The Vagaries of Moral Progress (6): Capital Punishment in Saudi Arabia

A Saudi executioner prepares to behead a convicted drug dealer in Jeddah in this 1985 image. Photograph: Rex Features

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In Saudi Arabia they use a strictly etymological interpretation of the phrase “capital punishment”. However, there’s now a proposal to abandon beheadings and to look for alternatives:

Last week, the Saudi daily Al-Youm reported that Saudi Arabia is considering transitioning away from the state’s institutionalized method of executing convicts: beheading by sword. Beheading — the approach to carrying out death sentences in the Arabian Peninsula in the seventh century — has long been practiced in the kingdom in observance of its strict interpretation of Islamic law, which seeks to mimic practices at the time of Mohammed. But a committee of Saudi government officials recently ruled that execution by firing squad would also be permissible under the national brand of sharia.

“This solution seems practical, especially in light of shortages of official swordsmen,” the committee explained in a statement quoted by the Egyptian newspaper Al-Ahram. The committee also complained that official swordsmen have been known to show up late to executions. (source)

Letting convicts wait for their execution? Standard practice in other countries, and according to some an extra punishment that is richly deserved.

Does this mean those few remaining swordsmen will be out of a job soon? It turns out the Saudi newspaper Okaz asked one of them: Mecca-based executioner Mohammad Saad al-Biishi. He says he’s not concerned, citing the fact that he’s already received firearms training. In the meantime, he’ll keep on with the beheadings. (source)

More on capital punishment in Saudi Arabia is here. More posts in this series are here.

Moral Dilemma (23): An Eye For an Eye, With a Twist

The movie Valhalla Rising tells the story of an 11th century, one-eyed brawler (Mads Mikkelsen) who falls in with a group of Christians journeying to the Holy Land

We have before us two people: one is blind, the other one has perfect eyesight. Let’s assume that eye transplants are simple and safe. If we were to take one eye from the latter – who, we assume, is an unwilling participant – and give it to the former, overall wellbeing would be greatly enhanced. The former would now be able to see with one eye, whereas the sight of the latter would not be substantially reduced, except perhaps for depth perception. Anyway, any losses for the latter are easily outweighed by the greater gains for the former. The difference between 0 and 1 eye is a lot bigger than the difference between 2 and 1 eye.

Before I can have a look at your answers, my guess is that most of you will not find this acceptable. If that’s the case, we’re not dealing here with a real moral dilemma – something is only a dilemma when the choice is difficult for most of us normal folk. But for those of you who did indeed answer “no” – and I would be one of you – let me make the choice perhaps a tiny bit more difficult by asking a further question: why? What exactly bothers you so much in the proposed procedure? Here’s a list of possible reasons:

1. You object to the implied objectification of the unwilling donor: we shouldn’t treat people as means to someone else’s ends, however laudable those ends. People are not mere organ repositories.
2. You fear a slippery slope: why not also vital organs? If we were to take the heart, lungs and liver from an aging person and give it to a younger person who’s terminally ill, the net benefit would be large: the older person can only enjoy life for a small number of years compared to the younger person, and hence overall wellbeing would be greatly enhanced by the involuntary transplant. The older person will die, but the loss in wellbeing is small compared to the gain for the younger person.
3. You are simply disgusted by the proposed procedure.
4. You value the right to physical integrity, and you value it to such an extent that no other considerations – including the physical integrity of others – should be allowed to override it.
5. You’re opposed to the utilitarianism that is implicit in the proposed procedure. We shouldn’t always or simplistically strive for the greatest overall good.

Now, before I’ll ask you to vote for any – or several for that matter – of these reasons for your “no” answer above, allow me to sow a few seeds of doubt.

1. Perhaps you’re a proponent of capital punishment. Not, let’s say, of the type of capital punishment as it is practiced in China or the US. Or – God forbid – in Saudi Arabia. But you can imagine yourself endorsing capital punishment as an extreme but sometimes necessary act of justice. Capital punishment is usually justified as a deterrent, but I showed here that this justification failed because it objectifies the criminal, just as the eye removal objectifies the involuntary eye donor. If you’re against objectification in the case of the eye transplant, it seems you should also be against capital punishment. Think about that before checking answer #1 below. If you still check that answer, then you may need to revisit some of your strongest opinions.
2. Regarding the slippery slope answer: don’t forget that the slippery slope argument is of very dubious quality. It has been used to defend marriage restrictions for gays, the criminalization of homosexuality, racial segregation etc. Like all metaphors, it has its limits and we shouldn’t automatically assume that one step down the hill will land us nose down in the valley.
3. The disgust reason is also problematic: emotions are usually not the best basis for thoughtful arguments.
4. Physical integrity, while undoubtedly highly important, is not usually considered an absolute right: we regularly incarcerate criminals without thinking a second about the fact that we sentence them to prison rape. And even if there were no physical assaults in our prisons, incarcerating someone is akin to an amputation. A prisoner’s legs are, for all intents and purposes, amputated when we restrict their use to the confines of the prison. If this “amputation” is deemed necessary for the greater good of society, when not also the eye removal?
5. Even if you have your misgivings about utilitarianism – as have I – you still have to accept that you’re a utilitarian in many cases: otherwise you wouldn’t support defensive wars, taxation or immigration restrictions.

Thanks for voting. More moral dilemmas are here.

The Vagaries of Moral Progress (3): To Hang or Not to Hang in Sri Lanka

The Hanging of John Brown, 1860, Drawing by Victor Hugo

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?

More posts in this series are here. More on capital punishment here.

The Most Absurd Human Rights Violations (110): An Execution Nobody Wants

Terrance “Terry” Williams

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.

In the mean, time, you can sign this petition urging Governor Tom Corbett, the PA Board of Pardons, and the District Attorney to grant clemency for Terry. (source)

More on capital punishment is here. More posts in this series are here.

Crime and Human Rights (18): The Cruelty of Life Imprisonment Without Parole

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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.

A country overview of the use of LIWOP is here and here. More incarceration statistics. More about human rights and prisons.

Related Articles

• Supreme Court Sides With Kids Sentenced to Life in Prison (criminaljustice.change.org)

Capital Punishment (46): “Looking Deathworthy”

That’s the provocative title of a new paper showing a correlation between the likelihood of receiving a death sentence and the perception of having a stereotypically Black appearance:

Researchers previously have investigated the role of race in capital sentencing, and in particular, whether the race of the defendant or victim influences the likelihood of a death sentence. In the present study, we examined whether the likelihood of being sentenced to death is influenced by the degree to which a Black defendant is perceived to have a stereotypically Black appearance. Controlling for a wide array of factors, we found that in cases involving a White victim, the more stereotypically Black a defendant is perceived to be, the more likely that person is to be sentenced to death.

We already knew that both the race of the victim and the race of the defendant influence capital sentencing. Black defendants are executed more often than they should be in a system that pretends to treat all equally before the law and that ostensibly denies that racism should be allowed to determine judicial outcomes.

Now it seems that there’s a subgroup of African Americans who are treated even worse, namely those people who are perceived to have a stereotypically Black appearance (e.g., broad nose, thick lips, dark skin). People apparently associate those stereotypical physical traits with criminality. No surprise that this bias isn’t limited to capital cases:

Even with differences in defendants’ criminal histories statistically controlled, those defendants who possessed the most stereotypically Black facial features served up to 8 months longer in prison for felonies than defendants who possessed the least stereotypically Black features. (source)

Some more evidence is here. This form of bias has been called colorism, and it has effects way beyond the criminal justice system.

More posts in this series here.

Capital Punishment (45): Death by Animal

Human imagination knows no bounds, especially when it comes to brutality. The history of capital punishment is a prime example. Case in point, many rulers around the world once believed that it was a good idea to use animals as execution devices. And one can understand why: death by animal certainly made for a good spectacle in the days of public executions, so judicial systems used the punishment to respond to popular demand and to prop up their legitimacy. Furthermore, these methods of execution were often particularly cruel and ostentatious, something which would have convinced many that they provided a better deterrent than less extravagant methods.

Death by animal is a practice that has now been completely abandoned, fortunately, but it’s always good to remind oneself of the depths of human cruelty. Hence, a few historical examples.

