The dearth penalty
Indonesia’s execution by firing squad of eight people convicted of drug offences, among them the Australians Andrew Chan and Myuran Sukumaran, has revived domestic concerns about capital punishment to higher levels than any time since the 1960s.
There is an Aboriginal tradition of spearing in retaliation for an injury, but execution as a ritual begins with European intervention, when seven Dutch mutineers and murderers, survivors of the sinking of the Batavia, were hanged by the Dutch East India Company (VOC) on Seal Island, off the coast of Western Australia, in October 1629.
The first execution after British settlement took place in Sydney on February 27, 1788, when Thomas Barrett, aged 17, was hanged for theft, barely a month after the First Fleet arrived. The last of 2050 men, women and children to be executed in Australia over a period of 179 years, was Ronald Ryan, convicted of murder, hanged at Pentridge on February 3, 1967. He was the 186th person executed in Victoria.
Queensland had its last hanging in 1913, New South Wales in 1939, Tasmania in 1946, the Northern Territory (under Commonwealth law) in 1952, South Australia in 1964, Western Australia in 1964 and Victoria in 1967.
Between 1901 and 1967 Western Australia executed more than any other state.
Australia has been monumentally hypocritical on the death penalty abroad. We will not extradite persons held here to death penalty jurisdictions, even our close ally the United States. But we are also highly selective. We empathise with our fellow citizens, and will campaign to save them, but fail to argue strongly enough for the general principle of opposition to the death penalty. Chan and Sukumaran had good reasons to hope for clemency. They were exporting drugs from Indonesia, not taking them in. There was no contesting the evidence that they had been dramatically rehabilitated during their decade in prison.
In the case of the execution of Amrozi and two other of the Bali bombers, in 2008 – after an appalling crime, involving the killing of scores of Australians – Kevin Rudd and John Howard both gave explicit support and Stephen Smith a more nuanced version. Simon Crean, as Labor leader, had been equivocal. Mark Latham supported John Howard on the execution of Saddam Hussein.
Saddam’s execution by hanging was very important to older neoconservatives in the US, eager to draw parallels between Hitler and Saddam, the Nuremberg Trials and the Baghdad Trials. Brutal as Saddam’s crimes were over a long period, it was a supreme irony that he should be sentenced for a massacre that occurred in 1982 in Dujail, at a time when he was being supported by the US in his war against Iran and was a valued customer for weapons of mass destruction.
Capital punishment is a clear example of where elites – political, legal, judicial, medical, philosophical, creative – are well ahead of public feeling. Polling in Australia indicated that the community was evenly divided over the fate of Chan and Sukumaran. The Ryan case in 1967 was an important factor in recruiting young people to political activism, perhaps second only to the Vietnam War. Nevertheless, Sir Henry Bolte cruised to victories in the Victorian elections in 1967 and 1970. But Bolte’s successor, Dick Hamer, was a convinced abolitionist and worked with Jack Galbally and me to repeal the death penalty in 1975.
Andrew Colvin, the Australian Federal Police commissioner, in his organisation-serving press conference, complained that attacks about the AFP’s involvement in the execution of Chan and Sukumaran have been in “very bad taste”. One’s heart goes out to him. Colvin’s justification for the AFP’s role in ensuring that Chan and Sukumaran were arrested in a death penalty jurisdiction is that between 2007 and 2011 some 4100 Australians died from heroin overdose.
His logic is dubious.
In Australia, drugs of addiction fall into two categories: legal and illegal. Which kills more of our citizens? Legal drugs. While there are restrictions on how tobacco products are sold, advertised and packaged, cigarettes remain a legal product. Oddly, the most recent ABS data on smoking-related deaths is for 2004-05, when a total of 14,900 died. While the proportion of Australians who smoke is declining, population is growing steadily, so the total number of nicotine-related deaths is unlikely to have fallen below 15,000. In 2010 alcohol-related deaths in Australia totalled 5500. While nobody in the AFP recommends death or even imprisonment for tobacconists or alcohol retailers, or the corporations behind them, we should reflect on the monstrous hypocrisy in the “war on drugs”.
One of the sickening aspects of execution for drug offences is that only mules are caught. Those who control the drug syndicates just read about the executions on Facebook.
With murder, there can be no crime, no conviction, without an identifiable victim or victims.
There are disturbing similarities between having a “war on drugs” and a “war on terror”. Each punishes the potentiality for death and destruction, and challenges, even undermines, the basis of how law and justice ought to be administered. Evaluation of evidence, deep analysis, rationality and causality may be discarded or suffer collateral damage.
The death penalty has been abolished in Europe, South America, Russia, many African states, and in every nation in the English-speaking world, with the exception of the US.
