sequence tells you. First, conservatives in Nebraska divided in public, openly, and with respect, and the legislature was a place where the argument happened. Second, democracy delivered a final word, and a legislature's judgment was not allowed to stand against the voters. Both conservatives who favor the penalty and those who oppose it can take something from that. The first can say the people ultimately wanted it. The second can say the elected representatives who studied the issue found the case lacking. This is what self-government looks like, and it is messy and healthy.

Exonerations as an argument

The exoneration argument is the one conservatives who favor the penalty most need to answer, so let me give it the space it deserves.

The facts are not seriously disputed. Over the decades since the modern system began, a number of people sentenced to death have been released after courts or prosecutors concluded they were wrongly convicted. The exact count depends on how a case is defined, and advocacy groups and prosecutors count differently, so I will not give you one number. The existence of the cases is what matters. A system that has produced even a few such results has demonstrated that it can err.

There are three honest responses.

• Better process. Supporters argue that modern safeguards, including DNA testing, have made wrongful convictions rarer and that the answer is to improve the process, not abolish the penalty. DNA evidence has led to exonerations of some of the wrongly convicted, which supporters read as proof that the system can correct itself, and skeptics read as proof that it needed correcting.
• Narrow the penalty. Some supporters would reserve capital punishment for cases with overwhelming proof, such as video evidence or a confession corroborated by physical evidence, which would cut the risk of error.
• Accept the risk. A harder-line response holds that every human institution errs and that society accepts the risk of error in many life-and-death decisions, from police shootings to military action. The skeptic's reply is that those are not irreversible punishments imposed after the fact.

I think the exoneration argument cannot be waved away, and I think it has a serious implication for anyone who favors the penalty: it should be reserved for the cases where proof is as certain as human institutions can make it, and the system should be willing to pay for the safeguards. A person who supports the penalty and opposes the cost of the appeals should reflect on whether those are two ways of saying the same thing.

The cost and delay problem

This is the part of the debate where conservatives could in principle agree, because both camps are unhappy with the status quo.

The modern system is slow. A person sentenced to death in an American state often waits many years, commonly more than a decade, before the sentence is carried out, and a large share of death sentences are never carried out at all, because they are overturned, commuted or the prisoner dies first. That has a double cost. The supporter of the penalty sees a promise to the victim's family that the system does not keep. The skeptic sees an expensive machine whose product is mostly delay.

The reasons for the delay are not mysterious. The Constitution requires a careful process, since the penalty is irreversible, and the Court after Furman demanded heightened procedural protections. Reform is possible, such as tighter deadlines for appeals and better lawyering at the front end so cases are not sent back for avoidable mistakes. But each proposal has a tradeoff: speed risks error, and care costs time. A conservative who values both justice and fiscal sense has to decide which price he is willing to pay, and in which cases.

Where I come down

I have given you both cases at length, so here is the verdict, with the values marked.

Fact: The Constitution permits capital punishment, and Gregg upholds guided systems. Fact: The process is slow and expensive, and exonerations show it can err. Value: Some crimes, deliberate murders of the innocent, are grave enough that the moral case for the ultimate penalty is strong. Value: The power to kill is the power a free people should trust to government only with the greatest caution.

Taken together, I come out as a reluctant supporter of the penalty in principle and a hard skeptic of the system in practice. I would keep it for the narrowest set of cases, the deliberate murder of the innocent with overwhelming proof, and insist that a government that wants this power must be willing to pay for the safeguards that make its exercise defensible. If a state cannot meet that bar, a conservative should be ready to say that life imprisonment is the better answer, without any loss of moral seriousness. Reasonable conservatives will draw the line somewhere else, and I am not going to question their principles. I am going to ask that they tell me why they draw it where they do.

For related questions about how courts and sentencing fit together, see The Case Against Cashless Bail Starts With the Victim, Not the Defendant and What the Recidivism Numbers Really Say About Second Chances. For the Founding-era rights of the accused, see Twelve Strangers, How Trial by Jury Crossed the Atlantic to America. You can read the Fifth and Eighth Amendments on the Constitution page.

The case in brief

1. The Constitution assumes capital punishment can be lawful, and Gregg v. Georgia (1976) upheld guided systems after Furman v. Georgia (1972) struck down standardless ones.
2. The retributive case rests on proportion, the Western and Scriptural tradition, the dignity of the victim and incapacitation.
3. The skeptical case rests on distrust of government power, the risk of irreversible error shown by exonerations, the cost and delay of capital appeals, and a consistent ethic of life.
4. The Catechism's revised paragraph 2267 (2018) and Nebraska's 2015 repeal and 2016 referendum show the argument happening inside faith communities and state legislatures.
5. A conservative can reasonably favor the penalty in principle while demanding that it be confined to the clearest cases and funded with real safeguards.

What you can do: look up how your own state handles capital cases, including the cost and the number of death sentences actually carried out, and tell your state legislator what you think.