Law and Order Conservatives

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The Failure of u2018Law and Order Conservatism'

by Ryan McMaken

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The death penalty is one of those blind spots that afflict many conservatives who claim to be for small and limited government. Just as some people who claim to be for small government virtually always give the a free pass to the enormous — and enormously wasteful- government bureaucracy known as the U.S. military, conservative proponents of the death penalty appear to labor under the assumption that government courts can be counted on to competently administer justice.

If the state can’t be trusted to deliver the mail on time or run a health care system, why can it be trusted with spy drones, a massive police state apparatus, and a gargantuan standing army? And why can it be trusted to figure out who is guilty of crimes and to then put only the guilty parties to death? Since there’s not time to address the military question here, let’s just let is suffice to say that on the latter question, the answer is this: the state can not be trusted with the death penalty.

The prevention and punishment of real crime is an important function, and even libertarians who wish to privatize everything are still opposed to violent crime. Many of them might even be willing to tolerate government courts as a second-best solution. (By "crime," of course, we're talking about violent actions against persons and property, and not actions of consenting adults such as drug deals and prostitution.) Thievery, rape and murder are indeed truly threats to the maintenance of a just and peaceful society.

In modern America, however, it is becoming increasingly clear that numerous persons convicted of capital crimes (and other crimes, violent and otherwise) have in fact been innocent, and that the extraction of confessions and the use of circumstantial evidence all leave much to be desired from the government courts.

As law professor James Duane has noted, there are many cases of suspects being tricked into murder confessions, and in some of those cases, the suspects were mentally retarded or mentally ill.

Indeed, the Innocence Project has determined that in 25% of DNA exoneration cases, the defendants made incriminating statements, delivered outright confessions or pled guilty. This is a system that, in many cases is built not on physical evidence, but on coerced confessions.

In the case of Eddie Joe Lloyd, who was himself mentally ill, Lloyd signed a confession and was sentenced to life in prison only because the death penalty was not legal in Michigan at the time. According to the innocence project, Lloyd's conviction, in which so many were convinced of his guilt, led to a renewed movement to reinstate the death penalty in the state. After 17 years, however, Lloyd was exonerated through DNA evidence and released. Fortunately for him, and for basic justice, the death penalty could not be imposed.

Not all wrongfully convicted people are as lucky.

The Atlantic recently published an article discussing the case of Carlos DeLuna, who was put to death by the state of Texas in December 1989 for a murder almost certainly committed by someone else in Corpus Christi. DeLuna maintained his innocence to the end, and after DeLuna's execution, the family of Carlos Hernandez came forward and explained that Hernandez, a violent felon, had committed the crime.

We know for a fact that people have been convicted of capital crimes. Robert Dewey, who was recently released after 17 years in prison is one recent example, and the case of Randall Dale Adams, who narrowly avoided the death penalty before being released, is another.

Fortunately for those who lived to be released for prison, they were not executed by a flawed and incompetent government-run bureaucracy known as the criminal justice system. In those cases, the miscarriages of justice were somewhat reversible, if all too imperfectly so. In the case of wrongfully-convicted persons who were executed — and we don't know how many there have been- miscarriages of justice cannot even partially be undone.

Why is it then, that among so many conservatives and others who claim to be for small or minimal government there are so many who are enthusiastic about a government-imposed death penalty?

Conservative judges are guilty of some of the worst hypocrisies in this matter. In 2006, the conservative judges on the United States Supreme Court invalidated a Kansas Supreme Court ruling against some portions of Kansas's death penalty statute. Conservative judges often claim to be "strict constructionists" or supporters of constitutional federalism, but apparently respect for federalism goes right out the door when enthusiasm for government executions takes over. Justices Scalia and Thomas happily overturned the ruling of the Kansas Supreme Court and declared even its minor limitations on the death penalty in that state were not acceptable. So much for conservative support for the prerogatives of the states or for limiting government power

These are the sorts of inconsistencies that arise from willful ignorance about the incompetence of government, and from a need to "get tough" on crime which has for decades been one of the lodestars of the conservative movement. As the recent controversies surrounding the end of capital punishment in Connecticut showed, conservatives and Republicans have kept up the fight in favor of capital punishment for decades, although given the state of the criminal justice system in America, it is increasingly difficult to see how this support can be compatible with any claim to be in favor of a smaller or more limited state.

Getting tough on real crime (excluding non-crimes such as marijuana possession) is indeed a laudable goal, but the just and measured administration of justice in the United States has become so perverted by a never-ending expansion of government law that now declares so many formerly non-criminal activities to now be criminal ones, and by the widespread acceptance of purely circumstantial evidence and coerced confessions in even capital cases.

As Rand Paul recently noted, there are people serving hard time in federal prison for the violation of foreign laws that regulate things such as possession of certain types of fish or the manufacture of guitars. Thanks to the Lacey Act, Americans can be thrown in prison for violation of foreign laws that no sane person would expect Americans to know. This sort of thing all by itself should breed nothing but contempt for federal law, but unfortunately, there is a pervasive attitude among many Americans that violations of laws, no matter how bad those laws may be, should be punished with draconian fines and prison terms.

From capital crimes on down to petty infractions, the movement to get tough on crime has made a mockery of the very idea of just and reasonable administration of criminal justice. We now live in a world in which seven-year-old children who throw tantrums are arrested and hauled off in handcuffs. The get-tough-on-crime movement has given us the "zero-tolerance" polices of today that lead to children being expelled or suspended for giving a friend an aspirin or for drawing a picture of a crucifix.

All of this serves to remind us that we live in a society in which the legal system is fatally flawed and that it is now nearly impossible to comply with the law in one's ordinary daily life. It is a system in which growing the wrong plant or building guitars out of the wrong kind of wood, or marketing the wrong kind of commemorative coin can come with prison terms, and it is a system in which people can be handed death sentences based on coerced confessions and purely circumstantial evidence, with no witnesses and no physical evidence.

If this is the sort of government called for by conservatives who claim to be for limited and responsible government, then they certainly have an odd conception of what a small or limited government is.

Ryan McMaken [send him mail] teaches political science in Colorado.

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