Although this chapter deals with the concept of crime in general,
we'll cut to the chase and start with the key questions we will need to
examine in regard to Capital Punishment:
Are there any circumstances which justify
the State taking the life of one of its own citizens?
What are the purposes of Capital Punishment?
Does or can it achieve those purposes?
Do those purposes, if met, enhance or
reduce overall Survival?
Can we ever be sufficiently sure of a
person's guilt to avoid the risk of killing the wrong one?
If not, can we justify the occasional error?
We will take the opportunity, when appropriate, to digress from direct
discussion of the issues to discussion of how democratic involvement in
the issues could be shaped.
Let's start, however, by dealing quickly with the first question because
it is relatively easy. Had an FBI agent been in a position to blow Timothy
McVeigh's explosive truck to bits before it reached any populated area,
would that action have been justifiable even if McVeigh was inside the
truck? Some will quibble that the first effort should be simply to arrest
the truck and its occupants without killing anyone. We'll concede that,
generally, but lets harden the problem. We have reason to believe that
the truck is booby trapped and that the occupants can trigger it at any
time. Should we put the enforcement agents at risk just to preserve the
lives of the potential murderers?
There will still be a few ethicists trying to dance on the head of that
pin, but in the end, we don't really care. What matters, under Survival
based ethics, is the consensus, which we believe would be pretty conclusive
in this scenario. If you can prevent the crime without killing anyone,
perfect. But if you can only prevent the murder of other citizens by killing
the ones who are about to commit that crime, it is perfectly acceptable
to kill the potential murderers pre-emptively. This is hardly a startling
ethical breakthrough. It is merely the long established doctrine of self-defence
and it is obvious that most citizens will accept that the State has not
merely the right to protect its citizens in such a manner but a duty to
do so. In fact it is considered by many to be its Prime Duty - and by
some its only duty.
So, yes, there obviously are circumstances in which we can reasonably
require the State to kill one of its own citizens. We can load that with
sundry caveats - such as the need to ensure that every step of the process
is properly recorded and subsequently publicly audited to ensure that
the killing was justified. (The task of a Trusted
Surveillance system) But given that there are no obvious
absolute ethical barriers to a State killing one of its own, we need to
look in more detail at the process of Execution when it takes place after
the event - where the killing is clearly no longer necessary for immediate
self defence. The crime has already been committed. We've detected, arrested
and convicted the perpetrator. We could just lock them up and throw away
the key. This would remove any remaining risk they posed, so why might
we still want to kill them?
The purposes of Capital Punishment are fairly wide and may merit different
treatment. For example, historically, the most common purpose throughout
human history has been the State use of "judicial slaughter"
to dispose of its enemies, a practice which has gone on for thousands
of years; Jesus the Nazarene being a prominent early example; Joan of
Arc a little more recent. Before Christianity was adopted by the Roman
Empire, Christians were executed as entertainment for the crowds. Later,
once Christianity was in charge, countless heretic martyrs were slaughtered
by the Catholic Holy Roman Empire. Even in recent decades, we are all
familiar with examples of such a use featuring in the news filtering out
of the states we regard as more repressed than our own, from the industrial
killing machines of Nazi Germany and Stalinist Russia through Ceausescu's
Romania or Shiite Iran to Taliban controlled Afghanistan or South Africa
(prior to Mandela's release at least).
But even here in the UK, where Capital Punishment has been abolished
since 1964, one crime could still - until
January 27 1999 - be punished by Death - viz: High Treason. Actually
there were two. The other was Arson in a Royal Dockyard but this anachronism
was left over from the days of the Spanish Armada and was even more unlikely
to be invoked than High Treason. No doubt this will reassure those of
you who were planning to torch one or two ships in the British Navy in
the near future. Of course, they might shoot you in self defence, but
that's an occupational risk if you're attacking a military target.
The practice of States killing their own citizens in cold blood is apparently
diminishing. In the year 2004 of the Christian Calendar, the United
States of America is arguably the "most Christian" country on
the planet - or likes to think it is. Yet it kills more of its own citizens
than all the other Christian countries put together. In passing, it is
worth asking which aspect of Jesus' teaching justifies that behaviour.
Be that as it may, in all, some 78 Countries retain some form of Death
penalty (and exactly the same number have abolished it). In 2003, Amnesty
International tells us that 1,146 people were executed. That's down from
1,526 in 2002 and 3,048 in 2001. They warn that those figures are best
estimates and are probably understated. Their caution is supported by
article which speaks of 27 executions every day going on in China
today (mid 2004).
Nevertheless, today, in any standardised table of risks, being executed
by your own State comes pretty low down the list.
Where it still exists, Capital Punishment tends to be reserved for serious
crimes committed by citizens against one or more other individuals rather
than against the State. (China may be an exception - we don't really know
why they're killing so many over there) The range of such "serious"
crimes is narrow but certainly isn't limited to crimes involving the death
of others. For example, the Singapore Government executes
Drug Dealers and Smugglers, whereas the Malay legal code even permits
judicial killing of people who merely possess
200 grams of Cannabis. And in some countries, notably strict Moslem
societies such as Saudi Arabia, the Death Penalty is invoked wherever
the Koran dictates it, including, for instance, crimes as relatively trivial
(by current Western Standards) as extra
Incidentally, some time ago (1999-2000ish?), we heard, from a usually
reliable source (BBC Radio 4 - "From our own correspondent"?)
that in a bizarre attempt at modernising their legal system, the Saudis
now punish that particular crime (sex outside marriage) - for which the
Koranic law requires stoning to death - by tipping a ton of rubble over
the victim from a dumper truck! Unfortunately we haven't been able to
find written corroboration of this anywhere since so it barely merits
rumour status. If anyone does have either corroboration or repudiation
of this method of carrying out execution by stoning, please let
us know. We can, however, verify the Taliban's particular modernisation
of stoning in Afghanistan. It consisted of using a tank or similar heavy
vehicle to push a wall over onto the miscreant. If they survive this treatment
(as happened in this
case), then under Islamic law, the offender can go free.
