Sunday, 21 August 2011

In Response to James Garry (1 of 2)

Some of you may have seen this Anna Raccoon article by James Garry of Politics on Toast - It is indeed a strong and highly coherent piece of writing, even if it expresses sentiments that I could not possibly agree with - this bunny also comes in for a bit of an intellectual kicking on more than one occasion and hey, that's the price of engaging in online debate with a capable opponent. So there are several points raised here which deserve no less than a detailed and thorough response.

First up, Mr Garry's critique of my observation on emotion vs reason (ie that abolitionists are generally more 'level headed' and 'rational' than supporters of the death penalty) is a fair one. There is of course a cocktail of rational and emotionally-charged discourse on either side of this particular argument. Both can highlight statistics that point in their general direction, while there are also martyrs to the death penalty itself (the wrongly executed) and its abolition if one believes in the ability of this particularly sharp sword of damocles to deter crime - in his article, Mr Garry points to the child who might be murdered in the future as such an instance.

Individuals in each camp will be more or less 'rational' or 'emotional' than others pursuing the same line of argument, so a fight over which side is slightly more or less level headed than the other may only go round in circles and be a waste of everyone's time. Of course, people are naturally inclined to believe that their case is more solid and based in fact than the directly opposing one, so what I said in the first instance about abolitionists being more rational should not have been a great surprise in that context. However, Mr Garry's point has considerable weight in the sense that the application of a broad brushstroke can often be the first step towards dismissing one's opponents as bloodthirsty lunatics who are foaming at the mouth, or 'bleeding heart liberals', depending on your starting position.

In my original piece on the subject -, I raised two points which Mr Garry objects to, leading him to suggest that my comments were "misrepresentations of the ‘pro’ capital punishment argument". By saying that "to justify one unfounded claim he needs to make another", there is a clear recognition that these questions possess a natural link. Does the death penalty actually deter people who would otherwise kill? Is my claim that it does not 'unfounded', or merely an accurate reflection of the misplaced faith that many have in the poetic power of the noose or needle? And in the absence of clear evidence that capital punishment reduces the rate of those crimes that would be punishable by it, what exactly is it there for?

Mr Garry cites that "In the five years since 1965 when the death penalty was suspended, there was a 125% increase in crimes that would have attracted the death penalty", also pointing out that nobody on the 'anti' side of the argument has made a successful attempt to either counter or otherwise explain this statistic to him. In truth, I haven't seen these figures despite having had a look for it, although I have no issue believing them to be true - there are, however, a few questions worth posing. By 'capital offences', we are presumably talking about those crimes where the death penalty would merely have been on the table as an option, since by definition, one can never say with utter certainty than defendant x would have been hanged?

Does the absence of capital punishment leave juries with greater confidence to find the defendant guilty? Perhaps something for all of us to consider is - the death penalty will almost certainly lead to innocent people being executed, but has it also brought about the acquittal of men and women who were actually as guilty as sin but faced with a jury who were not wholly convinced of that guilt? Conversely, does the 'mere' consequence of a life sentence lead to a more casual approach to what constitutes reasonable doubt?

Mr Garry argues persuasively for juries made up of individuals with qualifications and at least some degree of proven intelligence. He also makes the case for unanimous 12-0 verdicts across the board, something which I believe is fine in principle but unworkable in reality. A single rogue juror pursuing a perverse acquittal for their own reasons is hugely empowered by any system that calls for unanimity, and herein lies the problem. In the same way as something just short of utter certainty can constitute 'beyond a reasonable doubt' (cases in which we can be 100% sure of a defendant's guilt are extremely rare), 10-2 is the sort of majority threshold that appears to be sit comfortably with this. Yet Mr Garry is quite naturally uncomfortable about the notion of hanging, injecting or sizzling someone on a 10-2 verdict, so calls for unanimous decisions and 'smart' jurors.

Of course, intelligence and honesty are two entirely different things - just because a juror is professionally qualified or possessed of an above-average IQ does not mean that they will enter a courtroom free of their own agenda or prejudices. Notorious criminals are known to attract 'fanclubs', a single member of which could bring about a perverse acquittal or expensive re-trial because of the requirement for a 12-0 guilty verdict. This bunny is coming round to the view that juries need to be phased out and replaced by a system that relies more on forensic analysis of the facts, rather than two theatrical performers in wigs attempting to sell their case to an audience perhaps not versed in the details and their ramifications. However, that is of course an entirely separate conversation, and in the context of this one, it is the prospect of the death penalty that is the problem.

Back to the subject of the death penalty and its deterrent value. Some statistics shown here - detail the extent to which the murder rate declined in the United States between 1990 and 2007, identifying the separate trends that occurred in those states that 1) actively used capital punishment, 2) kept it on the books as an option but had effectively become abolitionist in all but name and 3) had formally abolished the death penalty. The graphs indicate that the homicide count actually fell faster in those states which did not carry out executions. I appreciate that Mr Garry has produced a compelling statistic to which an immediate and satisfactory reply from the 'anti' side may be lacking, but then these figures from a nation where the ultimate penalty is used in some places and not others would appear to seriously undermine the 'deterrent' argument.

In those seventeen years, might the prospect of ten thousand volts in the chair have caused someone, somewhere to think again before committing an act of murder? It would be arrogant in the extreme to suggest that this absolutely did not happen, and it may well have done. However, other factors invariably come into play before we base our judgement not on an isolated case, but the general trend of the statistics. Is a killer's 'urge' so strong as to make them unreachable in terms of weighing up the consequences? In a premeditated murder, where the body might be disposed of some distance from the scene of the crime, does the perpetrator actually believe that they will not be detected and therefore the fallout to be merely a hypothetical discussion? Are some murderers actually rather unperturbed at the thought of being executed themselves?

Were there a stack of evidence that all suggested a direct correlation between the absence or presence of capital punishment and its effect on the murder rate, then those of us who object to it on a point of principle would be in a very difficult position indeed. The reality is that the range of statistics that are out there is at best highly inconclusive - certainly nowhere near sufficiently compelling to say with any degree of certainty that 'capital punishment deters crime', as Mr Garry does. I mentioned in my opener on the subject that this is an argument I have heard with decreasing regularity over the years, not to be facetious but because many supporters of capital punishment appear to have abandoned it themselves and given greater focus to other aspects of their case. This brings us neatly onto the subject of retribution, which is where I'll pick up on Tuesday - take care.


  1. Really good post Daz; I'm in the anti camp myself; If the state is saying you can't murder someone, or else we'll kill you, then the state is practising a double-standard isn't it?! Also, it's ok to join the army and kill people, then the state doesn't mind! Ultimately, it boils down to politics and power...

  2. Thanks TC - apologies for the delay coming back.

    Allowing the state to kill its own citizens is a pretty massive leap of faith.

    Leaving aside all the deeper arguements - on track record alone, does it deserve such a degree of trust?