Death rows

Strangeways prison, site of one of the last executions in Britain. Image: Gene Hunt

I would much rather be on your side of the argument about capital punishment. I know that my position is more easily despised than countered. Your allies are people I admire-Arthur Koestler and George Orwell. My allies are people such as the late Geoffrey Dickens MP. I would prefer not to have to defend the dark rituals of execution, especially since I have witnessed them at first hand. However, those who wish to say anything serious about government and law must be ready to argue for difficult things.

The seeds of my argument-which I describe as a liberal case for the death penalty-are contained in the original campaign for its abolition. This was a humane struggle, designed to reduce cruelty and avoid irreversible miscarriages of justice. These are laudable objectives which I also seek. I just happen to think that capital punishment is a better way of achieving them.

I accept that there are no certainties in this debate and that the truth about the moral decay of our country is more complicated than any numbers could possibly show. I suspect that there has been a spiral of cause and effect which began -long before abolition-with a general loss of nerve by the British governing class. The restoration of capital punishment would not merely be a practical and moral good, but a symbolic end to that spiral.

My main argument is this: if you abolish the death penalty, you do not merely sweep something away, you alter the nature of the penal system so powerfully that several things arise to replace the demolished gallows.

I do not think that direct deterrence of murder is an important part of this discussion, even though it is hard to believe that hanging had no deterrent effect at all. The murder rate in 1946 is impossible to imagine today. But many other things have changed since then (like divorce). I would not go any further than to say that the partial abandonment of hanging in 1957, and its final abolition in 1965, helped accelerate a general change in the moral atmosphere and contributed to the slight but definite increase in murder.

But there is a more important area of deterrence which is seldom discussed. The death penalty was not only designed to discourage murder itself. It was also seen as a defence against the growth of armed crime, especially in the 1957 Homicide Act which severely limited the use of the death penalty. The Act recognised that weapons were a purely practical matter for most criminals. The best example of this is the great train robbery of 1963, in which firearms were not used, and the well organised escape of several of the robbers two years later, when their confederates were heavily armed. The train robbers and their friends did not undergo a sudden ethical collapse during this period. They simply took a rational decision, based on the prevailing law. At the time of the robbery, under the 1957 Act, murder in pursuit of a robbery, or the killing of police or prison officers, were among the few remaining capital offences. At the time of the escape, hanging had been effectively abolished.

Many other criminals made the same adjustment. Even the inadequate statistics on armed crime kept by the Home Office reveal a rapid growth in the number of criminals carrying guns. This in turn has helped to bring about an increase in the number of weapons issued to the police. Abolition has thus led to the creation of an armed police by stealth-a major retreat for our civilisation, undertaken without legislation, in a very short time. Armed criminals, or suspects who are assumed to be armed, increasingly confront armed policemen. Individual policemen are called upon to take lonely decisions about if and when to shoot. In these circumstances, there is no due process, no jury, and no reprieve if the wrong man dies. This brings us to wrongful execution, which you will no doubt cite with an air of triumphant finality.

With best wishes,
Peter Hitchens

Dear Peter
20th November 1996

Your letter took me by surprise. I had expected you to be arguing from moral absolutes; about the impossibility of earthly redemption for those who commit murder. Your liberal case for the death penalty is novel. But it is derived from a kind of debased utilitarianism whose ends (fewer armed robberies) do not remotely justify the means.

I cannot accept your premise that there are no certainties in this debate. On the contrary, there are at least two. The first is that execution, by whatever means, is final. It cannot be undone. The second is that no system of justice can ever be free from error. Michael Bowers, the attorney general of Georgia and an enthusiast for the death penalty, told me recently he accepted that any US state with capital punishment will sometimes kill an innocent.

I make this point not in "triumphant finality," but to establish a first, high hurdle which any argument in favour of capital punishment must clear. I do not need to list all the examples of wrongfully convicted British murderers of recent years. If we had killed them, I cannot see how, as you suggest, our society would be more civilised.

You argue that abolishing the death penalty had profound effects throughout the legal system and beyond; even that it was tied up with a "general loss of nerve by the British governing class." This does not stand up to examination. There are, no doubt, many reasons for Britain's long withdrawing 20th century roar; abolishing the death penalty is not one of them. Britain's per capita homicide rate soared in the late 19th century-in 1850, it was roughly what it is today, at 13 killings per 1m people, but the period of greatest self-confidence for our governing class, 1870-1900, saw this proportion almost double. Then the rate declined steadily until the early 1950s, when it crept up again. It has remained on a remarkably flat plateau for the last 20 years.

