Capital Idea

So it's been awhile since I blogged, and it seems a little strange to jump back in with this particular discussion, but some news from this morning seems worthy of discussion, so why not. The news in question: the International Herald Tribune reports that the US Supreme Court has upheld as constitutional Kentucky’s preferred method of capital punishment, a particular form of lethal injection.

The Supreme Court's ruling is, prima facie, a blow to the anti-death-penalty campaign in the U.S. Having seemingly jettisoned as unpopular the argument that capital punishment is in itself unconstitutional, anti-capital punishment forces had turned their hopes to outlawing the death penalty in its variously practised forms as inhumane. It is a telling fact about the American justice system that in this particular case, Baze v Rees, the prisoners were arguing not that the death penalty or even lethal injection per se breached the Eighth Amendment, but that Kentucky's particular form of lethal injection, in which three separate drugs are administered, was unconstitutional. Lethal injection, once touted as a humane method of killing people, has come under all sorts of scrutiny in recent years; there is a body of evidence that suggests that it can be both a slow and a painful way to die. The procedure used in Kentucky also happens to be the method of choice for most of the 38 states in which capital punishment is still an option. As such, the last few months have seen a moratorium on capital punishment in the US while the honourable justices considered, once again, the issue of the death penalty vis-à-vis the Bill of Rights.

Well, that's over. By a 7-2 majority, the court reaffirmed Kentucky's use of lethal injection as constitutional, because there's not enough proof that it causes undue suffering. The standard by which the Court adjudicates the cruelty of a given punishment is, given the subject, remarkably clinical. "An execution method violates the Eighth Amendment only if it is deliberately designed to inflict pain," the court ruled sternly. "Judged under that standard, this is an easy case". Right. Don't lose any sleep over it, then. It's only somebody's life.

Not just somebody, either. As Kentucky, so go the other States: death is back. It looks like a big step back for the anti-death penalty movement as a whole; which has claimed a number of judicial victories in recent years. Certainly, it is a great personal tragedy for the condemned prisoners in question, Ralph Baze and Thomas Clyde Bowling Jr.

And yet… and yet. In Justice Stevens' opinion – an assenting opinion, mind you – we find the resurgence of a seemingly outdated idea. After reluctantly agreeing to the majority view that lethal injection is not, as far as killing methods go, particularly cruel, Stevens devoted the second part of his "concurrence" to a deeper question. Could it be, he remarked, that the death penalty itself is unconstitutional? Does capital punishment in any form breach the eighth amendment's ban on "cruel and unusual punishment"?

In the context of recent US Supreme Court history, this is more radical than it might appear. To someone who has never known an execution in her own society, the idea of debating the humanity of this or that method of killing someone is more than a little dissonant. But that's the way the debate in the US has been framed. Even Justice Blackmun's famous refusal to "tinker with the machinery of death" was based on pragmatic, rather than philosophical, objections: fairness of trial, consistency of application, and the like. Did Blackmun believe that killing people was always cruel and unusual? Possibly, but it's impossible to tell from his 1994 dissent. "The problem", he concludes, "is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution".

To those of us who were unaware that the Constitution required any sentences of death, the opinion of Justice Stevens comes as a great rhetorical, if not legal, progression. Stevens was one of the justices who upheld the death penalty in 1976, and he invoked the three "societal purposes" that were used in that case to justify the death penalty: incapacitation, deterrence, and retribution. Since then, Stevens notes, there has been considerable revision of public opinion on all three counts. The first two he deals with easily: the evidence continues to mount that the remote possibility of being put to death deters nobody; and life without parole, enforced properly, is nearly as incapacitating as killing somebody and a lot less traumatic besides.


That leaves us with retribution, and, as Stevens notes, "it is the retribution rationale that animates much of the remaining enthusiasm for the death penalty". Stevens' argument here is more nuanced: vengeance, he says, is an innate human drive, and the death penalty is motivated primarily by the desire to inflict on the criminal the kind of suffering that he (and it's usually a he) inflicted on his victim. But by progressively reducing the level of suffering which accompanies an execution, the judicial system has, in effect, done away with the state's ability to inflict suffering on the offender equivalent to the suffering experienced by the victim. (Almost no non-state murderers anaesthetise their victims before killing them.) Thus, says Stevens, the retribution justification has been diminished just as surely as the other two.


This seems like convoluted reasoning, and it earned an acerbic retort from the majority: "we would not have supposed that the case for capital punishment was stronger when it was imposed predominantly by hanging or electrocution." But what Stevens is getting at - which he says, much more clearly, a little later in his opinion - is that the human thirst for revenge is unquenchable, at least by any action that would leaves the state's humanity and moral authority (such as it is) intact. And if it's unquenchable, under current laws, it's pointless to try to quench it. So the retribution rationale is undermined, not because it's immoral, but because it's unachievable.

Having thus dismissed the rationale he endorsed in 1976, Stevens was unequivocal on the utility of the death penalty, describing it as "the pointless and needless extinction of life with only negligible social or public returns." It took him awhile to get there, but Justice Stevens is entirely correct. Two hundred years after the eighth amendment was ratified, state-sponsored murder remains hardly less cruel and significantly less usual. It has no place in a civilised society, regardless of the crime, regardless of trial procedures, regardless of the method of execution.

