It’s inevitable, perhaps, that once it was announced that the public were being invited to petition MPs to debate specific topics in Parliament, capital
punishment would be one of the first subjects on the agenda. Still, I’m surprised by the stir Guido Fawkes has managed to create by launching his
campaign for its restoration for certain categories of murder, and I’m amazed to be writing about it here.
If only because of the European dimension, the prospect of a return to the noose is vanishingly remote, at least at the moment. But the death penalty retains a visceral attraction for many people. It’s probable, though not certain, that a referendum would be won by its proponents: in most polls, it still attracts majority support. And support increases whenever a particuarly brutal or revolting murder is in the headlines. Capital punishment answers, as life imprisonment never can, the ancient, possibly biological, call for retributive justice, an eye for an eye.
Whether or not execution is actually a deterrent, calling for murderers to die can deliver an emotional satisfaction, almost a catharsis. It is a way of
expressing horror at a crime and belief in the implacability of justice.
The abolition of capital punishment in the UK was an elite project brought to a fruition at a time — the 1960s — when the liberal cause had the wind in its sails, when for many lawmakers going against public opinion on such an emotive issue seemed like an affirmation of their political vocation.
It would probably be very different today — as it is, of course, in the United States. As things stand, the prospects of abolition in most states where it is retained do not look good. Politicians have too many votes to lose and most moves to restrict the death penalty have been made by the courts. It was the Supreme Court, for example, that as recently as 2005 ruled prevented execution for crimes committed by juveniles (Roper v. Simmons). (Although only just; and I’d recommend reading Justice Scalia’s blistering dissent if you have the stomach for it.)
Some point to the USA’s greater religiosity, the persistence of a frontier mentality, higher levels of violence or (most plausibly) to the country’s more
populist democracy as explanations for the difference between them and us. But I suspect that it’s largely chance rather than culture or public opinion, that explains the different paths taken by the United States and Britain on the issue of capital punishment. Because in truth there is not much difference. Polling on either side of the Atlantic shows roughly similar levels of public support for the death penalty: around 60 per cent. Michigan, one of several states without the death penalty, abolished it in 1846, making it the first English-speaking territory in the world to do so.
Capital punishment came close to being abolished altogether in the United States when the Supreme Court suspended executions in 1972 (its ruling in Furman v.Georgia). The moratorium lasted a mere four years, however. Since then, the US has been increasingly anomalous in the Western world — a position that both the American right and the European left have both tended to view in the light of American distinctiveness. I’m not so sure.
Once it was abolished in Britain (in fact if not in law) in 1965, the reimposition of the death penalty became sufficiently unthinkable to sufficient members of MPs and opinion-formers to make it effectively permanent, even before European legislation put the matter beyond democratic reach. It now has all the appearance of historical inevitability. But legislative abolition was a major step, taken after a number of scandals had brought the possibility of miscarriage of justice to the forefront of the debate. It was done against public opinion by a political class more self-confident than today’s and in a less media-saturated age.
Just a year later Ian Brady and Myra Hindley were convicted for the sadistic murders of five children. If their case, rather than that of Derek Bentley, had been at the forefront of the national debate, then the vote to abolish hanging might have been delayed. In France, the guillotine was only abolished in 1981, by which time Margaret Thatcher, a vocal supporter of the death penalty, was in Downing Street. It’s easy to imagine the persistence of hanging into an era when New Labour’s “tough on crime” rhetoric — and a populist arms race with the Tories, fuelled by a tabloid press uninterested in the subtleties of penological theory — has led to a massive increase in the prison population.
Under slightly different historical circumstances, the same political climate might easily have led to an increase in executions.
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