Cruel and Unusual Part2

by Michael Patrick O'Leary

This article appeared in Ceylon Today on Wednesday August 13 2014.

 

An examination of  issues relating to capital punishment, continued from last week.

What Do the Philosophers Say?

Immanuel Kant wrote: “But whoever has committed murder, must die. There is, in this case, no juridical substitute or surrogate that can be given or taken for the satisfaction of justice. There is no likeness or proportion between life, however painful, and death; and therefore there is no equality between the crime of murder and the retaliation of it but what is judicially accomplished by the execution of the criminal.”

Nietzsche recognised cruelty in Kant’s position. Cruelty can be, and often is, masked as morality. Base pleasure in inflicting cruelty can be, and often is, rationalised as moral duty. “Whence comes this strange hypothesis or presumption of an equivalence between two such incommensurable things? What can a wrong and a suffering have in common?” Nietzsche sees the origin of this “strange hypothesis” in commercial law – “debt, the market, the exchange between things, bodies and monetary signs, with their general equivalent and their surplus value, their interest.” Commercial contracts provide a model for the social contract, which requires that humans undergo an internalisation of their aggressive drives. This has a psychological effect causing what Freud would call a neurosis. Nietzsche describes it as that “serious illness that man was bound to contract under the stress of the most fundamental change he ever experienced – that change which occurred when he found himself finally enclosed within the walls of society and of peace”. Nietzsche warns that this psychic formation (or deformation) brings the risk of the subject becoming her or his own executioner.

Nietzsche suggests that abolitionists are not immune to cruelty. By preferring imprisonment to the death penalty (protracted cruelty, that is, over immediate death) they are making an aggressive attack on aggression which paradoxically preserves, or redoubles, aggression even as it seeks its eradication. As I mentioned last week, Yanna Brishyana, when sentenced to death in the Colombo High Court, appealed to the court to have her executed immediately.

Victor Hugo was a staunch abolitionist. He travelled across Spain as a young boy. Along the roadside, heads of convicted robbers were displayed as warning to others; one man had been dismembered and re-assembled in the shape of a crucifix. As Voltaire put it: Dans ce pays-ci, il est bon de tuer de temps en temps un amiral pour encourager les autres. In his short novel, The Last Day of a Condemned Man (1829), written when he was 27, Hugo writes about a man who has been condemned to death by the guillotine in 19th century France. He writes down his thoughts while awaiting his execution. Hugo had witnessed executions and told a story about the blade sticking halfway through a condemned man’s neck. The man freed himself and stumbled off holding his spurting head in place with his hand. The executioner’s assistant jumped on his shoulders and finished hacking his head off with his pocketknife. Baudelaire did not agree with Hugo. The poet celebrated capital punishment as a supremely sacred and religious proceeding.

Albert Camus deals with the “eye for an eye” trope: “But what then is capital punishment but the most premeditated of murders, to which no criminal’s deed, however calculated it may be, can be compared? For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.”

Jacques Derrida addresses Baudelaire’s criticism of Hugo’s abolitionism. Hugo argues that the death penalty should be opposed because the right to life is absolute. Derrida says abolitionists “are afraid for their own skins, because they feel guilty and their tremulations are a confession; they confess, with the symptom of their abolitionism, as it were, that they want to save their lives, that they tremble for themselves because … unconsciously, they feel guilty of a mortal sin… ‘I want to abolish the death penalty because I am afraid of being condemned.’”

Derrida tries to expose the way that the abolitionists are implicated in the death drive, suggesting that opposition to the death penalty can quickly be converted into its opposite, unleashing a celebratory affirmation of its destructiveness. He suggests that abolitionists are like anti-pornography campaigners who end up exciting their supporters with their graphic descriptions of pornography. Derrida himself opposed the death penalty, but could still ask whether some abolitionists are committed to other forms of cruelty that are masked by elegant moral formulations, ones that rationalise prolonging the time of cruelty and the tenure of sadistic delight. Abolitionists have made sure to promote the punishment of life without parole as the alternative to execution, taking care of the question of the worst of the worst being allowed out to commit fresh crimes.

Democracy and Death Penalty

Edmund Burke, told his 18th century constituents in Bristol that, while he would attentively listen to their opinions, he would reject any talk of “authoritative instructions” or “mandates issued” which he might be expected to obey. The death penalty is normally cited as the classic example of the disconnect between politicians and the people they represent. I have written often about the lack of democracy in the EU. The EU has made abolition of the death penalty a condition for membership of the club. In every Western democracy that has scrapped the death penalty, politicians have acted against the wishes of a majority of voters. A European politician running on a platform of restoring capital punishment would be wasting his and the voters’ time, unless he was willing to leave the EU as well.

In the UK, a majority of MPs have consistently opposed the death penalty and a majority of the public consistently supported it. It used to be over 70%, but these days roughly half of the UK population support the death penalty for “standard” murder. Overall US public opinion remains clearly in favour of the death penalty, with around 60% or more of Americans saying they want it retained as a punishment for murder. Michael Dukakis’s opposition to capital punishment in a televised debate sank his 1988 presidential run.

The most combative abolitionists openly assert that they know better than their voters, and are saving them from themselves. Former governor of New York, Mario Cuomo, defended his position: “Capital punishment raises important questions about how, as a society, we view human beings. I believed as governor, and I still believe, that the practice and support for capital punishment is corrosive; that it is bad for a democratic citizenry and that it had to be objected to and so I did then, and I do now and will continue to for as long as it and I exist, because I believe we should be better than what we are in our weakest moments.”

Cuomo could only block capital punishment until he left office – it was reinstated. Yet in states whose state legislatures have voted in recent years to abolish it, after long debate, there are no signs of it being brought back on to the statute books.

It is a strange state of affairs when politicians are moral arbiters acting in our best interests and keeping us on an ethical path.