Why It’s Completely Consistent To Be Pro-Life And Pro-Death Penalty

Why It’s Completely Consistent To Be Pro-Life And Pro-Death Penalty

The positions are not necessarily in conflict, but prudent people should avoid support for the death penalty anyway.
Benjamin R. Dierker
By

A recent bill proposed in the Ohio legislature criminalizing abortion has stirred up questions about the pro-life movement’s consistency. The bill would treat abortion like murder and subject offenders to commensurate sentences, including the death penalty. The obvious question arises: can one be pro-life and pro-death penalty, or is this hypocrisy?

The positions do not necessarily conflict, but prudent people should avoid support for the death penalty anyway. Here’s why.

The term “pro-life” and accompanying movement are about birth and the inalienable natural right to life, specifically the right to continue that life outside the womb. While many pro-life adherents also do humanitarian work and oppose war and the death penalty, those are not tenets of the pro-life movement.

The claim that pro-life really just means “pro-birth” is not incorrect. But that’s the point. It is a single-issue movement to prevent destroying defenseless human life at its source. Not supporting other causes may be bad optics to those who disagree about the death penalty, but it is not hypocrisy. What about actually advocating for death?

An Unborn Child Is Not a Convicted Felon

There is no immediate hypocrisy in supporting the death penalty. There is a gaping categorical chasm between killing an unborn child and a convicted felon. Even after seeing these differences, there remain reasons to oppose the death penalty. But it is important to first separate them, because while both end a life, abortion is an unjustified moral offense, while the death penalty is an attempted application of justice.

To be put to death through abortion, all that must occur is a pregnant woman deciding the unborn is unwanted. She can unilaterally decide, without the advice or consent of her partner, a neutral third party, or the child. There is no requirement that the unborn child commit any offense, nor mediating institutions to protect her interests.

By stark contrast, before any felon is put to death, a number of conditions must be met. There is a class of crime known as a malum in se crime: wrong in itself. As humans, we know crimes like these are wrong even before the government says so. These are codified in clear and public law, with the penalty also clearly published. The criminal must knowingly violate that natural and written law by choosing to do wrong—usually taking another person’s life. The difference between abortion and death penalty is already immensely clear: one ends an innocent life and the other ends the life of a wrongdoer.

There Is No Trial for an Unborn Child

Once the criminal has voluntarily committed an offense, he is investigated, arrested, indicted, and given a trial. He has the right to an attorney to argue in his defense and mitigate the sentence. Before a trial of his peers and a neutral judge, the offender enjoys a presumption of innocence. The state has the highest burden of proof in law to prove beyond a reasonable doubt that the accused committed the offense in question.

Yet there are no intermediaries or counselors arguing in defense of the unborn child, who beyond a presumption of innocence lacks the capacity for guilt in the first place.

Even then, the convicted felon is not immediately put to death. He has the opportunity to appeal his conviction to another neutral court and argue against his conviction or the sentencing. This added layer of due process affords convicts multiple opportunities before dozens of parties to plea for mercy, appeal to the law, and ultimately delay or avoid the death penalty. The unborn little girl has no due process of any kind, yet her natural right to life is abridged before she can even enjoy it.

Abortion Deliberately Ends a Human Life

To treat abortion-minded mothers and abortionist as murderers is not a wild stretch. In Ohio, many believe this is appropriate, and that the woman and abortionist who knowingly violate natural and written law should be punished for ending a human life. Setting that punishment is not easy.

It is plain that abortion ends the life of an innocent human person, who has committed no wrong, has no right to a defender, and is afforded no due process or given the benefit of appeals. She can be destroyed by the whim of a pregnant woman and abortionist. By contrast, the death penalty ends the life of a guilty person, who has willfully committed a known wrong, and was afforded all the due process possible before being put to death.

To see these versions of ending a life as categorically different, and to abhor the first and support the second is not hypocrisy. To some, it is common sense.

Some May Still Prudently Oppose the Death Penalty

But the common sense of the death penalty is not quite as obvious to me. The guilty party must face justice, and there is a social interest in punishing a murderer for his contemptible crimes, but a few factors give me pause.

Our criminal justice system seeks a few goals, namely: incapacitation, retribution, deterrence, and rehabilitation. For argument’s sake, rehabilitation is off the table for those egregious enough to be sentenced to death. The others are already achieved through a life sentence without parole.

Imprisonment is incapacitation, and without parole it is already permanent. Retribution is already achieved through life-long deprivation of freedom and confinement to prison. For the criminal, execution actually cuts this punishment short. For the victim, executing the convict does not make them whole or satisfied.

Deterrence is only marginally affected by the death penalty, and even then, it punishes one party to prevent others from doing something. Punishment should be aligned with the wrongdoer, and one man’s death for such marginal deterrence of others is out of proportion.

Punishment should be aligned with the wrongdoer, and one man’s death for such marginal deterrence of others is out of proportion.

Many will recognize that life in prison is a full punishment, but still long for something more. Indeed, some believe the death penalty is a moral requirement. To this, I say that permanent deprivation of freedom through incarceration is full punishment, and true moral justice is in God’s hands.

As an earthly matter, there are many practical reasons to oppose execution. Besides the death penalty only marginally (if at all) improving the criminal justice aims, it creates unintended consequences.

Execution is very expensive. In fact, due to the complex legal protections, it can be far more expensive to kill an inmate than to incarcerate him for life. If prison cost is a concern, there are ways to reduce the burden on taxpayers by cutting amenities or requiring inmates to work. The fiscally conservative answer is to lock them up and throw away the key, not finance endless appeals.

Wrongful convictions do occur, and it is better to wrongly imprison someone than to kill him. Alive, a wrongly convicted man can see his family, continue his legal appeal, raise media and political awareness, or spend time reading or in prayer. Dead, the state has ended an innocent life. Evil or innocent, incarcerated individuals can also add value to society.

A Civil Society Should Avoid Killing When Possible

Empowering the state with the authority to end life is dangerous. We agree to give the government the power to arrest and imprison people, but death is irreversible. Justified police shootings and warfare against active adversaries is one matter, but killing a man in handcuffs is the ultimate authority over life the government should not possess.

Killing a man in handcuffs is the ultimate authority over life the government should not possess.

These and other arguments against the death penalty do not require one to view it as a moral right or a moral wrong. It can be settled as a practical matter. Severe punishment can and does exist in lifelong incarceration. Perhaps those punishments should be increased and costs saved. But the argument that killing is the only or the necessary solution is weak.

If spending a lifetime in a small box is not enough punishment, we should reexamine our prisons, not give the state the ultimate power over life and death. A civil society should avoid killing incapacitated persons who pose no threat.

The unborn are the epitome of incapacitated persons posing no threat. We should not permit them to be killed. As for their killers, more killing does not advance the cause of justice. Reconciling abortion to the criminal code for murder is the right step, but allowing the death penalty in that or other cases should be reevaluated. A practical, effective, and desirable alternative exists in life without parole. If more punishment is needed or costs need to be cut, it should not come from allowing the government to kill more people.

Benjamin Dierker is a law student at the Antonin Scalia Law School at George Mason University. He holds a master's degree in public administration and a bachelor's degree in economics, both from Texas A&M University. He is a Christian and a Texan and loves to talk about both.
Photo Photo by Marcy Sanchez / U.S. Army

Copyright © 2018 The Federalist, a wholly independent division of FDRLST Media, All Rights Reserved.