Atrios weights in on the death penalty question:

In a weird kind of way I almost agree with Instapundit, in that my objection to the death penalty has a lot to do with a reluctance to give the State the ultimate power to kill its own citizens....however, I don't see how that requires me to agree with this statement:

The notion that it's per se immoral for the state to kill peple is absurd -- or at least, proves too much, as killing people is the core function of nation-states, and always has been. Government power is based ultimately on violence; all else is superstructure.

I don't agree with it either. Yes, one of the aspects of a sovereign government is a monopoly on the legitimate use of violence, but that doesn't necessarily mean lethal violence. Nor does that right necessarily entail some sort of moral obligation or moral priviledge. Any political actor, whether an individual or a state, can have the right to do something without it being moral in every situation or even most situations. It also doesn't necessarily mean that it has the right to kill citizens in cold blood as a method of punishment for crimes.

Just as there can be limitations implicit in situations where the rights of one individual comes up against another, so too can there be limitations implicit in situations where the rights of an individual come up against the rights that he and other individuals have invested in the state (including the right to legitimate violence). Even Hobbes agreed that an individual had a right to defend his life from the agents of the state, and modern conceptions of the state are far more narrowly defined than his were.

(This is somewhat true even for warfare. the point of warfare is not to kill, but to destroy your opponent's ability to fight... and if that could be done reliably without killing, then there's no reason why killing would be preferable.)

And by the way, IP seemed to have truly screwed up on one thing, which was rather surprising for a law professor. State power is based on obesience, not violence. While violence is one tool by which one can guarantee obesience, it is by no means the sole way, or necessarily even the best way by which to gain said obesience. Many (if not most) people obey the state because they've been socialized to and because they know that the benefits outweigh the costs, not because they fear the violent reaction. That isn't necessarily universal, of course, and sometimes this breaks down, but a state that relies solely on violence is usually not a very long lived one.