The libertarian case against capital punishment

Walter Barton // photo by Missouri Department of Corrections

The state of Missouri this week executed Walter Barton, a case rife with controversy and alleged prosecutor misconduct. The Innocence Project claims that Barton was likely innocent.

I was a proponent of capital punishment myself around 15+ years ago until Penn Jillette planted a seed in my head that I may have been wrong on the topic. After much thought, I realized all my reasons for it were emotionally based with little basis in reason or evidence.

I have heard conservative pundits claim there have been no innocent people executed. This claim is highly questionable. It is also undeniable that there have been many people on death row that were innocent.

There are many reasons against the death penalty. The high cost of the death penalty versus life in prison, due to the legal procedures. The irreversible action of killing someone. The lack of solid evidence that it actually deters crime. The power given to a government to kill its own citizens.

The last reason above should be sufficient reason for any serious libertarian to be against capital punishment. But I want to focus on a strictly ethical libertarian framework. I'm applying this to cases where the defendant is guilty because, quite frankly, opposing the death penalty is (or, should be) easy when the defendant has a strong case.

The foundation for ethics among libertarians is the Non Aggression Principle (NAP). It states that nobody may initiate force against another. If someone murders someone else in cold blood, that violates the NAP. If someone else is there, they may kill the perpetrator in defense of self or others while still complying with the NAP.

However, let's assume it's ten years later. Would it be okay to walk up to the perpetrator, while he's minding his own business, and shoot him in the head? I think most would view this as an act of initiating force. To make this more in parallel with capital punishment, let's say the perpetrator, ten years later, is in a cage for his misdeed. Would it be okay to walk up and shoot him in the head, when he was clearly incapable of posing a threat to others?

This would clearly be a violation of the NAP. When a murderer is in jail, separate from society, he poses no risk to society. Therefore, the state would be initiating force in killing the person. One cannot reasonably be following the Non Aggression Principle by killing someone that is no threat to somebody else.

There are three reasonable objections to this that I know of.

One is that the cost to imprison necessarily imposes a cost to others, a violation of the NAP in itself. Well, so does killing someone. Currently, the cost to imprison for life is less than that of capital punishment. This is a necessary cost, as the law is applied by imperfect humans. If there is to be a death  penalty, there must be a very high degree of certainty that the person is guilty. Otherwise, we would be killing innocent people, which is a much more of a gross violation of the NAP than costing people money.

The second is that they may pose a threat to staff or other inmates. Death is certainly not the only way to take care of this. Isolation of highly dangerous inmates can be an effective a deterrent without the finality of death.

A third is that they may escape and again pose a threat to society. This is largely an unfounded fear. The incidences of escapes from maximum security prisons are exceedingly rare and when it does happen, the escapees are picked up within a day of escape.

In every objection, the violation of the ethical foundation of libertarianism is significantly higher with capital punishment.

Although the National Libertarian Party Platform has a plank against capital punishment, it's confounding as to why the California Libertarian Party can't seem to get an anti-death penalty plank onto the platform.

How many more Walter Bartons do states have to murder before we get our shit together?