Death Penalty in the Asia-Pacific
Public Forum
The International Commission of Jurists Victoria
BMW Edge,
Federation Square,
Melbourne
Friday, 29 July 2011
1730
Barry Jones
The death penalty
In the 16th Century, Michel de Montaigne, in his Essays, neatly set out
his reason for opposing the death penalty:
Judgments normally inflame themselves towards revenge out of horror for the
crime. That is precisely what tempers mine: my horror for the first murder
makes me frightened of committing a second, and my loathing for the original
act of cruelty makes me loath to imitate it. [‘On physiognomy’]
Seventy years later, Blaise Pascal argued, with typical acuity, in Pensées:
‘Three degrees of latitude upset the whole of jurisprudence and one meridian
determines what is true…It is an odd sort of justice whose limits are marked by a
river; true on this side of the Pyrenees, false on the other’.
Pascal: Pensées (60 H3)
Pascal’s words describe the arbitrariness of applying the death penalty–
so different, for example, on Canada’s side of the border with the US, or
from state to state in the US.
On death penalty issues, the most powerful intellectual influence on me
was the Milanese economist Cesare Beccaria (1738-1794). His On Crimes
and Punishments (Dei delitti e delle pene) was published in 1764, with a
preface by Voltaire, and translated into French, English and twenty other
languages. Deeply influenced by Montesquieu’s The Persian Letters,he
wrote when penal codes were savage, torture was commonplace, the
condemned were mutilated, but crime rates remained high. Britain had
about 200 capital offences in the 18th Century.
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Beccaria argued for the abolition of the death penalty with a classic
simplicity – that there is no demonstrable correlation between the severity
of punishment and the crime rate: all punishment deters but there is no
statistical evidence that execution, or torture, deters uniquely. The aims of
punishment, he insisted, are reformation and deterrence, and certainty of
apprehension and conviction are the major determinants of the crime rate.
The appropriate penalty is the lowest consistent with public safety. There is
a critical point in punishment beyond which increasing severity is
excessive because it has no demonstrable influence on the crime rate. The
aims of punishment, he insisted, are purely civil. Divine justice should be
left to God.
Austria (under Kaiser Joseph II) and Tuscany (under his brother, Archduke
Leopold) both abolished the death penalty in the 1780s, at the highpoint of the
European Enlightenment.
Leo Tolstoy saw a guillotining in France in 1857 and the image haunted
him for the rest of his life:
‘I witnessed many atrocities in the war and in the Caucasus, but I should have been
less sickened to see a man torn to pieces before my eyes than I was by this perfected,
elegant machine by means of which a strong, clean, healthy man was killed in an
instant. In the first case, there is no reasoning will, but a paroxysm of human passion;
in the second, coolness to the point of refinement, homicide-with-comfort, nothing
big.
‘When I saw the head part from the body and each of them fall separately into a box
with a thud, I understood – not in my mind, but with my whole being – that no
rational doctrine of progress could justify that act, and that if every man now living in
the world and every man who had lived since the beginning of time were to maintain,
in the name of some theory or other, that this execution was indispensable, I should
still know that it was not indispensable, that it was wrong’.
The death penalty is deeply embedded in our culture, and probably our
psyches. It is inextricably linked with Imperialism, Colonialism and
Christianity too. The crucifixion of Jesus, by a Roman method, is central
to the church’s history and teaching, central to its liturgy and art. And yet,
it is hard to see Jesus as a hard-line retentionist although in the US
Christian fundamentalists are among the most zealous supporters of
judicial execution.
Execution came to Australia with explorers and traders even before
colonial settlements were set up. (The role of the death penalty in
Aboriginal lore/ law is unknown).
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The death penalty in Australia begins with the Dutch on the Houtman
Abrolhos Islands off Western Australia, after the sinking of the Batavia.
Executions in Australia (or by Australians)
October 1629 Seven Dutch mutineers (and murderers) hanged on Seal
Island, in the Houtman Abrolhos Islands
1788-1819 probably some hundreds (300? 400?)
1820-1900 1530 executions*
1901-1940 94 executions*
1941-1967 21 executions*
1943-1944 100+ executions of indigenes in PNG by the Australian
Army, the most strange and least examined story in our
history, particularly since the Army decided not to advise the
Australian Government in Canberra what it was doing, and
why.
1945-1947 148 executions of Japanese by Australian tribunals.
It’s a fair assumption that in the 19th Century executions of Aborigines,
formal or informal, were significantly under-reported.
