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On Capital Punishment

I was initially intending to write an extensive introduction for this. Beginning with my musings on the occurrence that made me aware of how terribly wrong, how utterly useless and immoral, I felt capital punishment to be. (It was 1953, I’d recently turned 13, and the papers were headline screaming the news that the US Government had executed Julius and Ethel Rosenberg for espionage, courtesy of the electric chair in New York’s Sing Sing prison. The following year I read the first of Caryl Chessman’s four books, Cell 2455, Death Row, and my repulsion for the death penalty grew in strength. By the time the state of California legally murdered Chessman in 1960, my views had crystallized. All I additionally needed was to thoroughly educate myself on the matter. Which I set about doing with an open mind. What I subsequently learned absolutely reinforced my feelings.) I then thought to continue by describing in vivid detail the public execution—by a 5-man naval firing squad—that I witnessed in the south of Thailand in late 1971. (It’s not a pretty sight. My coverage of the event for ABC Radio News won me plaudits; while the article I later wrote for a magazine in Melbourne, Australia, accompanied by photographs I’d taken from immediately behind the firing line, forced me to flee Thailand in a hurry.) And further tell how I felt a noose tightening around my own neck when Zulfikar Ali Bhutto was hanged in 1979 and why I’d earlier written a poem for him (“Don’t die, Bhutto / Don’t shoot your last load at the end of a rope…”). And so on.

But this is not about me. It’s about setting the record straight on capital punishment. And so my various stories, fascinating though they are, can wait for other contexts in order to get told. Instead I’ll briefly relate the manner by which this treatise came to be written. I was living in Devonshire, England. The teenage daughter of my girlfriend at the time had been assigned to participate in a high school debate on the subject and was wanting some background information. (Happily for her, she already knew she would be arguing against the death penalty.) She asked for my help and I readily agreed. What you are about to read is a somewhat revised, updated and expanded version of the document I prepared for Poppy Brookes. To my mind the case it makes is ironclad. So ironclad, that hopefully those who continue to support the death penalty will be persuaded to revisit their opinions. I’m not in the business of preaching to the converted. Of course there will always be folks who are so lacking in compassion that no amount of reasoning stands the slightest chance of undoing their prejudices. Like the bloodthirsty mob that stood outside the prison gates in Huntsville, Texas shouting down a Gospel singer’s rendition of “Amazing Grace” with loud chanting cries of “Kill the bitch!” while the authorities inside were snuffing out 38-year old Karla Faye Tucker’s life.

ARGUMENTS AGAINST CAPITAL PUNISHMENT

1) Capital punishment is morally wrong. It is morally wrong because it is murder, pure and simple. Nor does the fact that it is legal (in those places that still have it) make it any less wrong, hence any less a moral crime. Murder is murder, whether sanctioned and committed by the state or perpetrated by private individuals acting on their own and outside the law. You cannot make something right by making it legal. There are many unjust laws, including in democracies. Capital punishment is the most deadly of these.

The Biblical injunction “Thou shalt not kill” is a good and wise code to follow, regardless of one’s religious (or nonreligious) philosophical tendencies. Indeed, the most accurate translation from the original Hebrew of the Sixth Commandment (Seventh, according to Catholic counting) is “Thou shalt not [commit] murder.” Although scriptural texts such as the Pentateuch/Torah in Christianity and Judaism, as well as the Koran, do allow for capital punishment, even to the extent of specifying instances when it can or should be imposed, modern scholarship has gone a long way towards recasting those passages in a more enlightened and compassionate aspect. As do other learnéd writings dating back centuries. Pretty much leaving only diehard fundamentalists adhering to literal interpretations.

In any event, it is conscience not scripture that needs to guide our behavior.
And notwithstanding that the act of killing may be justifiable in certain extreme situations (e.g., self-defense or to save another person’s life), murder—the deliberate and premeditated taking of a human life—is never justified.

Furthermore, two wrongs do not make a right. Yes, this is a cliché. But like so many sayings it became a cliché because it is true. The point being that capital punishment is murder and as such is wrong, no matter how hideous the crime for which it is imposed.

2) Capital punishment has never served as a deterrent to any manner of crime; not murder, not rape, not even pickpocketing. [In England, until the early 18th century, pickpockets were regularly hanged in public. It was at precisely these (very well attended) proceedings that other pickpockets did their best business. Some deterrent!] Let anyone who disputes this take the time to carefully research the facts, country by country and in the USA state by state. Among the discoveries they’ll make is that by and large the murder rate is much lower where capital punishment is not practiced.

