Perspectives on the death penalty

There has been justifiable outrage today at the state sanctioned killing of Troy Davis by the State of Georgia, particularly surrounding the strength of the case against him. People have been rightly outraged about the fact that a potentially innocent man has been put to death. There were significant questions surrounding the reliability of evidence (and how that evidence was gathered) that was adduced during trial including the lack of a murder weapon and the over-reliance on eyewitness testimony - some of which was recanted by those witnesses.

I want to juxtaposition this case with another - that of Lawrence Brewer. Lawrence Brewer was a white-supremacist  who was convicted of killing James Byrd Jr. by tying him to the back of his pickup and dragging him along an asphalt road. According to forensic evidence Byrd remained alive for some time during the dragging and was only finally killed when he hit a culvert which severed his arm and head. Police found 75 places along the road that contained Byrd's remains.

Brewer and his accomplices continued to drag Byrd's torso for another mile or so before dumping his body.

At trial, significant evidence was adduced that proved beyond reasonable doubt that Brewer and his accomplices were guilty. Brewer and one of his accomplices were sentenced to death (another accomplice was given life in prison). During his stay in gaol, Brewer never showed any remorse and even said that "he'd do it all again". Brewer was killed by the State on the same day as Troy Davis.

If you are against the death penalty you must accept that the outcome of Brewer's case is as much a tragedy as Davis', even though the differences in how we may view the guilt or innocence or moral culpability of each are stark. In both of these cases, regardless of the action, evidence, guilt or innocence; the outcome, that of State sanctioned killing, is wrong because it deprives us collectively of our humanity.

"A Hanging", an essay by George Orwell (poignantly published on the ABC's Drum today) captures the inhumanity of execution. It is this inhumanity that we must remember, even when confronted with the callous viciousness of Brewer's acts.

"It was about forty yards to the gallows. I watched the bare brown back of the prisoner marching in front of me. He walked clumsily with his bound arms, but quite steadily, with that bobbing gait of the Indian who never straightens his knees. At each step his muscles slid neatly into place, the lock of hair on his scalp danced up and down, his feet printed themselves on the wet gravel. And once, in spite of the men who gripped him by each shoulder, he stepped slightly aside to avoid a puddle on the path.

It is curious, but till that moment I had never realized what it means to destroy a healthy, conscious man. When I saw the prisoner step aside to avoid the puddle, I saw the mystery, the unspeakable wrongness, of cutting a life short when it is in full tide. This man was not dying, he was alive just as we were alive. All the organs of his body were working -- bowels digesting food, skin renewing itself, nails growing, tissues forming -- all toiling away in solemn foolery. His nails would still be growing when he stood on the drop, when he was falling through the air with a tenth of a second to live. His eyes saw the yellow gravel and the grey walls, and his brain still remembered, foresaw, reasoned -- reasoned even about puddles. He and we were a party of men walking together, seeing, hearing, feeling, understanding the same world; and in two minutes, with a sudden snap, one of us would be gone--one mind less, one world less."

Regardless of the actions of a person, they are still just that: a person. No different from you or I in their personhood.

The moral value of a person derives from their personhood, the fact that they are a person, not just a collective set of moral actions¹. It is why we rightly sanction those that try to use a victim's actions (whether they are immoral or even illegal) as an excuse for crimes against their person.

It is why we legally recognise that the body is not just mere property and has value above its economic worth - because the body is an intrinsic part of what makes us a person. To treat a person as an object that can be extinguished by the State diminishes the State's value of all people.

The execution of a person by what should be an extension of our collective humanity, the justice system, is a great wrong that diminishes us all. All persons have a moral value, it is why we view the interference with the person as a great moral (and legal)  wrong and why we should reject the death penalty as a barbaric penalty discarded to unenlightened times.

And we should reject the death penalty's effect on our own collective humanity, diminishing us and bringing us down collectively to the level of those which we seek to sanction. Regardless of the actions of the person, we must recognise each of us as a person. We are all part of humanity and we should rally against its diminution - the death penalty undermines our humanity in this way. The famous lines from poet John Donne in 1624 articulate it well:

No man is an Iland, intire of it selfe; every man is a peece of the Continent, a part of the maine; if a Clod bee washed away by the Sea, Europe is the lesse, as well as if a Promontorie were, as well as if a Mannor of thy friends or of thine owne were; any mans death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; It tolls for thee.

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¹ I understand that there are utilitarian arguments that refute the idea of intrinsic moral value as the utilitarian looks at the consequences of actions for their utility. However, many utilitarians are also against the death penalty because the general consequences to society reduce overall utility - its an argument and discussion for another article.

Parliament is not a court: abusing its privilege does not lead to just outcomes

Parliamentary privilege is one of the more powerful rights bestowed upon our parliament, and, unfortunately it is often abused. As an absolute defence against defamation (and other actions) it is a powerful tool that can be used by parliament to discuss issues of significant public importance without the fear of legal action against parliamentarians. However, its abuse by parliamentarians can lead to gross injustices and even undermine and damage the processes of the justice system.

Senator Xenophon's recent naming of a Catholic priest  in parliament for alleged sex crimes is one such abuse. The allegations are yet to be investigated by the police and the sole reason for naming the priest is the Catholic Church's refusal to stand the priest down. Sen. Xenophon had said that the Church had taken too long to respond to the serious allegations.

It may be true that the Church has not acted adequately to respond to these allegations and its actions in the recent past have highlighted its inability to deal with allegations of this kind. However, the naming of an accused in parliament before guilt has been proven will do little to encourage the Church to amend its processes with regard to dealing with allegations of sexual misconduct. In fact, it may make the Church less likely to be forthcoming if there is an overhanging threat of accused priests being named and publicised through the parliament.

Any accused person has a right to the presumption of innocence, regardless of the crime. Sen. Xenophon's abuse of the power of parliamentary privilege stands in direct contrast to this cornerstone of our justice system.

Sen. Xenophon's response to accusations by the chair of the Australian Catholic Justice Council, Bishop Saunders, that Xenophon's actions constitute a "stunt" that hasn't "done the cause of justice any good at all", has been to appeal to its popularity among the public. This is just an appeal to mob justice of the kind that is normally the purview of shock-jocks and tabloids, not the Commonwealth Parliament (although previous abuses of the privilege have similarly dragged it down to that level).


Sen. Xenophon's actions have done nothing to further the cause of victims of sexual abuse. The only outcome of this is to publicise an investigation into an accused person, even before they have been charged with an offence. It is possible that Sen. Xenophon may even have compromised the accused's ability to receive a fair trial and undermined the victim's ability to achieve justice through the courts. Xenophon's actions do nothing but undermine the justice system and the integrity of the parliament using the victims of abuse as a platform for a cynical exercise in self-promotion.