Here’s a wood engraving of an execution by elephant in India, published in the 1868 issue of Le Tour Du Monde:

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Apparently, this method was still in use as recently as the early years of British colonization. The procedure either involved the crushing of the head as in the image above, or dismembering:

A condemned prisoner being dismembered by an elephant in Ceylon. Drawing from An Historical Relation of the Island Ceylon by Robert Knox (1681)

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Better known is the fate of many early Christians:

The Christian Martyrs’ Last Prayer, by Jean-Léon Gérôme (1883)

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This particular image violates historical accuracy in a number of ways (I guess the burning crucifixes in the background and the peculiar way of setting them on fire – using a long burning stick – is a case of artistic freedom), but it is a fact that many Christians were “fed to the animals” by the Romans. However, those animals were not always or perhaps even rarely lions (dogs and boars are more likely culprits).

Quartering, or dismemberment by horses is also well-known.

Martyrdom of St. Hippolytus, by Dieric Bouts 1470-1475

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More posts in this series here.

The Most Absurd Human Rights Violations (105): The Boiling-in-Oil of Ishikawa Goemon Along With His Son

Ishikawa Goemon (1558-1594) was a semi-legendary Japanese outlaw hero who stole gold and valuables and gave them to the poor. Goemon is notable for being boiled alive along with his son in public after a failed assassination attempt on the civil war-era warlord Toyotomi Hideyoshi.

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Another version:

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More here. More absurd human rights violations here.

Capital Punishment, A Collection of Images

Mansur al-Hallaj (858 -922 AD) was a Persian mystic, revolutionary writer and pious teacher of Sufism most famous for his poetry, accusation of heresy and for his execution at the orders of the Abbasid Caliph Al-Muqtadir after a long, drawn-out investigation.

(source, where you can read the full story)

The precise story about this picture is unknown, to me at least. I couldn’t find any reliable references. It’s assumed that this is an image of a public execution in China.

(source unknown, more on capital punishment in China is here)

“Pieta”, Jesus in the electric chair, by British artist Paul Fryer, in the private collection of François Pinault in France

(source, no doubt inspired by Lenny Bruce)

Francisco Goya, The Shootings of May 3, 1808. Goya sought to commemorate Spanish resistance to Napoleon’s armies during the occupation of 1808 in the Peninsular War.

(source unknown)

Cook County kept a gallows around until 1977 in case “Terrible Tommy” O’Connor, who escaped on the eve of his execution in 1921, was ever apprehended

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More images of capital punishment are here, here, here, here, here, here, here and here. More on capital punishment in general here. Some data are here. And other collections of human rights images are here.

Political Graffiti (196): Capital Punishment

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More on capital punishment. More graffiti.

Capital Punishment (44): The Retribution Argument Against Capital Punishment

Saint Nicholas of Myra saves three innocents from death

Retribution is the last refuge of those seeking to justify capital punishment, given the failure of other arguments (deterrence, incapacitation etc.). Retribution is a punishment that fits the crime: the severity of the punishment should be proportionate to the severity of the crime. Intuitively, therefore, retribution should justify capital punishment for murder. Only death is a punishment that is as severe as murder. The Latin origin of the word “retribution” indicates that something should be given back or returned: someone “gives” death and hence death should be returned.

However, in theory, retribution does not necessarily mean that the punishment has to be strictly equivalent to the harm caused by the crime: some claim that retribution simply means that we must punish severe crimes more harshly than less severe crimes. Yet we see in practice that capital punishment as punishment for murder is defended on retributivist grounds.

Retributivists, ancient and modern, have always been lured by one or another form of lex talionis. (source)

There’s often an element of desert introduced in retributivist arguments. A murderer should be put to death because this punishment fits the crime, and because this punishment fits the crime, the murderer deserves to die.

So, given this “natural” tendency of retributivists to favor capital punishment for murder, how can it be possible to construct an argument based on retribution against capital punishment, as the title of this post suggest? Thom Brooks has made a highly interesting attempt here. It’s based on a decision by Judge Jed Rakoff ( in US v Quinones):

What DNA testing has proved, beyond cavil, is the remarkable degree of fallibility in the basic fact-finding processes on which we rely in criminal cases. In each of the 12 cases of DNA-exoneration of death row inmates referenced in Quinones, the defendant had been guilty by a unanimous jury that concluded there was proof of his guilt beyond a reasonable doubt; and in each of the 12 cases the conviction had been affirmed on appeal, and collateral challenges rejected, by numerous courts that had carefully scrutinized the evidence and manner of conviction. Yet, for all this alleged “due process”, the result in each and every one of these cases, was the conviction of an innocent person who, because of the death penalty, would shortly have been executed (-some came within days of being so-) were it not for the fortuitous development of a new scientific technique that happened to be applicable to their particular cases. (source)

This should even convince retributivists that capital punishment has to be rejected. Even if you adopt the moral rule that murderers deserve to die you, shouldn’t apply the death penalty in practice because you can’t be certain that a particular defendant is really guilty of the crime and hence deserves to die. And there’s no point arguing that the systematic use of DNA testing gives you this certainty: first, it’s not always possible to use DNA tests, because the crime has to be of such a type that DNA traces are potentially available, and even if they are potentially available they may not be actually available; and second, we don’t know if DNA testing is accurate enough and won’t be discredited in the future.

You could also argue that the same lack of certainty is the case for all types of crime, and that rejecting capital punishment because of a lack of certainty implies rejecting criminal punishment tout court. Not quite: all other types of punishment allow for the possibility to correct mistakes resulting from uncertainty. Capital punishment rules this out.

And there’s another kind of uncertainty that militates against capital punishment and that should convince retributivists to reject it. The desert of a criminal is usually based on more than mere physical evidence of his actions. Intent also plays a part. Take the case of someone who caused the death of someone else by his actions – and let’s assume that we are certain about this, e.g. we have DNA evidence and we know that no future scientific developments will cast doubt on this evidence – but did not intend to kill. Many would argue that he doesn’t deserve to die. However, intent is impossible to prove because it requires reading someone’s mind, and hence we can never be certain that someone intended to kill. A desert based argument for capital punishment is void if desert includes intent.

Human Rights Ads (79): Non-Public Execution

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It’s a bit of a strange one, this. I understand what they are trying to say: governments perform executions only because people acquiesce in them (don’t oppose them) or because they actively approve of them (this approval can be intellectual or moral, or it can manifest itself through active participation as viewers in the process of a public execution). If the public were to turn their backs on the whole affair – not because of apathy or acquiescence but because of opposition - then capital punishment would probably disappear, even in non-democratic states.

However, the image used here conveyes the opposite: people turn their backs, and governments are left in peace to carry on. In light of the massive presence of people at the scene, they could easily stop the execution if they had not decided to turn away.

But perhaps I’m reading this the wrong way. Other interpretations are welcome.

This, by the way, is the original image that inspired the ad. More on capital punishment and on public executions. And more ads.

Ironic Human Rights Violations (11): Iran Scolds Saudi Executions, Ignoring Its Own Sins

public execution in Saudi Arabia

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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.

The Most Absurd Human Rights Violations (101): The Horrible Crime of Alcoholism

execution in Iran

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Amnesty International is urging Iran – a country known for its unemcumbered use of the death penalty- to halt the execution of two men (not in the image above) convicted for the third time of consuming alcohol. The men already have received 80 lashes for two previous convictions.

Article 179 of Iran’s “exotic” Penal Code provides for a mandatory death sentence following a third conviction for drinking alcohol.

What’s next? Life imprisonment for picking your nose in public? Forced labor for speeding? Decapitation for sorcery? Oh, I see …

More absurd human rights violations here.

Human Rights in the U.S.A.

The United States is far from the worst violator of human rights, but neither is it the Shining City on the Hill that many take it to be. See what you make if this:

• America, where people get into a frenzy about personal freedom when someone wants to limit the maximum size of soda cups, and yet consistently accept world record incarceration rates.
• America, where felons can more quickly recover their right to bear arms than their right to vote.
• America, where white people with a criminal record are more likely to get a callback after a job interview than black people without a criminal record.
• America, where the depiction of naked people making love is less a matter of free speech than the depiction of people killing each other.
• America, where the right to life of the unborn is more important than the right to life of the living.
• America, where the courts express themselves on issues such as the appropriate hotness of coffee but remain strangely silent about the extra-judicial execution or torture of U.S. citizens.
• America, the “land of opportunity”, has less social mobility than many of the so-called  ”socialist” countries of Europe.
• America, where the Supreme Court has decided that anyone can be strip-searched upon arrest for any offence whatsoever – this is the same Supreme Court that doesn’t allow its proceedings to be televized.
• Etc.

And then remember that a large majority of countries is even worse than this. Have a nice day.

Annals of Heartlessness (19): “I Ain’t Got No Body”

A public decapitation in China on a postcard, with a heartless comment:

(source unknown)

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.

