You don’t have to be an opponent of capital punishment to see how terribly wrong this is:
Billy Slagle … was sentenced to death for a crime he committed at 18, when there was no option for LWPOR [Life Without The Possibility of Release]. The chief prosecutor for Ohio, Ted McGinty, recommended to the parole board that he shouldn’t be executed, which is pretty extraordinary. In yet another surprising twist, given that parole boards and Governors usually do whatever prosecutors tell them to, both the board and the Governor’s office rejected his plea for clemency and continued on with the death sentence. Three days before his scheduled execution, early Sunday morning, Slagle said “enough” and hung himself. 44 years old, having spent the last 26 years in jail, he took his own way out.
That’s bad enough as it is, but then there is this:
County prosecutors had offered Slagle a plea deal at his original trial 26 years ago. If he pleaded guilty, he would serve 30 years and be eligible for parole. However, Slagle’s attorneys at the time did not inform him of the deal; instead, he received the death penalty. … Billy Slagle died without ever knowing that he was offered a plea deal of 30 years. Billy Slagle died without ever knowing that there was a good chance that he’d have to hang on for just another four, or ten. (source)
Even if you believe in capital punishment – which you shouldn’t – there’s no way you can call the actual application of this punishment in the U.S. a system of justice: there’s no justice when your race or the quality of your defense team decide whether or not you live.
More posts in this series are here.
If you’re a political leader, a church leader or anyone else with the ability and willingness to change some people’s behavior and promote respect for human rights – to some extent that includes all of us – what should be your policy priorities? On which human rights violations should you focus? Ideally, you would like to be told something more specific than “reduce suffering and violence and enhance liberty and equality”. So here’s my attempt at something specific.
I’ll list a few domains that require urgent action. Not all of these domains are equally amenable to action, because there may be strong resistance in some quarters. Nevertheless, I consider all these domains to be equally important. I’ll list them first (and include links to older posts arguing why action is important) and afterwards distinguish between those domains where immediate progress is realistic and where it’s not. Of course, it’s not because progress isn’t realistic that we should remain passive.
- Promote free trade. Standard arguments for protectionism sound a lot like the Count complaining that there are beggars at the door. Protectionism may even harm citizens of the protecting country. It certainly harms producers in poorer countries. More here.
- Abolish capital punishment and reduce incarceration rates. Capital punishment doesn’t deliver on its promises, and even if it did it wouldn’t be acceptable. “Tough on crime” policies go beyond what is required for public safety and the rights of victims.
- One way to reduce incarceration rates is to end the war on drugs. Ending the war on drugs will also reduce racial discrimination because it leads to strong imbalances in incarceration rates by race, impoverishing and even destroying many black families.
- Abolish existing laws and practices that lead to discrimination of all types. Some laws, however, may be necessary to combat discrimination.
- Guarantee social safety nets through a fair and efficient system of benefits and progressive taxation - perhaps including a basic income guarantee - but also encourage private charity. Design the taxation system in such a way that it reduces income inequality.
- Help the poor by way of Conditional Cash Transfers.
- Rethink development aid. More here and here.
- Combat malnourishment and hunger and improve the water supply. More here and here.
- Reduce immigration restrictions. The supposed negative consequences of increased immigration are largely fictitious, and the benefits for migrants are huge. Also relax asylum rules for refugees.
- Improve education and healthcare.
- Enhance the scope of humanitarian intervention in order to avoid Rwanda style atrocities.
- Promote democracy, the rule of law, the separation of powers, federalism, and the separation of church and state, and improve those institutions where they already exist. Human rights are typically safer in democracies and obviously require the rule of law.
- Declare victory in the war on terror, but continue the capture terrorist and subject them to fair criminal trials. Abandon torture, targeted killings if alternatives are available, and extrajudicial incarceration, and limit invasions of privacy to those strictly necessary to capture terrorists.
- Abolish freedom-restricting laws such as those prohibiting assisted suicide and euthanasia. Relax abortion laws where necessary.
- Guarantee the freedom of the internet.
Now, which of these actions are realistic in the short term, and which are not? The latter part of the list, namely actions 9 to 15, seems to be the most difficult. Substantial progress is already under way for 1, 2, 4 (take the case of same-sex marriage and the repeal of DADT), 6, 7 and 8. Also, 3 may be heading in the right direction. 5 depends to some extent on the general economic climate.
It’s obviously a long list of often very difficult policies, even when we limit ourselves to those areas where progress is relatively easy. Also, in some countries, progress may be easier in some areas than in others. That’s why this list is still too general and different actors may have to choose a subset.
More on progress in the field of human rights here.
Sri Lanka hasn’t hanged a man in 35 years. Although suspended in 1977 (the last execution took place the previous year), capital punishment remains in the statute books. There are currently 369 convicts on death row while a further 471 have appealed their sentences.
With nothing happening at the two gallows, the prisons department wasn’t rushed to find replacements when one hangman retired and another was promoted, a year ago. But a wave of serious crime, including the rape and murder of a seven-year-old girl, has reopened the debate on capital punishment. …
This … hasn’t yet translated into Mahinda Rajapaksa, the president, actually authorising an execution. The law requires him to sign the death warrant. Nevertheless, prison officials, not wanting to be caught out, hurried to advertise for hangmen. As P.W. Koddipili, the commissioner general of prisons, explained, they had to be ready. …
Ironically, neither of the two previous executioners hanged anybody during their tenure. Training the new recruits, therefore, poses a challenge. (source)
No surprise therefore that several of the shortlisted hopefuls asked an unexpected question of the board of interviewers: what exactly would they be expected to do?
Child advocates, former prosecutors, mental health professionals, former jury members, and the victim’s widow are asking for clemency for a survivor of child sexual abuse who killed his abuser and is scheduled to be executed October 3. Terrance “Terry” Williams was raised by a physically violent mother and was first raped at the age of 6, before being raped repeatedly by his school teacher. As a teenager, he was sexually abused by two adult men, one of whom used his position as a church leader to prey on teenagers and boys. Three months after turning 18, Terry killed one of his abusers, the day after he had raped him.
But the jury had no idea about this abuse. Terry was too ashamed to bring it up. The prosecution, which knew about the abuse, didn’t share it with the defense lawyer, who was so incompetent he met with his client for the first time the day before the trial started. Terry’s co-defendant didn’t testify about the abuse because, as he now states in a sworn affidavit, the police and prosecution pressured him not to because they wanted to present the murder as a robbery.
Since the abuse has been revealed, jurors have come forward to say they would not have opted for a death sentence. Pennsylvania is the only state in the country that does not require the judge to instruct the jury that a life sentence means life without the possibility of parole, and jurors have also said they would not have voted for the death penalty if they had known that parole was not a possibility.
The death penalty in itself is barbaric, but it’s especially disturbing when there are mitigating circumstances. And sadly, Pennsylvania is a huge death penalty state. It has executed more than 400 people since the death penalty was reinstated, and has the fourth largest death row in the country. A bipartisan Senate task force in Pennsylvania is reviewing the state’s death penalty. Let’s hope they recommend a moratorium or, even better, abolition.
My dismissal of capital punishment on moral grounds shouldn’t be understood as implying that this type of punishment is the worst possible one or that I’m ready to accept any other sentence in order to avoid executions. Life imprisonment without parole (LIWOP), for example, is often advanced as a good alternative to capital punishment and a means to convince people to drop their demand for that sentence. That makes LIWOP seem almost benign, which it isn’t. It’s particularly cruel, for reasons I discuss below.
That is why I tend not to argue as follows: capital punishment is bad because there is a less cruel punishment available – LIWOP – that does much of the things capital punishment is supposed to be doing (incapacitation, deterrence etc.). I argue instead that there are other reasons, beside overreach, not to use capital punishment. However, this post is not about those reasons, but rather about the reasons why we should also not use LIWOP.
Of course, “death is different” and capital punishment is particularly cruel. But LIWOP is also cruel, albeit mostly for other reasons. In one respect, it’s cruelty is similar to that of capital punishment. It’s irrevocable. The absence of parole means that “life” really is “life”. Of course, there’s often the possibility of clemency or appeal. But given the general “tough on crime” mentality among politicians and prosecutors, clemency for LIWOP cases is very unlikely, as are possible extensions of the right to appeal.
We also see, in the U.S. for instance, that clemency is more likely to be granted in capital cases than in cases of LIWOP since LIWOP is supposed to be ”so much less cruel” (although also in capital cases the frequency of clemency is going down, most likely for the same “tough on crime” reason). Also, appeal procedures are much more developed in capital cases than in LIWOP cases. And when there is a successful appeal in a LIWOP case – for example because of new evidence of errors in the handling of the case - then these new elements are much less likely to be considered important enough to review the sentence, again because LIWOP is so much less “cruel”. Some people even argue that it is better to get a death sentence in the U.S. than LIWOP, because the appeals possibilities and clemency success rates are much higher. Especially innocent defendants have a much higher chance of getting their names cleared and escaping their sentence when they are convicted to die. Talking about irony.
