by Jon MC – 8 Aug 2018
[This is the first of a two-part series of posts making the case for and against the death penalty. Jon MC here makes a case FOR the death penalty, and in the second post later this week Chauncey Tinker will make a case AGAINST the death penalty. Please feel free to join in the debate by adding further arguments and examples below the two posts.]
Having been tasked with this, it behooves me to make as good an argument as possible, even when I do not necessarily agree with all the premises or statements of the argument. Thus what follows is not all my own view, but the result of some research into pro-death penalty arguments.
Let me also say that over the course of my life I have changed my opinion. As a young man I was opposed (primarily on pragmatic grounds) on the basis that many despotic regimes used the death penalty as a means of silencing dissent. This has not changed much, today, in 'modern' Turkey you can be imprisoned for “insulting the president” and it is not such a long step from that to being judicially murdered for the same.
Now, however, I am in favour of its return on the basis that we are faced with a threat that is unprecedented within the last two hundred years or so which is implacable in its nature and to which the only proportionate response is the re-introduction of the death penalty.
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Today much is made of mercy. We should be merciful to each other and forgiving, never vengeful or retaliatory. Everybody deserves a second chance – and a second second chance often ad infinitum. Or is it ad nauseum.
We rejoice in the tales of “bad lad comes good” and ignore those who never go wrong in the first place.
Stories about “celebrities” often seem to revolve around their self-harming (drink/drugs etc.) or immoral (sex-addiction etc.) actions and their attempts to sort themselves out, often only to relapse due to “pressure” later on which permits the praise-cycle of recovery to be re-run yet again.
Thus today it often seems that everybody is a victim of some sort; no matter how heinous the act, it wasn't really the perpetrator's fault, it was due to something else that “victimised” them and so, in an almost inevitable manner, led them to their present pass.
In other words people are seen as having no moral agency of their own, they are simply automata destined either for good or ill and the “battle” (successful or otherwise) against one's own “victimisation” is praiseworthy.
One reason for this may well be the huge erosion of any consensus around moral action. If you cannot decide what acts are moral or immoral, then one cannot – by definition – be a moral actor and hence no matter what one does the act “victimises” the perpetrator as much as the victim.
What has this to do with the death penalty? Please be patient.
What this is about is the sort of society I think we have become and it is in that context that any discussion about the death penalty must take place.
Let me be quite clear here: mercy is a Good Thing in and of its own self.
I deeply respect those who forgive those who murder their sons and daughters for example.
It is often something they do so that they can go on with their lives. In other words they forgive to help themselves and if they can let go of the anger and hurt I have no doubt that it is truly for the best.
But such personal forgiveness for what might be (unkindly) termed selfish reasons does not absolve the perpetrator of guilt for the crime, nor the need for justice.
Today justice is often overlooked in the cause of mercy and yet without justice there can be nothing other than anarchy, nor in fact can there truly be mercy - which is a step back from the demands of justice.
At the same time justice without mercy is brutal, unfeeling and cruel.
(The example of the man who steals to feed his family is pertinent here.)
Thus a civilised society has to keep a balance between both.
And there is another factor that in today's secular society hardly ever gets a mention: repentance.
Repentance is not of itself a religious matter – I can regret (i.e. repent) an act without being religious, it does require that I accept that I am a moral actor in my own right and not just a “victim” of forces beyond my control. I must, in modern language, “take ownership” of my actions and their consequence for others and, most importantly, the consequences of those actions for me, including the acceptance that punishment for anti-social actions is just. It is society's way of saying “No, this is not acceptable”.
At the risk of belabouring the point a little: repentance is about acknowledging and accepting my fault; yet how am I at fault, if I am merely a victim of circumstance?
My point here is that any discussion about crime and punishment is increasingly set in a society that sees the killer as being as much a victim as the killed and is thus inclined to excuse him/her for his/her actions; which is neither justice nor mercy, it just leads to people “getting away with murder” - at least in the moral sense – which does no good to society at all.
Thankfully, that view is not completely dominant. Take the latest case of Safaa Boular. Her barrister argued that “Boular had a neglectful mother and a radicalised sister, [and was] a child from a damaged home” that Safaa had “type 1 diabetes and was 'sexually groomed' and radicalised by a British IS recruit”. In other words she was a victim. The judge wasn't buying her victimhood, he said “she was old enough to make her own decisions and her own choices [and] however much she may have been influenced and drawn into extremism, it appeared she knew what she was doing and acted with open eyes” and that despite her appearing in western garb and claiming to be “de-radicalised” he believed her Islamism to be “deeply entrenched”. So in this case the judge, despite the attempts of the defence Barrister, decided that the Islamic terrorist was a moral actor responsible for her actions and who therefore had to accept the consequences of her actions; and good for him.
