Chapter 3 - Part One

It is difficult to find really valid arguments against the death penalty. The abolitionists are likely to use emotional expressions and quick-witted slogans when they attack the death penalty. But if one is able to remain calm when listening to the speeches about it being "barbaric" and "uncivilised" etc. and seriously examines them, one will find that it is easy to see that the attacks are in actuality, often shallow and frail.

In Part One the following clichés and assertions shall be answered:

1. WITH THE DEATH PENALTY THERE IS THE UNAVOIDABLE FACT THAT SOME INNOCENT WILL BE EXECUTED (answer)

2. THE CAPITAL PUNISHMENT DOES NOT DETER AND IS THEREFORE INEFFICIENT (answer)

3. THE DEATH PENALTY DOES NOT LEAD TO A DECREASING NUMBER OF HEINOUS VIOLENT CRIMES (answer)

4. THE CAPITAL PUNISHMENT IS A CRIME AGAINST HUMAN RIGHTS - THE RIGHT TO LIFE (answer)

5. ALL HUMAN BEINGS HAVE AN INVIOLABLE VALUE AND THEREFORE THE CAPITAL PUNISHMENT IS UNACCEPTABLE (answer)

6. THE CAPITAL PUNISHMENT IS INHUMANE AND BARBARIC AND CAN NEVER BE ACCEPTED IN A CIVILIZED SOCIETY (answer)

7. THE DEATH PENALTY IS INHUMANE SINCE IT IS THE SAME THING AS TORTURE (answer)

8. IT IS WRONG FOR THE STATE TO KILL IN ORDER TO SHOW THAT IT IS WRONG TO KILL, BECAUSE THE STATE THEN COMMITS THE SAME CRIME (answer)

9. IF THE DEATH PENALTY IS FAIR FOR MURDER WE DO ALSO E.G. HAVE TO ASSAULT THE ASSAILANT (answer)

10. THE CAPITAL PUNISHMENT IS MURDER IN THE NAME OF THE LAW (answer)

WITH THE DEATH PENALTY THERE IS THE UNAVOIDABLE FACT THAT SOME INNOCENT WILL BE EXECUTED

The first argument we are to look at is often viewed as the strongest argument against the death penalty, but we will find that even this argument will fall short and has an illusory character.

In a legal system that includes the death penalty there is always a risk that some innocent will be executed.

There is no legal system that is flawless.

No judge, member of a jury or juror has a perfect judgement. They are not divine beings but human beings of flesh and blood that sometimes make flawed analyses, draw weak conclusions and communicate wrong decisions. There is no perfect justice no matter how evolved the legal system is. There is therefore no judicial system where there are no innocent people who are convicted in a court of law. (Argument 15 in chapter 2 however shows that a legal system without the death penalty means that considerably more innocent will die.)

But where the principles for an developed legal system are followed the risk of the innocent being executed can almost be avoided:

The burden of proof naturally has to be very high. It must be beyond all reasonable doubt that the accused is guilty in order for a death penalty to be considered.

In criminal cases where the outcome can be a death sentence the prosecuted should have defenders who are experienced and acknowledged.

The norm should be that criminal cases where a death penalty is possible there should be an appeal and a second trial.

There should be long prison terms for those who commit perjury.

These are some important principles that should be followed in order to avoid judgements that may convict an innocent person.

But no matter how many precautions the state governed by law takes, it is just as well reasonable to assume that some innocent may come, not only to be sentenced to death, but even executed. No doubt this is the most tragic that can occur in a state that introduces the capital punishment. An innocent person who has been executed will never have the opportunity to be restored and compensated by the State, and will be gone forever.

But this is a known risk that a modern and democratic state must be prepared to take. Justice is the cornerstone of a civilized state governed by law. But when handled by humans it happens that mistakes are made. But because justice on occasion fails to fall on the right person must not mean that we abandon it. Since justice in some cases and some crimes is unable to give any alternative to the death penalty we must accept that the final justice - the death penalty – has its chosen and determined place in the book of laws. A death penalty is just as irrevocable as the death of the victim of the crime. No one can therefore deny that the capital punishment means the fairest and highest punishment for the murderer.

It becomes unacceptable if hundreds of violent criminals and murderers are to avoid the death penalty in order for no innocent person to accidentally be executed. It would mean that we for ever are forced to abandon justice for such criminals. And thinking of the victims it would also be to sacrifice the respect, the compassion and the inviolable worth of the human life on the altar. These sacrifices would pass the limit of tolerability with big steps.

If we therefore place one innocent person on one side of the scale and hundreds of violent criminals and murderers on the other side, of necessity justice would still mean that the hundreds of guilty criminals receive their punishment together with the one innocent. The injustice becomes too great and painful if these hundreds of guilty criminals were allowed to live together with the innocent one. It would be too offensive and unjust to the hundreds of deceased victims and their thousands of relatives. It would create unreasonable and unacceptable proportions if all the murderers and violent criminals always were to avoid the death penalty in order to avoid that an innocent person is executed at one time.

The abolitionists sometimes claim that "many" innocent people will come to be executed and they allude to investigations.(1) Instead we have reason to believe that the number of innocent people who are executed in modern democratic states is exceedingly few. And the more developed the legal system of a country is the smaller the risk. And today it is possible to approach almost 100% surety of who is guilty by using, for instance, DNA-analysis and other highly developed criminal technology. Every day that passes, the weight of the headline’s argument is reduced also due to this reason. (Click here and read more about DNA.)

The seemingly strong argument of the headline is furthermore an illusion, and it can not really be viewed as a counter-argument at all. Because if an innocent person was really executed it is not the death penalty in itself that is the root cause but what needs then to be placed under critique are the flaws within the legal system.

If an "innocent person" happens to die during a surgical operation no one claims that the surgeons are barbaric and must be abolished. We accept, with a heavy sigh, that the advantages of surgical operations, despite all, are worth the risks.

If hundreds of "innocent people" die when a liner sinks, no one will claim that liners must be stopped. Instead there are investigations started and commissions appointed to find out what went wrong, what can be improved, and who are responsible.

