Terrorists on the fence with Israel
Terrorists on the fence with IsraelAbed Rahim Khatib/Flash90

Yes, Israel most certainly should enact the death penalty. Executions focus the mind like nothing else. The only Jewish state on the planet is beset with enemies. And this held true even before the atrocities of October 7, 2023, were perpetrated by Hamas upon women, children, and elderly men who are citizens of this country. Executions under the death penalty will undoubtedly save many innocent Hebrew lives.

But does not Israel already have the death penalty on the books? Yes and no. It is there alright, but in the entire history of this nation, only one execution ever took place: that of Nazi Adolf Eichmann. For all intents and purposes, there is a lacuna in Israeli law in this regard.

In praise of the death penalty? That sounds unduly morbid, harsh, unfeeling, improper, uncivilized. In this epoch of mass killing, don’t we need a little less of such actions, not more? Check that; a lot less killing! How, then, can there be any justification for sending even more people to the cemetery?

The justifications are two-fold: deontological and utilitarian-pragmatic. Let us consider justice first.

Suppose A stole B’s car. What punishment of A would be justified? First of all, A should be compelled to give B’s auto back to him. More punishment, of course, should be visited upon A, but if A is not further punished and, to add insult to injury, allowed to retain B’s vehicle, then, surely, justice will have been sorely abrogated.

Suppose, now, that A murders B. Assume also that there is a magical machine that can transfer the life force from live people to dead bodies. (I am in debt to Robert Nozick for this type of philosophizing). Would it be just to place the living murderer A into this machine, along with B’s now dead body, and flip the switch? This would transfer the spark of life out of A and into B. A would emerge from this machine as a dead body, while B would be re-enlivened; that is, B would walk out of this machine under his own power. Would this life transfer be justified? Of course, it would be. It would be the very essence of justice. After all, when A murdered B without engaging in too much poetic license, we may truly say that A stole B’s life from him. By imposing the death penalty on A in this manner, we are merely returning stolen property, that is, life, from A to B. If it is justified to compel A to return the car he stole from B back to B, it is equally justified, if not more so, to force him to give up his life on B’s behalf, the very life he stole from him.

Can it be objected that we simply have no such “machine?” No. For by use of this contrary-to-fact conditional, we have established that A’s life is forfeit. He simply has no right to his own life. With the aid of this machine, we can see clearly that the rightful owner of A’s life is now B. And, who knows, one day in the far future, we may have just this sort of machine available to us, oh, happy day.

But right now, back to reality, no such contraption is yet available to us. Who, then, is the proper owner of A’s life? A? Not a bit of it. Rather, it is B’s heirs who are the proper owners of A’s life. B, of course, is the rightful owner. A’s life is B’s property. B, dead, can no longer make use of this property of his, nor of any of this other property. We then assume B will give all of his property to his heirs, certainly including A’s life among them.

So what may the new owners of A’s life, that is, B’s heirs, do with their new property, A’s life? They may do anything they please with A’s life as long as, in so doing, the rights of no one else are abrogated. For example, they could execute him. Or, they could do so and charge admission to witnesses. They might also enslave him. They could even forgive him for his crime and set him free. A now no more owns his own life than a pet cat owns his.

Another objection to this “modest proposal” of ours is, suppose A is really innocent of this crime but is executed anyway. This would logically imply that the executioner is a murderer. After all, he killed an innocent man. This proviso would radically reduce the incidence of executions. It would presumably be limited to cases where there was no doubt, none at all, about guilt or innocence. It would also very much increase the salaries paid to executioners, as this job would have become far riskier.

What are the utilitarian benefits of the death penalty? None. There is no evidence that they reduce the murder rate. Econometric studies demonstrate that when other variables are controlled for which are correlated with murder (age, race, gender, etc.), there is no difference in the murder rate between US states with and without the death penalty.

Actual executions are another matter entirely, however. There are several US states that maintain the death penalty on their books but never execute any murderers. When empirical analyses are used to probe the effects of executions on the murder rate, there is statistically significant evidence that, yes, indeed, executions reduce the murder rate.

How does Israel match up in this regard? For all intents and purposes, this country’s practice resembles that of the US states that feature the death penalty but never execute anyone. Applying ultimate punishment to one Nazi, Adolf Eichmann, is unlikely to deter any member of Hamas or Hezbollah from engaging in atrocities against innocent Israelis. Instead, they sit there in relatively comfortable jails, secure in the knowledge that they will one day, en masse, be exchanged for the dead bodies of an Israeli or two, or maybe even a few live ones. Their incentive not to commit their usual level of carnage is greatly atrophied. In contrast, based upon the best available econometric analysis, we can infer that if they faced actual executions, this terroristic behavior of theirs would be greatly reduced. Israeli executions of these monsters will save Israeli lives.

What of the objection that executions simply would not work against these types of mass murderers since they have been, on more than one occasion, willing to commit suicide to promote their goals, provided only that they can possibly take with themselves a sufficient number of Jews?

