Capital punishment yet again…

To me it seems incredible that there are still MPs (such as the MP for the constituency in which I live, Priti Patel – for whom I did not vote) and many more people apparently queueing up to argue their case for a return to the bad old days of capital punishment, but it seems they never die away.

Primarily that call relates to offences of murder, but anything falling loosely under the blanket term “terrorism” attracts similar calls, not to mention rape and offences against children.  I would never condone or defend any of these hideous offences, but I would also say that officially sanctioned murder of the perpetrators is never the answer and would in fact play into the hands of terrorist groups by creating martyrs.

The primary arguments against the death penalty have never yet been answered, though there are plenty more issues we have also to discuss thereafter.  However, let’s begin with these points:

  1. It doesn’t deter
  2. Ethically and morally it is indefensible
  3. Inevitably innocent people would be executed
  4. It would terminally clog up the legal system
  5. Costs of incarceration
  6. The feelings of victims’ families
  7. Popular support for capital punishment.

1) Deterrence

Logically speaking, if the death sentence deterred people from committing murders then American would have the lowest murder rate in the world, along with Russia and every other country executing its prisoners.

Not so.  Academic research evidence is far from clear cut, but it would appear to suggest that sentencing policy has no effect on murder rates either way.  If anything, the US states without the death sentence actually have lower murder rates!  I’ll say that again:

Murder rates are lower where there is no capital punishment.

However the brutalisation theory is certainly supported by the fact that countries that do have the death sentence include those with some of the highest homicide rates per capita in the world.

There is one key fact that is often ignored in this argument: there are no statistics to demonstrate what proportion of murders are premeditated rather than committed on the spur of the moment, but research repeatedly suggests premeditated murders are in a distinct minority.

Let’s say for the sake of argument that 80% are crimes passionelles committed in the heat of the moment and therefore not subject to any form of advance thought process that could use self-preservation as a motive, while the other 20% are pre-planned.  Consequently, only 20% of murderers could potentially be deterred since only they have intent prior to the moment of committing the crime.

Moreover, a substantial proportion of that 20% may not be deterred in the slightest.  Why?

  • People who do plan murders in advance do so with the simple and arrogant proviso that they do not intend to get caught, and a significant number do indeed get away scot free.  By definition, they will not be deterred by the sentence since they don’t believe they will ever be tried and incarcerated – and let’s face it, a good proportion of crimes are never solved in spite of DNA evidence and cold case trials.
  • Then there are the murderers who do want to die anyway and there therefore not put off by the death sentence, the argument for which presupposes every human being wishes to stay alive more than anything else.  Some of these may give themselves up voluntarily and cheerfully admit to the crime, so the threat of death is scarcely going to stop them.  Donald Trump recently caused much ribaldry by suggesting potential suicide bombers should be deterred by threat of the death sentence.
  • And a proportion of murders are committed by people with severe mental illnesses who may well not appreciate the difference between right and wrong, let alone be deterred from perpetrating the act.  Chances are that if they were tried they would end up being send to Broadmoor or another secure institution, since they would not be deemed to be in a fit state to be sentenced to death (something very ironic about that, isn’t there?)

So… deterrence is at best a fallacious argument in favour of capital punishment, and at worst a distraction from the real job of detecting the cases and finding effective punishments for those who murder.

2) Moral quagmire

Does the state have the right to kill its own citizens, to judge that they are no longer worthy of being alive?  In the case of Syria, Iran, Iraq, China and many more states around the world our answer is unequivocally no, so why we should assume moral superiority and kill those we deem to have lost the rights of citizenship is far from clear.  This is about how civilised we as a nation consider ourselves to be, and to differentiate ourselves from countries where savagery and barbarism are considered the norm.

Quite apart from other punishments, capital punishment by beheading in Saudi Arabia is often cited as a human rights violation, particularly when you see the list of “crimes” for which the death sentence is applied:

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The death penalty is in essence about the vengeance of society rather than any logical belief that it provides better justice in the style of Judge Dredd.  This is essentially Old Testament morality – eye for an eye, tooth for a tooth.  Even Dexter, a serial killer with a moral conscience, depends for his self-justification on his victims being those who will not be killed by the justice system.

