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Arguments Against The Death Penalty

by Chauncey Tinker – 10 Aug 2018

[This is the second of a two-part series of posts making the case for and against the death penalty. Chauncey Tinker here makes a case AGAINST the death penalty, in the first post Jon MC made a case FOR the death penalty. Please feel free to join in the debate by adding further arguments and examples below the two posts.]

I have an advantage as I am responding to the arguments Jon put forth in his excellent first post, and there have also been many excellent responses to his post (on both sides of the argument) which have given me extra material. If you haven’t seen it already you may wish to read his post first:

Arguments For The Death Penalty

Some things to make clear before I start:

First of all I want to make it very clear that my opposition to the death penalty does not come from any bleeding heart “liberal” concern for the rights of people who commit horrible crimes against their fellow human beings.

Secondly I do not oppose the use of the death penalty in time of war. Pragmatic decisions have to be made in times of war, there simply may not be enough time to worry so much about the rights of individuals, and besides greater wrongs such as bombs falling on the wrong people deserve more immediate attention. Quite where you draw the line between war and peace in the case of say a widespread civil conflict would have to be a judgement call by those in power at the time.

Thirdly Jon made some strong arguments for the death penalty specifically for the crime of High Treason but I think my arguments here can apply equally to that crime as to other crimes, and so I also oppose (in peacetime) the death penalty for High Treason.

KILLING THE INNOCENT

The first and largest objection I have is a very obvious one, that we may execute an innocent person. Let’s look back at some of the cases where people have been convicted and then later acquitted of crimes where the death penalty might apply. From the Mirror:

Hugh Callaghan of the Birmingham Six still haunted but supports campaign by bombing victims’ families

Hugh Callaghan, one of the six spent 16 years in prison. Quote:

Now 84, he explained: “In the nightmares I’m being questioned and whenever I say something they don’t like they kick me hard under the table and tell me what I am supposed to say.

“Then there are the dogs. The police left my cell door open and kept bringing in this police dog, an Alsatian and geeing it up to bark at me - I see it in my bad dreams.

This is surely evidence that our justice system is not run by perfect human beings. The length of time it took for the case to be overturned was quite long enough for an execution to have been carried out. Sometimes it takes a long time for the truth about a case to come out, and sometimes it takes relentless campaigning, often inspired by a convicted prisoner’s continuing insistence of their innocence, to bring about a re-trial.

As long as the convicted person is still alive their testimony is still available for any re-trial. If they have always consistently protested their innocence then that could carry some weight in a future trial. Their alibis may not have been properly considered at the original trial, and new alibis may come to light – a witness might come forward to confirm that they were in another place at the time of the crime. It may even be in some cases that they were present at the scene of the crime and so they have importance as a witness. If it is later found out that they were wrongly convicted then their evidence may even play an important part in the prosecution of the real guilty party. If they are dead then obviously they won’t be able to testify to any of the above.

The advent of DNA tests and other advances in forensic science seemed to usher in a new era of much safer convictions, however mistakes continue to be made even where DNA evidence is available. This article from the Guardian (2017) discusses a number of cases:

DNA in the dock: how flawed techniques send innocent people to prison

One of the cases mentioned in the above article is the case of the murder of Meredith Kercher in Italy. In that case the presence of Raffaele Sollecito’s DNA on Ms Kercher’s bra clasp was part of the evidence against him. However the article states that DNA can even be transfered for example between clothes in a washing machine, and so since they were sharing a house together it is quite possible the DNA was transfered by some such means.

Wikipedia has a list of miscarriages of justice here:

List of miscarriage of justice cases

One case cited is the murder of Jill Dando, Barry George was acquitted of the crime in 2008 after 7 years in prison, again quite long enough for a death penalty sentence to have been carried out. Again the forensics evidence was found to have been at fault in this case, and due to the popularity of the victim public pressure for a conviction was no doubt a factor in the resulting unsafe conviction, something that would of course have appalled her. From the BBC:

George not guilty of Dando murder

Meanwhile the real killer is presumably still at large. Incidentally Barry George has apparently been denied compensation for his 7 years in prison despite having made more than one claim for such compensation.

It may be that some people will say the problem here is that we need an improved justice system with better training for police, forensics etc. and of course it is always desirable that we pursue that. However I don’t think our justice system will ever be perfect, human beings are fallible and some mistakes will always be made. In the wake of a terrible crime there is often huge public pressure for the perpetrators to be brought to justice, as in some of the above cases this can lead to botched convictions. If we re-introduce the death penalty I believe it is inevitable that some innocent people will be executed. In many legal systems a “crime of passion” is looked at as something less terrible than a pre-meditated murder, surely when the state executes an innocent person this is akin to that latter worse category of crime.

CATEGORIZATION – BEYOND REASONABLE DOUBT OR BEYOND ANY DOUBT

As a response to the objection that innocent people may be executed, quite a few people have suggested that the death penalty should be applied selectively for those crimes where for example a murderer is caught red-handed in the act. One strong point made by a commenter is that in the cases of serial killers the sheer body of evidence that builds up can overwhelmingly point to a particular individual to the point that there is no real doubt.

