A death penalty referendum, in the context of social violence.

Leo Tolstoy, pacifist

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Besides continuing the subject of referendums, this discussion is meant to complement the topic of The Four Loves. Because, violence upsets people from forming steady relationships. The bitterness, from lacking the happiness of a loving partnership, may frustrate the most well-meaning in being useful citizens, to say nothing of the self-pitying and soured.

Britain has a classic case of Members of Parliament being at odds with popular opinion. Polls have shown large majorities want the return of capital punishment. Politicians, against hanging, have used this issue to urge the value of representative democracy for mature parliamentary debate, over the referendum's democracy by gut instinct.

When the Tories returned to power, in 1979, the populist leader Margaret Thatcher successively, but not successfully, put the Commons to the test of a vote on the death penalty. There was talk of right wing caucuses selecting hanging candidates, as well as the fact that the rightward moving Tory party grew more disproportionately represented.

One of their new MPs declared that if it was against his colleagues' consciences to be responsible for sending convicted killers to their deaths, he was quite prepared to be the hangman.
Edward Heath replied: That wasnt the test, the test was whether he was prepared to be hanged for a murder he didnt commit.

Capital punishers had to give up on parliament to represent the people, fastening their hopes on a referendum to redeem democracy.

To be representative includes taking minorities into account.

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A referendum on capital punishment may be refuted for the same reason that referendums cannot legitimately be used to effect censorship. Namely, minority rights, which a genuine democracy must take into proportionate account.
Suppose a referendum on capital punishment is passed by over half the voters. At least twenty per cent and perhaps nearly half of the public may be against the law. There may even be local majorities of objectors.

Yet conscientious objectors will be called up for jury service. If they follow their consciences, the law is subverted. In such cases, not innocence or guilt is established but public tolerance of so terrible a sentence or indeed any barbaric sentence.
Objectors may be made legally exempt. They have a democratic right to be, in that British MPs have claimed the right to a free vote from any party whip on hanging. ( Tho, this affords an excuse to those wanting to avoid jury duty. )
Then the law would not be upheld by a representative sample of the population, but by people who believe in execution on principle. If you were a defendant, which kind of jurors would you rather have? As a defendant, one has a right to a fair sample of human sympathy.

Abolishing this democratic practise of the jury, rooted in ancient English law, wouldnt remove the problem. The selection of judges has to be representative, too, in a democracy.
John Stuart Mill admitted capital punishment would become unworkable, if public opinion turned enough against it.

Still, there is no denying that a majority, and perhaps a large majority, of the public could persevere with capital punishment. If so, their desire for a referendum on the subject doesnt have the democratic purity they thought it did. Really they would be pursuing maiorocracy, a tyranny of the majority.

Is not giving up hopes of capital punishment, because of a minority's conscience, simply a worse tyranny of the minority? Not necessarily; all it implies is the need to find effective sentences or commitments, that are not so offensive to a substantial minority as is putting defendants to death. That would be a maturer kind of democracy.

There is US polling evidence that public opinion would prefer such a compromise. Majorities for the death penalty sometimes disappear with the offered alternative of a life sentence without parole. The further offer of restitution to the victim's family also modifies opinion on the issue.
Is it too much to ask for an effective deterrence against murderers, without judicially endangering innocent lives?
Granted restraint of the vicious is necessary, prison is not a weak compromise with do-gooders, when fugitives from justice risk death rather than go to jail.

John Stuart Mill even defended capital punishment as more merciful than life imprisonment. But he tries to have it both ways by saying it still seems the more terrible deterrent to potential wrong-doers - while admitting there is no way of knowing, who the death penalty might have deterred.

Mill believed that English law's presumption of innocence made wrongful convictions rare. But all law enforcement comes under pressure to get results with the attendant risks to justice. Mill might well have admitted that the number of miscarriages of British justice, that have come to light, disqualified the death penalty.