The counter-argument is of course that conducting executions makes the state no better than the criminal and to have lost any pretensions to the moral high-ground.  Hypocrisy does not help the cause: “do as we say, not as we do” arguments do not win favour.

Worse, one theory suggests this simply adds to the brutalisation of society, the acceptance that causing death and injury is socially acceptable.  If you measure the UK against the US, that demonstrates the facts: we do not have the death penalty, our policemen are not routinely armed, and our murder rates are a fraction of those suffered by our American cousins.  Apply death sentences and the whole of society becomes more violent and savage.

The purpose of the justice system must surely be to rehabilitate offenders to the point where they choose to recompense victims of their crimes and become worthy of a second shot at leading a decent life and upholding the values of society.  It is not to kill people with reckless abandon.

But the key point here is amply summarised in the old proverb: “Two wrongs don’t make a right.”  Perhaps the Christian community should even remember a quote from the New Testament and “turn the other cheek“?

After all, what happened to their god of mercy?  Clearly proponents of capital punishment believe in a vengeful deity, and that they should apply the same revenge by thinking of themselves as morally superior.  When they are found to have committed adultery or white collar crimes, for example, would they support the full measure of society’s vengeance meted against them?  Of course not, this is gross hypocrisy we’re talking about!

The ultimate moral equation is this:  if we consider ourselves to be a decent, civilised society, we should not be killing anybody, for any reason.  Certainly not terrorists who want to be martyrs, dragging ourselves down to their level.

3) Miscarriages of justice

We all know there are always miscarriages of justice, people convicted wrongly for any number of reasons.  At the time they are thought by prosecutors, judge, media and victim’s families to be guilty without a shadow of a doubt.  disregarding ongoing appeals, it may be years later before factual or forensic evidence emerges to clear the name of the person convicted of the crime.

It’s an awful thing for someone to be incarcerated for years for a crime they did not commit, still worse if their life has been taken.  A posthumous pardon is a joke – you can never undo the punishment, and successive Home Secretaries have done their level best having to avoid issuing apologies for the many mistakes of the legal system.

One only has to mention the likes of the Birmingham Six, the Guildford Four (all of whom would have been hanged before their wrongful conviction was discovered, had capital punishment not been abolished), and Derek Bentley and Timothy Evans, to name but two, who were wrongly hanged for crimes they did not commit but in a frenzy of vengeance to recompense for the victims of the crimes (see above.)

What MP Anthony Beaumont-Dark called the “worst miscarriage of justice of all time,” the case of Stefan Kiszko, did not give Kiszko back his life as a result of his incarceration. Nor did he live long enough to receive financial compensation, but he did at least gain the  satisfaction of hearing his own name cleared for the terrible injustice perpetrated against him.  How would you feel if Stefan had been executed for a crime he could not possibly have committed, then maybe pardoned posthumously?

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Those who support capital punishment often say that the odd mistake is a price worth paying to terminate the lives of murderers.  I could not disagree more.  In the words of John Mortimer’s infamous barrister Rumpole of the Bailey, “there is a golden thread that runs through British justice.  Better 100 guilty men go free than one innocent man be convicted.” And if that innocent man is murdered by the state, no compensation will ever suffice.  An apology and pardon is no consolation whatever for the loss of an innocent loved one.

4) Legal labyrinth

The American legal system suits lawyers very nicely, since they are the prime beneficiaries, other than rich defendants who can buy their services and fund endless legal cases.  The UK courts and jails are already bursting at the seams.  Our justice secretary is trying to speed up justice by finding ways to incentivise perpetrators to plead guilty and thereby save an extended trial.

The point here is that when the sentence is death, nobody pleads guilty – every convicted murderer in the US has their lawyer fight to the bitter end with repeated appeals and sometimes years sitting on death row before the governor signs off and the execution takes places.  Cases take much longer and the whole legal system is dragged down with them, particularly at a time when the government moans about the cost of justice.

In the UK, our entire legal system would be clogged up for years if we adopted the death penalty – unless we chose to waive the rights of prisoners to appeal, risk an even greater proportion of miscarriages of justice, and kill savagely, contrary to the legal practices of most of the democratic world and probably European human rights legislation (appeals to the European Court of Human Rights?)