My view is that there is no moral objection to the death penalty. For crimes of murder it is proportionate, fulfils the requirement of justice and sends a clear message that this sort of behaviour is utterly unacceptable.
This is not to say that I believe in a mandatory death penalty, I do not, but I do believe that it is an option that should be available to the Courts in the worst cases.
Its very presence admits of genuine mercy – the sparing of life (something the killer did not do) - the other requirement of a civilised society.
Having “set out my stall” let me move onto the case for the death penalty.
Five grounds for the death penalty are often used:
The death penalty provides justice. “The measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.” Justices A.S. Anand and N.P. Singh, Supreme Court of India, in the case of Dhananjoy Chatterjee.
One element of justice is that it is retributive. Retribution is not vendetta, vengeance, revenge or anything else carried out under emotion, it is “punishment administered in return for a wrong committed” and carried out with full due process of law and respect to the legal rights of the accused.
The person who murders has shown disregard for the victim's right to life. Why should that act not abrogate their own right to life and render them liable to the death-penalty? Or are we to argue that the rights of the criminal exceed the rights of the victim of crime?
Some will argue that “inalienable” rights cannot be abrogated, but that is loose thinking because the killer has not held even the most basic right, that to life, as inalienable. Thus those who take this view are actually claiming that the rights of the criminal exceed the rights of the victim of crime which, I suggest, is a perverse, unjust and immoral view.
The death penalty is a deterrent.
Opponents of the death penalty often claim that it has no deterrent effect and in the case of “crimes of passion” this is true. However, many murders are carefully pre-planned and there is evidence that the death penalty is a deterrent at least in such cases.
Baily, who did a study from l967 to l968 showed that in 27 states of the US when there was a moratorium on Capital Punishment in the United States, the murder rates increased by 100%. (A further problem with the US system is the interminable appeals process removes the execution from the crime to such a degree that most death-row inmates do not believe they will be executed, hence in this case deterrence may well be lost when the punishment is so removed from the crime.)
But let us take it that there is no clear evidence either way as to the deterrent effect. Does that invalidate the death-penalty?
“If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call.” John McAdams: Marquette University, Department of Political Science.
The death penalty protects society and prevents re-offending.
Some criminals simply cannot be allowed to keep on living because every minute they are alive is another minute that they're a threat to a community, whether this is the prison community or the wider community who would be at risk should they escape or be paroled.
Professor van den Haag, a psychoanalyst and adjunct professor at New York University, was questioned, “Why do you favour the death penalty?” His answer was that the Federal prison had a man sentenced to Life who, since he has been in prison committed three more murders on three separate occasions. They were prison guards and inmates. “There’s no more punishment he can receive, therefore, in many cases, the death penalty is the only penalty that can deter.” He went on saying “I hold life sacred, and because I hold it sacred, I feel that anyone who takes some one’s life should know that thereby he forsakes his own and does not just suffer an inconvenience from being put into prison for sometime (Isenberg, 1977, p. 135)
There have been many cases of criminals re-offending when on bail, parole, day release etc. Why do we assume that this somehow does not apply to murderers?
Some claim that we can protect society by imprisoning without possibility of parole – a life sentence that truly means life.
This is arguably less merciful to the criminal than execution and thus smacks more of revenge or vengeance than it does of retribution. “Throw them in gaol and chuck away the key!”
After a murder, particularly one that takes place within a family, a common fear is that the perpetrator will come back for another go after release or escape from prison. The death penalty is an assurance that this will not happen and allows the surviving victims to feel safe and secure once more.
On average it costs ~£35,000 to keep a person in jail for a year. To give a context that is the income tax take from ~4 average U.K. Earners.
Multiply that by anything up to 25 years (or more in some cases) and the cost of incarcerating a person for a “life” sentence is almost £900K. And it is more for “cat A” and other high-security prisoners.
Is it really worthwhile spending that amount of money on someone who has already shown their contempt for the well-being of others in such a dramatic manner?
Are there no better uses to which the money could be put?
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The above forms a general argument as to why I think the death-penalty is not morally objectionable and why it is better, economically speaking, in some cases – those where rehabilitation is most unlikely.
All of the above grounds apply to what might be termed the “common criminal” in the sense that crimes of murder are not unknown in common life.
