Capital Punishment (25): Non-Contingent Reasons to Abolish Capital Punishment

Many people would agree that there are what we could call contingent reasons to abolish capital punishment:

  • it’s practiced in such a way that it doesn’t meet basic standards of fairness and non-cruelty:
    • for instance the racial discrepancies in the system in the U.S.
    • the irreversibility in cases of miscarriages of justice
    • and the methods used in Saudi Arabia)
  • and it also doesn’t do what proponents say it’s supposed to do:
    • it fails to deter crime when compared to life imprisonment without possibility of parole – see here and here
    • and it fails to be retributive because in many cases it could be argued that murderers for instance deserve a fate much worse than death – capital punishment is often much less than an eye for an eye; however, few proponents of capital punishment are willing to take that road.

However, is there an argument for abolition that does not depend on contingent facts? Or, in other words, even if the punishment would be administered in a totally fair, correct and non-cruel way, and even if every execution would deter n murders, would we still have reasons to abolish it? To put it in yet another way: is there something inherent in capital punishment, in the very nature of it, that justifies its abolition?

I think there is. Before I tell you, however, I just want to say that it is in a sense futile because the contingent reasons for abolition are so strong that they are enough. I don’t think we can ever find a way to apply capital punishment without discrimination, without the risk of killing innocent people, and without any cruelty (even painless executions involve psychological cruelty, often for years on end). Hence it isn’t really necessary to make the case that even in perfect circumstances – which will never pertain – capital punishment isn’t justifiable.

But I’ll make the case anyway, because it reveals something that is philosophically interesting, even if it’s not practically useful. Imagine the perfect but in my view improbably if not impossible circumstances in which capital punishment is used as a fair, non-cruel and correct way of punishing certain criminals (correct in the sense of avoiding miscarriages of justice) and thereby deterring further crime. The intention of being retributive is almost impossible, even in ideal circumstances, as I have argued above, unless we give up traditional notions of cruelty which few proponents of capital punishment are willing to give up, so we can leave that aside.

So the focus is on deterrence. What does it mean to deter? It means that criminals are used as instruments to advance the collective interest. They are sacrificed for the greater good and a resource for the benefit of others (namely the intended future victims of future murderers). When the state instrumentalizes people in this way, it sends a clear message that this is a normal way of treating people, with possibly disastrous consequences. One of the most important lessons we have learned from Immanuel Kant and others is that we should never use fellow human beings as means to an end. An offender, even the worst possible offender, has a certain value as a human being, a certain dignity if you want, which should be respected and which cannot be canceled in the process of punishment. An offender shouldn’t be a mere tool to send warnings and intimidations to possible future offenders.

Now, you could say: how is this different from life imprisonment without parole? Isn’t that also meant to deter and hence open to the same criticism? No, it isn’t. Life imprisonment is intended to stop the criminal from doing further crime, and hence the criminal isn’t used to deter others. Furthermore, life imprisonment is intended to give the criminal the opportunity to make amends.

Measuring Human Rights (8): Measurement of the Fairness of Trials and of Expert Witnesses

An important part of the system of human rights are the rules intended to offer those accused of crimes a fair trial in court. We try to treat everyone, even suspected criminals, with fairness, and we have two principal reasons for this:

  • We only want to punish real criminals. A fair trial is one in which everything is done to avoid punishing the wrong persons. We want to avoid miscarriages of justice.
  • We also want to use court proceedings only to punish criminals and deter crime, not for political or personal reasons, as is often the case in dictatorships.

Most of these rules are included in, for example, articles 9, 10, 14 and 15 of the International Covenant on Civil and Political Rights, article 10 of the Universal Declaration, article 6 of the European Convention of Human Rights, and the Sixth Amendment to the United States Constitution.

Respect for many of these rules can be measured statistically. I’ll mention only one here: the rule regarding the intervention of expert witnesses for the defense or the prosecution. Here’s an example of the way in which this aspect of a fair trial can measured:

In the late 1990s, Harris County, Texas, medical examiner [and forensic specialist] Patricia Moore was repeatedly reprimanded by her superiors for pro-prosecution bias. … In 2004, a statistical analysis showed Moore diagnosed shaken baby syndrome (already a controversial diagnosis) in infant deaths at a rate several times higher than the national average. … One woman convicted of killing her own child because of Moore’s testimony was freed in 2005 after serving six years in prison. Another woman was cleared in 2004 after being accused because of Moore’s autopsy results. In 2001, babysitter Trenda Kemmerer was sentenced to 55 years in prison after being convicted of shaking a baby to death based largely on Moore’s testimony. The prosecutor in that case told the Houston Chronicle in 2004 that she had “no concerns” about Moore’s work. Even though Moore’s diagnosis in that case has since been revised to “undetermined,” and Moore was again reprimanded for her lack of objectivity in the case, Kemmerer remains in prison. (source)

Capital Punishment (17): What With Rehabilitation?

