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This Is The Week I Changed My Mind About Hanging

Actually, it isn’t – the ‘I’ of the title isn’t me but Stephen Pollard, described as ‘a senior fellow at the Centre for the New Europe in Brussels’ by the editor of The Sunday Telegraph, who published an article by Pollard under that title on 21 December 2003. I read it with a growing sense of dismay shading into anger, because what I had taken as a serious contribution to the debate about whether or not we should reconsider our position on capital punishment turned out to be little more than a ragbag of rhetorical devices and debating techniques which obscured rather than shed light on the issues.

Even worse, I was left with the uneasy conviction that if Pollard’s article is at all indicative of the quality of the thinking at the Centre for the New Europe then we are all in for a very rough ride indeed.

Pollard sets out the central burden of his thoughts in his opening paragraph:

‘ I have a question for Tony Blair, for Jack Straw, and for anyone else who says that they oppose the death penalty for murderers such as Ian Huntley but are, none the less, prepared to see Saddam hang. It is a very simple question, made up of just three letters. Why?’

Tony Blair and Jack Straw are more than capable of providing their own answers, but as I seemed to have been invited to engage with the article under the ‘anyone else’ clause I chose to read on to see how persuaded I might be by Pollard’s developed argument - despite the inauspicious opening of yoking together two such disparate figures as Ian Huntley and Saddam – something to which I will return more fully later.

Anyway, let Pollard continue:

‘All my adult life I have opposed the death penalty. My reasons are standard, shared, I am sure, by the vast majority of those who oppose capital punishment. Of all of them, one stands out: better that 99 guilty men should go free than that one innocent man should be killed.’

I was surprised to find four areas where this is not at all persuasive:

Firstly, by glossing over as ‘standard’ and ‘shared’ the reasons why he has opposed the death penalty all his adult life without actually elucidating them Pollard weakens his case - how does he know what other individual reasons might be, and how can we judge the accuracy of his assertion if he refuses to detail his own?

Secondly, by selecting from these mysterious reasons one that ‘stands out’ (he has not put in the qualifier ‘for me’, thus implying that its quality stands out for everyone who ‘shares’ the ‘standard’ reasons he hasn’t explained) Pollard loads the paragraph with another very dubious assumption.

Thirdly, the phrase ’99 guilty men should go free than that one innocent man should be killed’ deliberately and significantly misrepresents what actually happens – if found guilty, the 99 men do not go free – they are imprisoned.

And fourthly, the statistics do not at all support this ratio of 99:1 – the recent releases of the mothers convicted of murdering their children in the infamous ‘cot death’ cases, and the other examples of miscarriages of justice of recent years in the UK, suggest that the actual ratio would be much more worrying, with many more innocent people at risk of execution than the single unfortunate of Pollard’s example.

Pollard continues:

‘That is, of course, a practical rather than a moral objection, but I have also had a principled objection to the idea of the state taking a life when it sees fit.’

At first glance there seems to be an effort at linguistic precision here in the careful separation out of ‘practical’, ‘moral’ and ‘principled’ – but this first glance is misleading. We are dealing not so much with precision as confusion. What does Pollard actually mean here? In what sense is the decision not to execute 99 guilty men in order to ensure that we do not execute one innocent man ‘practical’ rather than ‘moral’? If we inverted it, and said that it had been decided to hang people rather than shoot them because it was more ‘practical’ – that the practice was more efficient or cost-effective or more humane – then the term would have meaning. Not executing anyone has ‘practical’ consequences in the sense of requiring accommodation, clothing, food, custodians – but the decision not to execute is only ‘practical’ if it is taken because there is no machinery in place to conduct the preferred method of execution. This is not the case here, because Pollard implies that executions would take place otherwise.

Further, in everyday parlance there is no distinction between ‘moral’ and ‘principled’, so if it is wrong in principle (i.e. morally) for the state to take a life when it sees fit then there is absolutely no difference between the 99 guilty men and the one innocent man – executing any of them would incur Pollard’s ‘principled’ objection. The notion of ‘practicality’ has no relevance here.

That said, I suspect that most people who oppose capital punishment probably do so on grounds similar to Pollard’s principled objection – that, unless there are compelling reasons to the contrary (such as threats to the survival of the state) then the state should not seek to take life when it sees fit and that execution of its citizens should not be an instrument of state policy.

(This brings us back immediately to the sense of unease in the correlation of Ian Huntley and Saddam, of course, because Saddam was both the creator and the instrument of state policy.)

Pollard is perfectly capable of describing the ‘principled objection’ argument:

‘War, certainly, presents a different circumstance, when there is simply no choice but for the state to kill in order to survive. But it is impossible to imagine how, in response to criminal behaviour, life imprisonment rather than execution would put at risk a country’s very existence.’