Moreover, Mill's qualifications, as to the use of capital punishment, are so stringent that they amount to the exception that proves the rule.
In fact, Mill was a convert to capital punishment by his wife, whom he idolised and defered to.

Popular pardons?

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If the death penalty is to be decreed by popular vote, what about the power of pardon? A democratic right, for the British people to have the former, implies a right to have the latter. No problem, with the interactive media! Tho, the way the people treated Socrates and Christ suggests the mob or the mass, gone electronic, might pass adverse judgement on folk too good for them, rather than too bad.

These popular judicial murders did not help the historic standing of democracy. Perhaps popular power would do itself a service by looking for some honorable way out of a prerogative exercised from the times of debauched emperors to Home Secretaries?

Democracy is accepted because no man is good enough to be another man's master. What man is good enough to be another's executioner? A persecutor, like St Paul, may have deserved to die - before he redeemed himself. After Christ's own sacrifice on the cross for a convicted murderer, there was the forgiveness of Paul.

Democracy is about allowing a society to regulate its affairs by popular consent. It is not about airing prejudices on whether one's fellows deserve to live or die. For, this is the sociological instruction that the statistics on popular pardons would afford - just as statistical evidence relates capital crime and punishment to sociological factors.

In the film, Schindler's List, Schindler tries to teach the camp commandant a sense of the power of pardon, but he hasnt the self-control to stop taking pot-shots at the inmates.
You see, this power is as much a judgement on who weilds it, as who is subject to it. And so, societies ( an increasing number ) that abolish the death penalty have done the utmost in their power to pardon.

The power of forgiveness is perhaps the hardest to achieve. To forgive is not to be distracted, from mending one's own faults, by self-righteousness. Forgiveness may be beyond many who suffer from others' wickedness. That is forgivable. But it doesnt have to be beyond the law, instituted by a reflective people, who bear each others' afflictions.

The death penalty may kill an enemy ( besides possibly creating others ) but forgiveness can exorcise an imagination haunted by enmity, the only hope for peace of mind.

The social context of guilt.

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Madame de Stael

Philosophers have suggested that a utopia would be immoral if it depended on so much as the suffering of one child. How then can a society justify irreversible sentences to death? The reason cannot be that the guilty deserve to die, because - however true - that cannot compensate for wrongful convictions.
It is not rare to hear news of judicial mistakes -- the ones that are found out -- usually after a long time. And if we cannot always even get the sentencing right, it's a bit much supposing we are omniscient enough to know who should be done away with.

All the court tries to establish is whether the accused is guilty. But that doesnt mean whether he is responsible for his whole life history that led up to the crime. That issue was traditionally left to the Deity's Day of Judgement, which is beyond the resources of any human court. When human beings take upon themselves god-like powers of presiding over life and death, their consciences have to be assuaged with the comforting lie that they know the executed deserved to die.

The courts have come to consider mitigating pleas. Cases may be refered to the social services or for a psychiatric report. The tough-minded regard this as a chance for the guilty to escape justice. That is the price of being able to hear stories of 'the worm that finally turned'.

The correctional system is all so makeshift. Being tried with the help of an impersonal administration of experts is not like coming before the village meeting place of the local community that knows one.
But Western society is based on impersonal market relations, rather than social relations of the extended family and tribe.

This is the sociological distinction that Ferdinand Tönnies developed in Gemeinschaft und Gesellschaft ( translated unhelpfully as Community and Society ).
As Emile Durkheim said, relations, based on the division of labor, resemble an ecology of different species, or interaction of strangers rather than familiars.

Villages may once have been pockets of conformity and xenophobia policed by censorious snoopers. But a random check, of social events in the provinces, shows England 'has gone cosmopolitan', as Martin Jacques put it. Asian philosophies and life-styles are prominent. 'The global village' was a fashionable idea long before the internet was.