The song that’s cited in the comment is here. More on decapitation here and here. More in the annals of heartlessness here.

Capital Punishment (43): Some Facts About Decapitation

public beheading in Saudi Arabia

(source unknown, more about capital punishment in Saudi Arabia here, here, here, here and here)

It used to be a common practice, but today only a handful of countries still execute criminals by way of beheading (Qatar, Saudi Arabia and perhaps one or two other countries).

Assuming that decapitation occurs in a “civilized” way and that it doesn’t take a number of blows or cuts to the neck in order to sever the head from the body – which, in practice, is not always a correct assumption: does the brain remain conscious for a few seconds after a clean and quick decapitation? There are many historical reports of decapitated heads showing facial movements or even the attempt to speak right after decapitation. It’s not clear what to make of this, since facial movements can just as well be spasms.

However, experiments with rats have shown brain activity after decapitation. Sure, there’s no way to be sure that this is true for the human brain as well – since “further scientific observation of human decapitation is unlikely”, in the words of Alan Bellows. Still, the rat experiments are suggestive:

[R]esearchers connected an EEG machine to the brains of rats, decapitated them and recorded the electrical activity in the brain after the event. [They] found that for about four seconds after being separated from the body, the rats’ brains continued to generate electrical activity between the 13 to 100-Hertz frequency band, which is associated with consciousness and cognition, defined as “a mental process that includes thinking”. (source)

The circulatory system delivers oxygen to the brain so that it can carry out its functions. When suddenly deprived of oxygen or blood after a clean and quick decapitation – or after several severe blows to the neck with a knife, sword or axe, before full decapitation – the brain’s function deteriorates rapidly, but perhaps not instantaneously. This would imply that individuals, after suffering a clean and quick decapitation, can still think, perceive, feel and suffer pain and anguish during a few horrible seconds after which the brain, which itself receives no trauma during decapitation, stops functioning because blood loss causes unconsciousness and death.

A related story is here. More on beheadings here. And on capital punishment here.

Capital Punishment (42): The Stupidity of Deterrent Statistics, Ctd.

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The so-called deterrent effect is one of the main arguments in favor of capital punishment. I’ve argued many times before that the data we have don’t support the existence of this 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).

The following quote nicely summarizes the difficulty of proving the deterrent effect:

I would like to know how a statistical study, no matter how sophisticated, can possibly tell us the subjective motives for acts that were never taken and, moreover, how it can do so with the specificity of telling us approximately how many people did not do what they otherwise would have done under different circumstances. Where are these people? And, more importantly, how would we recognize one if we happened across him or her? (source)

Of course, people who want to disprove the deterrent effect also face this difficulty, but I assume we can agree that the burden of proof is on those who want to use the effect as an argument in favor of capital punishment. And that turns out to be a very heavy burden in this case.

Anyway, even if deterrence could be proven and even if we could establish with some certainty that every execution saves n lives – as some have argued, oblivious of the difficulties pointed out in the quote above – then we would still have good reasons to reject capital punishment.

More here.

Capital Punishment (41): The “Healing” Argument and the “Danger” Argument

Jesus in the electric chair, sculpture by London artist Paul Fryer, titled "Pieta"

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Capital punishment is usually defended on the basis of a theory of deterrence or retribution, but there are some other, less common arguments as well. There’s for example the argument that capital punishment is necessary for “closure” and “healing” of the victim’s surviving family and friends. Capital punishment is therefore viewed as a therapy. Apart from the doubts that capital punishment can serve this purpose – what does closure and healing mean and do they necessarily require an execution? – there’s a strong case that it shouldn’t be used for this purpose even if it can be: it would amount to crude instrumentalization of the criminal, even more than in the case of deterrence. Moreover, there’s a problem with cause and effect: if people are told that they need an execution in order to accomplish closure, then perhaps they’ll start to believe there’s no other way.

Another argument in favor of capital punishment is based on guesses about the harm that would result from failing to use this type of punishment. If we don’t satisfy the public’s blood lust - or call it “punitive emotions” if you want – the public will seek to satisfy it in ways that we wouldn’t like (e.g. lynching). However, there’s again a problem with cause and effect in this argument: the justice system does not merely reflect opinion about appropriate punishment, but also shapes it. Far from reducing blood lust, capital punishment may instead promote it. This is the so-called brutalization effect.

The basis of blood lust is moral outrage, and such outrage – contrary to blood lust - is often completely justified. And it should be recognized, but it can be in ways that don’t involve executions.

More on capital punishment is here.

Capital Punishment (40): In 2011

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Unfortunately, Japan was quick to make sure 2012 would be different from 2011. More on capital punishment.

Annals of Heartlessness (18): Gays in Texas Like Prison Rape

Prisoner with mirror (1994), from Texas Death Row © Ken Light

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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.

Political Jokes & Funny Quotes (112): Romney Signing Ceremony

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.

More jokes.

Annals of Heartlessness (10): “Let’s Invent Execution by Electrocution as a Way to Settle Some Business Differences”

Sketch of the execution of William Kemmler on August 6, 1890, using alternating current

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I don’t think I’ve ever heard of a worse case of commercial cynicism:

Thomas Edison and George Westinghouse … engaged in a nasty battle over alternating and direct current, known as the “War of Currents.”  Both men knew there was room for but one American electricity system, and Edison set out to ruin Westinghouse in “a great political, legal and marketing game” that saw the famous inventor stage publicity events where dogs, horses and even an elephant were killed using Westinghouse’s alternating current. The two men would play out their battle on the front pages of newspapers and in the Supreme Court, in the country’s first attempt to execute a human being with electricity. …

DC power … was very difficult to transmit over distances without a significant loss of energy. … [I]n alternating current … high-voltage energy could be transmitted over long distances using lower current—miles beyond generating plants, allowing a much more efficient delivery system. …

Thomas Edison, by Victor Daireaux, 1880s

Thomas Edison had an idea. Surely Westinghouse’s system must be more dangerous, what with all that voltage passing through the wires. “Just as certain as death,” Edison predicted, “Westinghouse will kill a customer within 6 months after he puts in a system of any size.” …

In November 1887, Edison received a letter from a dentist in Buffalo, New York, who was trying to develop a more humane method of execution than hanging. Having witnessed a drunk man accidentally kill himself by touching a live electric generator, Alfred P. Southwick became convinced that electricity could provide a quicker, less painful alternative for criminals condemned to death. … Edison, who opposed capital punishment, at first declined to get involved with Southwick’s project. But when the dentist persisted, Edison, recognizing the opportunity that had landed in his lap, wrote back to say that although he would “join heartily in an effort to totally abolish capital punishment,” he did have some thoughts about electric currents in which to dispose of “criminals under sentence of death”. “The most effective of these,” he wrote, “are known as ‘alternating machines,’ manufactured principally in this country by Mr. Geo. Westinghouse, Pittsburgh.” …

George Westinghouse

In June 1888, Edison began to demonstrate the lethal power of alternating current for reporters. He rigged a sheet of tin to an AC dynamo and led a dog onto the tin to drink from a metal pan. Once the dog touched the metal surface, it yelped and the little cur dog fell dead.” …

Electricity will kill a man “in the ten-thousandth part of a second,” Edison told one reporter shortly after the demonstration, and he was quick to remind him that “the current should come from an alternating machine.” …

An electricity salesman named Harold Brown was commissioned by the state [of New York ] to build an electric chair, and Edison was paying him behind the scenes to use alternating current in his design. …

When New York State sentenced convicted murderer William Kemmler to death, he was slated to become the first man to be executed in an electric chair. Killing criminals with electricity “is a good idea,” Edison said at the time. “It will be so quick that the criminal can’t suffer much.” He even introduced a new word to the American public, which was becoming more and more concerned by the dangers of electricity. The convicted criminals would be “Westinghoused“. …

Westinghouse was livid. He faced millions of dollars in losses if Edison’s propaganda campaign convinced the public that his AC current would be lethal to homeowners. …

William Kemmler

[O]n August 6, 1890, Kemmler was strapped into Harold Brown’s chair at Auburn prison and wired to an AC dynamo. When the current hit him, Kemmler’s fist clenched so tight that blood began to trickle from his palm down the arm of the chair. His face contorted, and after 17 seconds, the power was shut down. Arthur Southwick, “the father of the electric chair,” was in attendance and proclaimed to the witnesses, “This is the culmination of ten years work and study. We live in a higher civilization today.”

