I really hadn’t intended on writing about the death penalty for awhile, since it tends to be one of those polarizing issues that people tend to talk past each other over. But Seth Dillingham today linked to an article about a distant relative who is going to be executed in Texas which highlights the problems with capital punishments.
I think we can all agree that the convicted killer Jeffrey Dillingham is not the sort of person who should be released back into society anytime soon. Jeffrey was one of three people in a murder-for-hire scheme concocted by the daughter of a wealthy man who wanted her inheritance a bit early. Along with a friend of his, Brian Salter, Jeffrey Dillingham broke into a house, beat to death 40-year old Caren Koslow, and almost beat to death 48-year old Jack Koslow. A despicable act. You can even understand the emotions that went through Jack Koslow at the trial of his daughter Kristi, who masterminded the murder — distraught over the death of his wife, he urged the court to sentence his daughter to death for her part in the crime.
Does the state have the right to kill Jeffrey Dillingham? I don’t think so.
First, the moral authority that the state has derives from the moral authority that individuals collectively have — which also means that the state is limited by the moral authority that individuals collectively have. Jack Koslow was found unconscious at his house, but imagine that he had regained his consciousness with the killers in his house and managed to grab a gun and turn the tables on his would-be killers. Suppose, finding his wife dead, Jack Koslow tied up his assailants and shot them each in the head, and then dispatched his daughter. In this imaginary scenario, Jack Koslow himself would be in jail for first degree, premeditated murder, and he would be denounced as a vigilante.
If it is morally wrong for an individual or group of individuals to kill an unarmed person, it does not suddenly become morally permissible just because those people go into a jury room and come back and pass the job of actually doing the killing onto the state of Texas.
Consider how different the moral case is for simply jailing Jeffrey Dillingham for the rest of his life. Suppose Koslow disarms and subdues his assailants, but finds his phone service has been disconnected by the intruders. Fearful that the criminals might escape, Koslow locks them securely in his basement, tied up, while he goes next door to call police. Certainly Koslow has the right to lock up his criminal assailants for as long as necessary for his own protection. Similarly the state has a right to act on behalf of everyone in society to lock up criminals and exclude them from society both for our protection and as a just form of punishment.
But why not just give the state the power to do things that we all agree would be immoral if individuals or groups of individuals did on their own? Well, we can look at the results because that idea forms a set of legal principles called sovereign immunity. Sovereign immunity originated as the right of kings — since kings were, at least theoretically, the source of all laws under monarchies, it followed that whatever the king chose to do was by definition legal. It was considered literally impossible for the king to commit a crime.
Now obviously, this sort of principle was never adhered to exactly though the rights of royalty in monarchies until very recently were extremely broad. Unfortunately this idea carried over into the democracies that emerged from these monarchies and is, in fact, a well worn principle in the United States. Sovereign immunity is the reason, for example, that when Firestone makes tires that are allegedly unsafe, people can and do sue them. When the government passes fuel mileage standards that, according to a recent Harvard study, cause several thousand additional deaths each year, however, don’t even think about suing the government. The case will be thrown out without a second hearing on grounds of sovereign immunity.
In his recent book, Feeling Your Pain: The Explosion and Abuse of Government Power in the Gore Years, James Bovard noted the extraordinary claim made by the Justice Department after the Ruby Ridge fiasco in which FBI agents used unconstitutional rules of engagement to shoot any armed individual on sight.
After investigating the shooting, an Idaho prosecutor indicted an FBI sharpshooter who had shot and killed an unarmed woman. Justice Department lawyers actually argued in federal court that federal agents were immune from state or local prosecution for any alleged crimes they committed while acting in their role as federal agents. The scary thing is that the federal judge agreed that as long as a federal agent had a “reasonable belief” that he was acting legally on orders from superiors, any alleged crimes he committed could not be prosecuted by state or local authorities.
As Bovard writes of the Clinton administration — and you could substitute pretty much most every other presidential administration this century,
Another Clinton legacy is a two-class system in America: those whom the law fails to restrain, and those who it fails to protect; those above the law, and those below it; those for whom there is “not controlling legal authority,” in Vice President Gore’s famous words, and those for whom there are few, if any, constitutional protections. … The notion that “the king can do no wrong” permeated the Clinton administration’s legal and public relations defense strategies.