If an "innocent person" dies from a accidental shot during a military shooting practice, it is not the weapon or the shooting practice that must be abolished but the security routines that need to be improved.

And why not comparison with motoring? There are hundreds of thousands of innocent people who are injured or killed in the world every year due to drivers. In Sweden alone several hundred are killed. Compare this number to the one or the few who may eventually be innocently executed during a decade. Should not the anger of the abolitionists be a thousand times stronger against the barbaric rush of vehicles that kills so many innocent people? Where are the proportions in the rage of the abolitionists? There are many other aspects to be considered that could make it easy to work towards the abolishment of vehicles in the world. But the case is that all around the world the advantages of vehicles weigh heavier than the enormous number of accidents. And this is the way to view the death penalty. But the difference is that when it comes to the death penalty hardly any innocent people have to suffer. It is not even comparable to the innocent bloody harvest of motoring.

We are also sadly aware of the fact that "innocent people" die due to human error in plane crashes, at athletic competitions, working sites, playgrounds etc. and this occurs without us even thinking the thought to abolish anything of this.

All this suffering of the innocent is tragic and horrible – but unavoidable. In a harsh and unpredictable world we must accept that innocent people everywhere suffer.

The society therefore is constantly forced to make choices. Are we, for instance, supposed to abolish surgeons from working since "innocent people" sometimes die on the operating-table? – Of course not. From their job follows so many good, healthy and valuable things and it averts so much suffering that we would never do something so stupid.

Even from the capital punishment there are many good, healthy and valuable things following and it also averts much suffering (chapter 2) – and all of this weighs so abundantly more than this horrible fact that an innocent life may be taken. Consequently, the use of the death penalty gives, in other words, such great humane advantages to the society that the price despite all becomes bearable.(2)

Let us think about all these hundreds of thousands of "innocent" persons who in different ways die every year in the world. Then we can not stop our eyebrows from raising when we hear the angry complaint by the abolitionists over the death penalty when there has been a rare case where a person was executed and later thought to be innocent. Furthermore, the absurdity is growing in strength if we consider that the alternative to the death penalty has taken a much greater number of innocent lives. This is because we know with 100 % certainty that the executed can not commit more crime, and with the same certainty we know that many criminals sentenced to prison are commit more crimes against innocent persons (see Chap 2, Argument 15).

We should also consider that in comparison with the death penalty there are many more people in USA, for instance, who have been judged to lifetime sentences without parole. And we can assume that there have then been mistakes done by courts and that there are convicted who have been actually innocent. However, many of these innocent people are not "discovered". And they can not expect to be acquitted and rehabilitated but are going to die in the prison. They and their relatives will suffer pain all their lives. In spite of this enormous tragedy, there are few who for that reason raise their voices and wish to abolish the lifetime sentence as such. Because, we all understand that there is a difference between what the laws impose for punishments, and sometimes fragile reality.

Penalties provided by just and sound laws are one thing, and human imperfections by courts within the judicial system are another thing.

If abolitionists could grasp that distinction much would been gained.

The argument of the headline is untenable since it does not affect the capital punishment in itself. The justice that dwells in the death penalty therefore stands untarnished after the argument has been fired at it.

On the other hand, the argument hits everything that concerns flawed security of justice and all that which surrounds the death penalty and which could lead to the execution of an innocent person. For this reason the warning that is found in the headline must constantly be under consideration and has as a consequence a constantly improving justice security system.

For more facts about the death penalty and innocent issues, click here and here.

THE CAPITAL PUNISHMENT DOES NOT DETER AND IS THEREFORE INEFFICIENT

It is not possible to refer to investigations and statistics in order to try to get support for the statement of the heading (which we show in chapter 4, "investigations concerning deterring"). And if statistical curves and diagrams fail to scientifically show that the death penalty has a deterring effect, how then are we to know?

- It is easy. We turn to sane judgement, common sense and experience to get answers. And then it becomes obvious that the death penalty – more than prison – deters some people from committing murder and cruel violent crimes and thereby society is less brutalised. No one should have to feel any doubt about this.

We humans are, as a rule, afraid to place ourselves in mortal danger. And the death penalty means obvious mortal danger. By this simple reason it is reasonable to believe that the death penalty has a strong deterring effect on some presumptive criminals.

Even mild sanctions usually have a deterring effect. If there would not be the slightest sanction when one were to hand in a fraudulent income-tax return, or ride a bicycle in the dark without a light, or drive negligently, or break the speed limit, or shoplift - then all of these crimes would be very frequent. But when these violations are seriously prosecuted, many people will be deterred. And if a few days in prison or a fine are deterring, it would be odd if death would not deter some presumptuous criminals from committing heinous crimes.

Deterrence always has been and always will be one reason why every state governed by law in the world has penalties such as prison or fines. It is commonly accepted within jurisprudence that penalties have a general preventative (deterring) effect even if one disagrees of the extent of it. It is therefore unrealistic and even a lack of judgement to claim that the death penalty alone is the only exemption from the rule and that it does not have a general preventative measures.

Since the death penalty to some is deterring it is also an effective form of punishment. The gain is invaluable if only one of one hundred presumptuous criminals would be deterred from heinous crimes only due to the death penalty. We are convinced that in reality the number is larger than that.

Does a lifetime sentence deter equally?

Some abolitionists claim that lifetime without parole would be as deterrent.

It should then be observed that it is always the individual, the presumptuous violent criminal or the murderer himself that determines if a death sentence is as deterring as lifetime without parole. Neither the expert nor the statistics can determine that. If an individual feels that the death penalty is the most deterring then that is the case with him. (It may be of interest to know that almost all of those prosecuted in the USA who risk the death penalty ask for lifetime without parole instead of the death sentence. What does that say about deterring?)

We are convinced that to most people death is generally more frightening than lifetime in prison. And that is especially true in many European countries where prisons may be fairly pleasant institutions. As soon as a prison term can be an endurable experience for a violent criminal or a murderer it is no longer as deterrent as the death penalty. If on the other hand prisons would hold a middle-aged standard and where those sentenced to death had to suffer an unbearable existence until their death it would probably deter just as much as the death penalty. But facing such a lifelong torture is unthinkable since it is neither fair nor humane.

