Saturday, November 28, 2009

Unalienable Rights


More on the death penalty:

I would not have sentenced Hitler to death. He should have been incarcerated in Spandau with Hess, although I might have been tempted to make the guards Jewish, gypsy and gay (none of whom would have been happy about serving with the others - sigh).

I believe the death penalty is morally wrong. That isn't a religious issue, although I note the Talmud's support (in its majority view) with gratitude. By the way - that is how it can be a progressive and Orthodox position.

It is morally wrong because we do not - apart from a few idiots - believe that an eye for an eye should be taken literally. Because just as we become contaminated when we occupy territories, we become contaminated when we behave like murderers. Because we add to death the cruelty of naming a day and ritualising the event. Because we invite people to witness that private moment when a person departs the world. Because we replace compassion at that ultimate moment with vengeance, satisfaction and dispassion.

That some - by no means all - of these things are also stances adopted by the criminal are irrelevant. If this is not vengeance then what does that matter? And if we kill to take revenge then how can we expect to limit such behaviour to the death penalty for murderers? Do you believe that it is helpful to teach a society's young people that some wrongs do justify revenge? I don't.

War is entirely different. War is justifiable only when a country decides that it needs to survive by defending itself or by acting aggressively in defence. Such a recognition removes from the equation a consideration of an individual opponent's position. That enemy soldier - taken as an individual - almost certainly does not deserve to die. But that is not the justification for killing him. The justification is that there are times when an individual's fate is not the consideration.

Now that - paradoxically - is Dud's justification. And in advancing capital punishment as a necessary step in the war against anything that he does not believe in, he (inadvertently) raises an important point. That is that a war must be justified. If it cannot be justified then it is no more than indiscriminate killing with a convenient excuse. That is exactly what Dud advocates and that is why his views are repugnant.

The liberal left go wrong in two areas. Firstly, they say that each death in a war must be justified. That is not so. War is indiscriminate by its nature and the need to protect the country/society means that mistakes - if made - must be tolerated. Not glorified and not immune from being eliminated in future operations, but tolerated. Secondly, the liberal left insists that there must be an objective justification. By that they mean - of course - that they must agree with the decision. That is not so. The test can only be whether the decision to go to war was reasonable, rather than whether it was correct. That test acknowledges that some questions may have more than one right answer.

The answer to your question about risking the innocent is that all these decisions carry risks. For every chance that the incarcerated criminal will communicate with others, there is a chance that the dead criminal will attract bizarre and dangerous followers who glorify him because he is dead. Possibly the most dangerous neo-Nazi group in Europe is Combat 18 (=AH, the 1st and 8th letters of the alphabet). They have at least 15 deaths to their credit in the last 2 years and they glorify a dead man.

Moreover, if it wrong to kill then the risk that leaving the person alive will cause danger must be demonstrated. It rarely is. If someone is locked up it is rare indeed that they can cause such trouble. The Mafia provide a good example. When imprisoned they lose command. So too with Palestinian prisoners in Israel. Israel may ultimately have to release Barghouti, precisely because he cannot command a following in prison. And he is regarded as a political prisoner, thus having some moral clout from being locked up. Your average criminal does not even engage that issue. The point is a poor one and a red-herring. It is accordingly beloved of Dud.

Finally, this is not about the civil rights of murderers. It is about us. Just as the argument about the occupation in the West Bank is not about the Palestinians. We are the people who are at risk from the creation of a violent society in which murder is authenticated and the only difference between a Governor and a criminal is the nature of their authority. Like it or not, the USA - which permits guns and puts people to death - is the most violent democratic society there is. I believe that those things are connected. That is why an airtight case (as against Hitler) is irrelevant.

Which is not to say that the USA insists on airtight cases. It is a dreadful blot on your country that too many defenders in capital cases are short on experience and ability. I have assisted one convicted murderer in the USA. I would not have permitted his original attorney to defend a shoplifter. The Court took the view that this was irrelevant. I can only assume that they had not put themselves in my client's position.

However I don't want to let this pass without dealing with civil rights. We do not, as a rule, say that the way a person behaves determines whether they have basic rights or not. Rather,
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The key word is 'unalienable'. Accordingly, the way in which we deal with the most difficult cases is the test of how a society measures up to its expectations. Murderers are the most difficult cases. It is not for us to alienate their rights. Instead, via incarceration and punishment we attenuate them. The two things are very different. Quite apart from anything else, only one (death) is permanent and cannot be undone if we are shown to be wrong. I would have thought that to be the most moral argument of all.

Periodically the UK discusses bringing back the death penalty. I have concluded that, were it to do so, I would resign my judicial appointment. A legal system must deal with a society's difficult cases in a human way, which acknowledges that some of the things we most want to do are bad for us, and which permits of the ability to recover from an error. Capital punishment offends against both principles.

PS. I chose the image with considerable care, selecting one without a dead man in the frame. If it upsets you then please reflect on why you might contemplate supporting the act being photographed.

Search for more information about killing people in the name of justice and fairness at

No comments: