Very few social issues galvanize people irrespective of their geographies. Abortions. Gay Rights. Prostitution. Drugs. The Death Penalty. If people could be roughly grouped into “Conservatives”, “Liberals” and “Moderates”, their views on the 1st 4 issues would neatly fall into “No Way, No How!”, “Why not?” and “That Depends”. But, Capital Punishment is different. Its a cause that cleaves the Overtly Pious with the Bohemian. This leaves many conservatives sputtering and purple-faced.
I’ll acknowledge the elephant in the room & state my position. I support the Death Penalty, as long as certain conditions are met. This stance of mine confounds many academics who count me among their ranks. While I have a preponderance of liberal views, I’m too brutal & pragmatic to be a quintessential bleeding-heart.
Let’s weigh the relative merits and demerits of the arguments on both sides.
Most Civil Liberty activists ask me, “What if we kill an innocent person? Can you live with that?”. Yes, many an innocent person awaits execution on Death Row. Advances in Forensic Science – such as DNA Finger-printing – have exonerated many inmates from prisons.
I’m not flippant about life, that too, human life. Can we improve the technology used to convict defendants so that the error rate comes down drastically? Nothing works 100% of the time. Let’s pick a % of error in Death Penalty convictions we can live with: 0.01%? 0.001%? If you think that’s too high, let me offer a counter-example: Mortality rates for an Appendectomy. It is 0.2% – 0.8%. Most of us won’t bat an eyelid to get such a seemingly simple surgery done. Now, there’s nothing political about an abscessed appendix, so you don’t see people waving placards before the Operation Theater!
“What if a person killed in the heat of the moment?” I’m asked. “Do you want to fry their brains in an electric chair?”. I’m surprised at how common this misconception is. The law in most civilized countries differentiates between Murder and Manslaughter.
“First Degree Murder” is a cold-blooded murder, where the killing is premeditated, planned willfully and executed by the accused. In a “Second Degree Murder”, the accused nurses a grouse and kills the victim vindictively, but there is no premeditation – the murder was not planned. “Voluntary Manslaughter” is a classic “Heat of Passion” killing, where the accused did not plan the murder – but committed the crime in an emotionally distraught state. In an “Involuntary Manslaughter”, the accused shows criminal negligence of human life – for example, s/he may kill someone by recklessly driving a car.
Out of all these categories, only Murder-1 (First Degree Murder) is punishable by the Death Penalty. Where motive, intent to kill, opportunity and premeditation can be clearly determined.
Why does this topic garner so much press? Why does this raise the hackles of the left & right wings? For that, we must look at the origins & evolution of Criminal Justice.
The earliest laws followed the principle of lex talionis – or, Proportional Punishment. Roughly stated, “Eye for an Eye, Tooth for a Tooth”. The Codex of Hammurabi, a Babylonian king, is the earliest written law that dates back to 1760 BC. In that Stele, Hammurabi laid down a precursor of today’s Constitution along with his Punishment system based on lex talionis. Since the Old Testament draws heavily from Babylon, the Jewish Torah mentions “An Eye for an Eye” – equitable punishment – in the book “Exodus”. That this conflicts with God’s Commandment to Moses – “Thou Shall Not Kill” – is a cause of much debate among Rabbis.
Christianity and Islam, the later Abrahamic religions, urge its followers to forgive. Islamic Sharia however, also permits “Mirror Punishment” – AKA, Similar Punishment. The punishment may be milder or harsher than the original offense. For example, someone that caused bodily harm to others may be whipped, stoned or roughed up in a similar manner. Or, the organ that caused the offense maybe punished – Cutting off a thief’s hand, for instance.
It is interesting to note that much of the West’s adverse reaction to Capital Punishment can be traced to the New Testament. It all boils down to a fundamental tenet of Christianity – Confess your sins and the Lord forgives. Jesus Christ being the role model for devout Christians, the pious are urged to do what JC would do – Turn the Other Cheek.
Proportional and Mirror Punishments and their derivatives can be classified into “Retributive Justice”. They are Criminal Justice systems based on vengeance. As such, they’ve been criticized as being too rudimentary. A widely implemented alternative is “Utilitarian Justice”. Modern Justice systems are largely derivatives of Utilitarianism.
The essence of Utilitarianism can be condensed thus: Human beings attempt to eliminate suffering and maximize pleasure. It has a disturbing corollary though: It strives to increase the greater good of the society, sometimes at the expense of the individual. A detailed analysis of the ramifications of the Utilitarian ethic is tangential to the scope of the current post, so I’ll briefly touch upon the cankers as needed.
Utilitarians argue that punishment is negative and that we accomplish nothing by punitive measures. Instead, punishments are used primarily to deter potential offenders from committing the crime. An example could be the much-criticized Draconian laws for drug (Marijuana) possession. Individuals may be penalized steeply & harshly, to make an example of them. If this deters future offenders, the society at large has been protected – though by following an “Ends Justify Means” approach.
Where deterrents fail, the offender is incarcerated. The offender is incapacitated temporarily or permanently from doing harm. If a doctor is caught for malpractice, his/her license could be revoked. Or the convicts are rehabilitated – medical help is provided for the mentally unstable or the offenders are given vocational training, so they can earn a livelihood without resorting to crime. Execution is often the last trick in their play-book, as a means of incapacitation.
Coming back to the point, I think Utilitarianism and Abrahamic religions have overtaken Retributive Justice to the point where the merits of the Death Penalty – which has its origins in revenge – are questioned. Utilitarians focus on reducing suffering even when a perpetrator is punished. And the pious want to forgive sins.
“How can we conclude that these people are not fit to live?” they ask. “Killing them is too much!”. I believe certain crimes are unacceptable. We cannot pardon everyone. The International War Crimes Tribunal prosecutes tyrants and dictators for genocides as crimes against humanity. Should we forgive them of the heinous crimes they committed? If you think they should be executed, where do we draw the line?
Who should be killed? What are the harsh realities of implementing capital punishment? And what is my single most important reason for retaining capital punishment? Let’s see that in the next post.