And the lines on the map moved from side to side… Should the Christchurch Terrorist receive the death penalty?

It has been a while since I wrote about the death penalty and why I support it in limited circumstances.  At its core, I think the intuitions about life imprisonment are just manifestly wrong.  People seem to want life imprisonment instead of the death penalty because they fear that the justice system will ‘get it wrong’ — at least you can release a person who has been wrongfully jailed.  My key point is that you can never return the time to them: life imprisonment takes something essential from the person imprisoned that can never be returned, and you should only even consider life imprisonment as a sentence if you would otherwise sentence them to death.  Or, more precisely, I think it’s immoral to reduce the standard of guilt between the death penalty and life imprisonment.  Life imprisonment is the death penalty performed slowly: you punish a person until they die from it.

One surprising thing about that argument is that I seem to be less inclined to think that life imprisonment is justified than abolitionists, which is not a result I would expect.

But in this post, I want to narrow the field to one of the main arguments of abolitionists: the possibility of error.  You cannot use the death penalty because the accused might later prove to be innocent.

There is no doubt at all that the Christchurch Terrorist is guilty.  The only question for us is how guilty he is.  It is one of the uncomfortable aspects of our legal system that we find a man who is apprehended in the act of a murder spree, and we still consider him to be innocent until we have gone through the process of a trial.  We cannot imagine a situation in which he would be found not guilty by a competent court, and we would think it a gross miscarriage of justice for that to have happened.

So strong is our moral investment in a fair trial that, even in these extreme circumstances, we still go through the process of ensuring the accused has every opportunity to prove their innocence.  Despite the overwhelming preponderance of evidence against them, there might be some tiny, overlooked fact that exonerates them or gives us a reason to give a more lenient sentence.

But here, at sentencing, there is no question that they are guilty.  No future DNA sample will prove him innocent.  His only hope is in identifying some procedural defect: he’s not guilty for some technical, arcane reason rather than because he didn’t do it.

The abolitionist faces a problem: if their main concern is that the death penalty is immoral because an innocent man can have a guilty verdict overruled, in this scenario would they rest their hopes on some procedural defect?

These extreme cases show the reasoning error for abolitionists whose primary concern is this.  We should only be punishing people where there is no reasonable doubt about their guilt.  If we are punishing people where there is reasonable doubt about their guilt, we aren’t having a debate about the death penalty anymore and we are, instead, arguing about whether it is moral for our justice system to be punishing people who might reasonably not be guilty.

The rhetoric from a number of quarters this last 48 hours has been surprising.  In discussions with me about my views on the death penalty, the Christchurch Terrorist has been referred to as a ‘creature’,  an ‘animal’, and a ‘monster’.  I always find that kind of rhetoric really uncomfortable in discussions about when the State should use violence (in its broadest sense): no matter what they have done, the punishment imposed needs to recognise their inherent dignity and reflect our recognition of our duties towards others.  Dehumanising or objectifying them might help satisfy our calls for punishment, but it clouds our discussion about what punishment is best.

Similarly, the rhetoric from abolitionists has been about keeping him alive to ‘suffer more’, or removing his protections in jail so that he can be abused, tortured, or murdered by somebody already serving time.  It’s wrong of me to think that these arguments are the highest or best version of the abolitionist position, but I think it shows we need to be careful when comparing popular abolitionist and retentionist views: there is a popular view that life imprisonment is preferable to the death penalty simply because a life of suffering and harm is more cruel.

It is important that, as a society, we have informed and compassionate discussions about what we want from our justice system.  That requires intellectual leadership of public debate to move us away from the visceral need for revenge into a dialogue that shows two equally moral and rational people can disagree on these topics.  For me, the Christchurch Terrorist should face the death penalty not because I would feel better if he were dead, nor do I relish the idea of murdering him in retaliation for what he did: instead, I think that we have a person whom we will never rehabilitate into our community, who has forever severed their connection with the rest of society, and whom we should permanently remove in the most humane, definite, and certain way available to us.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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