The recent execution of two Australians in Indonesia for charges related to drug-trafficking has sparked an intense amount of attention and debate. Is the death penalty moral? Is it effective at preventing future crime? Is it cost effective? The fact that we are all asking these questions is a great step forward, and I thought I’d weigh in on it briefly. [Please note, this article is not about the way in which we should conduct the ‘war on drugs’ (or whether we should conduct that war at all), but on the death penalty in general].

One of the most commonly asked questions in this debate is, what is the deterrent effect of the death penalty on serious crime? For instance, if there is good evidence that taking someone’s life by execution will result in preventing a higher proportion of deaths by murder, then we may be able to justify this policy from a utilitarian point of view; a pure number-crunching calculation. So what does the evidence show? It doesn’t work.

“I have inquired for most of my adult life about studies that might show that the death penalty is a deterrent, and I have not seen any research that would substantiate that point.” (Former U.S. Attorney General Janet Reno at a Justice Department press briefing, January 20, 2000)
“Researchers have used repeated cross sectional observations of homicide rates and sanctions to examine the deterrent effect of the adoption and implementation of death penalty statutes. The empirical literature, however, has failed to achieve consensus.” (Getting off death row: Commuted sentences and the deterrent effect of capital punishment’, H Mocan, 2003)
“Studies of the deterrent effect of capital punishment provide no useful information on the topic.” (Deterrence: A Review of the Evidence by a Criminologist for Economists. Annual Review of Economics’, Daniel S. Nagin).
“The committee concludes that research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates.” (Committee on Deterrence and the Death Penalty of the National Research Council in Washington, D.C)

The persistence of the death penalty in many countries, without evidence of any benefit to society, is pure retributivism. Retributivism is the view that it is a moral obligation to punish criminals – even if that punishment does nothing but to inflict suffering on the person in question, without any benefit to others. This view was articulated by the philosopher Immanuel Kant in the following:

“Even if a civil society were to be dissolved by the consent of all its members (e.g., if a people inhabiting an island decided to separate and disperse throughout the world), the last murderer remaining in prison would first have to be executed, so that each has done to him what his deeds deserve and blood guilt does not cling to the people for not having insisted upon this punishment.”

Retributivism is inhumane and void of compassion. In the words of The Smiths singer, Steven Morrissey, “It takes strength to be gentle and kind.” It denies the consideration of prior events – genetics, a traumatic childhood, sexual abuse, and cultural influences – as contributors to criminal behaviour, treating their presence or absence as arbitrary. We are left with the criminal act itself and a stock standard punishment. Retributivism robs society of the chance to implement measures other than personal punishment that could prevent the person in question from committing the act again, or prevent others from ever committing it in the first place.

However, standards of responsibility do change behaviour, and the utilisation of punishment can still hold true. Where other options are not available, punishment can augment behaviour of the convicted individual, and persuade the future actions of others by espousing a message that certain behaviours are unacceptable. Locking someone up for life is sometimes the most compassionate reaction to an individual’s action. And it’s feasible to imagine a world where the death penalty is the most compassionate reaction to some crimes, but the evidence suggests it is not the one we are living in.

One may then say, ‘ Well, that’s an easy position to take from the comfort of your own life, but what if it was your loved one who was raped or murdered?’  However, this argument simply translates to ‘How would your views change if your judgement was clouded by extreme emotions?’ It’s a non-starter, and offers little more to the discussion. I do not claim to be on par with Ghandi when it comes to pacifistic compassion. However, if I had the time and sense to think about such a situation clearly, I would have to admit that retribution would not make any sense. This clarity is not so easy to achieve, which is why we have a relatively clearly defined legal system that takes care of criminal matters, rather than an Old-Western style self-governance of law.

I also recently read the following comment on Facebook:

“I think sentencing someone to life in prison is a waste of taxpayer money, regardless of what country it happens in. This might be a reason why poorer backwater nations seem to employ the death penalty more often. just because richer nations can afford to keep someone locked up forever doesn’t mean its a GOOD idea..”

On the surface this may seem like a credible argument, but again the evidence suggests otherwise. For example, a study conducted in California in 2012 revealed the staggering costs of legal proceedings involving the death penalty compared to those that did not. This has been echoed in many other U.S states, including Kansas, Idaho, and Colorado. These costs include pretrial and trial costs, automatic appeals and State Habeas Corpus Petitions, Federal Habeas Corpus Appeals, and costs of incarceration. The authors of the study calculated that if the Governor commuted the sentences of those remaining on death row to life imprisonment without parole, it would result on immediate savings of $170 million per year, with savings of $5 billion over the next twenty years.

Even without these findings, it seems a precarious position to dictate a society’s ethical and legal framework on the logic of saved money. For example, consider severe diabetics with secondary renal failure, who spend much of their remaining lives in hospital attached to dialysis machines. They are stripped of much of their quality of life, and incur obscene costs to preserve what’s left. Could we be justified in denying treatment and letting them die? Indeed, saved money could be directed towards preventative health measures to decrease future prevalence of the disease. Though it may appear feasible within a narrow frame of view, brief consideration would find that the detriments to a wider society that conducted itself this way would outweigh the benefits.

All of this being said, it must be noted that the ‘war on drugs’ is not only a lost one, it is a pointless one. The Prohibition in the United States in the 1920’s was a perfect example of this, but a poorly learnt lesson. Rather than comment further on this, I have been told ‘Chasing the Scream, The First and Last Days of the War on Drugs’ by Johann Hari is an amazing book on the subject.