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.
22 Comments
Terrific article, really deserves a round of applause.
Well said Sir, Well said.
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.
The other reason that deterrence doesn’t work is that people do not commit these sorts of crimes expecting to be caught.
Jay&Mike,
Thank you and thank you for that addendum
Mike 🙂
Jennie,
True enough, especially if they are the first type that i mentioned…
Hmmm, frankly I think Mike and Jennie make better arguments than are found anywhere in Darrell’s piece.
The question of what “justice” is, is irrelevant. You cannot deduce normative conclusions from a mere definition. Rather the merit of the conclusions indicate that the concept defined might be worth supporting.
And it is not contradictory to say you will kill to preserve life. Sometimes killing has that effect, net.
Finally, a lack of remorse does not imply an indifference to one’s own survival.
I agree with the point about miscarriages of justice, although I don’t like your angle – one false conviction and execution does not make us all murderers – not even the judge, the jury or the executioner, unless there was an intent to falsely convict.
Oh, yes, and why rehabilitate people on a life sentence? What is the point? Rehabilitation efforts should be focussed on the most redeemable individuals, due for liberty sometime. Why even bring up rehabilitation in a discussion of the death penalty? Sure, the dead will miss out on it, but they don’t need it do they?
There are better reasons than this.
Joe,
No it’s not. It arose in the debate on the other thread hence the time I take on it here.
In this case it clearly is because there is no reasonable evidence to support the detterant effect.
Capital policy is an expression of intent….the angle comes from the fact that it’s easy to support the death penalty when guilt is either obvious or assumed obvious…
Because a life sentence doesnt always equate to the full length of a natural life span.
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.
Darrell, I guess that is as curt as I deserve. 😐
Let me clarify.
1. There is no point arguing over what justice demands as if the definition and merit of justice were given to us by some higher authority.
2. If an act of killing “to preserve life” does not work, then the claim that it does is false, not contradictory.
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.
4. That’s an artifact of the absurd “mandatory life sentence” policy that this party opposes.
I’m just appealing here for the use of strong arguments instead of weak ones. The “myth that people never change” is a straw man, just like the myth that people always change.
We have prisons largely full of mentally ill, illiterate drug addicts, rather than calculating criminals because we largely get punishment right, but fail on rehabilitation. If we were to rehabilitate but fail to punish we would have “prisons” full of calculating criminals instead.
I get angry when people talk about rehabilitation in contradistinction to punishment, because doing that weakens the case for rehabilitation. The two are solutions to different problems and neither should be taken to diminish the other.
Joe,
No, its quite ok..i wouldnt say you deserved it…it was just as curt as I felt at half past midnight 😉
1. I think this is a circular debate to be honest on this point. You say tomaato and I say tomato.
2. I think its made contradictory by the moral dimension if that makes sense. Proponets of capital punishment often argue to my eyes that murder should be a capitally punished crime because taking a life is somehow crossing an invisible line…i’m trying to think of a better way to put this because I can see what you are driving at but i’m trying to explain my angle…
3. Thats true…so on a technicality the sluaghter of an innocent would in a theoretical cosmic court come up as manslaughter.
4. The fact is that you are right about life sentences but my reply was just based on the situation being as it is; not us being in power and doing away with it….
On the second bit, id like some clarification…is what you are saying is that we are punishing the wrong people and rehabilitating the wrong people???
I used to have curtains like those. I ripped them down the moment I moved in though…
Lol thats a bit random Jo Jo…dont worry i dont live there anymore…:)
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.
Andrew,
But I do accept there is a punitive side to justice. If you are saying that is all it is then I disagree but it would be wrong to charactise what I say here as not incorporating the need for punishment…as anybody can see from reading the article….
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.
Sesenco, I’m not convinced. Many of my car journeys are also wholly avoidable. The kids don’t have to go to gym, cricket, choir, ballet, chess, etc. They could stay at home and watch television. Does that make me a murderer?
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.)
Sesenco, I agree that if the police deliberately cause the execution of an innocent that is murder.
But it does seem to me a virtual certainty that some people will be killed as a result of unnecessary car trips ferrying kids to gym and cricket. What is my “applicable defence”? That other people’s car use may be vital hardly seems relevant.
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.
Sesenco, I think you’ve shifted ground a bit there. I was discussing Darrell’s suggestion that supporting a capital policy would make one a murderer, because there will inevitably be a miscarriage of justice.
If that is so, then driving would make one a murderer because there will inevitably be road accidents.
In both cases a choice is being made in full knowledge that it may lead to somebody’s death.
Society is bloodier than we like to think. I hope future centuries will look back and consider us to be barbarians.
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.
Tristan, the same opt-in presumption could be made with no government involvement – all the parties involved in the recovery and use of the organs being private or voluntary sector. Would you still have the same objection then?