Yet behind the dentist, Kemmler began to shriek for air.

“Great God! He’s alive!” someone shouted.

“Turn on the current! Turn on the current instantly!” another screamed. “This man is not dead!”

But the dynamo needed time to build its current, and Kemmler wheezed and gasped before the horrified witnesses as the electricity began to course through his body. Some witnesses fainted while others vomited, as it appeared that Kemmler was on the verge of regaining consciousness. The back of his coat briefly caught fire. Minutes passed until Kemmler finally went rigid. The current stopped and he was pronounced dead by Dr. Edward Spitzka, who predicted, “there will never be another electrocution.” …

Westinghouse was horrified by the reports of Kemmler’s execution. “It has been a brutal affair,” he said. “They could have done better with an ax.” …

Despite all of Edison’s efforts … the superiority of the AC current was too much for Edison and his DC system to overcome. (source)

And because this first electrocution was so successful, it became the standard method for the next decades.

More on capital punishment here. More on botched executions here. More in the annals of heartlessness here.

Capital Punishment (39): Major Targets of Capital Punishment Oppose It (Surprise, Surprise…)

Everyone knows that capital punishment in the U.S. is primarily about killing blacks. Intuitively, one can therefore assume that levels of support for capital punishment are lower among African Americans than among white Americans. And that’s an example of a good intuition:

(source)

More about capital punishment here.

Capital Punishment (38): The Truth About the Deterrent Effect

If I didn’t manage to convince you of the stupidity of deterrent talk in my two previous posts (here and here), then neither will I manage today. Still, I’m a hopeless optimist by nature, so I’ll try anyway. A vital presupposition in the deterrence argument in favor of capital punishment (or any type of punishment by the way) is the minimally rational nature of criminals: if criminals don’t weigh the costs and benefits of actions before they undertake them, an extra cost as heavy as death won’t make any difference to their actions. And they don’t:

The tenet that harsher penalties could substantially reduce crime rates rests on the assumption that currently active criminals weigh the costs and benefits of their contemplated acts. Existing and proposed crime strategies exhibit this belief, as does a large and growing segment of the crime literature. This study examines the premise that criminals make informed and calculated decisions. The findings suggest that 76% of active criminals and 89% of the most violent criminals either perceive no risk of apprehension or are incognizant of the likely punishments for their crimes. (source)

It seems that criminals, like the rest of us, are seldom the cold, mechanical and calculating types. And the best thing about this: even if it was all wrong and capital punishment could deter, it would still be unacceptable for other reasons.

More about deterrence here and here.

The Causes of Human Rights Violations (30): Language

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The effect of language on human rights can be straightforward, as in the case of hate speech. Imagine an individual member of a racial minority living among members of the majority. The latter are constantly hurling insults and hateful bile at this individual, making it almost impossible for her to move about the neighborhood, find employment and do many of the other things she has a right to do. In this case, a particular type of language and a particular use of this language has obvious repercussions on someone’s human rights.

But what I’m interested in here are more subtle effects of language on human rights. Take the example of the gender-exclusive pronoun. In most languages, personal pronouns distinguish male from female, and the male pronoun is the default: when we’re not talking about a specific person, or when we’re talking about a mixed gender group, then we use the male pronoun. (This is similar to the equally common rule that children should get the surname of the father). Attempts to invent and promote gender-neutral or gender-inclusive pronouns haven’t quite succeeded, and the habit of using the female pronoun as the gender-exclusive one is often considered awkward. I also fail to avoid the traditional rule in my writing. In general, this problem is often labeled a fake one, invented by people high on political correctness.

And yet, the problem isn’t fake at all. Compared to other, more extreme uses of language such as hate speech, the harm done by the use of gender-exclusive pronouns may be small, but it’s not negligible. There’s a study here that tries to measure the harm:

Three studies assessed whether a common cultural practice, namely, the use of gender-exclusive language (e.g., using he to indicate he or she), is experienced as ostracism at the group level by women. Women responded to the use of gender-exclusive language (he) during a mock job interview with a lower sense of belonging, less motivation, and less expected identification with the job compared to others exposed to gender-inclusive (he or she) or gender-neutral (one) language (Studies 1 and 2). Moreover, the more emotionally disengaged women became over the course of a job interview upon hearing gender-exclusive language, the less motivation and job identification they subsequently reported (Study 3). Together, these studies show that subtle linguistic cues that may seem trivial at face value can signal group-based ostracism and lead members of the ostracized group to self-select out of important professional environments.

Another study focused on the use of gendered words in job ads, and found that ads signal whether a job is typically held by men or women. As a result of this signaling, women are less likely to apply to certain jobs, and this in turn perpetuates gender inequality in the workplace. Wording differences in ads affect the job’s relative appeal to men and women, independent of the type of job. The use of more masculine wording such as “competitive” makes traditionally female-dominated jobs more appealing to men, and vice versa.

In both these examples – gender-exclusive pronouns and gendered language in job ads – women respond – or are made to respond – in an unconscious way so as to perpetuate gender inequality.

A similar example of language affecting human rights is called stereotype threat: when the belief that people like you (African-Americans, women, etc) are worse at a particular task than the comparison group (whites, men, etc) is made prominent through some kind of preliminary “information” or briefing, then you perform worse at that task. For example, if a group of girls about to take a mathematics test, is “reminded” that boys tend to do better on this type of test, it’s likely that the girls will do more poorly on the test than they would have done had they not been told. It’s not difficult to imagine cases in which this can be used in order to perpetuate inequality, submission and domination. (More on stereotype threat here and here).

I just mentioned signaling, and signaling in the more strict definition of the term – engaging in speech or activity not necessarily for the sake of this speech or activity but in order to convey relevant information about yourself (for example, people acquire an education and talk about it not only because they want to be educated but also because they want to signal ability to potential employers) – is yet another example of the way in which language affects human rights. Take the case of capital punishment: I strongly believe that this is not about fighting crime, just retribution or desert, or even anger and revenge. Proponents of capital punishment, by expressing their support for it, signal their own moral rectitude. This is especially important for politicians, elected judges etc. In other words, for those who could, if they wanted, end the practice. (More on human rights and signaling is here).

Obviously, language doesn’t always have a negative effect on human rights. It’s easy to find examples of a positive effect: storytelling can promote empathy, and language aimed at shaming people can rid the world of rights violations when reasoning is insufficient.

(image source)

Annals of Heartlessness (7): As Narrated by Mr. Scalia

Antonin Scalia, photo by Rose Lincoln/Harvard News Office

(source)

Justice Scalia’s view of killing or imprisoning the innocent:

There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. (source, source)

The context is of course the state murder of Troy Davis yesterday. More on capital punishment here. More in the annals of heartlessness here.

Political Graffiti (156b): Troy Davis

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Read about the Troy Davis case here. More on capital punishment in general here. More political graffiti here.

Capital Punishment (37): Drug Offenses in Asia

These are the countries that take the “war on drugs” almost literally and execute drug offenders on a large scale:

Iran:

Saudi Arabia:

Singapore:

Malaysia:

Vietnam:

(source)

In China, the numbers are difficult to ascertain given the government’s tough stance on secrecy. Thousands are executed each year, but one can’t be more precise than that.

The Dui Hua Foundation suggests that approximately 5,000 people were executed in 2009, and states that “the manufacture, transport, smuggling, or trafficking of illegal drugs account for a significant number of executions reported by Chinese media”. (source)

Other countries in Asia also use the death penalty as a punishment for drug crimes, but to a lesser extent.

More on capital punishment in China, Iran and Saudi Arabia.

Capital Punishment (36): Retribution

Paul Delaroche’s masterpiece, 'The Execution of Lady Jane Grey'. First displayed in Paris in 1834, it shows in poignant detail the 17-year-old Lady Jane groping for the execution block, gently guided by a towering male figure while her courtiers collapse in grief by her side. Her brilliant white dress portrays her as the innocent Protestant martyr. She inherited the English throne reluctantly during the bitter political wrangling that followed the death of Edward VI in 1553, and was swiftly deposed in a counter-coup by her Catholic cousin Mary

I understand the argument that people sentenced to death aren’t getting any worse than they’ve given the world. Still, I think that the state could and should be held to a slightly higher standard of behavior than that which we expect from people who are literally deemed worthy of being killed like animals. (source)

More on capital punishment and retribution. More human rights quotes.

The Joke That is the U.S. Supreme Court

Jack Nicholson in The Shining

(source)

Not good: naked people

Good: pretending to kill people, and having the state actually kill people.

