February 18, 2015

Horse 1841 - On The Death Penalty

Before I begin this, I should assert that I think that the really unfortunate and tragic fact about all of this is that as a sovereign nation, Indonesia is well within its rights to apply the laws as they stand. As much as the world cries out against it, the death penalty for trafficking hard drugs like heroin existed well before Myuran Sukumaran and Andrew Chan ever even set foot in the country. As far as application of law is concerned, this whole incident is being performed properly and correctly.
Is the law in this case good though? Is it fir for purpose?

Approval has now been passed for convicted drug smugglers Myuran Sukumaran and Andrew Chan to be transferred from Bali's Kerobokan prison; to be executed.
Indonesian president Joko Widodo, who has a history for his cruel "tough line" stance, has now rejected 64 bids for clemency. In addition to this, there have been personal appeals from the Prime Minister Tony Abbott, Foreign Affairs Minister Julie Bishop, her Shadow Minister Tanya Plibersek and a letter signed by 111 MPs.

What do I think of all of this? I hate Indonesian law. Hate is a strong word but in this case, it isn't even close; this is why.

This might sound like a terrible thing to say but I think that even those people who have committed horrible crimes, still have a right to life. I also think that people who have committed horrible crimes also have a right to punishment. I do question though, where in particular the point of punishment ends.

I think that the reason why this offends so many people is to do with the sanctity of human life. As a Christian, I believe that we have been created in the image of God but even if that were not the case, I still think that I'd reach the conclusion that the death penalty is certainly an affront to human dignity and questionable as a method of administering justice.
Secular societies across the world have all reached this same conclusion as well. All 27 nations of the EU have through the Charter of Fundamental Rights of the European Union, reached that point in law. The Universal Declaration of Human Rights didn't explicitly condemn the death penalty but it did affirm that a right to life exists as did possibly the most famous line in English, in the United States Declaration of Independence. Closer to home, Australia took the death penalty off the books with the Abolition of Capital Punishment Act 1973¹.

Article 3
Everyone has the right to life, liberty and security of person. 

Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 
Articles 3 and 5, Universal Declaration of Human Rights (1948)

Article 2 - Right to life
1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.
- Charter of Fundamental Rights of the European Union (2009)

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
- United States Declaration of Independence, 4th Jul 1776


There are many interlocked questions of what the state is supposed to do once someone has broken the law but the most pressing is the questioning making the punishment fit the crime. Then there are questions to do with the relative effectiveness of punishment and or rehabilitation of convicts. If the application of the death penalty is a question of punishment and rehabilitation, then the death penalty by its finality means that rehabilitation is  more or less pointless. The question of punishment though, is still unresolved because if we assume that the principle of exact retribution is just (the idea of an eye for an eye and no more) then the death penalty starts to look like a case of state sponsored revenge. If as in this case the death penalty is not in punishment for the taking of lives, then serious questions of justice need to be raised.

If this truly is a about delivering justice and administering punishment, then who exactly is the death penalty punishing? Putting fear into someone for the period immediately before they are extinguished might be seen as some as a form of punishment but once they have been put to death, the law can do literally do no more². The problem is that punishment lingers on well after the event for their families and loved ones. If in the period before their execution, the person who is about to be killed, shows remorse and repentance for what they've done, then the state which delivers punishment according to law might be seen as being just but it proves itself through action to be cruel.

The greatest reason why the death penalty has been removed in most jurisdictions is to do with the question of fairness. There are always examples which come up from time to time where someone has pleaded their innocence and still been sent to prison. If they'd been convicted of a crime and been given the death penalty, we would have killed those people; which kind of makes a mockery of the whole criminal justice system. In what way can a system be said to be just if it kills the wrong people?
The other question of whether or not the death penalty acts as a deterrent is very obviously demonstrably false; especially in the case of Sukumaran and Chan - they trafficked heroin anyway. If they weren't aware that death penalty existed for this sort of crime, then quite obviously not being aware of a thing means that that thing can hardly deter you from anything. How can the death penalty deter someone from committing a crime when they don't know that it exists? Of course, practically everyone in the world knows that Indonesia has the death penalty now but that really didn't help anyone at the time, did it? Mind you, the Australian Federal Police provided a three page letter to the Indonesian police, tipping them off about the Bali Nine's movements. If they really cared about the lives of these people, why didn't they try to stop them before the event?

I believe that in the light of Sukumaran showing remorse and Chan being so contrite as to turn his life around to the point where he has become a pastor, they have demonstrated that rehabilitation is entirely possible.
I think that as a nation we are justifiably outraged and are disappointed and angry that the death penalty continues to exist.

¹Abolition of Capital Punishment Act 1973 -http://www.austlii.edu.au/au/legis/cth/consol_act/dpaa1973228/

²And as it is appointed for men to die once, but after this the judgment, - Hebrews 9:27
Logically this is a position of the best possible administration of justice. All attempts at rehabilitation can be done during a person's lifetime and by virtue of the fact that Christ died for the remission of sins, all penalties have already been paid should the person choose to accept payment on their behalf.

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