Capital Punishment: Humanity and Utility
By Mohammad Al Khateeb
Albert Pierrepoint[1] is a name that many members of my generation will be unaware of. Ruth Ellis was the last condemned person to die by Pierrepoint’s noose and indeed the last citizen to suffer the imposition and execution of the death penalty in 1955[2], as it would be abolished 10 years later in Britain[3]. Today, calls for the reinstitution of capital punishment are not particular to the EDL or Britain First[4], but they seem to emanate[5]from those who are disillusioned by the criminal justice system and the rise of violent crime in the UK and Europe as a whole. Those revisionists would suggest that state sanctioned killing would present a deterrent, that it would offer justice to the victims and their loved ones and that it may rid society of those undesirable violent criminals and relieve the state and prison system of their burden as they linger in its taxpayer funded cells for years that may amount to the remainder of their wasted lives.I will address some of those points, by analysing the strength of the deterrence argument, and also by assessing the economic component of what is essentially a humanitarian discussion. I will also engage with the extent of morality or lack thereof, of state sanctioned killing and whether the state should retain the legislative power to take a citizen’s life. Finally, I will visit what I believe to be the most fundamental aspect of this intrinsically disturbing concept, that being the tragedy of miscarriages of justice which leaves open the possibility of an innocent human being uttering their final words, walking their final steps upon the gallows as Ruth Ellis had once done.
The ethical question: Should the State Kill?
The European convention on Human Rights forbids its signatories, of which the UK is part, from enforcing the death penalty. This is in consistence with Article 2 and its assertion of the citizen’s absolute and unqualified right to life, it is an absolute confirmation that one lives in a democratic society governed by respect for human rights and dignity. In addition to that the ECHR dictates in Protocol 6, Article 1 ‘The death penalty shall be abolished. No one shall be condemned to such penalty or executed’[6]. That is not to say that all democracies have abolished capital punishment, notable examples include the U.S, India and Japan. Nevertheless, the question must be posed as such, should the state retain the right to take the life of a human being?
Let us assume (wrongly might I say) that all those who are sentenced to death are indeed guilty, and that the crime they have committed renders them such deplorable members of our society as to be deserving of death. Jordan Peterson, in an interview on the Ruben Report, expressed his rejection of the notion of the death penalty solely on the premise that the state should not be grated that degree of power. Although I do not entirely agree with Peterson’s view that such killings can be morally justifiable, I would like to echo his willingness to compromise the heavy hand of the state. Firstly, I must emphasise that under no circumstances will I feel any sentiments of empathy towards Ted Bundy[7] as he sat on the electric chair, nor Saddam Hussein[8] as he was hanged. By the same spirit, I, in some macabre fashion, sense some satisfaction that certain perpetrators of the Holocaust were hanged following the Nuremberg Trials and were fearful in anticipation of that moment when Pierrepoint and others had been present to pull the lever[9]. Nevertheless, as a matter of sheer principle, under no circumstances would I willingly accord the state, or any international tribunal, the right to take their lives. This is due to a desire to set clear boundaries to the powers the state retains over a citizen, a fear of abuses of such powers for political purposes and the veritable likelihood of a miscarriage of justice. Indeed we have many historical and current manifestations of such abuses of power, most important of which are the executions under the Nazi regime and Gestapo, the Mao regime in China and the current Chinese communist party’s death sentences, the Military regime under Videla in Argentina and of course the arbitrary and immoral taking of life of those deemed to step outside the prescribed order of the state and its theological framework in Iran.
Deterrence:
Assuming we believed the state should retain the prerogative to legally take a life, would that be of any particular use as a measure to limit the possibility of future murders, terrorist attacks and other heinous crimes? As rational individuals, we expect that the prospect of punishment by death will deter others from committing abhorrent crimes, murder in particular. Indeed, now UK Home Secretary Priti Patel had expressed in a BBC ‘Question Time’ episode in 2011 that she believes the punitive measure should be reinstated to deter potential criminals.
As Mathew Kramer rightly states, such lines of reasoning ‘possess a compellingly common-sensical appeal’. However, Kramer argues that the death penalty fails to satisfy the Minimum Invasion Principle, which dictates that a deterrent does not require the imposition of the most severe punishment possible, rather one that will be sufficient for the intended purpose[10]. Thus, Kramer asserts that life without parole, as a likely outcome for a defendant facing murder charges, acts as a more than adequate deterrent. We must indeed concede, that there is no desirable aspect of a life spent behind bars. A life sentence without parole guarantees the protection of society from the danger presented by the criminal, I may even suggest that death may be a simple way out (after the suffering of death row and the gallows, needle, bullet or whatever other method is employed).