Why does irrevocability make LIWOP particularly cruel? Some people say that LIWOP is a death sentence without an execution date. That in itself, however, may not make LIWOP cruel – you could say that all human beings are under a death sentence without an execution date, by the simple fact of human mortality. Still, LIWOP is a sentence to die in prison. It removes any prospect of change, rehabilitation or redemption. Whatever the prisoner does during his sentence, nothing is going to make any difference. Society tells these people that whatever they do, however much they try to redeem themselves, society’s not going to care. It’s not a sentence without an execution date, it’s an execution without a date: we basically tell these people that their lives are over. And we show this by withholding recreational and educational opportunities. Those resources, we say, are limited and better spent on prisoners who will get out some day. So that makes redemption not only useless but also impossible. It’s a self-fulfilling prophecy: we believe that they are irredeemable, and hence we treat them in such a way that they become irredeemable. If you don’t think that’s cruel, check your moral compass.
Opponents of capital punishment such as myself have to issue a mea culpa here. Our opposition has undoubtedly forced many more people into LIWOP. The number of LIWOP cases in the U.S. has risen dramatically, while the number of executions has fallen. One in every 35 prisoners in the U.S. is currently serving LIWOP (that’s about 41,000 people). This is the perverse and counterproductive result of well-intentioned activism. (See here for more counterproductive human rights policies). And it’s likely to become even more perverse: LIWOP cases, which tend to become more numerous as an alternative to capital punishment, don’t offer the same resources in terms of legal representation as capital cases, because people think there is less at stake, even when that’s clearly not true. Hence, a higher risk of miscarriages of justice, which are then harder to put right because of the lower probability of clemency and the less developed appeals procedures that also result from the idea that less is at stake.
So, what’s the solution? Well, obviously life with the possibility of parole. An argument in favor of LIWOP when compared to LIWP is that LIWOP is necessary for reasons of incapacitation. That is indeed a worthy goal of criminal punishment – if not the only goal -and some people do indeed deserve to be incapacitated for a very long time, perhaps even permanently. However, LIWP can also produce permanent incapacitation – by withholding parole when necessary – and can do it better because it can limit it to those prisoners for whom it can be shown, on an ongoing basis, that they are still dangerous. LIWOP means taking a decision about dangerousness once and for all, and then forgetting about the prisoner. The problem is that you can’t, at the moment of sentencing, make the decision that someone is going to be dangerous for the rest of his or her life. We simply don’t have the knowledge for such decisions. Psychology and psychiatry are not advanced enough yet, and will probably never be. Dangerousness has to be monitored continuously. People do change, except of course when the prison regime is such that they don’t get the opportunity or when the sentence is such that they don’t get the incentive.
And existing problems with parole (incompetent or lenient parole boards) are not a sufficient reason to favor LIWOP over LIWP. They are a reason to do something about those problems.
- Supreme Court Sides With Kids Sentenced to Life in Prison (criminaljustice.change.org)
The Saudis executed several Iranians (not in the image above) for drug possession and trafficking, and Iran is not at all happy. Never mind that it has the worst record in the world for executing drug offenders, both Iranian and foreigner.
On June 12 the Islamic Republic News Agency (IRNA), Iran’s official media outlet, reported that Foreign Ministry officials in Tehran had summoned a Saudi diplomat to protest the reported execution of several Iranians for drug possession and trafficking. An Iranian official denounced the executions as “anti-humanitarian” and in conflict with Saudi Arabia’s “human rights standards” and the “principles of Islam,” IRNA reported. (source)
More detailed numbers about executions are here, but in short: Iran executed more than 600 people in 2011, second only to China, and China is obviously much more populous. On a per capita basis, Iran rules the world, and certainly beats Saudi Arabia. Iran, like Saudi Arabia and a number of other countries, is also very happy to provide the death penalty for crimes that are obviously less serious than homicide, such as drug dealing. Even “crimes” such as alcoholism and homosexuality are capital crimes in Iran. So the thinking Iranian would be squeamish when criticizing the sins of others and would certainly avoid the language of human rights when doing so. Or he would not.
More ironic human rights violations here.
Suppose Hitler didn’t kill himself and was captured alive by the Russians in Berlin, or by Israeli commandos in South America. What would we be morally allowed to do to him if we had managed to capture him? Does a person like him have human rights that we have to respect? Of course. Whatever dehumanizing name you wish to call him, he was a human being like the rest of us, and we have to deal with that fact. Every human being has rights and those rights are not conditional upon good behavior. No one has less or more rights than the next person. It’s not because someone has committed horrible crimes that we are allowed to take away his or her rights.
Hitler’s rights include a right to life. This right is quasi-absolute and can only be limited if that’s the only way to save other lives. So for instance, we are allowed to shoot him on the spot if he resists arrest and threatens to kill us or others (such as hostages). But suppose Hitler is captured alive and is no longer a threat to the lives of others. Shooting him is then not allowed because that would be an extrajudicial execution.
Are we allowed to execute him after a proper trial? Maybe a living Hitler who’s kept in prison would still be able to encourage his followers to continue their murderous rampage and maybe that’s a sound argument for executing rather than imprisoning him. But I think that’s a far-fetched scenario. Only in the unlikely case that there is a real risk of an imprisoned Hitler ordering murder and that executing him is the only means to remove a threat to the lives of others, would his execution be allowed. This is equivalent to the case in which Hitler is holding hostages. However, even in this case, going after Hitler’s followers would be more effective.
So capital punishment is not an option. Remember also that other justifications of capital punishment aren’t available: we are not allowed to deter future criminals by killing present criminals, not even if it works, since that would be an instrumentalization of a human being. Going down that road ultimately leads to the devaluation of all human life. Life imprisonment without parole then? Not an option either because even Hitler can be rehabilitated. The problem with rehabilitation is that you never know who can do it until they do it. You can’t say in advance that some people are beyond rehabilitation.
Some form of criminal punishment is obviously warranted since Hitler acted with intent, knew the consequences of his actions, caused the consequences of his actions, wasn’t forced to act, was aware of alternative courses of action, violated existing law and was found guilty of such violations after a fair trial (ex hypothesi). Given the unavailability of capital punishment and life without parole, some fixed term prison sentence seems to be the only remaining option. And I know that’s a huge anticlimax for most of us.
But what do we want to achieve with that sentence? Retribution? Even if retribution is a justified end of punishment – which it isn’t since we should in general try to be better than criminals - a fixed term sentence is hardly retribution for Hitler: on any account, this is less than what he deserves. And more than this is ruled out (see above). Not only aren’t we morally allowed to execute him, but even executing him doesn’t seem enough. If anything, he deserves to be executed millions of times over, which we obviously can’t do even if we were morally allowed to do it.
Perhaps we want to achieve incapacitation. That’s reasonable enough in this case. You can hardly allow Hitler to walk the streets. But again, this is truly anti-climactic. It leaves us with our anger and sadness. But I guess there’s no way to leave our anger and sadness behind in this case. The morale of this story is that the same is true in many other, less extreme cases as well. We tend to be too ambitious when punishing criminals.
A public decapitation in China on a postcard, with a heartless comment:
The precise historical context of the scene is unclear to me, but it appears to be during or before WWII, and the executioners are probably Japanese soldiers.
Texas justice has rarely been kind to homosexuals. Take, for example, the case of Calvin Burdine, who was sentenced to death in 1984 for the murder of his male companion. Burdine’s court-appointed lawyer, when not dozing, referred to his client as a “fairy.” The prosecutor, meanwhile, demanded the death penalty by arguing that gays actually look forward to the rewards of prison life. “Sending a homosexual to the penitentiary,” he claimed, “certainly isn’t a very bad punishment for a homosexual.” Astonishingly, a federal appeals panel first upheld the verdict on the grounds that nothing in the law guarantees a defendant the right to a fully conscious attorney. Burdine eventually won a new trial, at which he was again convicted, but this time sentenced to life in prison — a veritable candy store, it was said, for a “pervert” like him. (source, source)
More in the annals of heartlessness.
February 29th, a short poem
On this day that shouldn’t have been
I was reminded of all the things that shouldn’t have happened,
although they happen on every other day as well.
We can use this gift of time, this day nobody counted on,
for something else than 0.27 percent extra divident,
and make a new quadrennial holiday:
the “Day of Shouldn’t” to mourn all the “shouldn’t have beens”.
Employers won’t mind: year-on-year profit growth will not be affected.
Here’s an example:
Arizona death row inmate Robert Henry Moormann, 63, is scheduled to be executed on Leap Day for beating, stabbing and strangling his adoptive mother and dismembering her body during a “compassionate furlough” from prison to visit her in 1984. (source)
Ok, Massachusetts does not have the death penalty, so Romney in his time as Governor never faced that ultimate decision. But he was generally not very generous with other types of pardon, and he did file a bill to reinstate the death penalty in Massachusetts (which was ultimately defeated). Hence, few doubt his resolve were he to be confronted with pleas for clemency coming from people on death row.
