Life, Ethics & Independence VII – Capital Punishment

(Title Image: Wales Online)

Oh boy! Where to start with this one….

Yeah, I realise it’s not the most festive subject, but we shouldn’t dodge questions like this in any future independence debate, or even the current one in Scotland.

I’m surprised the Scottish yes campaign have made no mention of this in “Scotland’s Future”, or many other things I’ve covered in this series (except abortion). I’m getting the impression I’m living in the wrong country.

Some of the content could be upsetting, but I haven’t included any graphic images.

The Death Penalty in Wales

Capital punishment hasn’t been used in the UK since it was abolished the 1960s. The last execution carried out in Wales was Vivian Teed for murder at Swansea Prison in 1958.

Abolition of the death penalty is one of the rare occasions a Westminster Member’s Bill became law. The Murder (Abolition of the Death Penalty) Act 1965 suspended the death penalty, subject to a parliamentary review every five years. A permanent abolition of the death penalty for murder came into force in 1969, while it wasn’t abolished in Northern Ireland until 1973.

It’s worth remembering that it wasn’t exclusive to murder.

Treason, piracy (the high seas, Jolly Roger kind), causing a fire in a naval dockyard, some military offences (like mutiny), various offences “against the crown”, and espionage were all punishable by death (legally, but not in practice) until they were removed as capital offences one-by-one. Espionage was de-listed in 1981, for example. The Crime and Disorder Act 1998 eventually abolished capital punishment in the UK completely, with the Human Rights Act 1998 making sure of it.

Death penalties were normally carried out by judicial hanging, though – as you all know – there were other methods going further back into history, such as beheading, burning at the stake; hanged, drawn & quartered; shot by the military etc. – all of which befell various criminals, rebels and perceived enemies of the state/crown, many of whom were Welsh.

Capital Punishment around the World

40 countries maintain the death penalty, while at least a further 48 either have moratoriums or don’t use the death penalty in practice (but retain it as a legal sentencing option).

Muslim states that maintain the death penalty usually use it as outlined by interpretations of the Quran and sharia law. There are human rights concerns, as capital punishment is often used to punish homosexuality, apostasy (renouncing a faith), adultery or practising the occult, which wouldn’t be considered crimes in liberal democracies.

Saudi Arabia and Iran still carry out public executions; the former by beheading, firing squad or stoning. Iran uses hanging, and used stoning until a moratorium in 2002.

Stoning is a particularly brutal and slow form of execution that kills people by head trauma, often reserved exclusively for adultery. Executions are also sometimes carried out on minors.

In terms of dictatorships and “People’s Republics”; China, Belarus, North Korea, Vietnam and Cuba maintain the death penalty. China has 55 capital offences ranging from smuggling, human trafficking, arson through to crimes like murder and child rape. It’s unclear how many executions are carried out each year in China, but it’s estimated to number in the thousands.

You don’t want to know what the North Koreans do.

Cuba hasn’t used the death penalty since 2003, though it’s still maintained on statute books. The number of historical judicial and political executions in Cuba is hard to pin down, but it’s likely to number in the thousands. Vietnam switched from firing squad to lethal injection in 2011.

Many south east Asian nations are merciless to drug offenders. Malaysia, Singapore and Indonesia maintain the death penalty as an automatic sentence to combat both drug production and trafficking.

Of the other democracies; Botswana, India, Japan, South Korea and parts of the United States still use the death penalty.

There are estimated to be more than 470 prisoners on death row in India, though death sentences can be commuted via presidential pardon. Japan and South Korea use hanging, with both nations criticised by organisations like Amnesty International for the treatment of death row prisoners and obtaining confessions under duress.

South Korea does, currently, have a moratorium on executions, though capital punishment was ruled acceptable by the South Korean Constitutional Court in 2010, and the number of capital offences was expanded.

Capital punishment is currently practiced on a state-by-state basis in the United States because criminal justice is a state (“devolved”), not a federal matter. Only 18 of the 50 states (and Washington DC) don’t use the death penalty, with Maryland the latest US state to abolish it. Execution methods are varied, though lethal injection is used as standard.

As of April this year, there were more than 3,100 inmates on American death rows. US states have carried out 36 executions in 2013, and average around 43 executions in each of the last three years.

Evaluation of the arguments

Arguments for capital punishment

“Eye for an eye” – A deeply embedded part of more conservative interpretations of religious doctrines. If someone kills another person in cold blood, for example, they too should die. You can probably see why a “like for like” punishment could be seen as justice instead of revenge, but people may misinterpret “eye for an eye”, expanding the number of capital offences or negating the need for proof of guilt “beyond reasonable doubt”.

