Morals Blogs: Capital Punishment 5: Historic Abuses

Historic Abuses of Capital Punishment

One reason our generation – right around the Western world – has turned against the very idea of capital punishment is the awful historic abuses of it. We are now only just climbing out of some dark days of draconian punishment.

Because of this I wish to emphasis that I am in no way advocating turning the clock back to those dark days!.

I think that the abuses of capital punishment broadly fall into two classes:

1. Condemning the innocent and 2. Punishment that outweighs the crime.

1. Condemning the innocent.

This is a thing which throughout the Bible is said with great emphasis to be both abhorrent to God and totally contrary to his moral nature. He will never condemn the innocent. He will not leave unpunished humans who condemn the innocent. It is, unfortunately a very common sin committed by humans. It is always evil when intentional. It demands reform of our system of justice when it is accidental. Let us quickly survey its various faces:

a) Judicial murder.

This one is near the top of the list for individual scale human evil. When the very system intended to produce justice is perverted to perform murder it is a whole degree of magnitude more evil than straight out murder.

In the Old Testament one classic instance is depicted in the story of Naboth's Vineyard.

Nearly three thousand years ago the king of Israel wanted the family vineyard of a citizen named Naboth for a palace veggie garden. Naboth wouldn't sell. The King's wife, a foreign lady called Jezebel, told her husband that in her culture kings don't take “No” for an answer. She sent a letter under King Ahab's seal to the leaders of Naboth's town. They were ordered to falsely charge Naboth with blasphemy and sedition, fake the necessary evidence, then try, convict and execute him.

God's anger at this abuse of the justice system should scare even the most ruthless tyrant. The prophet Elijah was sent to tell Ahab that (among other things): “Where the dogs licked up Naboth's blood they will lick up yours!” Years later when Ahab's army commanders saw the blood from Ahab's fatal wound being washed from his chariot and dogs licking it up they recall those words, and realise that this is indeed the very place where Naboth was executed. God could hardly have made his feelings any clearer!

Jesus' crucifixion is the great example of a judicial murder in the New Testament and the unequalled instance of human evil.

Throughout history people in authority have resorted to murdering people who got in their way by perverting justice to condemn the innocent. It indeed is a very great evil and we must fight it wherever it rears its ugly head.

b) Mob Hysteria

Another perversion of justice is where mob hysteria rules. It is like, but different to judicial murder.

Classic cases are the infamous witchcraft trials. Mob hysteria fuelled the hunting down, baseless accusation, phony trial and execution of totally innocent people.

We should indeed be revolted by these. But transferring our revulsion on to “capital punishment” is not the right response. It also happens in jurisdictions where there is no capital punishment. True the victims are not executed, but the harm inflicted on them may be almost as great!

My point again is that these historic abuses are indeed great evils. They are wrongly used as popular considerations against capital punishment. They are abuses – deal with them as such.

c) Failure of Due Process

In the Old Testament the rule was laid down “do not convict anyone on the evidence of only one witness.” and as a strong deterrent to false witnesses: “anyone who gives false testimony in a trial must suffer the punishment that the wrongly accused person would have suffered.”

of Daniel devising a way to show that two scoundrels who accused a woman of adultery were lying. In the story the lying witnesses are then stoned to death and the innocent woman exonerated.

The Old Testament was, even in civil cases, very strong on the ideal of a fair trial. With commands like “Do not side with the mob” : “Do no favour the poor, or toady to the rich in their court case” “Judge fairly and do not accept a bribe”

Outside the Bible, even one Roman Emperor persecuting Christians instructed one of his provincial governors: “Do not entertain an anonymous charge against any person”

In the English judicial tradition there has over many centuries grown up rules of fair trial – often termed “due process”. Things like the presumption of innocence and the right to remain silent are well known. Others like rules of evidence are more of a puzzle to the general public. They have grown over the centuries from practical experience that on the whole they give the best chance of avoiding a wrong verdict.

Together these things add up to a “fair trial”.

In jurisdictions where due process is not guaranteed we rightly feel motivated to oppose capital punishment.

d) Mistakes Happen.

Even where there is a tradition of a fair trial, mistakes happen. Guilty people walk free because they have a good lawyer; sometimes innocent people are wrongly convicted.

One way jurists have tried to balance the need to have a justice system that does function with the need to minimise miscarriages of justice is to change the burden of proof with the harm that would be caused by a wrong verdict.

In popular terms, we don't make a federal case” out of something trivial. In court civil cases are often decided on “the balance of probabilities” while criminal trials require the case to be proved “beyond all reasonable doubt”.

For capital crimes the bar should be set even higher. One Judge Blackwell famously said: “I would rather release ten guilty murderers than hang one innocent man.” However, historically, capital cases have not uniformly required a greater degree of certainty than that for imprisonment.

Nothing in human affairs is perfect, nothing is certain. Opponents of capital punishment are quite right to point to the numerous cases where even after a fair trial, an innocent person has been convicted. An innocent person imprisoned can be released, and some compensation for the harm done to them can be made but wrongful executions cannot be remedied in this world.

My conclusion is: when capital punishment is re-introduced it should require strong safeguards against all these abuses. Including for instance a higher standard of certainty even than required in the best jurisdictions at present for 'life' imprisonment.

That this must be achieved is a matter we ordinary citizens can decide.

How this can best be achieved is however a matter for experts in jurisprudence and drafting laws to consider.

Next Post: Does the punishment fit the Crime?