The worst affected US cities experience homicide rates besides which our own seem negligible: compare the 700 murders in Britain (population 58m) last year with the 525 in central Atlanta (population 600,000). And where are there more murders in the US? Precisely in the states where the death penalty is applied most keenly. Some deterrent.

I accept your view that the criminals who sprang the train robbers from prison were acting rationally when they decided to carry guns. But I do not think this had much to do with the abolition of capital punishment. The main difference between the unarmed robbery and the escape was that, on the earlier occasion, the gang faced an unarmed driver. Later they knew they had to confront the full apparatus of a maximum security prison.

It is true that today there are more guns in circulation, but most of the increase in armed crime has taken place since 1980-long after the end of hanging. However, the number of weapons issued to police has actually fallen: there were many more armed police officers in 1983, when the Met shot Stephen Waldorf by mistake. That one incident led to a reappraisal of policy and the confining of gun carrying to specialist trained units. We are still a long way from routine armed patrols. The place where officers regularly take those lonely decisions about when and if to open fire is the US-capital punishment has not done much to encourage community policing there.

Best wishes,
David Rose

Dear David
25th November 1996

Perhaps my argument is too utilitarian, but you greatly understate my aim. I hope to prevent the outbreak of a war of all against all, which I fear is only a few decades away. Similarly, you misunderstand the importance of the Victorians. They civilised a barbarous society, and their efforts came to fruition in the middle of this century, not in their own times. We are now frittering away the legacy of social peace which they left us.

Of course execution is final. But being shot dead by a policeman is just as irreversible. If you are concerned about errors, then you should be worried about this. For your assertions about armed crime are simply wrong. Such crime began to increase well before 1980. Offences in which guns were actually used (though rarely fired) stood at 552 a year in 1961. By 1971, they had reached 1,734, by 1981, 8,067, by 1991, 12,129 (Home Office figures for England and Wales).

Your point about armed police is also misleading. While I accept that a smaller proportion of the police may now be qualified to carry guns, they are strapping them on more frequently. Official figures underestimate this because of a curious change in reporting methods. Until 1983, the Home Office recorded the number of occasions on which individual firearms were issued. On this calculation, the police use of guns rose more than sevenfold, from 1,072 times in 1970 to 7,952 in 1982. But from then on, officials started recording the number of operations when guns were issued, which means that if, say, seven officers carried weapons it would only count once in the records, where previously it would have counted seven times. Yet even post-1984 figures for such operations show the number more than doubling from 2,667 in 1984 to 5,843 in 1994.

Of course we are nowhere near the tragedy of the great cities of the US yet. But it is wrong to say that the death penalty has been ineffective in reducing murder in that country. It is ineffective because it does not really exist. In a land where 20,000 people are murdered each year, the authorities only execute around 25. A man sentenced to death is more likely to die of old age than to be executed. Almost nothing, meanwhile, is said about the 450 suspects lawfully killed by the police, or the roughly 350 lawfully killed by armed householders, each year. Is this our future? I fear so.

Once police and criminals begin an armed war, wrongful deaths are inevitable. The question is really which sort of wrongful deaths you prefer. Honest governments accept that the burden of leadership may oblige them to bring about the deaths of innocents, arguing that the ends mitigate these deaths even if they do not justify them. But they should at least ensure that such a price is only paid for a worthwhile end. Four people die each year at the hands of convicted homicides who have been released in pursuit of an "enlightened" penal policy. A growing number meet their ends through the actions of mental patients propelled into the community. The transport policies of governments during the last 80 years have also permitted tens of thousands of innocent deaths, in the cause of liberating the motor car. All these are wrongful deaths, inflicted through government action on people whose innocence does not need to be proved by Paul Foot.

This does not mean that I think wrongful execution is trivial, or that I do not support all reasonable measures to prevent it. Developments in forensic science since 1965, especially DNA testing, could much reduce the danger of hanging anyone by mistake. I accept, however, that terrible errors will happen. I just refuse to be paralysed into inaction by the risk. Such counsels of perfection are not required in any other area of government policy.

With best wishes,
Peter

Dear Peter
1st December 1996

You present a formidable argument: but not for the return of capital punishment, rather for the strengthening of gun control. I cannot myself detect this armed war you say you have noticed breaking out in Britain. In 1994, the last year for which figures are available, firearms accounted for 66 homicides in England and Wales. In 1984 the corresponding total was 63. Less than a tenth of all murders in Britain are carried out by shooting, while the overall homicide rate is static. Moreover, the official tables' annual figure of about 12,000 crimes where firearms are reported to be carried-although not fired-exaggerates the extent of serious armed crime. Nearly two thirds of this total each year is accounted for by replica guns and air weapons. Thousands of these offences are not bank robberies but incidents of vandalism by wayward youths, armed with a Webley and a handful of pellets. In the whole of Britain in 1994 there were just 4,492 offences in which there were confirmed sightings of genuine firearms. These guns were fired on 921 occasions, of which nearly half did not result in anyone being hurt. This on an island with getting on for 6m recorded crimes.

