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November 2003

By David Thomasson

Conservatives and the death penalty

With conservative ideas sinking new roots across American culture, conservatives have new reason to test their own thinking. Columnists George Will and Dennis Prager set an example by reopening a question widely regarded as settled among conservatives: the moral justifiability of the death penalty.

Will began with a column that cited chilling case histories from Scott Turowís new book ďUltimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty,Ē cases in which innocent defendants were sentenced to death. They illustrate the elusiveness of due process in capital cases and drive Will toward the conclusion that ďthe ultimate punishment makes reason not merely stare but ultimately turn away.Ē

Stunned by Willís departure from orthodoxy, Prager replied that Will had ďabandoned his characteristic depth of analysis.Ē But it was Prager who sailed into the shoals on the following rebuttal: ďAn innocent may be killed? Many moral social policies have the possibility and even the inevitability of the death of innocents. As I noted in a previous column on this very issue, even if raising speed limits means an inevitable increase in innocents' deaths, the greater good of higher speed limits will still prevail.Ē

Prager characterizes the innocent-death objection to capital punishment as a broadax, cutting down all manner of other useful social policies that lead to the deaths of innocents. But does his innocent-death analogy hold up? When an innocent defendant is put to death, is that morally comparable to highway deaths resulting from higher speed limits? I can think of four differences that all point toward No.

The first difference is causal. An execution causes a defendantís death, but higher speed limits donít cause the deaths of motorists. There is a morally relevant difference between permitting people to take voluntary risks (such as driving faster), and causing their deaths. If you let your kid ride a bicycle and he breaks his arm, thatís one thing. If you break his arm yourself, thatís quite another. But following Pragerís reasoning, if you have moral qualms about breaking your childrenís arms, then you must also forbid them to ride bicycles, because they might take a spill and break their innocent bones.

A second difference has to do with intent. When legislators approve higher speed limits, they donít intend to cause anyoneís death, even if some deaths are statistically foreseeable. Again, thereís a morally relevant and easily understood difference between an act intended to cause deaths (sending Jews to Dachau), and an act for which deaths are a foreseeable but unintended consequence (sending U.S. troops to Normandy). Pragerís analogy has no place for intent.

A third difference concerns justice. A guilty verdict is a judgment that someone has intentionally and knowingly done wrong. A false judgment of guilt is unjust. In contrast, a legislative permission is merely that — a permission and not a judgment, much less a false judgment. When highway death tolls rise with increased speed limits, the dead are not victims of injustice. But when an innocent defendant is put to death, it is a monstrous injustice. Prager paves over this difference and rolls on.

A fourth difference concerns punishment. An execution, unlike a highway death, is punishment. This raises special questions. Moral and legal philosophers clear back to the ancients have grappled with the problem of justifying punishment, and itís a hard nut to crack. Is punishment justified because the guilty deserve it (retribution)? Or because it will deter others (utilitarian)? Or perhaps both? How should we determine desert? How can we measure deterrence? How do we proportion punishment to offense? The problem of justifying higher speed limits is hardly in the same class with this.

Sailing past all four of these moral differences, Prager expresses round-eyed astonishment that Will ďtakes a position against a policy that I, and most of his other ideological allies, hold to be one of the pillars of civilized life. [He] has come out against executing murderers.Ē

Actually, no, he has come out against executing innocents. The pillar that Prager alludes to is a conditional moral principle: If a person commits murder, he deserves to die. Will doesnít challenge that principle in his column, and Iíd be surprised if he challenged it elsewhere. Rather, he addresses a separate question: If we are to apply that principle, by what procedural and evidentiary rules can we reliably establish that a defendant has, in fact, committed murder? Turowís thesis, and Willís point, is that the rules and procedures we have now arenít nearly reliable enough. When reason stares at the uncertainties, it ultimately turns away.

Pragerís shock tells us why Willís challenge is useful: because it rouses a philosophically complacent conservative orthodoxy that keeps its core ideas bottled and corked, like some matchless vintage that may be reverently viewed in the cellar but never opened and tasted. Ideas, however, arenít like that, and we ought not to be horrified when a George Will uncorks one and finds it bitter. It was his informed skepticism, after all, that goosed Prager and brought out a feeble defense of capital punishment that many conservatives uncritically recite. So trial and error does have its good points. Let the intramural debate continue.

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