However one problem I see with this position is that it would surely require two categories of verdicts to be acknowledged under the law, which would be defined perhaps as:

This may sound reasonable until you start to contemplate some of the grey areas that can occur. Imagine a knife fight involving multiple individuals where a man is killed. The police arrive to catch a man red-handed with a bloody knife in his hand. DNA evidence reveals that the blood of the murdered man is on the knife, but under questioning the accused “murderer” insists that someone else delivered the fatal wound and he merely picked up the knife in order to defend himself.

I really fear there will be unintended consequences of making such a distinction. I think it could well sow doubt and confusion in the minds of jurors, who would still be asked to convict a defendant under the “beyond REASONABLE doubt” category of verdict, but now have to contemplate a distinction between being absolutely sure about a defendant’s guilt and not absolutely sure, just sure “enough”. This could lead to greater doubt in the minds of jurors in cases where the defendant is not caught “red-handed” but yet all the facts still point to the defendant’s guilt.

To summarize this objection I think we need a clear “red-line” about when we decide a defendant to be guilty and when we do not. Being a juror is surely hard enough as it is, I think it would be better not to complicate the trial process further. There are already far too many grey areas in UK law which are leading to sometimes quite absurd disparities in the application of the law (particularly with so-called “hate crime” legislation for example although that’s quite another subject).

THE CONSCIENCE OF THE JURY PROBLEM

One of the problems with the death penalty is that jurors may be influenced by the fact that the death penalty may be applied in the case they are considering. For example, religious objections might prevent some jurors from giving a guilty verdict if they object to the state applying the death penalty as a matter of principle, even when they are convinced of the defendant’s guilt. A remedy might be to have a questionnaire for jurors for cases where the death penalty might apply, those who objected to the death penalty could be rejected for jury service I suppose.

Even those who did not fundamentally object to the death penalty on principle might hesitate to give a guilty verdict on seeing the defendant as a living breathing human being before them (the victim by comparison in a murder case is absent of course, only the victim’s family and friends remember the victim). To address this problem the jury could be given the task of deciding on the sentencing, whether to give the death penalty or not, in fact this approach is used in the US in some states including Idaho apparently:

What Makes a Death Penalty Case Different from Other Criminal Cases?

However I fear this approach might lead to disparities in sentencing between different cases, which might lead to appeals against the severity of the sentence in other cases.

FINANCIAL COSTS OF EXECUTION VERSUS INCARCERATION

The cost of keeping wrongdoers in prison for long periods is always very galling for hard-working taxpayers to bear. Jon made the point about cost of incarceration in his post and it is an important one, especially in light of the increasing volume of violent offences committed in the UK in recent years.

However you have to weigh those costs against the costs that occur thanks to endless appeals against a death sentence and time spent on death row. There have been claims from the US that the death sentence is actually FAR MORE expensive than a life sentence, here is one such claim which cites numerous studies:

Financial Facts About the Death Penalty

Quote regarding a study in Oregon:

The study found that 61 death sentences handed down in Oregon cost taxpayers an average of $2.3 million, including incarceration costs, while a comparison group of 313 aggravated murder cases cost an average of $1.4 million

Some have disputed such claims, for example stating that they are not comparing with a truly lifelong sentence (life without parole):

Does the Death Penalty Cost Less Than Life in Prison without Parole?

I also think that probably keeping the most dangerous prisoners in prison for a lifetime may be more expensive as it may be necessary to keep the prisoner in solitary confinement permanently as they could be a grave risk to other prisoners, I’m not sure if this is generally taken into account in the above studies or not.

While some will of course suggest that we should just string ’em up by the nearest lamppost and have done with it (and re-use the rope as well to save cost), I think in reality that we have to acknowledge that even if the cost can be kept somewhat lower than a true life sentence it is never going to be exactly cheap in the modern world (the numbers above are millions of dollars either way).

Somehow I see something inevitable about the long drawn out process and the many appeals. When a person’s life is at stake many people will be galvanized to campaign against the execution. In fact some say that the reason prisoners are on death row for such a long time in the US (typically over 10 years sometimes even over 20) is to allow proper time for any further evidence to come to light that may exonerate the convict:

Time On Death Row

The long time that prisoners have spent on death row (in solitary confinement) has been described as effectively a double punishment and a cruel and unusual punishment, in other words people have claimed that such cases are a violation of the US constitution. (Hat-tip to saraloulou for the link).

I think the cost issue is a very serious one not just for the probably tiny minority of criminals that we might consider as deserving the death penalty, but more importantly for the majority of the growing numbers of those convicted of lesser crimes. I think it makes more sense even from a purely financial perspective to consider ways in which prisoners could be made to work for some percentage of their privileges while inside, but this is an entirely different subject that needs separate consideration IMHO.

