Today marks World Day Against the Death Penalty. In this entry, I wanted to sketch out a few of my own musings and observations surrounding capital punishment.
Fifty-five years ago, the Murder (Abolition of Death Penalty) Act 1965 was passed. This effectively froze capital punishment in England and Wales until it became permanent in 1969 – save for a few de jure (never used and later abolished) exceptions. Even before that, murder was the only civilian crime which carried a mandatory death sentence by as early as 1900. [1]
Instead, murder now carries a mandatory life sentence. Despite this, the average time spent in prison for murder is just 16.5 years.[2] In its place, a system of parole exists – the defence of this being ‘life means life – but not always life in prison’.[3] If prisoners breach the terms of their licence, they will be sent back to prison. Those who commit murder on parole will never be released[4] – between January 2007 and May 2015 twelve people were murdered by those on parole.[5] In England and Wales, around 5300 prisoners are currently serving a sentence for murder – just 63 are on Whole Life orders.[6] Unless incredibly serious, an apparent ‘two-strike’ system exists to obtain a ‘true’ life sentence. In my view, this seems meagre compared to the gravity of the historic penalty of death.
Basic arguments for and against
There are many arguments for and against the death penalty. I have briefly addressed the main one below.
Derived from the principles of retributive justice, the main argument in favour of capital punishment posits that an offender should be punished in a manner which is proportional. This has Biblical origins in Exodus – giving the famous ‘eye for an eye’ sentiment. Or simply, in the words of Gilbert & Sullivan, to ‘let the punishment fit the crime’. [7]
On the contrary, the argument countering this is neatly summarised by Gandhi’s epithet that – that “an eye for an eye will leave the whole world blind”, this suggests that retribution does not fix the world’s ills. Proponents of this argument posit the death penalty does not serve as a deterrent – highlighting countries where it has been abolished have actually seen a decline in murder rates. It is Gandhi’s central point that State-sanctioned violence often creates a vicious circle.[8] Or, as said at the US Catholic Conference, “we cannot teach that killing is wrong by killing”.
Beyond all reasonable doubt?
However, my gripe with the death penalty is less to do with the ethical debate, rather the limitations of proof.
Around the world, miscarriages of justice are not uncommon. In 1953, the wrongful execution of Derek Bentley provided a frightening illustration of this in Britain. Bentley, just nineteen-years-old and possessing mental developmental problems, was found guilty of murder after saying the ambiguously worded ‘Let him have it’ – meaning either: shoot the police officer or hand him the gun. Bentley’s case is regarded as one of the most infamous examples of ‘Joint Enterprise’ in English law – which remains in place to this day. As one of the last four men to be sentenced to death in Britain, his wrongful execution contributed to the abolishment of the death penalty in the UK. [9]
In the United States, where the death penalty remains in place, since 1973 some 130 people sentenced to death have later been found innocent.[10] And, according to research by Professor Samuel Gross, some 4% of inmates on death row are likely innocent[11] – another frightening prospect.
For me, the mere possibility of any miscarriage of justice is a mandate for ‘beyond all reasonable doubt’ being too low of a standard of proof given the inherent irreversibility of execution. Those wrongfully imprisoned can claim compensation; an execution cannot be undone. As Amnesty International summarises, “as long as human justice remains fallible, the risk of executing the innocent can never be eliminated”.[12]
However, suppose justice could be infallible – could raising the standard of proof then justify the death penalty? Doing so would undoubtedly mean many would escape conviction – 81% of Britons already believe that 100% certainty is needed to eliminate reasonable doubt.[13] Equally, Blackstone’s formulation, a staple of English common law, posits “it is better that ten guilty persons escape than that one innocent suffer”.[14] Perhaps the question at criminal trials of ‘can it be proven they did it?’ rather than ‘did they do it?’ [15] has the wrong focus. If reimplemented, could a quasi ‘appeal’ process where the facts are held to a higher degree scrutiny – requiring ‘absolute’ proof such as CCTV be feasible?
Moving forward
Conjecture aside, the death penalty remains abolished and is unlikely to be restored since this would require the UK to opt-out of the European Convention on Human Rights, as per 13th Protocol ECHR 2004. This is unlikely to occur as, since 2015, David Cameron’s Proposed ‘British Bill of Rights’ seems to have fallen by the wayside.