3) Capital punishment is cruel. Even the most (supposedly) humane method, by lethal injection, subjects the condemned person to what must surely be agonizing psychological torture.* Nor can anyone who has not themselves been there and come back (!) know for certain that there is no physical pain involved. While all other methods of imposing the death penalty are unquestionably cruel, a fact most proponents of capital punishment do not bother to dispute. These ‘techniques’ are cruel even when they ‘work properly,’ which they very often do not: ropes fail to break necks (leaving people dangling, alive and suffering frightfully**); electric chairs fail to deliver enough ‘juice’ to kill, even with several jolts (after the normal course of three electric shocks, and the straps and other equipment had been removed, Ethel Rosenberg was found to still be alive; attendants then put the equipment back on, two more shocks were applied, and Ethel’s death was finally announced by smoke rising from her head). While the time required for cyanide to ‘do its stuff’ in the gas chamber is always excruciatingly long.

* Because it is a ‘medical procedure,’ lethal injections must be administered by doctors. Yet in the United States, the American Medical Association (AMA) has made clear that doctors who partake in the practice are violating their Hippocratic Oath (which is to save lives not take them).

** Right, the ‘kill the bitch’ crowd are into suffering big-time. As long as it’s not them who are suffering! ‘People who commit crimes should suffer for what they’ve done,’ is their unflinching position. See below (under Possible Arguments For…), where ‘an eye for an eye’ is discussed.

Alas, here’s bad news for American opponents of the death penalty who are hoping that one of these days the US Supreme Court will rule that capital punishment is unconstitutional. It is not. Most unfortunately, the framers of the United States Constitution weren’t minded to forbid the imposition of the death penalty. Which is why the third and final phrase of the Eighth Amendment reads, “nor cruel and unusual punishments inflicted,” rather than “nor cruel and inhumane…,” as I would wish. Historically speaking, capital punishment is anything but unusual. Plus the Fifth Amendment explicitly states that “No person shall… be deprived of life, liberty, or property without due process of law…” In other words, in the USA the definitive abolition of capital punishment can only be achieved via either legislative actions or a specific amendment to the federal constitution. Don’t hold your breath waiting for the latter. It requires a two-thirds supermajority vote in both houses of Congress and ratification by three-fourths of the State legislatures!

4) Many people are executed for crimes they did not commit. This happens because even the best judicial systems are fallible. Yet when new evidence comes to light after the fact, there is no going back. Dead is dead. And especially nowadays, with the advent of DNA testing, more and more such cases of erroneous convictions are being uncovered. But even DNA testing cannot entirely eliminate the possibility of error. All scientific evidence must still be interpreted, by human beings. And human beings are fallible. Period. Full stop.

5) To kill a person for having committed a serious crime (e.g., cold-blooded, premeditated murder) is to deprive that individual of any possibility of personal redemption, whether psychological and/or spiritual; which is to say, to make it impossible for them to ever come to terms with what they have done and to try, in some way or other, to make amends. You do not make amends by dying!

(Funny, eh, how the very American Bible-belters who so noisily espouse ‘Christian values’ and ‘Christian charity’ are for the most part adamant supporters of the death penalty. No, not funny. And hardly surprising. Membership in their ‘redemption club’ is strictly limited.)

In one of the most celebrated murder trials of the 20th century, Illinois vs. Leopold & Loeb, defense attorney Clarence Darrow successfully argued against imposing the death penalty. Nathan Leopold and Richard Loeb, two wealthy college students, had kidnapped and murdered a young boy in a badly-botched attempt to commit the ‘perfect murder.’ Loeb was later killed in prison by a fellow inmate. Leopold, on the other hand, was certifiably rehabilitated, eventually released on parole, and worked as a medical assistant in Puerto Rico until he died of natural causes. (None of Darrow’s murder clients ever received the death penalty.)

There are numerous other examples in the annals of capital punishment attesting to the personal redemption and/or social rehabilitation of serious offenders, including murderers who admitted their guilt. Many of these individuals were executed anyway, very often after having spent a decade or longer on death row. A 1998 example is Karla Faye Tucker, the first woman to be executed in the state of Texas since 1863, during the American Civil War. Partly on account of Tucker’s widely publicized conversion to Christianity, among the many international social and political figures who unsuccessfully petitioned for her sentence to be commuted to life imprisonment was the noted right-wing American televangelist Pat Robertson.

6) Executions require executioners. Hence, whenever the state carries out a death sentence, it makes it necessary for one or more individuals to commit murder. With firing squads they connive to circumvent the ‘individual responsibility issue’ by anonymously giving one member of the squad a weapon loaded with blanks. But whatever the means employed, an entire operating chain of command is involved apart from the person(s) whose task it is to do the actual killing.

7) To lock someone up on death row, and thereby keep them in a confined environment where they will not be examined and treated by psychologists and other qualified medical personnel, and then to kill them, is to deprive society of the opportunity of ever finding out exactly why that person committed their crime. And yet without such valuable information, the chances of reducing violent crime in the future are immeasurably diminished.

