Articles:
Justice and the death penalty

The resolution promoted by Italy and passed by the human rights committee of the United Nations General Assembly, calling for the abolition of the death penalty, has prompted a lot of commentators to make an anti-American point. They say that by supporting capital punishment the United States puts itself among an extremely unlikeable list of countries: China, Iran and Syria, for example, countries it is forever claiming are the enemies of freedom. Yet if you look a little further down the list of willing executioners you find some other, more interesting countries: Japan and India, which are two of the world’s largest democracies, clearly friends of freedom. The dividing line on the death penalty has little to do with democracy or freedom.

            In fact, in most democracies if a referendum were to be held about the death penalty, it would be supported by a large majority of voters. It is a popular punishment, because in public opinion the desire for retribution or vengeance plays a big part in thinking about crime. Opponents of the death penalty generally base their argument on the idea that to kill people, even murderers or terrorists, is barbaric and inhumane. Unfortunately, public opinion itself is quite barbaric and inhumane too.

            In my view, the best and the most correct argument against capital punishment is that it is irreversible and that it is therefore unjust. Every judicial system makes mistakes. When the death penalty is imposed, those mistakes cannot be remedied: it is too late. Ultimately, the lack of the permanent chance of appeal, or of proving that a mistake has been made, is evidence to me of a lack of justice.

            Yet there are different degrees of injustice. In China, there is essentially no chance to appeal against a death sentence. The judiciary is not independent of the Communist Party, the law is applied in an often arbitrary way, and the rights of the defendant are limited. For that reason, it is wrong to say that by executing murderers the United States and Japan are just as bad, just as barbaric as China or Iran.

Anyone convicted of murder and sentenced to death in America and Japan has a very extensive chance of appeal. The judicial systems are transparent and independent. The rights of the defendant are well protected and established. Eventually, a convicted murderer may be executed, but only after many appeals. The death penalty in those countries remains unjust, in my view, because mistakes can still be made. But the system is far more fair and moral than are the systems in China, Iran or Syria.

That fact is further reinforced by the way in which many American states have suspended the use of the death penalty, following evidence of miscarriages of justice. In a democratic, constitutional system there are checks and balances that prevent the death penalty from being badly misused.

The Italian-led effort at the UN human rights committee is admirable in moral terms, but it is bound to fail. Authoritarian countries such as China are certain to keep their death penalty. Also, though, such efforts are directed, I would argue, at the wrong target. The most important issues of human rights and the criminal law are not concerned with the type of punishment that is used. They are concerned with the process by which a criminal is accused and convicted.

If you divide countries according to whether the judicial process is fair and properly conducted, then the lists produce no surprises: Italy, America, Japan and India are all on the list where the rule of law and justice applies; China, Iran and other dictatorships are all on the a list of countries where there is neither law nor justice.