TO KILL, OR NOT TO KILL
A few problems with Capital Punishment
When the body is rested, and the mind, subdued by deep contemplation, seems unbent by the impulses of its vessel, stranger creatures stir, and bring to surface emotions old. It is here that our pretentious affirmations of certitude are revealed by the circumspect eye of self-scrutiny, and that our wisdom can admit that it is blind.
Death stalks us all from our infancy, for a man’s body is but a temporary edifice for his soul, that may never endure long to serve the purposes for which it was intended. From birth, we must learn to live, and in living learn to die…fondly remembered, fondly forgotten, faceless forever more…This is the immortal mortality of man: the greatest mysterious phenomenon that almost every other organism has to face in the universe. We are men amongst graves…yet for a slight cause we are never too slow to rise in combat, and in violence never restrained. The certitude of our infallibility has carved the history of our species with the Batak massacres, Nanking, the Shifta war’, the execution of Giordano Bruno, the Garissa massacre and other atrocities whose prevention would have been to the benefit of entire civilizations.
It is with deep regret too that I add, humanity’s obsession with self-destruction has diffused deep into the fabric of its moral code. It has been said that it’s often in the greatest adversity that the devil is sought. This was eloquently articulated by a popular writer in this form, “I know that retribution does not deter criminals, but we are justified as a community in expressing the full measure of our outrage by meting out capital punishment. Then, and only then, is the score settled.’’
Over the course of our history, institutionalized murder — euphemized as ‘capital punishment’– has taken various blood cuddling forms such as boiling to death, disembowelment, crucifixion , impalement, crushing (including crushing by elephant), stoning, burning by flames or by molten metals, dismemberment and decapitation. Today, after thousands of years of written history, ethical inquiries and the evolution of our morality, gas chambers, the lethal injection, electric chairs, hanging and plenty more methods of ‘humane’ murder still remain, as living fossils from an older moral world.
The primary functions of the justice system are to offer retributive justice to the victims of crimes, to prevent revenge and the possible cycle of violence that may arise out of vengeance, to prevent the emotional distress that victims face when they are incapable of obtaining justice, and to maintain order and progress in a chaotic, conflict ridden society. It has been therefore taught to us by our predecessors that the severity of the punishment for a crime should be reasonable and proportionate to the severity of the infraction. It may therefore be asserted that there are some crimes so grievous that they can only be punished by the loss of life. Victims of such crimes may argue that the state has no right to forgive the perpetrators on their behalf, and that it is their right to have the state preside over their retribution, in equal measure and severity to the crimes that they have suffered. It is here that our pretentious affirmations of certitude begin, for by what methods are we to determine whether a punishment is appropriately severe? Can the murder of a criminal really amount to appropriate punishment, and if so, does the method of murder matter? The different methods of torture and executio
n recorded throughout history represent this cross-cultural dialogue on how we differ about how harsh or soft the penal system should be overall. Take for example the familiar sentiment that a man should be castrated and the rather strange sentiment that a woman should undergo oophorectomy, for the sexual molestation of a minor: must barbarity really be retaliated with barbarity? Wouldn’t a jail term and other penalties suffice? What crimes can justify the use of murder, vice as virtue disguised, as a form of punishment?
Every ‘moral’ action such as the punishment of crimes, can be justified and condemned by its ability to be the genesis of future social benefits or social harm. This must be the circumspect eye through which every act the justice system carries out must be scrutinized, while it attempts to atone for the damage already done. That murder and justice have been ‘judged’ the same has therefore been the most conspicuous paradox in legal systems across the world.
The paradox is revealed when it is first accepted that any legal sentence must be inextricably intertwined with the fundamental principle of the presumption of innocence. It is from this point that all cases should begin, before an attempt is made to prove one’s guilt “beyond a reasonable doubt”.
What doctrine could be more familiar, and awaken our sense of justice, yet remain almost impossible to understand? In fact, as it stands today, it appears that the phrase “beyond a reasonable doubt” can be assigned no definitive meaning without significant controversy. In his book “The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial”, James Q Whitman, the Ford Foundation Professor at Yale Law School explains that this is more due to the phrase’s decadent past than the complexities in determining the following: exactly what types of uncertainty in a case could constitute ‘legal doubt’, and exactly when are legal doubts about the guilt of the accused ‘reasonable’.
It then follows that even when the prosecution has proved the defendant guilty ‘beyond a reasonable doubt’, they do not and cannot prove the defendant guilty beyond a shadow of doubt. Always, some doubt still remains, a significant room for judicial error. Inevitably, there is always a chance that even the most just processes may lead to the conviction of an innocent man: a fact that plagues the conscience of all courts in the world today.
In the older Christian tradition, Whitman points out, convicting an innocent defendant was regarded as a potential mortal sin. In an act of forethought, the jury always understood that there was more at stake than the fate of the accused: their own. They had to be reassured that the power bestowed upon them, the power to determine the fate of another man, can be exercised without dire consequences to their fates in the next life. Whitman writes that the standard ‘beyond reasonable doubt,’ like the jury ‘unanimity rule’, was created to assuage the juror’s moral doubt: the concern that a decision-maker might condemn himself in the eyes of God by wrongfully convicting the accused of a capital offense; an act equated with murder.
Whitman asserts that a decision-maker’s concern with God’s coming judgement was greater than any other concern in the judicial process, and that the greatest challenge for early modern decision-makers was overcoming the fear of the spiritual consequences of condemning another human being to death. In addition too was a fear that still runs through the hearts of many today, though less deep: the fear of vengeance from the side of the convicted man.
It is for these reasons that I assert that any convicted man, regardless of the crimes for which he has been charged, upon judgement, reserves one last right: the right to future pardon, a right extinguished completely by capital punishment. No sentence is fair, and no sentence just, that denies a man the right to future pardon. It is the last hope of every victim of judicial error. Though most independent cultures and various primitive tribal practices indicate that the death penalty was an integral part of their justice system, its abolition will be of greater social benefit to humanity today than its existence. The deeds of the past, as we all have observed, cast their shadows far into the future: the legal amendments of today mould the justice system to come. What then is our wisest course?
As Oljororok MP John Waiganjo seeks to abolish the death penalty through an act of parliament, asserting that “the punishment is immoral, ineffective as a deterrent, and has failed to adequately restore victims of the crimes for which it is prescribed”, I agree with him. So far, over 100 countries have completely abolished capital punishment de jure for all crimes, and 50 have abolished it de facto (have not used it for at least ten years and are under moratorium). In addition, the United Nations General Assembly has also adopted non-binding resolutions calling for a global moratorium on executions, aiming at future total abolition. Unfortunately, the majority of the world’s population still lives in countries which continue to apply the death penalty, such as the United States, Indonesia, India and China: the four most-populous countries in the world. Indeed, we have a long way to go as a species. Kenya too must start contributing to this progress by embracing change towards a better future.
