Opinion: Restating the case against capital punishment

Whenever a particularly horrific criminal case is in the media spotlight there are inevitably calls for the reintroduction of capital punishment. Either for the ‘specific case in question’ or, more generally, for the specific type of crime committed. It’s to be expected from ‘foaming at the mouth’ right-wingers, but such views are also shared by many members of the general public.

We have seen that this week on Lib Dem Voice and the comments on Baby P. Nobody is under any illusions about the horrific nature of this case and the deplorable nature of the crimes committed. I think it is fair to say that we all feel a need for justice and a need for vengeance – but it’s about time we started making a distinction between the two. Justice is not vengeance. The aim of vengeance is to make the ‘punishment fit the crime’; but that is not the aim of justice.

A focus on the punitive side of justice muddies the water and makes the difference between the two concepts appear non-existent. However, justice includes a rehabilitative side; it is not punishment as an end in itself (vengeance is), but punishment with the explicit aim of paving the way for change and rehabilitation. Looking at things from this angle, as I do, makes the death penalty inherently unjust. However, nobody wants to be seen calling for vengeance (a word which, let’s be honest, is rather ugly) so instead they call for ‘justice’.

This is how supporters of capital punishment end up in the contradictory position of saying that they will literally kill to preserve life. At this juncture the dichotomy I draw attention to above is often starkly illustrated – because, in reality, supporters of capital punishment rarely believe rehabilitation is actually possible, so are able to advance the argument that the death penalty ‘protects’ society.

Yet consider this. If you are arguing that committing a crime fundamentally changes a person beyond the point of being able to be rehabilitated then how can you not accept that a society which kills through executing those guilty of a certain crime is not also changed? The notion that people never change is a myth; the human psyche constantly evolves and changes in reaction to a variety of factors.

All of which leads me on to the second aspect of my opposition to capital punishment; the intellectual one. It simply doesn’t work. In the tragic case of Baby P does anybody seriously think that the three accused would have been deterred by the thought of dying?

If people lack a conscience to the point they can kill or commit a crime in ‘cold blood’ or without remorse, they are unlikely to be overly bothered about their own demise. They are clearly very sick people in a psychological sense, and do need removing from society until such a time as they can be said to no longer pose a threat. Conversely, somebody who commits a ‘crime of passion’, a spur of the moment affair, is unlikely to be thinking about future punishment at the time.

Finally, we come to the possibility of miscarriages of justice, and this is one of the most damming arguments against the death penalty. We know scientists are people, as are the people in the legal system, and that the legal system is created by people. In other words, it is fallible and to impute mythical qualities to science and the legal system is just plain wrong. Miscarriages of justice are more numerous than is assumed because it is only the high-profile ones which get coverage.

Establishing when a miscarriage has occurred is a lengthy and laborious process, and no matter how many safeguards are put in place there is going to come a day when a capital case is miscarried and the state murders an innocent person. The moment that happens murder will no longer be the province of ‘evil’ individuals, but will become the action of an entire society. And suddenly those people who felt so satisfied when they felt ‘justice’ was done will have to face up to the reality that innocent blood is on their hands.

We all feel the need for justice and the need for vengeance. Maybe amid the tragedy, the heat and the emotion, we need to reflect on which is better served by the return of capital punishment. In my view, it is certainly not the cause of justice.

* Darrell Goodliffe blogs at Moments of Clarity.

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  • Terrific article, really deserves a round of applause.

    Well said Sir, Well said.

  • Mike Falchikov 16th Nov '08 - 6:44pm

    Well said, indeed and needed saying. Just one possible correction. Last para.
    talks about the possibility of miscarriage in a capital case. When we still had the death penalty in Britain there were, of course a number of such cases (e.g. Derek
    Bentley)and increasing public unease about this was a factor in the abolition of capital punishment.

  • Darrell, although I disagree with you on naming Baby P’s parents, I do agree with what you said here. Capital punishment can’t be undone, so the risk that an error is made is too great. For example, had the Guildford Four or Birmingham Six been executed, we would now be looking at up to 10 people whom the courts have subsequently found innocent. There may be some scope for tightening sentencing in a minority of cases (eg life meaning life) but not this far.

    MPs have always been right on this one. Yes, if you asked the public the majority would probably support it, but that doesn’t make it the right thing to do – if you asked the public if they wanted tax to be abolished, you’d probably get the same answer.

  • Perhaps we should ask some of the death penalty advocates if they think Mr Tony Martin should be executed.

  • Andrew Turvey 18th Nov '08 - 12:32am

    I have a very different understanding of what “justice” means. It is critically important for us to live in a society where positive actions are encouraged and negative actions are discouraged. Otherwise we are on a road to ruin. Somewhere along we way we have lost this obvious concept.

    The criminal justice system is an important part of this justice – everyone must believe that crime doesn’t pay and that actions have consequences.

  • Joe Otten wrote:

    “3. The intent of a capital policy is to execute the guilty not the innocent. You may be aware that an occasional miscarriage is inevitable but this no more makes you a murderer than you are for driving a car, sober, within the speed limit.”

    Sorry, Joe, this is Roger Scruton’s argument.

    It is false, because motorised transport is necessary and desirable, executing people is a wholly avoidable act (an “avoidable brutality”, as Enoch Powell used to put it).

    I wouldn’t waste a lot of ink analysing the nebulous term, “justice”. In the common law world, criminals are prosecuted and punished in order to “preserve the Queen’s peace”, which in modern parlance means “protect the public”.

    Of course prison doesn’t rehabilitate. It is a means of warehousing people the state is unable to deal with in other ways.

  • Joe, what makes you a murderer is that either you intend to kill or cause really serious injury, or you foresee death or really serious injury as a virtual certainty, and there are no applicable defences.

    The world functions without the gallows, guillotine, electric chair, etc, but it would grind to a halt without motorised transport.

    So we cannot justifiably compare hanging innocent people by mistake (1 in 10, according to Clive Stafford-Smith), and killing the odd pedestrian who runs out into the road while drunk, or killing someone on the operating table (Scruton’s example).

    When innocent people are executed, it is rarely the result of an innocent mistake or even a negligent one. It is usually the result of Police corruption.

    Scotland Yard knew that Peter Louis Alphon had murdered Michael Gregsten, but allowed the Freemasons to frame Hanratty.

    And Sussex Police framed Colin Wallace for the murder of Jonathan Lewis in order to protect the real culprit whom they knew to be Nicholas Van Hoogstraten. (No, Wallance wasn’t executed, but he would have been had he been around two decades earlier.)

  • Joe Otten wrote:

    “What is my “applicable defence”?”

    You don’t need one, unless the prosecution proves beyond reasonable doubt that you have committed a fully constituted crime.

    Whether or not a hangman kills a guilty prisoner or an innocent prisoner, what is clear is that he intends to kill him.

    Very few motorists who kill do so intentionally, or even recklessly. It is usually the result of negligence.

  • But I was never on Darrell’s ground.

    Unlike Darrell, I don’t use legal terms as terms of art.

    A hangman isn’t a murderer because he has lawful authority for what he does. Similarly, drivers who kill through negligence are not murderers because they lack the requisite mens rea.

    I suppose one could argue that a wrongful conviction is a nullity, so the hangman lacks lawful authority. But the issue has never been decided, and now won’t be.

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