The recent capital punishment debate inside and outside the Jamaican Parliament again demonstrates the intellectual shallowness and philosophical naivety which pervade our discourse. Most important of all, it was onerously irrelevant to the issue of crime-fighting.

In a society with such an alarmingly low level of clear-up rate of murders and where it is so easy to murder without getting caught, it is a waste of time to be seriously debating whether hanging is a deterrent. Hanging might be a deterrent in a country where criminals generally get caught, but here in Jamaica where police incompetence, under-funding of the security and justice systems and reprisals against "informers" are part of the status quo, it is foolish to see the resumption of hanging as a means of fighting the galloping crime rate.

utterly irrelevant issue

Yet, most of the pro-hanging advocates based their passionate advocacy on the need to stem our high crime rate. Hello, murderers know that our chance of catching them is next to zero and that witnesses can be easily "dusted' if they (the murderers), by some strange coincidence, do get caught. So in the Jamaican context capital punishment is an utterly irrelevant issue - if it is couched as primarily an issue of deterrence to crime.

As I have read and listened to proponents on both sides, I have again been struck by how poorly, people generally argue their positions and how the lack of philosophical grounding seriously hampers meaningful dialogue.

The debate in Parliament was particularly pathetic. Some properly tutored high-school students could have done much better. It was refreshing, however, to see the parliamentarians indulge that rarity of independent, non-partisan thought and to see them cheering one another from across the divide. We should have more conscience debates in Parliament!

The Bible-thumping zealots and the angry, fire-in-the-eyes pro-capital punishment advocates on the one hand and the human rights, progressive thinkers on the other hand dished out their usual serving of light stuff. There were many weak arguments and unexamined assumptions on both sides.

But while both sides exhibited weakness in analysis, the anti-death penalty lobby exhibited far more weaknesses, though it presents itself as buttressed by reason, while the other side is charged with emotion - the need for vengeance, revenge, etc.

conflicting interpretations

One, it is not true, as asserted uncontroversially, that "there is no evidence that the death penalty is a deterrent". The most one can say is that the data are open to conflicting interpretations, but the anti-death penalty lobby must never get away with the air of sophistication and science in asserting, without contradiction, that the evidence shows that the death penalty is no deterrent, as Peter Phillips was arguing. (Perhaps he really needs his think tank to help him with some research.)

The 2003 study, 'Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel', showed that on average, each execution prevents some 18 murders. It was from this study that Cass Sunstein and Adrian Vermeule developed their argument that states have a moral obligation to carry out capital punishment to save lives, taking what is called in philosophy a consequentialist view of ethics.

They develop their argument in the 2005 paper put out by the University of Chicago Law School titled, 'Is Capital Punishment Morally Required? 'The Relevance of Life-Life Trade-offs'.

"The foundation for our argument is a large and growing body of evidence that capital punishment may well have a deterrent effect, possibly a quite powerful one. If the current research is even roughly correct, then a refusal to impose capital punishment will effectively condemn numerous innocent people to death", say the authors.

Another study by H. Naci Mocan and R. Kaj Gittings, 'Getting Off Death Row: Commuted Sentences and the Deterrent Effect of Capital Punishment', uses state-level data from America between 1977 and 1997 to show that each execution deters five murders on average. They also see the murder rate increasing when people are removed from death row or have their sentences commuted.

Between 1972 and 1976, the US Supreme Court effectively had a moratorium on capital punishment.
Parliamentarian debate capital punishment at Gordon House, November 12. - file

An important study which uses that period to make comparisons is 'Murders of Passion: Execution Delays and the Deterrence of Capital Punishment'. Johanna Shepherd used state-level data from 1960-2000 and looks at the murder rate before and after the death penalty was suspended and reinstated. The author finds a substantial deterrent effect. After suspending the death penalty 91 per cent of states found an increase in murders.

In another important study, she did, titled, 'Deterrence Versus Brutalisation: Capital Punishment's differing Impacts', she found that unless executions reach a certain level, it won't have a deterrent effect, as murderers conclude that they are not likely to be executed - even if capital punishment is on the books.

