I'm Going to Regret this, but...

There’s have been ripples in the blogosphere, and possibly in the country, about the possibility of bringing back the death penalty for murder, or some subset of murders.*

The death penalty was applied to a decreasing number of crimes from the early 18thC, when the black acts were sweeping and savage, and the end of the 19thC when attempted murder and rape both ceased to be capital crimes. Treason only applied in wartime at that stage. This was partly, or largely, because juries were refusing to convict on capital charges where they felt death was too harsh a sentence. The final abolition of the death penalty for murder was not a response to the actions of juries, and was against public opinion, which has always wanted to have the option of killing its killers. This is relevant to the later argument. (I haven’t checked any of these things, by the way, so I’m open to correction.)

The fact that a majority wants something doesn’t necessarily mean it is right, but it’s a good starting point if you have to decide whether it should exist or not. The EU finally forced all its members to abolish the death penalty completely a few years ago. As I pointed out at the time (to anyone who’d listen), an unelected, unaccountable body denying a society the freedom to protect itself from its murderers is not progress, it is tyranny.

None of which has any bearing on whether the death penalty per se is right or wrong, so let’s have a look.

I do not oppose the death penalty on principle. I see nothing wrong with society holding forfeit the life of someone who has killed one of its members. Therefore the facts that would lead me have an opinion on the matter of in England are practical matters.

Does it work as a deterrent? Despite the thousands of keys that have been worn to dust beneath the fingers of writers on both sides of the divide, no one seems to have a clue. It shouldn’t be too hard to look at figures from around the world, as the status of capital punishment has changed, and do some analysis. They would need to be corrected for any number of factors, and, in fact, it would be very hard, but it should also be worth doing. You could also talk to murderers, a lot of them, very carefully, and try to ascertain how they might have acted differently. It would require a great deal of work, but again, it is something very much worth knowing more about.

What do you do about the mistakes? Well, there’s not much you can do, except do your best to make sure they don’t happen. There’s a lot that can be done, and is done, to ensure that the innocent are not convicted and condemned, but sometimes they are. That’s a rather weak answer, but there isn’t a stronger one unless you start trying to weigh the value of innocent convicts hanged against those saved by the force of deterrent and lack of recidivism, and you can’t have that conversation until the point in the previous paragraph has been answered with some degree of accuracy. It is this question which inclines me against the death penalty in practice.

Who takes the life of the convicted murderer? Is it society as a whole, or is the state, an entity distinct from, and antagonistic to, society? In Britain we still have the sense that we, society, collectively, through the system of juries, on whom a guilty verdict cannot be imposed, and by having trials in public, so that justice can be seen to be done, and any inadequacies openly discussed, act in our own name, to protect ourselves from criminals. This may be why people generally are in favour of capital punishment. (In Spain the general public is very much against, because it is associated with a large number of less than perfect governments over the centuries, and perhaps because they don’t have juries.) Both jury trial and visible justice are under increasing threat (in the name of human rights and freedom, of course) and the sense that we ourselves punish criminals, rather than the state, may soon cease to be felt so strongly.

All the commentators I have read on the subject recently, both for and against, assume that the state would be giving itself the power to kill its citizens. There is another way of looking at it, as I say, and I think it is relevant to the argument.

*Usually those who kill children or policemen in the execution of their duty. These categories of murder may be considered different, incidentally, not because the lives of children and policemen are worth more than other lives, but because people who kill children, and policemen when they are protecting the rest of us, are probably more dangerous (and more evil) than other murderers. I don’t think I would want that distinction to be made, if execution were revived, but it’s a legitimate argument, I feel.