The Italian author Cesare Beccaria [1738-94] wrote the trend-breaking and well known writing, "On Crimes and Punishments", where one part is about the death penalty. (Beccaria accepted the death penalty for those who where a threat to the security of the nation and for those who threatened the ruling government.) One of Beccaira’s main reasons why he was, in principle, an abolitionist was that he claimed that the death penalty was a less deterring punishment than that of lifetime in prison. Instead he spoke for "lifetime prison labour", "the lasting and torturous example", "shackles and chains, the whip, the yoke, the iron cages" – such things would be considerably more deterring than a quick finish by execution. Surely Beccaria was right. But such cruelty can not be accepted. Of course, Beccaria was against torture in a regular meaning, but his alternative to the death penalty also means a lifetime of torture and therefore his alternative becomes inhumane and unacceptable.

In our time there will always be people who are more afraid of death than lifetime in prison, and as a consequence this will keep some from committing heinous crimes. We mean that this is enough, since then the death penalty would actually come to save some innocent lives. And their lives should be more important for us to save than the life of a killer.

It is also the case that if lifetime without parole is the most severe punishment that can be given, the convict can, with no fear, once again rape, batter or kill knowing that they can not get a more severe punishment than that which they already have. These crimes can take place in prison or on leave or at an escape. An execution on the other hand puts a definite end to such things.

Active abolitionists should consider what their activities actually lead to. Judgement and common sense testifies that innocent people today are battered and killed at the hands of violent criminals and murderers who would be deterred from outrage and killing if a consequently used death penalty was used. We claim that every zealous abolitionist partly has a moral responsibility for this.(3),(4)

THE DEATH PENALTY DOES NOT LEAD TO A DECREASING NUMBER OF HEINOUS VIOLENT CRIMES

It is true that the capital punishment in itself is no method of salvation that will mean that the paradise is coming and that everyone will be kind to each other. And this is due to the fact that the evil in a society can not be wiped out using the death penalty or using any other sanction. No matter what the juridical laws that a country holds, heinous crimes will haunt society and spread fear as long as humankind walks the earth.

In order for the trend of violence and murder to lessen, many factors have to cooperate and the death penalty is only one of these factors. If society is to develop in a good way and in order to see the criminal trend lessen we the citizens of society and the government have to focus and fight the following diseases in the body of society: unemployment, poor economical growth, political instability, social problems, racial- and cultural oppositions, alcohol- and drug abuse, an ineffective police force, a legal system that lacks the trust of the people, psychological illness, the ease to supply guns, insufficient child raising, destructive housing environment, poor home and school environment, the "entertainment violence" in movies.

If the development in these areas would be for the better it would bring forth a more flourishing social climate as a whole, and thereby create the conditions needed to see the crime statistic begin their downward walk.

The abolitionists can often say, "the death penalty does not help." It is not always easy to know what they mean by that. If the word "help" means that the death penalty is unable to stop the flow of future violent criminals and murderers, this is correct. They will always exist. Neither capital punishment nor any other punishment can remove the evil from society and give us a blissful society. 

But in chapter 2 we see that the death penalty "helps" in many ways.

Here needs to be noted that the capital punishment first and foremost is not to lessen the most cruel criminality, but is intended to "help" by giving a just punishment and to maintain the respect and the dignity of the human life. The determining factor is thus not how much the crime rate drops by using the death penalty. The determining factor is that justice prevails and that the victims of crime receive the value and respect that they deserve. Yet it goes without saying that by using the death penalty the violent criminality will not be as extended as it is without the death penalty. Indeed some will be deterred from violent criminality because of the death penalty. Normally we humans avoid such things that threaten our lives. And it is also clearly understood that murderers and violent criminals who are executed are unable to commit new crimes.

Every country has the experience of both mass-murderers and serial killers, but the death penalty puts a definite end to continuous murders, and many people have then been spared from a life-long suffering. Every time this occurs it means a triumph for life in the society. Unfortunately we will never know when it happens, or how many times a capital punishment puts an end to the early stages of the development of a serial killer. But every time a serial killer is stopped by the use of the death penalty, before the violence has spread, humanism and humanity wins a great victory.(5)

The cold facts are that if every country would introduce the capital punishment and consequently follow the law and execute heinous criminals, such as violent criminals and murderers, the most violent crimes on the earth would be considerably fewer, and we would have a somewhat nicer and safer world to live in.

And one may wonder how many would lay sleepless at nights and cry the bitter tears of despair if the world inhabited fewer people who spread terror, destruction and deviltry among us by their acts of violence and murders?

THE CAPITAL PUNISHMENT IS A CRIME AGAINST HUMAN RIGHTS - THE RIGHT TO LIFE

In the formulation "right to life" the abolitionists has, to the advantage of the criminal, found something that often is used with the same authority as thou it were a direct divine command that is unquestionable.(6)

We on the other hand mean that murder is a horrible crime against the foundational human right – the right to life. But a state governed by law that executes a guilty criminal does of course not commit this crime, just as the soldier doesn’t when he defends his country and kills the attacker, or the police when in an extreme situation of danger kills a dangerous armed criminal, or when the citizen kills someone in a situation of self-defence in order to save his family or his own life.

The enemies of the death penalty commit a fatal mistake when they let the violent criminal and the murderer be embraced by this right. There is a macabre situation taking place when they place the murderer or the violent criminal in the limelight and protect him by kindly speaking about the "right to life." They have then placed this principle of humanism in the sewer and allowed it to become something devil-smelling and defiled.

No felon should be allowed to roam our societies carrying abuse, rape and murder in his luggage always saving his own life by referring to this human right. If this happens the "right to life" principle will be transformed to an inhuman principle, to a defender of the criminal, and then this principle has become somewhat of an enemy of humanity. If the principle "the right to life" is to be kept as the precious jewel that it is, it needs to be protected against abuse and pollution.

Why do the abolitionists necessarily want to give, e.g. such a person as Josef Mengele (German doctor at Auswitz who used indescribably cruel methods of experimentation on human beings and thus tortured many to death) the same absolute right to life as we normal citizens have?

What dark forces drive such a philosophy?

