In the first part of this duplex, I responded to Daz Pearce’s challenges about the death penalty in the first part of his article. Here I respond to the challenges Mr Pearce made in the second part of his article.

Mr Pearce disagrees with me on the nature of capital punishment. I argue that capital punishment is useful as a deterrent but not as a means of retribution. Mr Pearce says that many people are attracted to capital punishment because it satisfies their desire to exact revenge. The keen-eyed reader will observe a disparity between my premise and Mr Pearce’s.

What I am saying is that capital punishment has a measurable effect as a deterrent. Deterring crime is what capital punishment is best for. Just because some people would feel avenged by the hanging of a murderer (which is what discomfits Mr Pearce), it doesn’t follow that capital punishment is ineffective as a deterrent.

Let us pay special attention to Mr Pearce’s words on the feeling of being avenged some people may have: ”The retribution that they crave is not on behalf of the victim’s family, but for themselves and/or society as a whole.”

I am not sure how Mr Pearce knows that people who want capital punishment as a weapon of vengeance crave it for themselves and for society – but definitely not for the victim. I would call this a gross misjudgement of what – and whom – justice is for. The vengeful man in the street is a member of society which the justice system must be seen to protect. Hanging a murderer sends a warning to would-be murderers not to kill innocent members of society. Unhappily, it is probably the victim’s family for whom the justice system can do the least. The deterrent effect is no good to them and, as I insisted at length in my original text, unsatisfying as a form of retribution.

But whether the average citizen feels – or thinks he is – avenged by the hanging of a murderer, and enjoys the feeling of retribution is unimportant. It is Mr Average Citizen’s own business how he feels about it.

All of what I have said so far applies to feelings about retribution in response to capital punishment. I think Mr Pearce and I can agree that, once instituted, the individual’s emotional satisfaction by the hanging of a murderer is “after the fact” and irrelevant. Here, retribution is a mere by-product of deterrence.

But what if capital punishment were reintroduced on the basis of demagoguery? This is the the critical juncture of the debate. Let us examine what Mr Pearce has to say:

“By retribution, I am referring to the instinctive reaction that many decent people have upon hearing of a particularly horrific murder. For instance, Harold Shipman was a man whose crimes against vulnerable patients in his care were met with many a call to ‘hang the bastard’ or issue some other form of ultimate penalty. This isn’t necessarily the thinking of ‘a rabble’ or ‘hotheads’, but of individuals who would not normally be considered unreasonable by nature.”

Can we be sure that, upon exposure to the gruesome details of a murder, that those who call for the hanging of the perpetrator are “unreasonable”? Yes, such people may be reacting viscerally without much thought. But it is also possible that such people are also thinking about crime and punishment with greater clarity and conviction when confronted by the horror of a crime. Can we not suppose that our sanguinity when we are unaffected by crime is also unreasonable? A person’s ardour for the death penalty could cool if he went a year without hearing of any gruesome murders on the news. After a year of not encountering any gruesome murders on the news, he may become complacent and even conclude that the death penalty is unnecessary. Maybe his detachment makes him unreasonable.

But what makes Mr Pearce think that the following is the case “[Those] who have an emotional stake in any situation are not usually the best placed to judge how it should ultimately be dealt with”?

Do these unreasonable, emotional knee-jerkers and tear-jerkers really have any say in the law-making process of this country? If they did, then capital punishment would have been reintroduced a long time ago. It might never have been abolished. But the governments of the past fifty years have done what they want irrespective of popular opinion.

Besides, support for the death-penalty is consistently above 50%. When there is a gruesome murder support for the death penalty spikes. So, even if we were to discount “unreasonable” support for the death penalty, more than half of voters remain in favour of capital punishment.

As for the injustice suffered by Stefan Kiszko, I don’t have much to add. Most of what can be said about miscarriages of justice have been stated in Part I. Miscarriages of justices can be minimised, never eradicated. I know some people say they could countenance the death penalty if there was a 100% guarantee the wrong man would not be executed. I call this the Portillo Formulation. It is a pretty useless and dreamy way of thinking: We could only do X if the world was perfect.

