Inconsistency and Hypocrisy

north america / mexico | crime prison and punishment | opinion / analysis Wednesday December 26, 2007 16:46 by John Artukovich FLCL02 at hotmail dot com

An Anarchist Critique of the Death Penalty in the United States

This following essay contains my personal analysis and critique of the death penalty mainly as it applies specifically to liberal democracies (centered around the united states). I'm basically attempt to deconstruct and determine the validity of common arguments for the death penalty and analyze their legitimacy, and contrast it with some of my own against it.

Based on the standards of the constitution, (also regarding federal and state law), Morality, consistency (based on the states own doctrine), and the so-called utilitarian after-effect, the death penalty is contradictory, thus intrinsically illegitimate, and should be abolished. Under this premise, we can begin our analysis.

To determine the legitimacy of any “method”, one must first consider if (in this case) the methodology is contradictory, which would thereby make it illegitimate by its own logic. In the case of the Death Penalty, one must determine if the dominant laws of the state permit such action (which is defined as another law) to be initiated in the first place.

Seeing as the United States views itself as an international hub of freedom and democracy, and is the world’s sole superpower with overriding influence (veto-power at the UN security council), so to does it seem to be a fair setting to examine the nature and effects of the death penalty.

The United States constitution should act (in this case) as both the centerpiece and the starting point for analysis, seeing as it is the sole document that essentially permits the actions of, and ultimately gives rise to (at least in theory) to American democracy. As such, by its contents, we can determine overall consistency.

The constitutional conflicts are as follows (regarding the US-based use of the death penalty): Amendment 8: “Excessive bail shall not be required, nor excessive fines imposed, nor [shall] cruel or unusual punishments be inflicted” Amendment 9: “The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people.” [1]

What is more “cruel and unusual” then to deny a citizen of not one, but all his rights? That is those that are natural [de-facto], and textual rights [de-jure]. These (textual) rights were elaborated elegantly by the founding fathers in the “Declaration of Independence, stating: “That all men are created equal…with certain inalienable rights, and among these are: Life, Liberty, and the pursuit of happiness”.

The contrary view “is” or ties back to the “traditional” (conservative) constitutionalist view. It is that simply because the death penalty was indeed legal during the time the 8th & 9th Amendments to the Constitution were formed, that it maintains a historical basis, and thus fits in with the original intent of the document; condoned by the founders of the country, and thus it is legitimate.

However, on a logical scale, this view does not in the least bit establish legitimacy; it merely establishes a historical precedent, based on the de-facto primitive beginnings of a state. As such, it is not vindicated in any way, as law acts in a de-facto sense, not in a traditionalist sense. Judgment (per statist doctrine) should logically be on the basis of the nature per se of the amendment, and the result of its effect. Advancing intellect, and re-evaluation of morals supersedes initial intent; in addition, the de-facto status-quo of one area does not merit the same action in another.

It should also be noted that during the time that both the 8th and 9th amendments were created, both the rights of blacks Americans and women’s suffrage were essentially nil. Yet the contemporary adherents to this conservative view (who establish historical president as a means to equal legitimacy), seem to have overlooked this simple fact; as such presents a contradiction to general attitudes, which most proponents of this method claim to be apart of. The nature of something defines it as legitimate and/or moral, thus, a historical events never vindicates existence.

The second point of innate contention presents itself is the social contract, specifically that which is the basis for modern liberal democracies. The social contract was formed (theoretically in this regard) [in the tradition of Rousseau] by man consenting away his freedom in exchange for the insurance of protection of his basic "civil" rights (defined in text, usually per the contract). These clauses “typically” include (but are not limited to) life, liberty, and private property. The essence of all three clauses illustrated in the words of Rousseau: “To live is not merely to breathe: it is to act; it is to make use of our organs, senses, faculties of all those parts of ourselves which give us the feeling of existence; and such is the essence of liberty”…“Even if each man could alienate himself, he could not alienate his children: they are born men and free; their liberty belongs to them, and no one but they has the right to dispose of it.” Furthermore he stated that: “Government originated in the attempt to find a form of association that defends and protects the person and property of each with the common force of all.”

According to this, it necessarily follows that if the state has knowingly put the individual in a situation where he has “no” rights (the very essence of the death penalty, as it negates life itself), then it has breached that contract, contradicted itself, and can no longer be seen as legitimate (under its own logic). A social contract should not be held in the realm of contemporary legal contracts, where by if the individual reneges on it, the state is free to do as it pleases. [In terms of logic, two wrongs don’t make a right]. The cases quite the contrary, the social contract serves as nation-wide institutional memory, in other-words, the statist methodology employs the contract as a basis for all interaction. Now per the contract, a state can hold the individual to that which they’ve consented to, yet, such authority can never transcend these institutional fetters. If it does, it has admittedly failed its very intention for design; creating a function, an institutionalized killing mechanism, that serves a role contrary to its own stated purpose. In such a case, the state, the “reigning authority”, has put itself before others and therefore it is illegitimate by assumption and should subsequently be dismantled.

