The President and Capital Punishment

Waiting for premeditated legal murder

Is the European Union (EU) some kind of arbitration body that is positioned above the Sri Lankan Parliament, its Executive President and the Supreme Court?  The question has to be asked in view of a report claiming that ‘the EU opposes Sri Lanka resuming judicial executions under any circumstances’.

Apparently the EU has told successive governments that it is opposed to the resumption of judicial executions and has consistently asked for the extension of the moratorium on capital punishment.  

The news value of this telling obtains from a recent statement made by President Maithripala Sirisena that those found guilt of drug trafficking should be dealt with the death penalty.  It is a sentiment that his predecessor Mahinda Rajapaksa has shared.  Rajapaksa is on record saying ‘there are times for example in the case of drug related crimes that I feel we should implement the death sentence’.  

Countries have cultures.  Countries have laws.  Countries have preferences.  The EU is fine with a lot of things that many people abhor.  The EU has consistently played approver of all manner of crimes against humanity perpetrated by the United States of America, for example.  If Sri Lanka (or any other country) ‘urged’ the EU to stop acting tail to the USA dog, will it listen?  No.  The statement is an insult to Sri Lanka’s sovereignty.  The President could (if he shows a lot more guts than he has so far) do what Robert Mugabe once did to Tony Blair, viz ‘You look after your country Blair, I will look after mine’.

Once he does that, however, he can return to the question of capital punishment.  He can ask himself whether capital punishment has any justification.  He can reflect on the moments when the cry for capital punishment is loudest and ask himself why.

Each time someone calls for the implementation of the death penalty or the lifting on what has in effect become a moratorium on capital punishment it has followed some gruesome crime.  The killing of a judge for example prompted the Bar Association to call for the resumption of premeditated legal murder (which is what the death penalty is).  Rape and murder of a child, similarly, results in similar calls.  Drug related crimes and terrorist attacks also see advocates of capital punishment becoming more vocal than usual.  What’s all that if not a deference to emotion rather than reason?  Surely something as serious and irrevocable as the death penalty should be free from ‘passion’, in either advocacy or objection?  

Let Maithripala Sirisena read Albert Camus’ ‘Reflections on the Guillotine’.  That was a text that prompted France to do away with the death penalty. Forget France, forget Camus.  The President can ask himself some questions. He can reflect deeply.  He can come up with some answers.  We can ask the questions from ourselves too. We can also answer.  

Does the punishment fit the crime, ever?  No. Is it a deterrent?  No.  If it is a matter of ensuring that society is protected from the wrongdoer, are there other options? Yes, imprisonment.  In the case of an error in judgment can it be revoked and the wrongly judged suitably compensated? No. 

President Sirisena cannot, like some of Sri Lanka’s staunchest patriots, object to something simply because it is proposed by an interfering group of countries that have always treated countries like Sri Lanka as subordinate entities. So the President should tell the EU where to get off, not for what is advocated but for the advocacy.  He cannot tell the people of Sri Lanka where to get off, however.  He cannot ask reason to take a break.  He cannot ask morality to retire. 

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My tribe (with other support) set up a murder

Are we hanging ourselves  and are we ok with it if we are? 

Some die young and some live long.  Some die from natural causes, some from unfortunate accidents.  Some are murdered.  Let us consider a hypothetical case of a young girl, who was battered and strangled to death at the age of 19.  Let’s assume this gruesome murder was committed about 10 years ago.  

Let us now assume a different sequence of events.  Let us assume that nine years and 10 months someone decided to incarcerate a young boy.  At first he is not told what his fate would be.  His movements are strictly restricted, that’s all. A year later he is told that he would remain so restricted for the next 12 years and made to do hard labor to boot.  Six years after this decision was conveyed to him, let’s assume he is told that at some point that he would be killed. 

Moreover, he is informed of the manner of killing.  Further restrictions are placed on him.  

How many deaths in the first instance, how many in the second, would anyone care to answer?  What is the weight of premeditation in the first case and what of the second?  If the second was punishment for the perpetration of the first, are we all ok and can we move on because ‘justice has been served’? 

Now let’s move from fiction to fact.  Almost 10 years ago, i.e. in the early hours of July 2, 2005, a young girl was indeed murdered.  Nothing hypothetical about it.  Yvonne Jonsson was battered and strangled to death.  A young man by the name of Shermantha Jahamaha was arrested, tried and convicted.  The account above, of incarceration, is the story of Shermantha Jayamaha.  Nothing hypothetical about it.    

Yvonne Jonsson died young.  It was a tragic death.  A murder.  She did nothing to deserve such a fate.  Something inside her parents, sister, other relatives, friends and loved ones died that day, we can assume.  Those deaths will remain with them.  

Shermantha Jayamaha has not been hanged yet.  And yet, he has been killed many times already.  He was murdered long before the first conviction and long before the second conviction.  He is murdered ‘in absentia’ so to speak on account of denying his the basic single right to appeal his conviction.    His first ‘hangmen’ were those in the media.  We killed that young boy, as a tribe we should acknowledge.  

