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Reflections on a capital trial: we cannot justify capital punishment

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About The Author

Josh Dowdall (Writer)

Josh is a final year law student at Durham University. His primary interests lie in private law, public law and EU Constitutional law. Outside of academics, Josh is involved in a number of pro bono projects, and is passionate about diversity within the legal profession.

In August 2015, I spent four weeks working for the Office of the Federal Public Defender in the Central District of California. I had the unique opportunity to work on the defence of a case in which the United States Attorney General was seeking the death penalty. In this article I am going to reflect on that experience and argue firmly against use of the death penalty to punish crimes. I will draw a comparative analysis of capital punishment in the UK and the US, and use this to inform my discussion of why the death penalty is both doctrinally and practically flawed.

Capital Punishment in the United Kingdom

The British state and its constituent forerunners have executed criminals since early political sovereignty crystallised into primordial systems of law. The Romans, Vikings, and Anglo Saxons kingdoms all used the death penalty to punish crimes. Incidence of capital punishment continued to increase after the Norman Conquest for both civilian and military crimes. Early Norman monarchs used capital punishment as a means of crushing dissent within the conquered population. As the number of death sentences handed down increased, the number of different crimes punishable by death also increased. Capital crimes were in no way limited to homicide. The Black Act 1723 created over 50 capital offences within the property family of offence, for example. By the beginning of the 19th century, over 220 crimes were punishable by death.

Using death as a punishment in European countries has historically found its doctrinal roots in Matthew 5:38: ‘You have heard that it was said, “Eye for Eye, and Tooth for Tooth”. Similar verses in the Quran and the Torah have provided the historical basis for capital punishment in the Middle East. Abrahamic religions support a retributivist conception of punishment because the offence warrants punishment, the severity of which is directly dependent upon the offence committed. Saudi Arabian criminal law still adheres to this conception of punishment, called qisas. The Saudi state has sentenced criminals to surgical paralysis for violent assault leading to paralysis. The Iranian state, which also practices qisas, has sentenced a defendant to  blinding by acid for violent assault leading to blindness. These examples illustrate the breadth of cruel and unusual punishments this logic can produce.

Enlightenment thinking challenged this conception of criminal justice and punishment in English law, with writers such as Locke and Kant arguing that the State’s right to punish stems from a social contract as opposed to religious scripture. Although Kant was categorical that a murderer must be punished by death, he argued that murder was the only crime befitting capital punishment. Kant’s emphasis on the dignity of the individual provided the philosophical foundations underpinning moves to reduce the number of crimes punishable by death. The Judgment of Death Act 1823 reduced the number of capital crimes by two thirds, and empowered judges to commute the death sentence to life imprisonment for all but two crimes – murder and treason.

Over the next 140 years the number of executions declined in the UK. In 1964 Gwynne Evans and Peter Allen were hanged for the murder of John West. They were the last criminals executed by the British state. Execution for murder was effectively ended by the Murder (Abolition of Death Penalty) Act 1965. Four other capital crimes remained punishable by death – treason, arson in a royal dockyard, violent piracy, and espionage – until the Crime and Disorder Act 1998 formally abolished the death penalty in British law. The reintroduction of the death penalty in the UK is prohibited by Protocol Number 13 to the European Convention on Human Rights, which, recognising the dignity of human life, aims to strengthen protection of the right to life in Europe.

Capital Punishment in the United States

Given the force of Enlightenment thinking and the strength of human rights protection in the US vis-à-vis the UK, it is surprising that the US retains capital punishment. In fact, the US belongs to an elite club – along with China, Iran, Saudi Arabia and Iraq – as one of the five countries with the highest number of people executed in the period 2007 – 2012.

Capital punishment exists for crimes at both the state and federal level. It was briefly suspended from 1972 – 1976 as a result of the decision in Furman v Georgia. The US Supreme Court held, 5-4, that capital punishment violated the eighth amendment – protection against cruel and unusual punishment. However, the majority failed to give a unanimous verdict. Justices White, Douglas and Stewart found that the death penalty as applied was unconstitutional because of the arbitrary way in which it was imposed. Justices Marshall and Brennan argued that the death penalty of itself was cruel and unusual, and, therefore, unconstitutional. The states and the federal government responded to Furman by enacting new death penalty statutes mandating a two-stage trial. The first stage invites the jury to consider the defendant’s guilt. If, and only if, the defendant is convicted at the first stage will the jury then consider, at its discretion, whether or not to apply the death penalty. The constitutionality of this set of procedures, aimed at preventing the imposition of the death penalty in an arbitrary and capricious manner, was affirmed four years later in Gregg v Georgia. The Court held that, by limiting the circumstances in which the jury can apply the death penalty, the procedure focuses the jury’s mind on aggravating and mitigating factors so as to inform its decision on whether death is an appropriate punishment for the individual defendant.

Post-Gregg v Georgia statistics showed that the number of executions per year rapidly increased in the US, peaking in 1999 at 98. In 2014 it was 35. Although this may indicate a negative trajectory, it is concerning that in the last month Arkansas has announced it will resume executions. Is this really the signal that the US wants to be sending out in the 21st century?

Can the death penalty be justified?

I will now consider whether the death penalty can ever be justified in light of the above comparative analysis.