In response to this, some would articulate that: the ends justify the means. (A common authoritarian utilitarian principle). That is, by carrying out the death penalty they’d be serving general utility by doing such as follows: providing “reasonable retribution”: the state engaging in coercive vengeance in an attempt to comfort to the families & friends of the victims; deterring other criminals from similar acts, and eliminating any negative future actions from the accused perpetrator. The case of “retribution” acting as a kind of (criminally) “relative” attempt at creating fairness. Such is employed in a modern day “eye for an eye” setting.

In response to this (using America as the primary setting), the death penalty can be seen as strictly reactionary; as the act itself does little to prevent (or deter) the specific crime in question. Such can be seen in crime comparisons; that is homicide rates between US states that employ the death penalty and between those that reject it. Statistically trends indicate the inverse to the pro death penalty argument, as correlation between the states reveals that there is indeed a smaller percentage of violent crime found in non-death-penalty states. When looked at via a decade based statistics, the gap in percentages between homicides rates are increasing dramatically (favoring non death penalty states). [2] [3] [4]

In the US on the issue of (crime-related) “relative punishment”, the death penalty can be imposed for crime in which the perpetrator didn’t kill (or intend to kill) the victim. The act the state deems worthy of such punishment is arbitrarily left up to [the] particular state in question. This element goes beyond even the most barbaric Hammurabian concept of fairness, in that, equality of circumstance does not create equality of result. [5] [6] It is also thereby much more costly to society then any potential positive utilitarian aftereffect [7] [8].

The state prohibits (via law) its citizens to kill. That is, unless faced with the threat of direct coercion, which (legally) legislates that self defense is justified, no individual is allowed to kill.

Thus, citizens are not allowed to murder on a whim, under the influence of drugs, in the interest of retribution, to serve the general utility, or to satisfy want. Why then should the state be able to transgress its own authority and engage in acts it itself outlaws? Several of the rational(s) the state provides being synonymous with many of the same reasons individuals commit the acts of murder in the first place. Individuals who despite the same reasoning, despite the same “reasonable retribution” (that is justified legally so long as the states doing it) would have been otherwise killed (by the state) or incarcerated for initiating such force.

If we apply Occam’s Razor to the matter, we find that individuals the state finds guilty of murder are typically condemned to death, yet the state apparently doesn’t even adhere to its own principle. Because per the very same rational given by the state to justify murder, so to should the individual member(s) of the state who carry out such executions be in effect guilty of murder. Therefore, under the states own logic, they should be shot under the same principle that allowed them to initiate the killing (Ad infinitum). The end result itself constitutes a logical fallacy: [Reductio ad absurdum] or “reduction to the absurd,” thereby making any political philosophy which espouses such doctrines quite unsound:

Lastly, regarding the negation of the potential effect of the so-called murder himself on society; little can be added. Seeing as the purpose of prisons and the Justice system in the first place is so that individuals who (the state perceives) causes harm to society are “rehabilitated” and can become “a functioning member of society.” Under this interpretation, the death penalty is not only contradictory, but downright irrational. Furthermore, per the fundamentally anti-utilitarian reasons above, and per the nature of the Justice System intent of creation, removal of the individual is not only contrary to its purpose, but also negates general utility, upon his death.

The only reason the state is able to institutionalize such killings (in a policy of death), essentially occurs because it’s able to defy its own limitations on authority, put itself before others, and break the very contract its founded on; concerning the United States specifically, the supreme law of the land. In addition, the reasoning for why this has been able to occur in the first place: “the ends justify the means.” Such is spewed from those who have neither the foresight, nor the authority to make such a judgment, violating their own internal laws and principles to initiate such force. Therefore, any specific institution(s), that espouses a doctrine and/or practice that uses the death penalty are illegitimate, and should be dismantled.

In study and implementation of all political philosophy, hypocrisy necessarily comes into question, in that, we must apply to ourselves, those standards by which we judge others; if anything else is done, there can be (politically) no objective standard for validity, and there can be no hope for a better society.

In the interest of societal change, the notion that the death penalty is wrong should be recognized as a blatant truism throughout society. For it is the notion that it isn't (like other authoritarian beliefs) that pose the greatest threat to radical change in the interest of creating a free society.


1: US CONSTITUION: http://www.law.cornell.edu/constitution/constitution.table.html#amendments

2: http://www.deathpenaltyinfo.org/article.php?&did=1705#stateswithvwithout
3: http://www.deathpenaltyinfo.org/article.php?scid=12&did=169
4: http://www.deathpenaltyinfo.org/article.php?scid=12&did=168#stateswithvwithout
5:http://www.ohchr.org/english/bodies/hrc/docs/ngos/death%20penalty%20shadow%20rpt%20final.pdf

6: http://www.unodc.org/pdf/crime/capital/E-CN-15-2001-10.pdf
7: http://www.amnesty.org/en/alfresco_asset/f28fe3cf-a366-11dc-9d08-f145a8145d2b/act500122004en.html

8:http://www.amnestyusa.org/Fact_Sheets/Death_Penalty_Defies_International_Human_Rights_Standards/page.do?id=1101089&n1=3&n2=28&n3=99

9: http://www.un.org/Pubs/chronicle/2004/issue4/0404p29.html