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.

Unreal Reality: Utøya

Two adjectives have occupied my brain since Friday: unfathomable and horrible.

On Friday, catastrophe struck my peaceful neighbouring country Norway.

A bomb was set off at the government building in Oslo and on a small island named Utøya, no more than 0.12 km² big (or 0.075 mi²), what appears to be the same (potentially lone) culprit, an ethnic Norwegian Islamophobe and right-wing extremist, attacked a political youth conference held by the Norwegian social democratic party's youth division. He came to the island masquerading as a police officer and proceeded to open fire at people there (mostly youngsters and kids) with a machine gun, killing at least 86* people in this massacre during the next hour and a half (with at least another 7 killed in the Oslo bombing).

What is unfathomable is the unreality of this situation. We are used to be confronted with scenarios like this in literature and film. In fact, under different circumstances, we might have thought the preceding paragraph a brief synopsis, found on the back cover of a book or a DVD case. But while we are no strangers to such scenarios in fiction, on the whole, most of us (Scandinavians at the very least) have probably been fairly lucky and have never ourselves had to really look deep beneath the surface of the societal contracts.

Somehow, our brains can hardly not manage not to read this as fiction, precisely because of this.

As reality, it just seems implausible and horrible. Horrible because it shows us what we, as a species, are still and continuously capable of. And we have the gall to call such behaviour bestial, while labelling all our better sides human and even humane. But tell me which other animal on this planet of ours acts as cruelly as a human being when it pleases her to act in a such a manner.

Unfathomable. Horrible.

At least 86* people died on Utøya. But how many were wounded for life by the hours spent in horror and devastation? How many souls died on Friday on that small island?


* The latest information from the Norwegian Police indicates that the death toll from Utøya is probably going to be lowered, as the final tally is being put together. So far, however, they have not wanted to indicate by how much.

Acting or Writing Genius

There is an inherent problem in acting, or perhaps even more so writing, genius.

Don't get me wrong, it is not necessarily an easy task to successfully portray people of normal wits and intelligence. And it is certainly something of a challenge to portray stupid people; in particular in acting, where timing is of the essence to make it believable. The latter is actually one of the reasons why Christina Applegate's depiction of Kelly Bundy in Married with Children is an impressive feat. We utterly believe in Kelly's stupidity; to the extent where it would be easy to assume that Applegate shares this feature with her character. Nothing could be further from the truth, of course. If she had been stupid, we would not have viewed Kelly as a stupid character, but rather as a character played (unsuccessfully) by a stupid actor. We recognise the asinine without a doubt, but we also recognise when something is out of synch with its context; in this case, the story. Stupid in synch equals brilliant portrayal of stupid character; stupid out of synch equals a poor portrayal by a stupid actor.

But I digress.

This post is not about the lower register (which it is still easier to bow down to), but the higher one, which remains ever elusive. As in all cases, fiction does not require being real, it requires seeming real. And therein lies the rub.

Acting or writing genius requires on the one hand to present the audience with an understandable entity; one which they can still comfortably understand as genius. On the other, it also requires that that understandable genius isn't transformed, as if by default, into a regular bloke. The balance is not easy and there are many examples of failure. Mostly, however, the failure does not consist of a too rigid depiction of the genius as actual genius. Perhaps this is because your normal actors and writers aren't actually geniuses themselves. Not even most of the more intellectual ones. And even if they were, chances are that they would ironically dumb down a genius character to make her or him relatable.

The other side of the coin is writing or acting upwards, telling your audience how brilliant your character is, only to stumble on the finish line by having the character absolutely clueless about something which they really ought not be clueless about. In TV shows, this is often shown by the genius character knowing little or nothing about any and all popular culture (Dr Sheldon Cooper obviously being a great exception to that rule). You only need to think about characters like Leroy Jethro Gibbs (NCIS) or Dr Temperance Brennan (Bones) who usually come off as super smart people, up until the point when a pop cultural reference appears. Because, as we all know, super smart people live entirely apart from the world, and can still stay up to date on the human condition, without ever taking in a single tabloid placard or zapping by anything pop cultural on TV. And after all, nothing of the kind would ever appear in a proper news show or newspaper either, so... Well, I guess you catch my drift.

So the trick is balance; to establish a level of genius you can sell, and without selling it short. And at the end of the day, it doesn't require genius. Only the skills to seem like one.