8) Juries are usually instructed to convict if they find the accused ‘guilty beyond a reasonable doubt.’ But ‘reasonable doubt’ is not good enough, since a wide margin of error is patently inherent in the term itself. And in capital cases it is practically an invitation to arrive at the wrong verdict.

9) It is a well-documented fact that in many countries and states where capital punishment is permitted, the death penalty is disproportionately imposed on convicted offenders who are economically impoverished* and/or socially underprivileged and/or who belong to a minority ethnic group. This is particularly true of the United States, and even more true of the Deep South (in the same way that it was horribly true of South Africa during the apartheid era). And while it is all well and good to say that such rampant discrimination ought not to occur, and that measures should be taken to prevent it from occurring, the fact remains that it does occur and is not likely to stop occurring any time soon. The logical first step is to get rid of the death penalty.

* Nor must it be forgotten that those with the most money to spend can easily afford the best legal representation, whereas impoverished people must rely on the services of court-appointed attorneys, i.e. public defenders. (O. J. Simpson, whether he was actually guilty or innocent of murdering his ex-wife, is a famous example of the former scenario.)

10) The question of insanity. In order to be convicted of a capital crime, the accused must be shown to have been sane at the time he or she committed the crime. But the legal definitions of ‘sanity’ and ‘insanity’ are almost always imprecise and open to dispute. Consequently, many individuals who in fact were not sane are convicted and executed as though they were. Again, the only sure way of preventing such miscarriages of justice is to abolish the death penalty.

One might also argue as to whether anyone who commits a deadly crime (premeditated murder, for instance) can ever be considered altogether sane, at least at the time of committing the crime.

Anders Behring Breivik, the Norwegian mass murderer who killed 77 people in Oslo and on Utøya island in July 2011, was given two separate psychiatric examinations prior to his trial. The first evaluation diagnosed him as a paranoid schizophrenic. The second report detected signs of narcissistic personality disorder, but concluded that the accused was sane at the time of the attacks and afterwards. The court accepted the findings of the second report and sentenced Breivik to 21 years (extendable) of preventive detention, as opposed to confinement in a mental institution. (The defendant himself insisted he was sane.) Norway does not have the death penalty. It was abolished for peacetime offenses in 1902 and for military offenses in 1979. The last peacetime execution was carried out in 1876, the last military one in 1948. There was no public outcry for Breivik’s blood. A poll taken after his horrendous killing spree showed that opposition to the death penalty remained firmly entrenched, with 16 percent supporting and 68 percent opposed. Norway is a sane country.

11) It is not unlikely that on rare occasions certain severely disturbed individuals have perpetrated capital crimes as a perverse way of committing suicide; i.e., by getting the state to do the job for them. One possible example is Gary Gilmore, who gained international notoriety when he literally demanded that the American state of Utah execute him (“Let’s do it,” he famously said, mere moments before the bullets began to fly). Interestingly enough, Gilmore killed his two victims only days after the US Supreme Court overturned its own short-lived (four years) de facto moratorium on the death penalty. While the serial killer (rapist, kidnapper, etc) Ted Bundy told police investigators that he committed his final murders in Florida specifically because it had the death penalty. The existence of capital punishment opens the door for the state to be complicit in an unbalanced person’s successful attempt at self-murder.

There you have a series of arguments against imposing a death sentence at any time and in all circumstances, even when the accused and convicted person is guilty of his or her offense beyond any shadow of doubt (never mind a reasonable doubt) and no matter how grave or horrible that offense may have been; and also if that person is obviously still a clear and present danger to society. In every such situation, the anti-capital punishment position correctly assumes that there are always perfectly acceptable alternatives to the death penalty.

POSSIBLE ARGUMENTS FOR (And Answers To)

It is difficult to know in what order of importance advocates of capital punishment will present their arguments. Most such arguments tend to be at once emotional and irrational. While even their more ‘rational’ arguments are frequently arrived at with mean-spirited intentions. The following list anticipates some of the possibilities.

The punishment should fit the crime.
This is the vengeance and retribution view of “an eye for an eye” that originated several millennia ago in harsh, tribal, often desert and nomadic cultures which bear little resemblance to the kinds of so-called ‘progressive societies’ many of us presume to be living in today. Based on a belief in revenge, it seeks to impose punishment for its own sake (‘People should pay for their transgressions’),* rather than for any demonstrable socially-beneficial purpose. It is definitely mean-spirited, promoting (as it surely does) both bitterness and a desire for more revenge. Not to be mistaken for a Biblical commandment (which it is not), it twists the Golden Rule from “Do unto others as you would have them do unto you” into “Do unto others what they have done to you.” Carried to its logical but nonetheless absurd conclusions, we would find ourselves not only killing murderers, but raping rapists, torturing torturers, stealing from thieves, burning down the homes of arsonists, and (yeah, go for it!) sexually abusing the children of child molesters.

