Putting in a Word for the Death Penalty

Murders among [the Maxacalis] are rare, but when one occurs the murderer is made the guest of honour at a ceremony held before his execution and funeral. After the ceremony and the execution he is buried in the same grave as his victim “so that their spirits may become reconciled”.

https://assets.survivalinternational.org/documents/1094/genocide-norman-lewis-1969.pdf

Very few people think killing, however deliberate, wrong in itself, necessarily and always wrong, wrong just because it is killing. Nobody (next to nobody) thinks one soldier killing another in battle wrong, even when the war is unjust. And, probably, even fewer think killing in self-defence or defence of another wrong. And lots and lots of people think killing foetuses perfectly all right (though, perhaps, one ought to grant that those who do might want to deny that it properly counts as ‘killing’). It must be the meaning we give the act in which its wrongness does or doesn’t lie not in the bare act itself. And if killing in war and in self-defence may be—however regrettable—right, then perhaps killing for the sake of justice may be right too. And, as described by Norman Lewis, doesn’t the meaning the Maxacalis give the death penalty look civilised? It isn’t self-evident at any rate that any meaning we are able to give imprisoning murderers for a limited term is more so.

And yet, with very few exceptions (and they mostly keep their thoughts to themselves), all politicians, on all sides, and all journalists in all forms of journalism (here, now) think the death penalty irredeemably barbarous and that Lee Anderson, the new Conservative deputy chairman, a barbarian for thinking otherwise. That there might have been something barbarous in abolishing the death penalty is for the great majority of our Governors (and their governors in the press) unthinkable.

Some months ago, when the Iranians executed a man for treason—after what was likely not a fair trial—people here expressed outrage but no one, as far as I know, felt any need to distinguish between what was outrageous about the punishment and what was outrageous about the trial. It seemed to be taken for granted that executing someone for treason was outrageous whether the accused were guilty or not, that, if death were a possible punishment, it didn’t matter whether the trial were fair or not. Who, here, was there to say that, if the man had committed treason, the punishment was fair, and justice had been done? (Perhaps Mr Anderson.)

We have to admit that the justification Mr Anderson gave for the death penalty, that a murderer who is hanged can’t murder again, is open to the retort that an innocent man who is hanged can’t be revived. My own guess, though, is that, for most opponents of capital punishment, the argument that we mustn’t risk hanging someone who is innocent is just a convenient screen for their truer conviction that we shouldn’t hang anyone at all, guilty or not, and that they would continue to oppose capital punishment even if they themselves believed that no innocent person need ever suffer it. After all, for the most part, those who oppose the state’s right to kill criminals do support its right to kill foetuses—than which no bundles of cells, whether capable of independent life or not, could be more innocent.

But the death penalty can be justified on grounds that aren’t open to that retort to Mr Anderson.

In forming the idea of crime and (its just) punishment, we have civilised a more primitive, less disinterested view of things, the idea of injury—to me and mine—and retaliation—by me and mine—which follow one another in endless reiteration. Punishment is a possibility we discover in, create from, vengefulness; so far from being vengeance, punishment is what replaces and puts a stop to it. Punishment, as we say, wipes the slate clean. It re-establishes the bond between criminal and victim—the law-abiding generally—which crime breaks. The law-breaker abides the law too. He pays and, in law, redeems himself. His place within the law, the kinship of the law-abiding, is reserved for him. It is his punishment that reserves it. By serving his punishment he stays within the law. And that remains true even when the crime he commits is murder and he is hanged for it. He dies by the law, not outside it. His punishment still means “what is necessary to stay within the law, to obtain, legal, atonement.” And so we all live under and in the law, law-breakers and law-abiding alike; none are outlaws but all, in law, one. This is part of what makes our world human.

Although, for the most part, next to no-one yet wants to replace the idea of crime and punishment with that of, say, offence and penalty (though William Morris did in News from Nowhere),  if we can replace the idea of sex with that of gender and then create the new idea of a woman with a penis, what ideas that, until quite recently, we had thought irreplaceable can’t be replaced?

It belongs to the idea of punishment that punishments must be just, that they vary in severity in accordance with the seriousness of the crime. The punishment must “fit” the crime. If it doesn’t, it isn’t just, because it doesn’t clearly recognise the crime. When punishments cease to be just they become just things done to people; the law becomes unlawful. But to be just and lawful punishments needn’t and can’t fit crimes with absolute exactitude, as in an eye for an eye (though that is better than an eye for an eyelash) but only as other punishments fit other crimes and as the entire body of punishments fits with the wider body of judgements we make throughout our language.

Punishments mustn’t be “cruel and unusual” or they lose their character as punishments; but the idea of cruelty here is bound to the idea of unusualness. It isn’t the suffering it causes, the suffering in itself, that makes the punishment cruel, it is its being unusual. It is cruel to exact from one what you don’t at all similarly exact from another. The cruel here is a matter not of a degree of suffering but of injustice. It is not the most lenient penal code that is the most civilised but the most just.

Barbarous punishments aren’t ones that are severe, severe to an extremity even, but ones that are senseless as punishments. Civilised punishments, punishments rightly so called, aren’t ones that are especially lenient or especially tender of the criminal but ones that mark the crime, in all its different degrees, as crime; ones which to this people, within the possibilities of making sense of their lives afforded them by this language, do make sense, and do keep strong in people the ideas of the lawful and of justice and mercy. The essential character and purpose of punishments is to declare the criminality, and the degree of criminality, of the crimes they punish.

