Yesterday I examined some of the arguments used to support the exercise of the death penalty. Today I’ll examine some of the arguments used to oppose the idea of the death penalty. I’ll try and avoid going over the ground already covered, but it does logically follow that fallacies in an argument that supposedly supports the death penalty are arguments that support opposing the death penalty.
The Death Penalty is Irreversible.
This is an incontrovertibly valid statement. Some proponent of the death penalty might well argue that it’s also very much the point of a death penalty. There’s no court of appeal. The case is closed permanently - serving as an effective deterrent and providing closure for the victim’s family.
Unfortunately, things aren’t that simple. There have been appeals and considerable further investigations, findings, legal processes and the like subsequent to execution in some cases. People have been declared innocent in cases a century after the death sentence has actually been executed. This provides no sort of closure what so ever. Quite the contrary - it leaves a sick feeling in everyone’s stomach to know that far from carrying out justice, an even greater injustice has occurred.
Four Consequences:
Since the death penalty cannot be ‘undone’ it is argued that four things need to be true before it would be reasonable to implement such an absolute and irreversible action / punishment.
One would need to be absolutely certain that no errors had occurred in the judicial processes that found someone guilty. In other words a burden of proof greater than ‘beyond reasonable doubt’ must apply. This has economic consequences - see below. Unfortunately there is ample evidence that the justice system has made errors in determining guilt in many serious case of rape and murder. Link.
The perpetrator neither deserves, nor will justify being given a ‘second chance’. This is also a major topic that is covered separately below.
The perpetrator knows nothing that might prove valuable. There have been all too many cases where other bodies, or ‘missing persons’ cases have been subsequently linked or potentially been linked to the executed perpetrator. This denies police and relatives any opportunities of obtaining further information and closure concerning such cases. It can be a major drawback to attempts at achieving ‘justice’. In some cases other valuable information, such as where the proceeds or victims of crime are buried also go with the perpetrator to the grave. Execution closes off many potential benefits that allowing more time can offer.
The perpetrator has no skills or other potential services that can be of benefit to humanity. One wonders at the benefits of executing a skilled brain surgeon rather than simply allowing him (her?) the opportunity to save the lives of others as an atonement for his crime(s). Is ‘justice’ more important than the overall welfare of mankind?
Second Chances
Execution automatically excludes all opportunities to provide ‘a second chance.’
One can start with the recognition that this is entirely against the spirit of Grace in Christianity. It lacks all characteristics mercy. It emphatically states that for some crimes no mercy, opportunities for redemption or restitution, or repentance are to be permitted.
South Africa was been renowned for its extensive use of the death penalty between 1960 and 1990. On June 11, 1964 Nelson Mandela and six others were found guilty by three judges for planning sabotage in what was known as The Rivonia Trial. The prosecutor asked for the death penalty, but Judge Quartus de Wet ‘only’ imposed life imprisonment in one of the harshest prison systems on Earth (for natives. The only ‘white’ prisoner went to a different jail). All seven believed they might be sentenced to death. Nelson Mandela, in his famous statement from the dock, advised that the African Congress Party had sought to use all forms of non-violent protest to effect change without result. He declared that he believed in the ideals of democracy and racial equality, and was prepared to die for that cause. Judge Quartus de Wet subsequently acknowledged that he was inclined towards applying the death penalty, and saw little hope of anything good coming out of the use of life imprisonment with such dangerous and angry men.
Twenty-nine years later, despite the fact that the South African Transitional Constitution of 1993 was silent on the matter of whether or not the death penalty was permissible, the Attorney-General, in line with President Mandela’s long-held belief that the death penalty was barbaric, brought a case before the Constitutional Court, arguing that the death penalty should be declared unconstitutional. The Court, in the landmark judgment of The State v T. Makwanyane and M. Mchunu in 1995 decided that capital punishment was incompatible with the prohibition against ‘cruel, inhuman or degrading’ punishment and with a ‘human rights culture’ which made the rights to life and dignity the cornerstone of the Constitution. A further influential argument was that it would be inconsistent with the spirit of reconciliation, post-apartheid.