Armed crime is a problem; it sometimes leads to wrongful death. But the way to deal with it is not the reintroduction of a barbaric penalty but good policing: vide the recent record of the Metropolitan Police flying squad, which has seen armed robbery in London decline by a third since 1990. The erstwhile blaggers are not swinging from gibbets; they are either in prison or retirement.

There just is not any sign of the tragedy which has engulfed parts of the US, where an African American male has a one in 30 risk his life will end by shooting. Capital punishment has not been effective in reducing the US murder rate because it has nothing to do with its origins: poverty, drugs and, above all, the constitutional right to bear arms. Actually, the pace of executions in the US is picking up: last year there were more than 50, and recent changes to the law will encourage a further acceleration.

I accept that the small number of homicides committed by lifers released on licence are among the worst of murders. But capital punishment would eliminate such killings only if it were applied to all murderers. A more sensible way of reducing these murders would be to change the criteria used for deciding when and if convicted murderers may be freed.

Best wishes,
David

Dear David
4th December 1996

The armed war is only just beginning. If you lived in, say, Liverpool or Manchester, you might have detected it by now. When it becomes so widespread as to affect the middle class suburbs, it will be too late to reverse it. The developments which worry me are not current facts, but trends which, if they continue, could lead to a dismal destination.

I am appalled by your "just 4,492" confirmed sightings of genuine firearms. And how can you talk about gun control? All these weapons are illegal already. The terrible thing about guns in the hands of wrongdoers is the way in which they reduce the rest of us to impotence and force the police to carry firearms themselves. We are now in transition between a gun-free society and one where guns are the standard equipment of the criminal. Once that transition is complete, the number of actual gun homicides will increase, as will police shootings.

My point about armed crime and wrongful death is threefold. First, if you do not discriminate sharply between murder and other crimes, thieves and rapists will tend to kill potential witnesses, since in this age of sentence inflation this will not significantly increase the penalty but will maximise the chance of escaping capture. Second, if your argument against capital punishment is that the state should not kill, then what use is shifting from one sort of state killing (the hangman) to another (the armed constable)? Third, the new method of execution is much more likely to kill the wrong person than the old one was.

Violence can be used for good ends as well as for wicked ones. As an opponent of abortion I am repelled by the lawful killing of innocents, but prepared to tolerate the lawful killing of the guilty. The arguments which I have used to support this case can be reduced to utilitarian mathematics, but only by someone determined to miss the point. As a CS Lewis character replies when told by a tediously materialist child that a star is "just a ball of flaming gas"-"That is what it is made of. It is not what it is."

With best wishes,
Peter

Dear Peter
8th December 1996

Your objection to my use of mathematics just will not do. The fact is, you have elected to base your case for capital punishment on the claim we are approaching a state of near civil war between criminals and the police. I have pointed out that even in Liverpool and Manchester, the statistics do not support your proposition. Indeed, since you have accepted that the death penalty has a considerable downside in the shape of wrongful executions, your argument falls apart unless you can be sure the mathematics stand up. You need to be sure fewer innocents would die were capital punishment restored. As it is, you have retreated to mere assertion. For what it is worth, the last two years have seen a slight reduction in the number of recorded armed crimes. The best method of gun control is good policing. In London, the scourge of Yardie shootings was dealt with by the Met's brilliant Operation Dalehouse, and in Manchester, too, the flurry of armed homicides has been stopped.

You are right to say that we need to discriminate between murder and other crimes. But we already do. The basic sentence tariff for rape is five years, a period subject to normal remission, while the mandatory life sentence for murder nowadays seldom leads to release in less than 14 years. A robber who kills will not be reviewed for release in under 20 years, more than double the normal effective term for a heist when he does not use his gun.

I am baffled by your claim that the death penalty is a mark of civilisation. I know you witnessed the electrocution of Nicholas Ingram. I saw the death chamber in the Louisiana State penitentiary, and spoke with Burl Cain, the prison warden. With tears in his eyes, Cain described his execution of Antonio James earlier this year. After the prisoner had been on the table for 15 minutes, the doctors were still struggling to get the intravenous lines in. Cain said, "I had to ask Antonio to make a fist, to assist his own execution." This is not my idea of civilisation.

Best wishes,
David