He continues:

‘So if last week had been a normal week, my reaction to the conviction of Ian Huntley would have been that he should be locked up for ever – that, as David Blunkett is now attempting to ensure, "life means life". And I would have had very little concern for the conditions in which he was kept – other, that is, than that they should not be comfortable.’

This is where I begin to wonder about the social and ethical thinking behind the Centre for the New Europe. Here Pollard seems to deny any possibility of redemption or improvement, that Huntley’s (or anyone else’s) personality, character and behaviour shall remain fixed in aspic forever, a lifetime circumscribed by one set of actions with no hope of change. Such a depressingly reductive view is then reinforced by the admission that the conditions of imprisonment are of no concern except that ‘they should not be comfortable’. If this is the thinking of the Centre for the New Europe, then it is starkly clear that the new Europe will not be a better Europe but rather a return to the atrocities of the oubliette and the rack. Apparently, Pollard’s principled objection to the oppression of the state is extremely limited – only to the idea that the state should not take a life when it sees fit; apparently, there is no principled objection to the state choosing to exercise any other oppression against the individual if it so wishes.

Of course, anyone who believes that the existence of a child murderer in the UK prison system could possibly be described as ‘comfortable’ is wilfully blind to the daily terrors, restrictions and humiliations that is the reality guaranteed by fellow inmates – the state has no need to implement extra-harsh regimes. The central punitive element in a sentence of imprisonment – loss of freedom – needs no reinforcement.

Anyway, all this is irrelevant, for as Pollard goes on to tell us:

‘But it was not a normal week. By the end of it, I had come to realise that I can see no reason, either moral or practical, why Ian Huntley should not be executed – or why other murderers, too, should not be killed.’

In light of the views on imprisonment expressed above one might well argue that execution is indeed the more humane course of action – but what has so swept aside his previous opposition? It must be overwhelmingly persuasive:

‘Saddam Hussein’s capture leads to no other conclusion. It is one thing to argue that taking life is always immoral. Such an absolutist view may be wrong-headed – self defence, by both states and individuals, is the most obvious refutation – but those who argue that Saddam should be punished not through execution but by life imprisonment have at least the virtue of intellectual consistency.’

Ah. So the benchmark is to be intellectual consistency, is it, even if it is ‘wrong-headed’? Again, the quality of argument is not convincing. Even if one accepts that his principled objection as described represents the majority view of those opposed to capital punishment, it does not claim that ‘taking life is always immoral’ – it claims only that the state should not be allowed to take life when it sees fit. Just as with the earlier statement that many opponents of execution would argue that it is ‘better that 99 men should go free than that one innocent man should be killed’, Pollard is setting up a false target in order to knock it down – a classic debating trick, but hardly appropriate to the formulation of a personal position or a national (or New European) policy on such a serious issue.

Pollard continues to chase this hare of intellectual consistency:

‘Those, however, such as the Prime Minister and the Foreign Secretary, who say that they oppose the death penalty (indeed, as Mr Straw put it on Monday, they continue to "campaign hard to try to extend the abolition of the death penalty") but that in this instance they are prepared to acquiesce in what they must consider to be state-sponsored, judicial murder have no such virtue. Their position is incoherent, unprincipled, and plain wrong. If they believe that it is wrong for the state to punish murderers by execution – a perfectly valid position – then it is, well, wrong. It is not wrong in Britain but right in Iraq or wrong in California but right in Texas.’

The rhetoric sounds fine, doesn’t it? - but tends once again to gloss over the tricky bits. How does Pollard define acquiescence in this instance? Or perhaps more importantly, how are ‘the Prime Minister and the Foreign Secretary’ (what happened to the ‘Tony’ and ‘Jack’ of the opening sentence, one wonders?) to express their non-acquiescence in state-sponsored, judicial murder? What are they to do? – withdraw completely from Iraq? And if they did, and the deaths increased in Basra as a result, what would the moral position be then? Likewise, I was unaware that their remit as British Ministers of the Crown extended so far as to determine judicial policy in Iraq, California and Texas. The criticism as expressed is meaningless. It continues, however:

‘They explain their position – that it is all right to hang Saddam, but not to hang Huntley – with a decidedly specious argument. According to Mr Blair, "it is for them [the Iraqis] to determine what penalties there may be". Aha! Now we are getting to the nub of the issue: Iraqis are barbarians of whom we can expect no better – a view which has been implicit in the comments of those who say that Saddam must be tried by an international, rather than Iraqi, court. Such a stance, which seems at first instance to be respectful of Iraqi feelings, turns out on further examination to be deeply patronising.’