CLOSURE

Jon made a strong point about closure. The feeling that justice has been done and the case is well and truly closed may indeed be a point in favour of the death penalty. However the experience from the US is that the death sentence draws a lot of media attention to the plight of the convict, and as the process is so drawn out it may be that the victims’ families actually suffer even more from the amount of publicity the case receives over this long drawn out period. It must be particularly galling to see some sections of the public expressing sympathy for the perpetrator while the victim is often more or less forgotten.

As Jon also argued, if the convicted criminal is executed the family of a murder victim also don’t have to worry about the prisoner being eventually released or perhaps even escaping and threatening them or others. I can’t see any reason to argue against this point (as long as the person executed is truly the perpetrator of the crime). This risk can be mitigated however by life means life sentences for the worst crimes, and better prison security which is desirable in any case (admittedly both requiring more is spent on the justice system).

DETERRENCE OR PREVENTION?

The question of whether the death penalty works as a deterrent or not is a difficult one, Jon cited a study on that subject that suggested that it is an effective deterrent. We can find other studies that claim the opposite however:

Study: 88% of criminologists do not believe the death penalty is an effective deterrent

If we were to follow the deterrent argument to its logical conclusion then I think we would end up torturing people to death slowly and doing so in full public view so that the lesson to others thinking of committing crimes could be properly seen by all. On a more serious note I don’t think very many people today would really want to see things taken to such extremes. The electric chair method of execution is supposed to render the convict unconscious before the brain has time to register pain, however there have been cases where multiple shocks had to be applied, even relatively recently. This has also led to claims that the electric chair method of execution constitutes cruel and unusual punishment. The idea of being electrocuted may be particularly unsettling for some I suppose, anybody who has experienced an electric shock will know it is very painful.

The US have moved towards lethal injection as a more humane method (as have other countries including China) although I understand it the electric chair is still available in some states, sometimes even bizarrely it is available as a choice for the convict. If we end up opting for more humane methods then I think we may even encourage those who wish to end their own lives to commit terrible crimes, surely the deterrent effect is diminished. What causes people to commit such terrible crimes may be a mystery to most of us, but what I think we have to acknowledge is that it is unlikely that they value their own lives very highly if they feel an inclination to do such things.

Quite a few people have also suggested that there are crimes that are simply just so far beyond the pale that we need a greater deterrent in those cases. However once again there is always a risk that we will execute an innocent person, and doing so by the more extreme methods is surely something that nobody wants to be responsible for.

My own view is that the primary objective of the sentence should be to prevent re-offending, I think that should be the focus. Jon cited a case where a prisoner committed murders while in prison, including murders of prison staff, however I think such a case rather raises questions about security in prisons, which is a different subject. He also cited cases where prisoners are let out of prison only to commit further crimes, but again I think this just raises a different question, that of the leniency of many sentences and the inability of our prison system to rehabilitate offenders. It seems to me the solution to this problem is for longer sentences and life really meaning life in the case of the most serious crimes.

FOREIGN WARS

Jon asked:

We are quite prepared to sanction the killing of “Jihadi John” and his merry band of brothers with a “targeted drone strike” whilst he is in Syria without any due process of law. On what basis then do we say we won’t kill a Jihadist after due process?

I think however that if someone is “behind enemy lines” then it is reasonable to say that they are in a foreign nation at war with our nation, and as such my position that the death penalty is reasonable in times of war can apply there, I think that is a clear “red line”. Of course there is a risk that we may even in that circumstance kill an innocent person – for example an undercover journalist or even a spy, but such are the dangers inherent in wars, there is no way we can wage war without risking killing innocent people who are in the enemy nation.

REASONS TO RE-CONSIDER THE DEATH SENTENCE

Unfortunately the violent crime rate has been rising in the UK and the West more generally, but I don’t think we should rush to abandon those sound principles of justice that make Western civilization the best civilization that has ever existed.

It was for a long time the case that a majority of ordinary people have favoured the death penalty but a majority of our elected representatives have opposed it. I also think that with increasing calls for “direct democracy” it is very probable that this debate will return before long to the political arena, and if we do introduce “direct democracy” the pro advocates may eventually prevail. According to this BBC article from 2015 however, public opinion has just dropped slightly below a majority for the first time (to 48%):

Support for death penalty drops below 50% for the first time

SUMMARY

I do not believe the death penalty is an effective deterrent. Criminals are likely to either be acting impetuously in the heat of the moment when they are unlikely to be thinking about long-term consequences, or else they are so disturbed that I think it is foolhardy to think we know what sort of thoughts are going on in their minds. If people are so at odds with the rest of society that they carry out acts of murder etc. that will alienate them from the vast majority of people, then I think it likely that they don’t value their own lives very highly either.

As I have stated above, my biggest objection to the death penalty is the risk of executing an innocent person, not a small risk given the fallibility of those in positions of authority. The public pressure in the wake of a serious crime can and has encouraged the authorities to force a suspect to confess to crimes they have not committed.

RELATED POSTS:

Arguments For The Death Penalty

The Principle of the Thing – Equality Before The Law

ELSEWHERE ON THE WEB:

A true crime of passion perhaps:

Ruth Ellis - the last woman to hang in Britain

What do you think? Please leave a comment below.

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