The law of unintended consequences strikes again ...

Like most people who have more than a rudimentary knowledge of the workings of the legal system, I am an opponent of capital punishment.

It is just not possible to get a justice system which never makes mistakes. Therefore if you use the death penalty you will execute a certain number of innocent people. You will also have a certain number of guilty people acquitted, for whom the evidence of guilt would have been sufficiently overwhelming to constitute "proof beyond reasonable doubt" in the eyes of a jury if the consequence were a jail term, but not if it meant execution.

For that reason I would vote against any attempt to bring back the death penalty in the UK.

I also think it is reasonable to use diplomatic means to persuade other countries not to apply the death penalty where there are strong reasons to believe that it is likely to result in the execution of the innocent or to be applied where it is grossly disproportionate to any real or imagined offence - e.g. for rape victims, because of people's sexuality, or because they have changed religion or given an imagined offence to someone else's.

But we need to be very careful about trying to impose our views on other democratic countries about how they should treat people who have been convicted in a fair trial of truly horrific offences. It makes me extremely angry when other countries or institutions try to suggest that Britain should not have the right to impose "whole life" tariffs on criminals who were undoubtedly guiilty of revolting crimes, such as Rose West, who was told by the judge

 "If account is taken of what I say, you will never be released."

I am sure the reaction of the vast majority of British people to any international body which tried to persuade the UK to overturn the whole life tariff on the murderers of Lee Rigby would be two words, and the second word would be "off."

In this country the fact that in the very worst cases life imprisonment really does mean life was part of the effective "deal" which persuaded most citizens to at least accept, not very enthusiastically in all cases, that we no longer execute even the worst criminals. But the anger which even relatively liberal Brits feel when outsiders, be it the ECHR or any other external body, criticises our right to impose whole life prison sentences on those who are genuinely guilty of unspeakable crimes should give us an idea of how many Americans feel when outsiders criticise them for retaining the death penalty.

I am disturbed to learn from this week's Time Magazine of evidence that European attempts to prevent the application of the death penalty appear to have contributed to the recent spate of botched executions in the United States of America.

Most of the US states which have the death penalty on their statute books have adopted lethal injection as their method of execution because as it was seen as more humane. There was a relatively standard procedure based on a protocl recommended by Doctor Jay Chapman, who had been Oklahoma's chief medical examiner, for using particular doses of certain drugs in sequence to first quickly sedate the person being executed, rendering him or her unconscious, and then stop the heart. Chapman himself said later that he had "no idea in my wildest flight of fancy" that every US state would adopt his protocol with no further research and that "I guess they just blindly followed it."

More recently there have been concerns that this protocol is not always succesful in making the execution painless, and there have been attempts to develop a better method. These, however, have fallen foul of EU or national legislation in Europe.

Many of the drug companies from which the American states used to buy the relevant drugs are headquartered in Europe - and in 2011 the European Commission tightened controls on the sale of drugs for use in executions.  Ohio, which has a law requiring executions to be as quick and painless as possible, tried to replace the Shapman protocol with a single drug, the anesthetic sodium thiopental. but they were unable to obtain supplies for the drug, partly because  the Italian government blocked the US-based drug company which had been manufacturing the drug, but ran into a problem at their Ilinois plamt, from using their Italian factory instead. This was the first in a number of cases where states which were seeking ways to apply the death penalty more humanely fell foul of European anti-execution policies. A number of such attempts failed because European institutions or governments blocked the sale or the relevant drugs to the US penal system.

This is by no means the only reason why there appears to have been problems in a number of recent executions in several US states with executions causing far more excruciating pain for the criminal than was intended. But it appears to be one of the contributory causes.

The debate has begun in some US states about whether to return to older methods of execution such as the firing squad or hanging. If I were a citizen of one of the US states concerned the evidence of problems with lethal injection would strengthen my opposition to continuing with capital punishment at all, but I'm not, and 63% or American adults disagree with me.

