This has been a very interesting debate in that the speeches have reflected a welcome tendency in the Houses of the Oireachtas in relation to the matter of capital punishment. In the very interesting speech which Senator Durcan made on the last occasion that the Seanad met he offered two views. First, he expressed a growing concern about the rise in crime and, secondly, he argued on moral and compassionate grounds that one should evolve towards accepting unconditionally the concept of the sacredness of life. He concluded in favour of the second principle.
The movers of this Bill, which is effectively the reintroduction of a Bill which was previously before the Houses of the Oireachtas, have put before us a draft of the Bill which they say we are welcome to amend. That is welcome also, because the Bill as it now is is far from perfect. For example, to make one immediate point, the substitution of a very long term of imprisonment, say, 40 years for the death penalty is an insufficient advance in my view. The concept of life goes very much further and when the matter is examined it will be shown to have been broadened very much more than the saving of physical life. It is really a notion of the retention of social and psychological existence and fullness and, therefore, excessively long periods of detention in a prison will be seen to be objectionable in principle.
Since I intend to be very brief, may I just reflect on a few points made in the debate on this issue? Most people now no longer use some of what could be called the classical traditional arguments in favour of the death penalty. Perhaps the most primitive of these — and I use this word in a very negative sense — was the justification on the basis of revenge, that is, that the loss of a life required the payment of a life. Related to that, something which survived long after the original revenge principle had disappeared was the ritual of revenge. In other words, the principle that was joined to that revenge was the principle of demonstration. Thus it was that in the earlier archaeology of punishment and destruction of life, for example, public hanging places, execution places were usually located in the centre of towns and cities where crowds could come and witness executions. It was held in such a view that their witnessing provided some kind of social cement that secured a sphere and a kind of collective celebration, if you like, of virtue. In the execution of the ultimate criminal, the ultimate morality of the majority would be celebrated, so to speak. The principle of revenge has not survived even though some of the arguments about the demonstration effect of capital punishment have survived in a more indirect form.
Again, the argument used be put forward that there was an element of retribution in the case for retention or restoration of capital punishment, the idea that, in a sense, the debts that had been incurred should be paid and perhaps one might argue that the relatives of the victim of a cruel crime required that the person who had perpetrated the crime be punished and punished ultimately.
It is to the great credit of humanity that the majority of relatives of victims of heinous crimes when interviewed are more moved by compassion than by revenge or by retribution. Even asked in the most trying circumstances what they would like to happen to the person who committed a particular crime, they usually stop short of wanting to inflict on anybody what has happened to somebody very close to them. I think this is the general view. Most of the old classical arguments are over and today the argument that is offered in relation to capital punishment is a neo-utilitarian argument that more or less concentrates on the deterrent effect of capital punishment.
On the deterrent effect of capital punishment I think there is a great deal of confusion. The deterrent argument goes usually like this: it takes, for example, murder statistics before and after the abolition of capital punishment where it has been completely abolished or almost completely, as is the case in this State. They argue that if there is a rise in the number of murders has this not established a case retrospectively for deterrent. This case is confused for a number of reasons, and it surfaced perhaps most graphically in the recent debate in the House of Commons. Debating the death penalty on the 13 July 1983, as reported in the Parliamentary Debates in the House of Commons, Volume 45, July 13 to 15 1983, a case was made by Sir Edward Gardner in which he argued for the restoration of the death penalty for crimes of terrorism. In the course of doing that he advanced a proposition that was suspect I think or at least could not be demonstrated in fact. That is, does the existence of the death penalty discourage terrorism and the answer is no. One could point, for example, to countries like Turkey. Then Sir Edward Gardner is left asking would the existence of the death penalty lead to a reduction in crimes of terrorism. I think that can be challenged very effectively because I think in many ways no conclusive evidence can be produced.
The person who on that evening argued against him was no less a person than Mr. Edward Heath. I think that perhaps the most cogent argument of the debate in the House of Commons on 13 July was made by Mr. Roy Hattersley. Mr. Roy Hattersley took up this neo-utilitarian question and then he asked, what would it achieve even if we had taken Sir Edward Gardner's thesis as true? What would be the effect on society, taking the neo-utilitarian's argument on its own merits, of justifying in their case the bringing back of capital punishment, to deter crimes of terrorism. If you had accepted all the arguments and they still did not relate to most of the murders which were committed in Britain, you then had something the case for which was not demonstrable, but you had the principle of the taking of life in official circumstances remaining on the Statute Book with the inevitable effects that it would have.
I think that Mr. Hattersley quoted something that was not a matter of opinion but a matter of fact. Of one thing we can be sure, and that is in regard to the people who had their lives taken officially in mistake. You can push this argument to the extreme — I do not — and say would not one such case make in itself a case against capital punishment because of the irreversible nature of such a sanction? Mr. Hattersley does no such thing. Mr. Hattersley quotes a number of cases that are in fact very much greater than the single case. He talks of going through all of the cases that he has examined.