Even Madame de Staël found the English shut you out of their houses, long before they were fortified by television, an isolating as well as a globalising medium.
Nowadays, people should be able to live in genuine communities without sacrificing their individuality. As well as personal fulfillment, there needs to be mutual support. Everyday help between people, potential offenders and victims, would be a basis for prevention of a high social casualty rate.

Only a supportive society, in effect, an extended family cares enough for firmness to be respected, when teaching to 'do as you would be done by'. Once that religious and social ethic is lost on youngsters, then the law really is reduced to fighting a 'war on crime', that no-one wins. It's a global war that's being lost against boardroom hooligans.
People must find their own ways to come together. We reformers can't be expected to know all the answers!
But the more one questions, the less does the death penalty seem an answer.

The typical supporter of lethal sentencing is not noted for a social reforming zeal to help the disadvantaged. Reforms for a peaceful and pleasant environment, from population control to noise abatement, are going to be needed to make life endurable even for the most privileged.

Deterrence and destabilisation.

Granted that we are not avenging angels, the only defense for the oldest law ( and latest movie ) of measured revenge, is deterrence. This is to put fear in the hearts of wrong-doers, so they know that if they kill they will be killed.

But the innocent have also cause to fear a system ruthless enough not to be deterred by the certain knowledge that mistakes are made. Worse still, that system is given a vested interest in suppressing the truth, to appear infallible to society, so that it will not be discredited.
Believing in capital punishment, it helps to worship the state.

One can understand why Amnesty International are opposed to capital punishment. In the real world, justice becomes confused with political expediency by governments. ( Tho, AI's reasons are much broader than this, and more forthright and informed than the case given here. )
There is always likely to be a tendency to judicial murder, because capital punishment is, by its nature, an expedient to get rid of the dangerous to society. And governments show obsessive concern with dangers to their own continuance.

Power corrupts and absolute power corrupts absolutely. One has to bear in mind that the general attitude of the 'hangers and floggers' is one of repression, with calls for more police, more prisons ( criminal boarding schools ) and longer sentencing ( further 'education' ).

The police are under pressure to show they are not falling down on the job. In turn, likely suspects may be pressured, evidence distorted and extorted, so that someone is made an example of. The public conscience may still be left in a turmoil as to whether or not the convicted was really guilty. And if public morality can be expedient about this life and death issue, how much more so about less serious matters?

US police killed more innocent by-standers than those escaping arrest, according to a statistic from Almond and Verba's The Civic Culture.
( For verisimilitude, the movies' epic shoot-outs should show more citizens, caught in the cross-fire, than gangsters left lying about the streets. )

Is this the result of public pressure on the police to catch the guilty, regardless of endangering the innocent? And is it not a similar mentality to that of exacting the death penalty, regardless of the hazards of guilt by association or the frame-up?
Might it not pay, in terms of lives supposed to be saved, to be less single-mindedly zealous, not to say vindictive?

Social conformity is a strong influence, no less so for being unconscious. The state sets the example that killing is an acceptable punishment. From this social belief that some people deserve to die, may come the belief that one's former partner deserves to die for deserting one - a sort of family treason.
Indeed, someone, who fancies themself to be intolerably wronged in any way, might be tempted to take lethal law into their own hands.

It is only too obvious from frightful massacres that some disturbed persons are not deterred from executing themselves after their crimes. They show how futile the death penalty can be. Murderous suicide seems an extreme example of so-called manic-depressive behavior.

Any who are tired of their lives and want to make some violent statement of disgust, on their way out, are not cowed by the full majesty of the law. It may have a fatal fascination for those with an unconscious death wish.

Deterrence and mediation by the state.

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Giving the state special powers is bound to be self-defeating. Other groups go into competition for those state monopolies. Some political gang, that wants to set up in competition with the state, might adopt, as legitimate, the usual powers to punish, execute and make war.
To avoid causing social quarrels, instead of mending them, the state must confine itself to being a mediator.