Consider the following from a reputed English Sunday paper:

‘Sheila Anthony, a domestic aide was the first to see the body of Yvonne. She told the inquest that she found the body in a pool of blood on the 19th floor.

‘“I took the stairs and when I reached the 19th floor I saw a female body that seemed bent into two lying in a pool of blood. It looked like the body of a girl. I got such a shock that I fell and rolled down the staircase all the way down to the 16th floor.”’

The lady would have had to roll down one flight of steps, ‘turn’ at the landing and turn thus several times to end up on the 16th floor.  This, let us remember, is one of the ‘milder’ of the many ‘judgments’ pronounced by the media in the weeks following the murder.  Feel free to extrapolate.  The determination(s) came long before the courts deliberated.  The media wanted him hanged (officially) so they hanged him.  In our eyes, there were no shadows of doubt.  An eye had been extracted and we extracted an eye in return.  We then picked the rest of his corporeality (so to speak) as vultures do.  

When the Court of Appeal announced its sentence, Jayamaha was put on Death Row.  By this time he had written notes that went into three 200-page exercise books.  The law confiscated these.  Small price compared to the ultimate price that the law deems he should pay for crimes the law determined he is guilty of, sure.  

Are we so good and pure that we can judge and deliver justice in the manner we have, one wonders.  If we couldn’t sleep well after that blameless young girl was cruelly snatched from our midst 10 years ago almost to the day, would we sleep better if Shermantha Jayamaha dies his final death at our hands, we have to ask ourselves.  

 We need to ask these things because there is premeditation and there is premeditation.  If the law and justice is about punishment that fits crime, eye-for-an-eye and such, then the premeditation that is associated with the intended legal murder of Jayamaha outweighs whatever premeditation the courts decided was associated with the murder of Yvonne Jonsson.  That much is obvious.  

The argument is old.  It is 58 years old in fact.  Anyone who has read Albert Camus’ excellent essay ‘Reflections on the Guillotine’ would find it hard to approve or defend capital punishment.  The arguments of the death penalty being a deterrent, being moral and righteous, and especially (as related to the above case) being an equal extract for extract perpetrated are systematically and convincingly dismantled by Camus in that essay, first published in the ‘Evergreen Review’ in 1957.  

Let’s dwell a while on premeditation.  No murderer puts his/her victim through the kinds of torture that a condemned person is put through, legally, by the state, Camus argues. He asks, moreover, ‘which murderer tells his/her victim the date and time of death, offers elaboration on the method of execution, and subjects the victim to the torture of being held captive with little chance of the decision being overturned in a confined space? No premeditated murder can match the premeditation that the state imposes on a person, slammed, with the penalty of death.’ 

In this case, however, in addition to the general academic and moral interest in arguments for and against, there is a lot of material that makes for comment on issues of law and justice and moreover the issue of a convict’s right to appeal.  

As things stand Sharmantha Jayamaha is to be hanged for the murder of Yvonne Jonsson on July 1, 2005, barring a presidential pardon.  But that was a later conviction.  He was first found guilt under Section 297 of the Penal Code and convicted for Culpable Homicide not amounting to Murder.  He was sentenced to 12 years rigorous imprisonment together with a fine of Rs 300,000 and a default sentence of 3 years, to run consecutively.   

The Attorney General appealed the determination of the High Court.  The Court of Appeal set aside the High Court conviction and convicted Jahamaha for Murder under Section 296 of the Penal Code.  Jayamaha was sentenced to death.  This was the first time in the history of the Court that an appellant was found guilty of murder and sentenced to death in the Court of Appeal.  

Moves to overturn this decision were rejected by the Supreme Court.  The refusal was based on the ground that ‘there was no point of law of exceptional importance to be considered’.  But then again is the issue only about a point of law?  Does it not include the matter of discovering fact and of interpreting such findings as there could be?   In effect the statutory right of the convicted to appeal conviction by raising issues of both law and fact, as would have been the case if the conviction was in the High Court where the petition could be submitted to the Court of Appeal, was denied.    The unimpeachable right of a single appeal enshrined in Sections 331, 335 and 336 of the Criminal Procedure Code and Section 14 of the Judicature Act appear to have been denied Jayamaha.  

The Indian Constitution, for example provides what the Sri Lankan one does not vide ‘An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of the High Court [Article 134(1)]’ and this covers situations where ‘an appeal reverses an order of acquittal of an accused person and sentenced him to death’.  

Jayamaha, as things stand, will be the first person sentenced to death who did not have the right to even a single appeal of conviction and sentence.  He is condemned to be hanged without any court reviewing the said conviction and sentence.   

Counsel for the convict have made several points pertaining to evidence relevant to this case especially since the conviction was based largely on circumstantial evidence.  Some are pertinent in the establishment or otherwise of evidence.  Some are procedural issues.  

