Loathsome choices

Every day somewhere in the World a government through its agents kills helpless prisoners. Sometimes it is the arbitrary commands of those in power. Sometimes it is carrying out the commands of its judicial system. Sometimes it is as part of a war. Sometimes it is as part of a conflict which is not exactly war but not exactly law enforcement either.

It is always in at least some respects a loathsome act. But those who order and carry out such acts usually claim that they are justified either to punish a wrong or to prevent a harm. And such claims may be right. Such acts might be necessary and right. But they must always be questioned. There must always be a part of us that is revolted by the necessity if such acts are truly necessary. In some cases the attempt to feel good about killing someone might be worse than the killing itself.

No one except pacifists will deny that sometimes we have to kill someone who is an immediate threat to ourselves or another. But the question here is when if ever we can kill someone who is not an immediate threat. Always a more questionable proposition.

There are four groups of circumstances in which one might be justified in killing a prisoner. They are as punishment for a crime, in wartime, after a conflict as punishment for acts committed on behalf of a state during the conflict and as part of a campaign against terrorists or other similarly dangerous non state organizations.

This essay is primarily an attempt to clarify issues in a disturbing matter. This is and should be distasteful business but it has to be thought about. Of course I will express my positions on them but this is secondary.

Criminal justice

The arguments in favor of capital punishment are the claims that some crimes are so vile that no other penalty is adequate and that it acts as a more effective deterrent and incapacitator than any other punishment. The arguments against capital punishment are claims that either or both of these claims are false or the claim that capital punishment involves paying a price that is too high for any good done or evil prevented.

Capital punishment is killing with aggravating circumstances. Some of these are inevitable. Some, I think, are unnecessary and hence wrong. Premeditation is regarded as an aggravating circumstance. Killings don't get more premeditated than an execution. The criminal is kept prisoner for months or years by people intending to kill them. How many murders are as cruel as that? People in favor of the death penalty usually trivialize this, to their discredit. While the delay may be necessary in order to reduce the risk of executing an innocent person it means that the sentence cannot possibly be free of great suffering. Any pain inflicted during an execution is usually trivial by comparison with the suffering inflicted leading up to it. That is unless you deliberately set out to torture some one. An execution is usually a ritual and hence an element of sadism or its moral equivalent, an expression of the importance of the state and hence its agents creeps in. This is not necessary. And of course it could be argued that it is a cowardly act.

Even so there are crimes so horrific that I could not say that the criminal did not deserve what happened to him. Serial killers come to mind. Proportionality would suggest that capital punishment if used at all should be reserved for crimes involving premeditation and cruelty comparable to that of the execution. It would suggest that those who use it for lesser crimes such as drug smuggling are evil enough to deserve death themselves. It doesn't matter that they think what they are doing is right.

Most criminologists will tell you that the effectiveness of a deterrent has more to do with its perceived likelihood than with its severity. They will generally tell you that the death penalty is no more effective at deterring murder than is life imprisonment or long prison terms. I tend to believe the experts in a field unless I have reason to believe they are biased or the whole field is undermined by dubious assumptions and practices. Thus I do not think that the death penalty is a more effective deterrent than life imprisonment. I admit to a bit of a bias. I find it a relief that a horrific act cannot be used to do good.

Even if a criminal deserves to die there are prices for killing them. The first is the sheer cold-blooded horror of the act. The second is the risk of killing an innocent person. The third is the danger of the punishment brutalizing society. The fourth is the suffering and grief inflicted on the family and friends of the criminal. Many, perhaps most of the advocates of capital punishment try to ignore these prices, trivializing them or pretending to themselves that they don't exist.

The strongest argument against capital punishment is the first one, the horror of the act, the premeditation, the cold-bloodedness, the sordid ritual. It is something that we should be very reluctant to do and we should always be prepared to question whether the right thing was done. Even if it is the right thing to do we should never shield ourselves from anything that might cause us to question or actions later. It is dangerous to protect the peace of mind of the public, the prosecutors, the politicians, the judges and the executioners. But this precisely what is usually done. Lethal injection is the epitome of this. Everything is done to make it easy on those ordering it and those doing it. The removal of the appearance of violence. But killing is a violent act even if it looks peaceful. The paralytic agents administered to prevent any convulsions. Having two people pressing the buttons with one of them a dummy. As if this removed any responsibility from the one who pressed the dummy button. This is a joint action. The cowardice and hypocrisy of such a system arouses more disgust and contempt in me than the execution itself. It arouses disgust even if I sympathize with the execution. If you need to tell yourself that what you are doing is humane and peaceful before killing a prisoner then maybe you shouldn't do it at all.

And I do sympathize with the outrage of those close to victims of crime. I shared the gleeful hate that surrounded Ted Bundy's execution. I do find it a nice thought that he died in terror and agony. But looking back I don't think it was worth it.