Support for the death penalty is one of the few social policies where the US is joined by China, Iran, Iraq, Saudi Arabia, Pakistan and North Korea. China does not publish figures of its executions, which are regarded a “state secret”, but they are thought to be in the thousands – more than the rest of the world combined.
The international campaign for abolition, endorsed by the United Nations, is crippled by America’s failure to join in.
Religious fundamentalism is a powerful force in the US, and fundamentalists warm to capital punishment. They rely on a highly selective reading of the Bible. On my reading of the New Testament, it is hard to see Jesus as a hardline retentionist. Fundamentalists rely on the Mosaic code, which provided death for many crimes, including murder, witchcraft and cursing parents – although the last two are no longer insisted on. It is worth recalling that as an expression of the prevailing thinking of the Hebrews, when they were nomads without penitentiaries, the Mosaic law expressly endorsed slavery. Those who insist that capital punishment is “God’s law” still read that law selectively.
In the US in 2014 there were 35 executions, but in only seven states, which may indicate an encouraging trend. In 2013, the figure was 59. Twenty of the 2014 executions were in two states – Texas and Missouri. All but one was carried out in a state that was in the old Confederacy or a border state, with a history of slavery, racism and lynch law. A common factor was the very long period each executed person had on death row. The shortest period was 10 years, in Texas; the longest was 39 years, in Florida.
In 2015 Texas has regained its lead, with more executions than all other states combined.
Lethal injection is the method of choice for most retentionist states. It is more palatable for the squeamish and may have weakened some objections to execution because it resembles a medical procedure that always results in the patient’s death, without screaming or struggling. It is less grisly or shocking than other methods with their images of blood, mutilation, sparks, burning flesh, the coup de grace and the occasional decapitation.
The US Supreme Court is preoccupied not with the moral issue of whether to execute or not, but with techniques: how best to execute, especially when pharmaceutical companies have qualms about providing lethal drugs, and it would be unthinkable to challenge intellectual property rights.
President Obama used to campaign against the death penalty, and it has been abolished in his home state of Illinois. If the surviving Boston Marathon bomber, Dzhokhar Tsarnaev, is sentenced to death, will the president intervene? I doubt it.
The way ahead
There is much to reflect upon.
Ultimately, all executions are political. The Canadian philosopher Ronald Wright argues: “States arrogate to themselves the power of coercive violence: the right to crack the whip, execute prisoners, send young men to the battlefield. From this stems that venomous bloom which J. M. Coetzee has called … ‘the black flower of civilization’ – torture, wrongful imprisonment, violence for display – the forging of might into right.” States employ “various styles of human sacrifice” as forms of “the ultimate political theatre”.
In the 16th century, Michel de Montaigne neatly set out his reasons for opposing the death penalty: “Judgements normally inflame themselves towards revenge out of horror for the crime. That is precisely what tempers mine: my horror for the first murder makes me frightened of committing a second, and my loathing for the original act of cruelty makes me loath to imitate it.”
The Milanese economist Cesare Beccaria in On Crimes and Punishments (Dei delitti e delle pene), published in 1764, argued for the abolition of the death penalty with a classic simplicity – that there is no demonstrable correlation between the severity of punishment and the crime rate; all punishment deters but there is no statistical evidence that execution, or torture, deters uniquely.
But campaigners for abolition have to be prepared to argue for the tough cases, repulsive as they are: Eichmann, Saddam Hussein, Eric Cooke. The moral high ground does not allow campaigners to be selective.
The former archbishop of Paris, Cardinal François Marty, put it this way: “If a man does no longer act like a man, the community must refrain from following him. Each time a human being is treated as a non human being, the entire human being is threatened. Any individual who commits an act of violence against another individual is degrading mankind. If we want to safeguard the concept of human beings now being threatened, we must resist the temptation of retributive anger. Can man, that imperfect being, be expected to render perfect justice? In that respect, could capital punishment give a notion of perfection to the justice of human beings?”
State killing is not only brutal and destructive but pointless too. In the world of an eye for an eye and tooth for a tooth, we can all be blind and toothless, but it will not preserve our lives or maintain our values. The evidence for abolition is compelling, as we face the challenges of violence, drug dependence and jihadism. We cannot rely on an instinct for vengeance. As we fight against darkness, we need rationality, evidence and values at the highest level.
If last week’s senseless killings taught us anything, it is this: Australia must pursue the cause of abolishing the death penalty internationally. This is not merely to protect and preserve its own nationals, but must be part of a campaign with universal application, without picking and choosing, and with the moral force that earlier generations worked with to end slavery, liberate women, eliminate torture and punishments for heresy or witchcraft.
This article was first published in the print edition of The Saturday Paper on May 9, 2015 as "The dearth penalty". Subscribe here.