Before we sneer patronisingly at Islam or its Shariah,
bear in mind that as recently as 1818, the English were still hanging
people for stealing a sheep.
All of which suggests that one society's capital crime is another's minor
misdemeanour and demands the question "What Is A Crime?"; first
from the lexicographer's point of view and second, having decided what
the word "crime" means, we need to decide what sort of behaviour
is appropriately labelled as criminal and how to make those fundamentally
democratic decisions. Semantically what we all mean by the word "crime"
is straightforwardly "any behaviour which the community disapproves
of to the extent of mandating punishment for those who commit it".
That almost looks like a democratic definition. Unfortunately this is
not so. The community usually disapproves of a particular behaviour not
because it has arrived at this position through a process of democratic
debate. It has usually had the "crimes" defined for it by the
community's rulers. Classically the Mosaic "Ten Commandments"
are the archetype of this method of defining criminal behaviour and the
process of disseminating these Laws had and has absolutely no connection
Having listed behaviours which are formally labelled as criminal, we
then need to decide what punishments, if any, are appropriate. We're not
going to explore the issue of punishments in depth. The only one we'll
consider in detail in this chapter is the ultimate punishment the community
can impose on one of its own - the death penalty.
In deciding what behaviours should ever be labelled as criminal, we are
obviously not remotely interested in the existing legal definitions -
even though we may often end up reaching a similar conclusion (for example
that Murder is a crime). Existing laws have all grown up around the very
moral codes which we argue have no rational basis and even where they
can now be shown to be supported by consensus, (which, we acknowledge,
applies to many existing laws) that happy position has been reached more
by accident than design. They were "top down" codes where rulers
imposed their ethics on a pliant population. This - we would argue - is
no longer appropriate or even viable. We are looking for a definition
which will make sense under a Survival based ethical code; a "bottom-up"
code agreed by a population mature enough to rule itself. This code, as
we will see, is not too difficult to obtain in principle although we can
anticipate difficulties in practice - at least during any transitional
Survival Based Definition of Crime
Under Survival based ethics, the principle democratic definition of Crime
would be something along the lines of: any deliberate act or omission
which can be shown, to the satisfaction of the appropriate democratic
forum, to have the effect of reducing survival without the consent of
those involved. The democratic debate on whether any given form of
behaviour should be labelled a crime could then focus on whether the relevant
behaviour causes harm as implied by the definition ("reducing survival"="harm").
We would hardly need to debate examples like murder and rape. Murder
has its obvious direct and literal effect on survival of the victim. Rape
has the effect of causing gross pain and mental or physical damage to
the victim which is a major indirect reduction in survival (Remember,
Survival in this context is not just a matter of life or death but also
involves assessing the Pain-Pleasure
matrix). Registering the Consensus on these crimes would no doubt
be a mere formality.
Somewhat less obvious are "crimes" against property rather
than people. At one extreme, a home is ransacked and vandalised. Valuables
- including items of great sentimental value - are stolen. This one is
still pretty simple to categorise as it is not much different, in principle,
to rape. A great deal of mental pain can be caused - sometimes on a par
with rape - and so the Survival effects are fairly easy to perceive and
assess. Reaching Consensus that this behaviour is a Crime should also
At the other end of the property crime scale, we may have a starving mother
desperate to feed her kids. She steals two cans of beans from the local
supermarket. Now this is clearly without the consent of those immediately
involved, so it meets that criterion. But where's the victim? Where's
the harm? Where is the pain? Is anyone going to suggest that the pain
caused to the supermarket by that petty theft outweighs the reduction
in the pain of hunger to the mother and her children? The owners will,
of course, reasonably argue that if all their customers behaved the same
way, then they - and presumably all other similar establishments - would
soon go out of business and so, initially, they and their staff, then
eventually everyone else, would go hungry. Thus, they would argue, it
is necessary to define such behaviour as criminal - even if the short
term effects of the individual "crime" clearly promotes survival
- in order to deter a general breakdown of conduct which would lead to
widespread very negative effects on survival. This would, no doubt, be
the approach taken by those who support the 8th commandment. Stealing
is always just plain wrong.
We are not going to address the wider implications of general pilfering.
At least not here and now. We want to focus on the precise scenario we
have raised. In this case, the mother is the only person amongst their
several thousand customers who has ever committed this act. She is desperately
trying to keep the wolf from the door. Her motives are about as purely
survival based as you can get. The store will lose more than two cans
of beans by the end of the day in routine wastage. Has she or has she
not caused a net involuntary reduction in overall survival? And if, as
we would argue, she has not, then how is her behaviour a crime? It is
clearly a "problem" in that she shouldn't have to steal to survive;
but is it a crime? Is it an action which the community needs to punish?
In the absence of "net harm" (which means the same but is a
much neater phrase than "net involuntary reduction in overall survival"),
it has clearly failed to meet the first part of our definition. Given,
however, how wedded people to having their laws "cast in stone"
we are not at all confident that, on this occasion, our argument would
persuade even a substantial majority, let alone achieve consensus. This
is one of many votes we'd expect to lose.
Whatever that consensus may be could only be tested by measuring the
Pain-Pleasure matrix - i.e. by establishing, through an appropriate plebiscite,
the opinions and feelings of those involved. Now there's another good
question. In a case of petty shoplifting like this, who is "involved"?