Cruel and Unusual Punishment
On the topic of ‘cruel and unusual punishment’, one thing worse than immediate execution is delayed execution. There are inmates who have been waiting on death row for 40 years. In 2010, a death row inmate waited an average of 178 months (roughly 15 years) between sentencing and execution. Nearly a quarter of inmates on death row in the U.S. die of natural causes while awaiting execution. There were 3,125 people on death row in the United States on January 1, 2013. Link.
In Japan Sadamichi Hirasawa was sentenced to death in 1950, confirmed by the Japanese Supreme Court in 1955. He spent 32 years in jail, and died there. Why was the sentence of death never executed? Because no Japanese Minister of Justice truly believed he was guilty.
Being in such a situation gives one no hope, nothing to live or work for. Why study, cooperate, repent, or improve? Gary Alvord spent 40 years on death row before dying in jail. Link.
Walter Moody was arrested and imprisoned on 13th July, 1990. He was found guilty of murder using pipe bombs, and sentenced to several counts of life imprisonment, before being sentenced to death in 1997. He was executed 21 years later in April 2018 at the age of 83.
Legal Process And Economics
Yesterday I noted that the lower cost of execution rather than extended imprisonment provided a strong economic argument for the death penalty. That’s true, but …
In the USA courts have accepted that the irreversible nature of execution requires that extensive efforts are made to ensure that miscarriages of justice do not occur. This commonly results in extensive appeals processes. These are costly. In addition, the sentence cannot be carried out while the appeals process is continuing. Appeals processes commonly involve higher courts, whose time is scarcer, and with higher costs. This results in years of extended jail time on death row, leading to the statistics cited above, and significantly higher economic costs for those US states that apply the death penalty than those that don’t. Link. This turns the economic arguments for the death penalty on its head.
But if you create a system where the convicted person has no second chance except the appeals process - then there will be a lot of appeals. There is no avenue for atonement, restitution, clemency - only legal appeals.
And this makes a nonsense of the idea of the death penalty resulting in any form of closure for the victim and their family while continuous appeals are on-going for decades.
And unfortunately, despite all the care and opportunities for appeal, it is abundantly obvious that false convictions and failures do occur in the legal system. Link. 17 death row inmates have been exonerated by DNA testing in the USA as of 2011. Unfortunately all too often the evidence has not been kept.
Barbarism - Thou Shalt Not Kill
The moral injunction against murder is older than the ten commandments. Killing one’s enemies is one thing. Killing one’s neighbours and citizens is another thing entirely. Only uncivilised barbarians behave in such a way - and to be fair, generally they don’t either.
What exactly is the point of civilisation, education, spirituality, or rule of law, if at the end of the day the state requires one of its own citizens to kill another of its own citizens in a sanctioned murder, in the supposed name of justice?
Timeliness
There is also a strong argument that justice that only occurs years after the event isn’t justice at all. Many crimes have statutes of limitations applying to them. And war crime prosecutions occurring thirty plus years later have also hit real barriers to achieving any sense of justice. Thirty years later a person may be very different to the one who committed the crimes. Leopards and their spots is a true enough generalisation, but people are complex and occasionally, at least real change occurs. The excellent book A Case To Answer documents some of the problems of attempting to apply belated justice. The Shawshank Redemption illustrates another. Morgan Freeman’s character Ellis "Red" Redding is no longer the young man who committed murder 40 years before.
Personal Conclusion
Celestial Koan is certainly concerned with spirituality and morality, but he’s always willing to give weighty consideration to arguments based in pragmatism and sound economics. In the case of the Death Penalty I’m not convinced that the arguments for using it make a convincing case, and the arguments against it are more than sufficiently weighty for me to be clearly against it in all but the most extreme situations. India might be such a situation. The United States - the only developed western nation still using the death penalty, is not.