The state's right to vengeance
Amnesty International says that it `opposes the use of torture and the death penalty in all cases and without reservation'. The work of Amnesty in opposing torture, political imprisonment and political executions is admirable and important. But unqualified opposition to the death penalty is another issue.
It is true that the death penalty used to be a form of torture, and even in midnineteenth century Britain was often administered with cruelty or clumsiness. But in the twentieth century the aim of the authorities in civilised Western countries was to make capital punishment as technically efficient and as swift as possible. Amnesty's quiet lumping-together of torture and the death penalty indicates to what extent the `abolitionists' were successful in converting the liberal intelligentsia to seeing capital punishment as a form of barbarism hardly less odious than torture.
The debate about capital punishment is closed, Professor Laurie Taylor the sociologist,' writing in New Society (23 June), can deplore our lack of 'ethical progress' which allows this country to inflict a terrible prison regime of segregation and solitary confinement on Ian Brady, but he does not remind us that if Brady and Hindley had committed the Moors murders just a little earlier, they would have been hanged and the problem would have been solved. The abolitionists were shrewd to insist on the total abolition of hanging, rather than keep it for a few classes of offence; for as memories of the old regime recede, hanging comes to be regarded as a grotesque means of killing, rather than as natural and proper, so that the onus of demonstration comes to rest more and more with those who favour its reintroduction. The majority of the British public support the reintroduction of capital punishment (89 per cent for terrorist murders, and 66 per cent for all murders, according to the Times of 5 April) but they must be led forward to a more advanced ethical stage by the enlightened minority. As Arthur Koestler wrote in his eloquent polemic Reflections on Hanging (1956):
Deep inside every civilized being there lurks a tiny Stone Age man, dangling a club to rob and rape, and screaming an eye for an eye. But we would rather not have the little fur-clad figure dictate the law of the land.
It is unlikely that the, ignorant demand for reintroduction of capital punishment will die away. The bloodlust of the psychopathic majority will be spurred on by two factors: the increase in terrorist activities, and the increasing cost to the taxpayer of housing
long-term prisoners. But it may be that there is a more serious case to be Made for capital punishment.
Unqualified conscientious objection to physical violence is certainly a consistent moral position. One of the rational consequences of this position is unqualified opposition to capital punishment. This is one tradition within the Christian churches, represented for instance by the Quakers, and it also exists outside the Christian churches. But it is very much a minority position, and is likely to remain so in a world that contains so much homicidal technology. If Amnesty International were to restrict its membership to those who held this position, it would be a small and marginal group of idealists. Christianity as. a whole has no definite teaching on capital punishment, and the Anglican Church has customarily provided priests to absolve criminals at the scaffold and also, no doubt, to legitimise the procedure.
There is a rational case to be made for capital punishment, though it has been obscured by the triumph of the abolitionists. The retentionists made the mistake of claiming that capital punishment was a unique deterrent against murder, relying not on statistical evidence but on the intuitive opinions of policemen, lawyers, judges and prison warders. The weight of such statistical evidence as has been marshalled does not seem to support these opinions. But the idea that punishment is primarily to do with deterrence and rehabilitation is an impoverished modern idea. Punishment also involves retribution or (to avoid this modern euphemism) it is a public and legitimated form of vengeance. As Bishop Butler wrote in his Sermon on Resentment (1729):
The indignation raised by cruelty and injustice, and the desire of having it punished, which persons unconcerned would feel, is by no means malice. No, it is resentment against vice and wickedness: it is one of the common bonds, by which society is held together; a fellow-feeling, which each individual has in behalf of the whole species, as well as of himself,
Hegel in his Philosophy of Right (1821) welcomed the influence of Beccaria's treatise against capital punishment in making executions much less frequent; but he also argues that in the punishment of criminals, emphasis on deterrence, rehabilitation arid custody entailed treating them as harmful beasts rather than as rational beings. For Hegel, punishment was a right, a due of honour. We approve the same punishment for another as we would choose for ourse
Ives if we were guilty of his crime. This applies according to Hegel, even if the criminal does not consent. Punishment is the cancelling of an evil. Private vengeance leads to the endless vendetta and hence to anarchy; punishment concludes the matter.
Hegel's is a general argument that grave crimes should be met by a severe penal code. John Stuart Mill, in his speech of 21 April 1868 (reported in Hansard), set out some important arguments specifically in favour of retaining capital punishment, using the vocabulary of deterrence rather than of retribution, but distinguishing between execution as it is collectively represented by society and execution as an objective event. Mill had been an abolitioniSt in the 1840s and now regretted having to say that he thought the movement for penal reform had gone too far. Capital punishment should, he thought, be confined to 'atrocious cases' of murder. It was, , he thought,
beyond comparison the least cruel mode in which it is possible adequately to deter from the crime. If, in our horror of inflicting death, we endeavour to devise some punishment for the living criminal which shall act on the human mind with a deterrent force at all comparable to death, we are driven to inflictions less severe indeed in appearance, and therefore less efficacious, but far more cruel in reality.