However, today, we are faced with an entirely new type of murderer: the Islamic terrorist.
This person is dedicated to an ideology based in the canon of Islamic scripture and s/he believes that killing non-believers is the most “holy” thing that s/he can do.
It is to him/her an act of “jihad bis saif fi sabeeli allahi” - “sword-Jihad in the way of Allah”.
They sincerely believe that their acts of murder are holy and good, right and proper, and something their god desires them to do above all.
The Islamic terrorist is primarily driven by Islam – as they tell us in either their “martyrdom videos” or openly state when questioned.
(Here is not the place to set out why they believe this. Those that are interested can easily find my “jihad” and “war Covenant” articles that do do so, in part at least, on a section of the “FaithFreedom” website.)
The idea that such people can be “de-radicalised” en masse is, frankly, risible. In fact the opposite is most likely whilst they are in prison.
It is known today that British prisons are “hotbeds of radicalisation” (also here, here and here [EU]). This shows that prison and any “de-radicalisation” programs are failing utterly to rehabilitate almost all such offenders in any meaningful way.
Furthermore, other (often violent) criminals are being recruited to Islam and “radicalised” (i.e. turned into orthodox Muslims) on the simple grounds that Islam gives some legitimacy to their actions and that in many prisons Muslim gangs are the new elite amongst the “lags” (the days of “Porridge”, Fletcher, Godber even Grouty et al are long gone), see here, here and here and the authorities are quite unable or unwilling to do anything about it.
What this means is that the numbers of “radical” Muslims are being swelled in prison from the worst dregs of society and then being released back onto the streets.
Thus prisons, far from rehabilitating such criminals are “dehabilitating” them still further and adding to their number.
Islam itself is both supremacist and supersessionist. It believes it has a god-given right to invade and conquer non-Muslim lands, which it terms the “darul harb” - the “house of war” - to bring them within the “darul Islam” - the “house of Islam” and it believes that it may use violence, including what we see as terrorism, to further those ends.
Recently, with the rise of the “Islamic state” we saw that people born and bred in this Country travelling to Syria and taking up arms against this Country on behalf of an entity that had declared war on Britain (and just about everyone else).
This is High Treason. In UK law High Treason is defined (in part) as: “levying war against the sovereign and adhering to the sovereign's enemies, giving them aid or comfort.” “Sovereign” in this context means “Country”.
ISIL's returning Jihadists, according to the government, “could be” (are) guilty of High Treason.
With the destruction of ISIL as a territory holding entity (which rather makes a mock of the “state” part of “Islamic State” and delegitimises some of their claims in the eyes of Islam) it has morphed into yet another Islamic terror group with a global reach – at present it is a sort of “al-Qaeda on steroids”.
What sets it apart is that “IS” is very keen on “home-grown” terrorists who, before they carry out their terrorist attacks, pledge allegiance to the group which sees itself being in an armed struggle against the “darul harb” - literally “house of war” or non-Islamic world.
Thus again these terrorists are committing High Treason by “levying war against the sovereign and adhering to the sovereign's enemies...”.
In my view, such an act of High Treason is sufficient grounds to merit the death penalty in and of itself, regardless of whether other life has been taken by a particular individual.
This was certainly the view after world-war two. William Joyce, otherwise known as “Lord Haw-haw” was executed for Treason for aiding Nazi Germany with wartime broadcasts though he had killed no-one. He had, however, “...adher[ed] to the sovereign's enemies, giving them aid or comfort.”
The UK's treason law was reformed under the 1998 Crime and Disorder act that made life imprisonment the most severe form of punishment.
Orthodox Muslims hold that Sharia law trumps the law of the land, that a “Khalifa” - a caliphate – is the only proper form of governance and that society should be completely regulated by Sharia.
Such beliefs can only be termed inimical to our society as it is constituted.
As such they will seek the overthrow of western society (as a Muslim brotherhood document shows re the US, also here).
Jihadists, therefore, are using violence to aid this aim and see their violence as both “jihad bis saif fi sabeeli allahi” and “qitalu fi sabeeli allahi” - “warfare in the way of Allah”. Thus they are “levying war against the sovereign [Country] ...” and/or “giving them aid or comfort”, hence all such should be charged with High Treason and those that are successful in their attacks and survive should face additional murder charges – as an “aggravation” to treason.
Islamic terror, no matter how murderous is not only murder. They are not, despite all efforts to persuade us so, “common criminals”, “mentally ill” or any other excuse that is dreamt up so that government does not have to address the real root cause, which is the orthodox interpretation of the teachings of Islam.
