Well, This Is What I Think

Death penalty chamber (lethal injection)

News that the Federal Government in America intends resuming the use of the death penalty in federal cases with the execution of five prisoners in December has caused renewed debate on the use of the ultimate sanction.

It has to be said that the population of many countries are usually in favour of the death penalty for murder, especially when conducted against children, or as a result of terrorist activity. The imposition of the penalty has undeniable democratic validity, and especially so where the guilt of the accused seems certain or is admitted.

But it still raises very troubling questions. These are, to our eyes, the strongest reasons not to impose the death penalty.

It can be a mistake

Posthumous pardons are little recompense for someone being put to death incorrectly. And the records of those killed for doing no wrong are long and repeated. It would be incorrect to assume this is a rare occurrence, or only in cases where the verdict was circumstantial or in the balance.

Cameron Todd Willingham

Texas man Cameron Todd Willingham was executed in Texas in 2004 for allegedly setting a fire that killed his three daughters. Following his execution, further evidence revealed that Willingham did not set the fire that caused their deaths. But it came too late to save him, even as he consistently protested his innocence.

Other cases that could have involved the death penalty demonstrate the fallibility of the system too. George Allen Jr. was exonerated on January 18, 2013, in St. Louis, Missouri, after serving over 30 years in prison for the murder of a young court reporter. Allen was convicted based in part on a false confession, police “tunnel vision” and blood type evidence that was said to include Allen, but actually eliminated him as a possible contributor. Visiting the Innocence Project website will reveal how often convictions are incorrect.

There was also the notorious case of Troy Davis, which this writer campaigned on for some years where it was perfectly clear an innocent man was to be executed, which duly occurred.

In 2014, a study estimated perhaps 4% of death row inmates in America are innocent. Many of these are people where there is no apparent or yet discovered doubt about their guilt.

In the USA, 130 people sentenced to death have been found innocent since 1973 and released from death row. The average time on death row before these exonerations was 11 years.

The continuous threat of execution makes the ordeal of those wrongly convicted particularly horrible.

Timothy Evans

In March 1950 The British Government hanged Timothy Evans, a 25-year-old man who had the vocabulary of a 14-year-old and the mental age of a ten-year-old.

Evans was arrested for the murder of his wife and daughter at their home, the top floor flat of 10 Rillington Place, London. His statements to the police were contradictory, telling them that he killed her, and also that he was innocent.

He was tried and convicted for the murder of his daughter and subsequently hanged. Three years later Evans’s landlord, John Christie, was arrested for the murder of several women, whose bodies he hid in the house. He subsequently admitted to the murder of Evans’s wife, but not the daughter.

He was hanged in July 1953 in Pentonville Prison, but the case showed Evans’s conviction and hanging had been a miscarriage of justice.

It can be arbitrary

One Supreme Court Justice in the USA even changed from a supporter of the death penalty to an abolitionist due to his experience on America’s highest court. He said: “The death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake … Experience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death … can never be achieved without compromising an equally essential component of fundamental fairness – individualised sentencing.”  Justice Harry Blackmun, United States Supreme Court, 1994

There’s much concern in the USA, in particular, that the legal system doesn’t always provide poor accused people with good lawyers. Out of all offenders who are sentenced to death, three quarters of those who are allocated a legal aid lawyer can expect execution, a figure that drops to a quarter if the defendant could afford to pay for a lawyer.

It’s not a deterrent.

There is no credible evidence that the death penalty deters crime more effectively than a prison term. In fact, evidence reveals the opposite.

Since abolishing the death penalty in 1976, for example, Canada’s murder rate has steadily declined and as of 2016 was at its lowest since 1966.

There is still the argument that the death penalty is effective retribution, but what does that then say about us, as a society? And as experts agree, revenge is not as healthy for those to whom harm has been done as forgiveness is. It’s argued that retribution is used in a unique way in the case of the death penalty. And crimes other than murder do not receive a punishment that mimics the crime – for example rapists are not punished by sexual assault, and people guilty of assault are not ceremonially beaten up.

Research conducted for the UN has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. And such proof is unlikely to be forthcoming. The key to real and true deterrence is to increase the likelihood of detection, arrest and conviction.

As Amnesty International commented, “The death penalty is a harsh punishment, but it is not harsh on crime.”

Or as anti-death penalty campaigner Dr Daisy Kouzel commented, “When they used to hang pickpockets in public, more pickpocketing was going on at the site of execution than had been done by the condemned man who was being hanged to set an example. ”

It removes the possibility of rehabilitation

For some murderers, it appears there is never any hope of rehabilitation. But stories abound of people on death row in various countries for long periods of time, decades sometimes, sentenced for horrible crimes, who become “model prisoners”, and make a sustained contribution to the well-being of their fellow prisoners. In the case of one prisoner – Edmund Zagorski – executed in Tennessee in 2018 for murdering two people over a drug deal, he was even credited with having saved the life of a prison warder.