Well, in the commission of the act itself, the only ones who can claim
direct involvement are those who directly benefit (Mother and Children)
and those who directly suffer (The owners and any employee whose task
it was to prevent such theft). If they can't settle the matter between
them, and the store owners wish to seek retribution, then a much wider
involvement becomes inevitable, chiefly because the community (and, on
some issues, that could - and one day, no doubt, will - be global) has
a vested interest in seeing how these things are dealt with and, in particular,
seeing that they are dealt with "Fairly" and "Justly".
In real life, the chances are that the supermarket staff or owners, once
they appreciated the circumstances would not only allow her to keep the
beans but offer other help and support as well. But for the purposes of
examining the issues we need to assume that they've reacted negatively
and have decided to prosecute. This makes it an ethical crisis which demands
a social decision. The community will want to be involved.
For example, the community, presumably, is not going to let the Supermarket
owners, having caught the woman in the act, put her up against the wall
to be shot as an example to others. And once you have that wider communal
involvement, then all sorts of factors are likely to influence the consensus.
The judgement could go either way. It is quite conceivable that the community
could decide that it feels so threatened by the actions of such individuals
that it will define the pilfering as a crime and agree that it ought to
be punished. It is also conceivable that they could agree with us and
decide that the greater crime was that the family was allowed to fall
into that desperate state in the first place; that the appropriate reaction,
therefore, is for the community to compensate the supermarket for the
cost of the beans and to ensure that the woman and her family are provided
for and/or given reasonable opportunities to fend for themselves in the
There are two important points here. First is the necessarily ad hoc
nature of this method of decision making. The community - particularly
if it was frequently inclined to take the latter, more liberal, view -
could not support the kind of criminal code we have today - tablets of
stone; a set of definitions which always regards any particular behaviour
as criminal. For instance, whilst there is a high probability that they
would acquit the starving mother, they are likely to be less than tolerant
of an organised gang which breaks in to the shop to steal the day's takings.
Some members of the gang might have the same basic needs as the starving
woman. Some may be motivated by greed, hatred of the owners, opportunism
or whatever. The harm done to the shop is considerably greater. The long
term threat to its owners (and owners in general) is much more obvious.
The community when weighing up this case might well reach a considerably
The second point is that the ad hoc nature of the judgement is precisely
what would - in the long run - protect the owners. If the community values
the services they provide, then it will rate the threat against them correspondingly
more important as such incidents increase. So, where the first starving
woman may be seen as requiring a charitable response from the community,
the hundredth might be seen to be "jumping on the bandwagon"
and thus merit treatment as a criminal. Hopefully, the community would
also be sufficiently sensitive to deduce that the existence of such widespread
"antisocial" behaviour required some urgent actions to improve
the conditions which led to it.
Thus, in a world based on conscious promotion of Survival, crime will
be defined by democratic consensus. Defendants will be charged with a
breach of the appropriate law, as they are now, but in addition to their
existing defence options, they will be permitted to argue that either
the law does not take regard of the particular circumstances of their
case or that, for reasons not discussed when the consensus on the law
was formalised, the law itself needs amending or discarding. It will be
a matter for the Jury to decide whether such arguments are valid in any
given case. Judges will hold the role of chairman/moderator of the proceedings
and senior advisor to the Jury and will make their own professional recommendations.
But the Jury's word will be final. When, however, the Jury rules that
the law itself needs amendment, its proposal will automatically trigger
the democratic debating process which leads to an appropriate plebiscite.
What this amounts to is formal recognition of the power that Juries have
held for centuries and goes under the ugly name of "Jury
The biggest obvious criticism of such a system would appear to be its
inherent unpredictability or inconsistency. This, however, is unlikely
to be a serious problem. In practice, it will certainly not mean a local
referendum every time there's a shoplifting case. Juries will continue
to handle 99% of the cases without much controversy, as they do today.
A plebiscite would only be required to establish principles and consensus
in regard to new situations. Once we've made our minds up about the petty
shoplifting case and its variants, juries, judges and advocates will be
more than capable of relating any new cases to the "legal precedents"
in much the same way they do today. The major difference will be the balance
of power - with the jury, not the judge, having the final authority.
Many of our views have been and probably will remain consistent for thousands
of years. Again, attitudes to murder and rape are obvious examples. The
consensus in such cases is highly predictable. What, we suggest, would
emerge with the "grey" areas like the property crimes outlined
above is another predictable line which would tend to remain stable for
months, years or even decades. We are advocating (here and elsewhere)
a much more central role for juries in the judicial and democratic decision
making process. The introduction of Trial by Jury was probably the single
most profoundly democratic adjustment to the Judicial process in all human
history. It marked the fundamental recognition - although it was never
stated in these terms - that, ultimately, "right and wrong"
really are democratic concepts. We argue that this role remains the most
efficient means of reflecting democratic ideals in the conduct of Justice.
We also argue that this role should be formally recognised for what it
is and made the central pillar of the Judicial system (replacing the current
central pillar which is "The Law" itself).
Juries would have the power not just to decide the "facts of the
case" but also the suitable punishment. Juries would also be empowered
to recommend changes to the law as a result of cases they are hearing.
(In a democracy, everyone would have that power, but Juries would have
much more influence because their decisions and recommendations would
be widely reported. Individuals have to start their campaigns from a much
Citizens on trial before juries will be able to argue not just on the
basis of whether they have breached a previously agreed consensus but
also challenge the consensus with new arguments of their own. If they
were able to persuade the jury, it could not only acquit the defendant
but use their power to recommend a change to the established rule.
Yes. It is a rule. It is still "The Law". It just isn't written
on tablets of stone. It isn't so stubbornly inflexible, nor so difficult
to strike down as those we live under today.
