Semi-Silence of the Goats

I’ve resisted until now the temptation to blog about the death penalty, because it’s dancing to John Howard’s tune. But I keep thinking about it, so I suppose I’ll just have to write it out of my system. Others have already beaten me to the punch here, here and here (update – and here), and each has worthwhile observations.

There are numerous subsidiary reasons to oppose the death penalty. Its very existence somehow brutalises a society, and killing people hardly seems a good way to teach citizens that killing is wrong. But the main reason is that mistaken convictions are just too frequent for comfort. Unlike life imprisonment, the death penalty once carried out is irrevocable. The Lindy Chamberlain case remains etched in the psyches of long-standing Territorians (mind you quite a few still harbour convoluted conspiracy theories suggesting her guilt despite all evidence to the contrary).

Another Territory-related example of wrongful murder conviction is the case of psychotic multiple thrill killer Andy Albury. A Queensland man was wrongly convicted (on perjured police confessional evidence) of a murder in Mount Isa that Albury later truthfully confessed to committing. The wrongly convicted man spent several years in prison. In about 1990 I was instructed by the man’s Queensland lawyers to obtain a detailed sworn statement from Albury to bolster the case for a pardon or retrial. I spent 3 hours at Berrimah Prison interviewing Albury, who was closely guarded throughout by two very senior detectives.

Albury recounted all the murders he had committed, including the Mount Isa one, in nauseating detail and with evident relish. At one stage he asked me to hold out my arm so he could demonstrate a particular aspect he was explaining. I would have done it too, but one of the detectives leapt between us and held me back. If I’d done as Albury asked, the detective explained, he would have grabbed my arm and snapped it like a twig. It had happened before; it was Albury’s favourite party trick. “Nearly gotcha”, Albury giggled, and began laughing wildly. It was like being in a cell with Hannibal Lechter’s half-witted brother.

But there may be different factors at play in Indonesia. In any country, the incapacitating effect of the death penalty is complete. The recidivism rate for executed murderers is zero. In an advanced western country like Australia, long-term imprisonment (which is the only realistic alternative) is also highly effective in an incapacitating sense. The same isn’t true in Indonesia. For a start, widespread corruption at all levels makes it quite likely that a well-connected terrorist (and Al Qaeda isn’t short of Saudi Arabian money) may eventually be able to engineer an escape. Just look at the recent escape of Jemaah Islamiyah bomb-maker Fathur Rohman al-Ghozi from prison in the Philippines.

There’s also a significant risk that the ongoing imprisonment of prominent Islamic terrorists in Indonesia might provoke a major hostage crisis designed to secure their release.

Lastly, the fear that Indonesia could either become a fundamentalist Islamic state or be destabilised and blown apart into dozens of weak failed states is a very real one. It was graphically underscored for the Indonesian ruling class by the events in East Timor in 1999, and Aceh is also an ongoing reminder. Tensions created by the long-term imprisonment of terrorists viewed as heroes by a significant minority of the population may contribute to social instability to a far greater extent than any short-term martyr effect flowing from execution.

All these factors make the Indonesian perspective on the death penalty look very different than the view from Australia. It’s entirely logically possible to maintain strong opposition to the death penalty in Australia (as I do), while accepting that it might remain appropriate in Indonesia for perfectly proper utilitarian reasons. At the very least it’s the Indonesians’ business not ours.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Gary
2021 years ago

Places such as the EU and Mexico would refuse extradition if the death sentence was applied giving the crims a reason jump on a plain to go beyond the reach of justice. Ortho Id be temped to encourage it saving us money and sleep.

Oh the irony!!!

