The Conservative Argument Against the Death Penalty

California is going to have a referendum on the ballot this fall to abolish the death penalty in that state and Conor Friedersdorf makes the conservative argument against the death penalty, based on both economics and the inherent contradiction within conservative rhetoric about the government:

Steve Cooley, the District Attorney in Los Angeles County, is against the initiative. “This would essentially eliminate death penalty for the cop killers, the baby killers and the serial killers that are among us,” he said, adding that if its proponents “want to let these people live out their lives gracefully and expensively, with us taking care of their healthcare bill, fine and dandy, but some of these criminals have forfeited their right to be on the face of the earth.” It’s a misleading argument, because administering the death penalty turns out to cost more than locking people up for life. “The measure directs $100 million saved from abolishing the death penalty be spent over three years investigating unsolved murders and rapes,” The Associated Press reports.

Cost aside, conservative support for the death penalty is problematic insofar as the right asks voters to believe both that 1) government is frequently inept and corrupt, and inclined to abuses of power; 2) government is capable of determining guilt with sufficient certainty to irreversibly impose the most extreme penalty there is.

According to conservatives, the government can do almost nothing right — except always convict the right people and always administer the death penalty only in cases of absolute guilt. This is hardly a coherent argument.

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  • jamessweet

    Ah yes, but he’s forgotten the conservative argument in favor of the death penalty:

    “Herp-de-derp, themz iz criminals, so we gots to kill them and stuff!”

    Seriously, you can’t argue with impeccable logic like that.

  • Reginald Selkirk

    and the inherent contradiction within conservative rhetoric about the government

    All well and good, but modern day conservatives don’t seem to be bothered at all by contradiction and hypocrisy; so I don’t think his argument will gain much traction among the target audience.

  • Gregory in Seattle

    Wow. A conservative who is actually consistent on a pro-life position? Will wonders never cease.

  • Pieter B, FCD

    Said it before, I’ll say it again: if you’ve ever said “The government can’t do anything right,” you must oppose the death penalty.”

  • Ben P

    I liken this to the “millions for defense not a penny for tribute” argument.

    There are basically three plausible rationalizations for any system of criminal justice. (1) Deterrence – i.e. You know that if you break the rules, there’s punishment, so you don’t break them, (2) segregation/protection – we want rule breakers out of society so they can’t hurt society, and (3) retribution – you’ve broken the rules and you need to be punished.

    There are plausible arguments for the death penalty from either a retribution or protection standpoint, I specifically say “plausible” because neither is terribly well supported by research, but its not irrational that the death penalty could be a deterrence beyond life in prison, or that some people might just be so dangerous, even inside the prison population, that execution is a safer option.

    But when you look at the thought process of people that support the death penalty, what you really see is naked retribution. These are bad people and they deserve to be put to death, therefore the death penalty is good. The argument that otherwise we’re just providing them with free room and board for the rest of their lives has at its base an implicit rejection of any claim that prison serves a purpose other than punishment “we make bad people go there.”

    By the same token, you get the argument that “I don’t care if we save money, costing money to execute people is better than giving them free room and board.” (Millions for defense, not a penny for tribute).

    you also get the other argument, which is they will argue that most of the money we spent on capital punishment is specifically for extra mandatory appeals and other legal processes that act as safeguards for the death penalty system, many people who take the naked retribution position will, if given the chance, argue that this money could all be saved anyway if we just stopped “babying” the killers.

  • matty1

    It’s hardly unique to this issue, conservatism has this contradiction at its core. On the one hand government is a something to limit and oppose, on the other hand government should have unbridled power to impose (insert preferred social policy here).

    It’s almost as if they only really want to shrink their own taxes and have no problem with the size or scope of government.

  • Chiroptera

    Pieter B, FCD, #4: Said it before, I’ll say it again: if you’ve ever said “The government can’t do anything right,” you must oppose the death penalty.”

    As well as warrantless eavesdropping, suspending habeus corpus, giving every police officer the benefit of the doubt in every circumstance, bombing civilian targets….