No injuries or any other incriminating factors were found on the Petitioner on examination of the Judicial Medical Officer.  The CID Chief investigating officer’s suspicions regarding the Petitioner had greatly diminished, and so informed his superior. The CID obtained fingerprints of the Petitioner without obtaining an order of the Magistrate and thereafter proceeded to the scene of the crime. The fingerprints were not signed by the person who had obtained them. The label of the fingerprint had slightly rolled up and was replaced by WM Abeyratne. The first statement made by the main witness Caroline Johnson to the police was not available at the trial. Foreign substance- hair found on the dead body of the deceased and was not identified.  Fingerprints observed on the dead body were not revealed in evidence.  The last person to see the deceased alive, Kwan, was not available to give evidence. Time of death not established, since the time of the last meal was not established. Leggings that the deceased was wearing used as ligature for the strangulation apparently, were not examined for DNA. Other two fingerprints found at the scene of the crime not identified or produced.

The Court of Appeal in all its wisdom determined however that the above facts notwithstanding Jayamaha, in the interest of justice, needs to be hanged.  In that premeditated way described above, let us add.  If he is indeed hanged and if greater wisdom descends that suggests for example that capital punishment is morally indefensible or simply that hanging is way out of proportion to the crime that Jayamaha had committed or worse if it was found that he was guilty only of assault, that there was no intention to kill and that it was someone else who had murdered the unfortunate victim, what then?  An aggregation of all sentiments of justice and fair play, the moral need to redress wrong and the constitutional safeguards ensuring this, will still be insufficient to reverse that eventuality.  He would be dead, simply.  

Gandhi said, famously, “an eye for an eye makes the whole world blind”.  He was wrong. The world was and is blind, and that’s why it keeps gouging out eyes and gouging out other eyes to compensation for inflicted/suffered myopia.  This needs to be reiterated until such time that better judgment empowers law makers and law enforcers.  It might be too late for Jayamaha and others.  

Related articles: 
This way to the guillotine ladies and gentlemen, do not be afraid.  

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This way to the guillotine, ladies and gentlemen, do not be shy…

D.M. Samanchandra, A.M. Hemananda and J.Y. Kamalendra were names known only to their near and dear, and perhaps those wronged by them.  They have certain things in common. They are all inmates of Bogambara Prison.  All three are on death row.  All of them have been waiting to be hanged for about 10 years now.  All three managed to get on top of the prison.  All three of them demanded that they be hanged, asap. 

Now it is reported that the sudden death-wish was prompted by failed expectations about an Independence Day pardon that would commute sentence to life imprisonment. That’s another matter.  The issue is death.  Death Sentence. Legal murder.  So let’s start with it.

There was time, sure; a time best not forgotten, a time when death was the name of the imperious knock on your door at midnight, was the wind that would stir the circles of fire that lit the street corner, was the ripple that lapped on the terminated dream that floated down the river, was the scream of silence that mocked the acquiescent intellect, was the first, last and only lesson that was taught in the classroom of youth, was the ink that protested gravity and flew from the newspapers in horror, was the light in a lover's eyes at the hurried parting, and was the memory of a mother with an infant at her breast. It was a wordless certificate that young people carried in their pockets as they stood their ground, shoulder to shoulder, on the picket line, as they went from door to door seeking the mustard seed of human dignity.

I would think that legislative writ is unnecessary in a socio-economic system that has the power to construct policies that nurture malnourishment, drive desperate people to suicide and allows people to kill with impunity. But what exactly was this piece of paper? This is how the late Mr. Baratha Lakshman Premachandra read it some years ago: "That, with a view to building a law-abiding, just, and civilised society, this parliament is of the opinion that steps should be taken to re-implement capital punishment (gallows) which remains ineffective though imposed at present by the court."

There is a lot to say about "justice", "civilisation" and "showing deference to the law". Laws are nothing but mechanisms set in place by people to suit their ends. Thus slavery was once legal. In fact it is still "legal", only it has another name: slave-owners have got smarter and have expanded their vocabulary, that's all. The justice of the law-maker is not always the justice of the citizen. If that was the case, the thugs who forced their way into parliament would have been shown the door out immediately.

Civilisation? Yes, some of that would be good. How about several units of that particular brand of ambrosia for our parliamentary deities first?

One line seemed to have dominated the debate in parliament: "heinous crimes have escalated since the deterrent of hanging was removed". These words have been blurted out more or less verbatim by others who have come out strongly in favour of the death penalty in the newspapers.

How much of the trespasses can be traced to the "compelling" fact of the death penalty not being enforced? After the last legal murder in 1976, did all social factors that can reasonably be assumed to have some impact on the incidence of bloody violence, freeze? (I hasten to add that there are types of violence that are not outwardly bloody, but which nevertheless produce the same horror and the same sorrow for the victims and their loved ones). Did nothing happen in the intervening 24 years other than murderers being condemned to die and then their sentences being softened to life imprisonment and to eventual release?

