If you take the life of another, you forfeit your right to continue living.
All Americans, including libertarians, a contingent often wary of capital punishment, should not only tolerate the death penalty, but embrace it. For the sake of clarity, the purpose of this article is not to discuss whether the death penalty is effective or ineffective at achieving some social goal such as deterrence, but rather that it is, in and of itself, moral. To be clear, capital punishment should, and must, be reserved only for the most heinous crimes.
First and foremost, the death penalty is retributive, Libertarianism, despite being a big tent philosophy, is generally associated with favoring punishment in proportion to the crime. As Rothbard puts it, “The criminal loses his rights to the extent that he deprives another of his rights.” Such a view would suggest that anyone who commits murder should be put to death, assuming the consent of the victim’s next of kin, yet many libertarians would beg to differ. The chief reservation for libertarians often concerns the fact that capital punishment cedes significant power to the state, a situation fundamentally feared by those who identify as libertarians. If libertarianism were to abandon proportionality in this particular case, however, where might it end? Murder, the ultimate deprival of another’s rights, must be treated with the seriousness that it deserves and not be an excuse to abandon the principle of proportional justice.
Proponents of small government, of course, are quite skeptical of giving the State the power to kill. But is that much different than giving the state power to inflict any sort of punishment? Is there any meaningful distinction between ceding to the state the power to imprison and giving the state the power to take the life of someone who has killed another. If one can consent to the State having the power to imprison an individual for the entirety of his life, he can surely see that the death penalty is not so much worse. In addition, libertarians must remind themselves the fundamental purpose of the state: the provision of common defense and the maintenance of law and order. If the State cannot provide for the common defense then what is the use of its existence at all? Such a State is already entrusted with using force to act in response to aggression by other state actors; thus this is not an issue of governmental power. Even shortly after the American Revolution, when Americans were most skeptical of governmental overreach, the death penalty was not even a topic of debate. This also unseats any concerns that the Founding Fathers intended that executions should be considered “cruel and unusual” when drafting the Constitution.
Another common argument for the abolition of the death penalty concerns government inefficiency. The inherent inefficiency of the government creates a situation where, in the long run, innocent individuals will be executed. This is not incorrect. Governments are notorious for making mistakes, and this situation is no different. Although accidental executions are rare, it is still a significant problem because it is never justified to commit aggression against someone who has broken no laws. However, there is no alternative to capital punishment that is consistent with the libertarian view of proportionality. By the logic that the death penalty should be abolished because innocent people may be executed, we would have reason to stop imprisoning people because many innocent people have indeed been imprisoned for, in some cases, decades. Thus, when deciding punishments, we should assume that the criminal is guilty beyond all reasonable doubt. This assumption should be paired, however, with working to enact reforms to reduce wrongful convictions.
The recent series of executions in Arkansas has put capital punishment back in the news. As many protest its existence and demand its abolition, we ought to remember that the aim of any functioning government, properly concerned with providing security to its citizens, is to mete out its punishments in proportion to the harm the offender has inflicted upon others.
Nikhil Sridhar is a student at Duke University. He works at Merion West.