    It seems that “government can’t do anything right” and “government employees are all corrupt and incompetent”…except for all aspects of our state security apparatus.

  • It’s a misleading argument, because administering the death penalty turns out to cost more than locking people up for life.

    Not to nitpick, but…

    I’d like to see the numbers on that actually. It reminds me of those people who will leave TVs on for hours, even if nobody’s watching it, because turning it back on somehow draws more energy than would be saved by turning it off. If that were the case, every time someone turns on a TV, they’d cause a town-wide brown-out.

    If it costs 45K a year, and the person is in prison for 22 years, are you really saying the execution would cost more than $1,000,000?

  • Michael Heath

    Let’s not forget that Conor Freidersdorf, like Andrew Sullivan and I think perhaps Daniel Larison and Bruce Bartlett but not David Frum, are apostates. Both in terms of not affiliating with the political party which is now monolithically dominated by conservatives, the Republican party, and from the conservative movement itself. The reason seems self-evident to me; conservatism is equivalent to a narrow set of psychological profiles. All three of these people demonstrate well-developed critical thinking skills and base their arguments on facts, contra the conservative mind sets which both dominates and derives arguments based on either a selfish objective – a subset of the plutocrats who leverage the power of the GOP, or delusional thinking – conservative Christians.

    Conservatism in the U.S. is no longer driven much at all by a consistent application of principles; nor is it motivated by a pragmatic reluctance to discard with what’s worked in the past for the new-fangled thing. Nor do they consistently demonstrate any fealty to authority for the sake of order. So while we still have some conservatives who identify as such, at best they’re now outliers to what defines conservatism today.

    The best exemplar I see of the most celebrated form of conservatism proclaimed on paper, Burkean conservatism, is Barack Obama. Which illustrates how far the movement has evolved into something different.

  • It turns out in some cases, it’s not more costly to keep the person alive. And for that reason, I no longer use the “it’s cheaper to keep people alive” argument. And quite frankly, my opposition to the death penalty isn’t because it’s cheaper. It is because a) I don’t trust the government to consistently get the right person and b) I don’t even think it’s right to kill anyone who isn’t a threat even if he or she is the right person.

  • slc1

    Re JT @ #8

    The cost includes litigation on the numerous appeals. Actually, at least in California, there are people on death row who have been there longer then 22 years. For instance, the Night Stalker, Richard Ramirez, has been on death row for 23 years and counting.

  • If doctors could shoot patients who make them angry, conservatives would favor socialized medicine.

  • @slc1

    Salient point – hadn’t considered that aspect.

  • “This would essentially eliminate death penalty for the cop killers, the baby killers and the serial killers that are among us,”

    Won’t somebody please think of the cops, babies, and serials?

  • slc1

    Re JT @ #13

    Apparently, California hasn’t executed anyone since 2006. A list of all death row inmates in California lists one Lawrence Bittaker who has been on death row since 1981 and one David Ghent who has been on death row since 1979. There are a number of other miscreants who have been on death row starting in the 1980s. If the death penalty is not abolished, I suspect that many, if not most of these miscreants will die a natural death on death row.

  • Synfandel

    …three plausible rationalizations…

    I would add a fourth, rehabilitation, but it’s hard to argue that killing a person makes him into a good citizen.

  • d cwilson

    The cost includes litigation on the numerous appeals.

    Not to worry. Conservatives have found a sure-fire way to reduce those costs: Limit the number of appeals someone on death row can file!

    Modern conservatism is based on a strong authoritarian mindset. The whole idea of “liberty” and “small government” is just a marketing ploy. Witness how the powers and scope of government grew faster under hard-core conservatives like Saint Ron and Dubya as opposed to Clinton. Conservatives have mastered the sleight-of-hand necessary to run on the promise of shrinking government and then do the opposite.

    The reality is, what conservatives want is for the masses to stay in line and worship their authority as the rightful rulers. Fox has done a marvelous job of re-enforcing this mindset by proclaiming any criticism of Bush was treason.

