Capital Punishment Revisited

by Peter Wells

Beliefs tend to cluster in packages. It’s a fair bet that a member of the British Liberal Democrat Party will be an opponent of Brexit, and a supporter of Amnesty International, that doughty advocate of all good things. And one thing the Lib Dems, the EU, and AI have in common is that they all oppose the Death Penalty. However, package-deal thinking is not mandatory, nor universal. So perhaps one could call oneself a liberal (small <l>) and still contemplate the possibility of condoning Capital Punishment, especially as the great J S Mill (pictured) condoned it too (link).

Like Mill, I regret finding myself opposed to “those who are called the philanthropists,” those well-meaning people who are “so steadily and almost uniformly to be found on the side of right.” But Mill is convinced that in this case the ‘philanthropists’ have erred due to an “exaggerated application of [a] just and highly important principle.” Their ‘principle’ is to provide humane punishments, with opportunities for rehabilitation, for all criminals without exception. However, in the case of what Mill calls ‘aggravated murder,’ it leads them to opt for a punishment that is, in my view, and Mill’s, less humane than the death penalty: long-term imprisonment.

The arguments on either side of this hoary old warhorse of debating competitions are too well known to need rehearsing in detail. Supporters of capital punishment point out that keeping murderers jailed is expensive, and that the funds could be better used for the benefit of other members of our society. They remind us that prisoners can escape, and that even if they don’t, they can continue to do harm, especially to fellow-prisoners. They argue that there is a moral difference between a murder and a legal execution, and that the death penalty deters potential murderers.

On the other hand, opponents assert capital punishment to be morally indistinguishable from murder. They believe that there is no evidence that the penalty is an effective deterrent – rather the contrary. They point out that a wrong conviction is irreversible. As Mill himself remarks, “If by an error of justice an innocent person is put to death, the mistake can never be corrected; all compensation, all reparation for the wrong is impossible.”

My contribution to the debate, for what it is worth, arises from reflecting upon two meanings of the word ‘life.’

One is the the fact of a person’s existence, their relationships, character and identity – what we ‘celebrate’ in ceremonies of remembrance. This is the sense in sentences like “He/she had a good life,” which can be said no matter the age of the deceased. The other is simply the unknown number of their remaining years. Whereas the former might well be regarded as ‘sacred,’ as an ‘absolute,’ the latter could and probably should be regarded as a commodity. Opponents of capital punishment tend to argue that it takes away ‘life’ in the former sense – that we are taking away from a person everything that makes them a person. They speak of the ‘sanctity’ of life. This is the recently adopted position of the Roman Catholic Church:

The Church teaches, in the light of the Gospel, that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person,” and she works with determination for its abolition worldwide.

I suggest that this attitude arises from a confusion between the two definitions. What if the death penalty is a less transcendent action than the Catechism suggests: one which merely removes a good of rather limited value? If we kill a murderer, we do not take away life in the first sense. He has experienced his childhood, known his parents, had friends, made decisions, grown up, probably had a job of some sort, learned stuff. (For the purpose of this essay I’m assuming murderers are men, as they usually are.) The average age of a murderer in the UK is about 30 – less than half the modern life-span, admittedly, but enough to do most if not all of the things that make people people. If we execute a murderer we take away the remaining 40-50 years that he might have had (or less), which admittedly is no small thing. But much depends on the quality of life he might otherwise experience. Quality of life is a good we have learned to appreciate in discussing issues such as ‘living wills’ and assisted dying, and during our own recent ‘lockdowns.’

Even under the most enlightened regimes, a prisoner does not have a normal family or social life, or a job, and his scope of action is enormously restricted. But prisoners in the UK and USA, and many other countries, do not live under enlightened regimes. As Mill so ably shows, long-term imprisonment (which in his day included ‘hard labour’) was an infliction “less severe indeed in appearance [sc. than. the death penalty], and therefore less efficacious, but far more cruel in reality.” It involved, in his view

immuring him [the convicted murderer] in a living tomb, there to linger out what may be a long life in the hardest and most monotonous toil, without any of its alleviations or rewards – debarred from all pleasant sights and sounds, and cut off from all earthly hope, except a slight mitigation of bodily restraint, or a small improvement of diet.

Although the element of hard labour has been superseded, the nightmare quality of prison life in the present day is not usually appreciated by those who discuss crime and punishment as abstract concepts. Here is an summary of the state of British prisons in 2019, from a blog which is corroborated by other sources, such as the BBC:

86% of prisons were rated as having performance of concern or serious concern in relation to the number of incidents of self-harm and prisoner-on-prisoner assault, according to the Prison Performance Ratings of 2018/19. (…) In the 12 months leading up to March 2019, there were 317 deaths in prison custody. One in seven prisons in England and Wales are considered to be of ‘serious concern.’

[In Birmingham Prison inspectors] found corridors filthy with blood, vomit and cockroaches, amid damning levels of violence, drugs and alcohol abuse. One in seven prisoners admitted they had developed drug addictions whilst that they had been inside the prison.

In 2019 the Chief Inspector of Prisons Peter Clarke said in his annual report, “Far too many of our jails have been plagued by drugs, violence, appalling living conditions and a lack of access to meaningful rehabilitative activity.” (BBC)

An American campaigning site makes similar claims about US jails:

Today, prisons and jails in America are in crisis. Incarcerated people are beaten, stabbed, raped, and killed in facilities run by corrupt officials who abuse their power with impunity. People who need medical care, help managing their disabilities, mental health and addiction treatment, and suicide prevention are denied care, ignored, punished, and placed in solitary confinement.

