The subject of capital punishment evokes often ferocious debate. Each side, pro- and anti-, contends that the other lacks morality and/or reason because of their stance. Its existence and use has inspired a wide plethora of protests, songs, films, and writings, and it remains an emotive issue even where it is no longer carried out.
In the following article, I intend to explore that debate. Particularly, I wish to offer a uniquely anarchist perspective against the death penalty.
Origins and methods
Death, as a form of judicial punishment for wrongdoing, far predates the state. However, the evolution of communal society and systems of arbitration saw the importance of the death penalty reduced. As Peter Kropotkin wrote in Mutual Aid: A Factor of Evolution;
In their conceptions of justice the barbarians evidently did not much differ from the savages. They also maintained the idea that a murder must be followed by putting the murderer to death; that wounds had to be punished by equal wounds, and that the wronged family was bound to fulfil the sentence of the customary law. This was a holy duty, a duty towards the ancestors, which had to be accomplished in broad daylight, never in secrecy, and rendered widely known. Therefore the most inspired passages of the sagas and epic poetry altogether are those which glorify what was supposed to be justice. The gods themselves joined in aiding it. However, the predominant feature of barbarian justice is, on the one hand, to limit the numbers of persons who may be involved in a feud, and, on the other hand, to extirpate the brutal idea of blood for blood and wounds for wounds, by substituting for it the system of compensation. The barbarian codes which were collections of common law rules written down for the use of judges — “first permitted, then encouraged, and at last enforced,” compensation instead of revenge. The compensation has, however, been totally misunderstood by those who represented it as a fine, and as a sort of carte blanche given to the rich man to do whatever he liked. The compensation money (wergeld), which was quite different from the fine or fred, was habitually so high for all kinds of active offences that it certainly was no encouragement for such offences. In case of a murder it usually exceeded all the possible fortune of the murderer “Eighteen times eighteen cows” is the compensation with the Ossetes who do not know how to reckon above eighteen, while with the African tribes it attains 800 cows or 100 camels with their young, or 416 sheep in the poorer tribes. In the great majority of cases, the compensation money could not be paid at all, so that the murderer had no issue but to induce the wronged family, by repentance, to adopt him. Even now, in the Caucasus, when feuds come to an end, the offender touches with his lips the breast of the oldest woman of the tribe, and becomes a “milk-brother” to all men of the wronged family. With several African tribes he must give his daughter, or sister, in marriage to some one of the family; with other tribes he is bound to marry the woman whom he has made a widow; and in all cases he becomes a member of the family, whose opinion is taken in all important family matters.
It was with the state and hierarchical systems of power that the death penalty gained dominance. And brutality. The breaking wheel, boiling to death, flaying, slow slicing, disembowelment, crucifixion, impalement, crushing, stoning, execution by burning, dismemberment, sawing, decapitation, and scaphism are a few examples of the brutality of state execution.
Now, as a result of various democratic and popular pressures, most western countries have abolished the death penalty altogether. Of those that still practice it, the ones with at least a semblance of democracy about them have adopted more humane practices. Compare the United States, where 1,019 of the 1,191 executions since 1976 were done by lethal injection, to the continued use of decapitation or stoning in Saudi Arabia.
Anarchists, being opposed to the state and the monopoly it claims on the legitimate use of force, are thus against the use of the death penalty by the state. However, as already mentioned, the state is not the only entity to use execution.
Anarchists seek a world based upon autonomous and directly democratic communities, which administer justice based on voluntary arbitration. Though they tended against it where possible, historical communities which organised themselves on such a basis did have the option available of death as a punishment, with its extreme being the blood feud. The idea behind it was that “acts of retaliation underscore the ability of the social collective to defend itself and demonstrate to enemies (as well as potential allies) that injury to property, rights, or the person will not go unpunished.”
Would this idea persist in an anarchist society? Is use of the death penalty permissable if not performed by the state, or with the barbarism seen throughout history? No. There are a variety of reasons for this, practical as well as moral and philosophical.
The moral argument
Some opponents of the death penalty would argue against it on the grounds that it is “the easy way out for criminals.” I do not. For those who make such arguments, the alternative is that the criminal “rot in a dank prison cell for the rest of his days, regretting his actions.” Having already written as to why the prison system is unjust, I could not make such an argument. Moreover, such an argument is an authoritarian one, not a libertarian one.