Adherents of the Portillo Formulation will not be won over by my rationale for minimising miscarriages of justice (seeing as it is insufficient in their fabulous world) but the justice system could be improved by the re-moralising and re-educating of society. If our society had a definite moral system there would be fewer people in the justice process prepared to “bend” the law to the extent that an innocent man could hang. If our society was better educated, there would be fewer stupid people in the justice process to allow things to go wrong to the extent that an innocent man could hang. If people believed that their lies in court were being supervised by a higher authority, they would be less inclined to tell lies when their hand is placed on the Bible.

And if we had a better political class we would not have to fear the (nanny) state so much. The state that Mr Pearce is so fearful of is the one created by alternating Labour and Tory governments over a fifty year period. If you lot stopped voting for those old, useless parties we probably would have a better functioning state apparatus and a justice system in which we could have confidence.

1
LJH
September 20, 2011 at 15:22

Bring it back for treason and make sure that all politicians who lie, steal, design big -ego-financial -failure projects, redistribute national issues to supranational organizations, on the tax payers buck get charged. Public life could only improve.

2
Ex-Liverpool Docker
September 20, 2011 at 15:46

One miscarriage of justice is sufficient to knock all of your arguments on the head. If one of your family was ‘executed’ by the state and then it came to light there had been a mistake, would you think the same?
The state should ensure that murderers serve the full term without their sentences being reduced because they’ve been ‘well behaved’. If they’re not well behaved then their sentences should be further increased; I’m aware that with a life sentence this is difficult but not beyond the wit of man.

3
James Garry
September 22, 2011 at 12:30

I accept that some people would be wrongly hanged if capital punishment were introduced. That accepted, it is logical that I must acknowledge that I could personally be affected by a miscarriage of justice.

This is a risk I am willing to take.

4
Ex-Liverpool Docker
September 22, 2011 at 15:59

James, thanks for replying.

I cannot agree with you that the taking of innocent lives by the state is acceptable as part of an imperfect justice system. There are numerous examples of miscarriages of justice but at least the more recent ones had the victims within the prison system rather than in the ground.

I suggest that your views of the ‘risk you’re prepared to take’ would change with the circumstances and that at this distance that is an easily made statement.

5
Stabledoor
September 20, 2011 at 16:55

If we have the death penalty, the cornered armed murder knows he has nothing to lose by taking as many coppers with him as possible and might as well be hung for a sheep as for a lamb.

You are misrepresenting the Portillo Formulation; clearly convictions will never be 100% safe, therefore the death penalty should not be used at all – it is nothing to do with a dreamy fabulous world.

One innocent man executed would be one too many

6
James Garry
September 22, 2011 at 12:32

If we have life sentences that mean life, the cornered armed murderer knows he has nothing to lose by taking as many coppers with him as possible…

7
Thaddeus J. Wilson
September 21, 2011 at 10:29

“If you lot stopped voting for those old, useless parties we probably would have a better functioning state apparatus and a justice system in which we could have confidence.”

I really have no idea how doing one would lead to the other.

8
James Garry
September 22, 2011 at 12:34

Well, because all the major parties are left-wing and are soft on crime and punishment.

Unless we get rid of the Tories and replace them with a proper conservative party, then we’ll just get the Ken Clarkes of this world presiding over the justice system.

9
Rob
September 21, 2011 at 13:55

There is little doubt that the death penalty can be an effective deterant. But an innocent man’s life cannot be given back. It is not just the innocent man that suffers. There will be children, mothers, siblings and friends. Entire families destroyed.

If we can agree that a consistently applied death penalty is a good deterrent then I would bet the farm that a consistently applied life sentence would also be. It has the advantage of giving a greater opportunity of righting a wrongful conviction. Unfortunately we have neither in this country.

I fear that the debate on the death penalty acts as a dead end. It avoids and obscures the simple and effective changes that could be made without the need for a politically difficult process that is ultimately likely to fail.

These simple changes are as follows:

1. Prison is not a party. Fed, clean and warm enough is good enough. Privileges like books and acces to teachers would be associted with benevolent activiy and removed for bad behaviour. No Drugs, No TV, No Xbox.

2. Life means life. 18 months served of a 5 year sentence for knife crime is not acceptable. We will need more prisons! One exception – see below.

3. The penitent man may pass. Early release/parole would depend on genuine repentance. This can only be proved by a voluntary acceptance of penitence for your crime. If you get drunk behind the wheel and kill a family man then you clearly have an obligation to help support that family financially…..indefinately. You must bear this burden as well as supporting yourself in the real world. It would take genuine repentance to accept a life of penitence like this. We can only forgive those who repent. Failure to deliver – back in the clink. Most would probably stay in Prison but at least that would prove their lack of genuine repentance to all the prison “liberals”. They would have to prove that they were sorry that they had committed the crime, not because it ruined their life but because it ruined someone elses.