Witchcraft is a capital offense in Saudi Arabia. Recently, another person was executed:
the Saudi Interior Ministry announced on Monday that it had beheaded a woman named Amina bint Abdul Halim bin Salem Nasser for practicing “witchcraft and sorcery.” The London-based al-Hayat newspaper, citing the chief of the religious police who arrested the woman after a report from a female investigator, claims Nasser was tricking people into paying $800 per session to have their illnesses cured. (source)
How do prosecutors prove that someone is in fact a witch?
[T]he bar for proving someone guilty isn’t very high. Witch hunting is fairly institutionalized in Saudi Arabia, with the country’s religious police running an Anti-Witchcraft Unit and a sorcery hotline to combat practices like astrology and fortune telling that are considered un-Islamic.
But institutionalized is not the same thing as codified. A top official in the kingdom’s Ministry of Justice told Human Rights Watch in 2008 that there is no legal definition for witchcraft (Saudi Arabia doesn’t have a penal code) or specific body of evidence that has probative value in witchcraft trials.
Instead, judges have wide latitude in interpreting Sharia law and sentencing suspected criminals. And Amnesty International claims these judges use witchcraft charges to arbitrarily ”punish people, generally after unfair trials, for exercising their right to freedom of speech or religion.” A Human Rights Watch researcher tells The Media Line that foreigners in particular are often the targets of sorcery accusations because of their traditional practices or, occasionally, because Saudi men facing charges of sexual harassment by domestic workers want to discredit their accusers.
The evidence arrayed against witchcraft suspects typically revolves around statements from accusers and suspicious personal belongings that suggest the supernatural, in a country where superstition is still widespread. (source)
Saudi authorities beheaded an Egyptian pharmacist who had been accused by neighbors of casting spells to separate a man from his wife and placing Korans in mosque bathrooms. “He confessed to adultery with a woman and desecrating the Koran by placing it in the bathroom,” the Saudi Press Agency reported, adding that books on black magic, a candle with an incantation “to summon devils,” and “foul-smelling herbs” had been found in the pharmacist’s home. (source)
Here’s an alternative verification procedure:
Take for instance capital punishment. Human rights defenders normally reject it. And indeed, if you use your head and look at the data, and if you refine your moral compass, you can’t possibly reach any other conclusion. And yet, most of us, even the most ardent rights defenders, know cases in which they would like to see people die – perhaps even administer the lethal drug themselves. Emotions are hard to reason with. We swallow the logic of human rights, the data and the moral precepts, and yet in doing so they leave a bad taste in our mouths.
There are other cases. Take child labor. We know that it’s detrimental to a child’s education and hence her future prosperity, intellectual development and flourishing. It’s probably also harmful to her health. And yet, we accept it in certain cases because the alternative is even worse. In some place, there may be no education provision worthy of the name, and forcing a child away from work may aggravate the poverty of her family without doing much for the child’s education. Acquiescing in a child’s rights violations is better for her rights than doing nothing.
The same is true with sweatshop labor or the exploitation of poor migrants:
In Lant Pritchett’s view, countries like the UAE, Saudi Arabia and Kuwait – which employ armies of guest workers, house them in labour camps, forbid them from organising unions, often deny them equal protection under the law and pay them the wages of an underclass – are actually doing more to redress the inequities of the world than western nations that maintain high labour standards but keep migrants out. (source)
In all these cases we’re faced with awful situations, but the alternatives are even worse; or, better, the realistic alternatives. If we could eliminate poverty overnight, open our borders, provide decent education and labor standards to all, and inject a conscience in all employers, we wouldn’t need to swallow dirt and leave a bad taste. But we can’t, not now at least.
Another example is the veil. We should allow Muslim women to dress modestly because we want to respect freedom of religion and because we don’t want to treat those women as lesser human beings who don’t have the agency to stand up against patriarchy and who need to be liberated by us enlightened folk. And yet, at the same time we know that we may be endorsing and promoting a symbol of oppression and thereby oppression itself. We also know that there are women who are forced to hide themselves, but we don’t know which. And finally, we know that dressing modestly renders some activities difficult, and that women as a result may not be able to fully develop themselves. And yet we swallow, because the alternative – forcing all veiled women to uncover – would be worse.
Campaigners [in Pakistan] yesterday demanded the release of a schoolboy who was arrested and imprisoned for writing alleged blasphemous remarks about the Prophet Muhammad on an exam paper. Under the country’s draconian laws, he could face the death penalty. … It is unclear what Mr Samiullah may have written. When the police were asked about his alleged offence, they declined to elaborate, suggesting that it would blasphemous to repeat the words written. (source)
On the “home front”, 2010 was a good year. In our third year of blogging (we started this blog in April 2008), we had more than 1,8 million pageviews (up from 1 million in 2009 and 193.000 in 2008). That’s an average of 5000 a day. The most popular posts in 2010 were:
- The Anti-Democrat’s Paradox
- Human Rights Quote (68): Aids Disaster
- Invasion of Privacy, A Collection of Images (must have had something to do with the new airport security measures)
- Human Rights Facts (5b): Poverty, Types, Causes and Measurement, and
- Statistics on Capital Punishment
We also, finally, finished tinkering with the blog’s layout, something which may lower frustration levels here and there. (If there’s still something bothering you, about the layout or anything else, tell us). Perhaps you’ve also noticed the little “satisfaction survey” we have at the bottom of each page (maybe you’ve even voted, in which case, thanks). We’ll keep it there, since there’s a steady stream of new readers who may also want to express their satisfaction/dissatisfaction/opinions. The current state of opinion regarding this blog is as follows:
Pretty positive, I would say. Of course, we should add all of those who believe the blog is so bad that it’s really not worth scrolling all the way down in order to vote. Personally, I blame the relatively high number of votes for “this blog sucks” not on the general suckiness of the blog but on juvenile excitement about finding some bloggers who actually allow you to say that they suck. But I may be wrong. The “other” category yielded answers such as: “biased”, “informative”, “fucking sucks” (sic), “offensive”, “much appreciated”, “too long”, “useful”, “well written but incorrect” etc.
Also good in 2010 was the publication of my latest book.
However, looking at the world beyond this blog, it’s pretty hard to say whether or not it’s been a good year. If we limit ourselves to the topic we’re dealing with here, it’s a disgrace that we still can’t say if respect for human rights has increased or not compared to 2009. We’ll keep asking for progress in human rights measurement.
Looking at individual human rights, the record is mixed. There has been progress in the fight against capital punishment, poverty, government secrecy and discrimination, for instance. But in other areas, things have probably gotten worse: immigration, torture, privacy, hunger, criminal justice etc. You do your own math. And while I know it’s useless to make other people’s new year’s resolutions for them, I would suggest that there’s probably some inspiration to be found in human rights.
Scores of alleged witch doctors, fortunetellers, and black magicians each year are dragged through the Saudi courts, including Fawza Falih, who’s been on death row since 2006 for witchcraft. Her accusers include a man who claims the 51-year-old, illiterate Falih is the reason for his impotence. (source)
“The fact that Saudi judges still conduct trials for unprovable crimes like witchcraft underscores their inability to carry out objective criminal investigations,” said Joe Stork, the Middle East director at Human Rights Watch. … Falih had “retracted her confession in court, claiming it was extracted under duress, and that as an illiterate woman she did not understand the document she was forced to fingerprint”. “At one point, she had to be hospitalised as a result of beatings at the hands of the religious police, called the ‘mutaween’ in the ultra-conservative Sunni Muslim kingdom. … In November, Egyptian pharmacist Mustapha Ibrahim, who worked in the northern city of Arar, was beheaded by the sword for “sorcery” under Saudi Arabia’s strict Islamic laws for allegedly trying to separate a married couple. (source)
More on capital punishment in Saudi Arabia here.
(Thanks to Eva Declercq for unwittingly suggesting this topic).
The politics of the body, or “body politics”, is a concept, originally used by early feminists I believe, to describe government policies or laws and cultural or social practices used by society to regulate and control the human body. Feminists focus on the female body but the case can be made that society controls both the female and the male body, obviously not always in the same way. The concept is also used to describe the opposite: the struggle against the social and political powers that try to control the body and the act of reclaiming bodily self-control, or corporal self-determination. Body politics has therefore a positive and a negative meaning: it’s both subordination and emancipation.
Corporal self-determination is obviously an important value. People should, in general, be able to do with their body what they want, free from interference by the state, by individuals or by groups in society.
Here are some examples of body politics:
Whether or not you believe that abortion should be allowed, you have to accept that legal prohibition and moral dissuasion of abortion are examples of body politics. In both cases, women who want an abortion lose their power to decide autonomously what to do with their bodies; society imposes rules on what individuals are allowed to do with their bodies; and power – legal or moral – is used to enforce these rules. You may believe that these rules are necessary in order to protect an overriding value that trumps the value of self-determination, in this case probably the value of the life of the unborn infant, or perhaps even the right to self-determination of the unborn infant. But you can’t dispute that you engage in body politics.
Similarly, legislation or social taboos prohibiting the free trade of organs (see also here) impose restrictions on the things people can do with their bodies. However, the analogy with abortion isn’t perfect, because proponents of restrictions can arguably claim that the sale of organs isn’t an expression of self-determination but of the lack of it: it’s typically poor people who are driven to the extreme of organ sale as a means to stay alive, while the richer you are the easier it is to get an abortion. Organ sale is then not an expression of the freedom to do with your body what you like, without paternalistic interference, but an expression of necessity and lack of freedom. Whatever the merits of this argument, restrictions on organ trade are clearly an example of body politics.