It is far more interesting to reflect on why this debate came back in Britain. It is necessary to take up this question of the relationship of a rising crime rate which involves increasing murders to the presence or absence of the sanction that is capital punishment. I think you can demolish most of the arguments perhaps, without becoming academic at all about the matter, by simply saying that the people who make the case about the rise in the number of murders because of the abolition of the death penalty divorce the rise in the number of murders from the general rise in violence in society and the general rise in the total number of crimes. In other words, it is not a matter of the existence or non-existence of capital punishment: it simply cannot be shown because you cannot separate the kind of murder, if there be one, which would be deterred from the general nature of crime in society.
I want to turn to something that is a matter of principle. Lurking behind the debate on capital punishment and its retention is a debate that is only occasionally addressed — I am not going to develop it this evening: it would not be appropriate — and that is the whole debate on the basic philosophy of punishment. What does punishment achieve? What happens when punishments, for example, that involve the administration of pain are employed? There is very considerable evidence to suggest that the punisher suffers as well as those punished in the psychological relationship that goes on with infliction of pain. I think it is for this reason that most painful sanctions have been removed as part of the advance of society.
One could move on from that and ask what happens a society that retains the concept of the taking of a life in any circumstances. I think that it is one of the good things in this country that there has been in the Legislature something that is frequently ahead of popular feeling, an attempt to move towards the fullest acceptance of that principle, that is that we would abolish capital punishment entirely. Perhaps acting as a brake on that is the fact that those who have come to that position are sometimes less moved by the fundamental philosophical principle about life than they are about what they feel to be the socially acceptable base on which you can remove capital punishment. It is interesting to note how the debate came back in Britain. It came back in an atmosphere of hysterical misconception about crime. Earlier in another debate this year I quoted the Tory attitude to the crime problem in Britain. Frankly, it was felt that their manifesto was a bit soft on crime; they discovered this through the polls and therefore they redrafted the manifesto and added in a few paragraphs that were suitably hard and sent Billy Whitelaw off to make a few speeches more or less of a "round-them-up-and-hang-them" variety and it was felt that this was going to get more votes in the Britain of the day, a Britain more fearful than anything else. When one goes through this volume of the House of Commons, you find people making statements about the connection between capital punishment and the crime rate that are really never justified. I do not believe evidence can be offered in this regard.
What is the effect on society of the total retention of the death penalty, the partial abolition of the death penalty or the total abolition of the death penalty? I am totally in favour of the third option. Society is celebrating life when it has finally said that it will abolish the death penalty. I know the arguments that will be offered in relation to this last remaining source of justification for the death penalty are of two kinds: that a certain kind of criminal will be deterred by the death penalty — that is not demonstrable — and that a certain kind of victim needs to be protected by the death penalty — this is not effective. On 15 October 1981 the Minister for Justice of the day quoted the 1966Journal of Criminology of Australia and New Zealand in the Seanad debates, Volumes 96 and 97 in which it was stated:
Brutal punishments accustom people to brutality and tend to create attitudes conducive to the commission of violent crime.
I agree. The philosophical principle on which capital punishment is built as a deterrent presumes through fear you can encourage people to respect life. The alternative principle is that by removing the destruction of life, even in the name of the State, you move to a position when the State affirms the absolute right to life and in doing so moves on to sustain this view and encourage it in the population and create a respect for social values and so forth. It is a very significant stage in a society when it finally comes to accept that principle.
I need not spend too much time on the old arguments that were made as to the distinction between capital and other forms of punishment, the idea that the ultimate crime required an ultimate sanction, as if we were talking about life on some kind of scale. Neither am I interested in the argument — I think it is a partially valid one — about making a mistake. We have all read horrific accounts of innocent people who were executed, who cannot be brought back to life. I do not base my case on that.
I base it on the simple fact that in the end of the day we are left with only one kind of argument propping up the retention of capital punishment in any circumstances, that is, the notion of capital punishment being some form of deterrent. That argument has been proved to be bankrupt. The rise in crime, in violence and in killing is a separate matter from the effect on society of the continuation of capital punishment for any reason.
I have said, perhaps to the point of boredom, that the unlimited good effects of the abolition of capital punishment are very demonstrable and appreciable.
Another subtle argument was advanced in a recent debate in Britain, that perhaps the price you have to pay, of another kind, for the abolition of capital punishment will be too high. The argument is being made that if you have a police force that is unarmed and if you abolish the death penalty and policemen are killed are you then not moving towards paying the price of having an unarmed police force? This is based on a misconception as to the nature of the rise in crime and the rise in violent crime. It behoves those who advance this argument to prove their case. However, we have to try to move into an atmosphere in which our philosophy of punishment is one in which we can criticise principles, if we have been moving away from revenge, away from retribution, moving through the muddy waters as to what deters and what does not deter.
We have been paying lip service to the idea of rehabilitation. There is evidence in our Department of Justice of the acceptance of the principle of rehabilitation as a guide in penal philosophy and in policy in relation to criminal matters. That is a good development. Rehabilitation is based on that positive attitude that you can encourage people to develop a social sense and encourage people to change. It is a wise and welcome development. What we are left with is interesting.
