To Hang or Not To Hang, that is the question

Hangman's noose against black background

I do not believe that any of the hundreds of executions I carried out in any way acted as a deterrent against murder” – Albert Pierrepoint, Hangman, UK (1931-1956)

There are three popular arguments in favor of Capital Punishment:

  1. It allows society to “punish” a wrongdoer, thereby balancing “the celestial scales of justice”
  2. It serves as a deterrent for persons who may be contemplating violent crimes
  3. It serves as a “redress” for the victims of a violent crime

In Sri Lanka, Capital Punishment has thankfully been shelved for nearly half a century. Yet we occasionally hear a public outcry for its re-introduction, in the aftermath of a horrendous crime. Citizens feel outraged by a particularly vile act, and want “something done about it”, to prevent it happening again. Capital Punishment suddenly seems an attractive solution to politicians, who feel answerable to the demands of the general public. Recently, no less a person than The President threw his weight behind Capital Punishment, saying he was working towards its reinstatement in 2016.

It is noteworthy that a mere century and a half ago, judicial experts and the intellectual community at large would have sided with such an intuition for leveraging Capital Punishment.

Even that great rationalist luminary of the 19th Century, JS Mill, famously argued in parliament in favor of capital punishment, albeit for the most extreme of cases1: “…when the attendant circumstances suggest no palliation of the guilt, no hope that the culprit may even yet not be unworthy to live among mankind, nothing to make it probable that the crime was an exception to his general character rather than a consequence of it, then I confess it appears to me that to deprive the criminal of the life of which he has proved himself to be unworthy, solemnly to blot him out from the fellowship of mankind and from the catalogue of the living is most appropriate.

However, times have changed since the days of Mill. We saw two whole new branches of science emerge, which may have something definitive to say about the efficacy of Capital Punishment; namely psychology and sociology.

We know today that motive #2 (Capital Punishment is a deterrent) is empirically false2, 3, 4, 5, 6, and we know that motives #1 (“punishment”) & #3 (“redress”) are a mere “window dressing” of an retributive instinct that was perhaps useful in stone-age tribal societies. Contrary to this primitive instinct, many a moral philosopher, both ancient7 and modern8, has rejected capital punishment (or worse, retribution as a solace for victims), as an uncivilized way of conducting human affairs.

Albert Camus, that outstanding French libertarian and writer, highlighted the concern:

But what is capital punishment if not the most premeditated of murders, to which no criminal act, no matter how calculated, can be compared? If there were to be a real equivalence, the death penalty would have to be pronounced upon a criminal who had forewarned his victim of the very moment he would put him to a horrible death, and who, from that time on, had kept him confined at his own discretion for a period of months. It is not in private life that one meets such monsters”.

The utopian human being with perfect mannerisms and an unfailing character is an imaginary socio-psychological construct, a conceptual role model for children. The uneasy truth is that human intent is fickle, governed by a nervous system whose structure and function is fraught with aberrations, which cannot be eliminated through nurture alone. A sociopathic personality, for example, could be the direct consequence of a poor endowment of mirror neurons, or other generic mutations that attenuate empathy from birth9, 10, 11. The details are somewhat complex and beyond the scope of this essay, but for those with such subtle birth “defects”, no matter how peaceable their childhood influences may have been, they may be saddled with a fundamental inability to empathize with other living creatures. They may not even be able to empathize with themselves, in a self-reflective manner. Not being able to feel for someone (or even for one’s own self) makes it easy for one to cause injury or distress to others.

An Iowa Supreme Court Justice made this observation as far back as 1840:

Crime indicates a diseased mind in the same manner that sickness and pain do a diseased body. And as in the one case we provide hospitals for the treatment of severe and contagious diseases, so in the other, prisons and asylums should be provided for similar reasons.

If society ends up killing every such person who yields to his natural instinct (to strike, rape or plunder), rather than finding ways to curb or neutralize their behavior, we then get into a fascinatingly diabolical downward spiral. The more we kill those who lack empathy, in order to better the lives of those who have it, the more we lower the empathy of the empathetic. We know that a taste for judicial killing brutalizes society12, as was the case in Victorian England, where public hanging made life cheap, and people even more violent. We find such a brutal society today in Saudi Arabia, where domestic workers are abused13, and where murder and sex crimes are rampant. The executioner hacks away to no avail.

That is precisely why the more enlightened nations (including Sri Lanka) aspire to practice Restorative/Preventative Justice14.

We should also not make any mistake on the legitimacy of the actual act; Capital Punishment is a premeditated violent crime committed by the state, according to modern jurisprudence. It is not an act of self-defense (as Camus and others have clearly pointed out). Perpetrators are often executed years after their bad acts were committed, by which time their attitudes have changed dramatically for the better. There are ample such cases widely publicized in the media15.

There probably are a dozen other reasons16 for permanently abolishing capital punishment and resorting to a lengthy prison sentence, ranging from the danger of punishing the innocent to the cost of the entire procedure outweighing the cost of a life sentence. To quote Jeffrey A. Fagan, Professor of Law at Colombia Law School:

As states across the country adopt reforms to reduce the pandemic of errors in capital punishment, we wonder whether such necessary and admirable efforts to avoid error and the horror of the execution of the innocent won’t—after many hundreds of millions of dollars of trying—burden the country with a death penalty that will be ineffective, unreasonably expensive, and politically corrosive to the broader search for justice.