The death penalty would undoubtedly extend the length of almost all capital cases running through the courts, increase the number and complexity of appeals through the Appeals Court, the Supreme Court and potentially the European Courts too.  This would inevitably make courts more prepared to accept lesser charges than risk the time and complexity of a contested murder prosecution, a common factor in plea bargaining and even lower sentences for people guilty of worse crimes.

5) Costs of incarceration vs death penalty

Supporters of the death penalty will put this in terms of simple economics: killing prisoners is cheaper than keeping them alive for the duration of a life sentence.  In practice, the evidence from many US States is that keeping inmates on death row for many years (as demonstrated above) is considerably more expensive than as life prisoners.  When additional court and legal costs are taken into consideration, the myth that capital punishment is a cheaper option rapidly evaporates.

Ah, but the UK legal system is different to the US.  Consider this version:

“Money is not an inexhaustible commodity and the government may very well better spend our (limited) resources on the old, the young and the sick etc., rather than on the long term imprisonment of murderers, rapists, etc.  Anti-capital punishment campaigners in the U.S. cite the higher cost of executing someone over life in prison, but this, whilst true for America, has to do with the endless appeals and delays in carrying out death sentences that are allowed under the U.S. legal system where the average time spent on death row is over 12 years. In Britain in the 20th century, the average time in the condemned cell was from 3 to 8 weeks and only one appeal was permitted.”

However, the country, human rights legislation, forensic evidence and the legal system have all moved on greatly since the death penalty was formally abolished in 1965.  Any supposition that you could hang a prisoner within 8 weeks from sentencing is highly dubious and unproven in an increasingly litigious society.  In fact, many cases proceeded to execution with such indecent haste miscarriages of justice seemed inevitable (see here.)

For those proponents who claim the UK process, were it adopted, would be much quicker and simpler (ie. one appeal), does that not simply mean the risk of miscarriages would be proportionately higher?  After all, the examples quoted above demonstrate that many of those cleared are only granted leave to appeal on the basis of new evidence some considerable time after their convictions.

The cost case is by no means proven.  How often has government legislation to reduce costs actually increased the cost of administering the law?  If death is the ultimate sanction, the costs would have to be balanced against the risks of miscarriages of justice, and the cost of each mistake would weigh very heavily.

There is however an overriding principle at stake here: justice is and should be its own reward – cost should never be a factor in determining what sentence is justified. Justice is priceless – beyond value!

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These are by no means the only arguments in this debate, but from my perspective the case against is very clear cut. However, to conclude there are two more arguments that warrant further discussion:

6) The feelings of victim’s families

Surely if anyone is entitled to sympathy, it is the family of victims.  They will argue their loss is permanent, but a murderer on a life sentence may well be out on licence in 15 years – though the Justice Secretary has the power to refuse to sanction release on parole, as happened to Brady, Hindley, Nilsen, Sutcliffe and others. Their desire for retribution is understandable, but that does not make it right.

Much as I sympathise with people coming to terms with a terrible loss, but there is a flipside they should consider.  It is this: for many murderers, keeping them alive and confronting them with evidence of the harm they have done is a far greater punishment than putting them to death.  In the course of a sentence they should come to terms with the nature of their crime and find a productive way to return to society – and if they fail to do so they will not be released.

Many criminals, notably those who have hurt children, live through prison lives in fear of being attacked by other inmates – which some, not me, would see as a good thing.

In short, if the justice system is doing its job properly, both punishment and rehabilitation are possible, and incarceration for life without parole for the worst cases is always an option.  The families of victims may simply wish the person responsible to be dead, though they will live to the rest of their days haunted by the crimes they have committed, and if they are not they are either psychopathic (and therefore not liable for release) or mentally ill such that treatment in a secure unit for the rest of their days is the fitting approach.

7) Popular support for capital punishment

Much of the cheerleading for capital punishment is in the right-wing media, but it is probably fair to say that a number of polls indicating a majority in favour of the death penalty are reasonably accurate.

This of course does not make it right, nor that such people with such opinions are in possession of the full and objective facts, if only because the newspapers they read do not present a fair and balanced debate on the subject.

People do not necessarily have a consistent view about what form of punishment they favour for what offences.  It is just as likely that if a form of capital punishment were instigated, people would oppose it or wish it to be heavily diluted when innocent people end up being killed, for example.

