Thursday, August 04, 2011

As someday it may happen...

as some day it may happen that a victim must be found
I've got a little list; I've got a little list
of society offenders who might well be underground
and who never would be missed; they never would be missed

The BBC reports that "a Conservative MP...believes the death penalty is the proper punishment for certain crimes."

"Mr Turner, who represents the Isle of Wight, said "My instinct is that some crimes are so horrific that the proper punishment is the death penalty....A few people commit acts so evil they are beyond understanding, for example Ian Brady, the Moors murderer; Roy Whiting who abducted and killed eight-year-old Sarah Payne and, more recently, those who tortured and were then responsible for the death of Baby P, Peter Connolly."

There was a time when "Tory MP supports hanging" would not have been News: it was the sort of thing you'd take for granted, like "Labour MP Supports Trades Union" or "Bishop Believes In God". So I suppose we have advanced some distance since the 1980s.

But still, there is something morbidly interesting about the MP's remark.

In the last calendar year, five criminals have been sentenced to the most severe punishment which a civilized country knows how to inflict: to spend the rest of their lives in prison. In England, we call this a "whole life tariff". In America it would be called "life without parole". The "tariff" is the least amount of time which the criminal will have to spend in prison before he can apply to be released. A less heinous murderer might be given a "life sentence" with a "twenty year tariff" -- in American terms, "20 years to life". (My knowledge of the American criminal justice system is based on once having seen an episode of a courtroom drama on Channel 5 while setting the video for something else, so it may not be accurate. My knowledge of the English system is based on Crown Court, and completely reliable.)

Presumably, it is these five individuals -- the ones who got the worst possible punishment under the present system -- who would become eligible for ritual asphyxiation should the Isle of White Terminator get his way. When someone talks about restoring capital punishment, you might expect that they would mean "I think that the ultimate sanction of life imprisonment should be replaced by the even more ultimate sanction of being killed."

But you would expect wrong.

Four out of the five people on the Terminator's shortlist were not sentenced to the ultimate penalty which is available as the law now stands. Roy Whiting, who we can all agree is really not very nice at all, was initially sentence to Life Without Parole by a judge; David Blunket, Home Secretary and Daily Mail fan, changed this to "50 years to Life", and it was further reduced to "40 years to life" on appeal. That's a long time in gaol, but falls short of "forever". The victim's mother thought that the sentence was far to lenient, and said that life should mean life. But it didn't and it doesn't. If Whiting didn't get the worst possible sentence in a system which excludes capital punishment, why on earth imagine that he would be eligible for the death penalty were it to be restored?

"Those who tortured and were responsible for the death of Baby P" were very nearly as nasty; but none of them was sentenced to life without parole. There was a very good reason for this: none of them were convicted of murder. They were convicted of other, lessor charges, like child cruelty and causing or allowing the death of a child in their care. Very serious and horrible, but not as serious and horrible as murder. The child's mother was sentenced to between five years and life in prison; her boyfriend to between twelve years and life in prison; the boyfriend's brother to between three years and life in prison. (*)

So: how is the Terminator's system going to work? Is his plan is to kill all the people who would otherwise have got "whole life tariffs" -- which would amount to 6 hangings so far this year, giving Texas a run for its money. Or his his plan to send people sentenced to "5 years to life", like the mother of Baby P, to our shiny new British death row? Another mad Tory (Phillip Davies) actually goes so far as to say that we should have the death penalty for all murder, in which case we'd be talking about more executions in England than in the whole of the rest of the world put together. (**) Have they actually thought this through? At all?

The Terminator is not completely without a heart. He is quite worried about executing innocent people. (I've never really understood this. If the death penalty is such a good idea, then surely you ought to be perfectly comfortable with a certain amount of collateral damage?)

"Like many people I have concerns about the possibility of wrongful convictions, so perhaps we should consider whether before a death sentence could be passed, a higher standard of evidence would be needed than 'beyond reasonable doubt' which is used to secure a criminal conviction. Some people have suggested that there should be proof 'beyond the shadow of a doubt' before a death sentence could be passed."

