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Saddam hung for nothing

By Mirko Bagaric - posted Tuesday, 2 January 2007


Saddam Hussein was undoubtedly a violent dictator and was directly responsible for killing thousands of innocent people. There are few people in human history who are more deserving of retribution and severe punishment. It is not easy to make a stronger case for capital punishment than in relation to Saddam. Yet even Saddam's hanging was unjustifiable and the world is a slightly worse place because of it.

There are no redeeming aspects to capital punishment. It is always brutal. More importantly, it does not deter crime. The principal reason that over 70 nations still retain the death sentence is because it is assumed that it will send a strong message to other people not to engage in criminal conduct. The supposed crime deterrent effect of capital punishment is meant to enhance community safety.

Common sense suggests that there is merit in this argument. No rational person wants to be executed and hence most people would presumably want to make sure that they don’t commit capital offences.

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But common sense assumptions are often disproved by research. This is why governments and private organisations spend billions of dollars daily undertaking research-based activities.

When it comes to capital punishment common sense again lets us down. Evidence from a large number of countries all over the world now conclusively shows that capital punishment does not reduce crime.
 
Countries with capital punishment do not have lower levels of serious crime and when a country abolishes the death penalty the crime rate does not increase. When the death penalty is introduced by a country the crime rate does not fall. In fact when the death penalty is re-introduced in some cases this has even resulted in an increase in the rate of serious crime.

For example, following the reintroduction of executions in Oklahoma in 1990 there has been "an abrupt and lasting increase in the level of stranger homicides". The reason for this is unclear, but it has been speculated that the increase may be due to weakening of "socially based inhibitions against the use of lethal force to settle disputes".

Further data from the United States (where capital punishment studies have been undertaken most exhaustively) shows that states that execute criminals generally have higher rates of homicide than states that have abolished capital punishment. A recent study by Amnesty International revealed that the homicide rate in US states with the death penalty has been 48 to 101 per cent higher than in states without the death penalty.

Why is this? It is not that people are irrational when they contemplate committing crime. Rather, the evidence shows that to the extent that people make a cost-benefit decision about committing crimes, they generally only weigh up the risk of being caught, not what will happen if they get caught. The best way to reduce crime is to increase the perception in people's minds that they will get caught if they break the law. The size of the penalty does not impact on this decision.

Nevertheless, the predominant consideration in setting criminal penalties is the principle of proportionality. This prescribes that the pain inflicted by the punishment should be commensurate with the harm caused by the offence. More acutely it means that the harshest forms of punishment must be reserved for the most heinous offences.

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The proportionality thesis provides the strongest possible justification for maintaining capital punishment in the case of heinous offences. It is supplemented by new research showing that the human condition is such that we actually enjoy punishing wrongdoers. A study published in a recent edition of Science shows that the part of the brain associated with enjoyment (the dorsal striatum) is activated when we impose a penalty on a wrongdoer even where there are no benefits stemming from the punishment.

However, the study also showed that we are not slaves to our dorsal striatum. Another part of the brain, the prefrontal cortex, is activated when subjects need to weigh the satisfaction derived from punishment against the cost of punishing. The results show that if we are informed that the price of punishment is too high this "kicks in" to save us from our unrestrained emotion.

Thus, the urge to exact harsh punishment on wrongdoers is not overwhelming. We can restrain it. We need to do so. The proportionality principle, while persuasive, must ultimately yield to the most cardinal moral norm which commands that we must always act in a manner that will maximise human flourishing, where each agent's interests counts equally.

The pain that capital punishment causes to criminals is not outweighed by wider benefits to the community (in the form of crime reduction) and hence the practice is always immoral, even in relation to Saddam.

Some readers will want to know how this position reconciles with my views that torture is morally permissible if it is the only way to avert a moral catastrophe. Torture is only justifiable where it is the last hope for saving innocent lives. Legitimate torture has a compassionate foundation and will save lives and thereby enhance human flourishing. It seems capital punishment can never do this.

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About the Author

Mirko Bagaric, BA LLB(Hons) LLM PhD (Monash), is a Croatian born Australian based author and lawyer who writes on law and moral and political philosophy. He is the author of 20 books and over 100 refereed scholarly articles. He is not connected with any political party or other interest group. He is the author of Australian Human Rights Law (forthcoming). Mirko is the author of Being Happy and Dealing with Moral Dilemmas.

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