Should the death penalty be restored?


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Submitted by George Callaghan…

The United Kingdom last used capital punishment in 1964 abolished capital punishment in 1970. In 1998 the United Kingdom passed the Human Rights Act incorporating the European Convention on Human Rights into domestic law. This forbade the UK from reintroducing the death penalty unless there is a crisis so perilous that it jeopardises the life of the nation.

In the period since 1964 crime has risen exponentially just as poverty has gone down. There is virtually no real poverty in the UK. Even the poorest person has enough to eat. Healthcare is free of charge. There is a generous welfare system. University is free of charge at the point of delivery: people pay their fees after they graduate and even then they only have to pay when they earn a sufficient salary.

The murder rate has risen very steeply since 1964. Many of the people who would have died from their injuries in 1964 now survive because emergency medicine is so good.

Firearms are much more difficult to obtain now than they were in the 1960s. The Firearms Act has been tightened. The police are loathe to issue firearms certificates. They are also very eager to confiscate firearms. In one case a man had his gun taken away by officers of the law because he acknowledged that his mother knew where the key to the lockable cabinet was kept. One cannot fault the old bill for vigilance when it comes to guns.

What is the purpose of the death penalty? This touches on the broader philosophical question of why we have punishment at all. There are several reasons to punish. In no particular order these are; justice, deterrence, rehabilitation, protection of the public and vengeance.

Justice. Some would say that it is morally right that a malfeasant pay for his offences against society. Someone who has broken the social contract must suffer because it is just that he be penalized for his wrongdoing. Even if this did not dissuade would be criminals the punishment should still be visited on the lawbreaker. Even if the punishment did not protect the public or reform the miscreant this person must still undergo punishment. It leaves a bad taste in the mouth to think that crimes pays.

Deterrence. This means scaring people off doing harm to society. I do not purloin. Why? I would have qualms of conscience about it. But I do not wish to suffer the opprobrium that would be heaped on me if I were apprehended. Nor do I wish to spend some time detained at Her Majesty’s Pleasure. Those contemplated crimes are convinced that committing such an offence is a very unwise idea because they know the fate that awaits those who are caught. In years of yore society’s offenders had their punishment inflicted in public in terms of being put in the stocks to be pelted with rotten vegetables, taunted, slapped, spat upon and made to nasty themselves in full view of passersby. Lashings, mutilations and even executions were carried out in public for the same purpose. It was a salutary warning to anyone who was considering whether or not he should embark on a criminous venture. Saying that capital punishment does not work is tantamount to arguing that all punishment does not work. Why do I not steal? Partly for ethical reasons but also because I fear retribution.

Rehabilitation. This is the notion that would must turn wicked people into good ones. The prison reformers of the 18th century went into gaols and spoke to the inmates. Elizabeth Fry, Mr Howard and others visited the prisoners. They discovered a common pattern among many of them. They were more unlucky than evil. Almost all of them had had a bad start in life: they were born dirt poor, came from broken families, were illiterate, has been beaten up and children and often sexually molested. Many were mentally subnormal. Some were mentally ill. The prison reformers believed that such felons need help. Sympathy, education and a second chance did a lot of good for these people. They were prepared for liberty and they sometimes turned out to be morally upstanding people once they were treated decently.

Protection of the public. If we punish malefactors in the right manner they will be unable to inflict harm on the public for some time. Whilst in prison a criminal can only commit crime against other prisoners or prison officers. This his scope for burglary, for instance, is much reduced. The death penalty has the advantage of being a complete bar against recidivism. We must consider the wellbeing of prisoner officers who are likely to be attacked by the most violent prisoners i.e. those convicted of murder. We need to think about the wellbeing of other prisoners who are in gaol for offences less grave that homicide.

Vengeance. Perhaps there is an element of revenge to capital punishment. It satiates an unworthy public desire for retributive justice. When there is a high profile murder particularly of a handsome woman there is a demand that the wrongdoer pay with his life.

There are pros and cons to all these purposes of punishment. The efficacy of different approaches to criminal justice can be discussed ad infinitum. One need not for opt for one of the five purposes of punishment. One could choose two, three, four or even all five of them. It is meet and right to have a blended approach to punishment. However, when different purposes collide one will need to prioritise one over another.

No system of justice can ever be utterly fail safe. It ought to go without saying but the system comprises people. People are flawed and prejudiced. Police officers, witnesses, lawyers, jurors and judges are all imperfect. Therefore, we must expect that sometimes an innocent person will be found guilty. A wrongfully convicted person could be awarded the death penalty. However, a decent system even including the death penalty would not require a death sentence to be handed down to everyone found guilty of murder. The appeals process should correct any unjust conviction. The royal prerogative of mercy could have spared the person the supreme sanction.

Let us be frank. If capital punishment is reintroduced it is a mathematical certainty that just occasionally a guiltless person will be put to death. That is clearly monstrous. But if the positive consequence is that the murder rate is radically reduced perhaps it is worth it. You might say that an innocent person must never be put to death. That is desirable. But do you actually believe that? If you are not a pacifist then you accept the deaths of millions of people. Soldiers are seldom evil. Even those who fight for a country which is fighting in unrighteous cause are not usually dreadful. These people are innocent yet they get killed. Why is that soldiers should be slaughtered in their millions but a serial killer must be kept safe? If you want to avoid being killed in war just commit a few murders and once you are caught you will be assured of safety. That is deeply wrong. Moreover, in a war there is always collateral damage. Civilians are slain. One can try to minimize it but there is no way to avoid it entirely. Get off your moral high horse. Admit that never killing the innocent is a pipedream.