Public opinion is fickle, is easily swayed, does not put all the facts into context, is liable to knee-jerk reactions and does not make a good indicator of quality legislation, let alone true justice.

There have been many cases where a victim has been condemned in the media and public opinion whipped up into a storm, only for the wheels of justice to prove their innocence – Colin Stagg for one.  Robert Napper is now serving a life sentence for the murder of Rachel Nickell, but had Stagg been executed the public would have forgotten the case and not even considered the possibility that someone else might have been responsible.  And by then it would have been way too late anyway – would there be remorse on the pages of the red-top tabloids for their calling for the death of an innocent man?

If ever it comes to a vote, I hope capital punishment will always be defeated by sheer weight of argument and the needs of the justice system.  It needs plenty more changes to improve justice, but capital punishment would not improve justice one iota, even if some people have blood lust as a form of vengeance.  To those people, I’d say that another death does not make anything any better for anyone, and however much closure is given when the perpetrator is caught, tried, convicted and punished, things will not be any better if they are killed too.

PS.  Sam Hallam has finally been cleared of murder after 8 years in prison, having been convicted on very dodgy identification evidence, and because evidence which would have cleared him was not originally presented in court.  Sam’s father committed suicide because his son was in prison, one tragedy resulting from the appalling Sam will now have to live with for the rest of his life.  Had capital punishment been in place, Sam’s interment would have been permanent and his being cleared of the crime of which he was wholly innocent would have made no difference whatever.

PPS. Look out for the case of Reggie Clemons.  The case against Clemons is by no means clear cut, but the current case review will determine if he is to be executed.  As the article points out, “at one point an appeal court overturned his death sentence, only for it to be reimposed by another judicial panel.”  This is worth reading – it makes you wonder if any of the prosecutors could sleep easy in their beds if Clemons was executed.

PPPS. Those who suggest Ian Brady and Myra Hindley, the “Moors Murderers” should have been executed overlook that Hindley wanted to be released but never was, and that Brady wants to die.  Executing him would be doing him a favour.

PPPPS. Another prisoner is exonerated after nearly 30 years behind bars for a murder he did not commit, based on evidence confirming his alibi.  Glenn Ford was the longest serving prisoner on death row, and is now entitled to compensation, not that anything can possibly compensate you for having lost half your life to the penal system through maljustice:

Under Louisiana law Mr Ford is now entitled to claim compensation for his time served.  The state allows for an award of $25,000 (£15,000) for every year a wrongly convicted person spends in prison – up to a limit of $250,000 (£150,000), and $80,000 (£48,000) for ‘lost life opportunities’.  In Mr Ford’s case this means he will receive around £7,600 for every year he spent in prison.

No doubt the Capital Punishment lobby would have been happy to offer him a posthumous pardon.

5S – Arizona halts capital punishment after Joseph Wood took two hours to die after being given a cocktail of drugs as part of his lethal injection.

6PS – Pfizer has blocked the use of its drugs in lethal injection executions – see here.

7PS – In response to those who believe a death sentence should be imposed for acts of terrorism, in spite of the patent absurdity of death sentences for those who choose to sacrifice their own lives for their cause, I say this:

Death penalty for terrorists plays into their hands because they want us to adopt more stringent, reactionary laws. Besides, make martyrs and you get thousands more volunteers. Death penalties never deter those who die for a cause, and if you give into terrorists with harsh laws the terrorists have won.

We win by celebrating freedom and using intelligence to track down would-be terrorists before they plant bombs or go on the rampage with vehicles. We adopt security measures to prevent crininals achieving their targets. We keep their effectiveness to a minimum and live our lives and retain human rights as a gesture of civilisation. Diluting those rights kills our advantage.

8PS.  The death of Moors Murderer Ian Brady brings back this entire debate.  Regardless of the death policy being abolished, it was the right thing to keep Brady alive for two reasons:

  1. Brady wanted to die, so keeping him alive with his tortured memories was more a punishment.
  2. Brady showed no remorse but he had the chance.  He could have given closure to the Bennett family by saying where young Keith was buried, and it was worth keeping him alive for that reason alone.

But I return to my original thesis: no matter how horrendous the crime, to execute the criminal would mean the state is no better than he is.

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