All humane and good principles and rights must be protected from abuse. This is today the case with the freedom of the press; not everything is allowed to printed (e.g. inflamitory writings against ethnic groups are punishable) and the freedom of speech; not everything is allowed to be said (e.g. offence and slander is punishable). This must also be the case with "the right to life". One who abuses a freedom or a right, to hurt or even kill people, places himself outside the protection of human rights and can be punished. Therefore, "the right to life" does not apply unconditionally for all people under all circumstances. There are exceptions to the rules and principles.

Conventions etc.

In UN's Universal Declaration of Human Rights that was approved in 1948 it says in Article 3: "Everyone has the right to life." During the preparations of this article some wanted there to be added that the death penalty violated the right to life, but they were voted down. The article does not contain the least bit of critique against the death penalty. As William Schabas (abolitionist) writes: "In 1948, the death penalty was an almost universally recognized exception to the right to life." (7) In the first draft to the 3^rd article the death penalty was clearly the exception: "Everyone has the right to life. This right can be denied only to persons who have been convicted under general law of some crime to which the death penalty is attached."(8)

And according to the UN’s international convention of the Citizens and Political rights that was approved in 1966 confirms in Article 6:1 "every person has an inner right to life." But the capital punishment is the exception to the right to life. The article is followed by certain limitations of the use of the death penalty in nations. The introduction to 6:2 is as follows: "In states where the death penalty has not been abolished, the death penalty may only be used in the most serious crime cases in accordance to a law that was in use at the time when the crime was committed." (Yet, paragraph 6 makes it clear that the convention does not have a positive attitude towards the death penalty.)

The Europe convention on Human Rights that was approved in 1950 prescribes in Article 2:1 "Everyone’s right to life shall be protected by the law." The next part makes it clear that the death penalty is an exception to the right to life: "No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law." There are also other exceptions according to the same article where "the right to life" is not applicable but the right to execute is given: "Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: 

a) in defence of any person from unlawful violence
b) in order to effect a lawful arrest or to prevent escape of a person unlawfully detained
c) in action lawfully taken for the purpose of quelling a riot or insurrection."

Later there have been different protocols and resolutions, especially in Europe, that more directly oppose the capital punishment. But they will never hold the same status as this documents mention here. 

Also based on the first foundational international texts we can see that this human right – "the right to life", was in no way considered to intrude upon the death penalty.(9)

From a historic point of view we can see that the countries and people of the world, as far as we can see, have always thought it obvious (with few exceptions) that the state governed by law has the right to take lives when certain crimes has been committed. Much legitimate critique can be given to the legal praxis of countries over the course of time, but the principle of "the States right to take lives" has always been there, and is still there in many countries, for instance the U.S.A.

Human rights are aimed to be a protection for the regular citizen so he will not be violated or mistreated. But it was not written so that people, without risk to their own lives, would be able to commit heinous crimes and murders. From one point of view the death penalty can be seen as the most severe sanction for those who severely violate the human rights. In this way the death penalty creates respect and reverence of this human right – the right to life – more than any other punishment is able to do.

Prison and fines

We can also compare it to prison. Liberty is counted as a foundational human right according to the UN's Universal Declaration of Human Rights (Article 3). But do we hear anyone say that a prison term is a violation of the human rights? Yet a prison term means a loss of liberty. But the nations of the world make exceptions for the criminals by putting them in prison and thereby rob them of this human right that liberty is.

And a right to one’s own fortune and property is a foundational human right according to the UN's Universal Declaration (Article 17). But do we hear anyone say that fines are degrading and a crime against the human rights? Yet fines means the taking of someone else’s resources. But the nations of the world make exceptions for certain criminals and sometimes take money and property from them and thereby deprive them, with the blessing of the law, of this human right.

These examples also show that human rights are not an absolute right for every person under every circumstance. There are always exceptions. This is also the case with "the right to life." Also, no country uses the absolute right to life for any person. (Consider the right of self-defence and the rights of the police and the military.)

Someone may wonder if the state governed by law really can have the right to decide over the life and death of people. We then need to point out that it is the violent criminal and the murderer who has taken the right to decide over life and death. It is he who has transformed himself to an evil god with power over the lives of human beings. This, on the other hand, forces the state governed by law to raise the sword of righteousness, even if it is done reluctantly. There are, in other words, times when the State with heavy, but decisive steps, have to bring the sword from the altar of justice in order to defend, acknowledge and justify the ordinary citizen’s right to life.

Sometimes a surgeon is forced to remove one of the limbs of the body (amputation) in order to save the rest of the body. The state governed by law is also forced to perform such unnatural operations (the death penalty). But it is an operation that, despite all, brings justice, human value, compassion and a defence of life itself, to the body of society.

No democratically and civilized state governed by law should allow the "right to life" to become like a protective amulet that the criminal can hang around his neck and show it with a smirk when he is accused of committing the worst crime against his fellow men. This possibility was e.g. not given to those convicted in the Nürnberg process. It was lead by an international court of law in 1945-46 and 12 nazi leaders were sentenced to death on the count of "crimes against humanity."(10) In dismay we observe that those who today are abolitionists have to, as a consequence of their faith, deplore and reject even the death sentences of the Nürnberg trials.(11)

For more facts about the relation between the "right to life" and capital punishment in international documents, see Appendix I.

ALL HUMAN BEINGS HAVE AN INVIOLABLE VALUE AND THEREFORE THE DEATH PENALTY IS UNACCEPTABLE

The victim of crime had an inviolable value, but the violent criminal and the murderer ruthlessly stepped on it through their crime.

Also a state governed by law who refuses to use the capital punishment, partly neglects the inviolable value of the victim by not giving the victim full justice.

All human beings have an inviolable value. But this is a principle with exceptions since a person in an extreme case can loose his inviolable value before the state governed by law. (Compare with our arguments in the previous answer.) A person may set himself in a situation where he no longer can claim an absolute inviolable value. This happens when someone repeatedly severely violates fellow men or takes someone’s life. A violent criminal or murderer who, by his crime, shows no respect for a fellow man or his inviolable value has no natural right to claim his own ‘inviolable value’ before the state governed by law.

