Friday, 23 October 2009

The Death Penalty

And now, for those of you faced with arguments at work or in the pub about the death penalty, I shall now provide a Question and Answer guide to the case for being hanged by the neck until dead.

Q. Well, I would be in favour of the death penalty, but I am worried about innocent people being hanged. Doesn't that fear make it impossible to have a death penalty?

A. No. It is a perfectly good argument for taking a huge amount of trouble to ensure that innocents are not executed. It is also a good argument for bringing back some sort of property or education qualification for juries, and abolishing majority verdicts. Nobody should be hanged except on a unanimous verdict of mature and educated people. But the world isn't perfect, and we don't let this concern for the innocent stand in the way of lots of other policies, many of them supported by the very people who raise this objection to execution.

For instance, every three years, two people are killed by convicted murderers released early from prison! These victims are innocent. In that case, the liberals who advance this argument would have to accept that every convicted murderer should be locked up for life without the chance of parole so as to avoid the risk to the innocent. But they don't believe this. So where's their concern for innocent death now? Then again, most people supported the Kosovo war and still do (especially liberals). But when we bombed Serbia, we knew that innocents were bound to die, and they duly did die - including the make-up lady at the Belgrade TV station. That didn't stop these liberal leftists, who oppose hanging guilty murderers, from supporting it, and continuing to support it after those deaths had taken place.

Not a liberal leftist? Then there's our mad transport policy which just happens to suit quite a lot of us down to the ground, of relying so heavily on motor cars that we require an incredibly feeble driving test and allow tens of thousands of unskilled people to drive cars and motorbikes at a far too young age. We know from experience that this will result, every year, in at least 3,000 deaths. Yet we do nothing.

Our failure to act, in the knowledge that this failure will lead to those deaths, is deliberate, conscious self-interested negligence, morally equivalent to deliberate proxy killing for personal advantage (as offered by Harry Lime to Holly Martins in the Big Wheel in 'The Third Man'). It is also the reason why the courts don't adequately punish those who kill while driving. We're all conscious that driving isn't really safe, that we impose far too much responsibility on drivers in a fundamentally dangerous system, and that it could so easily have been us who did the killing. Personally I think this intolerable carnage is a much more urgent problem in our society than the faint hypothetical risk of hanging someone for a murder he didn't commit. So is the growing level both of homicide itself, and of violence that would be homicidal were it not for our superb emergency surgeons, who nightly drag back dozens from the lip of the grave.

People dislike being told this because it is absolutely true and very harrowing. These deaths are all of innocent people. If the fear of killing an innocent person really was an overwhelming veto on a public policy, then the driving test would have to made so difficult that most of us could never pass it, speed limits would have to be lower than they are now, and private car ownership restricted to a tiny few highly-skilled persons.

The truth is that the fear of killing innocents is not a reason to abolish or ban capital punishment. If it were, we'd have to abolish the armed services and be forced to ride bicycles. It's an excuse for people not to face up to their responsibilities.

Q. How can you express moral disapproval of killing, by killing someone else?

A. It is not killing we are trying to express loathing for. It is murder. All of us, except absolute pacifists, accept that killing is sometimes justified. In simple self-defence, the case is easy. In a defensive war, in which aggressive actions are permitted, less straightforward but still acceptable to most of us. And I think quite a few of us would be ready to forgive and condone in advance an assassination of an aggressive tyrant before he could embark on war. So we license armed forces to shoot back at our attackers, or to attack our attackers in retaliation or deterrence.

What we are disapproving of is murder (The Commandment is not, as so often said 'Thou Shalt Not Kill' but 'Thou Shalt do no Murder'). This remember, is the deliberate, premeditated, merciless (and often prolonged and physically cruel in the extreme) killing of an innocent person, generally for the personal gain or gratification of the murderer. There is no comparison between such an action and the lawful, unanimous verdict, swift execution of a convicted guilty person, after a fair trial with absolute presumption of innocence beforehand, the possibility of appeal and of reprieve.

Absolute pacifists are at least consistent, but if they had their way in 1940 we'd be in a Nazi German empire where innocent people were being executed all the time with gas-chambers, guillotines and piano-wire, and worse. So their consistency doesn't offer much of a way out.

Q. But deterrence doesn't work. Most states in the USA have the death penalty and the murder rate is often higher there than in states that don't have it.

A. First of all, this is not the USA, a country with far higher levels of violence (until recently anyway) than we have had for centuries. Comparisons between the two countries need to be made with great care. Secondly, no US state really has the death penalty. Even Texas, which comes closest, still fails to execute the majority of its convicted murderers, who fester for decades on death row while conscience-stricken liberals drag out their appeals to the crack of doom. Most states which formally have the penalty on their books seldom or never apply it.

The 1949 Royal Commission on Capital Punishment (which was inconclusive on deterrence and most other things) pointed out that deterrence was very hard to establish. Countries which abolish the death penalty usually do so after a long period of suspension, or when it is hardly used, or when the law is unclear. So the murder rates before and after the formal date of abolition, often tell us very little. In Britain, this is also the case. The death penalty had its teeth drawn in 1957 and the annual number of executions in the final years of capital punishment was small. So the penalty's official date of abolition, 1965, is misleading. There's another feature of this I'll turn to later.

Then there is the difficulty of classifying murder. The 1957 Act introduced a category of 'manslaughter due to diminished responsibility' which got you off the death penalty. And so, for the eight years after 1957, this category of homicide grew quite sharply. Some suspect that these are cases which would have been murders before 1957. If that is so, as we shall see, then it makes quite a lot of difference. Since then, it has not been so important, since the difference between a manslaughter sentence and the so-called 'life' sentences given for murder is no longer as stark as the old distinction between a prison sentence or an appointment with Mr. Albert Pierrepoint on the scaffold.