Sticking with the "guilty" defendant: The community - usually
in the form of a jury - would evaluate, together with the actual effects
on Survival, the perceived motives of the perpetrator. So, for instance,
with our starving mother, the community would probably recognise that
her motives were basic survival. The family needed to eat and she had
no money. Coupled with the fact that no significant harm was done to the
supermarket, the verdict would almost certainly be that the action was
not criminal and merited no punishment. Another person might try the same
trick and be found to be more than capable of paying their way; in which
case their motives would be perceived as a somewhat lower form of survival
- viz mere enhancement of their own pleasure via the satisfaction of greed
- which could only be attained at the expense of reducing survival elsewhere.
In such circumstances, the consensus would probably be in favour of defining
the act as criminal and punishing it. There would, in short, be a social
perception of the need to balance individual and collective pains and
pleasures and a recognition that, on occasion, society would have to accept
marginal short term imbalances in order to achieve overall long term favourable
balances. Juries are ideally suited to make such decisions. This would
lead to a fairly stable and predictable reaction to "crime".
Note to Anarchists (and lefties in general)]: You may
be disappointed to notice our apparent failure to support Proudhon ("Property
is Robbery"). Actually we do support that position as well. However,
what does not necessarily flow from that is that such theft is crime and
here we are only discussing crime. (Indeed, if you think about it, Proudhon's
axiom is an apparent paradox; it implies, simultaneously, disapproval
of both property and theft. Yet the very concept of theft has no meaning
- and, cannot therefore, be objectionable - unless one holds some notion
of ownership - viz property - which is available to be stolen. In practice,
of course, perceptions of which thefts are or are not considered as crimes
have been directly governed by the social and political conditions of
the society concerned. Hence, in modern capitalist society it is held
- even amongst large sections of the economically deprived - that it is
a crime to steal the beans even if starving; whilst at the same time,
it is not widely held - even amongst those same people - to be a crime
to go in and steal a country! (and that line was written in 1993 - 10
years before the "coalition of the willing" went into Iraq)
What we hope libertarian activists will recognise in this work is that
if we suspend, for a while, our arguments about "what decisions need
to be made" - upon which we are all divided - and focus instead on
"how we can make decisions which command consensus" we can place
social power where in belongs; in "We The People". Once we have a truly
democratic system of self government, and decisions are no longer grossly
distorted by the vested interests, then we can return to the debate about
what needs to be done. In the subsequent debates on the survival benefits
of any given policy or political analysis, Anarchists, Socialists, Liberals,
Greens, Conservatives, Religious Fundamentalists or whatever have no inherent
"right to be right". You must argue your case on equal footing
with all the rest. And you'd better be prepared to lose more often than
you win, because the population will have no obligation to agree with
you - even when you are right!
Back to Capital Punishment. Having dealt with the definition of "crime",
we must turn back to the question of punishment. The answer is very similar.
In short, the acceptability of any given form of punishment will be a
matter of determining the democratic consensus; a statement which is likely
to be interpreted as a cop out because it appears to avoid the issues
we listed above. We began to deal with the second issue (purposes) before
the digression into the general definition of crime. The purposes we identified
were the state ridding itself of enemies and society punishing certain
crimes. Before we identify a few others, let's examine the question of
whether Judicial Execution achieves those purposes. The answer is obviously
er ... is it?
Sure. Can't think of a more final solution to getting rid of
an "enemy of the State" than topping him. Can you?
Well no - for that individual. But that policy has markedly
failed for thousands of years because, more often than not, for every
individual thus despatched, the ill feeling it generates has created 10
more enemies to take his place.
And you think that merely locking them up generates less ill
feeling do you? Which would have caused less hassle - locking the buggers
up in Guantanamo, or simply shooting them on the battlefield as they were
being rounded up?
Ah, but what you might have got away with on the field of
battle, you can't get away with when you're holding prisoners who have
surrendered or been captured. Execute any of those still in Guantanamo
and the proverbial shit really will hit the proverbial fan. Perhaps the
lesson there is that neither method of punishment is the appropriate way
to deal with enemies of the State.
Alright, we'll come back to enemies of the state later. You
can't possibly argue with the second purpose - even if you disapprove
of it. Capital Punishment clearly achieves the aim of punishing the wrongdoers.
Agreed - there is the occasional mistake, we're discussing that
And not only.
What do you mean "not only"?
It also punishes innocent members of the family and friends.
Yeh, well that's tough; but so does imprisonment. And its a
pretty difficult calculation to figure out which hurts most in the long
run; knowing that your loved one is alive but inaccessible or knowing
that s/he's dead. Ask someone who's just had a long term partner break
off a relationship to compare the experience with bereavement of a similarly
Inaccessible is never as bad as irrevocable. If they're
in prison when a mistake is uncovered we can correct it and compensate
those who have suffered in error. We can't do much to correct the error
if we've executed the victim of the error...
So goes the conversation on the Clapham or Queens omnibus. It is not
easy to establish the empirical data even on those most simplistic purposes.
And there are at least two other purposes much more difficult to analyse.
Revenge and Deterrence. It is not even generally acceptable to admit the
Revenge motive. Yet is probably the most natural of them all. Certainly
there is evidence that the reward centre of the brain is activated by
thoughts of revenge, so it is more than just an ethical decision. It seems
to be hard wired, for no doubt sound evolutionary reasons, into our
mental hardware. Moreover, the sway of psychological evidence would, we
suspect, strongly support the view that in this instance, at least, Capital
Punishment achieves its purpose much more effectively than does long term
imprisonment. In the United States, since 1997, victim's families have
been entitled to witness executions of the murderer and there is tentative
and disputed evidence that this does help some achieve some kind of
resolution or "closure". In the wider community, celebrations
executions graphically illustrate the lust for revenge. It may not
be "nice" but it's true. Revenge is sweet. And that will clearly
influence the overall survival assessment when it is put to the vote.