Paul Watson
Paul Watson
2021 years ago

Ken,

I don’t think that you (nor most of the commentators on Amrozi and the death penalty) are even in the right ball-park. I blogged on this a few days ago, here: http://paulwatson.blogspot.com/2003_08_10_paulwatson_archive.html#106068132377974270

To which I add this: when the US says that Bin Laden is “Wanted Dead or Alive”

Tysen
Tysen
2021 years ago

I guess our legal system is a bit of a compromise. We have human beings giving evidence and we also have them decide guilt. Given humans are imperfect we are implicitly acknowledging and accepting the risk that guilty people go free and that innocent ones will be convicted. The rules of evidence are there to maximise the former and minimise the latter. We only manage the risk, not eliminate it.

The following is a brief list of some of the ways in which our justice system kills innocent people:
*the standard of proof and rules of evidence: we will undoubtedly fail to make the standard in a number of cases and release individuals who will kill
*sentencing: the decision to sentence and parole a convict is left to a human who will undoubtedly release some too early – a proportion of those will kill
*negotiation: if our ultimate penalty is life then we need to offer something less than that in order to induce a killer to give evidence on a co-accused (eg the case with the two Bega schoolgirls). Given we don’t have the death penalty as our ulimate punishment, we will have to let out a killer who might clearly present a risk to society
*the culpability-to-sentence ratio is skewed so that multiple killers are classified as the same as single killers ie once you get life in jail you can’t get any more punishment

Its already been mentioned that a death penalty can kill innocent people also:
*by those escaping justice overseas
*by juries not convicting due to suspicion that accused might receive death penalty (and therefore some who are acquitted as a result may kill again)
*false evidence

There are heaps of cases where our system kills innocent people and perhaps the question should be: which scenario causes the least harm to innocent people? And to people in general: how many guilty people do I want to see released before I increase my risk of being convicted for a crime I didn’t commit (by compromising the standard of proof etc)?

I was certain that having a death penalty would cause more harm than good until recently, but now I’m not sure either way.

adam
2021 years ago

“For a start, widespread corruption at all levels makes it quite likely that a well-connected terrorist (and Al Qaeda isn’t short of Saudi Arabian money) may eventually be able to engineer an escape…There’s also a significant risk that the ongoing imprisonment of prominent Islamic terrorists in Indonesia might provoke a major hostage crisis designed to secure their release.”

yeah, but isn’t this true whether he’s (1) in jail for life or (2) in jail pending an appeal on sentencing issues or (3) in jail pending execution? it’s true that the risk in the case of (1) is greater than the risk in the case of (3), but in all cases escape is still a not insignificant risk, so i just don’t see how this is an argument for the death penalty [unless it’s a death penalty with no due process whatsoever, which i’m pretty sure you’re not advocating].

however, your point about the balkanisation of indonesia is a good one. i’m just not convinced he should metaphorically hang on account of the fact that this might occur.

Ken Parish
Ken Parish
2021 years ago

Paul,

I agree with your “it’s war” observation, and that was part of the purport of my observations about Indonesia. However, I don’t accept that even the war against terrorism would justify re-imposing the death penalty in Australia, even for serious acts of terrorism committed within Australia. I would however strongly support (and even advocate) a sentence of mandatory “life without possibility of release” imprisonment for anyone convicted of active involvement in terrorism. That would serve as effective an incapacitating function as the death penalty while preserving the possibility of reversal of an erroneous conviction.

Tysen,

I don’t really think any of your arguments militate persuasively in favour of re-introducing the death penalty in Australia:
(1) Acquittal – The theoretical fact that some killers may not be convicted and may therefore kill again is simply irrelevant, because that would apply equally even if we had a death penalty – the sentence is irrelevant if conviction doesn’t occur.
(2) Sentencing – The possibility of early and excessively lenient release, followed by killing again, is an argument in favour of longer (and possibly mandatory) terms of imprisonment, but not for the death penalty. The NT has a mandatory non-parole period of 20 years for murder (more in some categories of case). I think it’s a good system.
(3) Negotiation – it is possible to negotiate a manslaughter plea in return for assistance in convicting co-accused. It’s certainly true that this means the co-operative killer will almost certainly one day be released, but I frankly don’t see that there’s a practical alternative. I doubt that holding out the prospect of life without hope of release rather than the death penalty is likely to have too many killers queuing up to shop their mates.
(4) All murderers sentenced the same – this generally isn’t correct in most places in Australia. For example, the NT has mandatory life with a 20 year minimum non-parole period, but longer non-parole periods for multiple and other especially dreadful murders, and a final category of life without hope of release. As I mentioned above, I think it’s a good system and it certainly meets your objection without any need to introduce a death penalty to provide sentence differentiation.

