Padraig Colman

Rambling ruminations of an Irishman in Sri Lanka

Tag: capital punishment

Cruel and Unusual Part2

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

 

Colman's Column3

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.

 

 

Cruel and Unusual Part 1

This article appeared in Ceylon Today on August 6 2014

 

Colman's Column3

Two recent news reports caught my eye and stimulated me to re-examine the issues relating to capital punishment.

Couple from a Country Beginning with “U”

At the Colombo High Court on July 15 2014, Trial-at-Bar Judges Devika de Livera Tennakoon and Wimal Nambuwasam sentenced to death a couple found guilty of a double murder committed in 2010. Mashour Eugene and Yanna Brishyana murdered Jason, a six-year-old child, and a housemaid, Daisy Manohari, at Nawala on February 23, 2010. Some reports describe the guilty pair as Ukrainian; others say they are from Uzbekistan.

The killings took place at the Galpotta Road home of Victoria Kim, who had been Eugene’s partner in a call girl business, but she later became his competitor and rival. He had visited her on February 21 to try to arrange a truce. This was not successful. He returned unexpectedly two days later while Victoria was getting Jason ready for school. Jason tried to call his father on his mother’s mobile phone. In trying to get the phone from the child, Eugene hit him several times and inflicted stab wounds. Victoria and Daisy wrestled with Eugene. Jason died immediately. Victoria was stabbed in her stomach and Daisy was dragged into the bathroom and stabbed to death. Yanna Brishyana, was outside in a three-wheeler with two gallons of petrol which she had bought at a filling station in Nugegoda. The plan was to set fire to the bodies.

When the death sentence was read out, sex worker Brishyana, who claims to be the mother of an eight-year-old child, appealed to the court to have her executed immediately.

Long Time A-Dying

The second news item was about an execution in the USA. Joseph Wood was executed in the state prison in Florence, Arizona, on Wednesday July 23 2014. It was a long drawn out business. Wood was sentenced to death in 1989 for murdering his girl friend and her father. After waiting a quarter of a century, Wood had to wait a little longer to die. At 1.52pm, the lethal drugs began coursing through the tubes leading to a vein in his arm. Ten minutes later witnesses reported seeing his jaw drop and his chest start to heave as his lungs battled for air more than 600 times. He was finally declared dead at 3.50 pm. Executions by lethal injection are meant to take no more than 20 minutes, not one hour and fifty-seven minutes. This was the third badly botched execution this year.

Global

Of the 193 independent states that are UN members, 51 per cent have abolished the death penalty. Four per cent retain it for some exceptional crimes and 25 per cent permit its use for ordinary crimes, but have not used it for at least ten years. Some, such as Sri Lanka, have a policy or established practice of not carrying out executions, and 20 per cent of UN members maintain the death penalty in both law and practice.

 

For and Against

 

My own stance on capital punishment has changed. I made a feeble attempt at writing a novel when I   was 15. Inspired by news coverage of crowds protesting outside prisons during executions, the subject was murderers getting more sympathy than victims. My views had changed by the time I was in the sixth form, to the extent that I fell out with my girl friend when we attended a debate on capital punishment at Kings School, Gloucester Cathedral. She was for capital punishment and I was irritated that she could not see the obvious logic of the arguments against it. Henry VIII founded Kings School. Henry used capital punishment as a substitute for marriage guidance counselling.

 

Death Penalty in Sri Lanka

The death penalty is still part of the Sri Lankan penal code. Some reference sites say the last execution was in 1977, others say 1976. Bogambara Prison in Kandy was the go-to place for judicial murder. It had gallows where three could be killed at the same time. HG Dharmadasa was the Superintendent at the prison in the 70s. He says he had the “misfortune” to officiate at the last few executions. Mr Dharmadasa is adamant that the last to be hanged was DJ Siripala alias Maru Sira in 1975. Maru Sira may actually have been already dead when they hanged him, as he was limp and unconscious when they took him from his cell. After the body was exhumed his spinal cord was found not to be fractured and excessive traces of drugs were found in his system. The USA does not have a monopoly on botched executions.

Bogambara Prison closed on 1 January 2014 and is now open to the public. There is speculation that it might be turned into a boutique hotel.

Accurate figures are hard to come by, but it seems there are at least 405 convicts in Sri Lanka on “death row”. The Sri Lankan state still likes to have a hangman available, just in case. Unfortunately, the Prisons Department is having trouble filling the post. In March 2014, a new appointee had had second thoughts. Chandrarathna Pallegama, commissioner general of prisons said: “we gave him one week’s training, but he resigned after seeing the gallows.” The new hangman, the third most qualified from 176 applicants, was appointed after two hangmen chosen last year failed to show up for work.

I recall reading reports of a cabinet meeting when Ranil Wickremasinghe was prime minister. The then minister for power and energy suggested that the noose be replaced by the electric chair. Ranil quipped: “But with all these power cuts, can you guarantee that there will be electricity available?”

Many people argue that the death penalty should be implemented because of the rise in child abuse, rapes, murders, and drug trafficking. I recall reading an editorial in a national newspaper calling for public executions of child molesters.

Considering that the Sri Lankan constitution gives a special place to Buddhism, it is more than a little odd that the death penalty remains on the statute book and that some self-proclaimed Buddhists demand that it be used. What happened to panatipata veramani sikkhapadam samadiyami?

Deterrence

According to a study published in the Journal of Criminal Law and Criminology, eighty-eight percent of the leading criminologists in the US do not believe the death penalty acts as a deterrent to homicide.  Similarly, 87% of the criminologists believe that abolition of the death penalty would not have any significant effect on murder rates. In addition, 75% of the respondents agree, “debates about the death penalty distract Congress and state legislatures from focusing on real solutions to crime problems.”

US politicians in favour of abolition point to the fact that death-penalty states (which are mostly in the south) have higher murder rates than non-death-penalty states (many of which are in the northeast).

 

 

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