Annals of Heartlessness (6): Executing the Innocent

(source)

“It takes balls to execute an innocent man,” – a Texas primary voter, when asked about the charge that his preferred candidate for governor, Rick Perry, may have presided over the execution of an innocent man, Cameron Todd Willingham. (source)

More in the annals of heartlessness. More on capital punishment.

Capital Punishment (35): The Cost

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Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then. (source)

Compared to other types of criminal punishment, that’s a lot:

A 2003 legislative audit in Kansas found that the estimated cost of a death penalty case was 70% more than the cost of a comparable non-death penalty case. Death penalty case costs were counted through to execution (median cost $1.26 million). Non-death penalty case costs were counted through to the end of incarceration (median cost $740,000). (source)

OK, you may say, but what if we just shoot the bastards immediately? Wouldn’t that drive down the cost? We could then avoid the lengthy appeals. Indeed, we could avoid the appeals, but the cost would not drop significantly:

The greatest costs associated with the death penalty occur prior to and during trial, not in post-conviction proceedings. Even if all post-conviction proceedings (appeals) were abolished, the death penalty would still be more expensive than alternative sentences. (source)

And even if immediate execution would drive down the cost, there are good reasons not to go down that road:

(source)

Not surprisingly, our current recession has had at least the benefit that some cash-strapped governments are reconsidering the death penalty. That is, until the economy recovers, I’m afraid.

More on capital punishment and the recession here; more on capital punishment in general here.

Capital Punishment (34): Mere Signaling

It’s often assumed that capital punishment is about fighting crime, just retribution or desert, or perhaps about anger and revenge, but in reality it’s much more about signaling. And by signaling I don’t mean the signaling of threats to potential murderers so that they are deterred, or the signaling of the “just” nature of a society that takes an eye for an eye. Proponents of capital punishment, by expressing their support for it, signal their own moral rectitude. Their expression of support refers to high profile crime cases that are widely discussed in the media and that are likely to be familiar to friends, family and others to whom people want to signal. Signaling support for the death penalty in reference to such high profile cases makes the signal particularly strong and deep, partly because it’s so full of familiar and shockingly emotional detail.

Politicians who favor capital punishment and who keep the legal regime in place are equally focused on signaling. They signal that they care about the emotions of the victims of crimes and of the relatives of the victims, and at the same time they signal that they emotionally identify with those who care about the victims of crime. In other words, they signal that they feel connected to the large majority of humanity. And that kind of signal is vitally important for democratic politicians.

Opponents of capital punishment simply don’t have the same signaling power. For example, there’s no large constituency for signals about sympathy for criminals or for signals about anti-instrumentalization. Politicians don’t stand a lot to gain from such signals, and neither do citizens concerned about how others think of them. On the contrary, they risk signaling emotional indifference for the plight of victims and hence they risk lowering their moral standing.

This asymmetry in signaling power between proponents and opponents can explain the persistence of rational arguments in favor of capital punishment, even after they have been shown to be wrong or inconsistent with the facts. (That’s the case for the arguments based on the deterrent effect for instance – see here and here – but also for the arguments based on retribution which are hopelessly circular: a certain punishment is appropriate for a crime because that crime requires a certain punishment). Proponents of capital punishment obviously can’t justify it simply on the basis of emotional identification. They need a more rational story as a cover. And as long as this story can be used successfully in the signaling process, that will do, whether or not the story is factually or logically correct. That will do, because opponents who point to factual or logical failings in the story amplify the signaling of the proponents: by pointing to these failures, the opponents signal rationality and detachment rather than emotional connection, and they thereby make the case for the proponents.

This is counterintuitive, given that it’s most often the opponents of capital punishment who are accused of emotionality and a lack of toughness, but I think it’s the right conclusion.

More on human rights and signaling is here. More on the death penalty here.

Related Articles

• How the planned execution of Teresa Lewis challenges our views on gender and capital punishment. (slate.com)
• It Beats Death By Electrocution (andrewsullivan.theatlantic.com)
• Jerry Brown Wants Executions To Resume In California (huffingtonpost.com)
• Swiss death penalty advocates drop campaign for referendum to restore capital punishment (foxnews.com)
• Teresa Lewis: God have mercy on us | Lynn Litchfield Divers (guardian.co.uk)

Human Rights Facts (62): US Public Opinion on a Number of Human Rights Issues

Here are some interesting numbers on the way Americans think about certain human rights issues:

(source)

Assisted suicide is, unfortunately, still condemned by a small majority. Official homicide, on the contrary, is believed to be a good thing according to a large majority. (However, it has been shown that approval rates drop sharply when the alternative to capital punishment is life without parole). Pornography, which according to some is a free speech issue, is rejected by a two-thirds majority. And abortion, according to some a violation of the right to life, is condemned by a small majority. Homosexuality is now accepted by a small majority.

More human rights facts here.

Annals of Heartlessness (3): Chopping Off Heads, Needs Some Getting Used To

still from a video showing state-appointed executioner of Mecca in Saudi Arabia, Abdallah Al-Bishi

(source)

From an interview with the state-appointed executioner of Mecca in Saudi Arabia, Abdallah Al-Bishi. The interview aired on the Lebanese LBC TV on November 4, 2006:

Reporter: “This is the most renowned executioner in Saudi Arabia, Abdallah Bin Sa’id Al-Bishi, who carries out the executions. His sword delineates the border between seriousness and play. There is no negotiating with him once the heads have ripened. When it’s harvesting time, he is the most suited for the job.”

Abdallah Al-Bishi: “I started to work in this field after the death of my father – about a week or 10 days after his death, in 1412 [1991-92]. I was surprised that the people who supervise this field summoned me, saying I had a mission. Allah be praised. Of course, I did not have swords or anything back then, but I used the swords of my father, may he rest in peace, and carried out the execution. My first mission was to execute three people.”

execution in Riyadh

Reporter: “Abu Bader’s swords have cut off a hundred heads and more. His eldest son, Badr, is training in the same profession. He inherited this profession from his father, Sa’id Al-Bishi. He remembers how, when still a small boy, he accompanied him to the beheading of a criminal in Mecca. That sight, Abu Badr says, was the turning point in his life.”

Abdallah Al-Bishi: “I was at school, and an execution was set for my father in Mecca. It was to take place in front of the King Abd Al-’Aziz Gate. Before all that happened at the Al-Haram Mosque, the executions were held there. We showed up. I was a little boy. The first thing that came to my mind when people talked about executions was the digestive system. I wanted to see it. At that time, we had an exam at school on the digestive system, and we had to explain about the digestive system and whatever… So I came along, and the moment my father executed the man, I ran to see the digestive system, but all I could see was the man’s head flying, and where the neck used to be, there was a kind of well. It went down. That’s it. I couldn’t take it anymore. I woke up in the car on the way home. At night, I tried to go to sleep, but couldn’t. I had nightmares, but only once. Then I got used to it, Allah be praised.” (source)

More on capital punishment in Saudi Arabia here, here and here. More on capital punishment in general here. More in the annals of heartlessness here.

(image source)

Iconic Images of Human Rights Violations (64): Heads Claimed by the Guillotine

heads claimed by the guillotine

(source)

Some of the heads claimed by the guillotine over the years (left to right, top to bottom):

• Abel Pollet (1909)
• Canute Vromant (1909)
• Albert Fournier (1920)
• Jean Van de Bogaert (1905)
• Théophile Deroo (1909)
• Joseph Vacher (1898)
• Charles Swartewagher (1905)
• Auguste Pollet (1909)
• Lénard, Oillic, Thépaut and Carbucci (1866)
• Louis Lefevre (1915) – Lefevre’s head underwent a brain autopsy after the execution, which explains the incision across the forehead (not a botched execution as claimed by a French newspaper).

More iconic images of human rights violations in general are here, and more images on capital punishment specifically are here, here and here. More on capital punishment here.

Human Rights Maps (126): Layout of Execution Rooms

This post isn’t about maps in the geographical sense, as is normally the case in this blog series about human rights maps. Still, I think it’s interesting to have a look at the topography of the death penalty, given that few among us actually know a lot about the actual practice of an execution (it’s not done in public anymore, at least not in most parts of the world).

Some are reconsidering the death penalty because of the costs involved, but not California. Here’s an image from Ari Kohen’s blog:

(source)

How nice of them to separate the two families. Let’s just hope that they won’t think that having a bigger room means having to use it more often.