A rightly imposed death sentence, on the other hand, always means the highest respect for the inviolable value of life. The message of the State through the death sentence is that every citizen of society holds the highest possible value. Therefore, if anyone robs a person of his life, everyone should feel safe knowing that this murderer will also loose his life. The death penalty therefor writes this message on everyone’s forehead: "the highest inviolable value, do not touch if you wish to live!" Therefore no one can rape or kick or torture or beat us to death without suffering the most severe consequences. And so the death penalty gives us, the citizens, a more secure feeling in the hearts, and above all, a sense of dignity. We become something - something valuable.

Openly and straight on we should ask ourselves what it should cost to violate another human being, or to kill someone. What price label should society place on such a deed of violence? The answers we give must be based on the value we place on a human being and especially the one who is afflicted by the hand of violence. If a man, especially a victim, has a small value, then the price does not have to be especially high and the punishment light. The higher the value we place on a man, and especially an afflicted fellow man, the higher the price, i.e. the more severe the punishment. Then the death penalty incomparably becomes the highest value we can give man – the victim of crime.

A country that uses the capital punishment therefore says to the world around: "here we value man as highly as it is possible. To heinously injure or kill someone costs, and the price may be life itself."

But in Europe, what is man worth in this part of the world? Full of shame we are forced to whisper that man’s life is not inviolable here.

For example, in Sweden the price label on a man’s life is approximately 6-18 years in prison.(12)

THE CAPITAL PUNISHMENT IS INHUMANE AND BARBARIC AND CAN NEVER BE ACCEPTED IN A CIVILIZED SOCIETY

A dictator regime – primitive quick trials – screaming judges – military men – the stamping of boots – a tied man against a wall – firing squad – volley of shots – convulsions – death.

Some have this picture in their minds when the death penalty is discussed. But a scenario that shows an unjust and cruel murder only shows us that the death penalty can be strongly abused and become a method of murder in the hands of the dictatorship demons.

The death penalty may, in other words, become an inhumane and disgusting instrument.(13) In times gone by, this was not uncommon. But today, in a more enlightened and humane time the risks to find this type of misuse of the capital punishment are almost extinct in democratic countries. There has rarely been a time in history where the death penalty has been as fitting as now when the security in the legal system of democratic countries has reached a high level.

In a civilized country it is not the death penalty but the deeds of violent criminal and the murderer that should be viewed as barbaric. The death penalty – rightly used by a developed legal system – is somewhat the opposite of barbaric. It is a mark of civilization since it reveals justice and righteousness. Additionally it reinstates the respect and dignity of all victims of crime etc.

It is not barbaric to remove a violent criminal or a murderer who has injured and killed fellow humans. It is not barbaric to make the earth a somewhat more safe, calm and just place. On the other hand it is barbaric to let the murderer spend a few years in prison and then give him freedom and the possibility to walk on the graves on his victims and maybe continue to terrify and torture people.(14)

Humanity

If we, without any context, only view an execution the capital punishment may seem somewhat inhumane. But if we receive a description of the crime, if we allow the victim to become the object of our attention, and if we also view the relatives of the victim, the scenery changes and the death penalty will have a shimmer of righteousness.

It is not the one who commits the most heinous crimes who should count on taking part of the humanity of the state governed by law. It should be those who are beaten and killed, and the relatives of the afflicted, who should take part of the solidarity and humanity of society.

The violent criminal and the murderer have rejected all humanity and respect of his fellowman. He has made his choice, and has placed himself at a distance of the human fellowship through his barbaric acts. If the state governed by law "rewards" this person by giving a lenient sentence this would in some ways mean an acceptance of the barbaric crime, while the death penalty would express the opposite – the greatest abhorrence of the criminal act.

It is correct that the capital punishment does not declare the gospel of humanity to the violent criminal and the murderer. The death penalty declares the gospel of justice, and it is a humane gospel to the victim who is then placed in the center of our care and concern.

The death penalty and civilization

A few abolitionists can claim that the death penalty may be just and that there are people who deserve this punishment but who at the same time claim that the refusal to impose the death penalty is a sign of a progressing civilization.

But such a philosophy is untenable. One final consequence of that philosophy easily becomes that everything that may be experienced as a punishment must cease to exist. Every "unpleasant" form of punishment then becomes uncivilized. Such a philosophy presupposes an insensible society where the citizens are drained of everything known as a sense of justice and compassion.

But a state governed by law that refuses the principle of justice and retribution to be seen is not civilized.

A state governed by law that refuses to act in order to place the highest human value and dignity on the victim is not civilized.

A state governed by law that refuses to let the highest moral sense and seriousness be seen in a court decision is not civilized.

A state governed by law that is not based on man’s natural sense of justice and compassion is not civilized.

A state governed by law that is more concerned with the well being of the most heinous criminals than the complete restoration of the victim is not civilized.

The capital punishment on the other hand satisfies all of these demands.

As The United States Supreme Court wrote in the verdict Gregg v. Georgia: "the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death."

THE DEATH PENALTY IS INHUMANE SINCE IT IS THE SAME THING AS TORTURE

It is correct to say that he who is sentenced to death will mentally suffer, more or less, until the time of execution.

The abolitionists often express empathy with the criminals who have been sentenced to death and who must suffer this ‘torture’ as they call it. They may also express empathy with the relatives of the perpetrators who may feel anxiety, and they see this as a reason to abolish the death penalty.

But what eternal law demands that the state governed by law has to pronounce such verdicts that will mean that mental suffering will be avoided for those people who has committed the most terrible, cruel and barbaric crimes?

A punishment has as its purpose to be ’painful’. If a punishment doesn’t affect the feelings, it is no punishment. All kinds of punishment therefore means more or less mental ’torture’ to the one who is afflicted. Therefore the abolitionists reaction against the ’torture’ is basically founded in a dislike of the principle of punishment.

