A national debate on the death penalty may be just around the corner. The death penalty will make some victims feel better, no doubt about it. Some victims won’t feel any better though. Capital punishment won’t achieve objective goals in a proportionate manner; it is simply satisfying an entirely justified and understandable desire to punish someone purely because they deserve it. The fact that the judge imposing the sentence is legally qualified and hopefully impartial and that the sentence is the result of a legal process does not in any way cleanse the purpose of capital punishment of its subjectivity.
A few weeks ago, I wrote a jurisprudential article where I argued that in a democracy, to achieve the end goal of justice, any criminal sentence must be imposed with one or more of the following aims in mind: deterrence, public security and rehabilitation. To achieve justice, we look to these goals and then determine the proportionality of the infringement of an offenders rights.
Capital punishment does not serve to rehabilitate a prisoner; that’s just common sense. And no doubt those against the death penalty will cite the reams of statistics that show, for example, that the death penalty’s imposition in the USA has had no effect on the murder rate there; its deterrent factor is purely theoretical and does not hold true in reality. Clearly, killing someone ensures that they cannot harm anyone ever again but I would argue that the infringement of a person’s basic right to life is not proportionate to the aim of securing public safety because the option of locking someone up for the rest of their life is available (and also much cheaper than the costly legal process behind capital punishment).
There has been criticism of that article on Twitter and blogs on the grounds that it does not allow for some form of retributive justice, or that it does not see punishment in itself as an aim of sentencing.
Punishment is the means of achieving justice, not the end in itself. And as for the idea that some acts simply merit punishment per se and that therefore this factor is relevant to criminal justice, I agree with that statement. It is a very important test in determining the question of whether or not an act should be criminal in the first place. Mugging is wrong and therefore I believe it should be criminal. The fact that I might hate the mugger should not however be relevant in determining the length of his/her sentence. This test is not conclusive though and other factors must be considered; just because some people think that homosexuality is an abomination does not mean it should be criminal. Similarly, I don’t think people who don’t wear a seatbelt in the back of a car are evil, but I do agree that that omission should be criminal.
I do not agree with the idea that some acts simply deserve punishment and that because this is done by law, it is not revenge. We need our approach to sentencing to be objective so importing subjective concepts into the law like ‘he/she deserved it’ and assuming that it’s ‘legalisation’ removes the toxicity of its subjectivity is circular. We can’t say to a judge, ‘X is guilty of raping and murdering a child. Look at the facts of the case and decide if he/she simply deserves to die’. Judges would need to make that determination by objective standards to reduce the likelihood of Judge A killing X, but not Judge B.
If, however, what is meant is that the offender must give back in some way to the victim, I believe that we do need more of this approach in our sentencing. However, the fact that this might help the victim in some way is a happy side effect. The primary aim of this retributive justice from the perspective of sentencing is in rehabilitating an offender and also, to some extent, in deterrence.
One final point. Criminal sentencing is one of the state’s most powerful and aggressive instruments against the people and our strongest protection from that abuse of power is the presumption of innocence. I recently highlighted on LabourList that after trial, because of miscarriages of justice, we need to do more to recognise that we are human, and that despite our best efforts, a guilty verdict could be mistaken. The death penalty removes the possibility of correcting our mistakes and so it must be resisted. If Guido gets his way and capital punishment is restored, then sooner or later, we will kill innocent people.
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Mark Rowney is a lawyer and a member of Progress
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You can sign an e-petition to retain the ban on capital punishment here
The problem is that life is now seen as anything but. If life meant life as it should. The call for the death sentence would diminish.
Following the example of British concentration camps in South Africa, the hunger blockades of Germany (notably AFTER Nov 11 1918), bombing campaigns against Iraq and Waziristan under the 1924 Labour government) Bomber Harris’ deliberate murder of hundreds of thousands of German civilians, UK blessing for the mass murder of Japanese civilians, the mass murder of Kenyans in the 1950s to the plaudits of most of the Labour Party except for the maligned Barbara Castle – and Enoch Powell! – murder and torture in Northern Ireland and in Gibraltar, the deliberate murder of 500,000 Iraqi children (“worth the price” according to Democrat Madeline Allbright) the fraudulent attacks on Afghanistan and Iraq, and support for Tory attacks on Libya to give the Bahreini murderers the rule over Tripoli. Mark Rowney thinks the Brit state is some organ of civlization. Ask the Menendez or Tomlinson families. should their murders escape the supreme penalty? they have forfeited their lives….as Hitler and Goering did theirs…..Did not Harris and Truman deserve the same, to mention only two of ‘ours’?
Now to address Rowney’s failures of logic. WHY should the rehabilitation of the offender take second place to the restitution to the victim? {{Justice was for millennia rightly construed as suum cuique – jedem das Sein – to each his (her) own. Indemnity from force and or fraud and or restitution for their effects IS that justice. The public interest may well – I say best – be seen as fully embodied in that effect}}
So is this rehabilitative view of Rowney’s not at least as subjective as the judicial views he purports to despise? Moreover, what is HIS criterion of objectivity? Both deterrence and rehabilitation savour of utilitarianism and consequentialism in jurisprudence, arbitrary theories (purporting objectivity while indulging in the most subjective of speculations) under the influence of which Alan Dershowitz’ sharp arguments show, lead directly to the torture of the innocent. (a practice to which the British state is increasingly addicted). Restitution to the victim provides an objective limit tp the infinite ambitions of lawyers and prosecutors to dominate the whole of society. Immanuel Kant was right on this issue -Bentham and Stalin were wrong.
The whole debate is sensationalist and inflamatory in the current climate and ultimately moot. There’s no way the UK could introduce the death penalty because it would fundamentally breach the European Convention on Human Rights and would diametrically oppose our foreign policy, which requires that we cannot deport people to countries that support the death penalty.
There is a large disconnect between opposing the death penalty, while at the same time supporting our country’s operations in war, where death is delivered by the state in huge numbers.
The reason given for the latter is that it is necessary in defence of the rest of us. Exactly the reason given for the death penalty.
The moral confusion in my own mind can be gauged by the fact that I oppose the former but support the latter.
The trouble with bringing back capital punishment is that they want us to go back to the fifties and hang murderers who, arguably, merely improve the gene pool. Those we need to hang like corporate criminals who’s crimes bring death and misery to millions get off scot free with a nice pension-thank-you. Placing the heads of bankers, for example, on spikes along London Bridge would make many of us feel a whole lot better, I’m sure.
blimey you men,heads on spikes….yeah you are just ‘saying’ but nevertheless!
The rehabilitation should be of the society in which we are all implicated in relation to capitalism,restitution too .We will never have a society cured of emotional ills ,if you like, but those inflicted by the inhumanity of greed can be addressed? No death penalty ,it’s barbaric obviously .What about building our gaols on Tax haven islands ? making it a requirement, ha !
( clever cloggers of course use yer Switzerland with its super secrecy. We – or rather they, currently waiting to see wot new deal Germany gets before ‘we’
-uber-rich-brits-who- don’t- deserve -to- be -called- brits) follow. They stuff their stash and wait for clearer skies so they can reign/rain on us again .Global warming having dramatic affect on precipitation ,yup so lets turn the heat up !