The execution of an innocent person will still be a deterrent to criminals. Those wrongfully convicted of murder are often guilty of other things. Getting involved in crime at all might lead to this.  Further, if someone innocent is put to death this still scares off would be murderers is we never find out that the person was innocent.

Why was the death penalty abolished in the British Isles? There were several reasons for this. No system of justice will ever be utterly flawless. There remains a factor of human error in it. This was compounded by social and racial prejudice. Notions of a fair trial in previous centuries and decades were not what they are today. Innocent people were sometimes sent to the gallows. Moreover, some people were put to death for acts which today are not even illegal such as engaging in homosexual relations or espousing religious beliefs which did not meet with official approval. The death penalty was felt by many to be needless. Many regarded it as cruel. It patently obviates the least possibility of reforming the person. Its effectiveness in putting people off committing crime was questioned.

In the United Kingdom there were a number of high-profile cases of miscarriage of justice. The Timothy Evans matter is a case in point. There were often disputed cases such as that of Derek Bentley. He was hanged for murder despite not physically harming anyone. The Bentley case is arguable due to the common purpose principle. That is that if two or more persons form a criminal conspiracy as a result of which someone is murdered then all the conspirators may be adjudged guilty of the murder. That was why in the 1950s as gangsters such as Mad Frankie Fraser attested armed robbers were against firearms. They used coshes to hit people. The robbers knew that if one of them killed someone then the whole gang would swing for it. The law of common purpose was a highly effectual deterrent to murder precisely because the death penalty backed it up. The law of common purpose has since been done away with in the United Kingdom as unjust and antique. In some states of the US it exists and is known as the law of parties.

Subsequently there have been a small number of prominent murder convictions which were later found to be unsafe. I write of course of the Birmingham Six and the Guildford Four. These people were found guilty just after capital punishment had been done away with. Had they been convicted only five years earlier they would have been executed. The United Kingdom would then have been faced with the terrible injustice of having put to death innocent men. The political repercussions would have been dreadful.

There was a growing feeling that the death penalty was cruel. Some Labour MPs campaigned against it. Manny Shinwell the former Secretary of State for war was one of those. Rev Donald Soper the head of the Methodist Church led protests outside a prison every time someone was executed. Other Western countries such as Denmark and the Netherlands had done away with capital punishment.

The trend since the early 19th century was to reduce and reduce the number of people put to death. In the early 1800s hundreds of people were executed each year in the UK. It was a banality. A child could be executed for stealing a purse. That was called grand larceny if over a certain quantity of money was in it. Some of the most distinguished jurists advocated for this policy of executing petty thieves. Sir William Blackstone was one of those judges and scholars of jurisprudence who insisted that people be executed for theft. Sir Robert Peel’s legal reforms of the 1820s hugely decreased the number of felonies for which a person could be executed. In 1861 the Offences Against the Person Act lowered the number even further. Homosexual acts were no longer a capital offence after that piece of legislation made it onto the statute book.

If the death penalty is to be carried out then what means should be employed? People say that hanging violently jerks the neck and the condemned can suffer for up to twenty minutes even with a long drop. Death is not even guaranteed. You may have heard of ‘the man they could not hang’. The gas chamber causes horrific suffering and the condemned takes a long time to succumb. In the case of a deadly injection the doctors have to struggle to find a vein sometimes and it can take up to an hour for the prisoner to expire. Though the person’s face makes it appear that he or she is impassive this person might still be suffering. It would be difficult to find a physician to carry out this gruesome duty. But oddly it is not hard to get a doctor to administer mortal drugs to a foetus. The guillotine seems gruesome and antediluvian. How about a firing squad? Surely twenty bullets to the head would do the trick? Would it be hard to find people to execute the sentence of death? Prisoner officers might be loathe to step forward. On the other hand special forces soldiers might be willing to do so. They need to be ruthless. Killing an unarmed person is something that most people would find it very hard to bring themselves to do.

The death penalty need not be handed down for every murder but only for very perverse ones that involved sadism. Capital punishment could be a sentencing option and not mandatory. It ought to go without saying that no one could be sentenced to death for a crime committed whilst a minor. A jury’s recommendation of mercy could be made legally binding and not merely advisory. The Home Secretary could still exercise the royal prerogative of mercy. By the early 1960s very few of those found guilty of murder were sent to the scaffold.

The arguments against capital punishment are mostly found wanting. Some people cannot be rehabilitated. Miscarriages of justice can be prevented through the use of DNA evidence. An automatic appeal could be granted to anyone found guilty of murder. The death penalty does dissuade people from committing murder.

There are plausible argument against the restoration of capital punishment. DNA evidence can be planted. The execution of a wrongly convicted person undermines confidence in the judicial system.

Having sifted the evidence this article concludes that the case for the restoration of the death penalty is unconvincing. There is little public appetite for it. There is a global movement towards abolition. In doing away with it we are in good company.

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