But, you utter cretin, that is precisely what "beyond reasonable doubt" means. In civilised countries "probably guilty" and "almost certainly guilty" mean the same thing as "innocent". A witness saw you running from the scene of the crime: but it was dark, and she didn't get a good look at you, so there is a reasonable possibility that she could be mistaken, so even though we think you dunnit -- even though we are pretty sure you did dunnit -- we have to find you "not guilty". "Pretty sure" isn't sure enough to send someone to prison.

How is the Terminator's new system going to work? A witness definitely got a good, long look at you and is 100% certain that the person she saw at the scene of the crime was you: there is no reasonable doubt that you were there. Aha -- but now we have to take into account unreasonable doubt. It's theoretically possible that you have an evil twin that your mother never told you about. And that your evil twin cuts his hair in the same way as you, and has a tattoo in the same place. I am found next to a murdered body with the knife in my hand; thirteen witnesses swear that they saw me stab the victim; and when the police arrive, I say "I'm glad I killed the bastard". Aha, but it's theoretically possible that a Cartesian demon caused all the witnesses to have a clear and distinct hallucination. So I am not guilty beyond a shadow of a doubt. So I walk free. Hooray! 

It's absurd.

I'd be fascinated to know which criminals who are currently languishing in jail Mr Terminator thinks are not guilty beyond a shadow of a doubt, and what he intends to do about it. Or maybe he really thinks that high security prisons are four star holiday camps which innocent people are quite happy to be sent to?

I am not going to waste your time with arguments against capital punishment, any more than I am going to waste your time with arguments against throwing people into ponds and burning them at the stake if they weigh as much as a duck. It's a comically farcical notion: England, a pariah nation, withdrawing from Europe and forming a cosy little thanatos club with Texas and Iran.

But why did the Terminator pick on Ian Brady (criminally insane), Tracey Connolly (not convicted of murder) and Roy Whiting (not given a whole life tariff) for his little list of people he'd like to kill? Why not John Cooper or Andrew Dawson?

So far as I can see, he is arguing, not just for the reintroduction of capital punishment, but for a complete rethink of how we define crime. At present we have an offence -- "killing someone" -- and we have a range of mitigating and aggravating factors which make that offence more or less serious. The Terminator thinks there is a special ontological category of "acts so evil that they are beyond understanding".

So how to we find out who fits into this special category of "evil"? If we wanted to put it nicely, we could say that evil people are the ones who attract a special degree of outrage and horror from the general public. Never mind what the law says about mitgation and aggravation and the definition of murder. Ordinary people are genuinely horrified by what Tracey Connolly did (tortured and killed her own baby, or allowed other people to do so); they are not particularly horrified by what John Cooper did (killed four grown-ups). If the law at present says that Cooper gets a worse punishment than Connolly, then the law is an ass. The law is there to express the emotions of the common people, not some hi-faultin notion of "justice".

If we wanted to put it less nicely, we would say that Sarah Payne, Baby P and the Moors victims are the kinds of  photogenic victim particularly beloved of the tabloid press. The Terminator is simply proposing that we should kill Murdoch and Dacre's favourite pin-up boys for evil. He's making a vaguely argument shaped noise in the hope that his picture will appear alongside that mugshot of Ian Brady in a funny suit, so he can say "Brady. Bad man. Me no like bad man."

Calling it populist bullshit would be unkind to both people and bulls.