The deterrence argument does not work, because it builds on the assumption that a defendant typically considers the punitive consequences of their actions prior to the act. Although this may be true for some murders, far more prevalent is the consideration of ‘how likely am I to be caught?’. A murder is often committed as an act of passion or by people who do not tend to assess what their course of action may lead to, therefore the death penalty in theory deters only those of us who would not commit a murder or terrorist act in the first place, rendering it ultimately futile as a deterrent.
That is of course the theoretical component of the ambiguous, albeit mute deterrent argument, yet we must equally envisage the practical implication and assess whether it is truly at play. Deterrence is a difficult theory to prove or disprove through the use of data, since experiments are not possible nor humane, and there are various variables that impact upon homicide and crime rates that are far more important, such as poverty, political instability, conflict, civil unrest, population growth and rehabilitation efficacy to prevent reoffending. The deterrence hypotheses should be supported by a rise in crime and homicide rates following abolition under a given jurisdiction, yet as Professor Carolyn Hoyle demonstrates, the opposite has proven to be correct in Australia, Canada and Central and Eastern Europe where the homicide rate declined by roughly 60% in the 1990’s following abolition[11]. That comes in addition to the elevated crime and homicide rates in the U.S (5 per 100,000 residents in 2019) in comparison to abolitionist Canada (1.8 per 100,000 residents in 2019)[12]. Those numbers have remained pretty consistent since 2000, two years following the official and comprehensive abolition of the death penalty in Canada[13]. The execution of Ruth Ellis was carried out based on the common law understanding that murder is the unlawful killing of a human being with the intention to kill or cause grievous bodily harm. Although some of the case law that constituted to the authorities for murder was different at the time, the understanding of the actus reus (act of unlawful killing) and mens rea (intention) were still prevalent. Although Ellis had fulfilled the required AR and MR and thus the criteria for a conviction of murder, there would today exist potentially effective defences rooted in loss of control[14] enhanced by a qualifying trigger[15] which may have reduced the conviction to one of voluntary manslaughter. Her execution had then sparked public outrage on the basis that the victim being her husband, was an abusive man under which she had sustained immense suffering. Her execution, or that of any individual baring such circumstances, presents no deterrent to any person, as they would not have the intention to take a life unless under an unbearable amount of strain, fear and suffering.
Burden on the taxpayer:
Capital punishment is a topic I tend to discuss with many who are willing to engage with me on the topic. It is a matter which has fascinated and disturbed me for years, ever since having watched ‘the Green Mile’ as a child. My research led me to very uncomfortable yet enlightening discussions. I must admit, there is very little in the way of arguments for the practice which have challenged my views. One of those is the seeming outrage at the fact that the taxpayer funds a murderer’s stay in prison for the rest of their lives when they could be gotten rid of. What those seem to disregard, is the reality that executions end up carrying a larger price tag for the taxpayer to bare than keeping an inmate in prison for life. Torin MacFarland conducts a comprehensive financial analysis of the cost difference between death row inmates and recipients of life sentences in the U.S, incorporating a consideration of implicit and explicit costs, trials, appeals, parole and other relevant matters. He concludes that death row inmates and executions cost the taxpayer at least a further $1million per head than incarcerating a convict for the entirety of their life[16]. The formalities preceding, during and following executions including voluntary and mandatory appeals, death row stays including heightened security and infrastructure maintenance, execution equipment purchases and maintenance, medical supervision, post mortem, witnesses, prison guards and executioners… It is evident that the burden on the taxpayer argument is one which has no foundation in reality, and is a simplistic assumption that fails to consider the true complexity of the traumatic and drawn out process from conviction to pronouncement of death.
Killing an innocent soul:
The possibility of a miscarriage of justice, exacerbated by the fact that the justice system is composed of inherently error prone human beings and a product of our imperfect civilisation, is in my mind the most powerful motivator for the abolishment of capital punishment. Do we doubt that the hypothetical existence of 10,000 murderers, terrorists, rapists and pedophiles incarcerated in their prison cells for life, is a far less repulsive prospect than to allow the torment, terrorising and devilish killing of one single innocent human being. Allowing the real possibility of such a tragic and devastating occurrence is unjustified, constitutes state criminality and amounts to terror against the citizen. In the grand scheme of things, with the existence of the possibility of life without parole, which would allow the recovery of and compensation to a wrongly convicted person, taking an innocent life is simply not a gamble worth taking.
