IN PART 1 of this article yesterday, I set out the evidence that the death penalty is a material deterrent for crimes of murder. That deals with one of the main objections against it – that it doesn’t work – but three other arguments against it must also be addressed, for to take anyone’s life in whatever circumstances is not something to be done lightly or without good reason.
Firstly, is the punishment proportionate to the crime? One is often confronted with pictures of death row inmates looking forlorn, and it can be difficult to imagine why anyone with an ounce of decency or mercy would think it right to kill them. If you think like that I would urge you to read this summary of the murders committed by those whose executions President Biden chose last month to commute, if you have the stomach for it. Then consider Ian Brady and Myra Hindley. I could do a whole article listing the human scum who deserve to die for their crimes. But could you pull the lever that released the trap door that dropped these monsters to their fate with the rope around their necks? Yes. Next question.
Perhaps you might have religious objections. Laura Perrins does a good job of setting out a moral justification for capital punishment. Squeamish, handwringing Christians should remember that theirs is a religion with a day of judgment, with those found wanting cast into a darkness that is far worse than the hangman’s rope. ‘Judge not lest ye be judged’ doesn’t mean that one cannot judge, rather that one has to accept that whatever standard one applies to others will be applied to you.
You may believe that not all murderers deserve to be executed, and I agree. Even in the supposed bad old days before we were all enlightened metropolitan liberals, the standard for capital punishment was murder in cold blood ‘with malice aforethought’. Murder in self-defence was excluded from this definition as were crimes of passion and those committed by children and the insane. The definition of crimes of passion has been expanded. In 1955 Ruth Ellis was hanged for the murder of her lover, a crime she committed three months after he had punched her in the stomach, quite likely causing her to miscarry. There was some public and much government concern about her sentence, although Ellis never sought clemency and she was hanged according to the law applying at the time. The Homicide Act of 1957 introduced the concept of diminished responsibility and provocation, which could have been used as legal defence by Ellis’s lawyers. Supporters of capital punishment have to distinguish between capital and non-capital murder and, by all means, let’s give the benefit of the doubt to the killer when making this distinction.
Thirdly, there is probably the most difficult challenge, which is that of the risk of innocent people being executed. The first thing to be said is that this risk is small and has diminished over time. In 1952, 19 year old Derek Bentley was convicted and hanged as a conspirator to murder, though the shot which killed a policeman was fired by his 16-year-old accomplice Christopher Craig, who was considered in law to be a child and thus too young to be hanged (Craig served ten years in prison). Even the jury who convicted Bentley asked for clemency. In the 1970s, there were several cases (the Birmingham Six being the most prominent) of confessions being extracted by force or made up to convict suspects of IRA bombings in Britain.
The cases above rested on the credibility of evidence from police officers and prison wardens. Our less deferential society would not convict on that basis now. The Police and Criminal Evidence Act 1984 provides that a disputed confession cannot be used in evidence against an accused person unless the prosecution proves beyond reasonable doubt that it was not obtained by oppression or in any circumstances that rendered unreliable, a test re-enforced by The Evidence Act 2011.
The wrongful execution of Timothy Evans in 1950 is a case often cited by abolitionists, but the problem with these cases is they are, in criminology terms, ancient history. Official dishonesty and incompetence in such cases has been scrutinised and changes in law and police practice made. DNA evidence became available in the late 1980s, identifying wrongful convictions that had been missed but also confirming other murder convictions (it removed any doubt as to the guilt of James Hanratty despite long and vociferous campaigns that he was innocent). The existence or lack of such evidence provides greater assurance that any verdict is correct.
The number of wrongful convictions that would lead to hanging has probably been very low in this millennium. The Criminal Cases Review Commission (CCRC), set up in 1997, has pursued potentially incorrect convictions with a zealotry not seen before. Its website shows its last 14 annual reports, each of which contains a list of cases it has referred back to the courts and their outcome. Ignoring convictions before 2000 (which often reflect poor policing and evidence collection practices that no longer exist) and those of minors (such as Sam Hallam) whom no one thinks should be liable for capital punishment, the CCRC’s reports identify 25 people whose murder convictions have been overturned. There are another five cases listed that are outstanding or where I couldn’t find the outcome of an appeal, so let’s include them and bring that total to 30, or just over two a year.
That means capital punishment is likely to result in a couple of innocent people each year being wrongly hanged, assuming executions took place in all these cases before the criminal justice system identified and corrected its error. There’s no escaping that the death penalty means some people will be wrongfully executed. But, as I demonstrated yesterday, it’s likely that capital punishment would prevent about 200 people a year – who are as innocent as those incorrectly facing the gallows – from being murdered. We cannot know the names of those 200 people or see their faces, so their deaths will not attract the emotional appeal of mis-convicted felons put to death, but those opposing the death penalty have to face up this grisly consequence of the position they hold. Civilians die in war, labelled ‘collateral damage’ to make this harsh fact less unpalatable but unless one is a pacifist, one justifies a war knowing that someone innocent people will die as there is a moral good that must be pursued. Thomas Sowell’s maxim that there are no solutions but only trade-offs is cruelly true in such instances.
Capital punishment is a grim business. But those who would deny it because of squeamishness have no right to assume any moral superiority. There are consequences for not doing something just as there are for doing it.