And how many death penalty advocates in the West who still insist that the punishment should fit the crime would themselves want to live under sharia (Koranic) law, such as they have in Saudi Arabia and other Islamic countries, where thieves have their hands cut off and women convicted of adultery are stoned to death and young men found guilty of homosexuality are hanged, etc? My guess is not many.

* The notion of paying for one’s crimes washed peculiarly well with early Calvinists (the progenitors of capitalism) and witch-hunting Puritans, with their rigid adherence to a strict work ethic.

“An eye for an eye leaves the whole world blind.” – Mohandas K. Gandhi

It’s cheaper. Why spend taxpayers’ hard-earned money keeping criminals in prison when we can simply execute them and be done with it?
Apart from being an extremely obnoxious viewpoint, assuming as it does that a human life is worth less than a pound note or a dollar bill, in most cases it is also not true (that it’s cheaper). In Western countries that still have the death penalty (and certainly in the United States), the appeals process for capital offenses can be so lengthy (in some cases taking up to 15 years or more) that the total cost to the government (hence to taxpayers)—which includes judicial expenses (salaries for judges, prosecutors, bailiffs, law clerks, and others; paper, electricity, and such; et cetera and so forth ad infinitum)—is often far greater than had a prison sentence been imposed, even a life sentence.

How would you feel if someone very near and dear to you were murdered (or raped or whatever)? Wouldn’t you want to see the person who did such a terrible thing die?
Of all the unacceptable arguments in favor of capital punishment, this is the one that holds the least amount of water. It tries to bring people round to favoring the death penalty by appealing to one of their most volatile and untrustworthy emotions, namely grief. But juridical decisions (and all the more so in criminal cases where a capital offense is involved) are not meant to be emotionally driven. In the heat of anger and grief, many people quite understandably react in very emotional and irrational ways. But just as aggrieved individuals are not seated on juries or judges allowed to try cases in which they have a personal interest, so too should none of us be supporting the death penalty based on how we might emotionally respond were the crime in question committed closer to home. Grief and anger disqualify us from making these kinds of momentous decisions.

Capital punishment serves as a deterrent to murder and other serious crimes.
As pointed out in no. 2 of Arguments Against, this is simply not true. And the fact that it may deter some people still does not make for a valid argument. Most people who are intent on killing will continue to kill no matter what the probable punishment. Nor is fear of the death penalty likely to discourage anyone from committing murder in the heat of passion, or deter an insane serial killer or a politically-motivated mass murderer. Deterrence is not an argument. Plus the response to crime should not be punishment but rather an honest attempt at enlightened rehabilitation. Punishment for the sake of punishment serves no useful purpose.

They might escape and kill (or rape, molest, etc) again. Better to kill them and not take any chances.
Someone is bound to come up with this. It’s called clutching at straws. Well, dangerous animals escape from zoos all the time. Yet we don’t respond by killing all the other dangerous animals in those zoos.

FINAL NOTE: Be sure to ask anyone who favors the death penalty whether he or she would be prepared to carry out the sentence. Would they, could they, “pull the switch”? Not on someone who’d murdered their mother or their pet canary, but on someone not personally known to them who had been convicted of a serious capital crime and sentenced to die.

If the answer is No, they have effectively disqualified themselves from taking a pro-capital punishment stance. If they are unwilling to extinguish a human life with their own hands, then they are morally and intellectually unfit to propose that others do it. Or to vote, as either an ordinary citizen or a legislative representative, in favor of retaining capital punishment on the statute books.

While if they reply affirmatively, and really mean it, then I should be very wary of keeping company with that person. Anyone who has no qualms about taking the life of a total stranger in the absence of any direct threatening provocation may well have murder in his or her heart; they are displaying a degree of emotional instability which can only be described as potentially deadly. At the very least they should be advised to carefully think the matter through again.

To err is human; to forgive, divine.
– Alexander Pope (from “An Essay on Criticism”)

He that is without sin among you, let him first cast a stone at her.
– Jesus Christ (The Gospel According to St. John, 8:7)

I do not accept the state’s right to take the life of any man.
Martin Buber (in arguing against executing Adolf Eichmann)

Buber, Eichmann, and the Death Penalty

© 2012 by Eddie Woods

This essay has been published online in Parisiana and Primal Urge, and (in print) the anthology of political writings edited by J.N. Reilly entitled The Final Crusade (R & R Publishing, Glasgow, Scotland).

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