For anarchists, the issue of crime cannot be divorced from the society within which it occurs. Criminality is not an inherent part of human nature, i.e. nobody is born “evil,” but the product of a wide variety of factors that are both personal and societal. For example rape, being based on power, is the product of a patriarchal and sexually repressive social system. However, at the same time, anarchists do not eschew the idea of individual responsibility or sit back and say “it’s society’s fault.” Anarchic justice is based on both the restructuring of society to deal with root causes of crime and on addressing actual criminal acts committed by criminals in the present.
Eric Fromm made a similar point in The Fear of Freedom;
It would seem that the amount of destructiveness to be found in individuals is proportionate to the amount to which expansiveness of life is curtailed. By this we do not refer to individual frustrations of this or that instinctive desire but to the thwarting of the whole of life, the blockage of spontaneity of the growth and expression of man’s sensuous, emotional, and intellectual capacities. Life has an inner dynamism of its own; it tends to grow, to be expressed, to be lived . . . the drive for life and the drive for destruction are not mutually interdependent factors but are in a reversed interdependence. The more the drive towards life is thwarted, the stronger is the drive towards destruction; the more life is realised, the less is the strength of destructiveness. Destructiveness is the outcome of unlived life. Those individual and social conditions that make for suppression of life produce the passion for destruction that forms, so to speak, the reservoir from which particular hostile tendencies — either against others or against oneself — are nourished
That said, even a free society will not be completely crime free. As just one example, crimes of passion are motivated by a strong and sudden impulse that cannot be foretold by the perpetrator, much less any social system whose aim is the prevention of anti-social behaviour. In other cases, personality disorders such as psychopathy or psychosis may be the motivating factor. How, then, do we deal with such acts? Surely those who would commit such despicable acts as rape and murder, especially in a world lacking the authoritarian repression of the present, ought to be put to death? In purely moral terms the answer remains no, whether we are talking about anarchy in the future or present-day society.
We are, in condemning the perpetrator of a “capital” crime, making a moral judgment. We are declaring the act committed, whether murder, rape, or some other action, to be wrong. For that moral judgement to hold up, it must apply in every similar situation. As Noam Chomsky states, “one of the, maybe the most, elementary of moral principles is that of universality, that is, If something’s right for me, it’s right for you; if it’s wrong for you, it’s wrong for me. Any moral code that is even worth looking at has that at its core somehow.” Thus, if the taking of human life in an offensive act is wrong, then it is always wrong. It is wrong if it is committed by a mugger with a knife, by a policeman with a gun, or by a doctor with a needle.
I have used the word “offensive” as a qualifier because this reflects my own judgment. I am not a moral absolutist and as such can envision situations where taking a life may be necessary or even right. For example, acting in self-defence, it may be necessary to take the life of an aggressor who would otherwise take yours. Or ending somebody’s life may be an act of mercy and the only alternative to endless agony and physical or mental decline.
There are those who will argue that judicial execution is an act of defence, as it prevents the person against whom it is enacted from harming anybody ever again. However, this is a non-sequitur. The death penalty is not enacted to defend against potential future offences, but as a punishment for an offence already committed. It is a retributive act, and so cannot be classed as defensive. If an individual, taken by a moment of madness, killed someone upon discovering their guilt in the death of a loved one, we may be able to justify or explain it as a crime of passion. However, unless this revelation came in the midst of a direct and immediate threat (to put it crudely, “I killed your daughter and now I’ll kill you”), the killing is not a defensive one. And if that individual were to deliberately seek out the perpetrator in order to deliver a summary execution, then the act would not even be a crime of passion but an act of premeditated murder. Once again, it would not be a defensive act but an act of vengeance.