Capital punishment, corporal punishment, imprisonment
The state uses power in order to enforce or enact criminal punishment, and this is often power directed against the body of the convicted criminal and eliminating the criminal’s corporal self-determination (see here and here). There’s also the quasi-institutional practice of prison rape.
Sex trafficking and slavery, sexual violence, arranged marriages
Cultural norms regarding the acceptability of sexual violence (e.g. rape as a form of punishment, or female genital mutilation), of arranged marriages (which can be labeled a form of sexual violence), of the sale of children or wives for the purpose of prostitution are also examples of body politics. The women and children in question obviously lose their corporal self-determination.
Gender discrimination, the inferior treatment of women, and the imposition of gender roles, whether legally sanctioned or not, are other examples, although with a twist. Gender discrimination can remove the power of corporal self-determination of the women who fall victim to it – e.g. in the case of gender discrimination as expressed in sexual violence or in rules restricting the freedom of movement of women. But it doesn’t have to. For example, gender discrimination in wages (the wage gap) doesn’t affect corporal self-determination.
The body politics inherent in gender discrimination is more evident in the origins of discrimination than in the results. Gender roles, which often result in gender discrimination, are based on certain convictions regarding the physical inferiority of women (e.g. their lack of physical strength), or on the belief that the female body is made for specific tasks, and is perhaps even better than the male body for these tasks.
Likewise, rules that discriminate against women and restrict the things they can do, are generally based on dubious theories regarding the nature of the female body. Women are said to promote carnal lust, and their equal participation in life would have disrupting and destructive consequences.
Similarly, legislation or social taboos against homosexual relationships remove corporal self-determination and are based on certain beliefs about the nature of the human body.
Clearly, this isn’t a complete list of all possible cases of body politics, but it can serve the purpose of illustration (other examples could include rules prohibiting interracial marriage, bestiality taboos, legislation against assisted suicide etc.). What is also clear is that every case isn’t equally detrimental for self-determination. Some cases can even be justifiable from a liberal perspective. Self-determination, after all, isn’t the only value, and neither is it a value that necessarily trumps other values.
Perhaps it’s useful to put these examples of body politics in a drawing:
Currently, 2.6 million ex-cons are barred from voting because of US felony disenfranchisement laws. This is on top of the 3.2 million disenfranchised still in prison.
A slightly different version:
(source, click on the image to enlarge)
And yet another version:
Taking away someone’s human rights can only be done for a good reason, for example if this is necessary in order to protect other people’s rights. So we can imprison people and take away their freedom of movement if there is no other way to protect the security and property of other people. However, I always failed to understand the benefits of taking away prisoners’ right to vote. And completely incomprehensible is the permanent disenfranchisement after a felony conviction. The reason can’t be because they’re not worthy to vote. I can think of many other people who could be considered not worthy to vote. If we go down that road, we might as well abolish democracy altogether and hand over power to the intellectual and virtuous elite, if such a thing exists.
Perhaps the reason has something to do with crime prevention. The argument could be that if we allow criminals to shape the legislative system we’ll end up with a system that favors crime. However, Patrick Appel has some evidence that indicates that disenfranchisement is actually a counterproductive crime control measure:
According to a 2004 study, former prisoners who vote are half as likely to reoffend. If suffrage constitutes even a small nudge toward the straight and narrow, why shouldn’t we grant prisoners the right to vote? As things now stand, criminal-voting laws vary widely by state: in some, a first-time drug offender will be denied the right to vote for life; in others, murderers can vote while behind bars. But overall, America’s position on voting rights, particularly with regard to former criminals, is the most punitive of any developed nation. … Crime costs this country an estimated $1.4 trillion annually. Unless disenfranchisement helps reduce that number — and the evidence suggests that it does the opposite — then denying prisoners the vote in order to minutely heighten the virtue of the voting pool is a bad trade.
A better argument in favor of disenfranchisement is that convicted felons don’t deserve to help shape the society they live in, because by their actions they have proven to reject that society. Hence society has the right to reject them, even after they have paid for their crimes. Disenfranchisement is then a kind of “pure punishment”, a punishment that is imposed for its own sake, merely because people deserve it and not because of some possible positive consequences it might produce (like capital punishment in the minds of those proponents who have – rightly – given up on the deterrent argument). However, one can argue that rejecting people from society – and that’s what you do when you take away their voting rights – is a rather risky course of action. Rejected people are dangerous people. If a criminal gets the message that society doesn’t care about him anymore, why would he care about society and about what he does to it?
There’s an interesting article on the same subject here. The result of these restrictions is that over 5 million Americans are prohibited from participating in the democratic process. Because African Americans are disproportionately likely to be in prison, they are particularly affected: 7.7% of the total African-American population is denied the vote.
Some more data to support the claims expressed in this post, and this one. There’s a paper here presenting the results of a survey among leading criminologists regarding their opinion on the deterrent effect of capital punishment in the U.S.
The findings demonstrate an overwhelming consensus among these criminologists that the empirical research conducted on the deterrence question strongly supports the conclusion that the death penalty does not add deterrent effects to those already achieved by long imprisonment.
Here’s one result of the study:
Of course, it’s not because experts believe something that this corresponds to the truth, but at least it’s ammunition that can be used against those proponents of the death penalty who like to claim that there is a ”scientific consensus” in favor of the deterrent effect. There is no such thing. On the contrary, if there’s a consensus, it’s for the opposing view.
Another point: this kind of statistic on expert opinion, together with the data offered in the posts I linked to above, is much more convincing than the data comparing murder rates in capital punishment states and abolitionist states:
At first sight, this graph also undermines the deterrent argument, but it’s not as solid as it appears. It’s always important to control your data for other variables which can explain a difference. Maybe there are other reasons why states without the death penalty have lower murder rates, e.g. less poverty, more gun control etc. And maybe the murder rate in states with capital punishment would be even higher without capital punishment. No way to tell on the sole basis of this graph.
China executes more people than any other country – 1,700 in 2008. (This is an estimate because the exact numbers of people executed in China is classified as a state secret). In terms of the number of executions per capita, however, there are other countries which are more bloodthirsty, notably Iran (also here) and Saudi Arabia. (See here for statistics on the absolute and relative numbers of executions by country).
Apart from the numbers of people executed in China, there are some other problems:
- Capital punishment in China is also common in the sense that it’s a punishment for many different crimes, not just violent ones: corruption, tax evasion, embezzlement, drug trafficking… Most of these crimes are punishable by death in no other judicial system in the world.
- Another problem is the speed at which the sentences are carried out, leaving little room for appeals or the examination of possible miscarriages of justice.
- The methods of execution are also archaic. Usually it’s a bullet in the head. Lethal injections have been introduced recently and are carried out in so-called “execution vans” driving around the country administering their morbid services. For those still killed by fire arms, the practice of collecting a “bullet fee” from the family of the deceased has fortunately been abandoned.
- A lingering problem, however, is organ harvesting.
- Other problems include:
- No immediate access to a lawyer.
- Seriously inadequate legal representation.
- Torture used to extort confessions, and confessions extracted under torture used as evidence in court.
- Obviously fabricated evidence used in court. (source)
Some good news, perhaps:
The Chinese government says it will show more leniency to those given death sentences… In a series of interviews, the vice president of the Supreme People’s Court said that China was not ready to abolish capital punishment but that the penalty should be reserved for a small number of serious crimes, particularly those that threaten social stability… Although he did not spell out exactly how the judiciary would reduce executions, Mr. Zhang suggested that the number of eligible crimes would be scaled back through legislation and that lower courts would be encouraged to mete out a sentence known as “death penalty with reprieve”. (source)
Indeed, while the number of executions is still high, it’s down from what it was a few decades ago when in some years more than 15,000 people were executed.
From Michel Foucault‘s “Discipline and Punish: The Birth of the Prison“, a description of the execution of Robert-François Damiens (1715-1757), a Frenchman convicted for attempting to assassinate Louis XV of France in 1757. He was the last person to be executed in France with the traditional and gruesome form of death penalty used for regicides, which was drawing and quartering.
On 1 March 1757 Damiens the regicide was condemned “to make the amende honorable before the main door of the Church of Paris”, where he was to be “taken and conveyed in a cart, wearing nothing but a shirt, holding a torch of burning wax weighing two pounds”; then, “in the said cart, to the Place de Grève, where, on a scaffold that will be erected there, the flesh will be torn from his breasts, arms, thighs and claves with red-hot pincers, his right hand, holding the knife with which he committed the said parricide, burnt with sulphur, and, on those places where the flesh will be torn away, poured molten lead, boiling oil, burning resin, wax and sulphur melted together and then his body drawn and quartered by four horses and his limbs and body consumed by fire, reduced to ashes and his ashes thrown to the winds”.