    This is how they can also shrug off any concern about the death penalty. Someone is on death row for a crime he didn’t commit? Well, he probably did something else anyway. Rick Perry executed an innocent man? Well, good for him! That takes courage!

  • d cwilson


    That seems to be a trend in many states. Pennsylvania hasn’t executed anyone since 1999 and only three since 1976. All three individuals had waived their final appeals and asked for their dealth penalties to be carried out. Also, all three death warrants were signed by Tom “Color-Coded Terror Warnings” Ridge.

    Ricky Perry may be the exception rather than the rule among governors who are eager to sign death warrants.

  • lordshipmayhem

    I’m a fiscal conservative, and the “cost” argument rings true with me. In addition, as a Canadian, I’m more than familiar with the significant number of false convictions – and it’s very difficult to apologize to someone after they’ve been rendered in corpus kaput.

  • lancifer

    Of course conservatives don’t worry much about false convictions resulting in executing innocents.

    “Kill’em all and let God sort ’em out.”

    Those that are innocent no doubt get special privileges in heaven.

  • Scientismist

    I haven’t seen anyone here citing the real killer among the conservative arguments defending the death penalty: While government may make mistakes and execute the wrong people, it doesn’t matter, because God makes no mistakes, and government acts with the authority of God. And besides, a wrongful execution is no big deal, because they are innocent, and being sent to the welcoming arms of their creator, so what could be better? How’s that for impeccable logic?

    No, Really. Citation: Antonin Scalia, “God’s Justice and Ours”, First Things (Google it on line).

  • Scientismist

    lancifer pretty much got it.

  • Gregory in Seattle

    @JT (Generic) #8 – I don’t have any links handy, but I do recall the argument.

    The main issue is decades of court precedent allowing a prisoner under sentence of death to fight for his life to the fullest extent possible. The end result is that capital cases can be appealed all the way up the food chain. Most death sentences are handed down under state law, so the first chain of appeals leads to the state Supreme Court. If those don’t work, then it is common to attempt to move the case to the federal system; if they can do that, then the case can go all the way to the US Supreme Court. All of these appeals takes money: judges, clerks, prosecutors, juries, transportation. If the prisoner is indigent (and, honestly, how many independently wealthy people get sentenced to die?) then the state is obligated to assume the cost of his defense as well… and defend him competently, lest they provide grounds for even more appeals.

    In the end, it can take decades for a person to go from initial death sentence to gas chamber, during which time the state hemorrhages money, commonly in the millions for each prisoner on death row. Convict him to life without the possibility of parole and the courts can deny appeal, ending the case right then and there.

  • whheydt

    @Ben P (#5)…

    Your thinking parallels mine.

    I–as a voter in California–will probably (once I’ve read it) vote for this initiative.

    However, IF there is going to be a death penalty, THEN I think that the *reason* for applying it in a given case should determine the means. In general, I think there are 3 primary reasons for applying a death penalty.

    1. The “mad dog” situation. This person is considered so dangerous and so likely to re-offend in another capital case that the best thing to do is to remove the chance of that ever happening. In this case, the death penalty should be carried out painlessly and in private, as humanely and with as much dignity as possible, much the way one would put down a pet to spare pain. The perp may not have been civilized, but the rest of us are.

    2. Deterrent. If the death penalty is to be considered a deterrent (and, yes, I know that studies show that it isn’t, but we’re talking theory of law here), then the penalty should be carried out publicly, painfully and messily. The most public way would be prime time TV. Some of the more “colorful” Viking methods of execution come to mind for the painful and messy aspects. The idea being to *really* get the attention of other potential perps to inhibit them from doing something that carries the penalty.

    3. Revenge. This one is for the survivors or relatives of the victim and for the victim. It should be private (it’s just for those with a direct interest), painful and messy. In other word…like deterrence, but without being out there in public.

    I have also long felt that, were I on a jury deciding a capital case, I would not vote for the death penalty unless I felt that I could personally carry it out against the accused. I don’t think it’s right to ask the state to my dirty work in that sort of situation.

    –W. H. Heydt

  • slc1

    Re whheydt @ #24

    I think the 15th century Raping Children Church had the right idea. Burn ’em at the stake.

