One Person's Opinion

A compendium of random thoughts regarding politics, society, feminism, sex, law, and anything else on my mind. POST YOUR COMMENTS BY CLICKING ON THE TIME INDICATOR BELOW THE POST YOU WISH TO COMMENT ON. RSS FEED AVAILABLE AT

Andrew Sullivan
Attorney Shopping Links
Bag and Baggage
Ernie the Attorney
Eve Tushnet
Gail Davis
How Appealing
Lehrer NewsHour
National Law Journal
National Review
New Republic
Talking Points Memo
Virginia Postrel
Volokh Conspiracy
War Liberal
This page is powered by Blogger. Isn't yours?
Tuesday, January 14, 2003
I've bashed on Jonah Goldberg before, and I am about to again, so before I do, let me say that he is one of the most intelligent young conservatives out there, a guy who cares about facts and ideas and does his best to avoid the sort of shrill sloganeering that people like Ann Coulter and Rush Limbaugh specialize in.

Now let's get on with the bashing. Goldberg, a supporter of the death penalty, takes on those who argue that the death penalty is inappropriate because innocent people might be executed, in the following passage (the link is at

"If you think the cost of a single innocent life is too high to justify capital punishment, in other words if you think it must be perfect in every respect, then you might as well come out against the death penalty because otherwise you'll have to argue for a perfect government program and that is an untenable position.

"But keep in mind government finds acceptable rates of accidental deaths in all sorts of areas. From friendly fire in the military to deaths on our highways to extremely rare and fatal drug side effects. Surely even one child's death is a tragedy, but we know for a fact that roughly 50 young children die every year from drowning in 5 gallon buckets, mostly in their back yards. But we don't ban buckets. And that's roughly the same number as the number of cases of accidental gun deaths among small children, and we do not require child-safe bucket locks (Note to parents: You can childproof your bucket by putting a hole in the bottom).

"If you take it as a matter of principle that the death penalty is a social good, then you must be willing to accept some level of error to achieve that social good. It would be tragic if we executed an innocent man -- hasn't happened yet -- but I would still take a mend it don't end it approach in response (unless I was the one executed). There's nothing wrong with working very hard to keep that level as low as conceivably possible, but the only way to guarantee no errors is to abolish capital punishment entirely."

The problem with Goldberg's position, however, is that his little joke parenthetical actually undermines his entire argument. You see, it is extremely easy to say that the risk of executing an innocent person is acceptable, so long as you aren't at risk of being that innocent person. That's right, go ahead, it's OK to wrongfully take someone else's life. Oh well, it happens. So long as the risk is low, it's outweighed by the benefit. But if I'm in the dock, then, of course, the calculus changes.

Of course, Goldberg, a member of a prominent Washington family, is never going to be in that position. Indeed, it is almost always only those who are poor or with lousy legal representation who get the death penalty (except for the occasional Tim McVeigh in the high profile case). If Goldberg is ever falsely accused of murder, he'll get the best defense possible and will be able to get off or at least escape the death penalty. (O.J. Simpson, if you remember, was acquitted despite pretty clear evidence of his guilt, and the prosecutors did not even seek the death penalty against him, owing to his wealth and celebrity status.) Saying that it's worth it for someone else to sacrifice his or her life for one's ideological position is not particularly impressive reasoning. Indeed, it's exactly the sort of instrumental reasoning with respect to human life that conservatives tend to oppose when the issue is abortion or stem cells.

The great philosopher John Rawls died about a month ago. His great insight was that a rule is only fair if we would choose that rule behind a "veil of ignorance", i.e., not knowing yet what position in society we would occupy. I doubt that Goldberg would be so quick to defend erroneous executions if he did not know whether he might be in the class of persons that might face such executions.

Comments: Post a Comment