Ronald Ryan’s execution in Melbourne in February 1967 was the last in
our history, the 2050th person to be executed here in the 179 years since
1788.
Abolition of the Death Penalty by State (and date of last hanging)
Queensland
1922
1913
NSW
1955/1985†
1940
_________________
* Mukherjee, Walker and Jacobsen, Crime and Punishment in the Colonies (1985). In
1942 an American soldier, Edward Leonski, was hanged for triple murder in
Pentridge after a US court martial.
† In 1955 New South Wales abolished capital punishment for murder – but
inadvertently left it on the statute books for treason, piracy, and arson in dockyards
until 1985. It obviously had a remarkable deterrent effect on the last named offences.
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Tasmania
1968
1946
Commonwealth
1973
1952 (NT)
Victoria
1975
1967
South Australia
1976
1964
Western Australia
1984
1964
The application of the death penalty in Australia often turned into a
political football, outcomes being dependent on which party was in
power, and – with non-Labor Governments – the whim or enthusiasm of
particular Premiers or Ministers.
Edith Cowan, the first woman to be elected to an Australian Parliament
(in Western Australia) and whose image appears on our $50 notes, was
the product of a family tragedy. Her mother was murdered by her father,
and hanged in 1876.
Labor was abolitionist in most states from earliest times (1898 in the case
of Victorian Labor), but Western Australian Labor came in later, in the
1930s. Western Australia, with only 6 per cent of Australia’s population,
executed more (26) than any other state in the 20th Century, and nine
executions were under ALP Governments. Under Labor in Tasmania
there was one execution (1946), admittedly in an election year. In
Victoria, Labor weakly acquiesced in 8 executions (1936: 2, 1939: 2,
1941: 1, 1951: 3) by Country Party minority governments which the ALP
kept in office.
In New South Wales, there were only two hangings between 1918 and
1931, both in 1924 at the behest of Justice Minister Thomas John Ley. In
1947 in England Ley was himself sentenced to death for arranging a
particularly brutal murder, and is now thought to have been responsible
for at least one murder (of a political rival) in NSW. In 1936 in Sydney a
seventeen year old boy was hanged for a murder committed at the age of
sixteen.
In February 1951, three petty criminals from Sydney, including a 31year-old woman, Jean Lee, were hanged for murder in Pentridge and it
was one of those traumatic events in our civil society which shaped me
forever.
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In 1952 there were three judicial hangings in Australia. Astonishingly, all
three were of young Czech migrants: Karol Tapci, aged 22, in Fremantle,
in Western Australia’s first execution for 20 years; John Novotny, 19, and
Jerry Koci, 20, in Darwin. A fourth Czech migrant, Jan Balaban, was
hanged in Adelaide in August 1953.
In 1962, when the Bolte Government confirmed the death penalty on
Robert Peter Tait for the atrocious murder of an old lady, this resulted in
the formation of The Anti-Hanging Committee (Victoria) which
campaigned for Tait’s reprieve, on general principles but also because of
his history of mental problems. The victim’s son, an Anglican clergyman,
supported us. There was a bizarre race to get Tait to the gallows because
under the new Mental Hygiene Act, due to be proclaimed on his
execution date, he would have had good legal grounds for an appeal.
Ultimately the High Court of Australia acted and Sir Owen Dixon
ordered a stay of execution, a heart stopping moment for everybody in
court, following which the Bolte Cabinet commuted the sentence.
Ronald Joseph Ryan was sentenced to death for fatally shooting a prison
warder in the course of an escape. After a series of failed appeals, he was
hanged at Pentridge in February 1967. Mike Richards wrote a memorable
book The Hanged Man: the Life & Death of Ronald Ryan (Scribe, 2002).
There is much to be said for the ‘Tait substitute’ theory. If Tait had hanged in
1962 and Henry Bolte had not suffered such a humiliation due to a forced
reprieve after what was really an appalling crime, his manic determination to
hang someone would have been satiated and Ryan would not have been chosen.
I doubt if Ryan had an intention to kill but I am certain that Bolte did.
Surviving members of Anti-Hanging Committee include Janet Paterson,
John Ridley, Peter Hollingworth, Zelman Cowen, David Scott, Stan
Johnston, Mike Richards and myself.
I was a Member of the Victorian Parliament in 1975 when Liberal Premier Dick
Hamer introduced the Crimes (Capital Offences) Bill providing for the abolition
of hanging, and persuaded his party to allow a free vote on the issue. I thought
that my Second Reading speech, on 19 March 1975, was probably the most
passionately argued of my whole political career and it had a role in converting
some Liberals. Helping to end hanging gave me a greater sense of satisfaction
than anything else I was ever involved in.
