On the death penalty

Gruesome murders, such as the recent brutal killing of a serving soldier in Woolwich by Islamic radicals (followed by an equally senseless attempt to kill a French soldier in Paris) or, worse, the 2011 massacre in Norway perpetrated by Anders Behring Breivik (who was diagnosed to be ‘criminally insane’), usually reignite the debate on the death penalty. I find it interesting, because the debate involves an aspect of justice which is usually not being discussed openly: its retributive aspect.

Indeed, abolitionists neglect this aspect of justice completely. They argue – ad nauseam one might say – that the death penalty does not act as a deterrent and, hence, that imposing or re-imposing it has no impact on crime rates. Most studies confirm that. In fact, public execution was generally known to increase (rather than decrease) violent criminality, especially at the time and place of executions – which is why executions were moved inside prisons and away from public view hundreds of years ago.

While such reasoning is essentially correct, it does not address the public call for social justice because the argument behind is that deterrence, rather than retribution, should be the main justification for punishment (hence, the death penalty should be done away with, because its aggressive application did not seem to reduce crime in the past). In addition, despite the introduction of advanced techniques in forensic science (such as DNA profiling), there is always the fear of a mistake. In the 12th century already, Maimonides – a famous Jewish philosopher – wrote that “It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death.” So this line of reasoning – which amounts to stating that errors of commission are much more threatening than errors of omission – also leads abolitionists to argue that executing an accused criminal on anything less than absolute certainty should not be tolerated. Of course, because absolute certainty is obviously not of this world, it is equivalent to stating that the death penalty should be outlawed – which was done in most democratic countries, albeit it very recently in most of them.

I can see the point, even if I do not subscribe to the view that societies should eliminate all risk of errors of commission, because this will, inevitably, come at the cost of too many errors of omission. More fundamentally, however, I believe one cannot neglect the aspect of retribution in justice. In fact, one of the main reasons why some say that individuals such as Breivik or the Woolwich suspects should be executed is actually because these individuals do not seem to be afraid of any punishment – including the death penalty. Hence, the deterrence aspect of the death penalty – or of any alternative punishments, including the maximum sentence of life imprisonment (which, as we all know, is seldom fully implemented) – becomes irrelevant in such cases. In fact, this is what probably irks the public instinct most: the abolitionists’ argument, which focuses on the (non-)deterrence aspect only, misses the point. The death penalty is all about retribution indeed – and that’s why anyone debating it should address it. In fact, I think the emotional center of the debate revolves around it – even if few would dare to admit that because of reasons related to political correctness (which I will set aside for the moment).

Exploring the retribution aspect of the death penalty may well look like trying to walk down a very slippery slope. Let me therefore bring the discussion more down to earth: how would an abolitionist feel if his or her minor daughter was brutally raped, and then slaughtered afterwards (this amounts to committing a double or triple capital offence in those countries which still apply the death penalty)? I know, for sure, that I would like to see the perpetrator dead. Worse, I actually think I would be capable of killing the perpetrator myself – and probably rather slowly and in full consciousness of what’s going on, just like his or her victim. However, I also know I would rather see the offender punished through some kind of collective action – i.e. through a  case in court with, preferably, the involvement of a grand jury. Such thoughts have nothing to do with deterrence. They are all about retribution: an eye for an eye, a life for a life. The real question is whether or not the individual is authorized to follow this principle. That is obviously not the case in most of today’s societies: it is generally agreed that such decisions should go through a justice system.

The ‘eye for an eye’ principle obviously sounds primitive and medieval. However, one should not forget that it was the foundation of the so-called lex talionis which is very much part of all Abrahamic traditions – Jewish, Christian and Islamic. Indeed, one forgets easily that Jesus only warned against excessive vengeance, not so much against the principle of retribution (call it vengeance if you want) as such. In fact, doing my usual superficial research on the Web, I was surprised to learn that the Vatican City only abolished its capital punishment statute in 1969 – so the Catholic Church is certainly not holier than Islamic traditions in this regard.

We all too easily forget that an important function of the state is to carry out justice on our behalf. As Hobbes pointed out: life without a government – the state of nature – would be a state in which each person would have a license to everything in the world, including the right to take revenge on someone else. This, Hobbes argues, would lead to a bellum omnium contra omnes: a war of all against all. And so that’s why it makes sense to create a proper state – led by a government and governed through laws and regulations, including a justice system which, until very recently, usually included a capital punishment statute.