Aha, indeed! Far be it from me to challenge Pollard on what constitutes ‘decidedly specious argument’ when his piece has so far demonstrated his own firm grasp of the technique, but – given that Saddam is an Iraqi who committed his genocidal acts against other Iraqis in Iraq – it seems to me that Blair’s position is perfectly reasonable: the appropriate jurisdiction for any criminal or civil charges against Saddam is Iraq. His words as stated contain no sub-text about barbarians and low expectations – they simply acknowledge the precedence of Iraqi law in Iraq. Any perceived implicit patronising superiority in the suggestion of trying Saddam in an international court belongs to Pollard – the jurists I’ve heard on the subject are concerned with whether under current conditions the likely Iraqi legal system could be described as competent and functional; the politicians are naturally concerned about ways of rebuilding the sense of an international community.

This is precisely why the yoking together of Huntley and Saddam is so flawed, because Pollard refuses to acknowledge that the decision as to where Saddam should be tried is enmeshed in a range of complex issues in the context of which the question of the death penalty is relatively minor. Whereas Huntley is a lone individual representative only of himself, Saddam has iconic status – effectively, he represents what was the Iraqi state. Every day the news is full of stories about the consequences of Saddam’s actions and capture – compared to which the consequences of Huntley’s actions and sentence are invisible. And this is, perhaps, just as great a flaw - because at the very moment of leaping aboard the emotional bandwagon occasioned by the tragedy of the two Soham children and their families, linking these two men essentially extinguishes that tragedy by swallowing it up in the greater horrors of Iraq. It cannot help but smack of opportunism. Pollard continues:

‘Either capital punishment is immoral or it isn’t. By refusing to condemn any potential execution of Saddam, Messrs Blair and Straw and the others who have fallen into line behind them are, from their perspective on capital punishment, supporting a grotesquely immoral act.’

The overemphatic language (why the value-laden term ‘grotesquely immoral’, as if ‘immoral’ is not pejorative enough in itself?) indicates that there is probably another slippage at work here – this time, by subtly shifting the terms of the argument from ‘taking life is always immoral’ (which has been described, remember, as ‘an absolutist view’ and ‘wrong-headed’, easily refutable via the notion of self defence) to ‘capital punishment is immoral or it isn’t’ without any further comment whatsoever (save for the extra loading of ‘grotesquely’ mentioned above).

Yet earlier in the piece Pollard provides a refutation to his own statement by allowing that war ‘presents a different circumstance, when there is simply no choice but for the state to kill in order to survive’. Which means what? - that there is a simple choice about the morality of capital punishment except when there is no choice? One might also wonder why, if one absolutist view is wrong-headed, its twin isn’t.

And once again we return to the inappropriate juxtaposition of Huntley with Saddam, for the latter is most certainly properly located within the context of war and the question of the survival of the state, however much one may argue about the legitimacy of the war itself. I would suggest that when we analyse Saddam’s function as an icon representing the passing of one state and the emergence of another - and add to this the admitted special circumstance of war and the survival of the state which overrides the morality governing the relationship between the individual and the state - we have to come to the conclusion that executing Saddam is defensible within the terms of Pollard’s own argument! He continues:

‘They are also exposing the deep flaws in their opposition to the death penalty at home. If it is wrong to execute Ian Huntley, it is wrong to execute Saddam. But that works in reverse, too. If, as the Prime Minister and Foreign Secretary appear to believe, it is morally acceptable to kill Saddam, how can it be any less so to kill Ian Huntley? It is a perverted moral calculus which holds that murdering two children is somehow more acceptable than murdering 300,000.’

Sadly, this is little more than another example of rhetoric supported by fervour of conviction rather than specific hard evidence. Pollard neglects to tell us what the ‘deep flaws’ are. It is most certainly not enough to suggest that there is any meaningful or insightful correlation between Huntley and Saddam, whose circumstances and behaviours are totally different, as outlined already; nor is there any obvious mutuality or reciprocity of treatment between them. Neither part of the equation about executing or not executing them is true or valid.

And the final sentence about ‘a perverted moral calculus’ and ‘acceptable’ levels of killing is almost risible in its own perversity – while it might have resonance in an ideal world, it clearly argues against the idea that it is right to establish a scale of tariffs when considering punishment, so that … what? All criminal acts (irrespective of gravity, circumstance, mitigation and the rest) should carry the same sentence? In the real world our legal system has formulated exactly such a calculus because not to do so would fly in the face of any notion of justice.

Further, Pollard resorts once more to the old debating trick of manipulating reaction through careful choice of emphasis – for the fact of the matter is that, in the terms presented, we find the murder of two children as unacceptable as the murder of 300,000. And who but Pollard is seeking to suggest that the only reason to treat the two men differently is a simple question of the number of victims?