An interesting setup is this one from Japan:

(source, source)

This is the execution room in the Tokyo Detention House. Notice the three buttons in the second picture, placed on the wall in a room adjacent to the actual execution room. The setup is designed in such a way that the executioner doesn’t have to come face-to-face with the convict. Moreover, the three buttons have to be pressed simultaneously by three officers, but only one button actually opens the trapdoor (red square on the floor, below the hook in the ceiling). None of the officers is told which button is the live one that will cause the prisoner’s death.

The red square on the white floor marks the spot in the windowless room where convicts stand with the noose around their neck, before a trapdoor opens below them and they plunge to their deaths. The noose is hung from the hook in the ceiling just above the trapdoor. I suppose the rings in the wall and floor are for restraining the prisoner temporarily.

Below is a floor plan of the execution room in the prison at Terre Haute, Indiana:

(source, source)

If you look carefully, you’ll notice that the viewing rooms have toilet facilities. I’m sure there’s a good reason for that.

Below is the hanging room in the Washington State Penitentiary (also called the Walla Walla State Penitentiary):

(source)

The curious thing here is that the viewing area seems to be positioned at a height that makes it possible to see the face of the convict after the drop. That’s not something I understand, or want to understand.

Between 1991 and 1998, Lucinda Devlin photographed in different penitentiaries in the U.S. She called the resulting series The Omega Suites, alluding to the final letter of the Greek alphabet as a metaphor for the finality of execution. The series includes numerous photographs of execution chambers. Here are a few:

Electric Chair, Greenhaven Correctional Facility, Greenhaven, New York, 1991

Notice the air filter just above the chair. I imagine the rubber on the floor is there to protect the executioners. The same room viewed from the executioner’s booth (notice the large switch):

Executioner's Room, Greenhaven Correctional Facility, Greenhaven, New York, 1991

(source)

Some more from the same series:

gallows at the Smyrna, Delaware prison

gas chamber in Baltimore, Maryland

(source)

There’s also this innovative approach in China.

More about capital punishment is here. More maps about capital punishment are here. More human rights maps in general are here.

Related Articles

• Japan opens up death chamber to media for first time (alternet.org)
• Human Rights Maps (116): Life Without Parole For U.S. Teenagers (filipspagnoli.wordpress.com)

Iconic Images of Human Rights Violations (63): Beheading in Saudi Arabia

beheading in Saudi Arabia, on "Chop Chop Square" in Riyadh, of Dhahian Rakan al-Sibai’i, July 2007

(source)

Read more here about capital punishment in Saudi Arabia. More iconic images of rights violations are here.

What Are Human Rights? (24): Absolute Rights?

One of the great puzzles in human rights theory is the possible existence of absolute rights. It’s commonly accepted that most if not all human rights are “relative” in the sense that they can be limited if their exercise results in harm done to other rights or to the rights of others. Freedom of speech for example doesn’t offer “absolute” protection for all kinds or instances of speech (see here).

If there are any human rights that do offer absolute protection without exception, the right to life, the right not to be tortured and the right not to suffer slavery would be good candidates. Whereas it seems quite reasonable to silence someone when he or she incites violence or hatred, it’s much harder to imagine cases in which it’s reasonable to kill, torture or enslave someone. I’ll focus here on the right to life.

How would you go about justifying the absolute nature of that right? First, you could claim that life is the supreme value. Life is indeed supreme in one sense of the word: it’s lexically prior as they say. It comes first. You can have life without freedom or equality, but not vice versa. (Of course, there are also other more or less promising ways to argue for life’s supremacy in the universe of moral values. I won’t go there now, and neither will I point to the fact that people often sacrifice their lives for a higher purpose. Let’s just assume for the sake of argument that the lexical priority of life suffices, in general, to ground life’s supremacy in the system of values).

If life is the supreme value, that means that no life can be sacrificed for an inferior value. You can’t go about killing poor or handicapped people for the sake of aggregate wellbeing. And neither can you execute criminals in an effort to deter future attacks on people’s security rights.

So life is then the supreme value in the sense that it can’t simply be traded against another inferior value. That already makes a lot of potential limitations of the right to life unacceptable, and the right to life therefore moves a significant distance towards absoluteness. However, if life is the supreme value, it’s still theoretically possible to trade the lives of a few for the lives of many others. So not life as such, as an aggregate or abstract concept needs to be the supreme value, but individual life. If individual life is the supreme value, the lives of some can’t be put on a scale to see if their sacrifice could protect a higher number of other lives. Robert Nozick gives the following example to make this point salient:

Robert Nozick

A mob rampaging through a part of town killing and burning will violate the rights of those living there. Therefore, someone might try to justify his punishing [i.e. killing] another he knows to be innocent of a crime that enraged a mob, on the grounds that punishing this innocent person would help to avoid even greater violations of rights by others, and so would lead to a minimum weighted score for rights violations in the society. Robert Nozick

So, if you accept the argument made so far, does this mean that you have established the absolute nature of the right to life and that this right therefore can never be limited? It would seem so. If life is the supreme value, it’s hard to find a reason to limit it, since this reason would then have to be a superior value. And if individual life is the supreme value, you can’t play a numbers game to conclude that the sacrifice of some is necessary in order to save a higher number of other lives. (See also, for example, the trolley problem, the organ transplant case, or the ticking bomb case).

However, categorical claims like this always seem to me to make things too easy. Something else is necessary. Take four cases in which lives are commonly sacrificed without universal or often even widespread condemnation:

• individual self-defense
• war as national self-defense
• capital punishment and
• the murder of a terrorist (and perhaps his hostages) about to kill many others (e.g. the shooting down of a commercial plane hijacked by terrorists and about to be used as a weapon).

In all these cases, the lives of some are sacrificed for the lives of others (assuming that capital punishment has a deterrent effect, which is probably not the case). If the right to life is really absolute, none of these actions would be morally or legally acceptable. In order to make them acceptable, there has to be something more than a mere quantitative benefit in terms of numbers of lives saved. I believe the sacrifice of life is acceptable if in doing so one doesn’t violate these three rules:

• we should only sacrifice life in order to save life, and not in order to promote other values, and
• we shouldn’t treat other people as means, and
• we shouldn’t diminish the value of life.

1916 photograph of an execution by firing squad in Mexico. Caption: "Executing an Enemy - Just over the boundary such gruesome sights as this have been of frequent occurrence during the last few years and have kept alive the apprehensions of Americans on the border."

In the case of one of the four actions cited above, namely capital punishment, we do treat other people as means and we diminish the value of life. Murderers are used as instruments to frighten future murderers. Capital punishment is supposedly intended to further respect for life, but in fact normalizes murder. (See here for a more detailed treatment of this issue). In the three other cases, we don’t necessarily use people as means or diminish the value of life. Hence these case can be acceptable limitations of the right to life.

So the right to life is only quasi-absolute: limitations are possible but extremely rare because a number of very demanding conditions have to be met:

• you can’t kill for the promotion of values different from life
• you can’t generally count lives and kill people if thereby you can save more lives
• and if you do want to kill in order to save lives, you have to do it in a manner that doesn’t instrumentalize human beings or diminishes the value of life.

The Ethics of Human Rights (43): Human Rights and Utilitarianism

You often hear the claim that human rights and utilitarianism don’t mix. And indeed, at first sight they are rival and incompatible moral theories that have radically different prescriptions about what we should do in order to do good.

Utilitarianism tells us to do what maximizes “utility” (in whichever way “utility” is understood: pleasure, happiness, wellbeing etc.). We should, in other words, try to act in such a way that our actions produce as many good consequences as possible, and that the aggregate of those good consequences outweighs – in terms of “utility” – the aggregate result of whatever different combinations of actions are possible. We should try to maximize utility regardless of whether rights are respected or violated while doing so. The good is prior to and independent of the right or duty. Something is a right or a duty only when it contributes to overall utility, and only when it does so to a higher extent than violating that right or duty.

Conversely, human rights tell us that we can never do certain things, not even if doing those things would maximize overall social utility (happiness, pleasure etc.). Some human rights theories provide exceptions to this rule and don’t use the qualifier “never”. For example, in a situation of extreme danger for the whole of society, these rights theories provide the possibility that some rights are temporarily suspended. However, they typically provide a very high threshold, otherwise it would become difficult to speak about “rights” and the theory would collapse into utilitarianism (if rights can be suspended regularly, they are no longer rights).

For example, even if it were the case that capital punishment has an important deterrent effect, it would not be permissible. Executing people for crimes as a means to diminish the occurrence of future crimes is just not something one can do to people. It instrumentalizes people in an unacceptable way according to most rights theories. The right to life is just too important and a deterrent effect doesn’t lift us above a threshold of suspension of rights.

