Monday, 8 August 2011

An Eye for an Eye: Contemplations on the Death Penalty in the Wake of Utøya

Are there crimes that conceivably could warrant the death penalty?

Yesterday, I read an article by Ann Heberlein in a Swedish newspaper (i.e. the link is in Swedish) on the inherent problems in punishing crimes on the level of the Utøya massacre. Heberlein, who has a PhD in theology and has written books on ethics, evil and forgiveness, enters the debate in response to Ronnie Sandahl and Marcus Birro's respective contributions, both of whom strongly advocates the death penalty as the only reasonable punishment. Heberlein, leaning on both Hannah Arendt and Nietzsche, points to the fallacy of such reasoning in a very sound manner. There is no punishment strong enough to actually be proportionate and the deed itself is too horrible to ever be forgiven, she argues, but also points to the Nietzschean truism that we need to be careful so that our battling with monsters do not turn us into monsters ourselves when caught in this state of emotional impotence and turmoil.

Heberlein refers to Sandahl's reference to a SIFO (the Swedish Institute for Opinion Surveys) in which 33% of the Swedish population believes that there are crimes that conceivably could warrant the death penalty.* Sandahl obviously uses these statistics to question why no politician is pursuing the issue of maybe re-instating it. Heberlein's answer is simple: because it probably is not a good idea in a civilised society. And she then moves onto confronting Birro's switch from anti-abortion (on the grounds that all life is sacrosanct) to pro-death penalty (on the grounds that life is only sacrosanct if the individual has earned that status).**

However, while I appreciate Heberlein's argument, and find it important, I would nevertheless linger on those statistics. Because it strikes me that there is an inherent difference between believing that there are crimes that conceivably could warrant the death penalty and thinking that it is a good idea to institute laws of that nature.

Let me first off answer the question of that survey, the question with which I myself opened this post. Yes, I do think that there are heinous crimes that conceivably could warrant the death penalty. There are deeds where the individual's inalienable right to life can be considered spent, and basically rendered null and void. Do I think this means that the death penalty is a good idea? No, not at all. Because the idea of putting capital punishment into law is problematic on several levels. Not because it is always wrong to take life. Do not get me wrong, I am not suggesting that it is right to take lives, but let us face reality. There is basically no government on Earth that would have any compunction of ordering soldiers onto a battlefield and ordering them to take lives. I am not suggesting that war is a good solution, but sometimes, it is undeniably the only solution. Personally, I am rather glad that Hitler's vision of an expanded Third Reich was thwarted and that concentration camps were shut down. And any time such things occur, there is an ethical need to oppose that.

So, why is the death penalty wrong then? Well, first and foremost because it would be hard, I believe, to institute a law where the required evidence was so definite that an erroneous conviction was entirely impossible. After all, if you kill someone, it is mighty hard to overturn a wrongful verdict. Granted that some crimes come with that level of specificity, but how would you put that into legalese.

Then there is the issue of the legal machinery itself. In countries where the death penalty is practised, like the US, it is worthwhile noticing that this penalty is not applied evenly. In other words, different legal representation (and by default pecuniary assets) might be the difference between life and death. This all goes back to a point Heberlein makes: who decides the criteria for who gets to live and who does not?

There is an inherent ethical dilemma involved in the taking of any life. In war or in violent police actions, such a dilemma is circumvented, or temporarily suspended, by the needs of the moment. Basically, it becomes a question of a practical utilitarian principle in which the good of the many (and innocent) outweighs the rights of an individual or individuals who are posing an immediate threat to the former. Once the person committing the violent deeds is in captivity, any such suspension or circumvention is itself rendered null and void. If the threat is disposed of, it would seem as if we no longer have any moral right to ignore ethics.

In older times, vengeance was the law of most lands. But as civilisation spread and our societal bonds grew, even that practice was influenced by other means of compensation. Weregild was a concept introduced as a means of ending blood feuds and stabilising regions, and I think it is safe to say that this helped us move forward as a species. Naturally, our impulse to strike back at those who hurt us or ours have not been weeded out of the species, but we deal with it by allowing the law to handle things for us.***

At the end of the day, we might also ask the question of what a proportionate punishment means. We cannot kill the mass murderer of Utøya more than once, yet his death would seem puny next to his deeds. Even if we allow ourselves to resort to that ultimate punishment of depriving such a criminal of life, the response fails to achieve proportion.

Furthermore, it is also questionable as a punishment since it is a brief moment to pay for so much inflicted misery. The perfect metaphysical punishment for the massacre on Utøya would, in my humble opinion, be to have the perpetrator spend the rest of (at the very least) his existence reliving the events on that small island during that hour and a half through his own victims, literally as his own victim. But metaphysical punishments elude our capabilities and so we have to deal with this in a human manner, and preferably one where we do not gaze too deeply into the Nietzschean abyss ourselves.

* It is probably worthwhile noting that Sweden does not have a death penalty, and as far as I know, neither does Norway.
** I will grant Birro the not at all unproblematic point that it would be possible to conceive of given rights that can be lost on account of breaches against the social contract as voiced in law. After all, we usually claim freedom to be a given, inalienable right, and yet we do not hesitate to imprison people for crimes, depriving them of that freedom. Granted that depriving someone of their life is somewhat more permanent, but in theory there is nevertheless an analogy here to be considered.
*** This is why the US system of allowing victims or relatives of victims to weigh in on the legal process in cases of release on probation has always struck me as strange. Logically, either the behaviour of the convict weighed against his or her crime should warrant the release or not. Personal opinions of people probably should not be a factor.

No comments:

Post a Comment