“Finally, he was quartered,” recounts the Gazette d’Amsterdam of 1 April 1757. “This last operation was very long, because the horses used were not accustomed to drawing; consequently, instead of four, six were needed; and when that did not suffice, they were forced, in order to cut off the wretch’s thighs, to sever the sinews and hack at the joints…
“It is said that, though he was always a great swearer, no blashemy escaped his lips; but the excessive pain made him utter horrible cries, and he often repeated: ‘My God, have pity on me! Jesus, help me!’ The spectators were all edified by the solicitude of the parish priest of St Paul’s who despite his great age did not spare himself in offering consolation to the patient.”
Bouton, an officer of the watch, left us his account: “The sulphur was lit, but the flame was so poor that only the top skin of the hand was burnt, and that only slightly. Then the executioner, his sleeves rolled up, took the steel pincers, which had been especially made for the occasion, and which were about a foot and a half long, and pulled first at the calf of the right leg, then at the thigh, and from there at the two fleshy parts of the right arm; then at the breasts. Though a strong, sturdy fellow, this executioner found it so difficult to tear away the pieces of flesh that he set about the same spot two or three times, twisting the pincers as he did so, and what he took away formed at each part a wound about the size of a six-pound crown piece.
“After these tearings with the pincers, Damiens, who cried out profusely, though without swearing, raised his head and looked at himself; the same executioner dipped an iron spoon in the pot containing the boiling potion, which he poured liberally over each wound. Then the ropes that were to be harnessed to the horses were attached with cords to the patient’s body; the horses were then harnessed and placed alongside the arms and legs, one at each limb.
“Monsieur Le Breton, the clerk of the court, went up to the patient several times and asked him if he had anything to say. He said he had not; at each torment, he cried out, as the damned in hell are supposed to cry out, ‘Pardon, my God! Pardon, my Lord.’ Despite all this pain, he raised his head from time to time and looked at himself boldly. The cords had been tied so tightly by the men who pulled the ends that they caused him indescribable pain. Monsieur le [sic] Breton went up to him again and asked him if he had anything to say; he said no. Several confessors went up to him and spoke to him at length; he willingly kissed the crucifix that was held out to him; he opened his lips and repeated: ‘Pardon, Lord.’
“The horses tugged hard, each pulling straight on a limb, each horse held by an executioner. After a quarter of an hour, the same ceremony was repeated and finally, after several attempts, the direction of the horses had to be changed, thus: those at the arms were made to pull towards the head, those at the thighs towards the arms, which broke the arms at the joints. This was repeated several times without success. He raised his head and looked at himself. Two more horses had to be added to those harnessed to the thighs, which made six horses in all. Without success.
“Finally, the executioner, Samson, said to Monsieur Le Breton that there was no way or hope of succeeding, and told him to ask their Lordships if they wished him to have the prisoner cut into pieces. Monsieur Le Breton, who had come down from the town, ordered that renewed efforts be made, and this was done; but the horses gave up and one of those harnessed to the thighs fell to the ground. The confessors returned and spoke to him again. He said to them (I heard him): ‘Kiss me, gentlemen.’ The parish priest of St Paul’s did not dare to, so Monsieur de Marsilly slipped under the rope holding the left arm and kissed him on the forehead. The executioners gathered round and Damiens told them not to swear, to carry out their task and that he did not think ill of them; he begged them to pray to God for him, and asked the parish priest of St Paul’s to pray for him at the first mass.
“After two or three attempts, the executioner Samson and he who had used the pincers each drew out a knife from his pocket and cut the body at the thighs instead of severing the legs at the joints; the four horses gave a tug and carried off the two thighs after them, namely, that of the right side first, the other following; then the same was done to the arms, the shoulders, the arm-pits and the four limbs; the flesh had to be cut almost to the bone, the horses pulling hard carried off the right arm first and the other afterwards.
“When the four limbs had been pulled away, the confessors came to speak to him; but his executioner told them that he was dead, though the truth was that I saw the man move, his lower jaw moving from side to side as if he were talking. One of the executioners even said shortly afterwards that when they had lifted the trunk to throw it on the stake, he was still alive. The four limbs were untied from the ropes and thrown on the stake set up in the enclosure in line with the scaffold, then the trunk and the rest were covered with logs and faggots, and fire was put to the straw mixed with this wood. (source)
The Economist called it the “unsurprising research finding of the day“, but I think it’s a useful confirmation of an existing intuition: this paper finds that the recession can have a beneficial effect on the health of some people who lose their job because of it, namely those people spending their new leisure time in a healthy way. Other people, however, spend their leisure time cultivating some of their pre-existing unhealthy habits, or find themselves depressed and without employer-provided healthcare (especially in the U.S.). Because their healthcare has become more expensive now that they are unemployed, they decide to go without treatment or tests.
Results showed the body mass of the average laid-off food-lover increasing by the equivalent of more than 7 pounds for a 5-foot, 10-inch man weighing 180 pounds during unemployment. Similarly, frequent drinkers on average doubled their daily alcohol intake after losing their jobs and before finding another one. (source)
Elsewhere in the world, and especially sub-Saharan Africa, it seems that the health consequences of the global recession are more dramatic:
The financial crisis will kill between 28,000 and 50,000 babies in sub-Saharan Africa this year, according to this paper. The reasoning here is straightforward. For people on subsistence incomes, a fall in GDP can be fatal. The paper’s authors, Jed Friedman and Norbert Schady, estimate that a one percentage point fall in per GDP across sub-Saharan Africa is associated with a rise in infant (defined as under-ones) mortality of between 0.34 and 0.62 per 1000. If we multiply this increase by the number of births this year and by the 2.4 percentage point difference between GDP growth this year and last (a reasonableish estimate of the effect of the crisis), we get a figure of between 28,000 and 50,000. … Of course, you can quibble with the numbers. But the general story holds. For the poor, income is a matter of life or death. Which brings me to my question. If one-in-seventeen British babies were to die this year because of the financial crisis, it would be the biggest media story for years and there’d be rioting in the streets until the government did something. So, why the silence? Chris Dillow (source)
Since health and life are human rights, we have another human rights problem thanks to the recession. Previous posts on the (possible) impact of the recession on human rights are
- here (a general overview)
- here and here (on poverty)
- here (on the recession and the death penalty)
- here (on the recession and development aid)
- here (on the recession and antisemitism)
- here (on the recession and unemployment)
- and here (on the recession and crime).
From the Jerusalem Post:
Founded by Ayatollah Ruhollah Khomeini in 1979 as a “people’s militia”, the volunteer Basiji force is subordinate to the Iranian Revolutionary Guards and intensely loyal to Khomeini’s successor, Khamenei.
[Members of the Basiji] temporarily marry young girls before they were sentenced to death. In the Islamic Republic it is illegal to execute a young woman, regardless of her crime, if she is a virgin… Therefore a “wedding” ceremony is conducted the night before the execution: The young girl is forced to have sexual intercourse with a prison guard – essentially raped by her “husband”. (source)
August 10, 1982. Virginia. Frank J. Coppola. Electrocution. Although no media representatives witnessed the execution and no details were ever released by the Virginia Department of Corrections, an attorney who was present later stated that it took two 55-second jolts of electricity to kill Coppola. The second jolt produced the odor and sizzling sound of burning flesh, and Coppola’s head and leg caught on fire. Smoke filled the death chamber from floor to ceiling with a smokey haze.
Sept. 2, 1983. Mississippi. Jimmy Lee Gray. Asphyxiation. Officials had to clear the room eight minutes after the gas was released when Gray’s desperate gasps for air repulsed witnesses. His attorney, Dennis Balske of Montgomery, Alabama, criticized state officials for clearing the room when the inmate was still alive. Said noted death penalty defense attorney David Bruck, “Jimmy Lee Gray died banging his head against a steel pole in the gas chamber while the reporters counted his moans (eleven, according to the Associated Press).” Later it was revealed that the executioner, Barry Bruce, was drunk.
July 8, 1999. Florida. Allen Lee Davis. Electrocution. “Before he was pronounced dead … the blood from his mouth had poured onto the collar of his white shirt, and the blood on his chest had spread to about the size of a dinner plate, even oozing through the buckle holes on the leather chest strap holding him to the chair.” His execution was the first in Florida’s new electric chair, built especially so it could accommodate a man Davis’s size (approximately 350 pounds). Later, when another Florida death row inmate challenged the constitutionality of the electric chair, Florida Supreme Court Justice Leander Shaw commented that “the color photos of Davis depict a man who — for all appearances — was brutally tortured to death by the citizens of Florida.” Justice Shaw also described the botched executions of Jesse Tafero and Pedro Medina, calling the three executions “barbaric spectacles” and “acts more befitting a violent murderer than a civilized state.” … The execution was witnessed by a Florida State Senator, Ginny Brown-Waite, who at first was “shocked” to see the blood, until she realized that the blood was forming the shape of a cross (viewer discretion required!) and that it was a message from God saying He supported the execution. (source)
And these are examples from the U.S. only, a country that has strong safeguards against unnecessary cruelty in the application of the death penalty. God knows what happens elsewhere. It would also be interesting to know the share of proponents of the death penalty who think botched executions are a problem, and the share of those who believe it’s all a part of the punishment.