Now that the ground has been prepared for the great confession that forms the basis of the title, Pollard moves in for the kill:

‘I have never been an absolutist in my opposition to ending human life. Since I accept that there are times when it is right to kill, in the last week I have had to ask myself an unsettling question: when could there be a clearer-cut example of living, breathing evil, and when could the extermination of that evil be more justified? As I watched the wonderful pictures of Saddam’s humiliation, I could not – nor can I still – think of a single reason why he should not be executed. I am left with only one response, which is that Saddam should indeed be put to death – after due process.’

I am a little puzzled as to why someone who claims never to have been an absolutist on one side of the argument should be so prepared to become an absolutist on the other – and you don’t get much more absolute than executing someone. All the agonising about morality and hypocrisy seems forgotten – the pictures of Saddam’s ‘humiliation’ are ‘wonderful’. It seems that the new overriding justification for the death penalty is simple unalloyed pleasure at another’s downfall, in all the careless rapture of the throwaway ‘after due process’. Quite what does that mean in this context? Pollard has already reached the verdict without benefit of any trial – ‘due process’ seems to be nothing more than a sham going-through-the-motions to establish a spurious validity for a sentence already decided. Where have we experienced that before? This rush to judgement continues in the next paragraph:

‘Much as I have tried to escape this conclusion, I cannot: there are no sensible grounds on which one can argue that it is morally right to execute Saddam but not Ian Huntley. Anyone who accepts that Saddam should be killed must also accept the case for capital punishment more generally. We can argue about details – to which forms of murder it should apply, and in what circumstances – but the principle is clear. Accept the moral validity of executing Saddam and you must accept it for executing Huntley – and, indeed, anyone convicted of cold-blooded and deliberate murder.’

The sense of the slipshod noted earlier comes into sharper focus here, because in his eagerness to enjoy his newfound certainty in the appropriateness of execution Pollard piles untruth upon confusion upon exaggeration:

We have seen precisely how it is possible to argue for the execution of Saddam while sentencing Huntley to life imprisonment.

Pollard has provided no evidence whatsoever to justify the statement that anyone who accepts that Saddam should be killed must also accept the case for capital punishment more generally – the grounds for accepting his execution are very specific and not at all applicable to others.

In what way do the ‘details’ of capital punishment (that it should not apply to all murders and be dependent on specific circumstances) differ from the ‘perverted moral calculus’ that so offended Pollard a paragraph or so earlier?

And how does this square with the final statement that anyone convicted of ‘cold blooded and deliberate’ murder should be executed – does it mean that hot-blooded unintentional murderers should not be executed? If so, shouldn’t Huntley escape execution anyway, then? It is arguable from the case as reported that he acted out of some form of passional excess and killed in a reactive panic rather than as a pro-active strategy. It seems accepted that he did not lure nor seek to lure the girls to his house. The peculiar horror of his act is that he was able to cover it up so well, that he was cold-blooded and deliberate after the murder.

Pollard ends his piece with the same rhetorical tricks he has used throughout:

‘The imprisonment of Saddam has made me realise that, far from opposing the death penalty, I can see no moral alternative to it. As for the idea that it is better that 99 guilty men go free than one innocent man is hanged, the response of one visiting member of the Chinese judiciary to that statement is perhaps the most pertinent observation: "Better for whom?"

If I understand him correctly, if there is no moral alternative to the death penalty then all murderers should die. But in the immediately preceding paragraph Pollard has acknowledged that some murderers shouldn’t die - which suggests that keeping those people alive is inevitably immoral even though they have been sentenced to life imprisonment rather than execution as a moral choice based upon the form of murder and its circumstances. So acting morally is immoral?

This is as impressive as claiming that we should take guidance from one of the most oppressive judiciaries in the world – though as was pointed out at the beginning, this ratio of 99:1 and the substitution of ‘go free’ for ‘imprisoned’ is a deliberately misleading and false analogy in a number of ways.

Of course, it may well be that Pollard has achieved his purpose simply by stimulating this reader (and possibly many others) into engaging with his text, and that the frailties and evasions outlined above are deliberate ploys to create a reaction. The Sunday Telegraph is in the business of selling as many copies of itself as possible next time too, so publishing material intended to prompt a response is legitimate. But it is depressing to think that such an article was itself deemed legitimate if even half the problems I have attempted to identify here are accepted as an accurate representation of what Pollard actually produced.

I cannot doubt the sincerity of Pollard’s position – it’s the way he has set it out which concerns me. The points he makes seem to me to be generally either (to use his term) specious or superficial or invalid in three areas: the lack of any exposition of evidence underpinning his argument; the lack of any rigorous application of logic and consistency of language in the development of a sustained argument; and the lack of any sense of illumination thrown on the topic under discussion.

If this represents the quality and direction of the thinking at the Centre for the New Europe then the spectre of a Europe influenced by such a group looms very dark indeed

© Mike Liddell November 2003

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