Deterrence & preventing re-offending – An American National Academy of Science study states that research into the effectiveness of the death penalty is “inconclusive”. Some studies suggest it has a positive effect on re-offending, some suggest it could make re-offending worse, and some suggesting it had no effect.

People may also commit capital offences in a state of mind where they have no control over what they’re doing. That could include uncontrollable rage due to a legitimate slight, or even an underlying health condition. Executing people who carried out crimes because they’re ill might count as involuntary euthanasia, and be as murderous as a murder. I think it is safe to say though that executions have a 100% success rate in terms of preventing an offender re-offending.

It’s cheaper than a life sentence? – You would think, logically, that executing a prisoner after a short period on death row would be cheaper that holding them for 30, 40, 50 years in prison until they die naturally. It might not be that clear cut though.

Although the execution itself is cheap (a execution by lethal injection costs around £800), the costs of a trial for a capital offence are significantly more expensive than one where the sentence is life imprisonment.

Some US studies state a death penalty case costs $1.5-4million (£918k-£2.5m) more, presumably because of the need for a proof of guilt that’s “beyond reasonable doubt”, longer trials and extensive appeals. Presuming those figures translated to the UK and were at the maximum end, the extra cost of a death penalty trial is the equivalent of holding a prisoner for 67 years, based on an average cost per year, per prisoner of £37,163 (2010-11).

Provides closure for victims (or their families) – This is perhaps the closest there is to a solid argument in favour. For victims – or relatives of victims where the victim died – an execution might help them come to terms with what happened. They know the person who wronged them has been served the ultimate sentence so they can move on, knowing perpetrators won’t live out their life in prison with the prospect of possibly being released one day. However, is that justice? Or is it revenge?

Arguments against capital punishment

“Two wrongs don’t make a right” – This is a moral argument rather than one where there’s any hard evidence. If killing is considered wrong, why does any killing, for any reason, appear justified in certain cases? It’s punishing violence with another act of violence, as any death is generally considered “violence”, even if something like a lethal injection looks like a sterile surgical procedure.

Wrongful execution
– An execution is irrevocable. It’s quite likely that people who’ve been the victim of high-profile miscarriages of justice or unsafe convictions – like the The Birmingham Six, Barry George and Cardiff Three – would’ve been hanged under old laws. How can you ever be 100% sure someone is guilty of the most serious crimes? Even forensic science evidence isn’t foolproof.

Cruel and unusual punishment? – Executions themselves might not necessarily be cruel anymore depending on the method. It’s the wait and the uncertainty that’s “cruel and unusual”. The condemned might not have any set date for execution, and might only find out hours before the sentence is carried out. They might be waiting for an appeal outcome which could give them false hope. The conditions on death row could be harsh and due to the seriousness of capital offences could lead to death row prisoners being abused. Then there’s people who are genuinely innocent and know they’re innocent. All this is a form of psychological torture.

Prison is more of a punishment than execution (and useful) – A person can’t be rehabilitated, show remorse or learn from their mistakes if they’re dead. A good way to make a criminal face up to what they’ve done is to point out precisely why they were wrong in the first place. Admittedly, that won’t always work – a prisoner might be seriously ill and simply have no concept of “right or wrong“. Also, trying to understand why and how people become violent, or commit certain crimes, is invaluable in intervening early in wider society.

The Legal and Constitutional Position

The European Union explicitly prohibits the use of capital punishment by member states under Article 2 of its Charter of Fundamental Rights, which came into force in 2009.

Protocol Six of the European Declaration on Human Rights (a core part of the Council of Europe, which is a separate organisation from the EU) restricted the use of capital punishment to times of war or “imminent threat of war”. Protocol Thirteen, however, later moved for the complete abolition of the death penalty, and was ratified by all but four Council of Europe members – Russia, Poland, Armenia and Azerbaijan.

So in Europe, there’s a double-lock on abolition of the death penalty. The EU completely outlaws it, while the Council of Europe has effectively outlawed it too. Theoretically, capital punishment could only be re-established in full if Wales (or Wales as a part of the UK) withdrew from both the EU and Council of Europe – we’re already down the road on the first.

Other than Belarus (which isn’t a full member of the Council of Europe), Russia is the only nation state in Europe that allows capital punishment, but it isn’t used in practice. So Europe is almost a capital punishment free zone.

The likelihood that any part of Europe would reinstate the death penalty is, therefore, far-fetched.