This appears to be the real purpose of that ancient law of Hammurabi: an eye for an eye, a tooth for a tooth - a life for a life. It wisely limited the damage to society of uncontrolled feuding. ( Even so, restitutions would be incomparably better, if they could be agreed to. )
Some people, derided as the hangers and floggers, are still consistent in advocating these tortures. They believe that those who commit physical violence should be given a violent punishment. See how you like it!

Deterrence perhaps misses the main point of an original rough justice to contain the devastations of the vendetta or blood feud. This was a pioneering measure for equitable settlements of wrongs between clans. Whereas, the belief, that violence is discouraged by counter-violence is more a dubious psychology of how to prevent further aggression, in a modern dissociated society -- however prominent blood brotherhood and family vengeance are in the movies.

It seems that violence for violence brings only more violence. It overlooks that the violent were probably themselves violently treated and that violence, in the name of the law, only degrades society the more to its level. This vicious circle of violence has to be broken out of. The addiction to hatred has to be cured, because it is life- and soul-destroying.

When animals and humans are upset, they tend to upset others, usually of lower status. This somehow is supposed to relieve one. Religions try to combat this self-centred attitude. It is not based on making oneself happier, only making others more miserable. It is a steep route to hell.

The Roots of Evil, Christopher Hibbert's history, of crime and punishment, suggests there is a correlation between their level of cruelty.

The US Supreme Court once ruled capital punishment as unconstitutional, because coming under the category of 'cruel and unusual punishments'. But this verdict was later over-turned and the death penalty returned to some states. If it had been a success, wouldnt we have heard so, from its advocates?

US evidence shows, both on the whole and between neighboring States, there are less murders in states that dont use the death penalty than states that do. There is even evidence to suggest that state executions have a brutalising effect that increases murders.
( The source, for this, is from the highly rated site, the Death Penalty Information Center. A review, here, would not do justice to their case. The DPIC's statistical evidence has much more claim to be 'scientific' than the discussion on this web page. )

Non-violence and self-defense.

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As a counter-example to the grievous carnage of endless feuding, the non-violence, led by Mahatma Gandhi and Martin Luther King, left impressive achievements in liberating their people. The pacifism of the African National Congress fared less well in South Africa, already a fearfully violent society, in Alan Paton's novel, Cry, The Beloved Country.
The humane and conciliatory policies of opposing leaders, de Clerk and Mandela offered a way out of the rising conflict.

It seems the influential Leo Tolstoy was too dogmatic a pacifist. Life is a weighing of risks. Not to defend oneself, at all, may invite aggression and exploitation. The good shepherd is all very well. But who wants to be a sheep! On the other hand, defending oneself degrades one to match the ruthless behavior of a conqueror. This is the situation Mandela and his movement found themselves in.

Whether or not soldiers are from a pacific democracy, they may bring the war home to their families. There is a footnote, in Vera Brittain's Testament of Youth, about a charity appeal for those suffering from the mental and moral instabilities stamped upon first world war veterans.
War, coming home to roost perhaps didnt receive adequate publicity till after the Vietnam war. The moral is to avoid, so far as possible, a culture of violence, including the death penalty.

C S Lewis went thru an encyclopedia of ethics to find that mercy is a universal recommendation.
Those tortured beyond endurance ( described for instance by Slavomir Rawicz, in The Long Walk ) might well have no compunction in killing the torturer, on the spot, if met again. ( Even fear has its limits as a restraint. ) That just goes to say we can only take so much abuse. A court, tho it might not condone such revenge, would have to be merciful towards it.

Sri Ramakrishna's parable, of the converted snake, points a moral for the stability of individuals or nations.
A poisonous snake changes his murderous ways after meeting the gentleness of a holy man. Whereupon, the villagers think the snake has lost his venom, and abuse him mercilessly. Fortunately, the Mahatman ( high-souled one ) comes back that way and notices the battered snake's sorry condition. He says: I simply advised you not to bite anyone. I didnt say you shouldnt make them keep their distance. In short, injure no one and be not injured by others.