Your final general proposition that we should judge sentencing regimes by the extent to which they minimise harm to innocent people would be sensible if it were possible to achieve. However, much of what you would need to know to make such an evaluation is by its nature simply unknowable. I think it’s much more useful to stick to the realms of the calculable. It’s possible to implement a non-lethal sentencing regime that maximises the incapacitating effect of imprisonment and therefore minimises recidivism. That also preserves the possibility of releasing wrongly convicted innocent people. Given that erroneous convictions are relatively common, and are likely to be even more common in the wake of the public hysteria that a terrorist event would inevitably cause, I still think this is the clincher argument against the death penalty in a stable, non-corrupt country like Australia.

Ken Parish
Ken Parish
2021 years ago

Adam,

It won’t surprise you to learn that you’re correct that I wouldn’t condone death without due process, even in Indonesia. You’re also obviously correct that there remains a real risk, between the dates of apprehension and execution, of either corruptly-engineered escape or a hostage situation aimed at achieving release. Clearly, however, the danger of both is prolonged and hugely increased if prisoners are sentenced to life imprisonment instead of death. Whether one regards the reduction of escape risk as determinative depends on your perspective, and the point of my post was that the perspective is very different for Indonesians for a range of good utilitarian reasons (and you don’t have to be a post-modern cultural relativist to accept the argument).

Tysen
Tysen
2021 years ago

I wasn’t arguing either way – I just thought that I’d mention that I see it as an exercise in minimising harm rather than a statement of principle.

As for (1) I meant that if the standard were lower then more guilty people (as well as innocent people) would be convicted and therefore no longer free to cause harm – the choice of standard therefore will inevitably cause a number of deaths (but prevent them also – prison bashings for eg). It was just a point demonstrating that we are prepared to see innocent people die and that that alone can’t be a justification. I wasnt suggesting that you were saying otherwise. Same for (2).

As for (3) I wasn’t saying that the alternative was to have a death penalty, I was acknowledging that deaths eventually occur. These deaths might be prevented by having a death penalty but I didn’t then conclude that it justifies that approach. It just adds another element to the picture and will be accounted for in any honest assessment. Just because the good outweighs the bad doesn’t mean we should avoid acknowledging the bad when we assess the validity of a given policy.

As you’ve said many times, its best to acknowledge the factors for and against a policy and to then openly and transparently assess them and that all I was doing.

(and its a small point, but for (4) what I meant was that if you already in the realm of ‘life without parole’ then there just might be a disinctive (I’m not saying there always or often will) to kill more because of the knowledge that you will get yourself into ‘death penalty’ territory. An I’m not suggesting that all murderers think that way, but its another point to add to the assessment).

As for things not being calculable, I’m not sure any of the rules of evidence have ever been tested scientifically but it’s still sensible to have them. Our overall assessment of the death penalty would carry the same precision as almost every aspect of the justice system.

Herbert Thornton
Herbert Thornton
2021 years ago

It’s nice to read these finely honed arguments, & to reflect that we still have the luxury of being able to treat the topic in such a civilized fashion.

But why do we mix up the topic of whether to apply the death penalty to the occasional murderer indigenous to our own society, with the topic of what to do with foreign terrorists?

When it comes to a foreign country attacking us we (or at least most of us) are quite willing to meet out death in order to defend ourselves – that’s why we have an army.