I suppose that it was all reasonably predictable.
After trying to disguise the vastly inadequate sums of money that governments of all persuasions have spent on such basic social institutions as the police over the last ten years, the emphasis in the 'Law and Order' debate was bound to swing from prevention to punishment.
Prevention after all, requires a commitment to a range of social spending. Welfare workers, adequate numbers of well resourced police officers; legal aid; the funding of rehabilitation and early intervention programs in Prisons and so on ...all of which means tax increases.
Threats of harsher punishment seem to be, albeit deceptively so, a cheaper alternative. They also have the added benefit of giving the public the completely misleading impression that administrations are actually doing something useful about the problem of crime.
It was therefore also rather predictable that in the course of the recent election that a range of populist right wing groups would trot out that extremely rickety and degenerate hobby horse.... the reintroduction of Capital Punishment. It seems that there is a significant and growing number of people are intent on slavishly following the U.S. in it's failed and discredited policy on this matter; so I thought that it might be beneficial to stop, and consider some of the issues that actually surround the Death Penalty,
I am sure that all contributors on the subject, for and against, desire the same thing...a safer, more just, society with reduced levels of crime and violence. There is always, however, substantial disagreement as to whether the re-institution of Capital Punishment would help or hinder such aspirations. And those who hold an opinion are almost quasi religious about it. Small matters like the facts and national experience do very little to change their minds. So what exactly are the issues?
Firstly, deterrence.
Does Capital Punishment reduce the rates of violent crime? That is, will Australia be more safe for us and our children if the Death Penalty is re-introduced?
The answer seems to be a resounding negative. Experience in the USA is not always directly transferable to Australia, but social conditions in the United States are probably closer to our own than any other society currently invoking the Death Penalty. Since the US re-introduced Capital Punishment in 1979, in about one third of it's states, the experience there has been a sobering one.
FACT: In none of those states where the Death Penalty was reinstituted has there been any reduction in the number of, or the brutality of, crimes committed. In some cases, notably Texas and Florida, there has been, in fact, an significant increase in the murder rate. (The United States of America. The Death Penalty. Amnesty International Publications.)
Life imprisonment at least creates a living deterrent. Executed people particularly in countries where executions are commonplace events, are most often buried and forgotten.
There may even be some evidence now to suggest that state executions, well reported and increasingly videoed, further brutalise populations and can actually contribute to the crime rate.
Secondly, justice.
Is the Death Penalty likely to result in a more just response to violent crime?
Again, the answer is probably not.
One of the great fears among the legal fraternity in Australia who are, I might add, overwhelmingly against it's re-introduction, is the prospect that it will actually mitigate against the conviction of guilty people. Without reflecting upon the guilt or innocence of the former Premier, one need only look back to the Bjelke-Peterson trial in Queensland to realise that, in Australia, even one intransigent member of a jury (which must be unanimous in a decision to convict) is enough to 'hang' a jury and thus cause a retrial.
Historically, one of the major reasons that large scale transportation to Australia was instituted in 1788 was the increasing inability of British Crown prosecutors to obtain convictions in cases where the jury was aware that a guilty verdict would result in the death of the convicted person. Given that a significant number, possibly a large majority, of Australians are implacably opposed to the Death Penalty in all cases on moral grounds, it's re-institution would without question lead to a significant increase in the number of acquittals or retrials of guilty people who may otherwise have been convicted.
An attempted solution to this very real problem, as practiced in the United States, is the legislated exclusion of all people opposed to the Death Penalty from jury service in Capital cases. The outcomes for justice, however, have been nothing less than appalling, since any distortion in the representativeness of juries also results in a corresponding distortion in the validity of their eventual decisions.
'Death penalty approving' juries, for example, have also proved to be 'guilt prone' juries.
Thirdly: Inconsistent and Arbitrary Application
Even more disturbing, these same juries are significantly more likely to convict defendants with a non-white, homosexual or other minority background. At the sentencing phase of a Capital case in the USA, in which the jury actually decides whether or not to execute the convict, the distortions become even more apparent.
FACT: Although recent statistics now do show that the majority of those executed in the USA since the reintroduction of Capital Punishment have been white; (approx. 1800 whites as against approx.1300 blacks. These are CJP Figures and are changing weekly) but to be in proportion to the general population, where Afro-Americans represent only 13% of all US citizens, the black component should also only be 13% of the total number executed. For the DP process to be systemically non-racist that number should be no more than 400.
The fact that it is about three times higher than this shows that preexisting conditions operate within American society which lead blacks disproportionately into violent behaviour........unless of course one believes, illogically and racistly, that Afro-Americans are 'naturally' more likely commit murder. The logical extrapolation of the statistics quoted is that, executions are racially biased because they are the end result of prevailing social conditions in the US which make it far more likely that a black will offend; and will be executed. Where the initial sample is racially biased then all else that flows from such statistics will be similarly biased. Blacks are therefore still over represented by a factor of about three. Not only that, the USA, to it's eternal disgrace, also remains one of the only countries on the face of the earth to condemn minors and the mentally ill to death. In carrying out these executions, often years later, it is arbitrary, sexist and racist in the manner in which it dispenses death and all available statistics show this to be incontrovertible.