Miranda's Scoop: Labor for Terrorists, Against Babies

Call it a personal litmus test: every now and then, against my better judgment, I read one of Miranda Devine's opinion pieces. If this fails to enrage me, I worry that I am sliding down into the abyss of right-wing nuttery.

Today's piece caused no such concerns. Miranda chose to write about the recent furore over the death penalty, namely how McClelland exposed the secret plot to free all the terrorists that would come to be under a Labor regime. (Yes, she said "regime".) I don't really know what I expected; the headline, "Whose human rights come first?", is itself a pretty good indication that Miranda doesn't get it. Human rights are universal, not hierarchical, Miranda. That's actually the whole point.

But the form of her argument was interesting, sort of. Turns out there's a slippery slope all the way from condemning capital punishment to... condemning punitive amputation:

There are plenty of terrible things we don't like that happen elsewhere in the world. Why stop at capital punishment? What about the amputation of the hands and feet of thieves in Saudi Arabia?

Indeed. Why stop at capital punishment? I am against capital punishment, and also against the amputation of the hands and feet of thieves. In fact, I would be greatly disappointed if Labor were against capital punishment but for cutting people's hands off. True, I don't remember reading anything about the endorsement of punitive amputation in the ALP charter, but then perhaps I wasn't looking hard enough.

This is the way it goes for Miranda: she takes the utterly, impeccably consistent Labor policy - not to be confused with the utterly, impeccably expedient words of Kevin Rudd - and somehow twists it to imply that Labor are the ones espousing some kind of inconsistent approach to human rights. What about the Saudis cutting off people's hands? Well actually, Miranda, if I were putting my money on one party to oppose a given form of cruel and unusual punishment, it would be the one with the unequivocal anti-capital punishment stance.

Let's recap: Labor's policy is that it opposes capital punishment, which means that it opposes capital punishment here and overseas. The Libs' policy is that they oppose capital punishment, which means they oppose capital punishment in Australia and for Australians, but not necessarily for foreigner types. Who's inconsistent now?

As for the bizarre swerve into the murky waters of abortion... well, actually, I was relieved to read it. Generally speaking, and to their eternal credit, Australians are not in the habit of politicising abortion, nor of drawing equivalence between a fertilised egg and a sentient human being. Bringing it up was probably the worst thing she could've done for the credibility of her argument - it just reads like she's working her way through a list of conservative talking points. American conservative talking points, at that. She should've just joined the Liberal MPs in their somewhat comic defence of McClelland from the mean, nasty Kevin Rudd. Didn't she get the memo?

****

Incidentally, Annabel Crabb's typically brilliant piece on the McClelland/Rudd/Howard/Downer dustup just about made the whole exercise worthwhile.

McClelland Shows Integrity, Is Quickly Reprimanded

When I checked the news this morning, I was delighted to hear that the Labor Party not only opposes capital punishment - that much, we knew - but was willing to say so this close to the election. Public opinion on the death penalty is decidedly mixed at the best of times. The spoof website Values Australia summed it up as follows:

1. Australians do not support the death penalty.

1.1 At least, not for Australians, especially in other countries.

1.2 However, Australians do support the death penalty for non-Australians in other countries.

1.2.1 After all, they're just ignorant, uncivilised nig-nogs...

1.3 ...although Australians do not support the death penalty for non-Australians within Australia....

1.3.1 ...because that would make us just like the ignorant, uncivilised nig-nogs.

I needn't have been too excited. It was only a matter of hours before the iron fist of Kevin Rudd made itself known: Yes, he opposes the death penalty, but it's insensitive to say so right now. I say he's right. Questions of morality involving life and death should always be considered secondary to people's possible hurt feelings.

Never mind that McClelland made the statement on Monday, in a speech delivered to a human rights group, or that the anniversary of the Bali bombings is not til Friday. In Kevin's sunshiny new world, reiterations of existing ALP policy should never be made within five days of the anniversary of any terror attack. In fact, Rudd went one step further: he now retroactively supports the death penalty of Hussein and Amrozi, and even indulged in a little hypothetical condemnation of Osama bin Laden to the gallows.

In this matter, as in life, Kevin is merely falling in line with his supposed adversary: John Howard has said he doesn't support the reintroduction of the death penalty in Australia. But the rationale for Howard's stance is utterly utilitarian: he doesn't want to see any irreversible miscarriages of justice, at least not on his watch. This allows him to be oddly equivocal about the application of the death penalty; hence his confounding statement, in 2003, that despite not supporting capital punishment in Australia, the matter is really for the states to decide. Hence, also, his ambivalent response to Van Nguyen's hanging in Singapore. And hence his refusal to oppose the death penalty when applied to foreigners in foreign jurisdictions - Amrozi in Indonesia, Saddam Hussein in Iraq. "Different people have different views", says Howard, sometime States' rights advocate and cultural relativist.

Kevin Rudd has no such excuse. His objection to capital punishment is a priori and based on his Christian faith. He's always been consistent in the past, having previously opposed the execution of Saddam Hussein. As he outlined in the Monthly magazine in 2006:

“The Christian belief in the sanctity of life should cause us to conclude that capital punishment is unacceptable in all circumstances and in all jurisdictions.”

In all circumstances except the leadup to an election, that is. Or, as Mr Rudd would have it, in all circumstances except within five days of the Bali bombings anniversary.