There is one apparently knock-down argument against capital punishment which gained sway with the cases of Timothy Evans, Derek Bentley and others: the risk of a wrongful conviction. This is admittedly a very serious objection but perhaps it is not totally decisive. If there is any serious argument in favour of the death penalty today in civilized countries, it is for its occasional use on `atrocious cases' of homicide, as what Lord Hailsham calls 'an ultimate resort . . . the least of evils in certain irreducible cases' (Hansard, 12 December 1974). The risk of wrongful execution could never be totally eliminated, but it could surely, in principle, be reduced to a very low risk indeed. Earlier generations would have recognized, moreover, that the death of a convicted innocent is honourable.-This was sYmbolized by the right of a condemned rnan to speak publicly before his execution, reject the Ordinary's persuasions that he Should confess, and assert his innocence, This right was mentioned by a legal writer, ‘Voolrych, as late as 1867 as an argument against the abolition of public executions. I have stressed the rational arguments in favour of capital punishment, because, according to the abolitionists, only they !lave reason on their side. In fact, they can oe just as emotional, as is shown by my quotation from Mr Koestler's book — a quotation which expresses in picturesque language what many other abolitionists have said, I am not now calling for the immediate reintroduction of capital punishment in Britain. But I think that if I were French I would suPPort the continued occasional use of the
guillotine for 'atrocious cases'. And if popular pressure builds up again in Britain in favour of capital punishment, it should be taken seriously by politicians, though the timing and extent of any new legislation should not be decided by mob rule.
There is also a need for the anthropological, and unsqueatnish, study of the institution of capital punishment in history. It is still practised in most nations of the world. Some early social anthropologists such as Westermarck and Frazer thought that it was a development of human sacrifice. There is some support for their speculation in the elaborate festivity and pageantry that surrounded public executions in eighteenth century England, when a hanging meant a public holiday. People were then hanged, to our national shame, for trifling offences. It is hard to get a coherent picture of what these executions were like from a compilation such as Radzinowicz's History of the English Criminal Law; but they deserve analysis like any other elaborate ceremony.
According to some' accounts, the convict under sentence of death was fed only bread and water; but on the eve of his execution he could indulge in almost any dissipation; in either case, his fare was out of the ordinary. He was visited in his cell as a spectacle. The low prestige of the hangman — a constant in the history of hanging, though Pierrepoint was to be made an honorary lieutenant-colonel when he went to Germany to hang war criminals — could make a hated convict's fate all the more degrading, or a favourite convict (for instance, one believed by the public to be innocent) into a hero of the day. He wore his best clothes, sometimes with a white cockade to assert his innocence, and there was at one time a fashion for wearing a shroud. Women convicts would dress in white and distribute fruit from the cart. The prisoner was usually applauded, and stopped for conversation with the crowd, and for a last drink at a pub near the gallows. He would sometimes tip the hangman, and drop a handkerchief as a signal for him to do his duty. Afterwards, the crowd would storm the gallows to touch the body; the rope was cut up and sold by the hangman at about sixpence an inch; he usually sold the corpse to surgeons and sometimes the clothes to Tussaud's.
Hanging seems to have developed as a particularly degrading penalty — beheading, like the firing squad today, being a privilege of rank — and in the middle ages it was inflicted on offending pigs and horses. But in the eighteenth century the criminal seems to have been allowed considerable dignity. Dr Johnson's remark about the abolition of the procession of Tyburn is well known: Executions are intended to draw spec tators . . . The old method was most satisfactory to all parties; the public was gratified by a procession: a criminal was supported by it. Why is all this to be swept away?
In the twentieth century hanging came to be defended as a particularly humane form of execution. We also find the Royal Commission on capital punishment, which reported in 1953, commenting that `it is easier for the condemned man to show courage and composure in his last moments if the final act is a positive one, such as walking to the scaffold than if it is mere passivity, like awaiting the prick of a needle.'
The successful mid-nineteenth-century campaign for private executions sought to do away with the repulsive entertainment of public hangings, but was criticised by its opponents for introducing an un-English element of inquisitorial privacy into the procedure. Some abolitionists also opposed the campaign because they thought it would delay the total abolition of capital punishment. They were probably justified in their fears; and there is evidence that even in their own century techniques of hanging in Britain were not always as reliably painless as they should have been, for the Official Secrets Act allowed bungled executions to be hushed up.
It is clear that the complex ceremonial surrounding all judicial executions is a way of legitimising or consecrating the act of violence. These ceremonies are highly specific to different countries. The abolitionist argument is that private violence should never be answered by public violence. But it is a fact of social history that these ceremonial forms used to be effective in making judicial executions acceptable.
Nietzsche wrote that `There is no feast without cruelty, as man's entire history attests. Punishment, too, has its festive aspects.' A whiff of the atmosphere of old Tyburn and Newgate must have been caught by the patrons of Albert Pierrepoint's pub, 'Help the Poor Struggler' (though Pierrepoint himself claimed that he never talked about his duties) or again by those people attending the Royal Academy banquet which was regaled by Lord Goddard in his after-dinner speech with jokes about hanging.
But is it true, as the abolitionists contended, that capital punishment exacerbates violence in society. This could be so; but it could equally be that it is a valuable way of expressing society's abhorrence of murder, which in primitive societies is usually treated as a private tort against the victim's relatives, punishable through vengeance at their hands or else by compensation. Capital punishment is certainly an institution of city-states and kingdoms rather than of primitive societies.
A Dominican monk of my acquaintance recently wrote to me, in another context, that many theologians today believe in what they call Modern Man, which he says is an ecclesiastical fiction. It seems also to be a fiction to which many penologists and even, sociologists adhere. But resentment and vengeance are a part of our social nature, which needs to be satisfied by a penal code of graded severity — however much this should be tempered by public mercy and private forgiveness.