More on capital punishment.
Proponents of the death penalty usually show the following famous graph in order to “prove” that capital punishment results in fewer homicides in the U.S., and is therefore a successful deterrent:
First of all, there’s something wrong with this graph. It’s intentionally tweaked so as to highlight the recent rise in the number of executions, and to do so in a way that shows how closely correlated it is with the recent drop in the number of homicides. Compare it to this version:
The important difference is that the second graph counts the number of executions per homicide, and not just the total number of executions. From the point of view of deterrence, this is obviously the better measure.
We can see from the second graph that the recent upswing in the number of executions is really quite small, compared to earlier periods (there was moratorium on executions in the U.S. in the early 1970s). Unless deterrence has somehow become much more effective than it was in the early parts of the 20th century – which is doubtful given the relatively low numbers and humane methods – it can’t be the case that such a relatively small increase in the number of executions during the last decades is the cause of the extraordinary decrease in the number of homicides during the same period. We have here a clear example of correlation being not equal to causation. And when we look at the whole time series in this graph, there isn’t even a clear correlation. It’s cherry picking: take that part of the time series that confirms your prejudice, and forget the rest. A common manipulation technique in statistics.
It’s not only cherry picking in terms of the period being considered, but also in terms of sidelining other possible explanatory factors. The same guys who gave us the second graph show how this works by comparing U.S. data with Canadian data, and by comparing the data for different states in the U.S.
Canada and the U.S have had and continue to have radically different capital punishment policies. Canada abolished the death penalty in the 1960s. According to those who believe in deterrence, Canada should have a completely different evolution of the number of homicides; in fact it should have had a steeper increase than the U.S. when the U.S. had an increase, or a less pronounced decrease when they both showed a decrease. In reality, however, the graphs for both countries are very similar (although the absolute levels are lower in Canada):
These similar movements in the rate of homicides, combined with very different capital punishment policies, indicate that the latter don’t have a real influence on the former. While the moratorium in the U.S. in the 1970s is blamed for the concurrent rise in number of homicides, we see that a similar rise occurred in Canada, where the death penalty was abolished many years earlier. And, similarly, the recent decrease in homicides, said to be the result of the reinstatement of the death penalty in the U.S., also occurred in Canada where there hasn’t been a reinstatement.
The same is true when we compare states within the U.S. Death-penalty states and non-death penalty states have witnessed very similar movements in homicide rates:
The drivers behind the movements in homicide rates can’t be found in capital punishment policies and hence must be found elsewhere. But then you need to be willing to look. If you believe in deterrence chances are you’re not willing to look.
More on capital punishment.
Apparently, since 1976 – the year in which the death penalty was reinstated in the U.S. – at least 118 innocent people found themselves on death row, where they spent a total of 1.125 years (which is almost 10 years on average per person):
(source, click on the image to enlarge)
Obviously, this is only the number of innocent people who have been exonerated since 1976. It’s likely that there are still other innocent people on death row waiting for exoneration. And then there are those who have already been executed and never got a chance. Furthermore, these data are limited to the U.S., a country with a very good justice system. One doesn’t dare to estimate the number of innocent people executed elsewhere in the world. (Here‘s a map of the application of the death penalty in the world).
I wouldn’t want anyone to conclude from this that my only objection to capital punishment is the risk of irreversible harm done to innocent people. I object even to a flawless system of capital punishment. Read here why.
More on capital punishment.
Continuing where this post left off, some more data on the supposed deterrent effect of capital punishment:
In 2003, there were [in the U.S.] 16,503 homicides (including nonnegligent manslaughter), but only 144 inmates were sentenced to death. Moreover, of the 3374 inmates on death row at the beginning of the year, only 65 were executed. Thus, not only did very few homicides lead to a death sentence, but the prospect of execution did not greatly affect the life expectancy of death row inmates. Indeed, Katz, Levitt, and Shustorovich have made this point quite directly, arguing that “the execution rate on death row is only twice the death rate from accidents and violence among all American men” and that the death rate on death row is plausibly lower than the death rate of violent criminals not on death row. As such they conclude that “it is hard to believe that in modern America the fear of execution would be a driving force in a rational criminal’s calculus.” John J. Donohue III and Justin Wolfers (source; read this paper, it’s worth your while)
Proponents of capital punishment may answer this in two ways:
1. It proves their point: if all these data are correct, we need more capital punishment, and then the deterrent effect will kick in. Capital punishment as it is used now may indeed not deter significantly, but that’s no reason to abolish it; it’s a reason to step up the production of corpses.
But this reasoning leads to a reductio ad absurdum: if deterring crime is so important, and if we should do more to deter crime, then why don’t we change the execution methods: burn criminals alive at the stake. That should deter. But this, of course, brings home the point that we simply can’t do what we want to people in order to achieve some beneficial aggregate social good. If proponents of the death penalty shy away from this ultimate implication of the deterrent argument – and I think most of them will – then there’s no reason why opponents cannot have good reasons to reject killing criminals in other, less cruel ways. If propopents concede the point that there are certain things we can’t do to people, regardless of who they are or what they’ve done, then opponents can make the case that these “certain things” do not only include burning people alive but also killing them in a way which is less cruel but which nevertheless implies instrumentalizing people for the benefit of others with whom they have no relationship and who may not have been born yet. This instrumentalization is perhaps not physically cruel, but it is dehumanization. People are no longer viewed as humans but as tools for the maximization of social wellbeing.
2. The calculating criminal is a myth. Murderers don’t look at death row statistics or other statistics mentioned in the quote above in order to decide whether or not to actually kill someone. They are deterred, not by numbers, but by the general vivid image of the horror of capital punishment. That may be true in the case of some types of murderers (e.g. the uneducated ones, or those motivated by passion), but not in the case of other types (some people may indeed look at the data and calculate that the risk of being killed for their crimes is so low that it’s ok to go ahead*).
But even if it is true and people don’t calculate, the “burning at the stake” implication still holds. If it’s the vivid nature of the punishment that counts as a deterrent, not the statistical likelihood of actually receiving this punishment (which is very low as a matter of fact), then let’s make it as “vivid” as possible and bring back the Middle Ages.
* I’m thinking of professional criminals for example.
More on capital punishment.
As I live – declares the Lord Yahweh – I do not take pleasure in the death of the wicked but in the conversion of the wicked who changes his ways and saves his life. Ezekiel 33:11 (source)
I have been prey to the deepest anxiety for fear your Highness might perhaps decree that they [the murderers of a Catholic priest] be sentenced to the utmost penalty of law, by suffering a punishment in proportion to their deeds. Therefore, in this letter, I beg you by the faith which you have in Christ and by the mercy of the same Lord Chirst, not to do this, not to let it be done under any circumstances. … we do not wish that the martyrdom of the servants of God should be avenged by similar suffering, as if by way of retaliation. … We do not object to wicked men being deprived of their freedom to do wrong, but we wish it to go just that far, so that, without losing their life or being maimed in any part of their body, they may be restrained by the law from their mad frenzy, guided into the way of peace and sanity, and assigned to some useful work to replace their criminal activities. It is true, this is called a penalty, who can fail to see that it should be called a benefit rather than a chastisement when violence and cruelty are held in check, but the remedy of repentance is not withheld? Augustine (source)
We know enough to say that this or that major criminal deserves hard labor for life. But we don’t know enough to decree that he be shorn of his future – in other words, of the chance we all have of making amends. Albert Camus (source)
Execution obviously removes any possibility of rehabilitation; rehabilitation both in the sense of restoring someone to the family of humanity after repentance and forgiveness, and in the sense of exoneration, of the undoing of a miscarriage of justice.
More on capital punishment.
Let’s assume, arguendo, that capital punishment has a deterrent effect. (I stated here and here that this is far from obvious). It’s important for proponents of capital punishment that this effect exists, because other justifications for capital punishment are no longer widely accepted (e.g. justifications like, for example, those based on the conviction that murderers somehow deserve to be killed).
My point here is that, even if we assume that deterrence works and reduces the overall number of killings (and we shouldn’t assume this), it doesn’t justify capital punishment. I will argue this on the basis of one of my previous posts and on elements of this paper.
The expression “deterrence works” means that there are fewer overall killings in a society with capital punishment than there would have been without capital punishment. In other words, capital punishment deters more killings than it inflicts. The taking of a life by the state reduces the number of lives taken overall. This is what is called a “lesser evil argument”. Proponents of this kind of justification of capital punishment do not believe that executions are a good thing, or a moral thing to do. Executions take people’s lives, and are evil, but they are a lesser evil than not engaging in executions, because failing to execute would mean failing to deter more murders than the murders we commit by executing killers. If an execution saves more than one life (and there are studies claiming that every execution saves around 18 lives), than it is morally required. It may be immoral and evil, but less so than the failure to execute because it leads to a net gain in terms of numbers of lives saved compared to the failure to execute.