Families of murder victims want an act of outrage. The Law does not deliver this. It cannot deliver this without being corrupted. In claiming to deliver impartial dispassionate justice it delivers a sordid sadistic ritual. If you try to take vengeance out sadism tends to creep in. In seeking to be dispassionate the Law becomes horrific. I am far more disturbed by cold-blooded duty than I am by hate. I regard assertion of the importance of the state and the law through an execution as the moral equivalent of sadism. The ritualization of the killing and the attempt to prevent someone committing suicide before they can be executed are to me evidence of sadism or its equivalent creeping in. If someone commits suicide before an execution surely the proper reaction is relief at being spared a loathsome responsibility.

Then there is the risk of killing an innocent person. Most of the alleged murderers executed by states are guilty. Especially I think the error rate on serial killers is likely to be quite low. But the error rate for most cases under an adversary legal system is likely to still be unacceptably high. It is too easy to lay charges on weak evidence, The outcome is far too influenced by advocate skill. The appeal system looks far too much at procedure and far too little at substance. The criterion for evaluating a jury verdict is "Could a reasonable jury come to that verdict?" not "Were they right?".

The system in parts of the U. S. of having prosecutors and judges elected encourages excessive zeal and hence increases the risk of a wrongful conviction. And the perceived high pay off of an execution is likely to further encourage excessive zeal.

Executing the wrong person is something far worse than say police shooting an innocent person because they thought they were armed and about to shoot them. It is committing murder of the worst kind in a mistaken attempt to punish murder. It doesn't matter that they believed that they were justified. They took the risk of killing an innocent person. They probably blinded themselves to doubts. Recklessness is probably involved in most cases of wrongful executions.
I think giving a murderer the full punishment that they deserve is not a good enough reason to justify the risk of killing an innocent person. How certain does someone have to be before seeking or carrying out such a sentence? I would suggest certain enough to hazard their own lives on their being right.

The claim is sometimes made that rather than deterring murder capital punishment encourages it though the brutalizing effect on society of the example that it sets. I don't know enough facts to reach any conclusions on this. If capital punishment is seen as an exceptional act and restricted to the truly very worst cases then this might not be the case. If it is widely used as a punishment for crimes other than murder then it could well be true.

But is widespread use of the death penalty a cause of callousness in a society or a reflection of it?
Sometimes the family of a murderer condone and excuse his acts. More often they are in understandable denial. The anguish and grief inflicted on them is a wrong. Sometimes the prosecutors and executioners claim that the criminal is responsible for the harm to their families and friends. This is a lie. Those involved in the execution are. They decided that punishing a criminal properly is more important than sparing families anguish. They might be right but they should pay the price of their actions. They should be prepared to allow the satisfaction of doing their duty to be poisoned.

As you can see my feelings on the matter are very mixed. I believe that there are some criminals who deserve to be killed but the price of killing them through the judicial system is too high. But if you are going to do it at all face up to what you are doing. Make it quick, obviously violent and simple requiring no skill. If skill is involved people can take pride in that skill and this is not a fit matter for pride. The judicial system is not an emergency service like the military or the police. and should not be allowed a similar degree of slack.

Wartime

Our society like most others regards war as undesirable but unfortunately sometimes inevitable and necessary. Most of the laws of war that remain are those meant to reduce the suffering and death and destruction involved in war but which if adhered to by both sides are unlikely to change the outcome of a conflict. The laws protecting prisoners of war are among the most important of the laws of war. Killing prisoners of war is not only vile it is usually foolish. It increases the danger that one's own combatants find themselves in both by driving enemies to desperation and through the risk of reprisals against any of one's own forces that are taken prisoner.

However there are cases where customary usage does allow forces to give no quarter and to summarily execute prisoners.

The first is when prisoners cannot be brought back to one's own lines and bases in order to be placed in custody. An example would be a small force acting behind enemy lines that cannot allow itself to be burdened with prisoners. I would ask whether there were alternatives. For example it might be possible to disarm the enemy troops and either release them or leave them tied up.

Another case is when one is dealing with forces which themselves have given no quarter in the past or which have attacked after feigning surrender. Those engaging in such behavior may be summarily executed.

Forces which are not wearing uniforms or other identifying insignias identifiable at a distance or are wearing enemy uniforms or are not bearing arms openly are illegal combatants. They endanger all civilians by endangering combatants who try to spare civilians. They can be summarily executed.

There are actions which are allowable but which are regarded as so horrible that troops taking these actions have often been shot out of hand if captured. The example that I am thinking of is the use of flame-throwers. Troops using them were sometimes shot if captured. I don't know what to think about this. It is certainly at least an extenuating circumstance.

Then there are reprisals. The laws of war allowed one to kill prisoners if the enemy is killing those on one's own side which have been taken prisoner. The one example I know of an Allied army doing this in World War 2 was when the French shot some German prisoners in 1944 as a reprisal for the Germans executing French resistance members who had been wearing clear identification symbols and bearing arms openly. One of those cases where I can't think of any good solution.