Another Democracy Digression:
Revenge is also another example of where we might reasonable consider
granting the most "involved" voters - i.e. the "other"
victims of any violent attack, the surviving friends, lovers and family
members - those who feel the loss most - a special voting status (similar
to what we suggested might be appropriate for women in the Abortion debate).
In this case a range of voting options might be available.
We could decide the issue on the global
We could allow the surviving victims alone
We could have a global vote but
And so on
This "democracy thing" isn't a simple yes, no or abstain exercise.
Some of the questions are complex because the issues and subsequent decisions
are complex. Remove the complexity and reduce every question to a Yes
or No, and you remove the real decision making. And although in our past
it may be argued that such simplification was necessary, with the technology
we have available today, no excuse can be made for shielding citizens
from true democratic decision making. Most issues can be broken down to
relatively simple multiple choice questions which most citizens could
respond to on a web page. For example citizens could vote on various aspects
of a Capital crime by responding to questions like those below:
These questions determine how the decision will be made. In the first
scenario, the community as a whole makes the decision, which means it
can override the wishes of the victims. In contrast, in option two, the
victims are given total authority to decide between themselves whether
execution is appropriate and desirable. In the third case, the community
as a whole must endorse the death sentence but we allow the victims to
commute it to an alternative (but lesser) punishment of their choice.
In the final scenario, a consensus in the community at large AND a consensus
within the victim group are both required to impose execution. Incidentally,
this principle, of allowing the victims to have the major say in determining
suitable punishment, is a standard part of the Sharia and widely practised
under Islamic Law.
Next we need to determine what level of support we think should be required
before the death sentence can be carried out:
Now we have to decide who is eligible to participate in this particular
And having decided who is eligible to participate, we have to decide
what percentage of those must have exercised their right to vote in order
to trigger the Majority rule we agreed above.
We would try to argue that no execution should ever be carried out without
massive public support and that this would imply minimum turnouts and
Achieving 90% support on a 5% turnout for something as trivial as where
to place a set of street lamps might be acceptable. For confirmation of
a death sentence it is clearly unacceptable. On the other hand, insisting
on 100% or even 95% participation and support might be setting unattainable
targets. A reasonable starting point might be, for example, to set a hurdle
such that at least 75% of those who bother to vote must be in favour and
that this 75% must constitute at least 50% of the eligible population.
So, for example, in the UK, where perhaps 40 million might be entitled
to vote, at least 20 million would have to support the death sentence
and they would have to constitute 75% of those who voted. (implying 27
million total votes, or a turnout of 67%)
This is an example of our demand for Consensus rather than mere Democracy
(in the sense of simple "Majority Rule") and we'll be delving into our
rationale for that in more detail in the next chapter. Until we have won
that argument we would have to attempt to ensure that such serious decisions
can only be taken with a considerable degree of demonstrable public support.
Others might argue for even higher hurdles such as 90% of votes and two
thirds of the eligible population. We wouldn't oppose them, but we suspect
we'd be lucky to persuade today's population even to accept our more modest
The point of that digression? Just to show that it is relatively easy
to formulate the questions which perfectly normal citizens can understand
and exercise the low level choices that gradually build up to the big
ones. We also hope that this illustrates the kind of flexible preparation
for any democratic debate which needs to take place even before we discuss
the substantive issue. In a true democracy, you can't make hard and fast
rules about such things as minimum turnouts, majorities required and eligibility
to participate because they are inherently variable and the appropriate
answers will depend on the circumstances of each new case and how the
public react to it.
The idea that you can define eligibility to participate in a debate purely
on the basis of age and citizenship is absurd. Part of the argument for
Consensus over Democracy is that the idea that in all cases a simple majority
of one vote (even in a total of 100 million) is enough to decide a contentious
issue is not just absurd it is a foolish and dangerous invitation to civil
war. At the other end of the scale, the idea that we can only safely proceed
with 100% turnout is over cautious and impractical. It would mean no decisions
would ever be reached. On the other hand, the idea that it would be safe
to implement even a substantial majority decision reached by only 1% of
those eligible to participate is a recipe for making decisions which will
simply not be accepted by the community at large.
There might well be a normal "default" set of parameters which
the community would be happy with for most decisions and the proposers
of any plebiscite would include, in their initial bid, either that default
set or a modified set with an explanation for their modifications. But
to set the parameters in stone would, again, remove the decision making
- and thus the democracy - from the process.
Revenge is precisely one of those areas where the default parameters
would almost certainly not be appropriate. The case for or against revenge
in any given instance is not usually going to be an area where rational
guidance or debate has any meaning. The need for revenge is hormonal.
There are times when letting those hormones loose is much less damaging
than repressing them. All the wider community can do is make a judgement
on whether the revenge desired in any given case was itself likely to
promote or reduce survival. It is entirely conceivable that certain cases
would easily attract a consensus in favour of measured revenge. In 2004,
9-11 is the obvious example. Indeed the problem in the case of 9-11 is
that the revenge being taken is anything but measured and proportionate,
but we don't want to tread down that path just yet; thats also coming
up in the next chapter. Having agreed that a revenge execution is permissible
in a given case, the task of the community is to exercise oversight and
ensure that the revenge is indeed measured and proportionate.
The objective of deterrence is much more open to empirical testing. History
shows us that the threat of death simply does not deter the enemies of
the state, as we discussed above. This is hardly surprising. They will
almost certainly be "political" enemies and have strongly held
beliefs which "justify" their activities. Moreover, they might
even occasionally be "right". They will almost certainly be
prepared to die for their beliefs and the exact circumstances of death
will not greatly concern them. Indeed, for many, the idea of flying a
loaded passenger plane into the icon of American Capitalism is a near
ecstatic fantasy. What a way to go! In the full view of the entire World!