  • Doug Little

    Not to worry. Conservatives have found a sure-fire way to reduce those costs: Limit the number of appeals someone on death row can file!

    Judge Dredd anybody? I think that’s the conservatives endgame when it comes to criminal activity, except if the defendant happens to be part of their tribe of course.

  • whheydt

    Re slc1 @ #25

    Burning at the stake? No real imagination.

    Try this one. Make a small incision in the abdomen and pull out a loop of intestine. Nail that loop to a post set in the ground. Get out whips and chase the condemned around the post.

    –W. H. Heydt

  • davem

    In this case, the death penalty should be carried out painlessly and in private, as humanely and with as much dignity as possible, much the way one would put down a pet to spare pain. The perp may not have been civilized, but the rest of us are.

    Meh. If the death penalty is civilised, then you can do it in public, in full view of everyone on the street. Have a party, if you want. If it’s so uncivilised that you can’t show it, then it’s uncivilised, period.

  • Azkyroth, Former Growing Toaster Oven

    Oh, great, another mythical Principled Conservative sighting. Can we quit with the cryptozoology here?

  • This is the main reason that you’re often better off getting the death penalty: This will put a lot more scrutiny on your case (including public money to get you lawyers), which improves the odds of someone noticing if you were wrongly convicted.

  • lancifer


    Meh. If the death penalty is civilised, then you can do it in public, in full view of everyone on the street. Have a party, if you want. If it’s so uncivilised that you can’t show it, then it’s uncivilised, period.

    I agree with your point in theory, but you have greatly overestimated the decency of the common man.

    I am certain that the more brutal and gory the execution the higher would be the ratings of NBC’s new reality show Execution Island.

    On the plus side, maybe we could book Snooky and Kim Kardashian on the first episode.

  • Lancifer @ 31,

    I’m afraid you’re right. It would be the highest rated reality show in television history.

  • dingojack

    lancifer – Well I know they’re both talentless oxygen-thieves, but is that enough of a crime to have Snooky and Kim Kardashian executed?

    For those who think executions will be a kind of ‘Panem et Circenses‘ to keep the masses in line, two words:

    Jack Sheppard.



    There was a spectacular public reaction to Sheppard’s deeds. He was even cited (favourably) as an example in newspapers, pamphlets, broadsheets, and ballads were all devoted to his amazing exploits, and his story was adapted for the stage almost immediately. Harlequin Sheppard, a pantomime by one John Thurmond (subtitled “A night scene in grotesque characters”), opened at the Theatre Royal, Drury Lane on Saturday 28 November, only two weeks after Sheppard’s hanging. In a famous contemporary sermon, a London preacher drew on Sheppard’s popular escapes as a way of holding his congregation’s attention:

    “ Let me exhort ye, then, to open the locks of your hearts with the nail of repentance! Burst asunder the fetters of your beloved lusts! – mount the chimney of hope! – take from thence the bar of good resolution! – break through the stone wall of despair!”

    The account of his life remained well-known through the Newgate Calendar, and a three-act farce was published but never produced, but, mixed with songs, it became The Quaker’s Opera, later performed at Bartholomew Fair. An imagined dialogue between Jack Sheppard and Julius Caesar was published in the British Journal on 4 December 1724, in which Sheppard favourably compares his virtues and exploits to those of Caesar.

    Perhaps the most prominent play based on Sheppard’s life is John Gay’s The Beggar’s Opera (1728). Sheppard was the inspiration for the figure of Macheath; his nemesis, Peachum, is based on Jonathan Wild. The play was spectacularly popular, restoring the fortune that Gay had lost in the South Sea Bubble, and was produced regularly for over 100 years. An unperformed but published play The Prison-Breaker was turned into The Quaker’s Opera (in imitation of The Beggar’s Opera) and performed at Bartholomew Fair in 1725 and 1728. Two centuries later The Beggar’s Opera was the basis for The Threepenny Opera of Bertolt Brecht and Kurt Weill (1928).

    Jack Sheppard: Legacy – Wikipedia.