Of course, some say you can use statistics and data to prove anything. But the point is we must not allow the anti-death penalty advocates to get away with leaving the impression that studies unambiguously show that capital punishment is no deterrent. (Referring to low homicide rates in Europe is another issue)

Sunstein and Vermeule make this important point in their paper: "Capital punishment critics often seem to assume that evidence on deterrent effects should be ignored if reasonable questions can be raised about it.

implausible

But as a general rule this is implausible. In most contexts the question of reasonable questions is hardly an adequate reason to ignore evidence of severe harm. A degree of reasonable doubt doesn't seem to doom capital punishment if the evidence suggests that significant deterrence occurs."

But there is another important point which the anti-death penalty advocates overlook. It is not just a matter of whether capital punishment deters, but whether justice demands it. In other words, there is a philosophical and moral issue here. Capital punishment could well be a matter of justice and if that is so the issue of deterrence is subsidiary, if not irrelevant. Unfortunately, the belligerent advocates of capital punishment in Jamaica have little interest in this issue also. They think capital punishment is a deterrent or at least is a means of satisfying the urge for revenge. But not all advocates of capital punishment are motivated by revenge and emotion, as intellectuals among the anti-death penalty lobby regularly charge. Some have advanced serious philosophical arguments, drawing on Kant's ethical views, among others.

The view that capital punishment is barbaric and does not show respect for life is one that is not as analytically tight as it might first seem. It appears sophisticated and enlightened to make that assertion - especially when supported by the fact that Europe and most of the world have abolished capital punishment except some totalitarian states.

The view that the state's taking a life is an affront to the sanctity of life necessarily, if consistent, should lead one to say that there can be no just war for in wars people are killed - whether in wars of liberation, as were fought in Africa or wars to end slavery. Yet progressives who vociferously oppose capital punishment on the ground that any taking of life is inviolate would have no problem in killing oppressors to free the oppressed or in killing people who attack their country without provocation.

barbaric

Why couldn't it be plausible that a society holds life to be of such inestimable value that any of its members who violates that sacred rule of life must be made an example of by being himself deprived of life? Why couldn't that be a powerful statement affirming life, rather than demeaning it? Just as we punish others who break the social contract and steal and rape, etc, and we deprive them of freedom - an inalienable natural right - why can't people deprived of life itself without the state being deemed barbaric?

A lot of the arguments of the liberals on this matter are fraught with unexamined philosophical assumptions, passed off as enlightened views. And because usually the people opposing those views are visceral and fundamentalist there is no engagement at the intellectual level, with the result that the liberal seems to win the debate hands down. When the truth is he has not really been debated.

As one thoughtful pro-capital punishment advocate, Andrew Tallman, puts it: "Rather than proclaiming the precariousness of life, allowing a known murderer to live is a declaration that life is not precious enough to justify the forfeit of another life as punishment."

An excellent paper which unpacks some common arguments against the death penalty is George Washington University Professor Dawinder Sidcup's 'Death As Punishment: An Analysis of Eight Arguments Against Capital Punishment'. This issue of the death penalty is no minor issue philosophically or morally. As Sidcup says in reference to the United States, "If the death penalty is being employed by the State and this practice is unjust, the death of thousands of criminals in this country would serve as a permanent disgrace to the integrity of this nation and would represent an extensive degradation of the virtue of justice."

The capital punishment debate is important, but not as a deterrent to crime in the Jamaican context. Another line being used to defend capital punishment - and one employed by former prime minister, Edward Seaga, is that capital punishment is needed because of the viciousness and barbarity of certain murders. But that should not be the basis on which the justification of capital punishment is advanced, for however humanely a person commits his murder it is the taking of life itself that is morally repugnant, not the manner of taking it.

murder

Talking about the abhorrence of the murder plays into the view that you are really after vengeance rather than justice. So if this is a reason for Seaga's supporting capital punishment, though he is generally opposed to it, he has no good philosophical reason at all.

We have missed an excellent opportunity to have a serious and sober debate on capital punishment. Emotional arguments and philosophical naivety on both sides get the better of us.

Meanwhile, for all practical purposes what happened on Tuesday was a sideshow. But at least the politicians got a chance to exercise their conscience - at last!

Ian Boyne is a veteran journalist who may be reached at ianboyne1@yahoo.com or columns@gleanerjm.com.