Now that's how to make a difference! (Which they most certainly have)
If you have any difficulty in understanding this "extreme"
point of view, then you probably live in a modern reasonably "liberal"
state. So just ask yourself how far you would be prepared to go in opposing
the rise - within your own relatively comfortable country - of another
Nazi style state, knowing what we now know about the aims and actions
of such a state.
Go on. Think about it, if you haven't previously.
What would it take to make you think it would be a good idea to strap
on a suicide bomb belt, walk into a crowd of complete strangers, blow
yourself to pieces and hope to take as many of the crowd as possible with
you to the grave?
What if the crowd were a bunch of Al Qaeda terrorists including Bin Laden
and his henchmen, and all were known to have "hands on" guilt
for between dozens and thousands of deaths of innocent incombatants (assuming,
of course, that there is such a thing as an innocent non-combatant - a
conclusion which Bin Laden explicitly rejects). Still reluctant?
What if they were in the process of implementing another devastating
attack against a civilian target in the next few minutes and you alone
are in a position to stop them. But you can only stop them by walking
into their control room and blowing yourself up.
Are you still sitting on your hands?
Most of us would at least hope that we'd have the guts to launch the
suicide attack in that kind of situation.
So now you've accepted there is a scenario where even you could be persuaded
that it was not unreasonable to consider killing yourself for the sake
of killing a few of the enemy. To understand the 9-11 hijackers all you
now have to do is grok why the occupants of the twin towers and the passengers
in the planes all constituted "the enemy" in the minds of the
attackers. Its an interesting insight which would require another chapter
or even another book to explore fully but in short, what we learn is that
they're not much different from some of their equivalents
in the Christian world.
However, moving away from those with political or religious motivations,
those acting for somewhat baser ideals, particularly those merely pursuing
personal gain - for example armed robbers - might reasonably be expected
to be somewhat more open to deterrence by the death penalty. Not, perhaps,
from committing the robbery in the first place, so much as the almost
casual commission of murder during the robbery in order to delay discovery
of that initial crime. If the difference between getting punished for
a robbery where no-one died and one in which the thieves deliberately
killed was literally the difference between life and death, then we might
anticipate that fatalities during armed robberies would diminish drastically.
Deterrence Requires Near Certainty of Detection
Yet, according to Amnesty International, the death penalty doesn't
deter even these cases. Why not?
Possibly because the link between the murder and the death penalty in such
circumstances is not as definitive as we are implying it would need to be.
There is sufficient doubt in the system to leave murder as an acceptable
risk. First, in the United States, where the problem is worse than anywhere
else in the developed world, the clean up rate is such that less than half
of such criminals will be apprehended. Second the competence and credibility
of the prosecuting authorities has been shown to be highly suspect over
recent decades. To the extent that, if you have enough money, there is a
good chance your lawyers will be able to so muddy the waters that a jury
will accept that there is sufficient reasonable doubt not to warrant a conviction.
The most public example of this kind of corruption of the judicial process
in recent years is, of course, the OJ
Simpson trial. Clearly, if we routinely fail to persuade juries to convict,
even when the case is clear cut, then the deterrent effect will be somewhat
diminished. For the deterrent effect to kick in:
Higher levels of detection and conviction will presumably have a deterrent
effect on their own (i.e. regardless of a possible death sentence). After
all, regardless of the punishment, it would be a fairly irrational offender
who committed any kind of crime in the almost certain knowledge that they
will be caught and convicted. The problem is that a number of such crimes
- particularly violent crimes - are indeed irrational acts carried out by
either temporarily or permanently irrational people. Consequently, we can't
expect any mere laws, even if backed up with ultra-effective detection systems
to deter them. What percentage of such crimes are committed by people beyond
rational persuasion is - as far as we know - not known and not, to date,
- The probability of detection must be very high (of the order of 90%
- The correlation between guilt and conviction following detection must
be even higher (99% plus)
In any case, let's assume that, through something
like our Trusted Surveillance proposal, we can achieve the higher
levels of detection and conviction, and, in the process we succeed in
deterring about 90% of violent crime just by demonstrating that most perpetrators
are caught and convicted. Is there still a case for a death penalty as
a deterrent in the remaining cases?
We suspect the answer is still probably Yes. While most of the remaining
cases will probably be committed by those of "unsound mind"
(for whom we generally anticipate a consensus opposing execution), there
are likely to be a small number of killers whose calculation is that the
lesser punishments are a price worth paying for the satisfaction they
get from killing their target. If that small number can be deterred by
the near certainty that, by committing their crime, they will lose their
own lives in the reasonably near future, then a strong case can be made
for holding on to the Capital option for such cases.
Of course, if the murderers are aware that, generally, we don't tend
to execute those who committed their crimes while mentally deranged, they
will tend to plead some form of insanity. That, though, is a detection
problem, not an ethical one. Clearly we need reliable means of measuring
the "state of mind" of the perpetrators. Fortunately the technology
which will, eventually, be regarded as capable of informing such judgements
is already being developed (we'll be referring to it in the Trusted Surveillance
It is also true that the testing of our proposition (that murderous armed
robbers can be deterred by the combined threat of detection, conviction
and execution) is a somewhat complex empirical exercise but, again, that
is not an argument against the principle.
In the absence of such objective tests (you should be getting used to
this answer by now), the final determination of appropriate punishment/treatment
will again be a matter of establishing the consensus.
In general the factors that will affect the consensus will depend on
the purpose for which the death sentence is being considered. For instance,
in the case of the State ridding itself of an enemy, the State would have
to persuade us
- that the prisoner was not just an enemy but that
- we too would disapprove of his or her aims and activities and
- that the scope of his or her attacks was such that killing the perpetrator
was the most appropriate response.