Finally excessive resistance is regarded as causing one to forfeit one's right to surrender. If you continue fighting when there is no chance of victory then the enemy is not required to accept your surrender. If you say you are going to fight to the last man and last bullet then you risk being taken at your word. You cannot shoot someone in plain view of the enemy then try to immediately surrender to avoid being shot in turn. This is customary usage rather than law. You cannot use an enemies mercy against them.

Then in past the shooting of civilian hostages was allowed as a reprisal for the actions of illegal combatants. I would certainly regard this as wrong. Fortunately this is not allowed nowadays.
Spies were subject to execution if convicted by a military tribunal. This was regarded as the risk that a spy ran - the exchange for them not running the risks of combat but still being involved in the conflict. Perhaps, but why the legal trappings and ritual? Yes a tribunal of some sort is necessary, not to provide a legal justification but to reduce the risk of killing an uninvolved person. Can you meaningfully describe an enemy spy as guilty? Unlike for criminal law cases it is plausible that executing spies in wartime has a greater deterrent effect than other measures. This is because otherwise they could expect to be released at the end of the war unless their side lost. The threat of execution was also used as a means of turning spies.

The whole idea is repugnant but still I don't know what the right answer is. Still there is no more excuse for ritualizing such a killing than there is to do so in the criminal law. The same objections apply.

War crimes trials

War is monstrous enough. Some of the most vile acts possible are committed by some belligerent forces and their leaders -acts that deserve death or worse. But some of the same objections to judicial killing apply as do for the criminal justice system. Once again it is the premeditation and ritualization that disturbs me.

There is however an exception. If a leader is captured in a conflict and his death will probably end the conflict then his killing becomes obligatory. A good example of this is Romania in 1989. Forces trying to hang on to power were committing mass murder. The execution of the Ceausescus removed the focus for supporters of the old regime and ended the conflict.

Terrorism and other conflicts with non state forces

Civil wars are governed by rules similar to those governing international wars. The conflict is between a government and a would be government.

Terrorism is generally undertaken by movements which while they want to influence or take over governments do not have the institutions of a state. They have the mechanisms for taking power, not for exercising it. For many there is little internal control and not much in the way of chains of accountability. They are often the armed wings of political parties. Sometimes they are more of a movement than an organization. They do not have the mystique of legitimacy. But they have the means to threaten a state and a private criminal does not.

The problem is whether to treat them as criminals or as enemies. Since they are not agents of states (though states may be backing them) many want to deal with them through the criminal justice system. But many of them are too dangerous for this approach. Doing so leaves the initiative in the terrorists hands.

The question is whether you can have a state of war or something equivalent when one of the parties in a conflict is not a state. I think you can. I think you must treat terrorists as enemies and as criminals. Their rights are the intersection of the rights of domestic criminals and the rights of enemy combatants. As enemies they may be held for the duration of the conflict. As criminals they can be punished for their actions.

In war there is an attempt to minimize the death, destruction and suffering involved. The most important part of this is the recognition of classes of protected persons. These are groups that one seeks to avoid harming. Civilians, prisoners of war, wounded enemies and so on. Terrorists do not recognize these protections and deliberately target these groups. They treat a whole society of large sections of it as if they were combatants when they are not. Many would call such criticisms of terrorist behavior as hypocritical citing the harm regular combatants cause through collateral damage. The point is that the attempt is made to make distinctions in combat and reduce the harm done. If this is hypocrisy then hypocrisy is necessary. Better partial success and minimizing harm than not making the attempt at all.

Terrorists do not have the immunity from punishment of enemy combatants or their claim to quarter. The U. S government has quite rightly classified them as illegal combatants. They do not have people that they are accountable to. They do not identify themselves as combatants. They do not seek to avoid harming protected persons, in fact they seek the opposite.
As illegal combatants they can be summarily executed if captured on the battlefield. Many of them have committed war crimes and can be punished as war criminals. But is it right to kill them if they have been taken prisoner? Many of the same objections apply as do to domestic criminals.

In addition many of them are death cultists. They want martyrdom. They will die feeling glorified and justified. The ritual of execution gives them a platform. Death is not effective as a punishment. In fact it can play into their hands. They are punished better by letting them rot in isolation.

If the time of the execution of terrorists is announced in advance you give them a focus for hostage taking and other attacks. If you are going to kill them announce it after you have done so.

What will do more damage to terrorist morale, killing their leaders or imprisoning them out of contact with the rest of the world? I suspect the latter but I could be wrong. If killing Bin Laden will do more damage to his cause than imprisonment in durance vile then kill him. Just don't make a production of it. Take him out, shoot him then feed him to the pigs.

Organized crime does have the power to harm the criminal justice system. I do not think however that killing imprisoned criminal leader will do any good that could not be done in other ways.