Killer instincts: capital punishment in America

Alan Ryan muses on the persistence of US support for the death penalty

August 21, 2014

Fifty years ago, on 13 August in 1964, Peter Allen and Gwynne Evans were hanged at Walton Prison in Liverpool and Strangeways Prison, Manchester, respectively, for the murder of John West. Those were the last executions in Britain, and attempts to reinstate capital punishment have never come close to success. Over the years, British students looking at theories of punishment have become increasingly surprised that it took so long to abolish; American students are another matter.

In fact, British governments never liked the finality that the European Convention on Human Rights brought in 1998. Successive acts of parliament left a steadily diminishing number of capital crimes. The great sweeps were in the 19th century, when more than 200 capital crimes – ranging from poaching, forgery and theft of goods worth more than 5 shillings, all the way up to treason and piracy on the high seas – were reduced by stages to the handful we take for granted: varieties of murder, desertion and treason. Treason included attempting to alter the succession to the throne; therefore, adultery with the wife of the heir to the throne (although not with the heir himself) was a capital crime until 1998 and the introduction of the Human Rights Act. That act abolished the death penalty except in time of war.

Popularity of the death penalty drops when the dead are proved innocent and rises when a horrific crime occurs

The spectacular aspects of capital punishment were abolished. Pirates were not hanged in chains at London’s Execution Dock after 1834; public hangings went in 1868, as did beheading for treason, although no one had been executed by beheading since the 18th century. Nineteenth-century arguments over the death penalty were surprisingly similar to those that preceded the Homicide Act of 1957 and the Murder (Abolition of Death Penalty) Act 1965. They are not much like those you still hear in the US.

Parliamentary discussion in the 1860s usually boiled down to deterrence. “Usually” because some distinguished judges emphasised the moral aspect of punishment; when society punishes an offence, it does not set a price on misconduct, but engages in what Fitzjames Stephen in the 19th century and Lord Denning in the 20th called “emphatic denunciation”. Some actions are beyond the pale, and punishment says so. How that justifies hanging poachers is another question; so is the question of why we don’t leave denunciation to the occupants of the pulpit rather than the bench, and lock up malefactors for the sake of the public peace.

But the discussion of deterrence elicited some curious arguments. John Stuart Mill defended the death penalty on the grounds that criminals thought – irrationally – that it was the worst of punishments, and were deterred; executing them was justified because it was more humane than leaving them to rot in jail. It was a very odd argument from the author of On Liberty. In the run-up to the abolition of the death penalty in 1965, writers to The Times would sometimes insist that they were deterred by the death penalty, unlikely as it seemed that the 7.36 from Tunbridge Wells was full of bowler-hatted would-be murderers, held in check by fear of the rope.

It is not clear even now whether the death penalty has more or less deterrent effect than other penalties. In any case, the death penalty was abolished in most countries without majority support; its popularity drops when the dead are proved innocent and rises when a horrific crime occurs. When it has gone, people get used to its absence. So why are some US states attached to it to the point of addiction? Think of July’s botched execution in Arizona. Joseph Wood was executed for a crime committed 25 years ago. Quite aside from the hour and 57 minutes it took to kill him – it took 15 doses of the lethal cocktail – he had already served the life sentence that Mill thought worse than death before being killed. Arizonans were unmoved; he was a nasty piece of work and the world was better off without him.

My guess – which suggests that the Human Rights Act would not get far in the US – is that the combination of race, religion and an obsession with rights is the obstacle to change. The right to life does not exclude capital punishment; like all rights, it can be forfeited; execution is not “cruel and unusual” and therefore doesn’t fall foul of the Constitution; all American churches are against the death penalty, but believers think God commands it (although they are more selective than He was); and, of course, black Americans are much more likely to be executed than whites.

Long ago, I taught a week-long seminar on the topic in Oklahoma, a state that recently came close to impeaching its own Supreme Court when it granted a stay of execution to a prisoner scheduled to die. I hid my abolitionist prejudices; and I’m not sure that we have a human right not to be executed, so I didn’t wheel out the European Convention. The class was quiet and thoughtful, but committed to the view that some crimes just deserved death, that families had a right to “finality” – not having to share the world with someone who had killed a relative – and that dead people cannot reoffend.

They retreated only in the face of the expense involved. What makes defenders of capital punishment support it – the view that “death is different” – means that trials cost more, appeals are more elaborate, and keeping prisoners on death row costs about £50,000 a year more than simply imprisoning them. The Wild West illusion that a man can be convicted on Monday and hanged on Tuesday persists; when it is dispelled, people think of the other things the state might do with the money. Then they begin to change their minds. Sometimes it’s good to see money eroding moral conviction.

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