The Politics of Reintroducing the Death Penalty

At the moment it’s practically impossible. Criminal justice isn’t devolved, and capital punishment has effectively ended in the UK via the treaties mentioned earlier – though the position after Brexit is completely up in the air.

The question of whether or not the death penalty should be brought back is usually raised in the backdrop of serious high-profile crimes. More recently it’s been mentioned formally and informally in connection with Mark Bridger, the Woolwich terrorist attack and Ian Watkins.

The latest poll I could find suggests that 63% of people in the UK would support a reintroduction of capital punishment in certain circumstances. Another poll, from Angus-Reid in 2008, suggests the figure is around 50%. There are, as far as I know, no separate figures for Wales.

Prominent Westminster blog, Guido Fawkes, launched an e-petition to get the UK Parliament to debate the reintroduction of the death penalty. It failed to get the 100,000 signatures necessary to trigger a House of Commons debate (it got just over 26,000).

The only parties that outright support the reintroduction of capital punishment are the BNP and National Front. Although UKIP doesn’t have an official position for or against, many prominent members – including former leader Paul Nuttall – have supported calls for its reintroduction.

Many on the hard-right (dubbed “Tory Taliban”) of the UK Conservatives probably support the idea too, and a Member’s Bill from Phil Hollobone MP for the reintroduction of capital punishment has been introduced at Westminster, though unlikely to have any chance of becoming law.

Most AMs heads would explode if you even hinted at the prospect of reintroducing the death penalty in Wales. Amnesty International are quite popular in Cardiff Bay, while more than a few AMs spend a lot of time campaigning and discussing human rights.

Despite that, Wales doesn’t have any influence on such things for now. If capital punishment were reintroduced, it’ll come from Westminster.

Supporting the death penalty would end the careers of anyone in Labour, Plaid or Lib Dems. While I’d expect the Welsh Tories would look dimly on someone within their top ranks expressing such sentiments – rank and file members being a different matter.

Support for reinstating capital punishment is a good example of argumentum ad populum in action. Just because something has mass appeal, it doesn’t mean it’s correct. However, that’s essentially how democracy works.

“Let’s pretend….” How Capital Punishment could be reintroduced in Wales

Let’s suppose that, somehow, Wales had the power to reintroduce capital punishment.

A scenario could run like this:

Post-Brexit, the UK withdraws from the European Convention of Human Rights (which is entirely possible), repatriating powers to the extent that it allows the reintroduction of capital punishment – whether confined to certain crimes or not.

Then, Wales would need the specific powers to reintroduce it. That could be via independence (Wales automatically falling outside the ECHR’s remit as a result of a UK withdrawal), or via the devolution of criminal justice and capital punishment within a federal or confederal UK. Westminster could also reintroduce it themselves.

Firstly, it would need to be decided what counts as a capital offence. That would presumably be a role of the judiciary and any legal advisers to the Welsh Government.

I’d imagine pre-mediated murder(s) – including acts of terrorism – murders than involve torture/sexual abuse or murder of a child would be at the top of the list. Some might want to include sexual offences that involve minors, murdering police officers or even rape. There would almost certainly need to be consideration given to an extensive appeals process and the levels of proof required to condemn someone.

Presuming the reintroduction of capital punishment enjoys significant public support, legislation would need to be drafted. It would be a very long, drawn out process. It would likely attract criticism from groups like Amnesty International, leading to protests at the Senedd, drawing international criticism (becoming a pariah state in Europe) and leading to significant backbench rebellions. So it would be a challenge in itself.

During the legislative process, there would need to be the unpleasant discussion of how executions would be carried out.

Lethal injection tends to be de rigueur in developed countries and is often considered humane as the prisoner is (usually) knocked unconscious before they’re killed. Another humane option would be a high-altitude chamber filled with nitrogen – as investigated by Michael Portillo in 2007 – where a condemned prisoner is executed via hypoxia, which causes a pleasant “high” before death. The old guard would probably prefer hanging.

Then there would be consideration given to how many condemned you would expect to house on death row each year and where executions would be carried out. The answer to the first question is “it depends”, but I would guess up to a dozen capital offence trials and 3 or 4 executions per year in Wales.

In terms of where, it would need to be a modern, fairly high security facility with good access to mortuary facilities and away from a built up area (to discourage protest). Parc Prison in Bridgend or Berwyn Prison in Wrexham would be the obvious choices.

If any Bill is approved, it would almost certainly require a referendum to be fully enacted. You’re not just talking about a minor constitutional change, but giving the state the legal power to kill its own citizens.

The terms of reference would make the 2016 Brexit referendum look like a debate at a student union.