Surely, the Ukussas, the Kalu Balallu, the Kola Koti, the Yellow Cats, the PRRA and other gangs operated not so much with the comfort of knowing that whatever happens they will not have to hang but with the clear assurance that they will never have to even appear in court? They knew that they had the full power of the executive, the legislature and the judiciary behind them and that any citizen, especially the bereaved, who was foolish enough to complain, could be bought, threatened or, more conveniently, done away with.

Profit had a lot to do with the mad rush to acquire as much territory as possible by whatever means at one's disposal. Hanging onto power, destroying dissent, reducing the democratic space to the dot that is to follow the definitive one-word description of that time, "Bheeshanaya" must have had some impact, surely? The implication of the said motion is that none of these things counted. Clearly the mention of the directive "Examine the root causes!" ought to have generated that critical level of doubt to stop the hang-hang-hang monologue

Let us consider the purported merits of legal murder. It is said that capital punishment will serve as a deterrent. To deter, is to restrain or discourage (from acting or proceeding) by generating fear of the consequences of such actions. Let us talk about frightening people.

I can think of no period in our recent history where sentiments such as fear and terror dominated the psyche of society as during the time-best-not-forgotten alluded to above. To a society which lived through a time when violent death was a possibility between the intake of breath and a resigned sigh, to an individual whose wakeful hours are soggy with the anxious waiting for the next item of bad news proclaiming another one of the many losses he/she has to suffer, to a people who have been encircled by the possibility of falling victim to a bomb, the pain of death dangled above their heads painted with the two words "death" and "penalty" would indeed sound rather mild. Quite apart from the summary dismissal of considering the particular historical setting in which this motion was tabled, there are two things that need to be discussed with respect to the idea that the death penalty deters the potential criminal from executing the horrendous strategy that has captured his/her resolve.

One, the idea that the average murderer, when he/she awakens on the morning of the crime, has already decided on the eventuality of the victim's death. How can capital punishment intimidate a person who, right up to the point of committing the murder, has not decided on the event? In most actions there is a degree of passion. And actions that are particularly violent such as those which cause physical injury or death, are naturally coated with a greater degree of passionate fire.

This is where capital punishment fails to contain the desire to terminate a person's life or the will to injure. Camus agreed with Bacon: "no passion is so weak that it cannot confront and master the fear of death". He points out that vengeance, love, honour, grief, even fear of something else, are all victorious over the fear of death in one circumstance or another. The hired assassin, who can be assumed to be calculating and methodical in his/her trade, is moved by the incentive of remuneration, and I cannot convince myself that the promise of money or other form of payment has no basis in passion.

Why should the freedom fighter who kills an enemy soldier fear the pronouncement of a judge who defends a law which he/she views as oppressive and therefore is not inclined to respect or protect? Why should a jealous husband who feels he has been wronged beyond the capacity of his heart to endure be scared of being sentenced to die when he no longer wants to live?

The murderer fears death only after the judge announces the sentence. Seldom before. In most cases the murderer acquits himself/herself of guilt before the murder is even perpetrated. If it is not possible to verify if potential murderers are made to think twice before they kill someone by the fact that capital punishment is a possibility that he/she might confront at a later date, how can anyone justify it by saying it is an effective deterrent?

There is a second point that needs to be discussed regarding the deterrent argument: appropriate publicity for the legal murder. If it is intended to be an instrument to prevent future murders by striking fear into the hearts of potential murderers, then it is logical that their senses be flooded with the images of the ultimate price they would have to pay for their possible infraction of the law. Instead of the executioner carrying out his/her work in a musty room hidden in the labyrinth of the prison, there should be public executions.

Galle Face Green comes to mind. Or the parliament, where the law-makers can have the satisfaction of witnessing how well they are protecting their constituencies. Everything must be given the widest coverage possible in the media, with experts at hand to offer comments, including the prosecutor who argued for the death penalty, the judge who pronounced the sentence, the Commissioner of Prisons, the jailers who did the rounds, the doctor who has to issue the death certificate, the priest who has to hurry along the terrified victim into the vast unknown, and the executioner who extracts his/her life. All of us are potential murderers, otherwise the deterrent argument doesn't hold. Therefore none of us can plead squeamishness in this matter. That is if we really believe in this deterrent poppycock.

We are left with just one other possible justification. Revenge, or the idea that an eye has to be extracted for the eye that was taken in the first place. Someone who participated in the debate whose name escapes me now, quoting Cicero said: "Let the punishment match the crime". Camus has the apt response: "No crime, however heinous, can equal the meticulously planned butchery that is the death penalty." He makes the pertinent point with respect to the inapplicability of the law of retaliation: "It is as excessive to punish the pyromaniac by setting his house on fire as it is insufficient to punish a thief by deducting from his bank account a sum equivalent to the amount he has stolen".

The worst murders, according to the law, are not those that are perpetrated in self-defense or due to insanity or in the heat of a moment of passion, but those that are planned well in advance. It is then paradoxical that the death penalty outdoes all planned murders by way of premeditation.