As I live – declares the Lord Yahweh – I do not take pleasure in the death of the wicked but in the conversion of the wicked who changes his ways and saves his life. Ezekiel 33:11 (source)

I have been prey to the deepest anxiety for fear your Highness might perhaps decree that they [the murderers of a Catholic priest] be sentenced to the utmost penalty of law, by suffering a punishment in proportion to their deeds. Therefore, in this letter, I beg you by the faith which you have in Christ and by the mercy of the same Lord Chirst, not to do this, not to let it be done under any circumstances. … we do not wish that the martyrdom of the servants of God should be avenged by similar suffering, as if by way of retaliation. … We do not object to wicked men being deprived of their freedom to do wrong, but we wish it to go just that far, so that, without losing their life or being maimed in any part of their body, they may be restrained by the law from their mad frenzy, guided into the way of peace and sanity, and assigned to some useful work to replace their criminal activities. It is true, this is called a penalty, who can fail to see that it should be called a benefit rather than a chastisement when violence and cruelty are held in check, but the remedy of repentance is not withheld? Augustine (source)

We know enough to say that this or that major criminal deserves hard labor for life. But we don’t know enough to decree that he be shorn of his future – in other words, of the chance we all have of making amends. Albert Camus (source)

Execution obviously removes any possibility of rehabilitation; rehabilitation both in the sense of restoring someone to the family of humanity after repentance and forgiveness, and in the sense of exoneration, of the undoing of a miscarriage of justice.

The Causes of Human Rights Violations (5): Lack of a Fair Trial

A characteristic element of modern democratic states is their ability to offer fair trials to those accused of crimes. We try to treat everyone, even suspected criminals, with fairness, and we have two principal reasons for this:

  1. We only want to punish real criminals. A fair trial is one in which everything is done to avoid punishing the wrong persons. We want to avoid miscarriages of justice.
  2. We want to use court proceedings only to punish criminals and deter crime, not for political or personal reasons, as is often the case in dictatorships.

One important condition for a fair trial is publicity. Justice must not only be done, it must also be seen to be done, not only to deter other criminals and to give consolation to victims, but also because publicity makes it more likely that the real perpetrator is punished. Every trial is therefore a show trial. The publicity of a trial makes it possible to judge the judge and hence to correct mistakes if necessary.

The secret trial is typical of authoritarian regimes because it allows for abuses of power. It makes it easier to use the justice system for other purposes than the identification and punishment of proven criminals. It is very hard to use a public trial for power games or oppression.

On top of that, false accusations or false testimonies are more likely to remain undiscovered in a secret trial. After all, it is not only the state that can gain from a secret trial. Interested third parties can also benefit from an unfair trial.

However, publicity alone does not guarantee that trials and verdicts are fair and just (which is clear from the phenomenon of communist show trials). The following elements are just as important (as with publicity, most of them are included in the main human rights instruments, for example articles 9, 10, 14 and 15 of the International Covenant on Civil and Political Rights):

  • No punishment or imprisonment without an indictment and without swift information on the nature of the indictment. If the purpose of the justice system is to punish criminals, it’s very easy to tell the suspect who we want to imprison before his or her trial about the crime he or she is suspected of having committed. After all, the crime has been committed and the accusers surely must know the nature of this crime. It must be awful to be imprisoned without knowing why. The absence of indictments indicates that the authorities merely wish to use the justice system to terrorize the population, not to punish crime.
  • No excessively long detention on remand (detention without a lawful and fair trial and conviction). We do not want to incarcerate innocent people.
  • The possibility of an appeal to a higher court. Mistakes can be made.
  • A competent and impartial judge; fairness, according to the dictionary, means impartiality. A partial judge is an absurdity. Such a judge would be completely useless, and people would be better off fighting their cases amongst themselves, one against one instead of one against two.
  • The possibility to defend yourself and to receive free legal assistance. The possibility to argue and to give counter-arguments, to call witnesses for the defense and to question witnesses for the prosecution. This requires time, hence this must be balanced with the point mentioned earlier about the excessively long detention without a trial. Swift justice can be as unjust as detention without a trial.
  • Innocent until proven guilty. The burden of proof rests on the accusers. This is necessary to discourage wrongful accusations and also because the purpose of the trial is precisely the establishment of guilt. If guilt is assumed beforehand, then why have a trial in the first place?
  • No forced confession, because that would defeat the purpose of convicting the real perpetrator. And no obligation to incriminate yourself (the right to remain silent), which is linked to the rule that the burden of proof rests with the accusers.
  • No excessively tough penalties. The purpose is to punish, to prevent repetitions of the crime by the same criminal and to deter other criminals, not to balance the wrong that has been done by an equally painful punishment.
  • “Ne bis in idem”: no two trials for the same offense. If people can be retried continuously for the same crime, then the purpose is obviously not the punishment of proven criminals, but punishment per se. Anyway, if all the rules listed here are respected, there is no need for a retrial. This rule is also called double jeopardy.
  • “Nulla poena sine lege”: no crime or punishment without a law voted and published before the criminal deed. In other words, no retroactive laws, no laws with retroactive effect (laws which make deeds punishable after they have been committed). One cannot punish people for acts that were not a crime at the time when they were committed, because people should know what is or is not allowed so that they can plan their lives as law-abiding citizens.
  • For the same reason, laws should be predictable and should not change all the time. Nobody is responsible for a violation of a law if the law changes from day to day, because if the law changes constantly, then nobody knows the law and then nobody can respect the law. Predictability and permanence of the law are prerequisites for obedience, just as knowledge and publicity.
  • There should not be too many rules, otherwise the judges and the police will not have enough time to enforce them all or to punish all violations of all rules, which leads to injustice. Too many rules also leads to involuntary violations of rules, because citizens do not know what they are or are not allowed to do. The purpose of the justice system is to punish crimes, not mistakes; criminals who knowingly violate rules, not law-abiding citizens who unknowingly do what they shouldn’t.

All these elements put together make the justice system just, and protect the citizens against the state or against fellow citizens that want to abuse the justice system. If one element is missing, then all the others may become useless.