This lesser evil argument is what is called a consequentialist moral argument. Consequentialism is opposed to deontology. The latter states that some acts are intrinsically wrong and can’t be justified by the value of their beneficial consequences. Consequentialism, as the name suggests, claims that beneficial ends justify the means. Of course, neither position is ever defended as an absolute. No one, I guess, believes that a more beneficial overall outcome always justifies certain acts. I think it’s hard to find someone who accepts that it’s moral to kill someone if his or her organs can save the lives of two others. Saving two lives at the cost of one is an overall gain, but it seems that sacrificing someone in this manner just isn’t something you can do to a person. On the other hand, absolute deontologists are also a rare species. At some point, negative consequences have to be taken into account and to hell with the principle then.
The deterrence effect is said to justify capital punishment because of consequentialism: the overall result or consequences of capital punishment are better than the alternative, namely failing to inflict capital punishment. Whereas a deontologist would reject capital punishment regardless of the beneficial consequences, a consequentionalist will not. He will admit that executions are no better than private murders, and just as evil, but still acceptable and even morally necessary if it can be shown that they deter more murders than they inflict.
The problem with this argument isn’t so much that it’s based on dubious deterrence statistics, but that it supposes that state murder is the same as private murder, and that a lesser number of the former is acceptable and necessary if they make it possible to deter a higher number of the latter. Of course, state murder is worse than private murder, and, as a result, the consequentialist calculus of the lesser evil argument is corrupted. If a state murder is worse than a private murder, it’s no longer obvious that capital punishment is a lesser evil.
Why is state murder worse than private murder? As I stated in a previous post, capital punishment is the instrumentalization and dehumanization of people. Private murder of course also instrumentalizes and dehumanizes the victims because these victims are used for some kind of gain, but state murder pushes this instrumentalization to the extreme and makes it the norm of behavior, rather than a criminal exception. Individual criminals are used as instruments to advance the collective interest. They are sacrificed for the greater good and a resource for the benefit of others (namely the intended future victims of future murderers). And this is even made worse if we consider that the lesser evil argument seems to justify the execution of innocent people, as long as this deters a higher number of private murders.
When the state instrumentalizes people in this way, it sends a clear message that this is a normal way of treating people, with possibly disastrous consequences.
Here’s another map, for 2009:
(source, click image to enlarge; this map underestimates the number for China where this statistic is a state secret)
Update: here are the data for 2010:
Update: data for 2011:
There’s an interactive version of some of those maps here, and here is a map on capital punishment legislation (not all countries that allow capital punishment also sentence people to death or execute people). More on capital punishment in general is here.
In 2008, homosexuality, or consensual sex acts among adults of the same sex, was still illegal in 86 member states of the United Nations. These include large countries such as India and Nigeria. (There’s a world map here). In 9 of these countries, e.g. Iran, the act is even punishable by death. Every year, hundreds of LGBT people are killed because of their sexual orientation, some by the state, others by lynch mobs.
Here’s an overview by region:
(source, click image to enlarge)
The wording of the laws which make homosexuality a crime is often bizarre:
- “carnal intercourse against the order of nature”
- “gross indecency”
- “unnatural offences”
- and the best of all: “unlawful sexual relations per anum”.
These “sodomy laws” obviously have consequences for human rights. The rights to privacy and equality of LGBT persons are obviously violated by these laws. As well as the right to life in extreme cases. Sexual conduct between consenting adults is a private matter in which no one, especially not the state, should interfere.
State sponsored homophobia also shapes social attitudes and promotes social homophobia. How can a state do something about social violence against gays if the state itself oppresses them? On top of that, sodomy laws make HIV/AIDS prevention much harder, with possibly wide-ranging public health consequences. The criminalization of homosexuality pushes homosexuals underground and makes it impossible to educate them about HIV/AIDS. The defenders of sodomy laws say that such laws do not only enforce ”morality”, but also help to prevent the spread of HIV/AIDS. But that’s just a figleaf for bigotry.
The data I collected here show that it’s far from obvious that the death penalty has a deterrent effect. Some of the data even suggest the possibility that instead of a deterrent effect, capital punishment has a brutalization effect (because it sends out the normative message that violent retaliation is the normal response to ill-treatment and that the sanctity of life is a naive moral ideal). States with high numbers of executions tend to have high levels of violent crime and murder.
Anyway, let’s be generous and admit that there may or may not be a deterrent effect. According to me, as long as this question is open, deterrence can’t be used as a justification for capital punishment. Of course, proponents of capital punishment keep looking for the effect because it would be the only widely acceptable justification of this type of punishment. (I argued here that even if the deterrent effect exists, it doesn’t justify the death penalty because deterrence is inherently immoral).
One of the most silly “findings” I’ve ever seen is here. This “study” claims to show that every execution results in 18 fewer murders. However, the authors failed to note that, if this were true, and the U.S. would execute today all the approx. 3.300 inmates on death row, there would be no more murders in the U.S. (there are between 15.000 and 20.000 homicides in the U.S. annually, see here; you can do the math yourself). That can’t possibly be true. A nice study, I have to say.
(Pointed out to me by this paper).
(forgot where I got this from, sorry)
Perhaps a more up-to-date map is this one:
(source, click on the image to enlarge)
Some states still use the gas chamber:
Here are the actual executions by gas chamber after the moratorium in the 1970s:
I think only Idaho and Oklahoma still use the firing squad. There recently was a convict in Utah who chose to be executed by firing squad. The U.S. Supreme Court, which reinstated the death penalty in 1977, banned the use of the firing squad in 2004. It allowed only a handful of inmates already on death row to opt for the method.
And this is the map for electrocution:
- Death By Execution: Which States Do What Form of Capital Punishment? [Capital Punishment] (gizmodo.com)
- Utah firing squad highlights death-penalty debate (seattletimes.nwsource.com)
- Are firing squads a better means of execution than lethal injection? (slate.com)
- Jason Kitchen: Utah’s Archaic Brand of Capital Punishment (huffingtonpost.com)
- Experts say firing squad a more humane execution (salon.com)
Here’s what the rest of the world thinks of killing children that have committed a crime:
Roper v. Simmons, 543 U.S. 551 (2005), was a decision in which the Supreme Court of the United States held that it is unconstitutional to impose capital punishment for crimes committed while under the age of 18.
(source, “chop chop square” in Riyadh, Saudi Arabia, where the executions take place)
From an article by Adam St Patrick in The Walrus Magazine:
A slender sword – four feet of shining steel, curved at the end – hovers high above a kneeling figure shrouded in white. Only the kneeler’s neck is exposed. Sixty or so men watch from the edge of a granite courtyard, behind a patchy line of eight soldiers in tan uniforms. The man wielding the sword looms high, almost spectral, in a flowing white dishdasha and a red-checked head cloth. He is ready to swing but then steps back. He huddles with two police and the one person who can make this stop: the victim of the crime that’s being punished.
The huddle breaks, and the executioner retakes his position, left of the condemned. He sets his right leg forward and his left leg back, as if about to stretch his left calf. Sunlight flashes on the blade as he draws it above his head. … [He] gently lowers the blade to jab at the condemned’s neck, which jerks the prisoner’s body to attention. Then the real blow: the blade is drawn high up, then swung back down. It cleaves skin, muscle, and bone with a hollow, echoing thud. A lurid crimson waterfall chases the head to the granite with the sound of a wet rag being wrung out over a stainless steel sink. The body sways forward, snaps up, and slumps off to the right.
This is Saudi Arabia, one of the last places on earth where capital punishment is a public spectacle. Decapitation awaits murderers, but the death penalty also applies to many other crimes, such as armed robbery, rape, adultery, drug use and trafficking, and renouncing Islam. There’s a woman on death row now for witchcraft, and the charge is based partly on a man’s accusation that her spell made him impotent.
Saudi Arabia executed some 1,750 convicts between 1985 and 2008, yet reliable information about the practice is scarce. In Riyadh, beheadings happen at 9 a.m. any given day of the week, and there is no advance notice.
Beheadings take place in a downtown public square equipped with a drain the size of a pizza box in its centre. Expatriates call it Chop Chop Square (see image above). I showed up at 9 a.m. most days for several weeks. After arriving at the barren granite expanse for yet another morning, I’d drink tea with merchants in the bazaar next door. Popular opinion seems to allow more respect for the executioners than sympathy for those wrongfully convicted, and rumors about the mysterious swordsmen abound. He must kill, one carpet dealer told me. If he doesn’t kill for a few days, they give him a sheep to kill. The job is a coveted one, often passed from father to son. In a Lebanese TV clip now on YouTube, a Saudi executioner shows off his swords and describes his approach: If the heart is compassionate, the hand fails.
This post is about the law violating human rights. I understand that this is only one of many ways in which rights can be violated, and certainly not the most important one. Genocide, poverty, torture, war etc. are all major human rights violations, but only rarely if ever do they occur because a law instructs people to kill, maim or impoverish their fellow human beings. On the contrary, many human rights violations result from breaking the law, and the law has often been the last refuge for human rights.
So we have two different types of rights violations, illegal and legal violations.