We, on the other hand, claim that it is sound and morally unassailable to view the mental suffering of the doomed as a necessary step in the just punishment. This mental suffering, that is partly brought on by anxiety of the coming execution and partly is the result of strong pangs of conscience, is justified when considering the repulsiveness of the crime. The suffering is unavoidable and nothing that the state governed by law has to stop. The mental suffering is the necessary consequence of justice and retribution. He who has caused other people pain will have to count on taking part of pain also. It is the price to pay for the heinous crime that he has committed against his fellow men.(15)

It is probably a common notion that the cruelest criminals deserve such suffering. Why does the state governed by law have to see to it that those who ruthlessly have tortured and killed people necessarily must feel good?

From the moment a murderer is afflicted by this mental pain – i.e., at the moment of the verdict – the ’atonement’ for the heinous crime is begun. The death penalty is in fact begun the moment the verdict is passed. And this, naturally, has nothing to do with humane treatment for the convicted. But it has to do with justice. The fate of the convict is now to be afflicted by the pain of the soul that will meet him at the steps right before the final justice.

Those sentenced to death react differently to this suffering. For some it may lead to something good; they are driven to remorse of their crime and come to understand their guilt. This may also help them to reconcile with both themselves and their victims. In other words this ’torture’ may become the path to an inner freedom and healing. Pain is not always something negative.

But with our thoughts on the victims we accept this mental ’torture’ that precedes the death penalty. If, on the other hand, the deed and the victim and his relatives are disconnected from our consciousness this ’torture’ also becomes unacceptable. But when the death sentence has been pronounced and the suffering is intensified for the convict, our thoughts are not firstly with the convicted but with the victim and his relatives and friends. Society should mainly care for them and give them support in their wait to see the final justice carried out. Compassion and concern should also be shown in an appropriate way to the relatives of the perpetrator who is sentenced to death.

The convict himself, waiting for the execution, should only have the right to emergency medical care, and pastoral cure.

The ’torture’ of the convict before the awaited death should not be exaggerated. We are all "sentenced" to death. We shall all die. We only live a moment on the earth. But most of us do not feel anxiety over this. The difference is that for the one condemned to death, his death will come sooner than for the rest of us, and sometimes he even knows on what day death will come. But if a guilty murderer feels anxiety "for the sake of his sins" and because of fear of death we do not think and feel wrong if we judge that he deserves it.

We should also think of that every day thousands of peoples around the world are informed by a doctor that they will die because of a serious illness or an accident. Some are informed that they have maybe two months more to live, others that they have maybe one year, others maximum three year, and so on. Do such information means torture? Maybe, maybe not, the death is, after all, a part of life.

Article 5 in the UN's Universal Declaration of Human Rights says at the beginning: "No one shall be subjected to torture …"

It happens that abolitionists point to article No. 5 in the UN's Universal Declaration of Human Rights in order to attack the death penalty in that manner. It is a fairly new phenomenon. And it would, undisputedly, give weight to an argument if one can convince people to think that the capital punishment in any way would be in opposition to the Universal Declaration of the UN. But such an extreme interpretation of the fifth article must be strongly rejected. Every country that in 1948 approved of the fifth article had no thought that this would include the death penalty. And if the abolitionists of today want to be consistent then they would have to include things such as prison and fines in things that need to be abolished. Many interns experience their time in prison as "torture". And many people who are fined and thereby lose their dreams for the future of things such as houses, cars, boats and fortune may experience this as "torture." Do the abolitionists wish to abolish e.g. the prison sentence and the fines as a consequence of this argument? The reference of the abolitionists to the fifth article is no argument against the death penalty as such but is an attack against every type of severe punishment that a democratically and civilized state impose.

Etymologically the word "torture" has two meanings:

The first and current meaning can be summarized in this way according to a dictionary: painful and humiliating treatment with purpose to force forth a confession or valuable information. Article 5 deals with this common and current meaning.

The second and weaker meaning of the word may be exemplified by using the phrase "It was torture to listen to her song," or "The visit at the dentist was like torture." In this weakened meaning everything can be said to be "torture" that one subjectively experiences as very uncomfortable or that causes great pain. The enemies of the death penalty uses this weakened meaning in order to make us believe that this sort of "torture" is a crime against the fifth article. One may, for instance, claim that the waiting for the execution is "torture" for the convict, or one may call tragically failed executions as "torture". But those examples are not a bit a part of the first and current meaning of the word "torture" that the Article 5 is based on. In e.g. the USA there is no conscious striving to torture the one sentenced to death according to the first and common meaning of the word. On the contrary.

Conclusion: Every experience of strong discomfort and great pain we may indeed call "torture." It may be the waiting for an execution, it may be the prison-term, fines, a painful decease, anxiety, a visit to the dentist, etc. But torture in the real meaning of the word is when someone knowingly and with intent inflicts pain to another person for one or more decisive reasons. The word "torture" in the Article 5 is set in that context and refers only to that current meaning of the word. Therefore, the fifth article doesn’t have anything to do with the capital punishment. One who claims otherwise is, knowingly or unknowingly, manipulating both the context and the current meaning of the word as expressed in the fifth article.

IT IS WRONG FOR THE STATE TO KILL IN ORDER TO SHOW THAT IT IS WRONG TO KILL, BECAUSE THE STATE THEN COMMITS THE SAME CRIME

This is a classical slogan that is found in some slightly different versions and has become like a mechanical song that is sung as soon as the death penalty is mentioned. It has become "the Internationale" for the abolitionists.

But we hear off-key tones, and intuitively we realize that the headline doesn’t hold up. And if we scratch the surface we will quickly find how empty it is. But unfortunately the case is that even if the falseness is unusually easy to reveal it will always be shouted by the abolitionists since people are easy to mislead because of its subtle character.

Let us first see how ridiculous it becomes if we try to use the irrational ‘logic’ of the headline for a thief who has fines imposed on him. Do we then hear someone thoughtlessly shout: It is wrong by the State to steal in order to show that it is wrong to steal, because the State then commits the same crime!

It is not the same thing if a thief steals and the state governed by law then imposes a heavy fine for the one that committed the misdeed. The one thing is evil and is called "crime", the other is righteous and good and is called "punishment".

In the long run, the slogan of the headline leads to many absurdities. It also has as a consequence that it becomes wrong for the State to place the kidnapper in prison since the State then becomes ‘guilty’ of a similar ‘crime’ as the kidnapper. Yes, any kind of punishment imposed by the state governed by law must then be regarded as a ‘crime.’