One can gather together the books written on this subject over the years when it was debated in Britain and elsewhere, for example, James Kristoff's book, Capital Punishment in British Politics, or A History of the British Movement to Abolish the Death Penalty from 1945-57, published by Allen and Unwin in 1962. That volume shows all the old arguments being disposed of. Reading an account of the debate in Britain I felt that old fossils were coming out again. What had called them out? It was an ill-informed view of crime, an abuse of power and privilege to whip up fear, and where real fear existed it was fanned into alarm. The whole nature of crime had been exaggerated and a moral panic had been created in a community.
Out of history came these ancient arguments, "Let us reach back for the ultimate sanction. Show them the rope: That will deter them". People from the Tory benches began to say, "Hear, hear". It is to the great credit of the British Houses of Parliament that some distinguished people in the Conservative Party, including former Prime Minister, Edward Heath, and many people in the Labour Party and most of the Liberal Party stood up and opposed this kind of reintroduced savagery. The way in which public opinion had been used and manipulated to demand a debate twice in five years on the restoration of capital punishment was interesting.
We say many negative things about our society and it is to our credit that most public opinion has stopped short of this. Nobody but the odd crank has made the statement, "bring back the rope", and so on. Such people want to have a symbol of death to sustain their society; they want to take a negative view of society and a compliance and respect for law. Think of the imagery that surrounded hanging — the black cap, "May the Lord have mercy on your soul", and so on. People would pray at the last minute, at the moment of the departure of the individual life. That punishment was a blackness, a blight on our civilisation.
I am glad this Bill has been re-introduced. I am equally glad that there have been so many speeches so far in its favour. It would be wrong to create an impression that there was a lethargy on the part of the parties in Government in taking this final step, the abolition of the death penalty, within the Joint Programme for Government. It was there because forward looking people saw that we needed to have a better view of punishment, of rehabilitation, of the encouragement and establishment of social values and so forth. I look forward to the day when we will have finally abolished capital punishment.
I will conclude by addressing my remarks to any of my fellow Senators who might want to argue that times have changed, that society is breaking down, that violent crimes are increasing, that murders are increasing and so forth. They would be disposing of matters of principle. They are no longer dealing with the issue of whether it is right in the name of the State to take a life. They are making that conditional and are saying that social conditions justify the taking of life, in certain circumstances admittedly, for given reasons.
They have an enormous burden of proof for a start. Will they offer us evidence of the deterrent effect of what they are going to suggest? Will they do something else? Will they tell us that they are willing to wear the effects of turning back the forward movement, that is, the total abolition of the death penalty? These are questions they must answer. If they do not answer these questions they are left with a statement that might be made. Maybe some of them are going down the road of the Tory Party, taking refuge in the inflamed fears of those threatened already by crime. I hope there is none — I am speaking entirely in the abstract. I am moving the debate from one island to another perhaps too much. I have heard politicians make the case that out of public fear one can construct a political principle. I think it is a matter of the utmost principle, a matter that cannot be mitigated by any of these fears, real or imaginary, that we should finally abolish the death penalty.
As Chairman of the Labour Party I say that as far as the Labour Party are concerned all of my predecessors felt for several decades since our party was founded in 1912, going back over our annual conferences, going back over the records, favoured total abolition of the death penalty. The Labour Party like many other parties contained working people and people harassed by many of the vicissitudes of life. They were victims of crime and many of them participated in the different penal systems here. I would urge that when we abolish the death penalty by passing this Bill we will accept that we are doing so out of principle.
I notice that the draft contained a foolish mistake of assuming that we need a totally unreasonable period of incarceration to balance the abolition of capital punishment. It is not a logical position. If out of principle capital punishment is abolished totally how can one move over and immediately say, "Then we need to create a deterrent of equal magnitude, and that deterrent will be the loss of liberty for most or perhaps nearly all of one's remaining life"?
That would not be a sufficient advance. It would be an enormous regression. We must realise in principle that the final abolition of the death penalty will be accepting a position in the debate as to the philosophy of punishment, the philosophy of crime, what will be acquired as the acceptance of a new approach. I have said that the evidence is already there, that we have accepted most of the arguments of rehabilitation. It is on the best of ourselves we must build. It has taken us all this time to abolish capital punishment as it took the administration in the neighbouring island, from Wilberforce on, all of the time to abolish slavery.
The abolition of the cruelty of extraordinary long prison sentences is beginning to happen as well, because we are beginning to accept there is a need for that. I suggest that we examine the nature of our society on the basis of our fear. My views are not based on any kind of abstracted academicism. I believe that in matters medical we should look for proof. In matters social like that of crime and punishment anyone who has reservations about the total abolition of capital punishment has an enormous burden of proof on him. I would suspect that even if they could make convincing arguments, those convincing arguments cannot defeat the principle that it will be a good day when the Minister for Justice presides over the sending of a Bill to the President for signature that will celebrate life and remove finally the notion that the State can participate in the ending of a human life.