People have rights, even if the outcome of those rights is suboptimal and more overall utility could be achieved when some rights are violated in some cases. Only when the utility of violating rights is very high do some rights theories allow those violations. These rights theories are threshold theories that allow utilitarian or consequentialist considerations to “kick in” when a certain threshold is reached. For example, they allow torture if a very large number of lives is at stake, even though generally and under non-marginal conditions people have a strong right not to be tortured.

Immanuel Kant

That already shows that human rights and utilitarianism-consequentialism aren’t necessarily incompatible. Of course, some rights theories claim that they are. Those are the non-threshold theories, which are more extreme rights or duty theories that allow no exceptions. An example is Kant’s infamous argument about not lying to a murderer inquiring about the whereabouts of his intended victim – “fiat justitia et pereat mundus“.

Compared to utilitarianism, human rights theories – both strong and threshold theories – have the advantage that they are able to protect strong interests of minorities and individuals against the weight of aggregated and possibly weak interests of large majorities. It’s intuitively appealing to have a theory that protects individual rights against aggregate social utility. Utilitarianism – in its crudest forms – has often been accused of not taking the differences between people seriously and of not caring about individual suffering as long as the total advances.

We don’t even have to look at extreme threshold cases to see that many human rights theories have consequentialist or utilitarian features. Obviously, there is no human rights theory that holds rights hostage to case-by-case utility accounting or that claims that all human rights have optimal consequences all of the time. And yet, most human rights theories claim that human rights are necessary because they generally produce good consequences and promote certain important values. Maybe not happiness, but peace, prosperity etc. (See here). For example, there’s a strong argument that free expression promotes knowledge and that religious liberty promotes communal peace.

Claiming that respecting human rights is generally optimal from a utilitarian perspective doesn’t mean that it’s always optimal. You could argue that even if it’s not always optimal to respect human rights we still should do so, because we’re unable to distinguish between cases in which it is or is not optimal to respect human rights (perhaps because our predictive powers aren’t good enough to judge the suboptimal consequences of rights), or because violating rights once will diminish their authority and will ultimately destroy them, making it impossible to reap the generally positive benefits of rights.

More posts in this series are here.

Related Articles

• Justifying Human Rights (filipspagnoli.wordpress.com)
• What does a utilitarian approach to animal rights suggest? (marginalrevolution.com)

Human Rights Maps (116): Life Without Parole For U.S. Teenagers

(source)

Currently, over 2,500 prisoners sit behind bars in the US without the possibility of parole for crimes committed while they were children.

In May 2010, the Supreme Court ruled that the 8th Amendment‘s ban on cruel and unusual punishment means juvenile offenders who haven’t been convicted of murder shouldn’t be sentenced to life in prison without any chance of parole.

A few years ago, the Court already banned the death penalty for juvenile offenders. See also here.

(source, click image to enlarge)

More on the death penalty, and on juvenile incarceration. More human rights maps.

Related Articles

• Judges Weigh Fairnes of Juvenile Life Without Parole (blogs.wsj.com)
• Florida Drags its Heels on Juvenile Lifers (criminaljustice.change.org)

Capital Punishment (33): It’s Not What You Do, But What You Do to Whom

the hanging of Rainey Bethea, the last public execution in the U.S.

In the U.S., and probably also in other countries that still use the death penalty, not all murders are alike. Ostensibly, the death penalty is the supreme punishment for the supreme crime, i.e. murder. But some cases of the supreme crime are more likely to result in the supreme punishment than others. For example, it’s well-known that a black person who has committed murder is more likely to be executed than a white person, even if the details of their crimes are very much alike.

It seems that the moralistic justification of capital punishment – that the worst of crimes should be met with the severest of punishments – is just talk, applicable in some cases but not in others. This inconsistency is incompatible with moral talk, since morality is precisely about general and blind rules. The inconsistency becomes even more clear when we consider that it’s not just the race of the perpetrator that makes it more or less likely that horror is answered with horror. People who murder whites are much more likely to be executed than those who murder blacks:

(source)

I don’t want to sound conspiratory, but it does seem like the death penalty is an instrument in the continued subjugation of blacks and the protection of whites.

On top of the race issue, there’s also a class issue:

A defendant is much more likely to be sentenced to death if he or she kills a “high-status” victim, according to new research by Scott Phillips, associate professor of sociology and criminology at the University of Denver (DU).

According to his research published in Law and Society Review, (43-4:807-837), the probability of being sentenced to death is much greater if a defendant kills a white or Hispanic victim who is married with a clean criminal record and a college degree, as opposed to a black or Asian victim who is single with a prior criminal record and no college degree.

“The concept of arbitrariness suggests that the relevant legal facts of a capital case cannot fully explain the outcome: irrelevant social facts also shape the ultimate state sanction” Phillips says. “In the capital of capital punishment, death is more apt to be sought and imposed on behalf of high status victims. Some victims matter more than others.”

Phillips research is based on 504 death penalty cases that occurred in Harris County, Texas between 1992 and 1999. (source, source)

More on capital punishment is here.

Related Articles

• The Incapacitation Argument For Capital Punishment (filipspagnoli.wordpress.com)
• Human Rights Facts (209): Capital Punishment in Japan (filipspagnoli.wordpress.com)
• Illinois House Votes To Abolish Death Penalty (huffingtonpost.com)
• Should States Abolish Death Penalty to Cut Costs? (abcnews.go.com)

Capital Punishment (32): Use of Death Penalty Continues to Decline in the U.S.

Some fresh data for 2010:

(source)

More on capital punishment is here (more data are here).

Related Articles

• Fewer Executions In 2010 (huffingtonpost.com)
• Death Penalty Use and Support Near Record Lows, Report Finds (time.com)
• Texas Embraces Alternatives to Death while California Embraces Killing (criminaljustice.change.org)

Capital Punishment (31): The Incapacitation Argument For Capital Punishment

Capital punishment is usually defended on the basis of a theory of deterrence or retribution, but another common argument is incapacitation: killing criminals guarantees that they cannot commit further crimes. It’s likely that this argument plays an important role in many decisions to impose capital punishment, since members of juries may fear, mistakenly, that life imprisonment without parole actually means something like “on average 10 years in prison” (see here).

The obvious counter-argument is that life imprisonment, when it really means “life”, is equally incapacitating. True, say the proponents of capital punishment, but criminals may kill when in prison. In particular, they may kill fellow inmates. OK, so let’s do a thought experiment. Imagine that we don’t use the death penalty for murder, but incarcerate murderers for life, together with only fellow murderers. The only killing they can do is of their fellow incarcerated murderers.

The former gas chamber in San Quentin State Prison

Would that kind of killing be objectionable to proponents of capital punishment? I think it shouldn’t be, since the victims of this kind of killing would also have been killed under a regime of capital punishment. Maybe opponents would object that this system doesn’t treat all murderers the same: some get killed, others not. However, I fail to see what difference it makes to a murderer if she is killed by fellow inmates rather than by the state, or if she is killed while others aren’t. She’ll be dead, and in no position to complain about others being still alive. (And don’t tell me murder by the state is preferable because it’s more “humane“). Moreover, our existing regimes of capital punishment don’t manage to kill all murderers either. And finally, non-murderers can also kill while in prison. Should we execute them preemptively?

For opponents of capital punishment, it does make a huge difference whether murderers are killed by the state or by their colleagues: murder by the state means the instrumentalization of human beings, whereas murders between inmates are regrettable and to be avoided, but not more or less than murders in general.

More on capital punishment here.

Related Articles

• Why I don’t believe in the death penalty (psychologytoday.com)
• Capital Punishment is Unnecessary (socyberty.com)
• The death penalty should be abolished (seattletimes.nwsource.com)
• Stevens’ Powerful Anti-Death-Penalty Views (time.com)
• Op-Ed Columnist: Broken Beyond Repair (nytimes.com)

Capital Punishment (29): In Japan

execution room in Japan

Japan currently has 107 inmates on death row, and no pardon is allowed. From 2000 to 2009, Japan sentenced 112 people to death and executed 46. …

Japan … has a 99 percent conviction rate. …

Inmates on death row are not told when they will be executed until the last minute — a procedure Japanese officials say prevents panic among inmates — and their family members and lawyers are informed only afterward, as are the news media. …

The inmate is handcuffed and blindfolded before entering the execution room, officials said. Three prison wardens push separate buttons, only one of which releases the trapdoor [for hanging] — but they never find out which one. Wardens are given a bonus of about $230 every time they attend an execution. (source)

I don’t know whether or not this is more humane than the system in the U.S., where convicts get a date in advance, only to see it postponed several times over several decades. What I do know is that the Japanese method of executing people clearly shows the moral confusion of those administering the whole thing. If you’re convinced that capital punishment is the right thing to do, you do it openly and not unannounced in secret locations while trying not to burden the executioners with too much moral guilt.