And that's very suspicious. Three weeks ago, the News of the World got closed down and the whole world discovered just how filthy the organisation to which Thatcher, Blair, Brown and Cameron paid homage really was. Even in its death throws, the News of the World continued to position itself alongside the Sarah Payne brand. Two weeks ago two filthy tabloids were convicted of contempt of court (and eight had to pay compensation) for -- lets put this quite plainly -- attempting to get a man convicted of a murder which he had had literally nothing to do with. And this week, the lunatic fringe of the Conservative party starts drawing up a list of people they would like to strangle -- people whose only qualification is that they are hate figures of that same tabloid press. It's okay, they seem to be saying. The News of the World may have gone away, the bobbies may be arresting its staff, but we still have faith in its made up world of holy angels and evil monsters.

In the 1950s, we pretended that we had to kill people because it was the only way to stop people from killing people. Hanging was not about revenge we said, oh no, no, no, no, its all about protecting society. Alfred Pierrepoint changed his mind about capital punishment, rather late in the day, precisely because he didn't think it was really doing any good. "I have come to the conclusion that executions solve nothing, and are only an antiquated relic of a primitive desire for revenge," he is supposed to have said. But the Terminator has completely abandoned this utilitarian argument. He doesn't attempt to argue that a neck tie party on the first day of every month will make any difference. We know it won't: he knows it won't. Executions aren't meant to "solve" anything. 

So how does he work out who is in this special category of  "people I want to kill". This is the really scary part. You may remember that, earlier this year, David Cameron "argued" that we should choose one method of counting votes over a different method of counting votes because he had a "gut feeling" that system A was less British than system B. Not maths: not psephology; gut feeling. Similarly the Terminator knows that hanging is the proper punishment for some kinds because his "instinct" tells him that it is.

What does "proper" mean, anyway?  Appropriate? Conforming to acceptable social standards? Fitting? But to say that you think that people who talk in the dinner queue should be given a firm slap on the leg because a firm slap on the leg is the appropriate or fitting punishment for people who talk in the dinner queue tells us absolutely nothing accept that you approve of it. It's not an argument. It's a tautology. We should execute people for the kind of crimes that people should be executed for, because those are the kinds of crimes which people should be executed for. We have to kill people because some people should be killed. It's a bypass. You've got to build bypasses.

Some people, for example, Melanie Phillips and Anders Brevik, believe that a sinister cabal of Cultural Marxists (including the BBC, David Cameron, and Barak Obama) are on the point of bringing down Western Civilisation. Their plot, you will recall, is disguised as Political Correctness. Believers in the conspiracy say that Political Correctness is in direct opposition to something they call Common Sense: indeed, many of them define Political Correctness as "whatever goes against common sense". Common sense; gut feeling; instinct: things that I feel to be true, but cannot at any level, justify or articulate. Faith: not faith in God, or in an ideology, or a party line, or a leader -- faith in whatever happens to be going through your head at a particular moment.

"I did what I felt was right."

It is a strange vortex that we are being sucked into: a phantom zone where argument and logic and cause and effect vanish. Where there is no longer "morality" in the sense of "the codes taught by churches and philosophers". Where there is only the will of the people, schooled Rebekkah Brooks or Piers Morgan. Where we rewrite our judicial system from the ground up, not based on learning or study, or principle, or logic, or evidence or the teachings of some great man, but on common sense. Gut feeling. Instinct. What our genitalia tell us this morning. These are the kind of weird, emotion driven un-men who stalk the back benches of the House of Commons. Pray that they never get within custard pie throwing distance of the cabinet office.

(*) Ian Brady is a complicated and messy example, but also ancient history. He committed his crimes when capital punishment was in force, but was tried and convicted after it had been abolished; had he been tried a few months earlier, he would certainly have been hanged. He technically hasn't been sentenced to life without parole, but has confessed to murders other than the ones he's been convicted of; and in any case he's criminally insane. It's hard to know why anyone can be bothered to say "I think that a man in a lunatic asylum ought to have been hanged 40 years ago".

(**)  I expect he really means "We should kill everyone convicted of murder, but some crimes which are now called murder should stop being called murder." A bit like how "everyone should go to university" turned out to mean "we should start to refer to sixth form colleges, polytechnics, further education colleges and night schools as "universities"