It does have to be taken into account that a sudden lifting of fear, such as by abolishing capital punishment or other severe penalties, may encourage an upsurge of repressed hatred, which provokes a return to violent suppression. Not just individuals, but societies, may become destabilised.

To be sure, the Chinese Communist government didnt want the chaos, in some regions, that was to follow the break-up of their European counterparts' control. But unprovoked violent suppression, such as of the moderate Tienanmen square demonstrations for free speech, and its aftermath, must be counted as itself destabilising.

If it were true that some of the allegations, made against corruption on the former 'Democracy Wall', were slanderous, the normal way to deal with that is by independent courts open for reporting.
That is a tried technique of preserving freedom with order.

It must be said, Chairman Mao wanted to have his cake and eat it, too. He wanted to let a thousand flowers of speech to flourish and yet retain the leading role of the party. This again is the old problem of freedom with order.
John Stuart Mill was one of the first to appreciate one technical means to achieve it: the electoral method that effects democracy rather than maiorocracy.

Personal instability: violence and emotional dependance.

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Psychological theories, such as Eysenck's, put human personality on a scale from more or less stable to unstable.
In general, stable behavior is a bit like a tight-rope walk. Once the balancing pole, one is holding, tilts up, on one side, it tilts down on the other. In other words, getting high on hatred will bring one low with anxiety.

Even fantasies, of vanquishing enemies, are liable to worry one with thoughts of the revenge they might take, if they discern one's ill will towards them. Thus one destabilises oneself with a self-reinforcing neurosis.

Using such a difficult example as tight-rope walking might make one wonder how anyone remains stable. To change the metaphor, it is like 'keeping on an even keel'. For that, one must balance the storage of cargo, one's 'emotional baggage', if you like.

Some idea of what this means may be required. So, I put myself, for a change, on the couch, so to speak. Most people are too involved, happily or unhappily, in their personal problems to take much notice of the effects of wider issues upon them. That is one kind of imbalance.

My problem, if youll forgive me for mentioning it, for illustrative purposes, is the opposite. I dont have an emotionally satisfying life rich in personal relationships. This means that I fall back unduly on matters of public interest. Such a person as myself is liable to invest too much emotion in impersonal causes, simply because he has few personal ones. This is the danger of fanaticism, as distinct from the equal and opposite danger of public apathy.

William Whitelaw once said of a British political colleague that he was going round the country, stirring up apathy.

Fanaticism is an over-dependence on a bigger cause than one's self. It can be bad if it infringes other people's just expectations.
Nor are addictions just one's personal problems in over-dependence. Because, crime often results from trying to pay for drugs or gambling.

Over-dependence comes from seeking substitute satisfactions for an emotional hole in one's life. In Britain, education seems to be about school league tables of qualifications and teachers' performance pay.
Personal relationships are an end in themselves and dont need scores to out-do others. If life is to be worth living now ( which means always ) knowing how to get on with people must be learned.

Mature relationships.

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John Cleese asks about good relators, in Life And How To Survive It. ( A later chapter on the politics of moderation is naive and risible but that shouldnt detract from the popular psychology. ) He is the co-author being briefed by psychologist, Robin Skynner, who has studied the personal qualities of those successful in relationships.

The psychologist points out that Freud and his school were immersed in cases of ill-adapted individuals. Usually, their behavior patterns were still locked in responses to traumas, they were not even aware of. Unpleasant memories, that were repressed, couldnt be come to terms with, and the old reactions, to them, shed.

Shortly before 2000, European law banned violence against children, including by parents and teachers. Violence is a hateful imposition of one's will that humiliates, if it does not physically injure. Children, being dependants, cannot just leave a domestic reign of terror. They are liable to be too emotionally destabilised to form loving relationships.

The violent are unable to tolerate the independence that children need to develop to become able to form adult relationships. The studies of the socially well-adapted showed they have a self-respecting maturity that doesnt form clinging relationships. They dont have to emotionally blackmail or threaten their partner to make them stay. Love makes them stay.