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The death penalty was abolished in New Zealand in 1961, Ireland in
1963, the United Kingdom in 1965 and Canada in 1967. In Scandinavia
and Finland there had been no civil executions since the 19th Century. In
the European Union, abolition of the death penalty is now a precondition
for admission.
Strikingly, capital punishment is one of the area where the abolitionist
position is stronger among the political class, the nomenklatura, than in
the general community – in puzzling contrast to the dichotomy on
euthanasia or same sex marriages. In the UK, a Mori poll in 2009 found
that 70 per cent of those polled wanted the death penalty restored.
US Executions since 1976: ‘American exceptionalism’
The United States is the only practising democracy in the West which
still executes prisoners, often many years, even decades, after conviction.
Overwhelmingly most modern US executions have been in the Old
Confederacy – with Texas as a standout.
From 1976 to July 2011 there have been 1264 executions in the United
States.
915 were in the old Confederacy (72.3%) – eleven slave states
Texas, with 8% of total US population, had 472 executions (37%)
Virginia 108 executions (8.5%)
Florida 69 executions (5%)
Alabama 53 executions (4%)
Georgia 51 executions (4%)
206 in border states + Arizona (16.3%)
Oklahoma 96 executions (7%)
Missouri 68 executions (5%)
Arizona 28 (3%)
California, with 12% of total US population, had 13 executions (1.0%)
California has carried out thirteen executions since 1976 and it was
recently estimated that each execution had cost the state $300,000,000.
Historically, execution has been closely linked with the US tradition of
technological innovation, moving on from hanging and shooting
(beheading and stoning were never used in the American colonies) to the
electric chair, an Edison invention, to the gas chamber (which
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increasingly revived disturbing images of World War II), to the lethal
injection, a bizarre mirror image of medical procedure but where the
patient always died.
Wars on drugs and terror
Recent decades have been marked by legislation extending the death
penalty in cases of terrorism and drug trafficking. Draconian penalties
are imposed in Singapore and Indonesia, even though drugs with the
worst history of addiction and fatal illness remain perfectly legal, and
where tobacco companies are fighting aggressively to protect their right
to recruit addicts.
Singapore is a special case. Amnesty International estimates that
Singapore carried out more than 400 executions between 1991-2004, a far
higher rate, per capita, than Saudi Arabia, Belarus, Sierra Leone or
Texas. Singaporean authorities are coy about providing statistics.
‘Equivalence’ and the death penalty
Horrific events involving mass murder have left a traumatic imprint: the
bombing in Oklahoma City in 1995, the Srebrenica massacre in 1995, the
Port Arthur massacre in 1996, al-Qaida’s attacks in New York and
Washington in 2001, the Bali bombings 2002, bombing and shootings in
Oslo/Utøya 2011.
The murderous attacks in Oslo and Utøya last week raise all the familiar
issues about the heart of darkness and the capacity of violence to destroy
not only lives, but social fabric as well. I should declare an interest in this
area. I chair the Port Arthur Historic Site, a World Heritage property, in
Tasmania.
On Sunday, 28 April 1996, Martin Bryant opened fire on tourists at Port
Arthur and killed thirty five people, the greatest number of murders by a
lone gunman until last week’s atrocity, for which Anders Behring Breivik
has been charged.
The massacre shocked all Australia, and Tasmania in particular.
Tasmania’s legal system and its political and social structures handled the
whole trauma of the trial and its aftermath with great professional dignity,
and the Chief Justice, William Cox, who presided at Bryant’s trial,
expressed a fine balance between justice and compassion. Significantly,
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despite community outrage about Bryant there was no serious proposal for
restoring the death penalty, even by victims’ families.
The death penalty is inherently disproportionate, incapable of being set in
a scale of ‘equivalence’.
Andrew Chan and Myuran Sukumaran face the death penalty in
Indonesia for carrying drugs. Van Nguyen, an Australian citizen, was
hanged in Singapore in December 2005 for carrying 396.2 grams of
heroin.
About 8000 women and children were massacred at Srebrenica in
July1995. The July 2011 murders in Oslo and Utøya totalled 77. If
convicted, and we have to make a presumption of innocence, Ratko Mladić
and Anders Behring Breivik will only face jail terms, life imprisonment in
the case of Mladić and a maximum of 21 years for Breivik.
Could anybody mount a rational argument that the crime for which Van
Nguyen was hanged was worse than the offences for which Mladić and
Breivik are charged?
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