1. Illegal violations
Illegal violations are acts that violate human rights and at the same time break laws that make these violations illegal. This type of rights violation always implies some kind of inefficiency in the national justice systems. These justice systems are supposed to prosecute illegal rights violations, but often fail to do so, for two possible reasons: inability or unwillingness. They may be grossly inefficient, or they may be corrupt and complicit with the rights violators. So illegal violations may be divided into two subtypes:
1.1. Illegal violations caused by government incompetence
1.2. Illegal violations caused by government complicity
These occur because of the governments unwillingness to stop them. The judicial and police systems are covering for the rights violators. An example could be torture in Guantanamo.
2. Legal violations
Legal violations, on the other hand, are rights violations that are condoned or imposed by the law and by the justice system. This type as well can be further divided into two subtypes:
2.1. Violations that are imposed by the law
2.2. Violations that are not punished by the law
These are acts which are not illegal because the law remains silent on them, but which violate human rights. This type can be further divided. Violations are not punished by the law
- either because it is believed that these violations should not be considered a crime (the contrary act is then often believed to be a crime) (case 2.2.1.)
- or because it is difficult to determine the party responsible for the violations (case 2.2.2.).
Some examples of case 2.2.1.: in some countries there is no legal concept known as marital rape; other countries do not outlaw abortion (for those who agree that abortion is a human rights violation). Some examples of case 2.2.2.: poverty, famine…
One caveat, however. “Legal” in this setting means “legal according to national law”. One could justifiably claim that there is no such thing as legal human rights violations since international law makes all violations illegal and renders national laws condoning or imposing violations, null and void. However, this is theory. In practice, national legal systems continue to impose and enforce, sometimes quite effectively, laws which either condone or impose violations.
With the recession deepening, many states in the U.S. are facing budget deficits. Some highly unusual cost cutting measures are being proposed, and one of them is abolishing the death penalty. It seems, amazing enough, that capital punishment is more expensive than life imprisonment. The ratio is almost 3 to 1. Especially the appeals procedure and the special measures on death row are costly.
In a previous post, I talked about some of the unintended consequences of human rights activitism and how good intentions can go wrong. It now seems that the opposite can also be true: policies that are motivated by reasons that have nothing to do with morality can have morally beneficial results.
Capital punishment is just one of many types of punishment for criminal activity. The main purpose or function of all criminal punishment is prevention (some other functions are social recognition of a criminal act, social condemnation, recognition of the victim, support for the victim, establishing the facts etc.).
Prevention through punishment
Prevention through punishment is the attempt to use punishment of a particular crime in order to prevent future crimes of the same type. Punishment therefore increases social welfare. It is believed that punishment can prevent future crimes in three ways:
- incapacitation: by punishing a criminal, here or she is incapacitated (physically restrained or killed) and hence cannot commit any more crimes (this type of prevention is limited to a particular person being prevented from committing more crimes)
- fear and deterrence: the example of a punishment will deter other people from committing a similar crime; another word for fear – terror – can be found in the word deterrence (this type of prevention, as the next one, covers potentially the whole of society)
- education: by punishing a criminal, society receives a messages from an authoritative source that certain types of behavior are immoral (punishment is kind of an official reaffirmation of morality); the public spectacle of punishment therefore infuses society with morality and it is hoped that people will internalize this morality and act accordingly, so that future crimes and punishments become less ubiquitous.
Of these three ways in which punishment is believed to be able to prevent crime, only the second one figures prominently in discussions on capital punishment. Its success in deterring crime is, by many, believed to be the main justification of capital punishment (although the statistics aren’t clear about that, see here). Obviously, incapacitation cannot justify capital punishment since life imprisonment incapacitates equally well. In this post, I will argue that there are practical and moral objections to the use of punishment as a deterrent (irrespective of the discussions on the possible success of this strategy), and that the same objections hold with respect to punishment as education. However, this doesn’t mean that I argue against punishment as such.
Deterrence is inherent in all types of criminal punishment, not just capital punishment. Punishment is intended to instill fear in other potential criminals. People are aware of the punishment for certain crimes, because the trial system is open and public, and this awareness leads them to make cost-benefit analyses. The threat of punishment for a crime creates a cost, a disincentive, that should outweigh the possible benefits of committing this crime. Proponents of capital punishment believe that only this type of punishment imposes a high enough cost to deter certain crimes.
There are several problems with this statement:
Believers in deterrence assume that all or most criminals undertake a rational calculation of costs and benefits before committing their crime. That’s obviously not true. There are the crimes of passion, for example, which do not follow from such a calculation. And many types of criminals aren’t rational at all, or aren’t able to make the necessary evaluation of cost and benefit. Hence, many criminals are undeterrable. (Think for example also of the extreme case of the suicide terrorist). One should be careful taking a life when there may be no benefit in doing so.
It’s well known that many if not all laws suffer from under-enforcement. The chances of being arrested and convicted for any particular crime are less than 100%, and often much less. Criminals who do engage in rational analysis of costs and benefits, and who are therefore potentially deterrable, will take under-enforcement into account, and this will sharply reduce the effect on them of another person or even persons being punished. If a potential offender perceives the likelihood of punishment to be very low, then the deterrent effect of the severity or even cruelty of previous punishments for similar crimes is nullified.
3. Blindness to the causes of crime
Capital punishment, or any other form of punishment which focuses on deterrence as a means to prevent future crime, overlooks other, perhaps more fruitful ways of preventing crime. Addressing the underlying causes of crime, or people’s motivations to engage in crime, and working on the social conditions which foster criminality, may be more successful as a prevention strategy than merely relying on punishment, fear and unlikely cost-benefit considerations.
4. The immorality of deterrence
However, the strongest objection against deterrence, especially when it takes the form of capital punishment, it its immorality. One of the most important lessons we have learned from Immanuel Kant and others is that we should never use fellow human beings as means to an end. An offender, even the worst possible offender, has a certain value as a human being, a certain dignity if you want, which should be respected and which cannot be canceled in the process of punishment. An offender shouldn’t be a mere tool to send warnings and intimidations to possible future offenders.
Punishment is said to achieve prevention of future crime because it is educational. It educates society about the wrongfulness or immorality of certain actions by doing certain things to offenders. And it thereby reinforces internalized morality and encourages law-abiding behavior. And, say the proponents of capital punishment, the message sent to society is stronger if the punishment is more severe. Punishment therefore not only applies and enforces rules and norms, but also creates them because it internalizes them, or better helps people to internalize them. However, objection number 4 which I leveled against deterrence is also applicable here. Education as a function of punishment also doesn’t take persons seriously, in the words of Rawls. It instrumentalizes offenders and uses them to send messages to society. And reducing people to a means is a kind of dehumanization.
And what about the victims?
It could be argued that all this puts too much importance on the offenders, and ignores the victims and their relatives and friends. On the contrary, I think. I take the preventive function of punishment very seriously (while at the same time pointing out other functions which also benefit victims or potential victims, see above). I just wanted to point out that deterrence isn’t necessarily very effective as a prevention tool (something which can explain the statistics cited above). We should therefore be careful when imposing harsh punishments on people while assuming that the harsher these punishments are, the more crime we can prevent. People just don’t do cost benefit analysis quite as often as we assume.
And I also wanted to point out some other problems with deterrence, problems not of a practical but of a moral nature. When we allow the justice system to instrumentalize people for the sake of deterrence, but also for the sake of education, we mirror the practices of many criminals, and therefore justify these practices. Criminals typically use other people as means, and violate a fundamental moral rule. When we allow the justice system to violate the same rule, and instrumentalize offenders, we legitimize this instrumentalization, and hence we will encourage criminal behavior rather than prevent it.
More on capital punishment here.
From the Amnesty International Blog:
For many years, it has been known that China uses execution vans, kind of like specially outfitted ambulances, to more efficiently carry out its exceedingly large number of executions. The method of killing in these vans is lethal injection, which has been slowly but surely replacing the firing squad as China’s preferred means of execution, and both lethal injection and the vans are believed to facilitate the widespread practice of harvesting organs of the executed prisoners, an unbelievably appalling practice.
Here’s an image of one of those execution vans:
Makers of death vans say they save money for poor localities that would otherwise have to pay to construct execution facilities in prisons or court buildings. The vans ensure that prisoners sentenced to death can be executed locally, closer to communities where they broke the law. That deters others from committing crime and has more impact than executions carried out elsewhere. (source)
More on capital punishment.
I’ve argued here against the death penalty, so it’s good news to see that there’s a gradual, worldwide trend in favor of the abolition of capital punishment.Let’s first have a look at the U.S. The number of death sentences in the U.S. has dropped substantially over the last decade:
The number of executions has dropped as well:
- 98 in 1999
- 53 in 2006
- 42 in 2007.
Of course, the U.S. isn’t the most brutal in this respect:
In the U.S., public support for the death penalty is waning, especially when the people who are polled can choose the alternative of life imprisonment without parole:
When we look beyond the U.S. – which is indeed not the main culprit – we see that an increasing number of countries has abolished or limited the death penalty. At the end of 2008, almost 140 countries had either legally abolished capital punishment, or stopped applying the punishment in practice (abolitionist in practice means not having carried out an execution in over 10 years):
More on capital punishment.