It’s inhumane

Many styles of execution are painful – there are extreme concerns over lethal injection in the United States taking up to 30 minutes to kill the convicted criminal, inflicting feelings of fear, suffocation, and “burning up from the inside”. In Japan, the accused are only informed of their execution moments before it is scheduled. As a result, each day of their life is lived as if it was their last. This is surely mental torture.

It’s applied inconsistently

Some lawyers argue that capital punishment is not really used as retribution for murder, or even consistently for a particular kind of murder. They argue that, in the USA at least, only a small minority of murderers are actually executed, and that imposition of capital punishment on a “capriciously selected random handful” of offenders does not amount to a consistent programme of retribution.

Since capital punishment is not operated retributively, it is therefore inappropriate to use retribution to justify capital punishment. This argument would have no value in a society that applied the death penalty consistently for particular types of murder, of course, but evidence also shows that similar crimes – murder, rape, drug dealing and so forth – produce very different results in court, and that the further down the social scale you are, the more likely you are to have the ultimate penalty imposed. (See ‘arbitrary’, above.)

It brutalises individuals

Statistics show that the death penalty leads to an increase in murder rate. In the USA, for example, more murders take place in states where capital punishment is allowed. In 2010, the murder rate in states where the death penalty has been abolished was 4.01 per cent per 100,000 people. In states where the death penalty is used, the figure was 5.00 per cent. These calculations are based on figures from the FBI. The gap between death penalty states and non-death penalty states rose considerably from 4 per cent difference in 1990 to 25 per cent in 2010. It is also linked to increased number of police officers murdered. The argument seems to be that “If I am going to be killed for one count of murder, why not commit more?”

It should not be applied to the mentally incapable or the insane

This is not an argument against capital punishment itself, but against the fact of its existence leading to it being applied wrongly.

Some countries, including the USA and the UK (in the past), have executed people proven to be insane or to have been so mentally incapacitated as to be, in effect, like little children.

But it’s generally accepted that people should not be punished for their actions unless they have a guilty mind – which requires them to know what they are doing and that it’s wrong. Therefore people who are insane should not be convicted, let alone executed. This doesn’t prevent insane people who have done terrible things being confined in secure mental institutions, but this is done for public safety, not to punish the insane person.

To put it more formally: it is wrong to impose capital punishment on those who have at best a marginal capacity for deliberation and for moral agency.

A more difficult moral problem may arises in the case of offenders who were apparently temporarily insane at the time of their crime and trial but who then recover.

The existence of the death penalty leads to special jury selection

Jurors in many US death penalty cases must be ‘death eligible’. This means the prospective juror must be willing to convict the accused knowing that a sentence of death is a possibility.

This results in a jury biased in favour of the death penalty, since no one who opposes the death penalty is likely to be accepted as a juror. Whether or not that makes them any better or worse at judging guilt is imponderable. But where jurors must recommend a sentence to a judge, or order it, it biases the system in favour of death penalty outcomes regardless of the culpability or profile of the offender.

It arrogates to the ‘State’ the right to do things we might not be prepared to do ourselves.

There is a moral argument against execution if an individual apparently in favour of the death penalty would not, nevertheless, be willing to perform the execution themselves. As one MP put it in Britain, “I would not pull the lever (to hang someone) myself, so I will not instruct others to do it on my behalf.”

It brutalises society, to no purpose

If the authorities will respect life, this attitude filters down to the lowest stratum of society. Far fewer murderers are perpetrated today than when executions were a dime a dozen and gibbets a common sight at crossroads, except of course in countries where the executioner is very active and blood keeps adding to blood. Why? Because humaneness and mercy produce more of the same. As criminal law humanised so there was less crime instead of more, despite the rapid increase in populations. And if state officials carry out a death sentence, they must extinguish all feelings of reverence for life; otherwise they would never be able to carry out their task.

This would seem to be echoed by the most famous executioner in modern history, Albert Pierrepoint, in Britain, who hanged up to 600 people.

In his 1974 autobiography, Pierrepoint changed his view on capital punishment, and wrote that hanging:

… is said to be a deterrent. I cannot agree. There have been murders since the beginning of time, and we shall go on looking for deterrents until the end of time. If death were a deterrent, I might be expected to know. It is I who have faced them last, young lads and girls, working men, grandmothers. I have been amazed to see the courage with which they take that walk into the unknown. It did not deter them then, and it had not deterred them when they committed what they were convicted for. All the men and women whom I have faced at that final moment convince me that in what I have done I have not prevented a single murder.

It can be applied for ‘crimes’ that do not warrant it

Notoriously, up to 9,000 homosexuals were murdered in Nazi Germany for same-sex behaviour … but in Iran, and parts of Nigeria, you can still be executed for being an active homosexual, and some other majority Muslim states. In Saudi Arabia people have been executed for throwing stones at a street demonstration when they were a child, or for cross-dressing, and in the UAE for rape. In China, you can be executed for financial corruption and 53 other non lethal crimes. In a number of countries in Asia you can be executed for relatively minor drug crime.

Most people would argue the ultimate penalty should only be handed down for the ultimate crime.

The debate will, no doubt, continue, in the USA and elsewhere. What do you think, Dear Reader?