This argument should be rejected. First of all, not all of the Hamas fighters are suicide bombers, far from it. Second, an executed terrorist can no longer engage in murder via suicide. Nor will he be free to once again take part in despicable attacks on Israeli women and children. Third, if they do not fear death at all, why are their leaders now located in relatively safe areas far from Gaza? Fourth, yes, many of them are willing to die. But they are very intent upon getting back their people now in Israeli jails. If Israel executed 10 of them for every Jewish hostage murdered by Hamas, that would make them sit up and take notice. It might be the only way to save those roughly 200 hostages. This is an empirical issue. All we can say is, hey, give executions a chance!

Israel should announce that if there is a single one of the 250 Jewish hostages now held by Hamas who is not returned alive (apart from some of the elderly who may die of old age), then all of the Palestinians now held for murder in Israeli prisons will be immediately executed.

We started off this essay by saying that killing murderers sounds uncivilized. It is not.

Israel has the death penalty but has only executed one man in its entire history:



Econometric studies of the death penalty and actual executions:

Ehrlich, Isaac, and Gary S. Becker. 1972. “Market Insurance, Self-Insurance, and Self-Protection.” Journal of Political Economy, vol. 80, no. 4, University of Chicago Press, pp. 623–648, http://www.jstor.org/stable/1829358.

Ehrlich, Isaac. 1972. “The Deterrent Effect of Criminal Law Enforcement,” Journal of Legal Studies, Vol. L (2), June, pp. 259-276.

Ehrlich, Isaac. 1973. “Participation in Illegitimate Activities -- A Theoretical and Empirical Investigation,” Journal of Political Economy, Vol. 81 (3), May/June, pp. 521-565.

Ehrlich, Isaac. 1974. “Participation in Illegitimate Activities -- An Economic Analysis,” in The Economics of Crime and Punishment, Becker and Landes, eds., Columbia University Press, New York, pp. 68-134.

Ehrlich, Isaac. 1975A. “On the Relation Between Education and Crime: in Education, Income, and Human Behavior, F.T. Juster, ed., Mcgraw-Hill Co., New York, pp. 313-338.

Ehrlich, Isaac. 1975B. “The Deterrent Effect of Capital Punishment -- A Question of Life and Death,” American Economic Review, Vol. 65 (3), June, pp. 397-417

Ehrlich, Isaac. 1976A. “Deterrence: Evidence and Inference,” Yale Law Journal, Vol. 85 (2), December, pp. 209-227.

Ehrlich, Isaac. 1976B. “Rejoinder,” Yale Law Journal, Vol. 85 (3), January.

Ehrlich, Isaac. 1977A. “Fear of Deterrence -- A Critical Evaluation of the Report of the Panel on Research on Deterrent and Incapacitative Effects,” Journal of Legal Studies, Vol. 6 (2), June.

Ehrlich, Isaac. 1977B. “Capital Punishment and Deterrence: Some Further Thoughts and Additional Evidence,” Journal of Political Economy, Vol. 85 (4), August, pp. 74l-788

Ehrlich, Isaac. 1977C. “The Deterrent Effect of Capital Punishment: Reply,” American Economic Review, Vol. 67 (3), June, pp. 452-458.

Ehrlich, Isaac. 1978. “Deterrence and Economics: A Perspective on Theory and Evidence,” in Major Social Issues: A Multidisciplinary View, Milton Yinger and Stephen Cutler, eds., The Free Press.

Ehrlich, Isaac. 1979. “The Economic Approach to Crime - A Preliminary Assessment,” in Criminology, Review Yearbook Vol. l, Messinger and Bittner, eds., Sage: Beverly Hills.

Ehrlich, Isaac. 1981. “On the Usefulness of Controlling Individuals: An Economic Analysis of Rehabilitation, Incapacitation, and Deterrence,” American Economic Review, Vol. 71 (3), June, pp. 307-22.

Ehrlich, Isaac. 1982. “The Market for Offenses and the Public Enforcement of Laws: An Equilibrium Analysis,” British Journal of Social Psychology, Vol. 21, pp. 107-20.

Ehrlich, Isaac and J.C. Gibbons. 1977. “On the measurement of the Deterrent Effect of Capital Punishment and the Theory of Deterrence,” Journal of Legal Studies, Vol. 6 (l), January, pp. 35-50.

Ehrlich, Isaac and Richard A. Posner. 1974. “An Economic Analysis of Legal Rulemaking,” Journal of Legal Studies, Vol. 3 (l), January, pp. 257-80.

Gary S. Becker, 1995. "The economics of crime," Cross Sections, Federal Reserve Bank of Richmond, vol. 12(Fall), pages 8-15.

Rothbard, Murray N. 2010. “The Libertarian Position on Capital Punishment.” July 13; https://mises.org/library/libertarian-position-capital-punishment

Whitehead, Roy and Walter E. Block. 2003. “Taking the assets of the criminal to compensate victims of violence: a legal and philosophical approach,” Wayne State University Law School Journal of Law in Society Vol. 5, No. 1, Fall, pp.229-254; http://www.walterblock.com/publications/block_taking-assets.pdf

Walter E. Block, Ph.D., is a Harold E. Wirth Eminent Scholar Endowed Chair and Professor of Economics at Loyola University in New Orleans.