10
uk Fred
September 22, 2011 at 00:03

While I would agree with Rob that there should be no free entertainment in prisons, I would certainly provide education for prisoners. If someone goes into prison illiterate and innumerate, surely society is better if, when the prisoner completes his/her sentence, s/he is able to write a letter of application for a job and able to count the number of boxes on a pallet. I would even go so far as to provide training in trade skills to help ensure that the ex-prisoner was able to continue to be just that, an ex-prisoner. Perhaps someone can point us to a cost benefit analysis of education for prisoners.

11
James Garry
September 22, 2011 at 12:37

As an aside to the capital punishment debate, I agree that prisoners should be allowed access to books for the reason you give.

12
Rob
September 22, 2011 at 13:29

Thanks UK Fred.

I do agree but they must realise that education is a privilege and the only way to do that to people who have lost thier ability to see such simple truths is to show them that they can only enjoy such a privilege as long as they demonstrate that they value it. I see little point in forcing unwilling gorrilas to sit in a room and fall asleep while some poor bloke tries to engage them in a wholistic prisoner focused learning partnership.

13
M Barnes
September 23, 2011 at 13:43

The writer takes a very logical, factual and utilitarian approach to arguing his case for re-introduction of the death penalty. In the absence of my having studied the area of criminal statistics I will place the statistical argument to one side if I may. Certainly the reasoning that the needs of the many outweigh the needs of the few is a powerful one.
But the death penalty doesn’t just have a utilitarian impact, it isn’t just a numbers game. Mr Garry is in danger of taking a very ‘spock-like’ approach and ignoring emotion. There have been many miscarriages of justice in the UK. A perfect, fault free justice system is impossible given that it is operated by human beings. All any process of justice can hope to do is minimise the opportunity for error and ensure errors can be corrected when they occur. The death penalty is final and irreversible; errors cannot be corrected. This causes some problems with the apparent logic of Mr Garry. In the case of an error, ‘The State’ has committed pre-meditated murder. While it did not believe it was doing so at the point of execution, that is no defence. If error is inevitable then the State has advance knowledge of an inevitable murder. Who would be prosecuted and who would be convicted? A justice system must operate equally for everyone , not exclude those unfortunate enough to fall foul of its inadequacies.
So the State has committed murder. How does this affect the people of the State? Will they be happy or unhappy? Will they feel bad for a bit then forget all about it with no residual effect? There is a stain on the people of the UK now, a certain vague guilt if you will, over famous mis-carriages of justice. How much bigger is this stain if the victims can’t walk down the steps of the high court once the verdict is overturned?
And then there is the tricky impact of execution duties on the individuals tasked by the State to kill people. It’s all very well to debate the theory but when it comes right down to it the killing has to be scheduled, organised and then someone has to ‘pull the trigger’, ‘put a noose round a head and pull a lever’ or ‘press a button’ that operates a lethal dose of electricity or poison. I am not so sure that the people who are directly involved in killing another person are left unscathed by such work – and that is without the added harm from later discovering someone was innocent. I’m not trying to be a touchy feely here, just contending that there is a societal and personal cost that goes beyond the numbers game.
Mr Garry has ignored the ‘emotion’ around State justice. It’s okay for him to say ‘I can live with it’. The question is whether the majority can. Personally I can’t. I want to be proud of my justice system. In a funny way I am proud that at least, eventually, those mis-carriages of justice have been discovered, exposed and corrected and will be in the future. I do not wish to spend my days avoiding thinking too hard about people who have been murdered by the State and the best we could come up with is ‘mistakes will happen’. Even worse than that would be a situation where no-one bothered checking if there had been a mis-carriage of justice because there would be no point – the person is dead.
Ultimately the apparent logic of Mr Garry is not…. he has not explored the logical consquences of errors because he does not wish to. Easier by far to simply shrug and say ‘price worth paying’, less complicated. He avoids, and possibly sneers at, the so-called emotional or philisophical arguments against captial punishment. Unfortunately any discussion of State Justice inevitably involves emotion and philosophy – it has to.