When a society has only recently ceased hanging people pell-mell for minor offences, when the memory of "rows of human beings ... suspended in front of Newgate" is still fresh in the collective mind, that even the most humanitarian of utilitarian thinkers should find the idea of defending "the extreme penalty" for aggravated murder a not unreasonable enterprise is hardly surprising. Unfettered great evil makes limited great evil palatable.
"When there has been brought home to any one, by conclusive evidence, the greatest crime known to the law..."
For Mr. Mill, the "greatest crime known to the law" is aggravated murder. In different cultures and at different times, however, the idea of precisely what the greatest crime is has differed. As a consequence of our recent history, we in the West now consider genocide and other crimes against humanity as the "greatest crime". Not so long ago it was treason. And in some places even today blasphemy holds that place.
By limiting the application of capital punishment to the "greatest crime known to the law", Mr. Mill in fact sets no limits whatsoever.
Who brings this "conclusive evidence? The dilligent men and women of the Illinois district attorney's office (and I do not doubt their honour) have proven the guilt of many innocent men, who have subsequently been condemned to death. The police of Los Angeles are now found to have planted evidence, and numerous convictions have been overturned as a result of the breaking of this scandal. Forensics experts in several states have fabricated evidence to insure the desired outcome. Even in Mr. Mill's Britain, where "Judges are most anxious to point out, and juries to allow for, the barest possibility of the prisoner's innocence", several high-profile convictions have recently been declared "unsound" because of police malfeasance.
Who judges whether the evidence is conclusive or not? Popes, angels, and other infallible beings? Or ordinary human beings, without whose gullibility tobacco manufacturers and snake-oil salesmen would be compelled to focus their energies in more useful directions?
In "On Liberty", Mr. Mill states that "there needs protection also against the tyranny of the prevailing opinion and feeling". To their deliberations judges and jurors bring not only their own intellectual limitations but this tyranny, as well. The demeanor of the defendent, his dress, his colour, and how society values or interprets these are all factors which can determine whether evidence against him is considered "conclusive" or not. And the fact that people opposed to the death penalty are excluded on those grounds from serving on juries trying capital cases ensures that any opinion opposing the prevailing one will be absent from their debates.
Where matters of life and death are concerned, it is never wise to underestimate the naivete and prejudices of one's fellow man.
"...when the attendant circumstances suggest ... no hope that the culprit may even yet not be unworthy to live among mankind..."
Is life something one must be "worthy of"? If so, what makes one man unworthy to live and another worthy? None of us has earned life, no one is obliged regularly to renew his claim to it or prove his worth, and even the saintliest among us, when his time has come, must surrender it.
If Mr. Mill means "unworthy to live in society", then I admit that the State has the legitimate power and duty to protect its members from the danger violent individuals may pose. The proper, most severe sentence can only be ostracism, however.
"nothing to make it probable that the crime was an exception to his general character rather than a consequence of it"
We judge the "general character" of people we meet in much the same way we know a character in a play or movie: by what he does, by what he says about himself and what others say about him, and by how he looks. During a trial, the accused person's character is revealed to judge and jury principally by what others say about him and by how he looks.
No society is free of racial prejudice. We know Gypsies are thieves because... they look like Gypsies. We are sure Mexicans are shiftless because they look Mexican. We fear black youths because they are black. "The blacker the man, the blacker the motive." Without a conscious effort and lengthy acquaintanceship, we tend to determine character in large part by race.
Mr. Mill's Britain has, today, to accept that her Metropolitan Police suffers from "institutional racism". Across the ocean, the New York City Police Department is coming to terms with its own fundamental racism, which has manifested itself recently in the shooting of an innocent black man, the sodomisation of another...
Because it is an instrument of society, the justice system cannot escape racial inequity in the application of the law.* When judging whether or not a crime was a consequence of the criminal's general character, members of society can never be certain that racism is not influencing them.
"...to deprive the criminal of the life of which he has proved himself to be unworthy ... is the most appropriate as it is certainly the most impressive, mode in which society can attach to so great a crime..."
When the State executes him, the condemned is restrained in some way. He is no danger to anyone. He is not in a position to defend himself. By killing a defenseless man - however "humane" the means - society mirrors/echos the act of the murderer.
Thus, the application of capital punishment injures society profoundly. It denies the unalienability of the right to life and therefore of all fundamental human rights, and it makes each member of society an accomplice in the killing of a defenseless man.
Mr. Mill seems to believe that capital punishment is an effective deterrent. One need look only to Europe (and to Britain which, ultimately, rejected his arguments) and to those states of the United States which do not have the death penalty to see that such a deterrent is not only unnecessary but in most cases counterproductive. Statistics indicate that there is no correlation between capital punishment and respect for human life.
"I defend this penalty, when confined to atrocious cases, on the very ground on which it is commonly attacked--on that of humanity to the criminal..."
It is not unknown for a condemned man to be put on "suicide watch", the purpose of which is to ensure his presence at his execution. Sick men have been cured, mentally ill men treated, only to guarantee that they will be "of sound mind-and-body", the more agonizingly to leave it. Protecting society is not the intent. Justice is not the objective. The goal is human suffering. There is no humanity here.
"Is it, indeed, so dreadful a thing to die?"
No, Mr. Mill. The dreadful thing is to kill.
The real victim of the death penalty is not the guilty man but society itself. In the minds of the people life is no longer an unalienable right, but something merely permitted, the permission for which may be denied at the pleasure of the people. If this is true for that right which is the most fundamental, then the philosophical underpinning of all rights collapses.
No Equal Justice: Race and Class in the American Criminal
by David Cole. The New Press; 224 pages; $25
The police stop you regularly for no reason at all, demanding to know who you are and where you are going. They often search your car or belongings. As a matter of policy, they consider your ethnic group more prone to criminality, and they target anyone that looks like you for frequent questioning. If accused of a crime, you know that the lawyer who is supposed to represent you will only be able to spare you a few mintues, and that he will probably try to persuade you to plead quilty. If you insist on your innocence, you will sit in jail for months, then have a quick trial before a jury from which all members of your ethnic group will probably have been carefully excluded.
In any case, the statistics are against you, especially if you are a young man. The rate of imprisonmnet for your ethnic group is seven times that of the general population, most of whom agree with the police that your kind are inclined to violence and crime. People like you are arrested, conviced, and killed by the police more often than those in the general population. One in three men from your group between the ages of 20 and 29 is in prison or on parole or probation. For every university graduate, 100 are arrested. You are not living in some totalitarian hell. You are a black person living in the United states, the land of the free and the home of the brave.
The Economist, February 19th 2000