There is no justice in a system that is arbitrary in the application of it's penalties and indeed in all countries that retain the Death Penalty this is the case. If the US experience were to be reflected in Australia, the implications for Aboriginal Australians, in particular, would be horrendous.
Fourthly, the question of innocence.
An often quoted, but none the less, compelling issue.
FACT; At least 349 innocent people have been wrongly convicted of a Capital crime in the United States this century, some 50 of them since 1970. Of these, 23 were actually executed. In 32 of these cases it was later found no murder had been committed; the purported murder victim being found alive. (The United States of America The Death Penalty Amnesty International Publications 1987,1990.)
As recently as 1992 the electrocution of Roger Coleman proceeded amidst public furore in a similar political environment to that which surrounded The Ryan Case in Australia. New evidence known at the time of execution but which was not admitted at his trial has now cast grave doubts on his guilt. The Tim Anderson Case, The Lindy Chamberlain Case and many other notorious cases of wrongful convictions for murder in this country should be sobering reminders of how often this does happen. Under a system of Capital Punishment these wrongs can never be redressed.
Fifthly, cost.
This a far less worthy item of consideration when dealing with executions but in an age dominated by economic 'rationalism', I suppose it must be addressed. Is it cheaper to execute convicted criminals than pay to guard and accommodate them for the terms of their sentences; particularly if those sentences are of the 'never to be released' variety?
The answer is also, surprisingly, no.
Since the Death Penalty is irreversible, it places an enormous burden on the public legal system to ensure that every possible avenue of appeal has been exhausted; to prevent innocent people being executed.
Under numerous international covenants to which Australia is signatory, legal representation must be made available in serious criminal cases; where the defendant is unable to provide their own. Since, statistically, most convicted murderers come from poorer socio-economic backgrounds, these bills must be paid for out of the public purse.
Where death is the sentence, almost every case will be appealed interminably. Stays of execution, campaigns for commutation and petitions for clemency cost the community dearly and the cost of the physical execution itself in the current American experience is unbelievably high.
Sixthly; The Question Of Rehabilitation
One thing that outrages me is that in the recent times the term 'Do Gooder' has become a pejorative. It outrages me because 'good' to a greater or lesser degree is precisely what all members of a great society should be trying to do. In the face of the tragedy of an event like the Anita Cobby Murder we, as a nation, are called to respond. And our response as civilised people should be based on the supposition that since we cannot undo an act of evil, then our response to it must be calculated to produce the greatest subsequent good.
So when we compare the outcomes of the two punitive approaches (i.e. death vs imprisonment) we should be judging them by their capacity to achieve the greatest good.
If the purpose of execution is to prevent re-offence then effective life imprisonment satisfies this options without the process of ritualised murder. The imprisonment option also offers the possibility, however remote, of rehabilitation. The fifteen years of time allowed Karla Faye Tucker are widely thought to have effected a spiritual and social renaissance in her life. Execution, particularly swift and mandatory execution, offers no such possibility. In this area imprisonment may provide the possibility of the greater good.
If the outcome sought is a reduction of violence in society then execution fails miserably. especially when you take into account the societal damage inflicted psychically on us all as we vicariously participate through media coverage in the murderous ritual of execution. The 'parties' which are now common at prisons in the US where executions are scheduled are revolting evidence of that.
All this is quite apart from the moral and ethical issues that plague the question of state executions. So what does that leave as the argument for Capital Punishment? In the United States most District Attorneys have just about given up even trying to defend the practice on any other grounds except one. It's popular. And it's gaining political ground in Australia.
Why?
Certainly it is, firstly, because many people are confused, frightened and outraged by such events as those that led to the conviction of The Murphys and Andrew Bryant. They are also largely unaware of the evidence outlined above and so many mistakenly believe that the re-introduction of the Death Penalty will have some benefit.
The second factor, however, is far more disturbing.
I personally believe that the current calls for the reintroduction of executions, reflect a growing adherence in our society to the notion of retribution, or more accurately, revenge; a vicarious 'payback' in which we all get to participate. The ultimate thrill, perhaps, for a society whose taste for this sort of thing has been thoroughly whetted by the already vast excesses of a violent media culture; and the desire for which is being cynically pandered to by prospective politicians eager to build a career upon it.
One would have thought that revenge, as an instrument of public policy, had proved such a frightening and dismal failure in countries like Rwanda, Northern Ireland, Bosnia and God knows how many other decimated locations on our poor tortured planet, that it would have no credibility whatsoever in Australian political life; and no place at all in a society that espouses, even nominally, Christian or Humanitarian ideals.
Pat Drummond
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The Case against The Death Penalty In The USA