Be that as it may, it is my opinion that if there is to be no death penalty – a life sentence should indeed mean life. Thankfully, Last September, Boris Johnson announced new legislation which would, inter alia, make this so for killers of pre-school children.[16] This September, the Lord Chancellor’s speech announced this as a White Paper[17] – ‘A Smarter Approach to Sentencing’ – promising Whole Life Orders as the starting point for sentencing. However, David Fraser, a former senior probation officer and criminal intelligence analyst with the National Crime Agency,[18] says this is a “step in the right direction” but is “paradoxical”. Fraser argues “if it is now thought right to imprison convicted child-killers for all of their lives…why is it not right to sentence violent criminals who kill older children and or adults in the same way? What is the difference?” [19]
I will sign off this blog with the words of Arthur Conan Doyle, that “it is every man’s business to see justice done”.[20] Whatever your views on the death penalty or life sentences, I encourage everyone to take a view – it could be you wrongfully accused one day.
References
[1] https://www.nationalarchives.gov.uk/cabinetpapers/themes/death-penalty.htm#The%20Gowers%20Commission
[2] https://fullfact.org/crime/how-long-do-murderers-serve-prison/#:~:text=People%20who%20are%20found%20guilty,t%20mean%20life%20in%20prison.
[3] https://fullfact.org/crime/how-long-do-murderers-serve-prison/#:~:text=Life%20means%20life%20%E2%80%93%20but%20not%20always%20life%20in%20prison&text=But%20apart%20from%20the%20most,t%20mean%20life%20in%20prison.&text=If%20the%20circumstances%20are%20serious,cannot%20be%20considered%20for%20parole.
[4] https://fullfact.org/crime/how-long-do-murderers-serve-prison/#:~:text=People%20who%20are%20found%20guilty,t%20mean%20life%20in%20prison.
[5] https://fullfact.org/crime/how-long-do-murderers-serve-prison/#:~:text=Life%20means%20life%20%E2%80%93%20but%20not%20always%20life%20in%20prison&text=But%20apart%20from%20the%20most,t%20mean%20life%20in%20prison.&text=If%20the%20circumstances%20are%20serious,cannot%20be%20considered%20for%20parole.
[6] https://fullfact.org/crime/how-long-do-murderers-serve-prison/#:~:text=People%20who%20are%20found%20guilty,t%20mean%20life%20in%20prison.
[7] The Mikado, Gilbert and Sullivan
[8] https://www.bobdesautels.com/blog/2019/3/27/an-eye-for-an-eye-makes-the-whole-world-blind-nbspnbspnbspnbspnbspnbsp-mahatma-gandhi-nbsp#:~:text=3%20BlogsContact-,An%20eye%20for%20an%20eye,whole%20world%20blind.%E2%80%9D%20Mahatma%20Gandhi
[9] https://www.thejusticegap.com/a-victim-of-british-injustice-derek-bentley-remembered/
[10] https://www.amnestyusa.org/pdfs/DeathPenaltyFactsMay2012.pdf
[11] https://www.theguardian.com/world/2014/apr/28/death-penalty-study-4-percent-defendants-innocent
[12] https://www.amnestyusa.org/pdfs/dp_qa.pdf
[13] https://yougov.co.uk/topics/legal/articles-reports/2019/10/02/how-large-can-reasonable-doubt-be
[14] “Commentaries on the laws of England”. J.B. Lippincott Co., Philadelphia, 1893.
[15] Channel 4’s ‘The Trial’ Available: https://www.channel4.com/programmes/the-trial-a-murder-in-the-family
[16] https://www.telegraph.co.uk/politics/2019/09/14/life-will-mean-life-child-killersboris-johnson-plans-tougher/
[17] https://www.gov.uk/government/speeches/lord-chancellors-speech-white-paper-launch-a-smarter-approach-to-sentencing
[18] https://www.conservativewoman.co.uk/author/davidfrasser/
[19] https://www.conservativewoman.co.uk/life-should-mean-life-for-all-killers/
[20] Sir Arthur Conan Doyle, ‘The Memoirs of Sherlock Holmes’