By Ruwan Rajapakse Courtesy The Island

July 2, 2019, 9:00 pm

“I do not believe that any of the hundreds of executions I carried out in any way acted as a deterrent against murder.” – Albert Pierrepoint, Hangman, UK (1931-1956)

After a few false starts, the incumbent President of Sri Lanka seems to have acted upon his well-known belief in the utility of Capital Punishment [1]. This institutionalised crime is now due to take place in our land of ahimsa, after a hiatus of 43 years. Whether The President sprang into action because of the purported rise in drug trafficking, as he publicly espouses, or whether it was an attempt at gaining ignoble popularity prior the upcoming elections (Capital Punishment is quite a popular “solution” to serious crime in some ignorant quarters of Sri Lanka [2]), is not our concern here. Our purpose here is to discuss the value of Capital Punishment as a social instrument for mitigating the spread of serious crime, and examine its moral underpinning.

There are three popular arguments in favor of Capital Punishment:

1. It allows society to punish a wrongdoer, thereby balancing “the celestial scales of justice”.

2. It serves as a deterrent for persons who may be contemplating violent or serious crimes.

3. It serves as a redress for the victims of violent or serious crimes.

A mere century and a half ago, judicial experts and the intellectual community at large were in favour of leveraging Capital Punishment. Even that great rationalist luminary of the 19th Century, John Stuart Mill, famously argued in parliament in favor of capital punishment, albeit for the most extreme of cases: “…when the attendant circumstances suggest no palliation of the guilt, no hope that the culprit may even yet not be unworthy to live among mankind, nothing to make it probable that the crime was an exception to his general character rather than a consequence of it, then I confess it appears to me that to deprive the criminal of the life of which he has proved himself to be unworthy, solemnly to blot him out from the fellowship of mankind and from the catalogue of the living is most appropriate.” [3]

However, times have changed since the days of JS Mill. We saw two entire new branches of science emerge, which has something definitive to say about the efficacy of Capital Punishment; namely psychology and sociology.

We know today that argument #2 (i.e. Capital Punishment is a deterrent) is empirically false [4] [5] [6] [7] [8], and we know that arguments #1 (“punishment”) & #3 (“redress”) are a mere window dressing of a primitive, Darwinian instinct that was useful in stone-age tribal societies. Contrary to this vengeful instinct, many a moral philosopher, both ancient [9] and modern [10], has rejected capital punishment, and the use of retribution as a solace for victims, as an uncivilized way of conducting human affairs.

Albert Camus, that outstanding French libertarian and writer, highlighted the concern pointedly:

“But what is capital punishment if not the most premeditated of murders, to which no criminal act, no matter how calculated, can be compared? If there were to be a real equivalence, the death penalty would have to be pronounced upon a criminal who had forewarned his victim of the very moment he would put him to a horrible death, and who, from that time on, had kept him confined at his own discretion for a period of months. It is not in private life that one meets such monsters”.

The utopian human being with perfect mannerisms and an unfailing character is an imaginary socio-psychological construct, a conceptual role-model for children. The uneasy truth is that human intent is fickle, governed by a nervous system whose structure and function is fraught with aberrations, which cannot be eliminated through nurture alone. A psychopathic personality, for example, could be the direct consequence of a poor endowment of mirror neurons, as a result of generic mutations that attenuate empathy from birth [11] [12] [13]. Those with such subtle birth “defects”, no matter how peaceable their childhood influences may have been, may be saddled with a fundamental inability to empathize with other living creatures. They may not even be able to empathize with themselves, in a self-reflective manner. Not being able to feel for someone (or even for one’s own self) makes it easy for one to cause injury or distress to others. When children with such genetic predispositions for low empathy experience trauma in early childhood, psychopathy and “Cluster-B” personality disorders emerge.

An Iowa Supreme Court Justice made this observation as far back as 1840:

“Crime indicates a diseased mind in the same manner that sickness and pain do a diseased body. And as in the one case we provide hospitals for the treatment of severe and contagious diseases, so in the other, prisons and asylums should be provided for similar reasons.”

If society ends up killing every such person who yields to their natural instinct (to strike, rape or unscrupulously exploit), rather than finding ways to curb or neutralize their behavior, we then get into a fascinatingly diabolical downward spiral. The more we kill those who lack empathy, in order to better the lives of those who have it, the more we lower the empathy of the empathetic. We know that a taste for judicial killing brutalizes society [14], as was the case in Victorian England, where public hanging made life cheap, and people more and more violent. We find such a brutal society today in Saudi Arabia, where domestic workers are abused [15], and where murder and sex crimes are rampant. The executioner hacks away to no avail.

