Benjamin Bestgen: Death penalty revisited



Benjamin Bestgen

Benjamin Bestgen discusses the death penalty in this week’s jurisprudential primer. See his last one here.

A few weeks ago an acquaintance (let’s call her Lea) witnessed an incident where teenagers had assaulted elderly people by deliberately coughing and spitting on them and yelling “COVID-19, COVID-19!” Lea told me about it and said that while she does not support the death penalty generally, she would not feel too sorry if these [colourful expletive] would, exceptionally, be shot.

Lea is a thoughtful, well-educated person and mother of two teenagers. I got curious and, claiming professional interest, asked if she would still endorse this view if her kids had committed a similar (or worse) offence. She replied that she hoped her children would know better and in any event, her country does not have capital punishment. But upset about COVID-19 aside, Lea said that some deeds are so heinous that monetary fines or imprisonment don’t seem sufficient punishment: only the terror of certain death and the irreversible removal of the offender from the world might constitute just retribution for the harm that person inflicted on others.

What kind of sentence is death?

Sentiments like Lea’s are often attributed to pub-bores and populist right-wingers. Many deem capital punishment barbaric and morally wrong: if we truly reject murder, torture or terrorism, we mustn’t inflict similar things on people who have harmed us so, otherwise we are morally tainted in the same way.

Morality aside, capital punishment is also criticised as:

  • an ineffective deterrent;
  • errors are intolerable because irreversible: miscarriages of justice don’t come worse than an erroneous death sentence;
  • many offenders could also be rehabilitated;
  • to protect society and incapacitate an irredeemable, dangerous person, we have many reasonable means available that do not involve killing; and
  • no meaningful reparation to the victim or the wider community.

Further, natural justice suggests that we should understand exactly the nature of any punishment we impose so we know it is appropriate. But death, while biologically well-understood, is metaphysically unknowable.

Retribution

Lea is no pub-bore or right-winger. Her gut-response about these teenagers was fuelled by the thought that through their disgusting assault they had terrorised and instilled the fear of death in these elderly people who are at risk of dying from COVID-19. If a victim had actually become ill and died, these youths would be killers.

Retribution is an old and powerful intuition when we consider how to react to actual or perceived wrongs. The wish or need for revenge and rebalancing the scales is viewed by many as entirely natural and justified, by many others as an uncivilised impulse we should aim to overcome.

The ancient Mesopotamian Code of Ur-Nammu, the oldest written law we know about, employs the “ius talionis” (eye for an eye principle), stating that a man committing murder must be killed.

Enlightenment philosopher Immanuel Kant shared that view: the only proportionate punishment for murder is to take the murderer’s life in return.

Nowadays, former prosecutor and academic Robert Blecker advocates that while he believes that capital punishment should only be used for the very worst offenders, retribution is an important part of justice: a murderer who viciously tortures his victim or a terrorist responsible for dozens or hundreds of deaths and trauma should suffer and die. No other punishment matches the crime.

Relevance

It seems that official support for capital punishment is steadily decreasing not only in Britain but worldwide. Just over half a century ago, abolitionists still had to argue their case against the normality of capital punishment, nowadays it’s the opposite. But, equally, we see that strongman leaders and authoritarian, populist governments create an environment in which more people feel less restrained calling for the death penalty to maintain “law and order” and be “tough on crime”, however defined.

According to a snapshot YouGov poll in 2017 that surveyed 2,060 randomly selected adults, 53 per cent of Leavers and 20 per cent of Remainers thought the UK should reintroduce the death penalty after Brexit.

There is, perhaps, no punishment as ultimate as death. As long as some people still wish for death to be a judicial option, we cannot afford to be naïve about the subject: some people’s intuitions about justice, good order and authority may well include a justifiable desire for retribution, which the death penalty could provide, while others reject capital punishment on religious, philosophical or pragmatic grounds.

So the next time you encounter somebody who expresses sympathies for the death penalty, maybe ask them (non-judgementally) why exactly and have that conversation.

Further reading: The Abolition of the Death Penalty in the United Kingdom by Julian B. Knowles QC.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.



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