Similarly in the case of Punishment for a crime; we would need to be
- the prisoner was guilty
- the crime was serious enough to warrant the death penalty and
- that greater harm would be caused by avoiding the death penalty than
by using it.
On the question of Revenge, we may all feel the need for it, in a given
case, or we may simply settle for evidence that it would have the appropriate
beneficial psychological effect on the survivors of the criminal act most
affected by it.
On the issue of deterrence we would expect to see ongoing statistical
analysis showing that there was a measurable and significant reduction
in relevant similar crimes following the implementation of Capital Punishment
for such crimes.
There are those, of course, who could not accept the use of Capital Punishment
under any circumstances whatsoever. Like all other points of view, their
arguments should be given a fair hearing. One day they may even command
a consensus, or at least large enough minority to block any execution.
For as long as they remain a relatively small minority, however, they
will have to learn to live with it. This is one of the problems with Democracy!
We The People will often vote for things that "all (self defined)
right minded folk" would oppose. The majority of existing politicians
frequently use this as a justification for avoiding real democracy at
It is often tempting to sympathise with this elitist attitude. Given,
for instance, the widespread racism inherent in Society, is it not better
that decisions on Race Relations and discrimination are made by "enlightened"
members of the hierarchy rather than the man in the street? Does that
not yield an obvious Survival advantage? So it may appear, which is why
it is the ethical basis for almost all forms of Government to date. The
question it raises is, if true, why are the hierarchy more "enlightened"?
To start with, our rulers have espoused racism, sexism, slavery and all
manner of gross anti-survival policies as and when it has suited them.
So they are certainly not inherently more "moral" than those
they rule. What steps they have taken towards some kind of "civilisation"
they have always been forced to take. They do appear to be faster learners
though. And though the precise steps they have taken have been a matter
for trial and error, they usually learn - eventually - by their mistakes
- which is precisely what we can expect to happen when decision making
is truly extended to the whole population. We can be fairly confident
that they will also make horrendous mistakes. We can, though, also be
confident that, in time, they will learn from them.
The key to the rulers' so called enlightenment seems to be their ability
to learn faster. Why should this be so? Are our rulers generally more
intelligent than the populations they rule? If it is true that George
W Bush is more intelligent than the average American voter, then they
are clearly not ready for democracy. We don't accept that as the truth
however. When it comes to making informed decisions, any advantage the
likes of George Bush or Ronald Reagan ever has over their populations
is clearly nothing to do with superior intellect. The advantage they do
have, however, is that they are much better informed. They have the entire
machinery of State focussed on giving them precisely the information they
need in order make a sensible decision.
Despite this, it has become increasingly obvious over the past century
that simply having all the facts at their fingertips has not been sufficient
to guarantee a sensible decision. They've made a large number of extremely
stupid decisions. Decisions which have caused at least as much suffering
and abuse as we might fear, for example, from the kind of "regressive"
decisions a fully democratic Nation might make. In no particular order
of precedence we might hold up the examples of McCarthyism, Vietnam, the
Drug War, Iraq and the USA Patriot Act.
Consider the number of deaths and the effects on Liberty of those decisions
and compare them to the negative effects of the most illiberal decision
we can point to as having been made under "almost" democratic
conditions. We have in mind how long it took for the Swiss to let Women
participate in their democracy. That was bad. That was indefensible. But
its effects were nothing like as damaging as the decisions made the world's
most powerful "elective dictatorship".
The most crucial new argument in the field is the effect of technology.
Although it remains true that the self perpetuating elite is still largely
better informed than its subjects, this state of affairs is simply no
longer necessary or justifiable. The World Wide Web has made the dissemination
and search for information an almost trivial task. Not yet perfect by
any means - but already capable of providing any sufficiently motivated
citizen with the information they need in order to reach informed judgements
on virtually all issues which require a democratic decision. Moreover
it is also, with a few caveats, already capable of providing both the
platform for the debate and the mechanism for conducting the decision
making process itself. In a nutshell, in any part of the world where more
than 50% of the population is already "on line" there is no
further excuse for delaying democracy.
Back, though, to Capital Punishment. If we are going to execute someone,
there is the question of confidence in a criminal's guilt. Essentially,
like the murderer pleading insanity, this is largely a detection problem
rather than an ethical problem. The ethical problem only arises because
we don't yet have sufficient faith in the detection process. The rational
path here is to improve that process - which is what Trusted Surveillance
is all about. Ideally we will want to reach a state where there are no
false positives (people wrongly identified as perpetrators) and no false
negatives (perpetrators not identified as such).
We can, however, accept compromises along the way. For example, a detection
system that permitted occasional false negatives but never a false positive
would, we think, be widely acceptable. A few guilty parties might get
away with their crimes, but at least no innocents would be convicted.
However, it's going to be some time before we reach even that compromise
position, so don't hold your breath. In the mean time, we can only proceed
with what we've got. Inevitably, some cases are going to be clear cut.
Lots of reliable witnesses, plenty of forensic confirmation, perhaps even
a freely given confession and, in some cases even a desire to pay the
ultimate price for the crime. No problem. Hang 'em high.
The equally simple cases to reject are those where the criminal action
can clearly be shown to be a result of illness or other factors which
can legitimately be argued to have deprived the individual of the ability
to control their own actions. Hopefully a humane society would treat illness
rather than punish it.
The awkward cases are those where the evidence is marginal, the defendant
consistently protests his or her innocence and the jury takes 5 days to
reach a minimum majority verdict. There is a significant risk of miscarriage
of justice here; should we take it?