More on capital punishment. More on Japan. More human rights facts.

Related Articles

• A Walk Through Japan’s Execution Chambers (nytimes.com)
• “Japanese officials reveal execution chambers” and related posts (theonlinecitizen.com)
• Japan Reveals Its Execution Room For The First Time [Execution] (gizmodo.com)
• Media shown Japan death chamber (bbc.co.uk)

Human Rights Quizzes

Test your knowledge of:

• human rights
• economics
• religion and religious liberty (a bit too American, this one, so bonus points for everyone else)
• the death penalty
• international humanitarian law during wartime

Human Rights Video (20): Capital Punishment and the Recession

I mentioned before that capital punishment could be one of the unintended victims of the recession. Governments spend enormous amounts of money on capital punishment, and dwindling budgets could convince some of them to abolish capital punishment.

To avoid executing an innocent person, the death penalty process is long, complicated, and expensive. Each prosecution seeking death costs approximately $1.1 million more than a trial seeking permanent imprisonment, and with more than 700 inmates, California’s death row is by far the largest and most costly in the nation. In total, California’s death penalty system costs taxpayers $137 million per year. Contrast that with just $11 million per year if we replace the death penalty with permanent imprisonment. … Today, if Gov. Arnold Schwarzenegger were to convert the sentences of all those on death row to permanent imprisonment, the state would save $1 billion over the next five years without releasing a single prisoner. (source)

Of course, the high cost of the death penalty isn’t the only or the most important reason to stop it. If it could be done at no expense, it still shouldn’t be done. More here. More human rights videos here.

Iconic Images of Human Rights Violations (53): Last Public Execution in the US

(source, source, source, photos by Perry Ryan, author of The Last Public Execution in America)

Rainey Bethea’s public execution on Aug. 15, 1936, in Owensboro, Kentucky. The era of public executions in the United States sputtered to a halt after 20,000 turned out for the hanging of Bethea, a black man convicted of raping and killing a elderly white woman. It was also the first first hanging supervised by a woman.

Because the original warrant specified that the hanging would take place in the courthouse yard, where the county, at significant expense, had recently planted new shrubs and flowers, a second death warrant moved the location of the hanging from the courthouse yard to an empty lot near the county garage. The executioner was drunk.

Rainey Bethea

Timothy McVeigh requested in 2001 that his execution be televised, but this was denied. An internet company also sued for the rights to broadcast it.

More on capital punishment. More iconic images of human rights violations.

Capital Punishment (28): Extreme “Tinkering With the Machinery of Death” in the U.S.

The title of this blog post refers to a famous quote by former US Supreme Court Justice Harry A. Blackmun. It’s my belief that the U.S. Supreme Court, in its desire to both uphold capital punishment and simultaneously limit its scope, has maneuvered itself into an incoherent position. It has “tinkered with the machinery of death” to such an extent that the application of capital punishment in the U.S. should be viewed as a complete mess, even by those of us who don’t have an instinctive repulsion for capital punishment, who don’t make a philosophical or moral argument against it, and who don’t agree that there are so-called “systemic problems” in the application of capital punishment in the U.S. (as opposed to the moral problems of capital punishment per se), such as

• the racist component
• the discussions about non-cruel methods
• the failure of legal representation
• the extensive appeals procedures
• the sadistic death row phenomenon
• or the lack of deterrence.

(For irregular readers, I’m personally convinced that there are moral reasons not to apply the death penalty, and that these are sufficient reasons. I view both the systemic problems cited above and the inconsistent reasoning of the Supreme Court discussed below as supplementary reasons for those who are difficult to convince with moral reasons alone).

Here’s an overview of some of the contradictory judgments of the Supreme Court. There’s a tendency, among many supporters of the death penalty in the U.S., to extend its reach beyond homicide. (I believe that’s a natural tendency, especially for those counting on a deterrent effect. If the main objective of capital punishment is the deterrence of crime, then why stop at homicide? There are many other heinous crimes that could possible be reduced with an effective deterrent and if it can be argued – but I doubt it – that capital punishment is such an effective deterrent, then why shy away of it?).

In Coker v. Georgia, the Court had to decide whether the crime of rape of an adult woman warrants the penalty of death. The Court argued that it doesn’t, since rape does not mean taking a life. Again, in Enmund v. Florida (does a homicide accomplice who does not kill or attempt to kill deserve the death penalty?), the Court judged that capital punishment should not be a possible punishment for crimes that do not involve the death of another human being. (This is part of the doctrine of proportionality, see below).

And yet, in Kennedy v. Louisiana, the Court stated that crimes against the state, such as treason and espionage, but also terrorism and drug kingpins etc. may be deserving of death even if no loss of life was involved. I find this distinction highly arbitrary. From the point of view of an opponent of capital punishment such as me, it’s obviously good that the Court imposes some restrictions on the sentence, but doing so in this arbitrary way just serves to undermine the legitimacy of these restrictions and opens the door to future reversals.

(source)

Another restriction imposed by the Court is based on the degree of culpability of offenders and their capacity to evaluate and control their actions. In Thompson v. Oklahoma for instance, the Court examined the constitutionality of executing child offenders (under the age of 16). The Court decided that children are generally less culpable for their crimes because, compared to adults, they are

• less able to judge the consequences of their actions
• more emotional and less able to control their actions
• less prone to “cold calculation” and therefore there is less reason to assume a deterrent effect.

Moreover, the Court assumed that offenses by the young represent a failure of society, school and the family:

youth crime as such is not exclusively the offender’s fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America’s youth. (source)

Again, nice to see the Court limiting the scope of the death penalty, but why assume that adult criminals don’t also represent a failure of society? If young people offend because of failure of the educational system for instance, is it safe to assume that these causes magically disappear after a certain age? (Of course, I don’t assume that “society” causes all crime, but crime does, in certain cases, have causes beyond the decisions of the criminals). And are there really no adults who are relatively less able to judge the consequences of their actions and act in a non-emotional and calculated way?

Yes, says the Court, but at the same time it limits this category of adults in a somewhat arbitrary way to the mentally retarded (for example Atkins v. Virginia). I believe the reduced culpability of the mentally retarded is obviously a good thing, but why stop there? Aren’t there any “non-retards” who also can claim diminished culpability? And, anyway, where to put the border between the retarded and the rest? There’s always going to be a gray zone, and hence arbitrariness.

Furthermore, recent judgments of the Court tend towards undoing the restriction on capital punishment based on diminished culpability. Scalia for instance (dissenting in Atkins v. Virginia) claimed that culpability and deservedness depend not only on the mental capacity of the criminal but also on the depravity of the crime. One can read this as a justification of capital punishment even for children or the mentally retarded if their crime is depraved enough.

In Kennedy v. Louisiana, the Court also expressed contradictory views on deterrence. Deterrence has always been an important justification for the Court, but in Kennedy v. Louisiana the Court decided that in the case of child rapists, capital punishment would encourage rather than deter the crime. It claimed, correctly I think, that the death penalty for this crime could encourage non-reporting. A third party, for example the wife of the rapist, could decide not to report the offender for fear of capital punishment, which then leads to the continuation of the crime, and hence the failure of deterrence.

Again, a welcome restriction from the point of view of an abolitionist, but also a highly arbitrary one. The same non-reporting effect of the death penalty can occur in other types of crime. Moreover, the consideration of counter-deterrence effects in this case is very unusual for a Court that consistently ignores evidence against the deterrent effect.

Finally, the argument of proportionality cited above and used against capital punishment for crimes such as rape (see also Gregg v. Georgia) is a welcome limit, but it also is an argument that’s used very selectively and arbitrarily by the Court. In non-capital cases, the Court often refuses to consider the lack of proportionality as a reason to undo decisions of other courts. In Rummel v. Estelle for instance, the Court refused to see anything wrong with a sentence of life imprisonment for obtaining $120.75 by false pretences!

All these inconsistencies and arbitrary limits and restrictions in the Supreme Court’s handling of capital punishment have turned this sentence into a shambles. Many of us think it’s much worse than that, but a shambles may be a sufficient reason for others to review the practice.