Perhaps the most eloquent argument I have read in favour of the death penalty comes from Greg at The Anti-Politician. The reason being that, unlike so many other commentators, he attempts to make an argument based on statistics and experience rather than (barring the occasional lapse) emotive sentiments. I intend to address them when moving on to the practical argument against the death penalty, but here I would like to make one point. In countering the idea that the death penalty is barbaric, he makes the following argument;
I believe that a judge should have an option for the death penalty in cases (with the requirements I mentioned earlier – jury, etc.) involving pre-meditated murder, child rape, kidnap and torture and certain cases of child abuse or adult rape. Those acts are inhumane and barbaric, not the punishment The idea that a group of twelve people should then reach a unanimous verdict that the crime is beyond doubt and so heinous as to warrant a death penalty that is then carried out a scheduled time and under strict conditions is not barbaric at all. “Barbaric” means “like a barbarian”, a barbarian would never be able to comprehend such a course of action.
He does, of course, make a valid point. The decision-making process he is advocating is not barbaric at all, but unique to more developed societies. However, it should be pointed out that people do not think execution barbaric because of how people reach the decision to carry it out. The argument for it being barbaric is that it is an act of vengeance masking itself as justice, often based on a sentiment (“an eye for an eye“) that originated in the dark ages.
The practical argument
As well as the above stated moral argument, there are several practical arguments to be made against death as a form of punishment. Several of those involve the legality of the punishment, particularly in relation to the Universal Declaration of Human Rights. However, I will not be focusing upon them here, for two quite simple reasons. The first is that those who favour the death penalty would argue for a change in those very statutes that supposedly render it illegal. The second is that, as an anarchist, legal diktats imposed from above (even if I agree with the sentiments expressed) are at best a neccesary evil under a statist system. Rather, I shall focus on three main points – that the death penalty does not serve as a deterrent, that even in extreme cases rehabilitation remains a possibility, and that it is impossible to implement a system whereby the execution of innocent people can be absolutely avoided.
That the death penalty is not a deterrent is perhaps, the most common argument against it. For example, Amnesty International tells us that “during the last 20 years, the homicide rate in [US] states with the death penalty has been 48 to 101 percent higher than in states without the death penalty.” This is countered by Greg with the point that “the stats do not show a lack of deterrent” because “the only correct way to measure a deterrent is to observe its effect in place and then remove the possible deterrent in the same location.” His conclusions, are the exact opposite of Amnesy’s. “In Texas, the murder rate decreased greatly after the death penalty was reintroduced. In the UK, murder and serious crime has risen steeply after our own death penalty laws were abolished.”
However, several problems arise here. The first, which is equally applicable to Amnesty’s statistics, is that correlation does not determine causality. As Greg rightly points out, crime rates in any particular country or state are affected by “its law, its social make up, its wealth and many other factors.” Both Texas and Great Britain have seen significant alterations in a wide variety of such factors beyond the abolition or reintroduction of the death penalty. There is also the fact that it is hard to find even correlation within the presented statistics. Whilst it is true that the per-capita murder rate in Texas decreased from 12.2 in 1976 (the year of reinstatement) to5.6 in 2008, it is also true that the rate increased from 8.6 in 1960 to 12.4 in 1972, the year the supreme court suspended the death penalty. Moreover, statistics show that the increase in the per capita murder rate in Britain is nowhere near as steep as the overall murder rate, more affected by increases in population than anything else. And, importantly, the increase is not a constant one, with the murder rate for 2008 being the lowest in 20 years.
The reason it is so hard to find a correlation between the use of the death penalty as a punishment and the murder rate is because there isn’t one. If it were a deterrent, we would expect a negative correlation, and if it were an encouragement (an absurd idea that nobody is suggesting), a positive one. Instead, the murder rate seems almost oblivious to whether the crime is punishable by death. This is because, in expecting a deterrent effect, we are expecting potential murderers to undertake a rational cost-benefit analysis before undertaking the crime. As this editorial for the Dallas Morning News explains, such an idea is “not the real world;”
Murder is often a crime of passion, which by definition excludes the faculties of reason. The jealous husband who walks in on his wife and another man is in no position to deliberate rationally on the consequences of killing his rival. The convenience store robber who chooses in a split-second to shoot the clerk has not pondered the potential outcomes of pulling the trigger.
People overtaken by rage, panic or drunkenness should be brought to justice, of course, but they are hardly paragons of pure reason, and it’s unreasonable to assert that they consider the possibility of a death sentence when committing their crimes.