Dr. Bharat Malkani states that an estimated 1 in 10 people on death row in the US are innocent[17]. This conservative, yet contextually alarming figure is based merely on the knowledge we hold surrounding the number of people exonerated during their time on death row as the appeals process reveals ‘they categorically could not have committed the crime for which they were sentenced to death’[18]. It therefore does not incorporate the number of people who were wrongly executed, those who established reasonable doubt in the appeal process or those who are granted clemency or indeed pardoned for any reason. According to the Criminal Justice Project of the NAACP, there were 2,620 people on death row as of January 1 2020[19], so according to Malkani, around 262 of those are likely to be innocent, though as outlined above, due to the variables and factors Malkani does not consider in his estimation, those are very likely to be more than 262 human beings as of January 2020. Unfortunately, the true extent of the number of innocent people executed will never be known, since there is little zeal in the courts and amongst attorneys to pursue such claims posthumously, as they instead, quite rightly I might suggest, invest their resources in attempting to save the living innocent from their moment of condemnation.
After all is said and done:
The ECHR forbids the enforcement of the death penalty, with the exception of Belarus, it is non-existent in the European continent, many countries (democratic and non-democratic) have abolished capital punishment across the world or have ceased its utilisation for various reasons. Why do the so called ‘leader of the free world’ and ‘the land of the rising sun’, in addition to the world’s most populous democracy all continue to use the method along with what the French Ministry of Foreign Affairs says is 34 remaining countries and territories that continue to sentence people to death for ordinary crimes without moratorium?[20].
The answer is that many judicial systems continue to be guided by the view that capital punishment serves as a deterrent, is a just punishment that restores justice in favour of the victim and their family and that a state retains the right, or even moral obligation to rid itself in the most violent and ruthless manner, of who the courts, or in some cases executive powers, deem as an undesirable or permanent danger to society beyond reform. There are examples of states retaining the its use due to deeply rooted conservative or religious foundations of society and the state, in which public opinion remains supportive of the Biblical, Judeo-Christian doctrine of ‘an eye for an eye’[21] or the Islamic ‘he who kills must be killed’[22] rooted in the Islamic Hadith. The theological roots of state sanctioned killing is an entirely separate discussion but ultimately hold little authority in academic and scholarly circles, particularly in states where religious institutions are separate from the political structure or fulfil a merely symbolic function.
The traditional and recurrent arguments in favour of capital punishment are, as Kramer explains, common-sensical by nature, yet the reality does not reflect the intrinsically theoretical form of those justifications. The deterrence reasoning is not vindicated by the actuality of crime and homicide in particular, the financial costs of executions are immense and thus cannot be presented as a relief of financial burden on the taxpayer, there is always a great risk of innocent people being caught in what is a large net and ultimately our normative expectations as post-enlightement societies are such that state power is limited to what is necessary to effectively fulfil its functions as per the ‘Déclaration des Droits de l’Homme et du Citoyen’, the Geneva Convention and UN Human Rights Charter.
Capital Punishment therefore, is a practice inconsistent with our contemporary view of what constitutes humanity and post-enlightenment values, the methods used are often barbaric or cannot be proven to minimise suffering and comply, in the case of the U.S, with the 8th Amendment constitutional protection against ‘Cruel and Unusual punishment’[23]. Not only does the extent of its humanity fail to stand to scrutiny, but its utility, with the ineffective nature of the deterrence argument and financial component, is equally one that doesn’t live up to the pre-conceptions held about its true effect on crime and homicide in particular. It was the court’s sentence imposed upon Ruth Ellis, and her drop from the gallows which had awakened the consciousness of the British Nation to the ruthless and cruel reality of the death penalty, and rendered it in fact the last state killing to take place in Britain. It is the memory of Ellis, who ultimately represents a symbol of the victims of the abhorrent practice, that will prevent us from falling into what I believe would be a disastrous relapse in criminal justice, and indeed the state of our civilisation and humanity.
