A kinder, gentler machine-gun hand?

Peter Hitchens, writing for UnHerd this week (and in a videoed discussion with its editor-in-chief, Freddie Sayers), makes a case for bringing back the death penalty, abolished for murder in the UK in 1965. He opines that capital punishment, when “properly conducted”, “makes a country less vengeful and more gentle” and that the alternative of long imprisonment is damnable on the grounds of its cruelty to the convict, a point made by the utilitarian philosopher John Stuart Mill in 1868. He would require a number of reforms to the judicial system before supporting reinstating the death penalty, among them abolishing majority verdicts, imposing stricter controls on juror selection such as a higher minimum age and requirements of life experience and education and allowing judges to “halt trials where they believe the prosecution is employing emotion rather than evidence”. He also alleges that the abolition of the death penalty weakened the British tradition of the unarmed police, leading to the arming of the police by the “back door” with the use of Tasers and “a new informal death penalty — but one without charge, trial, appeal or the possibility of reprieve, carried out by frightened men and women in a microsecond of fear and doubt”. It also correlates with a vast increase in incidents of both homicide and woundings that, but for improvements in modern healthcare, would have meant a massive increase in murders since the death penalty was abolished in 1965.

I take issue with the suggestion that a country with the death penalty is “less vengeful and more gentle”. He asks us to look not at the USA but at Britain up until the mid-1950s. Hitchens was born in 1951 and thus his memory of that period will be a little sketchy. The execution of Derek Bentley, a 19-year-old with a learning disability whose 16-year-old accomplice had shot a police officer dead during a robbery, took place in 1953; his alleged words, “let him have it”, were assumed to mean ‘shoot’ rather than “hand over the gun” (and both the accused denied these words were said). The Home Secretary, David Maxwell-Fyfe, cited public opinion among the reasons not to grant clemency to Bentley, in particular because the victim was a police officer. He dismisses the example of the US, “an empire haunted by its history of slavery and violence”, but in the US, the only other country in the developed world to retain the death penalty, families campaign to have those who killed their loved ones executed even after decades in prison on death row (as in this case in Indiana, a state that never had slavery); in the UK, it is generally accepted that murderers whose crimes are not highly aggravated (e.g. by the victim being a child, or there being multiple victims, or being tortured or raped before their killing) will be released after serving their minimum period of imprisonment, albeit on a monitored life licence. And surely the reason our police continue not to carry firearms, unlike in the US, is that the population mostly does not possess them. American police carry guns, whether they work in a death penalty state or not, and the ready availability of guns is the major reason our murder rates do not approach theirs.

I’m not fundamentally opposed to the death penalty in the sense of believing that we are somehow no better than murderers ourselves if we put a serial killer or war criminal to death. Hitchens, however, characterises this as a position of the radical left (though not the ‘serious’ Left, as “two of the greatest figures of the British Left, Clement Attlee and Ernest Bevin”, along with many working-class Labour MPs, voted in its favour in 1948), yet I have seen it expressed in recent years by figures very definitely of the Right (e.g. Lawrence Fox), including on UnHerd recently. Although Labour were in power when it was abolished, it has survived three subsequent bouts of Tory government, one of them lasting 18 years. With it having last been used in the early 1960s and abolished for other than treason in 1965, sixty years ago, three whole generations will have never known a world in which it existed. This seems to be the case of members of parliament exercising their judgement rather than sacrificing it to their electors’ opinion. I do believe it should be available to war crimes tribunals, precisely because the risk of misidentification is that much less and also because the gravity of the crimes that much higher: kidnap, torture, rape and murder on a grand scale, on the orders of political and military leaders. A person picked up by police at the roadside and accused of being Ratko Mladić could prove his innocence more easily than a Black man picked up in Mississippi and accused of a murder committed by another Black man in a society where many white people would fail to distinguish one Black person from another and might even say “they all look the same”.

Hitchens notes that the two executions he witnessed in the US were for crimes which were long in the past, and were so disconnected from those crimes as a result that they could not be expected to deter anything. However, that time lag occasionally allows for an innocent person to have their case re-examined; when the UK had the death penalty, it was carried out weeks after the sentence was issued. Timothy Evans, for example, was tried for his wife’s murder on 11th January 1950 and hanged on 9th March the same year. A major witness was John Christie, his ground-floor neighbour, a man with multiple previous convictions for thefts and one for malicious wounding (from having hit a woman on the head with a cricket bat), supposedly a reformed character after serving as a special constable (a volunteer policeman) more recently. Three years later, Christie himself was revealed to be the killer, having been arrested for numerous other murders of women including his wife. His trial began on 22nd June 1953 and he was hanged on 15th July the same year. This is considerably less time than it normally takes for a miscarriage of justice to be acknowledged and redressed; first appeals nearly always fail. The majority of the victims of the 1970s miscarriages of justice, such as Stefan Kiszko and many of the groups convicted wrongly of IRA bombings, would have been executed less than two months after trial. So, we have the choice of a swift execution or a long wait on Death Row in the hope that some mistakes might be corrected.

To be fair, Hitchens says he would not support the return of the death penalty in the present legal climate, without some significant reforms. There is a perception that no amount of judicial safeguards and no evidential threshold will be enough to prevent all miscarriages of justice and one is too many. In the event that a bill is proposed to reintroduced the death penalty, I suspect it will not have such safeguards because it will be in response to an egregious murder and laden with demands to execute more murderers rather than make sure we don’t execute anyone wrongly. He suggests abolishing majority verdicts (i.e. requiring unanimous ones), a measure justified by the need to circumvent “juror nobbling” in trials of professional criminals or gangsters (perhaps unanimity should be required outside of those particular situations). When someone is convicted, the law does not distinguish between a majority verdict and a unanimous one, or a case won on the basis of a welter of scientific and other types of evidence and a case won on the back of a lot of weak circumstantial evidence. People later suspected or proven to be innocent were portrayed and perceived as the most evil and depraved person in the country at the time of their conviction; Hitchens mentions Lucy Letby, but the cases of Sally Clark and Donna Anthony (bereaved mothers accused of murders which did not in fact happen at all), or Gerry Conlon, told by his trial judge that he should have been charged with treason so he could be sentenced to death, then by the appeal judge that it was better that a few innocent people suffer than the whole system be impugned, are just as instructive. In the kinder, gentler world of 1951, all these people would have been hanged in six weeks, rather than the years it took to prove their innocence.