For there to be any semblance of justice as in the "eye-for-an-eye" mode, Camus argues, "the murderer being executed should have fore-warned his victim of his/her impending demise, and thereafter keep the victim for a certain period of time, months or years, reflecting on the event from which there is no escape."

Camus asks us to consider a murderer who having fore-warned his victim of the murder several months ahead, arrives, ties him/her up securely, informs that death will occur at such and such an hour, then uses this time to set up the apparatus of death. What criminal, Camus asks, has ever reduced his victim to a condition so desperate, so hopeless and so powerless?

If it is not revenge but protection for the rest of society that is sought, the answer is simple: hold the convicted person in prison where he/she cannot harm the general public.

There is another dimension. The death penalty is not about cleansing society as its advocates proclaim from their moral high horse. It is the setting up of an apparatus that will allow the state to offer such human sacrifices as it deems necessary to protect and strengthen the ruling ideology and its beneficiaries. This is why Socrates was made to consume hemlock, Madduma Bandara had his head severed, Ethel and Julius Rosenberg hanged in the USA, 60,000 people had to die under the operating laws of the land in the late eighties, and probably why Mumia Abu-Jamal, a black radio-journalist in Philadelphia, USA was convicted of murder predominantly white jury and sentenced to die by a white judge known for hanging black people. We all know the story of the Pied Piper.  More recently, September 23, 2011 to be precise, Troy Davis, a US citizen and a black man, wrongfully sentenced over the killing of a police officer in 1989, was executed by way of a lethal injection.

The death penalty stands separate from the entire spectrum of possible punishment for the simple reason that once executed, the facility of revoking the decision dies with the victim. No clemency can be granted. If new facts emerge to prove the innocence of the person punished, it is not going to be possible to get away by apologising profusely, offering compensation and setting the person free. No can resurrect the dead.

Furthermore, to insist that someone is so wicked that he/she should be completely removed from the rest of society forever is to imply that society is fundamentally good and virtuous. Is there anyone among us who can stand up and defend such a claim? No one can keep up the guard every moment of the day. No institution is perfect in the distribution of justice, least of all the capitalist state. Therefore it is absolutely fundamental that we aspire to create some space which allows us to repair what wrong we might do through ignorance and arrogance.

We can only conclude with Camus that once it is legislated definitively to bring to pass the irreparable, all those responsible by raising their hands and all those guilty of being silent, open themselves to suffer the unending accusation of the eyes of endless time. Are we, as individuals and as a society, ready for this? I am not.

 

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Police Commando Camp No 69 issues a statement on legal murder

There was a shooting last Sunday (September 25, 2011).  It occurred within the precincts of the Police Commando Camp No 69 in Maha Oya, Ampara.  The victim was Assistant Superintendent Sisira Kumara.  The gunman, B.A. Jayatilleka was the Chief Inspector of the same camp.  After shooting the ASP, Jayatilleka shot himself and later succumbed to his injuries. 

Got me thinking.

I don’t know what it was all about.  It was reported that there was an argument.  The trigger-puller may have acted on impulse or else had planned to pull trigger right along.  Whether the suicide decision came before he entered the room, during the argument or after committing murder we shall never know.  It is however reasonable to assume that given his rank, Jayatilleka must have had enough sense to figure out the possible fallout of his actions, both in the immediate aftermath or, if it came to that, in the legal procedures that would no doubt have ensued. 

Whether he shot himself out of horror at what he had done or being unable to live through what he must have known would follow we don’t know. My question is simple: if the argument took place in a country where the death penalty is implemented to the last letter of the law (in Sri Lanka this is yet to happen) would the outcome have been different? 

There are lots of factors that come into play. First, the psychological makeup of both victim and assailant has to be considered.  Then there is the what-went-before that fed emotion and thinking to the point of trigger-pulling.  There is also the context, both physical and interactive, pertaining to the incident.  Did these contribute? I am sure they would have, to a greater or lesser degree of course. 

Jayatilleka was a police officer. A senior officer.  It is unlikely that he was unaware of how the law works in such situations.  He would know that the death penalty exists and that even if it wasn’t implemented, that the punishments for transgression would be dire indeed.  He would have not been incapable of figuring out how all this would impact his family. 

My point is that being aware, being informed, being able to analyze enough of the relevant factors to imagine the aftermath-landscape of being and especially its probable contours and boundaries, both for himself and those near and dear to him, did not stop him from squeezing out one or more bullets in Sisira Kumara’s direction.  He aimed to kill and kill he did.  By killing himself thereafter, he was essentially stating that he could not live with what he had done and/or had decided to mete out the punishment he felt he deserved. 

Sisira Kumara didn’t come back to life though.

I draw one lesson: capital punishment does not stop people from committing crimes of passion or spur-of-the-moment murder.  The murderer, typically, absolves himself at the point of transgression.  It is, for him/her a ‘has-to-be-done’ thing.  Consequences are typically erased from the equation and images of an electric chair, a hangman’s noose or a syringe containing lethal substance which if injected would cause death hardly have any impact value on decision. 