Many people I spoke to in California said they supported the death penalty because it acts as a deterrent. Deterrence is one of the main aims of just and successful punishment, and is often cited in support of capital punishment. However, statistics do not support this claim. Texas, which is consistently the US state with the highest number of executions per year , had a murder rate of 4.3 per 100,000 people in 2013. Connecticut, which abolished the death penalty in 2011, had a murder rate of 2.4 in the same period; Iowa just 1.4. Maryland and Michigan, by contrast, have murder rates of 6.4 per 100,000. From this data, it is impossible to make reliable conclusions on the effect of the death penalty on murder in the USA. The same can be said for the UK. Although the number of homicides has increased since the death penalty was abolished, the population has also drastically increased. Even if a correlation could be divined, we must throw caution to the wind before imputing a causal link. There is nothing to say that the death penalty has a greater deterrent effect than life without the possibility of parole, recently affirmed as compatible with Article two by the Court of Appeal in R v McLoughlin; R v Newell. Thus, deterrent is scant justification for continuing the death penalty. 

What is unique about the death penalty, as opposed to life imprisonment without parole, is its finality. There have been numerous accounts of wrongful executions in both the UK and the US. In 1953 Derek Bentley was executed by the British state for murder. In 1993, the Queen granted Bentley a pardon in respect of the death penalty carried out upon him. Then, in 1998, the Court of Appeal decided the conviction was flawed and a miscarriage of justice had occurred. Similarly, in 2004 Cameron Willingham was executed by Texas for murdering three children by arson. Just 10 months after his execution an investigator reviewed the evidence and concluded that there was nothing to suggest the fire was an arson fire. Unlike imprisonment, wrongful execution cannot be remedied. If we agree with Blackstone that the criminal justice system must be premised upon the assumption that ‘it is better that ten guilty persons escape than one innocent suffer’ – ie, that it is better for the guilty to go unpunished than to punish the innocent – then the possibility of irredeemable wrongful punishment is deeply problematic for supporting the death penalty in practice.  

Suppose, however, that the practical flaws of capital punishment could be eradicated by procedural reform of the criminal process. Does this mean that we should support the death penalty? I believe that we should reject the death penalty on a more fundamental, principled level. The most familiar argument used to justify capital punishment in principle simply restates ‘an eye for an eye’: the punishment should fit the crime. On first reading this may appear agreeable to many. But this schoolboy logic is less than convincing, and certainly cannot be used to justify giving the state the coercive power to kill its citizens. There is a normative difference between saying ‘the punishment should fit the crime’ and the suggestion that death should be imposed for murder because the convicted has taken the life of another. Some examples may illustrate this point. It is commonly accepted that the state would not be justified in appointing a public official to rape a convicted rapist. Nor would it be justifiable to allow the State to appoint a public official to violently assault as a punishment for the same crime. Supporters of the death penalty may try and argue it is unique as a punishment and should only be applied in cases of murder. But consider the same logic applied to a mercy killer: under English law, a defendant who gives a terminally ill victim a dose of medication that they know will kill them must be convicted of murder. Should the State kill that defendant? I think few people would answer that in the affirmative. We cannot structure the criminal justice system on presupposition that the state should inflict the same harm on the defendant as the defendant has inflicted on the victim: to do so would brutalise the state. How can the state, acting through the paradigm of criminal law, say that killing is wrong by killing the defendant? And, if supporters mean to say that the punishment must be proportionate then they must explain first why life imprisonment is a disproportionate punishment for the crime, so as to justify death. 

Those in favour of the death penalty may, at this point, return to the social contract to argue that the citizen must accept that death is the punishment for breaking the covenant not to kill and that consequently there is an essential difference between murder and the state punishing murder by death. But does it follow that justice has been achieved? I believe this argument demonstrates that the death penalty can be conceptualised as the state taking retribution for the breach of social contract. Notwithstanding that retribution itself is a morally problematic concept, it must be accepted retribution means that people get only what they deserve. If we agree that the state should be able to seek retribution for murder by death, then it follows that the doctrinal foundation for the death penalty crumbles away when we consider the incidence of wrongful executions in both American and British legal history. For, how can we say that a wrongfully executed defendant has got only what he or she deserved? And, even if the defendant is rightfully executed, it may be argued that a 10-year wait on death row inflicts a cruel and unusual punishment in addition to death itself. Thus, the defendant has got more than what he or she deserved in retribution.

But the death penalty is not applied in every case of murder, which poses a more fundamental problem for the argument that it can be justified as retribution. The prosecution has discretion when seeking the death penalty, in as much as the jury has discretion when deciding whether or not to impose it. Thus, it is logically impossible to justify the death penalty on the grounds that it is retribution. But if the death penalty is discretionary, there is the possibility that it may not be imposed in like cases. Consider this scenario: a jury in a demographically conservative area sentences convicted murderer one to death; a jury in a demographically liberal area spares convicted murderer two the death penalty, despite being convicted on exactly the same set of facts as murderer one. It is conceivable this can and does happen in all types of jury trial, but the implications are of greater importance considering the finality of the death penalty. Thus, we must conclude that the death penalty, as applied in the US following Gregg v Georgia, is arbitrary in practice. But equally unfair would be to suggest that we should apply the death penalty in all cases of murder (consider the mercy killer). The paradox at the heart of the death penalty, which is so problematic in my opinion, was summarised by Justice Blackmum in Collins v Collins: ‘Experience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death can never be achieved without compromising an equally essential component of fundamental fairness – individualized sentencing.’

As a student of English law, observing a capital trial was a strange and somewhat uncomfortable experience. It felt barbaric that the American state may have been given the power to kill the defendant at the end of the process. For the reasons outlined above, my time spent assisting the defence of a capital murder trial has reaffirmed my belief that the death penalty can never be justified – either in practice or in principle.  

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Tagged: Criminal Law, Human Rights, International Law, Justice

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