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A badly executed debate

The arguments both for and against capital punishment are flawed.

Piers Benn

Topics Politics

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The murder of two schoolgirls from Soham, Cambridgeshire, after their abduction on 4 August 2002, provoked a variety of reactions from the public, some fuelled by the vulture-like media coverage.

Among the more repellent phenomena was the invasion of Soham by gawping crime tourists, and the baying for the blood of Maxine Carr as she was driven to court, accused of attempting to pervert the course of justice. Predictably, the affair has also led to some renewed calls for the death penalty. At the end of August 2002, former shadow home secretary Ann Widdecombe offered a qualified defence of capital punishment, saying it should be available, though not mandatory, as a punishment for murder.

Of course, there is no chance of the restoration of capital punishment in Britain in the foreseeable future. Almost all MPs oppose it, and support for the death penalty, like being anti-gay, is widely seen as a litmus test for being truly, madly, deeply reactionary.

Indeed, even Widdecombe is anxious to distance herself from the retributive urge that often underlies capital punishment, focusing instead on its alleged deterrent value. She appears to believe that if the death penalty can save many lives, then it may be justified, but not otherwise – a familiar line trotted out in endless parliamentary debates over the years.

However, her remarks serve as a reminder of the muddled state of public discussion of punishment. In fact, when it comes to capital punishment, the most popular arguments both for and against are flawed, and reflect public confusion and uncertainty about guilt, responsibility and retribution.

Personally, I would not support the re-introduction of capital punishment. Even though almost every practice carries risk, the danger of miscarriage of justice is great enough to cast doubt on a penalty whose wrongful infliction is by definition impossible to compensate. We do not need notorious cases of miscarriage, like those of the Guildford Four and the Birmingham Six, to see that the risk of human error and dishonesty probably makes it unsafe to condemn convicted murderers to death.

Strangely enough, however, many other arguments against the death penalty are woefully inadequate – at least, if they are supposed to mark out capital punishment as uniquely abhorrent. Knee-jerk suspicion of the retributive motive, which many liberal-minded people regard as dark, primitive and vengeful, generates untold quantities of half-baked thinking and sentimental hogwash.

Take the argument that executing a murderer reduces the judicial system to the level of the murderer himself. Capital punishment entails killing, it is said – and killing is always wrong! Many people are convinced by this, even though they would laugh at an analogous argument against imprisonment or fines. For if capital punishment is murder by the state, then imprisonment is kidnapping by the state, and fines are no better than theft.

The whole argument confuses crime with retribution, and fails to see that the superficial similarity of crime and punishment conceals a wholly different meaning and purpose between the two activities.

Or take the claim that forgiveness is superior to revenge, and that capital punishment is mere revenge. Again, if this is true it applies to many other penalties besides. In any case, revenge and justice are different things; the one being partial and usually disproportionate, the other being meted out impartially by a lawfully constituted authority.

Moreover, since when was it a court’s role to bestow forgiveness? Surely this is in the gift only of wronged parties, and (perhaps) their relatives. Some Islamic jurisdictions recognise this, in allowing relatives of murdered people to decide on the penalty.

We are also told that, at least in the USA, the death penalty is wrong because blacks are more likely to be sentenced to death than whites convicted of similar crimes. This, however, is hardly an objection to the penalty per se. It is of course profoundly wrong that race should influence the punishment. But again, the same could be said of the length of prison sentences. In relation to this argument, the solution is not to abolish the penalty, but to apply it fairly.

In fact, there is nothing inherently disreputable about lawful and impartial retribution – even capital retribution (although even Ann Widdecombe’s mind appears to recoil from it). To justify this position requires a more complex argument than I have space for here. But such is the tainted image of retribution that supporters of the death penalty, publicly at least, appeal to arguments with a more utilitarian flavour. Hence the appeal to deterrence.

A minor problem with the deterrence argument is that there is no convincing evidence that the death penalty significantly deters. A major one is that the appeal to deterrence alone is morally flawed. For if it is justifiable to kill someone simply in order to save others’ lives, then why should it matter whether the executed prisoner is guilty of the crime he is punished for? If you can deter others by convincingly framing an innocent person, then why not do so? Once you altogether dismiss the idea of desert, it will be hard to answer this point except by conceding it.

Widdecombe clearly wants to distance herself from the ugly would-be lynch mob howling for the blood (or neck) of Maxine Carr – a woman who has not been found guilty of any crime, and has not even been charged with murder. But she should not be afraid to speak out for lawful retribution. And she could raise the level of debate by putting to rest once and for all the tired and bogus argument about deterrence.

Dr Piers Benn is lecturer in medical ethics at Imperial College London.

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Topics Politics

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