That is precisely why more enlightened nations, including Sri Lanka, aspire to practice Restorative or Preventative Justice [16].

We should also not make any mistake on the legitimacy of the actual act; Capital Punishment is a premeditated violent crime committed by the state, according to modern jurisprudence. It is not an act of self-defence (as Camus and others have clearly pointed out). Perpetrators are often executed years after their bad acts were committed, and by that time their attitudes have changed dramatically for the better, or they at least have been neutralized as a damaging force. There are ample such cases widely publicized in the media [17].

There probably are a dozen other reasons [18] for permanently abolishing capital punishment and resorting to a lengthy prison sentence, ranging from the danger of punishing the innocent, to the cost of the entire procedure outweighing the cost of a life sentence. To quote Jeffrey A. Fagan, Professor of Law at Colombia Law School:

“As states across the country adopt reforms to reduce the pandemic of errors in capital punishment, we wonder whether such necessary and admirable efforts to avoid error and the horror of the execution of the innocent won’t—after many hundreds of millions of dollars of trying—burden the country with a death penalty that will be ineffective, unreasonably expensive, and politically corrosive to the broader search for justice.” There is one very special reason why Sri Lanka should not take this extreme measure. Sri Lanka is the Asian poster child for a country operating a genuinely restorative system of justice, supposedly drawing inspiration from the compassionate philosophy of Gautama Buddha [19]. Our restorative system of justice serves as a beacon for sociocultural progress, in comparison with our neighboring countries. It is disappointing to see our President succumb to a belief in Capital Punishment, rather than stand upright and explain to people the hard truth that we cannot win the war against drugs, crimes or deviance, through mere attrition.

Advocates of Capital Punishment (including our President) often hide behind the fact that the USA and China leverage it. Let us quote that preeminent American moral philosopher Sam Harris, who refutes the pride in this assertion:

“Especially in the United States, is a barbaric system of imprisonment—to say nothing of capital punishment—that should make all citizens ashamed.”

Our own experts are unequivocal on the matter. Dr. L.B. L. De Alwis, ex-Chief JMO, had published an excellent analysis of the Lankan situation [20] in The Sri Lanka Journal of Forensic Medicine, Dec-2011, where he strikes at the core of the problem, along with a superb background analysis. Let us quote.

“In my opinion it is not the Non-implementation of the death penalty that has contributed to the rise of grave crime, especially murder, in Sri Lanka, but the release of murderers, rapists, drug barons, extortionists, highway robbers etc. sentenced to death or to long term rigorous imprisonment by the Judiciary, but later released by the executive in the shortest possible time for petty political advantage”.

Yasantha Kodagoda and other Lankan legal luminaries have held similar views [21] over the years.

It’s simply awful when drug barons rule the roost, or when terrible crimes happen. Our hearts go out to the victims and their kin, and our minds scream for justice. The state owes four things to society in instances of serious crime:

• Dispense justice swiftly and accurately, where the perpetrators are correctly identified, tried fairly and sentenced appropriately.

• Provide the next of kin of the victims with psychological counseling and support, to the utmost degree possible.

• Learn lessons from the crime and share them for the broader education of the general public.

• Firmly discourage lawlessness and mob-justice, which would interfere with criminal investigations.

The third point above is important and not to be underestimated in its value. Education, awareness and vigilance are the real weapons against serious crimes. Profiling of violent or deviant persons, cautioning parents and children about how to stay safe in ungated, low-income neighborhoods where dangers lurk, enforcing better policing etc. are all steps to be facilitated by the state. Furthermore, in counterpoint to The President’s current reasoning, a “war on drugs” is arguably a futile one [22]. There is ample expert opinion which shows that drug abuse is best mitigated through education, counseling, better parenting and social awareness. Of course we must proactively dismantle drug smuggling operations and imprison heavy traffickers for life. But laws alone are insufficient. We must “raise consciousnesses” against the use, manufacture and import of hard drugs, like we did against cigarets, and like we do for the accommodation of multiple sexualities. We must have a social awakening that makes the use of hard drugs unfashionable, and shun traffickers, not reward them (some of the largest importers were linked to Lankan politicians in the recent past [23]).

