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Death, justice and the big questions

United Kingdom
Human Rights
United States

Sometimes a crime is so horrific as to produce a seismic effect. It sends rippling across our collective consciousness the singular demand – for justice to be served by removing the criminal from the world of the living.

The Breivik case involves just such a crime. As the TV stations reeled out the seemingly never-ending series of faces, most of them children or young adults, it was impossible not to be struck by their aura of youth. They resonate as individuals stood on the cusp of the future, and morbid though it may be, it is hard not to wonder who they may have become, or what they would have gone on to achieve.

In light of this, the reaction of Norway’s president to the Breivik trial is all the more remarkable. Whereas many heads of state might have used the national mood of shock and outrage as an opportunity to grandstand, Jen Stoltenberg’s reaction was measured, motivated by a deep melancholia rather than the incendiary desire for revenge. He did not clamour for the death penalty, in fact he didn’t even call for the toughening of criminal law more broadly, rather he suggested the reverse, urging people toward ‘more democracy, more openness’.

Last month, and in response to the Breivik trial, the BBC programme The Big Questions held a death penalty debate. The anti-capital punishment brigade went to work straight away quickly deploying their flagship argument, highlighting the reason the penalty was abolished in the UK in the first place i.e. the hanging of the innocent and mentally-challenged teenager Derek Bentley.

Moreover, they stipulated, such miscarriages of justice occur with alarming regularity in the areas of the world where the death penalty is still in force. Their argument was fortified in a provocative and unexpected manner, for they had in their number one Michael O’Brien who himself spent 11 years in prison for a crime he didn’t commit. The 11 years is shocking in itself, but the awareness that the person you were watching in real time would now be in the ground had not the capital legislation been repealed was what really provoked a shudder. All at once the discussion seemed to move beyond the to and fro of intellectual point scoring. Imbued with an ominous gravitas, the whole theme suddenly became ‘real’.

It is a credit to the conservative journalist Peter Hitchens that he was able to confront head on the controversy of innocent lives lost due to capital punishment. Hitchens did not deny that a sizeable proportion of people had lost their lives this way nor did he attempt to argue future tweaking of the justice system would necessarily ameliorate such terrible outcomes (though he suggested such avenues should be explored).

In fact Hitchens claimed something more fundamental. Only a naive, unadulterated pacifism would fail to acknowledge that the ability for a given society to sustain goes hand in hand with certain unpalatable concessions. The struggle against the Nazis, for example, presupposed the wilful bombing and destruction of large swathes of civilian populations: the ‘necessity’ for such killing flowed inexorably from the perilous nature of the historical situation.

On a smaller scale, Hitchens suggested, this is exactly what the issue of the death penalty boils down to. The argument about capital punishment cannot be resolved by recourse to some abstract moral principle but must be derived from the living reality. According to Hitchens, the chaotic and fragmented nature of the modern world requires the death-deterrent in order that the principle of life remain sacrosanct: the ultimate crime must as well be limited by the ultimate punishment.

Such po-faced utilitarianism might be more persuasive if it wasn’t for the fact that, in the United States at least, the majority of criminologists simply don’t believe that the death penalty reduces the murder rate. In the US it is the South which is responsible for 80 per cent of executions yet the same region also experiences the highest murder rate.

But there is a problem with Hitchens’s argument which reaches beyond the statistics.

The idea that the more punitive the state is, the more it lowers the levels of crime in society misses something important. The prison system, however brutal and ineffective, still has the result of binding the social individual to the state – a prolonged existence in which the one continues to stand in relation to the other.

In fact some argue the relation of the individual to the state is constitutive of society itself. And in severing that relation – say organizations such as Amnesty International – the state is not only brutalizing a criminal, but is ‘brutalizing’ society therein. Such a state is increasingly experienced as a power set against society and because of this, its organic connection with the social whole is inexorably weakened.

The state which employs the death penalty, therefore, is also one which has lost a point of contact with its citizenry. As a result the ability of the judicial power to empathize with or even comprehend those it comes into contact with is inevitably lessened. For this reason it is not entirely accidental that the death penalty is still used against people who have the mental age of a child.

And this is why Jen Stoltenberg and his liberal demand for ‘more democracy, more openness’ infers something more than an abstract and idealist principle. Such humanitarianism has an eminently practical character too in as much as it allows a higher level of social cohesion, ultimately setting the basis for less crime, not more.

Tony writes about cultural and political issues from a left standpoint, and regularly contributes to The Huffington Post.

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