Not just being things done by one side, the law-abiding, to the others, the law-breakers, for good or bad motives, therapy or revenge, but things that mean something, punishments can be concurred in, their meanings understood, by both sides. And that’s just as true for a murderer condemned to death as for any other criminal. Concurring in the meaning his punishment has in marking his deed as that crime—even where he resists the fact of his punishment and would escape if he could—he cannot, however much he suffers, deny or disown its truthfulness, its justice, without denying and disowning part of himself. Put to death by the law, he is not just in its power, but under its spell. He assents, with what in him cannot but recognise sense and justice, to his own execution. The law, which is every bit as much his law as everyone else’s, gives him a chance, even a murderer—and isn’t there a mercy in it too?—to make sense of his own end. Which is why, no doubt, not just among the Maxacalis but in our own past, the condemned used frequently to play a ceremonious part in the ceremony of their own execution.

It is only when the penalty the criminal pays is a punishment fit for the crime that he is dealt with as a man and not a subject for disposal. When we are disposed of, concurrence is not open to us, only acquiescence or patience.

For a penal code to make the sense it can, it needs to have somewhere within it a capital punishment, not necessarily punishment by death, but some punishment that stands at the head of all others, marking a boundary: a punishment different in kind from all others as marking the furthest limit of what the law can recognise as crime and capable of expiation. There has to be a severest punishment marking the worst crime. The limiting case is of the criminal who remains within the law only by being put beyond further punishment. A penal code needs something in it with this meaning of having come to an extreme, an end.

Many different things might have this meaning among different peoples: death or torture, actual or perhaps only symbolic; banishment or imprisonment—and not necessarily for life—many sorts of things including (why not?) no punishment at all for “the crime for which there is no punishment”. (Cain is marked but not otherwise punished.) Some such punishment is needed to put a boundary round our world, a way of holding it together as a world and making it ours.

The death penalty used to be just such a capital punishment. It distinguished murder and treason as different from all other crimes not merely in degree but in kind. It declared murder to be ultimately criminal, so criminal that no degrees of criminality were to be discerned in it, to be that point of criminality beyond which the law cannot see. It said, “Whoever stops short of this, by however little, may live with us under the law, but whoever goes beyond it, by however little, he may live with us under the law only by ceasing to live in fact.”

The death penalty might have been abolished and—had anyone cared—a capital punishment still preserved by, for instance, imposing sentences of life imprisonment that were imprisonment for life (a very horrible thing, and with nothing awe-full in it, but understandable as the capital punishment). But of course the substitute for punishment by death has been imprisonment which is for life in name only. On average, terms of life imprisonment for murder in  Britain last 16 or 17 years, half the minimum term to be served by multiple rapist David Carrick. (Rape is a terrible crime but compared with murder?)

And no one intended anything else. No one intended that there should be a crime in which we disclaimed the capacity to distinguish differences of degree of wrong-doing. No one intended, that is, that punishment by death—the meaning it had within our whole system of punishments—should be replaced at all. And—which just makes it all the worse—no one intended the opposite, either. No one clearly intended anything—except to stop hanging people. Nobody worried about what hanging people meant in our whole understanding of law, or about what not hanging anybody would do to that understanding.

So now, in the eyes of the law, not only is murder no longer the absolutely bad crime which gives the clearest sight of what crime is, but no crime at all is that. The law is no longer capable of recognising any worst crime. It is now as blind as a post to what we all see as plain as a pikestaff: that murder is worst, that there is nothing else like it (not even raping a lot of women or stealing a lot of  money), that Cain’s crime is special. It isn’t just that one sentence has changed but that the whole system has contracted and lost coherence. All “serious” crimes—murder, rape (if of enough), robbery (if of enough), fraud (if of enough)—are now on all fours with one another. Murder is no longer the measure of what is criminal, and nothing else is, either. Murder in the eyes of the law has lost its character because the eyes of the law no longer see straight and clear.

And that is an immense change, of much greater importance than whether or not we hang convicted murderers. (Even if we hang them by mistake and miscarriage of justice—terrible thing though that is, justice must first be before it can miscarry, and without justice, no mercy.)

The consequences for sense extend beyond the penal code. We cannot change the meaning of a crime in the eyes of the law and leave its meaning elsewhere unchanged. One of the things that gives murder its meaning is the way it is punished. Now that its punishment no longer distinguishes it from other crimes, one of two things must give way: either our sense of murder as the worst crime, or our confidence in the justice of our penal code.

For the present—perhaps, perhaps not—murder retains its character; public justice is the loser. Lots of people feel that the similar punishments given other, lesser, crimes, aren’t just. Lots of people thought that the thirty-year terms given the “Great Train Robbers” all those years ago weren’t just, a feeling that had a lot to do with the lack of public enthusiasm for bringing Ronald Biggs “back to justice”. If he were to get a sentence that would last twice as long as it would for murder, or more, how can what he’s brought back to be justice? It would only be a penalty for being caught, just something horrible done to him. If not many people think David Carrick treated unjustly in being required to serve at least twice as long as he would if he had murdered someone, that probably has more to do with the present prominence of identity politics than anything else.

To the forward-looking, abolishing the death penalty for murder was the last, or last but one, step needing to be taken to reach the destination set out for when it was abolished for stealing loaves. And it was a step on the same road, but backwards. Whereas one abolition brought sense and justice by abolishing a punishment that didn’t fit the crime, the other took sense from it by abolishing one that did. One abolition—of a punishment that wasn’t just, but only useful—civilised the law, the other made it more barbarous.

Duke Maskell writes on Substack, which can be found here.

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