An emotional dependant can put the partner, treated as a possession, thru hell. It is not uncommon to hear of this hatred ending in murder, sometimes followed by suicide.

Should the partner want to leave, the mature can accept that. They would rather find someone else to love with, than derive a perverse pleasure from nursing a grievance over a love that has faded or been supplanted. The mature are not afraid that by losing their partner, they will lose love. They are not dependent on their partner for love. They can give as well as take love.

That independence of the mature does not make them less loving. It doesnt mean they dont care whether the partner comes or goes. Rather, they offer their love unselfishly, and not only on condition that the partner be bound loyally to them for ever.
That is not to say that marriage contracts should not be made. They serve the purpose of ensuring emotional and economic security for raising a family.
That doesnt alter the point at issue. Maturity is a loving independence, that recognises the independence of others. It is not an infantile belief that the world exists to administer to one's needs, and kicks up a fuss should it dare cease to do so.

In this respect, of not seeing the world revolve round themselves, psychology found the mature to be essentially 'religious'. Nor do they idolise partners, only to revile these gods for deserting them. It does seem there is something in a religion of universal love.

The trouble with using fear as a check, even if only on the wicked, is that it becomes a mastering as well as a servicable emotion. Fear, like fire raging out of control, takes on a life of its own, for which we are just the fodder. Hence, 'consumed by fear'. Fear, no longer wisely warns that a hardened wrong-doer wont repent, but makes us forget that, equally, anyone might repent.

The only emotion tolerable, both as a servant and a master, is love. For instance, Christ's message of love was to replace the old law of a balance of terror.

Holding a referendum on capital punishment could be contested, from a constitutional point of view, as an abuse of democratic rights, for giving too much power to the state, or to men over their fellow man, as well as being unwise, from the point of view of our religious civilisation.

After-note (22 june 2008)

The former shadow home secretary, David Davis has resigned to hold a by-election on the issue of civil liberties. Many believe that 42 days detention without trial is a breach too far against the right of habeas corpus. Tony Benn, who has shared a cross-party platform with him, said he never thought he would live to see the parliament that abolished Magna Carta.

Never the less, Davis is a believer also in capital punishment. I would just like to re-affirm my own belief that the state should not have the privilege of capital punishment. For one thing, others come to believe they should be able to share this privilege. So it is an incitement to taking the law into one's own hands and a decline into anarchy. Everyone should stand by the law not to kill, including officers of state.

Moreover, state privilege of capital punishment makes the state an enemy of progress and the people. Giving capital punishment to the state is also giving it a brief to be infallible, which means in practise to cover-up mistakes and deceive the public.

Officials are encouraged to be arrogant and incapable of learning from mistakes. Progress is not made this way. And this mind-set entrenched in one department of state is given precedent or license to extend to all public business of the government.

On the other hand, mistakes may be admitted, perhaps being likened to so many casualties in a war against crime. We know that wars are generally conducted with or without regard to an acceptable level of casualties to civilian populations. Civilian casualties can reach genocidal levels.

A war against crime, like any other war, suspending the civil law of engagement, puts the state in danger of engaging in a war against its own people.

In short, entrusting the state with capital punishment is an inducement to fraud and force against the people. This is the nature of a military society under military law, a society of conquerors and manipulators.

This is the condition that John Locke said was justification for revolution, in the sense of popular self-defense against an oppressive government. This doctrine is enshrined in the American declaration of Independence. Its purpose is a civil society enjoying liberty and equality, which define a democracy.

The death penalty is not so much an ultimate deterrant against evil, as an imbalance of power that ensures government supremacy over the governed. In some cases, a life penalty is more abhorrent to criminals whose crimes have caught up with them, because they can no longer live with themselves.

For that matter, relatively innocent criminals may not be able to endure life in captivity, as cannot some wild animals.

Richard Lung.

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