It Could Be Said #47 Requiem
Will explains why he believes in the Death Penalty
The conviction of nurse Lucy Letby for murdering seven babies has understandably shocked British society, raising questions about the NHS’s safeguarding and whistleblowing procedures. A public inquiry was immediately called by the Government, and one has to imagine significant changes will flow from the manifold failures in regulation and management that enabled these crimes.
There is however seemingly little discussion about what will happen to Letby herself. Much like when Wayne Couzens was convicted of abusing his position as a police officer to rape and murder Sarah Everard in 2021, there is curiously little interest in discussing whether the inevitable whole-life sentence is the appropriate punishment. Such acquiescence with how the criminal justice treats the worst offenders is testament to a genuine and unacknowledged shift to the liberal left in the British public’s attitudes; the weakening in support for the death penalty. Whilst Britain’s last execution took place in 1964, the death penalty long retained a strong hold on the British public’s imagination as measured by the annual British Social Attitudes Survey.
Ahead of the last formal parliamentary vote on whether to reinstate the death penalty, around 70% of the British public still supported the execution as an appropriate penalty in some circumstances. As late as 2008, support for the death penalty was still around 60% and only in 2014 did it fall below 50%. Since then it has continued to fall, hitting 43% in 2020.
Whilst support for the death penalty presumably still retains plurality support (annoyingly the British Social Attitudes Survey Report stops giving the result prominence after 2014), its weakened position amongst the public is reflected in its lack of prominent advocates. Back in 1994, 159 MPs voted for restoring the death penalty for all murderers that year, with an additional 27 MPs supporting the death penalty for murdering a police officer. Yet neither Couzens nor Letby provoked any surge in interest amongst politicians in executing the worst murderers, let alone all of them.
That’s to some extent welcome, after all hard cases make bad law. But it should not obscure the fact that some criminals really deserve to be killed by the state.
Killing Can Be A Moral Act
The simplest argument against the death penalty is that its morally wrong to kill someone; “Thou Shalt Not Kill” as the commandment is sometimes translated into. The problem is that nearly nobody believes this. Most people, including myself, would say that individuals have the right to kill in legitimate self-defence if there’s no alternative, or likewise to defend someone else. Some people, not including myself, would say that individuals should have the right to kill a love one if they request help with ending their lives. Likewise many people undertake activities everyday, including most commonly driving a car, that carry a heightened risk of accidentally killing someone. Indeed the more accurate translation of the commandment as “Thou Shalt Not Murder” recognises this more nuanced state of affairs.
Whilst we can and should argue whether specific examples of the state killing people are correct, few genuinely believe that no such killings should ever take place. We empower the state with tremendous power to terminate life including allowing our armed forces, security services, and police to take the lives of people who wish to do harm to our society or our allies. Such killings are done without due process, and often without meaningful warning. Unless your a thoroughgoing pacifist, its incoherent to say that the state shouldn’t extend its lethal powers to executing the worst criminals after they’ve been tried by a jury of their peers and had the chance to appeal because it should never kill people.
An associated argument is that the death penalty opens up an unacceptable risk of killing innocent people by mistake due to the wrong people being convicted. Such miscarriages of justice played an outsized role in the undermining even reactionary politicians confidence in the practicality of the state killing criminals. It’s undoubtedly true that a reintroduction of the death penalty would need its supporters to prove that they had strenghtened safeguards against miscarriages of justice. But it’s disingenious to say that the death penalty cannot be used if there remains the remotest possibility of the wrong person being killed; that’s a burden of proof we do not apply to any other justifable use of lethal force.
More broadly, miscarriages of justice are still extremely serious in non-capital cases, and the imperative of making the administration of the death penalty as fair as possible should act as further incentive to ensure the court system is as beyond reproach as possible i.e. clear accountablity towards the police to ensure all evidence is shared with the defence, strong technical regulations about admissable evidence including expert witnesses used, and greater limitations on when majority verdicts can be used. You could also add a backstop in capital cases, with all sentences of death triggering a formal review by special prosecutors who review all evidence to see if there’s any grounds to doubt the original verdict and so launch a new trial.