Jihadists have taken up arms (in a broad definition) in the cause of a foreign and inimical power (e.g. ISIL) against their compatriots, many who pledged allegiance to ISIL have travelled back on British passports, thus they are still claiming to be British citizens.
Those that attack inside the Country are acting as a “fifth column” to destabilise it, in accord with the Muslim Brotherhood plan, and thus are also guilty of treason and hence deserve to be so charged.
Both groups of Jihadists act in the name of an ideology that seeks to destroy western civilisation.
This, I think, addresses why terrorists in general and Islamic terrorists in particular should be charged with High Treason.
The case I am going to make here is for the death-penalty for Treason. Whilst that should be applicable “across the board” I am going to set out why I think it is particularly needed in the case of Jihadists.
Another relevant point from the World war II “Lord Haw-haw” case is that he was executed for Treason despite his defence that he was born an American and later became a naturalised citizen of (Nazi) Germany and thus not liable to a charge of treason against the UK; which defence was thrown out on the grounds that he had obtained a British passport and voted in UK elections and thus having “adopted” the UK as his Country owed allegiance to the Crown.
In the case of the “British Jihadists” the evidence is more damning: they are UK nationals and so they owe allegiance to the crown.
The arguments applicable to Lord Haw-haw that led to his hanging are thus even more relevant to “British” Jihadists.
Simply put, we need the strongest possible deterrent to those who might seek to turn traitor to the Country.
Today those are Jihadists.
Once a person has moved beyond the “radicalisation” step (that is, become an orthodox Muslim) and undertaken “Jihadisation” - the final step that a “radical” Muslim takes that means they move from a “quietist” stance to a Jihadist one and which is one that takes place only after the proto-Jihadist has already flagged their presence and sympathy to Jihadist recruiters who often operate openly in UK cities; then there is little or nothing to be done with them and, except for a few, they will not genuinely recant their beliefs, though some others may pull back from carrying out an act of sword-Jihad and return to quietist attitudes.
But that requires a strong deterrence.
Thus it is important to bring a stop to the process prior to that point.
If the proto-Jihadist knew that the attempt to commit mass-murder in the name of Allah was going to be treated as treason and that conviction could lead to the death-penalty then that would deter many of those who were, so we are told, looking for the “romance” of Jihad. It isn't very “romantic” to end up with a rope around your neck and a short drop beneath your feet.
Even the more cold-blooded may consider that the risks of being found out, tried convicted and executed make the cost-benefit ratio too negative (especially when if you intend to carry out sword-Jihad and support other suckers in doing it you reap the same rewards).
Bluntly it would scare off some, not all of course. The true “mumin” - “believer” will not be deterred no matter what, but thwarting them is the job of the intelligence agencies and Police who do, when all's said and done, quite a good job.
But it would also send another signal that is just as important. It says that we think our society and way of life is worth defending and that to protect it we will, where necessary, kill those who hold and act on inimical attitudes.
If we want the west to survive (and frankly I see little to no evidence that our leaders, political, religious and other do – but that is another matter) then we need to be prepared to demonstrate that our societies make demands on our citizens in return for the rights they enjoy, we should be prepared to demand loyalty to the states that succour and nurture us and part of that should be the preparedness to punish – as just retribution – those who deliberately refuse those demands.
Loyalty should not be blind, as Carl Schurz is famous for saying: "My country, right or wrong; if right, to be kept right; and if wrong, to be set right." But the electoral procedures of democracies give us just this option (up to a point at least), so loyalty can be demanded in return.
And those that are the worst transgressors against the loyalty that a Country may rightfully demand, those that turn upon that Country in treason, should reckon that in doing so they may well pay with their lives for the harm they do to their compatriots.
There is, to be honest, a certain hypocrisy in our current attitudes about the death-penalty.
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?
If he is deserving of death for his actions (which he certainly was) then is what way is the summary justice of a drone strike morally superior to execution after due process?
Given that the Jihadist is setting out to do his/her compatriots as much harm as possible and further that they are doing so, not out of the petty motives of personal vengeance, anger etc. (as is the case in most US-style school shootings for example); but instead are doing so coolly and coldly in the belief that mass-murder is a “holy” activity, then I deem them the worst of all traitors, utterly inimical to society as a whole and the most deserving of the death-penalty should they survive their attack and there is simply no other penalty that is truly proportional to the magnitude of the crime and its underlying intent and thus I have come, with some reluctance it has to be said, to support the death-penalty in such cases.
What do you think? Please leave a comment below.