And I don't see how I can argue against their right to decide how the justice system in their country should work given that I believe that the UK has a similar right to decide whether we want British judges to have the power to impose whole-life prison sentences for those murderers for whom the judge considers this a just and fair sentence.

I fully understand why an individual, a company, or a state might wish to refuse to sell drugs for the purposes of putting human beings to death. I'm not even necessarily saying that they are wrong to do so, despite the problems described in the Time magazine article. But I think it is important that we understand the consequences of such actions. And in this instance the law of unintended consequences appears to have had a field day.

Comments

Jim said…
Just a couple of statements here really made me wonder.

Most of the US states which have the death penalty on their statute books have adopted lethal injection as their method of execution because as it was seen as more humane.

Ohio, which has a law requiring executions to be as quick and painless as possible"

and

The debate has begun in some US states about whether to return to older methods of execution such as the firing squad or hanging.

Firstly I want to make it clear that, like you Chris, I am opposed to capital punishment, Until we have a 100% accurate legal system then I dont think it could ever be used.

Now, some places do have it, and I guess that is down to them, its their country after all. I just think if the penalty for doing something is the death penalty then at least do the job properly. That is as quickly and as painlessly as possible.

The argument for lethal injection being humane is not at all convincing.

In this respect then the systems of the UK, China and france are feasible, China (although moving towards lethal injection, still use the "single close range pistol shot to the back of the head method" - pretty much instant. if messy.

France used the guillotine, however this is very messy, though its very quick.

The UK used the "calculated drop hanging method" which means the drop is set to suit the individual, too short and they would strangle, too long and they would be decapitated. When its done properly its very very quick, and painless (at least it is believed to be, and the science suggests it is, of course no one knows for certain, for good reason) it also has the advantage of dignity, what i mean is the body is not badly damaged externally, so its better for a family to see the corpse as was, rather than with a big bullet hole or no head at all.

My first inclin would be "dont use the death penalty" (even the great Albert Pierrepoint said in his memoirs "I am left with this bitter aftertaste, I have learned capital punishment achieves nothing but revenge"

But if you must use it, then at least do it properly
Jim said…
To continue with my way of thinking. I would say use the prison population for good things.

That is, put them to work, re surfacing our roads, building and maintaining cycle paths, cleaning streets, keeping parks, even large scale projects like building rail lines, bridges etc.

You see this to me is obvious, firstly you have a population the tax payer is keeping, so let them earn their keep, secondly it would better prepare those who could be released for a life outside of prison - rehabilitation. thirdly, it would reduce the burden on the tax payer.

No doubt some would argue this would cost "jobs" which is true, but only pubic sector jobs, thus freeing up the resources for the private sector, which of course is where the rehabilitated ex inmates would also apply for work having served their sentence.

those who will never be released, well at least there would be some return for their keep under my method.
Jim said…
Sorry was typing and thinking above.

The first and 3rd advantage look to be the same by the way i worded that.

1. Better service for the taxpayer - this means Jobs actually get done, and done more quickly.

2. Rehabilitation of prisoners

3. Less tax burden, why pay to keep prisoners and pay to provide council services when you can pay the first and use them to provide the second.

Hope that makes it clearer
Chris Whiteside said…
Quite.

A number of things in response to your three very sensible and well argued posts.

1) I think anyone who looks into it - this week's Time Magazine is a good starting point - will start to wonder whether lethal injection is as humane a method of execution as it first appears.

2) My purpose in writing the acticle was not to criticise the EU or European governmnents and companies who have refused to sell drugs which might be used in executions to the US prison system - to be able to make a valid criticism I would have to be able to recommend a clearly better policy, and I can't see that there is a right answer to this one - but to highlight the irony that this policy appears to have contributed to the failure of attempts by the US to make their execution methods more humane.

3) I agree with your comment that if you're going to execute people, at least do it properly.

4) I also agree entirely that we should look at ways of getting mroe useful work from the prison population - for their own benefit as well as that of the rest of the UK. If they have the dignity of learning how to do something constructive while in prison there is a vastly better chance that they will be able to go straight when their time inside is finished.

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