Another American site, Fair Fight Initiative, mentions the following problems in US prisons: overcrowding, violence, neglect, gross mistreatment, rape, coercion, homicide, mental illness, suicide and corruption.

A recent BBC ‘File on 4’  radio programme has revealed disturbing facts about health services for prisoners, starkly demonstrating the lack of concern the system has for prisoners as human beings. A similar claim about the effect of prison life in America can be found here: “Each year in prison takes 2 years off an individual’s life expectancy.”

A fellow contributor to the Monday Magazine has written graphically about conditions in the sort of prison we find in Britain or America.

In effect the punishment of prison time comes in two parts. The term of imprisonment that society’s justice institutions decide is right and proper. And an additional corporal punishment component outsourced to the most vicious and violent thugs in the relevant prison community to determine and administer. That corporal punishment regime is out of society’s control, but remains our responsibility. It falls most heavily upon the weakest and most vulnerable prisoners, not the most wicked, and makes society into torturers by proxy.

This is the fate that many well-meaning liberals think is preferable to death. But if there is anything that takes away a person’s humanity, warping his personality and rendering his ‘life’ pointless, surely a lengthy period of incarceration in a British or American prison is more likely to do this than what Mill calls “the short pang of a rapid death.” It is not surprising that the incidence of suicide in prisons is higher than in the outside world, with 80 in the year ending March 2020 in the UK, and over 63,000 cases of self-harm. Perhaps an untimely death is not the worst thing that can happen to a person.

To avoid the danger of wrong convictions, Mill maintains that the death penalty should only be applicable in cases where there is “conclusive evidence” – cases like the murder of Lee Rigby, committed in full view of members of the public, and cameras. Or Harold Shipman, who murdered hundreds. Or Ian Brady, who, far from denying his crime, cruelly tormented bereaved parents from his prison cell by offering to show them the graves of his victims, and then changing his mind.

To be sure, there is always the possibility of error – as Mill says, it is an argument that “never can be entirely got rid of.” But to allow the infinitesimally small chance of a wrongful conviction to determine our policy would be out of step with normal practice in governing large nation states. There are countless government decisions, especially in areas concerned with safety, that indirectly cause deaths, though not those of specific people. The British government’s recent decision to abandon coronavirus precautions is a case in point. Considering the casual manner in which we condemn people to death for other reasons, the care taken over capital cases is more than adequate for the requirements of justice in a large population. In this particular respect, Mill places his trust in the British judicial tradition that “It is better that ten guilty should escape than that one innocent person should suffer,” and generally speaking his remarks remain true today.

No human judgment is infallible; but in so grave a case as that of murder, the accused, in our system, has always the benefit of the merest shadow of a doubt. (…) Judges are most anxious to point out, and juries to allow for, the barest possibility of the prisoner’s innocence.

It is occasionally argued that giving the state the power to use Capital Punishment could play into the hands of tyrants, who might execute people they find troublesome on trumped-up charges. This is a trivial argument. Governments capable of that level of injustice and cruelty are quite able to dispose of troublemakers quietly behind the scenes, and presumably do, without the charade of a trial.

The preceding discussion assumed a utilitarian approach. Killing a killer allows us to save a number of innocent people, because we save ourselves the cost of imprisoning him, and these savings can be used to improve the National Health Service, or other social services – perhaps even helping potential criminals to keep their lives on track. In trolley-problem terms, we were at the stage where the protagonist switches the trolley onto a track where only one person will die, rather than five. We now move to the stage in which we are invited to consider pushing a fat man off a gantry into the path of the trolley so as to achieve the same effect. Here, as we know, there is a strange phenomenon whereby people who have already agreed to change the trolley’s direction seem to contradict themselves by being unwilling to achieve the same effect with a physical assault on a nearby human being.

The consideration that might cause us to revisit our first decision to pull the switch is consciously or unconsciously based upon a powerful virtue-ethics argument. Efficient as it might be to sacrifice our murderers for the sake of the greater good, would you pull the lever that drops the trapdoor underneath the condemned man? And if you would, what sort of person would you be? Virtue ethics suggests that the pragmatic approach, logical though it may seem, is not acceptable in a human community worth living in. Followed through logically, it would permit or even oblige us to cull healthy people in our communities on the grounds that their organs could save five times as many lives. A typical expression of the virtue ethics view is put by Joe Giles in a recent edition of ‘Varsity’:

What kind of society pursues a retributive, unethical penalty which serves no preventative purpose and commits its own irreparable mistakes?

However, this argument cuts both ways. First, there is already a range of homicides that we are apparently prepared to condone in our society. One of these is war, which includes exterminating not only enemy soldiers, and sacrificing our own, but also killing non-combatants, because some degree of collateral damage is generally considered acceptable. Another is the deployment of lethal force by the police, whose marksmen have to value one life (say, a hostage’s) over that of a kidnapper. Six ‘Western’ countries and some American states allow assisted suicide. In these circumstances it seems hypocritical to draw the line at capital punishment. We have, Mill suggests, a “horror of inflicting death,” but it seems to operate selectively. I hope the police sniper is not afflicted with “the mercy which shrinks from putting [someone] to death” when someone I love is a hostage in danger of being murdered.

Second, if we find it morally repugnant for an agent to allow poison to flow into the veins of an anaesthetised convict, what are we to say about the people who condemn a man to thirty or forty years in the hell-hole of a British or American prison, and keep him there, knowing full well what his existence will be like? Where is the virtue in that? What has happened to “the inviolability and dignity of the person”?