Poor parenting (and associated personality disorders in children) is not to be underestimated as a causal factor for the consumption of hard drugs. Lack of self-confidence in teenagers due to the indifference, over-control or violence of parents, is still fairly commonplace in Sri Lanka, even amongst upper middle income and wealthy homes. Such teenagers and young adults are far more susceptible to easy escape routs, like drugs, gangs or cults. We must also differentiate between hard drugs and marijuana. Experts tell us that the latter is less addictive and much less damaging to the body than alcohol or tobacco [24], and could reasonably be consumed in a safe form by psychologically balanced adults, to enjoy its soothing or psychedelic properties. Understanding this fact would help to focus the war, and not waste police resources and public money.

What the state does not owe society is a reactionary, “quick fix”, which would prejudice or pervert the broader course of justice in our country, and create an unhealthy punitive culture amongst our children. We leave the reader with these two quotes:

“I have never heard a murderer say they thought about the death penalty as a consequence of their actions prior to committing their crimes.” – Gregory Ruff, police lieutenant in Kansas

“I do not believe that any of the hundreds of executions I carried out in any way acted as a deterrent against murder.” – Albert Pierrepoint, Hangman, UK (1931-1956)

References:

1. President Sirisena on Capital Punishment (listen to the clapping as he expresses his personal approval): http://www.adaderana.lk/news/32381/capital-punishment-if-parliament-approves-president

2. Political motivation reported behind Sirisena’s move on reintroducing Capital Punishment: https://www.bbc.com/news/world-asia-48812576

3. Mill on Capital Punishment: http://ethics.sandiego.edu/books/Mill/Punishment/

4. Capital Punishment: Deterrent Effects & Capital Costs: https://www.law.columbia.edu/law_school/communications/reports/summer06/capitalpunish 5. 88% of criminologists do not believe the death penalty is an effective deterrent: http://www.deathpenaltyinfo.org/study-88-criminologists-do-not-believe-death-penalty-effective-deterrent

6. The Death Penalty and Deterrence: http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts/the-death-penalty-and-deterrence

7. The death penalty is ineffective and indefensible: http://www.usnews.com/opinion/articles/2014/09/29/the-death-penalty-is-ineffective-and-indefensible

8. Failure to Deter Crime: http://nccadp.org/issues/deterrence/

9. Buddhism on Capital Punishment: http://www.bbc.co.uk/religion/religions/buddhism/buddhistethics/capitalpunishment.shtml

10. Sam Harris on capital punishment: “The result, especially in the United States, is a barbaric system of imprisonment—to say nothing of capital punishment—that should make all citizens ashamed”. http://www.samharris.org/blog/item/reflections-on-free-will

11. Psychopathic criminals have empathy switch: http://www.bbc.com/news/science-environment-23431793

12. Do Mirror Neurons Give Us Empathy? http://greatergood.berkeley.edu/article/item/do_mirror_neurons_give_empathy

13. How Empathy Can Be a Luxury: http://bengraves.hubpages.com/hub/Psychopaths-and-Mirror-Neurons-How-Empathy-can-be-Absent

14. Brutalizing society: http://www.bbc.co.uk/ethics/capitalpunishment/against_1.shtml

15. GCC declares war on domestic violence: http://www.arabnews.com/featured/news/657236

16. Restorative Justice: https://en.wikipedia.org/wiki/Restorative_justice

17. The case of Karla Faye Tucker: https://en.wikipedia.org/wiki/Karla_Faye_Tucker

18. 13 Reasons to Oppose the Death Penalty: http://www.oadp.org/facts/13-reasons

19. Buddhism and capital punishment: http://www.bbc.co.uk/religion/religions/buddhism/buddhistethics/capitalpunishment.shtml

20. DEATH PENALTY versus LIFE IMPRISONMENT: http://www.pdn.ac.lk/med/departments/forensic/Vol2No2.pdf

21. Death penalty not the answer, expediting dispensation of justice is: http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=69674

22. The “War on Drugs” is lost: https://samharris.org/a-war-well-lost/

23. Political links to Drug Traffickers: http://www.ft.lk/article/255408/At-sea-over-drugs- 24. Alcohol vs Cannabis: https://www.livescience.com/61786-marijuana-versus-alcohol-brain.html