Supporting the Death Penalty

Sir,

Your ‘Lucy Letby‘ piece doesn’t support the death penalty as you think it does. You would have (some) murderers and traitors put to death but only when we eliminate “human error … entirely”. But why, with that condition attached, need any opponent of the death penalty differ with you?

The administration of justice is what else but a human creation, depending at every point on human judgement; how then can the possibility of error ever be eliminated from it? Your three ways of doing so, don’t do so–as how could they?

You’d have criminals killed (1) for only the absolute worst crimes (i.e. treason, mass murder and the murder of children), (2) where guilt is certain (from a confession or irrefutable video evidence) and (3) where a judge finds it justified with “sufficient authorisation”.

But what room for reasonable disagreement–and hence, arguably, error–such conditions leave! I mention a few of the more obvious objections below but no doubt a defence counsel could find lots more.

(1) What could be more arguable than whether some particular crime should be counted the “absolute worst” or not?

Treason: Are all acts against the interests of the state treasonable? Can there not be reasonable disagreement about whether what injures the state also injures the nation or people? Can no act, from some larger point of view–as, perhaps in Russia today–be patriotic in fact? Treason, as a deep, serious crime, as an “absolute worst”, is hardly a matter of ‘my country right or wrong’. Its uncertain moral character is caught in that epigram of John Harington’s, “Treason doth never prosper: what’s the reason?/For if it prosper, none dare call it treason.” There is no putting the charge of treason beyond the possibility of error.

Mass murder: Isn’t there something deeply unsatisfactory about making the gravity of a crime depend on the number of victims? Can we not imagine cases where the murder of just one (or two?) strikes us as having more of the “absolute worst” about it than the murder of many? And how many murders would be necessary to qualify as a “mass”? Would a certain number committed for different reasons over a long period of time do so?

Child murder: Is “child “to be measured chronologically and in no other way? If chronologically, then how old? And would life and death depend on which side of a birthday the victim was murdered? And say the child were himself a villain, perhaps a murderer, and his murder an act of retaliation we might have some sympathy with?

(2) The current “beyond reasonable doubt” is a more reasonable criterion than your unobtainable “certainty”. What certainty–certainty beyond the possibility of error–is there in confessions or in videos? Has no one ever been known to retract a confession? Has no one ever  “confessed” to acts they haven’t committed? Is it just that one suffers the death penalty by telling the truth, while another escapes it by lying?Are videos incapable of being misinterpreted or faked?

(3) And why should the judgement of a judge be thought to eliminate the possibility of error more securely than the judgement of a jury? And what source of authorisation could possibly be more sufficient than a jury’s? (A Home Secretary’s?)

Your three ways of making it impossible to pass the death penalty upon the innocent do no such thing. Your support for the death penalty is indistinguishable from opposition to it.

Perhaps, for the sake of justice, the death penalty ought to be reinstated but, if so, it must be done without pretending that we have found a way of making miscarriages of justice impossible. It may well be right that we should hang murderers, but not if we can’t admit that we might hang the innocent by mistake. I can’t think of anything more likely to endanger the innocent than our thinking we can distinguish guilt beyond any possibility of doubt or error.

Duke Maskell writes a Substack newsletter you can follow here.