For those of us who believe in limited government and the fallibility of human certainty, the death penalty can pose quite a problem. Is it ever okay to kill someone because of his own criminal actions? I confess to being torn about the morally proper answer to this question. Even if I am sure a mistake of innocence has not been made, do I or anyone else have the moral authority to take a life?

Last week’s episode of Penn and Teller’s excellent libertarian show, Bullshit, was about the death penalty, to which they are deeply opposed for two reasons. The first, that it is possible that innocent people can be wrongly killed, is a strong objection and one I find convincing enough to support doing away with the death penalty except in cases where guilt is beyond doubt.

It’s their second reason, though, that I believe is difficult to morally support. Interestingly enough, the objection is itself grounded in the morality of the death penalty. Penn and Teller claim, with great conviction, that it is never okay to kill someone unless that person presents an immediate threat. Call it a clear and present danger. If that isn’t the case, you, I, and the government are prohibited from ending a life. This strikes me as unrealistic and, more broadly, morally wrong.

In order to understand the problem with the position Penn and Teller have on the morality of the death penalty, several notions need to be unpacked. Let’s start with the interesting claim the hosts make that it is only okay for government to kill people in times of war. We need to keep in mind that when we talk about the “government” killing people, what we really mean in a non-metonymic sense is individual people killing other people when the former have been told to do so by still others in a position of power within the structure we refer to as government. So if you believe that killing enemy combatants during wartime is morally permissible, then you believe that it is okay under some circumstances to kill at the request of government. The question now becomes, what are those circumstances? I’ll address an answer to this question below, but other clarifying duties need to be tackled first.

We now turn our attention to the issue of killing itself. Namely, is it okay, in any situation, to kill someone who does not constitute an immediate threat to you or someone else? This, in fact, is what the death penalty amounts to. To answer the question, yet another must be posed: Are human rights—including the right to life—inalienable? The Declaration of Independence says they are but even its signatories didn’t believe that in the absolute. After all, they listed liberty as a right but were more than willing to lock people up who broke the laws of the land. This disconnect can be rectified by differentiating between internal and external alienation of rights. In short, while it is not okay for you to act to strip me of my rights, I can engage in actions that remove those rights from myself.

What’s interesting about this claim is that, while it initially seems to preclude third parties from engaging in rights removal, in fact third parties are a necessary ingredient. Take the right to liberty, for example. I can act in such a way as to remove that right from myself. I could steal your car, for example. Because of the theft I’ve committed, I can no longer claim liberty as a right—I’ve removed it from myself. But unless someone else comes along and locks me up, that right hasn’t actually been removed. Even if I were to confine myself to my apartment under self imposed house arrest—perhaps out of shame for what I’ve done—I can leave that house at any time. Only if a third party enforces the confinement can it be said that I have truly given up the right to liberty.

Most of us don’t have a problem with third parties participating in rights removal as outlined above. You’re unlikely to hear people arguing that criminals convicted of grand theft ought not be put in prison but should, instead, retain their right to autonomy. So why do we have an issue with third parties removing the right to life? It’s irreversible, yes, but that goes to concerns about false guilt, not the actual immorality of the death penalty.

What I want to do now is construct a libertarian argument for the morality of punishment by death. I want to show that a libertarian who believes that government should have very few powers can still think it okay for that government to kill its citizens under a strict set of circumstances. I’ll do so by employing that classic libertarian liberty, freedom of contract.

Let’s say I’m the father of a twelve year old daughter, to use the same example Penn and Teller do. My daughter is hanging out with friends when she’s abducted by a man she doesn’t know. He ties her up, rapes, tortures, and then murders her. Has this man given up his right to life? I would say so. He doesn’t deserve to continue living because he has stripped another of the same right and has, therefore, removed that right from himself. Of course, if he is to do so, he must be aware of the wrongness of his actions. This is why we allow an insanity defense in criminal proceedings. But let’s say he knows rape and murder are morally impermissible yet he just doesn’t care. As the father of a slain girl, am I justified in killing this man myself? Assume for purposes of argument that there is no doubt of his guilt. He’s admitted the crime and is proud of it. Many people—Penn and Teller likely included—would answer yes. It’s okay for the father to kill the rapist. To broaden this example, would it be okay for a family member of a victim of the 9/11 attacks to kill Osama Bin Laden? Yes. Bin Laden, through his own horrific and heinous actions, has given up his right to life.

From this line of argument, we’ve established that it is okay for you to take the life of someone who has seriously wronged you—or someone close to you—in a beyond the pale fashion. Now there’s a new question: can you hired a hit man to carry out the deed? What I mean is, is it morally permissible for you to offload the actual duty of execution onto a third party? Let’s go back to the example of the father of the raped and murdered daughter. What if the father had been in a terrible car accident and was paralyzed from the neck down. He is incapable of killing his daughter’s murderer. In this situation, could he as his brother to carry out the deed?

To answer no seems very odd indeed. If the murderer has given up his right to life, what does it matter who actually takes the actions necessary to enforce that right removal? And if it is okay for the grieving father to have his brother act as executioner, can he ask his best friend? What if neither is willing to do it? Would the father then be justified in seeking out an unrelated third party and forming a contractual agreement to kill the murderer? If you accept that the father can kill the guilty party and that he can rightfully ask his brother to do so, you’d have to also accept the contractual killing. To do otherwise would be draw an unjustifiable and arbitrary line.

All that being said, what is the difference between a third party hit man agreeing to kill the murderer and the government doing the same? After all, as I showed above, the government is really nothing more than a large group of third parties. If you can make a contract with any one of them, why can’t you make a contract with a representative group of them?

In this sense, the government is not actually going out and killing the guilty. Instead, it is acting as a killing agent in the place of the families of victims. If those families are justified in seeking death, it is morally permissible for the government to carry out the act.