Nowadays, it is suspected (especially by the relatives of victims) that quite a lot of cases which would once have been prosecuted as murder are now prosecuted as manslaughter so as to get a quicker, easier conviction.

So the homicide statistics offer a rather wobbly idea of what is going on. Skip this if you want, but it is important. The blurred categories might suggest one thing, while actually saying another. Even so, here are some samples. In 1956, when the death penalty was still pretty serious, there were 94 convictions for homicide in England and Wales (all future figures refer to England and Wales unless otherwise stated). Of these, 11 were for infanticide, 51 for manslaughter and 32 for murder. In 1958, after the softening of the law, there were 113 homicide convictions - 10 infanticides, 48 manslaughters, 25 for manslaughter with 'diminished responsibility' and 30 for murder. By 1964 there were 170 homicide convictions - 12 infanticides, 73 manslaughters, 41 manslaughters due to 'diminished responsibility', 44 murders. So, in eight years, a rise in homicide from 94 to 170, quite a substantial increase of 81%. But those convicted for murder had risen only from 32 to 44, which hardly seems significant at all. What was really going on here could only be established by getting out the trial records. But it is at least possible that, by reclassifying and downgrading certain homicides, the authorities had made things look a good deal better than they were. Remember, these are convictions, not totals of offences committed.

Sorry, more statistics here. In 1966, immediately after formal abolition, there were 254 homicide convictions, 72 of them for murder. In 1975, 377 homicide convictions, 107 for murder. In 1985, 441 manslaughter convictions, 173 for murder. In 2004, there were 648 homicide convictions - including 361 murders, 265 ordinary manslaughters and 22 'diminished responsibilities'. Interestingly, more people were convicted of manslaughter (265) than were charged with it (137) and none of those convicted of 'diminished responsibility' (22) were charged with it. Many murder prosecutions failed (759 were proceeded against).

The increasingly important charge of 'attempted murder' has also run into trouble. In 2004 417 were proceeded against, and 96 convicted. Prosecutions for wounding or other acts endangering life was even more troublesome, with 7,054 proceeded against and 1,897 convicted. These figures, again, are for charges and convictions rather than instances of the offence, which in both cases is considerably higher. Offences of wounding etc are now close to the 19,000 mark each year, around triple the total for 30 years ago. Question, is there the fear of authority anymore?

And many of these cases would have been murders, if we still had the medical techniques of 1965. Again, this makes direct 'before' and 'after' comparisons, required for a conclusive case for or against deterrence hard. And we must also remember the general moral decline that has accompanied the weakening of the law, and may have been encouraged by it. If you remove the keystone of an arch, many other stones, often quite far away in the structure, will loosen or fall.

Finally: a little historical curiosity which I personally find fascinating. Some American researchers suggest that the sort of murder which has increased since the death penalty in the USA was effectively abolished is so-called 'stranger' murder, for example, the killing of a woman by her rapist, or of a petrol station attendant by the man who has robbed him. The calculation (and criminals do calculate the odds of being caught when they make the choice to commit crime) is simple. "If I leave this person alive, she or he can testify against me, and I could go to jail for a very long time. If I kill him or her, then there will be no witness and I will probably get away with it entirely. And even if I am convicted of murder, all that will happen is jail time, maybe 8-10 years if I’m unlucky enough to get caught." Bang!

So, the death penalty may actually prevent or deter violent crimes which might otherwise end in an opportunist killing. It is said that British bank-robbers, before 1957, would search each other for weapons in case one of them killed, and they all swung - which was then the rule. And Colin Greenwood, a former police officer and expert on Gun Crime, produces the following interesting, in fact gripping fact. In both 1948 and 1956, the death penalty was suspended in this country while Parliament debated its future. During both periods of suspension, armed and violent offences rose sharply. After the 1948 attempt to abolish hanging failed (Clement Attlee and Ernest Bevin being among the Labour MPs who voted to keep it), they fell sharply. After 1956, when the law was weakened, they fell back again, but not so sharply. In 1964, they rose again, and have been doing so every decade ever since.

I think this, taken together, is strong evidence for a deterrent effect. I am not talking about total deterrence - some crimes could never be deterred. How many innocents have died, or been horribly maimed, because those who accept the salaries and perks of office are not prepared to assume its hard duties, and wield the civil sword of justice? And yet opponents of the death penalty whimper on about the minuscule danger of hanging the wrong person.

Q. Surely revenge has no part in a civilised society?

A. How true, and how right. One of the purposes of stern penalties is to prevent revenge by making it clear that the law has real teeth. But a toothless law will lead to the return of revenge among us. The bargain we strike with our rulers is that we give up the right to personal vengeance, and the endless blood-feuds that follow it. And in return, we ask our rulers to wield a stern law, dealing with wrongdoing in such a way as to drive home the moral lesson that no evil deed goes unpunished. It's a simple contract. Civilised, law-governed societies rest on it, but our political class prefer not to fulfill it because they haven't the moral guts to take responsibility for sending a murderer to his death. It is this gutlessness among politicians, more than anything else, that has led to the abolition of the death penalty. They won't take the responsibility. This cannot be said often enough. The result is that responsibility is increasingly handed over to an unofficially armed police force, which shoots people without trial, appeal or the possibility of reprieve, and often gets it wrong. Watch the numbers grow.

But that's only the beginning. If (as I fear) respect for the Police, the criminal justice system continues to dwindle especially among the abandoned honest poor, we can expect to see an increase of vigilante private 'justice', even lynch-mobs. What the left-liberals don't seem to grasp is that if they strangle justice, revenge is what they will get. And then, rather too late, they will eventually be able to tell the difference between the two. I wish there was some other way to explain it to them.

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