Even premeditated killers don’t expect to be executed. And for good reason. Statistics show that a homicidal gangster is far more likely to die at the hands of his fellow thugs than the hands of the state. As economist and Freakonomics author Steven Levitt writes, “No rational criminal should be deterred by the death penalty, since the punishment is too distant and too unlikely to merit much attention.”
The threat of execution could serve as a deterrent to capital crimes such as murder, but only within the context of a totalitarian state. Clearly, this is an undesirable outcome, and so the deterrent effect can be dismissed out of hand.
Moving on, the next question is that of rehabilitation.
Of course, there are those within our society who simply cannot be rehabilitated. I harbour no illusions that there is some magic method by which we can “cure” psychopathy or any other such strawman argument used against opponents of the death penalty. Likewise, in discussing this area I shall leave aside entirely the matter of paedophilia and pederasty. That is so complex in itself, and enough of an emotive minefield, that it presents an entire debate in and of itself.
Here, the focus is on the vast majority of even capital criminals who are not permanently devoid of basic reasoning and empathy due to personality disorders. For those who are, permanent exclusion from society may be the only remaining option, whether that occurs within the walls of a dedicated institution or on a remote island.
But clearly, though they grab headlines and incite outrage, these are a minority amongst those who have taken human life. The idea of any sort of “hierarchy of murder” is outrageous, and of course the loss of someone caught in the crossfire of gang warfare is no “less” than the loss of someone systematically tortured by a sociopath. But in terms of the perpetrators of these acts, the scope for rehabilitation is quite different. Although there is broad debate about this generally, there are strong arguments for the idea that even the perpetrators of the most controversial murders may be rehabilitated.
Of course, one can point to any number of cases where murderers or rapists released from prison have reoffended. This does not, in itself, prove that rehabilitation doesn’t work. As Iain Murray argues in a paper for the think-tank Civitas, rehabilitation programmes must be comprehensive and must be uniquely tailored to each individual;
It seems that the natural state of an ex-prisoner is that he or she (recidivism rates for females are not appreciably lower) is liable to re-offend. This is almost certainly because the combination of mindset, worldview and circumstances – the “needs” of the subject – surrounding the newly released prisoner are not appreciably different from what they were before his or her last arrest. Programs that seek to address only one, or even just a few, of these needs are unlikely to succeed in altering the next choice he or she has to make as to whether or not to commit a crime. If there is one overwhelming need, such as substance abuse, that has been addressed, then perhaps the choice will be easier, but if other needs remain, then the choice for crime may still be taken. Successful rehabilitation exercises recognize the whole of the offender’s set of needs, and proceed to address them as best they can. The individual is not sacrificed to a big idea, and so the individual emerges better equipped to make necessary choices.
Thus, when Greg dismisses this with the single line that “extreme leftists probably believe a week of rehab should do the trick,” he is dismissing a strawman argument.
The other major concern with execution is the risk of killing innocent people. As Greg’s article notes, even one percent of executions being wrongful is “still too many,” and “it is better for a hundred bad men to go free than one good man to be wrongfully executed.” However, he contends that with advances in forensic science “the chance of a wrongful conviction going through to execution seems less than being struck by lightening.”
This is simply not true. Only two months ago, the Director of Public Prosecutions in Victoria, Australia was “forced to re-examine all cases from the past five years to find if any have been undermined by analysis of DNA profiles now deemed unreliable by police scientists.” That significant flaws become apparent as forensic technology develops points to a significant improvement over time. It also demonstrates that no technology is perfect and that even infinetissemal errors, especially compounded by the much larger flaws of existing justice systems, significantly increases te risk not only of wrongful convictions but of them never being discovered.
It is also worth noting that statistics likely understate the actual problem of wrongful convictions. Once an execution has occurred, there can be insufficient motivation to keep a case open, making it unlikely that it will ever be exposed.
A universal argument
According to Edward Abbey, “the true, unacknowledged purpose of capital punishment is to inspire fear and awe – fear and awe of the State.” There is considerable merit to this argument. For example, it is worth exploring further the idea that use of the death penalty is racist, targets the poor, and in a broader sense is part of a system which enforces the power structures which shape our world in the present.
However, the argument I have already made above is not an argument against the death penalty only as it applies to state-capitalist systems. It is an argument against it within any and all possible social structures, even if they happen to be ones built around community autonomy and anarchy.