As a socialist I would also argue that moves against the death penalty are part the broader thrust since the 1960s to reduce the authority of the state in ways that have fundamentally made it more difficult for public services to protect and support us all. There is no contradiction between wanting a strong state and believing in socialism, quite the opposite actually.
Sentencing Is Society’s Judgement On Criminals
Arguments over the death penalty often get bogged down in fairly tedious arguments over whether it acts a deterrent. Personally, I would argue that simple logic would say that a realistic chance of being killed by the state would deter criminals from the worst crimes, but that the likelihood of being caught by police and being convicted by juries are both more important than whatever the final sentence will be. After all, you could threaten to have someone hung, drawn, and quartered but if they don’t think the police can catch them or believe that juries could be tricked or bullied into acquitting them, then the extreme sentence is nothing but a hollow threat.
But sentencing also plays a role in conveying what society thinks about certain crimes. The crimes that society particularly abhors get harsher penalties, and the crimes that society thinks are less important or somewhat excusable, get lighter ones. Away from the death penalty this is often made most eloquently by figures on the left when they complain that certain criminals get off lightly because they’re being indulged by a rotten establishment; be it men who rape women or crooks who swindle people out of fortunes through white collar crime. The force that harsh sentences give to society’s moral condemnation of the worst crimes is valuable above and beyond any deterrence they provide; it is an expression of our shared morality.
For most crimes that involves debating how many years people should be kept in prison but there are crimes where just another custodial sentence does not fully express society’s view. Empowering the state to deliberately kill somebody is an extreme act, but that’s the point. As a society we should have the ability to fully express our horror and revulsion at the worst crimes.
Whole Life Sentences Are Cruel and Unusual Punishment
The legal phrase ‘cruel and unusual punishment’ is something the Americans picked up from English Common Law. It was traditionally a way of describing torture and codifying the absolute ban of the practice within England. Briefly their Supreme Court pretended that it banned the death penalty despite centuries of death penalty coexishiting with the ban on cruel and unusual punishments. Such bending of history and law was quickly reversed - even 1970s American judicial liberalism had its limits.
But the reality is that the most commonly used alternative to the death penalty; explicit or effective whole life sentences are the real cruel and unusual punishment because it replaces swiftly dispensed justice with a mental torture that spans decades. Both the death penalty and whole life sentences express society’s belief that a criminal has done something so terrible that they can never be allowed to live amongst law abiding citizens ever again, but only the former has the honesty and humanity to recognise that being beyond redemption is incompatible with human dignity.
We all make mistakes, but if we are to ever feel we cannot move past those mistakes, that raises our very existence into question. It is why so often suicide is linked to overwhelming shame or pain, things that the individual feels there can be no possible escape from whilst alive. To live a life without the possibility of redemption is to be trapped in the worst moments of your life, forever and ever, until death.
For the courts to inflict this on someone, potentially for decades, is cruel. What good does it do anyone to have a criminal, no matter how heinous their crimes, wallow in prison with no future or purpose other than shuffle around a confined space until they die. It doesn’t just prolong their damnation, but it dragoons whatever remaining loved ones they have into the same purgatory, going through the motions of visiting them and consoling them in the face of a hopeless situation.
Sentences without the prospect of release also contradict how prison is a lasting solution to crime. Prison must be a forum to rehabilitate prisoners, to give them the space to reflect on what they did, the support to realise it was wrong, and the structure to rebuild themselves into a law-abiding citizen. The quicker and more thoroughly they do this, the sooner they will be released. This is how prison tries to redeem people. It doesn’t work for everyone, and it currently doesn’t work for enough people due to the poor conditions in our prisons, but that’s the theory. Any prison sentence that excludes the possibility of the prisoner ever being released is unusual because it contradicts the ideal that prison is geared towards rehabilitating prisoners so that they can be freed without hurting society.
There is something fearsome about empowering the state to literally strike people down for the crimes they have done. But better a state capable of coldly administering such righteous fury to the wicked than one that sadistically plays with or callously forgets about those it has judged beyond redemption.