Chapter Nine

Crime and (Capital) Punishment

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 this 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 marital sex

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 with democracy.

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 period.

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 be uncontentious.

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 future.

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 harsher judgement.

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 Nullification".

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 lower base)

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 yes.

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.

Not always.

Agreed - there is the occasional mistake, we're discussing that question later.

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 close companion.

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 at certain 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 vote alone.

• We could allow the surviving victims alone to decide

• We could have a global vote but

  • Allow the victims to veto a Death Sentence

  • But not allow them to impose one against a global vote

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 plebiscite:

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 minimum majorities.

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 targets.

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?

Nothing?

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.

Right now.

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?

• The probability of detection must be very high (of the order of 90% plus).
• 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 description).

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 persuaded that

• 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 all costs.

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 10.

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First draft 1993
Last update January 2005

This work is licensed by Harry Stottle (2005) under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 License.