Even if there is guilt, the necessity to take life overrides.  If guilt settles in later, as it may have in this instance, it would have arrived too late to save the victim. 

I think it is safe to say that capital punishment does not deter the would-be murderer, as I have been arguing in a series of articles on the subject.  It can have meaning only in terms of penalty exacted for transgression and this I believe is also indefensible (see ‘Legal Murder: the eye-for-an-eye argument’ in the Daily News of September 24, 2011). 

I have no words for those left behind by these twin deaths.  Words, anyway, will not be salve enough to alleviate grief and sense of loss.  My words, here, have been put together to show that the threat of barbarism (capital punishment) does not prevent the barbaric or the barbarian or whatever sanitized terms you might prefer to use on act and actor.  I hope that this tragedy makes for sobriety that goes beyond incident.  

[Courtesy, Daily News, September 28, 2011]

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Legal Murder: does it help lower the crime rate?

One of the common arguments for instituting the death penalty is that it helps keep the crime rate down.  In the mid-nineties when there was a vociferous call for the implementation of the death penalty in Sri Lanka, the advocates of this practice vigorously waved crime statistics pertaining to the period after the last hanging (in 1976, if I remember right). 

They had a point.  The crime rate had indeed shot up after that last legal murder.  On the other hand, to draw a consequent-line from non-execution to rising crime assumes that all other factors that lend to criminality remained constant in the relevant period.  This is wrong. 

The entire eighties was a period of systematic dismantling of democratic structures. The so-called freeing of the economy was heralded by its principal architect, J.R. Jayewardene by the famous verbal license to thieve: ‘let the robber barons come!’  A predilection by the then regime to circumvent the law and ridicule the judiciary cannot be dismissed as irrelevant to the matter at hand.  A horrendous look-askance in July 1983 when ruling party thugs (most affiliated with its trade union) orchestrated attacks on the lives and properties of Tamils and the deliberate cultivation of the underworld also ‘helped’.  

Attacks on students, trade union busting, harassment of the opposition and ill-informed and counter-productive measures unleashed to counter the growing threat of terrorism, all led to the development of a culture of violence, dependency on the coercive aspects of the state apparatus and a readiness on the part of certain disgruntled elements in society to mimic the violence of the perceived oppressor, all contributed. 

Still, it is not possible to determine whether or not the non-implementation of capital punishment added to the crime rate.  The data for notorious and racist criminal justice systems where the death penalty exist, sheds a lot of light.  In the USA, not all states have the death penalty. The crime data across all states does not indicate that capital punishment has contributed to lowering the crime rate. Indeed, the crime rate in states that do not have it are lower than those who do. 

In contrast Saudi Arabia, where crime is responded to with gruesome methods of punishment and where capital punishment is practiced, there is a significantly lower crime rate than in many country which don’t have or have abolished the death penalty.  This is why advocates of capital punishment frequently cite the Saudi Arabian example.  Interestingly, however, it has been found that not all crimes get report or make it official data sets in that country. 

Certain actions, which would be deemed criminal in other countries, do not register in enumerations.  Saudi Arabia is a destination point to workers from other countries who, on account of endemic poverty, subject themselves to conditions such as involuntary servitude, non-receipt of wages, confinement, withholding of passports and movement restriction.  It is also a destination for children trafficked from other Middle Eastern countries. 

The global data, in any event, does not show a positive correlation between capital punishment and crime rate, especially when it comes to violent crimes such as homicide, which I pointed out in an earlier article are passion-crimes where the perpetrator does not ponder over consequences and/or absolves him/herself of moral guilt before committing murder. 

Crime is a problem. Criminality is a problem.  Systems are necessary both to prevent and deter.  Systems need to be re-fashioned to remove the conditions that give rise to crime.  Some claim that poverty breeds criminals, but impoverishment is an inadequate plea for clemency in the event of a crime being committed.  It must be recognized that corporate criminality on the whole produces more loot in terms of volume than petty crimes.  Such criminality is not recognized by the law as infringement and some are forgiven and forgotten due to the nexus between politician and corporate criminal.  The death penalty (being imposed or being non-existent) has no impact in such transgression. 

In societies with huge disparities and horrendous terms of exchange, both produced largely on account of theft of something at some point, it would be naïve to think that use and abuse of laws (essentially set up to perpetuate a system of value extraction) would cease if hanging was reintroduced.  White collar crime is system-insulated and is more often than not politically insured.   Capital punishment has not stopped that kind of crime anywhere in the world.

[Courtesy, Daily News, September 27, 2011] 

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Legal murder: the deterrent argument

The last few days I’ve been commenting on the execution of Troy Davis, a man wrongfully convicted over the murder of a police officer.  In my article for Saturday (September 24, 2011) I discussed the issue of punishment matching crime, the eye-for-an-eye argument.  Today I shall dwell on another justification for capital punishment, that of its deterrent effect.