Mohammad Matar Al Khateeb, March 17th 2021
Bibliography:
- Joe Sommerland, ‘Ruth Ellis: Who was the last woman hanged in Britain and why are we so obsessed with her murder case?’, The Independent (March 15th 2018)
- Sayed Sikandar Shah, Homicide in Islam: Major Legal Themes, [1999] (Arab Law Quarterly) Vol 14, Number 2
- Jonathan Romain, ‘An eye for an eye? The King James Bible and the Talmud’, The Guardian, December 2 2011
- The Death Penalty around the World’, Ministère de l’Europe et des Affaires Étrangères, October 2019
- Bharat Malkani, Killing the Innocent: The Death Penalty and Miscarriages of Justice, University of Birmingham Law School, 2020
- Editorial Research CNN, ‘Death Penalty Fast Facts’, CNN U.S, August 4 202
- Torin MacFarland, The Death Penalty vs. Life Incarceration: A Financial Analysis [2016], Susquehanna University Political Review Vol.7, Article.4
- John Tattrie and Andrew McIntosh, ‘Capital Punishment in Canada’, February 6th 2006, The Canadian Encyclopedia
- Carolyn Hoyle, ‘There's No Evidence that the Death Penalty Acts as a Deterrent’, (University of Oxford, Faculty of Law) April 27th 2015
- Matthew H. Kramer, The Ethics of Capital Punishment (Oxford University Press 2011)
- ’Rate of homicide in Canada and the United States 2000-2019’, Statista, Crime and Law Enforcement, October 2020
- Marcel Berlins, ‘The Secret Executioner’, The Guardian, March 31 2006
- Charlotte Meredith, ‘EDL And BNP Erect Gallows Outside Lee Rigby Killers' Sentencing At Old Bailey’, The Huffington Post UK, February 02 2014
[1] British Executioner/Hangman 1931-1956. He was a well known personality in 20th century Britain. He was responsible for the hanging of nazi war criminals following the Nuremberg Trials. [2] Joe Sommerland, ‘Ruth Ellis: Who was the last woman hanged in Britain and why are we so obsessed with her murder case?’, The Independent (March 15th 2018) [3] Murder (Abolition of Death Penalty) Act 1965 [4] Charlotte Meredith, ‘EDL And BNP Erect Gallows Outside Lee Rigby Killers' Sentencing At Old Bailey’, The Huffington Post UK, February 02 2014 [5] https://petition.parliament.uk/petitions/304809, UK Government and Parliament, Petitions ‘Bring Back the Death Penalty’ [6] Protocol 6 Article 1, European Convention on Human Rights as amended by Protocols Nos. 11 and 14 supplemented by Protocols Nos. 1, 4, 6, 7, 12, 13 and 16, Council of Europe [7] U.S serial killer in the 1970’s. Born in 1946 and executed in 1989 [8] President of the Republic of Iraq 1979-2003. Captures by the U.S forces in 2003 then tried and executed in 2006. His trial implied his instigation and ordering of human rights abuses, war crimes, crimes of agression and genocide (genocide of the Kurdish population of Iraq, invasion of Kuwait and aggression against Saudi Arabia, use of gas in war…) [9] Marcel Berlins, ‘The Secret Executioner’, The Guardian, March 31 2006 [10] Matthew H. Kramer, The Ethics of Capital Punishment (Oxford University Press 2011) [11] Carolyn Hoyle, ‘There's No Evidence that the Death Penalty Acts as a Deterrent’, (University of Oxford, Faculty of Law) April 27th 2015 [12] ’Rate of homicide in Canada and the United States 2000-2019’, Statista, Crime and Law Enforcement, October 2020 [13] John Tattrie and Andrew McIntosh, ‘Capital Punishment in Canada’, February 6th 2006, The Canadian Encyclopedia [14] The Coroner and Justice Act 2009 [15] S 54 (3) Coroner and Justice Act 2009 [16] Torin MacFarland, The Death Penalty vs. Life Incarceration: A Financial Analysis [2016], Susquehanna University Political Review Vol.7, Article.4 [17] Bharat Malkani, Killing the Innocent: The Death Penalty and Miscarriages of Justice, University of Birmingham Law School, 2020 [18] IBID [19] Editorial Research CNN, ‘Death Penalty Fast Facts’, CNN U.S, August 4 2020 [20] ‘The Death Penalty around the World’, Ministère de l’Europe et des Affaires Étrangères, October 2019 [21] Jonathan Romain, ‘An eye for an eye? The King James Bible and the Talmud’, The Guardian, December 2 2011 [22] Sayed Sikandar Shah, Homicide in Islam: Major Legal Themes, [1999] (Arab Law Quarterly) Vol 14, Number 2 [23] Michael Levy, Eighth Amendment,