Eric Heinze, Professor of Law and Humanities in the School of Law at Queen Mary University of London, has written for 'The Conversation' on why the death penalty is incompatible with democracy.
In the Athens of 399BC, a public assembly voted to put one of the city’s outstanding citizens to death: Socrates, one of the fathers of western philosophy. They convicted Socrates on trumped-up political charges, yet he accepted this sentence because it was democratically adopted by a majority of his fellow citizens.
Today’s democracies were designed precisely to avoid such miscarriages. Although many of them still imposed the death penalty until relatively recently, modern constitutions included special judicial protections for these criminal defendants. The aim was to avoid an Athenian-style death by majority rule, and in the third decade of the 21st century, the argument of the abolition of the death penalty has widely triumphed.
Yet one of the horrors with which we begin the year 2024 is the death of Kenneth Eugene Smith. Smith was executed on the evening of January 25, more than three decades after he was convicted for murder, by the US state of Alabama at the William C Holman Correctional Facility, using the untested method of nitrogen asphyxiation.
Smith’s case has spurred renewed interest, because many experts have complained that this method of execution, which even US veterinarians are discouraged from administering to pets as euthanasia, would result in a “painful and humiliating death”. Even worse, this was the second time Smith had entered a death chamber, after an attempt to execute him by lethal injection, lasting several hours, failed in November 2022.
Of course, Smith was no Socrates. He was a hired gun for a sordid Alabama preacher who wanted to get rid of his wife and paid Smith US$1,000 (£787) to do the job. But the reason Socrates’ death sentence was intolerable was not because it was inflicted on a philosopher. It was wrong because democratic Athens inflicted capital punishment on a fellow citizen.
Of the countless arguments long rehearsed for and against the death penalty, one of the most common in the US is that the majority rules. Right or wrong, if the majority of citizens in a given state agree with the capital punishment then so must it be. To be fair, about half of US states have abolished capital punishment, and most of the remaining ones have refrained from executions for a long time. Moreover, majorities favouring capital punishment in the US have slimmed.
Yet I am talking about principles, not about numbers. It was precisely the fate of people like Socrates which motivated the framers of modern democratic constitutions to remove certain laws and procedures from the democratic process when there was a risk of majorities oppressing lone individuals. Yet what distinguishes modern democracies is the view that rights – not only majorities but also minorities, sometimes even a minority of one – must be respected.
The reasons are not always made as clear as they ought to be. In the case of the death penalty, it is often thought that most democracies abolished it on purely humanitarian grounds: “bleeding-heart liberalism”, as advocates of capital punishment often like to call it.
Advocates of the death penalty, including the Enlightenment philosopher Immanuel Kant, insist that we forfeit our right to life when we wrongly take someone else’s. Though Kant added that the punishment must be carried out free from “any mistreatment that could make the humanity in the person suffering it into something abominable”. Opponents respond that human institutions are fallible even where evidence of guilt seems incontrovertible. The state must never have the right to play God.
Notice that these types of general ethical debates could apply to any number of societies where they still apply the death penalty, including Russia, Iran, or Saudi Arabia. But do democracies require more than these types of general ethical arguments?
Citizenship is not merely a product of democracy, taking the form of birth certificates and passports. Citizenship is a precondition for democracy.
A democracy must involve a self-governing citizenry. So its laws have no validity unless all citizens have had the opportunity to participate in the formation of public opinion. This should hold regardless of whether people avail themselves of that opportunity via the ballot box or referendums.
Therefore in a proper democracy, no citizens can have the right wholly to deprive any other citizen of those opportunities, not even by majority decision. And when we put a fellow citizen to death – however hideous this person may otherwise be – we commit this violation. There are many things a democracy can legitimately do by majority vote, but not disenfranchise another citizen – which the death penalty obviously does.
My concern is not merely that capital punishment violates a given person but that it violates democracy itself. So this is the crucial point: I’m not arguing for the value of benevolence, or the values of civilisation, or the values of compassion. I fully concede that some people may merit little benevolence, may have little place in civilisation and deserve little compassion. In a word, my appeal here is not about charity or woolly sentiment.
Even the weakest and most undeserving voice, murmuring from a prison cell in Alabama – and even if that voice has no interesting contribution to make – is still the voice of a citizen in a democracy. This is why deprivations of freedom remain a legitimate punishment, but not deprivations of life.
Once we accept that we live in a democracy, what we must never accept are norms or practices that would undermine the very conditions by which it exists as a democracy.
This article first appeared in 'The Conversation' on 26 January 2024.
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