We should have a closer look at the very recent (and very particular one might say) context in which countries abolished the death penalty: most countries did so as part of a process of rather radical political change, when they shifted from authoritarianism to democracy. As such, the death penalty was often portrayed as being incompatible with human rights. Indeed, Amnesty International considers the death penalty to be “the ultimate denial of human rights.” It is equally often associated with political oppression. Such lack of nuance – especially the ‘denial of human rights’ claim – is totally out of place in my view, and it surely does not convince the crowd. Of course, abolitionists – elitists as they are – will argue that the opinion of the crowd should not matter. Well… Let me just note that a number of very democratic and very well-respected countries have signed the Universal Declaration of Human Rights and have integrated its clauses in their constitution and their laws while retaining the right to execute criminals: the US and Japan are probably the two most significant examples.

Of course, the case of China is also there, and I acknowledge it (even if most, if not all, executions do involve criminals there, not human rights offenders). That being said, I think it is extremely simplistic to suggest that the European Union would not be true to its democratic history and character if, one of these days, it would decide to do away with article 2 of its Charter of Fundamental Rights – which prohibits the use of capital punishment. Besides from reassuring Europeans that the EU is not there to eat into their rights as voters in sovereign countries (which, as we all know, is currently a rather big issue indeed), it would also make it easier for the EU to truly engage with its development partners. On the other hand, it is true that EU countries, if they would reinstate the death penalty (which, I know, they will not do any time soon) would also have a lot more difficulty trying to convince other countries not to apply the death penalty when the case involves one or more of their citizens: when everything is said and done, it would be difficult for, let’s say, the UK to convince Egypt or Indonesia to not execute British drugs smugglers caught red-handed over there if the UK would still have the death penalty in place. In fact, I am using the UK as an example, because the UK only formally abolished the death penalty in 1998, and it did so as part of its EU membership obligations only. Frankly, I find it hard to not see some degree of international opportunism here.

Let me be clear: I am a very staunch defender of the Universal Declaration of Human Rights. In fact, I think its adoption was probably the most uplifting event in that eventful 20th century – and, of course, of its fundamental clause which states that everyone has a right to life – which should come with all that modern life involves: political, economic, social and cultural rights. I also need to state here that I feel very uncomfortable with the idea of having non-democratic governments and justice systems decide on who is to live and/or die in their jurisdiction. That being said, no right or freedom is or can be absolute. Individuals live in societies, and my freedom may end where the freedom of someone else begins: we all agree that we do not have the right to just go and kill someone else (let alone torture him or her before the murder). If they do, such individuals become criminals and, hence, some kind of collective body – representing what we refer to as society – may well decide to take some of their rights away: first and foremost their right to freedom (to ensure no further harm to the freedom of others is done) but, perhaps, also their right to live.

Of course, this assumes due consideration and due process – which ought to be guaranteed in a democracy. Indeed, criticizing China because of its capital punishment statue is fairly easy: China is not a democracy and, hence, as mentioned above, there is obviously more of a risk of a miscarriage of justice. However, criticizing the US or Japan for retaining the ultimate penalty in their legal code is a rather different matter. Executing criminals for the gravest of crimes, such as murder or sexual assault of minors (or the combination of both in one single heinous act), has nothing to do with deterrence: it is about addressing the public’s sense of social justice. The International Covenant on Civil and Political Rights clearly states that “every human being has the inherent right to life” and that “this right shall be protected by law: no one shall be arbitrarily deprived of his life.” Applying the death penalty does not arbitrarily deprive someone of his life. It is a legal decision made after much deliberation and – in democracies – only in very rare cases. Indeed, when it comes to specific cases, it would seem that most citizens in our democracies are able to unambiguously answer the most obvious of all of the difficult questions involved: does the criminal involved deserve to be executed, or should he be put behind bars instead? Make the question specific: what if your daughter or son would be one of the victims of an insane criminal? What if he or she would be the only victim? Would it matter?

If it does, you should probably adjust your opinion on the death penalty in order to be consistent.