Obviously encouraging deterrence is not the only justification for punishment in general.  Criminals are incarcerated primarily on the basis of a social contract.  If one cannot abide by the rules, one must re-locate oneself in areas where the rules do not apply.  If such a place does not exist, then the transgressor must be kept away. That’s what jails are for.  The period of incarceration is determined after considering the nature of the transgression.  It is assumed that some appropriate time in the cooler will sober up the individual sufficiently to warrant release. 

Punishment, however, is not only for wrongdoer but for the potential wrongdoer.  This is why we often see warning signs where citizens are informed about the possible consequences of particular transgressions.  In the case of the death penalty, it is assumed that a general understanding that taking a life might cost you your own would make the potential murderer think twice before burying the hatchet for all time, so to speak. 

Is that how it works, though? 

Most murders are crimes of passion, spur-of-the-moment executions.  In such cases where split-second decisions are made to murder someone, the murderer cannot have the time or the inclination to reflect on possible consequences.  Indeed, in some instances, the murderer has already justified the act, especially when murder is committed in a fit of jealousy or out of political conviction, and most importantly is ready to face the death penalty.  The existence of capital punishment, therefore, will not deter such people from committing murder.

In the case of premeditated murder, the transgressor is probably very much aware of what awaits him/her in the event of being caught, charged and found guilty.  Once they’ve decided to act, all they are concerned is about being effective in the execution of plan and in getting away.  They are undeterred. 

There is another aspect that rebels against the deterrent argument: squeamishness.  If the death penalty is a mechanism which serves to deter people from committing murder, then the most logical thing is the lay it all before the public in ways that are so repulsive and are aimed at manufacturing fear.  Put simply, if deterrence is the issue, then public executions are a must.  In the times of vast strides in communications technology, public executions can be complemented by complementary publicity in all media, print and electronic. 

Potential Murderer A, the argument implies, would be less likely to kill Victim P if Convicted Murderer X is hanged at, say, Galle Face Green and the entire proceedings shown live on television and commented on via radio with live video streaming being made available online.  There can also be a before and after, to make sure that the point is driven home.  Newspapers can publish photo essays, along with quotes from the closest family members of the executed.  There could be before, while and after photos, carried without any editing.  If it’s a hanging and the hanged urinated, that too should be captured and passed around (the picture that is).  What his/her face looked like before must be juxtaposed with his/her death face.

The ‘before’ element of the story can include periodical interviews of the convicted, can enumerate on the things that led to that terrible moment and carry quotes from the murderer too.  The people (each and every one of them a potential murderer) must be told what it was like for the prisoner, knowing the date and time of his death as well the method of execution, and what he/she felt about this.    The murderers ‘every moment’ of incarceration must be recorded:  the joys and sorrows, the anxieties and justifications, the fears, the remorse (if any) etc. 

The point is that each and every one of us is a potential murderer.  If we are to stop ourselves and if staying the blow is contingent on being fully conscious about the extremities of the consequences, then the more we know, the better.  We need to know of all the horrors that the man or woman who is to be executed must necessarily suffer from the moment the judge reads out the sentence to the point where he/she is executed.  If we are too squeamish, then we can’t use the deterrent argument when justifying capital punishmet.

There are two things I know for sure: a) the vast majority (all potential murderers, let me repeat) would rather not see an execution and b) the relevant authorities are equally averse to showing.  Thus, over and above the questions regarding capital punishment deterring would-be murderers, most nations that sanction the barbarity seem strangely averse to going the whole hog in using the act to plant deterring seeds in the minds of the general public.  

Deterrence is a nice thought, but is irrelevant to the issue at hand.  At best, it stops with the rhetoric.  

 [Courtesy, Daily News, September 26, 2011]

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Reflections on legal murder: the eye-for-an-eye argument

Troy Davis, a US citizen and a black man, wrongfully sentenced over the killing of a police officer in 1989, was executed by way of a lethal injection yesterday.  ‘Wrongfully’, because the entire case against Troy was based on eyewitness accounts that were horrendously compromised. ‘Wrongfully’, because seven of the nine ‘witnesses’ recanted; some admitting that they were arm-twisted by the police to manufacture their ‘testimonies’.   

Troy is dead.  He was not the first to be legally murdered and will not be the last.  If, as it very likely, he was innocent, then he was not the first innocent person punished for a crime he did not commit.  He probably would not be the last either.   Troy is no more, but before he went, he opened a door.  I intend to walk through it, and hopefully, invite others to accompany me.  This is about the death penalty. Capital punishment.  The practice of extracting an eye as payment for eye-extraction.  This is about making the world safe.  It is about social purification.  It is about deterrence. 