Our advice would be "probably not" - we'd prefer to see a requirement
that Juries would have to be unanimous in support of a death sentence,
but that's dodging the issue. We could plead that case, but again, ultimately
the only answer we can all live with is whatever the consensus says it
is after the impassioned arguments and pleas from both sides. We would
hope that in such an obviously borderline case, there would be no consensus
in favour of execution. Nevertheless, public feeling might be running
so high that they cannot be dissuaded. That's democracy folks. We do,
however, have a proposal of our own which very much places the emphasis
on the "We" aspect of the decision to execute.
Provided all those who wish to contribute to the debate have had a fair
chance to put their cases, we can't object on philosophical or ethical
grounds to a properly founded democratic decision. However, the point
we would argue publicly is that if We The People decide they want to kill
someone "We" should take on the entire responsibility for that
task and not delegate it to judge or jury. In practice this would entail
that after a trial resulting in the award of the Death Penalty by the
Jury, the defendant would then have the right to appeal directly to the
population at large. Clearly such an appeal would have to be conducted
here on the web or its successor.
We can envisage the following scenario. There would be a period of up
to one year during which the appellant would have access to the appropriate
resources s/he needed to present their appeal convincingly. The prosecution
would develop its own programme. Both would have the chance to see each
others "draft" versions of the Web broadcast and to amend their
own to answer points raised by the other side. The presiding Judge could
rule on content, with any disputes settled by appeal to the Jury. Public
discussion of the case would follow publication of the appeal and the
prosecution case. There might then follow a few days or weeks of public
discussion both in and out of the web and media culminating in a vote.
For the medium term future, the vote is unlikely to be on the question
of guilt or innocence as, in a detailed case, it is unreasonable to expect
anyone other than a jury who have attended the trial, heard all the evidence
- as well as seen how it was presented - to form a balanced judgement.
Alternative options may arise as the Web develops. We can anticipate
that future trials will actually take place on the web, in the form of
a "moderated" discussion (a VR Court before ALL the people)
with any interested parties free to ask questions of all witnesses and
the accused. Your individual vote would be weighted according to how much
of the evidence you had studied - as measured by the webware. (See essay
on the Future of the Web - The Future of Mankind)
For the time being, however, the vote would be purely on the question
of whether, given the Jury's conclusion, and the versions of events presented
by both defence and prosecution, the Death Penalty was the appropriate
punishment. We've already illustrated - above - the kind of questions
which would have to be put prior to the final decision on whether or not
to execute. The web would make a real-time democratic control of this
process quite plausible - though it might be considered quite gory. In
order to ensure that no one can take the issue lightly, we would advocate
that the final decision should be conducted by electronic referendum with
instantly computed results published at a fixed time and - in the event
of endorsement of the Death sentence - computer controlled trap door/
guillotine or whatever giving instant effect to the decision.
We would advocate this approach for two reasons. First it would minimise
the suffering of the appellant (although we recognise that this might
itself be against the consensus - people might actually want the killer
to suffer.). Second, if conducted in such a fashion, all those who voted
would be able to see the immediate consequences of their actions. They
could not hide from them or blame anyone else. At the very least it should
ensure that such decisions were not taken frivolously by the majority
of citizens. Will there be bloodlusting types who will always vote for
the death sentence? Of course. But there are likely to be roughly equal
numbers who would always vote against judicial killing. Both will tend
to be minorities, at least in today's climate. The decision will be made,
therefore, by the open minded majority who will make their decision on
the basis of the individual case presented to them.
And that really deals with the last major question. Can we justify the
occasional mistakes? In the long term the justification will be measured
empirically by the effect it has on the relevant crime. If there is no
measurable benefit, the mistake is not justifiable. If there is a significant
benefit, then regrettable though any mistake may be, the overall effect
would justify the occasional lapse. The short term answer is that the
consensus would react accordingly next time round. If they had executed
an appellant on what appeared to be a clear cut case and who was subsequently
conclusively shown to have been innocent, the doubts raised and ignored
by that unfortunate case would be a major component of the arguments put
by the next potential candidate for the death penalty and his or her survival
chances would, we suspect, be considerably improved. Our guess is that
each such error would reduce the willingness to vote for death by a substantial
margin. It would be unlikely to erode it altogether, though, as there
would still be the occasional clear cut cases where the majority of citizens
will be adamant that death is the only answer. How many Americans would
have voted to save Timothy McVeigh for example?
Without major improvements in crime prevention (such as those we anticipate
following on from Trusted Surveillance) it is likely to be several centuries
before the majority of humans consistently reject the practice of killing
individuals who are seen as having grossly violated one or more widely
supported "rules" such as those who murder for personal gain
or for political power. And when they do reject it, it will not, we think,
be on the basis of an increased tolerance for a reduced level of antisocial
behaviour, but rather on the basis that anyone who can commit such acts
is, by definition, of unsound mind and thus cannot be held accountable
for their actions.
In conclusion, despite our distaste, and much as we may like to be able
argue otherwise, nothing in Survival based ethics rules out Capital Punishment.
A cogent case can be made that, under the right circumstances, the cold
blooded execution of a citizen who has committed a serious crime may -
even though it obviously causes an immediate short term reduction in Survival
- in the medium and long term, overall survival may well be enhanced.
Moreover, it is as valid a democratic issue as all others. Our novel advice
can be summed up as
- agree a definition of crime consistent with survival based ethics
- determine democratically what behaviour fits the definition
- determine democratically the range of punishments
- make juries the centre of the legal process, with the power to propose
amendments to the law
- death sentences should be confirmed and carried out in real time using
the web to conduct the debate and the vote and then to control and,
optionally, display the actual execution.
- Set high minimum turnout and majority rules
We will demand even tougher democratic hurdles for decisions on going
to War - and that's one of the things what we're going to discuss in Chapter
First draft 1993
Last update January 2005