Maybe someone still wants to sing this deceitful song, therefore we will now look closer on the vast difference between the execution carried out by the state governed by law and the diabolical act of the violent criminal. The purpose of the headline is this: to try to make us believe that there is no difference between the act of the murderer and the execution carried out by the state governed by law. But here are some differences:

When the state governed by law executes a violent criminal and a murderer it means the highest form of justice.

- The act of the murderer is on the other hand the highest form of injustice.

The state governed by law executes a guilty person who deserves death.

- The murderer killed an innocent person who did not deserve death.

When the state governed by law executes a violent criminal or a murderer it is something good since the respect of human life – the life of the victim – is placed in the forefront.

- The deed of the murderer is purely evil since the crime means a complete disrespect of the afflicted person.

The State’s execution means that the human value of the victim is re-established.

- The deed of the violent criminal means a brutal crushing of the inviolable value of the victim.

The State’s execution means compassion first of all for the victim and its relatives.

- The deed of the violent criminal only means hate for the victim and its relatives.

The authority’s execution means that the dignity of man and the victim is sustained.

- The deed of the violent criminal on the other hand means a complete extinction of the dignity of man and the victim.

By this we can see that the crimes of the violent criminal and the murderer in comparison to the execution carried out by the state governed by law are each other’s opposites like fire and water. The one thing is, and remains, evil and only evil; the other thing is, and remains, just and righteous, for the good of society. The one thing reveals the darkness by its deeds; the other thing reveals the light. One is murder; the other is execution.

A thesis could be: The execution carried out by the state governed by law, after a democratically legal procedure has been carried out, is something fair and just, and is totally separate from the irrational, inhuman and cruel deed that the violent criminal and murderer committed.

Or in other words: When a cold-blooded murderer attacks his wife and children with his axe, it is not the same as when the state governed by law later executes this murderer.

A child realizes the great difference between the two. But that there are some who do not see this difference and who are unable to see the difference between darkness and light is a disturbing and evil sign. It testifies of a lack of moral judgement.

One who uses the slogan of the headline is also guilty of aiming a deathblow against the legal system as such. If a state governed by law lacks the right to impose punishing sanctions against criminals in order not to ‘copy’ the criminal act, then every State would, as a consequence, have to dissolve. The headline is, in other words, anarchistic by it’s nature and breathes an undermining hate towards every punishing authority.

Instead we assert that it is right by the state governed by law to execute (kill) certain people, partly because it is the most obvious and most powerful way to announce that it is morally wrong to commit heinous acts of violence and murder.(16)

IF THE DEATH PENALTY IS FAIR FOR MURDER WE DO ALSO E.G. HAVE TO ASSAULT THE ASSAILANT

Our natural sense of justice does not demand that an assailant is beaten to a pulp or that a rapist is raped etc. The state governed by law can easily claim other just sanctions that are in proportions to the crime, without us getting upset or feeling the need to question this.

Justice, the victim and the public accept, without objection that an assailant spends let say 10 years in prison without parole, and fines.(17) For such a serious crime it is after all possible to impose a penalty that is not identical but still equal to the crime and is therefore experienced as justice by a majority of the people.

It is also an illusion to think that assaulting the assailant would be just. The circumstances surrounding the deed can never be completely re-created and the perpetrator can never experience the same thing as his victim.

Neither can an execution re-create the incident of the murder. But the most important aspect has become 100% identical – both loose their lives. 

Besides, murder is totally different from any other kind of crime. Murder is on a different level. It can only be repaid with the life of the murderer if we, without blushing, are to take the word justice in our mouth.(18) 

As the philosopher Immanuel Kant wrote: "But whoever has committed murder, must die. There is, in this case, no juridical substitute or surrogate that can be given or taken for the satisfaction of justice. There is no likeness or proportion between life, however painful, and death; and therefore there is no equality between the crime of murder and the retaliation of it but that is judicially accomplished by the execution of the criminal."

The philosopher Friedrich Hegel said the similar: "Although requital cannot simply be made specifically equal to the crime, the case is otherwise with murder, which is of necessity liable to the death penalty; the reason is that since life is the full compass of a man's existence, the punishment here cannot simply consist in a 'value', for none is great enough, but can consist only in taking away a second life." (19)

THE CAPITAL PUNISHMENT IS MURDER IN THE NAME OF THE LAW

The emotionally charged statement of the headline is an attempt to create feelings of discomfort concerning the death penalty. But the headline lures away from the reality that obviously is somewhat of the opposite. The watchword could more truthfully sound: "the capital punishment is justice, in the name of the law." And, thinking of the victims, we can say: "the capital punishment is value of life and respect, in the name of the law."

It is always the situation and the circumstance that determines when the word "murder" may be used. It is worth noticing that when a state governed by law takes the life of death sentenced prisoner, media does not use the word "murder" but "execution", which is an appropriate and fitting word.(20)

It is important to use the right word in the right context.

The state gives soldiers legal rights to kill in war without calling it murder.

If the police in an extreme emergency situation kills it is not called murder.

If a citizen in an extreme situation of self-defence kills it is not called murder.(21)

In the same way one can not call it murder when the capital punishment is justly carried out according to democratically formed laws. Now it is not possible to completely compare the execution carried out by the State to the soldier’s, the police’s and citizens’ right to defence and protection. There are differences. What is shown here is the principal correctness, in that killing is not wrong in every situation, and that all killings are not murder. The circumstances are the determining factors.

The capital punishment can be seen as the natural and obvious reaction of the body of society against a ruthless assailant who has killed one of the members of the body. Only one who lacks a firm link with reality and a sense of justice calls this "murder."

A knife may be used in murder. A knife may also be used in surgery. One brings death but the other brings life.

In order to create an irrational feeling around the death penalty, abolitionists may sometimes say: "The state must not kill its citizens!" or if they wish to dupe even more: "The state must not murder its citizens!" We who support the capital punishment completely agree with this and feel that it would be terrible if this happened. On the other hand we say:" The state can execute heinous criminals and murderers." All of the quotes are about execution, but the usage of words made by the abolitionists is unacceptable, because they bring our thoughts on the wrong track. If we suppose that someone would react against the system of fines and say: "The state must not steal from its citizens!" we hear that it sounds comical and even foolish. It is just the same when someone reacts against the prison system and says: "The state must not kidnap its citizens!"