The US ‘justice sytem’ will do as it pleases.  Barack Obama, according to Press Secretary Jay Carney has said that it was not appropriate for the President to weigh in on specific cases like this, which is a state prosecution, although he does a lot more than ‘weigh in’ in the affairs of the world without even a by-your-leave.  Each country has laws and ways of dealing with crimes, punishment included.  Their enactment is the product of histories. Sri Lanka too, has ‘ways’.  Capital punishment is part of these ‘ways’, although it has not been implemented in over a quarter of a century.  More than a decade ago, MP (People’s Alliance) Bharatha Lakshman Premachandra tabled a motion in parliament, demanding that capital punishment be ‘brought back’.  Now I hear that relevant authorities are looking for executioners. 

Troy Davis makes me write.  He makes me revisit Albert Camus’ brilliant and immensely influential essay ‘Reflections on the Guillotine’.  Point by point. Here’s the first: punishment should fit the crime.

So if you rob Rs. 100.00, the state steps in to take back the same amount (plus of course procedural costs incurred) as compensation. Break a house and your house is broken.  Pinch someone and you get pinched back. That kind of thing? 

How about death?  You kill someone and you deserve to die, to get killed.  Well, that theory, if taken to its logical conclusion, should require punishment to duplicate crime.  If you poison someone, they you need to be poisoned in return.  Troy Davis (if he was guilty) ought to have been shot by the same kind of murder weapon, from the same distance at the same time of day and from the same angle. 

Here’s something I wrote on this issue a couple of years ago: Isn’t it true that no murderer puts his/her victim through the kinds of torture that a condemned person is put through, legally, by the state? Which murderer, Albert Camus asks, tells his/her victim the date and time of death, offers elaboration on the method of execution, and subjects the victim to the torture of being held captive with little chance of the decision being overturned in a confined space? No premeditated murder can match the premeditation that the state imposes on a person, slammed, with the penalty of death.

Troy Davis was innocent, I am convinced, or, in the very least, the many question marks pertaining to the procedure add up to enough material to squash the ‘beyond the shadow of doubt’ caveat.  Even if he were guilty, there’s no equivalency in what the victim suffered and what he was made to suffer.  These were words he penned while awaiting his moment of destiny:

Where is the Justice for me? In 1989 I surrendered myself to the police for crimes I knew I was innocent of in an effort to seek justice through the court system in Savannah, Georgia USA. During my imprisonment I have lost more than my freedom, I lost my father and my family has suffered terribly, many times being treated as less than human and even as criminals. In the past I have had lawyers who refused my input, and would not represent me in the manner that I wanted to be represented. I have had witnesses against me threatened into making false statements to seal my death sentence and witnesses who wanted to tell the truth were vilified in court.

For the entire two years I was in jail awaiting trial I wore a handmade cross around my neck, it gave me peace and when a news reporter made a statement in the local news, “Cop-killer wears cross to court,” the cross was immediately taken as if I was unworthy to believe in God or him in me. The only time my family was allowed to enter the courtroom on my behalf was during the sentencing phase where my mother and sister had to beg for my life and the prosecutor simply said, “I was only fit for killing.” Where is the Justice for me, when the courts have refused to allow me relief when multiple witnesses have recanted their testimonies that they lied against me?

He added, ‘Am I to be made an example of to save face? Does anyone care about my family who has been victimized by this death sentence for over 16 years? Does anyone care that my family has the fate of knowing the time and manner by which I may be killed by the state of Georgia?

Take away the racism, inhumanity and flaws that remain uncorrected in the US ‘justice system’, even the guilty are made to suffer far more agonies than what they put their victims through.  But then again, someone might ask, what of the victim, the victim’s loved ones, when and how they obtain closure and other such questions.  The loved ones of the dead police officer have stated ‘relief’ and added ‘finally!’  Understandable.  Still, grief-alleviation is not the business of the state.  Compensation of material kinds can and are extracted from wrongdoer, but not so the relatives can sleep better at night. 

A killer, i.e. a known one, is a threat to society and it is incumbent on the state to protect the citizenry from such threats.  Killing a person who is in no position to harm anyone (assuming jails are break-safe) is not necessary for this.  Killing assumes that correction is impossible and in addition implies that states have some kind of divine eye to assess such things.  Most importantly, execution makes revoking in the event of error being detected impossible. 

We are not living in lawless times when lynching, or collective delivery of justice (or maybe we are!), because facilities such as prisons did not exist or could not be maintained effectively in ways that insulated society from murderers.  Troy Davis was not an exception. Thousands of innocents have been executed.  The families and loved ones of the murdered may or may not have obtained ‘closure’, but those of the victim of premeditated, legal murder would never have found that kind of relief. 

Gandhi said, famously, ‘an eye for an eye makes the whole world blind’.  He was wrong.  The world was and is blind, and that’s why it keeps gouging out eyes and gouging out other eyes to compensation for inflicted/suffered myopia. 

Troy Davis spent 22 years and 30 days awaiting (as it turned out) a day called September 21, 2011.  I don’t know how many times he died during the more than 2 decades spent in jail.  I don’t know in how many ways he died.  I know that he will not die again.  Is this justice?  I really don’t think so, and not because of the massive question mark that hangs over the US judicial system.

[Courtesy, Daily News, September 24, 2011]

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