There is one very special reason why Sri Lanka should think twice about this measure. Sri Lanka is the Asian poster child for a country operating a genuinely restorative system of justice, supposedly drawing inspiration from the compassionate philosophy of Gautama Buddha17. It is a true sign of our sociocultural progress, in comparison with our neighbors. It is disappointing to see our President succumb to the knee-jerk reaction of the mob (or worse, “believe in” CP), rather than stand upright and explain to people the hard truth that we cannot win the war against crimes of passion and deviance through attrition.

Our President, in his speech, attempted to drop originality of thinking and hide behind the fact that the USA and China leverage capital punishment. Let us quote that preeminent American moral philosopher Sam Harris on this matter:

Especially in the United States, is a barbaric system of imprisonment—to say nothing of capital punishment—that should make all citizens ashamed”.

Did our President take the sensible step of consulting a bona fide Sri Lankan criminologist or sociologist on the matter, or at least have his staff perform a literature survey and advise him, prior to making his announcement? Dr. L.B. L. De Alwis, ex-Chief JMO, had published an excellent analysis of the Lankan situation18 in The Sri Lanka Journal of Forensic Medicine, Dec-2011, where he strikes at the core of the problem, along with a superb background analysis. Let us quote.

In my opinion it is not the Non-implementation of the death penalty that has contributed to the rise of grave crime, especially murder, in Sri Lanka, but the release of murderers, rapists, drug barons, extortionists, highway robbers etc. sentenced to death or to long term rigorous imprisonment by the Judiciary, but later released by the executive in the shortest possible time for petty political advantage”.

Yasantha Kodagoda and other Lankan legal luminaries have held similar views19 over the years.

To conclude, it’s simply awful when a terrible crime happens, like when a child is raped and killed (the crime that fuelled the President’s declaration). Our hearts go out to the victim’s kin.

The state owes four things to society in such cases:

  1. A swift and accurate dispensing of justice, where the perpetrators are correctly identified, tried fairly and sentenced
  2. The next of kin of the victims are provided with appropriate counseling and support, to the utmost possible degree
  3. The lessons learned from the incident (if any) are shared for the broader education of the general public
  4. Firmly discourage lawlessness and mob-justice, which would interfere with the official criminal investigation

The third point is important and not to be underestimated in its value. Education, awareness and vigilance are the real weapons against such “personal” crimes. Subtle profiling of violent or deviant persons, cautioning parents and children about how to stay safe in ungated, low-income neighborhoods where dangers lurk (as appears to have been the case in the particular crime that fuelled the President’s decleration20), enforcing better policing etc. are all steps to be facilitated by the state.

What the state does not owe society is a reactionary, “quick fix”, which would prejudice or pervert the broader course of justice in our country, and create an unhealthy punitive culture amongst our children. We leave the reader with this quote.

I have never heard a murderer say they thought about the death penalty as consequence of their actions prior to committing their crimes.

-Gregory Ruff, police lieutenant in Kansas

  1. Mill on Capital Punishment

http://ethics.sandiego.edu/books/Mill/Punishment/

 

  1. Capital Punishment: Deterrent Effects & Capital Costs

https://www.law.columbia.edu/law_school/communications/reports/summer06/capitalpunish

 

  1. 88% of criminologists do not believe the death penalty is an effective deterrent

http://www.deathpenaltyinfo.org/study-88-criminologists-do-not-believe-death-penalty-effective-deterrent

 

  1. The Death Penalty and Deterrence

http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts/the-death-penalty-and-deterrence

 

  1. The death penalty is ineffective and indefensible

http://www.usnews.com/opinion/articles/2014/09/29/the-death-penalty-is-ineffective-and-indefensible

 

  1. Failure to Deter Crime

http://nccadp.org/issues/deterrence/

 

  1. Buddhism on Capital Punishment

http://www.bbc.co.uk/religion/religions/buddhism/buddhistethics/capitalpunishment.shtml

 

  1. Sam Harris on capital punishment

“The result, especially in the United States, is a barbaric system of imprisonment—to say nothing of capital punishment—that should make all citizens ashamed”.

http://www.samharris.org/blog/item/reflections-on-free-will

 

  1. Psychopathic criminals have empathy switch

http://www.bbc.com/news/science-environment-23431793

 

  1. Do Mirror Neurons Give Us Empathy?

http://greatergood.berkeley.edu/article/item/do_mirror_neurons_give_empathy

 

  1. How Empathy Can Be a Luxury

http://bengraves.hubpages.com/hub/Psychopaths-and-Mirror-Neurons-How-Empathy-can-be-Absent

 

  1. Brutalizing society

http://www.bbc.co.uk/ethics/capitalpunishment/against_1.shtml

 

  1. GCC declares war on domestic violence

http://www.arabnews.com/featured/news/657236

 

  1. Restorative Justice

https://en.wikipedia.org/wiki/Restorative_justice

 

  1. The case of Karla Faye Tucker

https://en.wikipedia.org/wiki/Karla_Faye_Tucker

 

  1. 13 Reasons to Oppose the Death Penalty

http://www.oadp.org/facts/13-reasons

 

  1. Buddhism and capital punishment

http://www.bbc.co.uk/religion/religions/buddhism/buddhistethics/capitalpunishment.shtml

 

  1. DEATH PENALTY versus LIFE IMPRISONMENT

http://www.pdn.ac.lk/med/departments/forensic/Vol2No2.pdf

 

  1. Death penalty not the answer, expediting dispensation of justice is

http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=69674

 

  1. Seya’s murder suspect arrives at Negombo hospital

http://www.hirunews.lk/117215/kotadeniyawa-murderer-confesses

 

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