Besides, even the abolitionists should understand that the state governed by law has the right to do things that we as citizens are not allowed to do. The state governed by law has the right to execute (if the law allows it); the citizens do not because then it becomes murder. The state governed by law has the right to give fines; we do not because then it becomes stealing. The state governed by law has the right to put someone in prison; we do not because then it becomes kidnapping. The state governed by law has the right to give verdicts; we do not because then it becomes defamation. Not one citizen is allowed to do things that the state governed by law is allowed to do, because then it becomes a criminal act.

That is why "the death penalty is murder" argument is so immature and inconsiderate, and in reality is an attack against every civilized state. But it is an argument that sounds smart, so we can unfortunately expect it to always be used by the abolitionists.

Part two is continued after the footnotes ...

Footnotes:

Footnote 1. Concerning such investigations see Chapter 4, "Are many innocent people sentenced to death?" Back.

Footnote 2. Stephen J. Markman and Paul G. Cassell (lawyers, American Department of Justice) "An assessment of the costs and benefits leads to the conclusion that the minute risk of executing an innocent person is substantially outweighed by the protection that capital punishment affords to society through incapacitation, deterrence, and just punishment." See also their continuing argumentation. Stanford Law Review, Nov. 1988, page 152. Back.

Footnote 3. An abolitionist should test himself on the following question: If three persons were deterred from committing murder by every execution that takes place as compare to people who were not deterred by facing a lifetime prison sentence, would that be reason enough to introduce the death penalty? If not, the consequence would be that the lives of innocent people are less valuable than the lives of the murderers. But what makes the life of a murderer so much more valuable that his life – and not the lives of innocent people – has to be protected by all means? Back.

Footnote 4. See also the argument in Chapter 2, Argument 9: "The death penalty deters some people from committing heinous crimes and thereby human lives are saved." Back.

Footnote 5. One of the worst serial killers in modern time is the Russian Tjikatilo who was convicted after having tortured and murdered 52 people, and then cut them into pieces. He called himself "a monster … a ruthless wolf". He was executed in 1990. We can only guess how much suffering that had been avoided if that man had been arrested at the beginning of his bloody trail and executed then. Back.

Footnote 6. Since the abolitionists hardly refer to this "right" (of life) to a god, they owe it to answer what "right" it is that has, suddenly in the history of humanity from the later part of the 20th century, begun to include violent criminals and murderers? Where does this expanded "right" come from? How do they motivate it? Back.

Footnote 7. The Abolition of the Death Penalty in International Law, 1997, page 44. Back.

Footnote 8. William Schabas, The Abolition of the Death Penalty in International Law, 1977, page 29. Back.

Footnote 9. In 1971 there was a resolution, 2857 XXVI, taken by some nations within ECOSOC (the Economic and Social Council of the UN) where they wanted to limit the use of the death penalty, among other things referring to "the right of life" (according to the third article). This is where a new and expanded way of looking at the concept of "right of life" begins, and it is different from what generally were believed by they who first accept the UN's Universal Declaration of Human Rights. Back.

Footnote 10. The International Court of Justice at The Hague, which deals with war transgressions in the former Yugoslavia, can not be considered to have as its mission to see full justice be served since they are not allowed to impose the death penalty. Back.

Footnote 11. See also the argument that surrounds the issue of "the right to life" in Chapter 2, "The death penalty is the most severe marking of the State that it defends the common citizen’s right to life." Back.

Footnote 12. See also the longer argument of ´the inviolable value of man´ in Chapter 2, Argument 2; "Through the death penalty the respect of the inviolable value of man is maintained." Back.

Footnote 13. See Chapter 4, "When the death penalty is unacceptable." Back.

Footnote 14. The eighth paragraph of the American Constitution is as follows: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This means that the USA’s Supreme Court does not consider the death penalty to be a cruel punishment. Back.

Footnote 15. Many would probably think it reasonable and right to even use flogging before the execution of someone who has committed cruel and studied torture-murders. Back.

Footnote 16. Even serious death penalty abolitionists may sometimes admit that the argument of the headline is untenable, and for this they deserve credit. See for instance quote by Jeffrey H. Reiman (professor in philosophy) in the book Punishment and the Death Penalty, Robert M. Baird, 1995, page 176. Back.

Footnote 17. The thought that an imprisonment for some criminals should begin with corporal punishment (flogging) is worth to discuss. It is reasonable to think that someone who has afflicted great physical injury and pain unto others should experience the same thing. The UN's Universal Declaration of Human Rights seems maybe to forbids corporal punishment. Even if so, that is not an insurmountable obstacle for a nation that wishes to introduce such a method of punishment. Back.

Footnote 18. Also repeated cruel assault ends up on another level. One who severely assaults can never for sure know if the victim will survive. It is often a very thin line that separates severe assault from murder. Severe assault should, despite this, be tolerated by the society and the State on one condition, that there is a long prison sentence as a consequence. But if the perpetrator repeats his crime, after a punishment and custody, then the cup is full to the brim in the eyes of a civilized state. A person who twice is close to taking another person’s life by violence does not deserve a place in the social community. It would not be just and it would disrespectful to the human dignity. Back.

Footnote 19. See the article by Immanuel Kant where he is defending the Capital Punishment, Chapter 5, footnote 1. The quote from Hegel is from his Philosophy of Right § 101. Back.

Footnote 20. The word "execution" can of course sometimes be misused, for instance when diverse criminal gangs murder in their eyes hateful persons and call it "execution". Back.

Footnote 21. Euthanasia will probably be allowed in more countries in the future. Without taking a stand in the question, it could be considered as a fourth "legitimate" way to take a life without it being considered murder. As in the case where someone is in the final stages of life, and the person with the approval of the doctor, is given help to end his life in a dignified manner. (Many can also see abortions as a conscious killing of human lives, without calling it "murder.") Back.

Part Two

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© David Anderson 1998, 2002

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