Death Penalty and Philosophy of Punishment

From the age of punishment to the age of the rehabilitation of real or presumed offenders, humanity goes through a long civilizational path. The abolition of the death penalty is part of a historical trend to a considerable change in the philosophy of punishment and its legal applications.

Humanity has experienced many forms of punishment, which are more or less savage. They were either "legitimate" in the sense of being linked to acts deemed socially reprehensible, or fictitiously "legitimized" by tribal, ethnic, nationalist, sexist, gerontocratic, racial, religious or political prejudices.

In its now primitive philosophy, although still deep-rooted in many social and political circles, punishment, whatever its motive, real or alleged, should be direct, immediate, painful, shameful, disabling or fatal.

The monopoly of legitimate violence by the state, which is supposed to represent the community, gradually withdraws from the victim of a wrongdoing or the crowd who are disturbed by it the power of direct sanction, even if it is to achieve justice on a supposedly legitimate basis.

The progress of the rule of law and independence of the judiciary formalizes, regulates and determines punishment. This tends to control individual and collective feelings against even more heinous crimes. The penalty is no more immediate, but distanced from the questionable act. This makes it possible to make a step backward to meditate on the response to the immediate need to gain reparation or to satisfy the desire for individual or collective revenge. In turn, we gain a guarantee of justice, reasoned hindsight and the right to defend the accused, who is presumed innocent until proven guilty.

As for the desire to inflict pain, disability or dishonor on those found guilty, the basic trend is to abandon them. To beat children with a stick, even those who do very serious foolishness, tends to be prohibited. To flog women, shave their hair or bury them alive for adultery or for breach of sacred parental or marital honor is no longer necessary.

More generally, the legal penalties tend to consist mainly of fines and deprivation of liberty. In other words, the philosophy of punishment tends to enshrine the basic principle of the inviolability of the security of person, though charged or convicted.

Any corporal punishment tends to be banned as it belongs to pedagogic, parental, marital or legal barbarism. The universal trend towards the prohibition and criminalization of torture goes also in this direction. We no longer legitimize ill-treatment inflicted on individuals by the need to have anti-criminal information, even if they are of vital importance to save thousands of lives. This is the case, for example, of the fight against terrorism.

It is true that imprisonment, as a freedom-depriving sentence, has long been associated with physical punishment, more or less assumed and declared: sexual deprivation, malnutrition, filth, narrowness, violence or rape by jailers or inmates. Eventually, it is about "convicts" or "jailbirds". All those "collateral damages" of prison did not seem outrageous. Only few people react to them.

But this hackneyed vision of the freedom-depriving punishment is in decline: prisons have been adapted to human needs; they have become a place of rehabilitation, retraining and resocialization; and freedom-depriving sanctions are increasingly replaced by alternative sanctions.

However, the fact remains that the term "sanction" itself connotes the intent to inflict suffering. It is a relic of the old penal philosophy. There should be a terminology congruent with the intention of rehabilitation and social reintegration, which characterizes the status and mandatory or optional activities assigned by civilized societies to their offenders.

However, the death penalty remains the hardest punishment that can affect the security of person. It is a negation of the first right of every human being: the right to life. Unlike the murder committed by an individual or group of individuals for nefarious motives or psychotic disorders, the execution is to decide coolly, collectively and calmly to kill a human being. By using it, a society deliberately shows its belief that killing may be the solution to any problem of society. It enshrines the idea that one can kill when there is "good reasons". Therefore, potential criminals are required to find their own "good reasons" to perpetrate the most heinous crimes, if necessary.

That is why the abolition of the death penalty does not only enable us to avoid any risk of judicial error that may lead to irreparable consequences: the execution. Also, it does not just end the suffering of death row and the risk of discrimination against death due to poverty, ethnicity, race or other grounds, which can always taint judgments and pardons. One of the virtues of the abolition of the death penalty is the fact that society makes its actual or potential criminals face a model of civility, restraint and respect for human life aiming to education, deterrent and rehabilitation. The fight against crime, even the heinous one, using the death penalty is based on what is more hideous and weaker in human society: the bloody violence and its corollary, the absolute fear. Saving the life and security of every human being, though criminal, rests on what is noble in this society: respect for others and hope. An executed criminal is finished off, quickly forgotten and has no more problems at all, not even those of thinking about his/her crime. A surviving criminal can still send to any potential criminal a message of repentance, of moral regeneration and reconciliation with the social and legal order.

The abolition of the death penalty is in harmony with the universal historical trend to the respect for the inviolability of the security of person in every circumstance. Unless there is a serious and global relapse in the old criminal barbarism, different societies, each according to its own pace, can but agree to the abolition. It is a question of time, but also of intellectual responsibility and social pedagogy of the elites and grassroots who carry civilizational progress.

By: Mohamed Berdouzi, CCDH member