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Dear AJ Philips,

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Thank you for those interesting and well documented posts. I agree with just about everything you write. If we are not exactly on the same wave length, I think it is essentially for three reasons :

(1) as Australia no longer allows the death penalty, for the sake of discussion, we are juggling between reference to American law and practice and Australian law and practice,

(2) the half dozen examples of famous cases I cited were all American, as were the 20 innocent people on death row that you referred to,

(3) where I have in mind the reintroduction of the death penalty in Australian law based on the US model, you point out the differences between American and Australian laws as they stand today.

I hasten to add that while I am in favour of the reintroduction of the death penalty in Australian law, based on the American model, I consider that it should only be applied to those “atrocious crimes” indicated in my previous posts. However, the law is one thing and justice is another. Under no circumstances do I suggest that our justice be practised and administered as justice is practised and administered in the US (where justice is not for the poor, black or uneducated ; inhuman methods of execution, etc.).

I understand the reserves you expressed regarding the legal notion of “conclusive evidence”. Quite frankly, I think the same could be said about “ beyond reasonable doubt”. We have ample evidence almost every day on this forum that where many of us doubt there is a god, others have absolutely no doubt whatsoever that there is one, while yet others are adamant that it’s just a lot of hogwash. Who is right and who is wrong, we’ll never know.

According to some jurists, in criminal law suits, “beyond a reasonable doubt”, also known as “a preponderance of evidence”, can be thought of as “95% sure”, whereas in civil law suits, “the balance of probabilities”, often referred to in judgments as “more likely than not”, means

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more than 50% sure. I see “conclusive evidence” as a micron less than absolute certainty.

All these notions are, nevertheless, highly subjective, because every human being is different from every other human being. Human justice is by no means an exact science and, hopefully, never will be. I hope it will always remain human.

Allow me to add, whilst on this subject, that I see a lot of wisdom in Montesquieu’s magnum opus, “L’esprit des lois”. By drawing on this it appears evident that we should not just content ourselves with applying the law literally, to the letter, but look beyond that to its broad underlying principles, to the spirit of the law, its intent, and apply it in this sense, in the broader context.

In my view, whether we incorporate the notion of “conclusive evidence” in the law or not, it is inconceivable that judge and jury would not consider such evidence (like watching the assassination of Lee Harvey Oswald by Jack Ruby, live on television) as “conclusive evidence”, i.e., with an even greater degree of confidence than simply “beyond reasonable doubt”. Who could possibly imagine that he made a terrible error in finding Jack Ruby guilty of a crime that he did not commit ?

As you say, under Australian law, Supreme and District Court judges are required to issue sentencing remarks on their judgements. It would facilitate matters, if a prerequisite of the death penalty were that the jury hand down a verdict of guilty on the basis of “conclusive evidence” as stipulated in the law. Anything less than that would not qualify for the death penalty.

Nor can I imagine anybody complaining because the jury considered that his guilt was not based on “conclusive evidence” but simply “beyond reasonable doubt”.

The average sentence for murder in Australia is 22 years. The average waiting period in the US for execution was 15 years and 10 months in 2012 (up from 6 years and 3 months in 1984).

Time on death row in the US :

http://deathpenaltyinfo.org/time-death-row

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To Banjo.
To answer your question: I oppose the death penalty without exceptions.
Let me accept that the 6 examples you site do provide cases where doubt as to guilt cannot exist (I remember seeing on television Jack Ruby shooting Oswald - in the days of black and white TV).
So:
1. A J Phillips concerns seem persuasive to me particularly on the question of where the crime sits between conclusive and beyond reasonable doubt. I have accepted that the 6 examples you have given do not require a judgement (conclusive v's beyond reasonable doubt) however it is not difficult to imagine trials where this judgement would be more difficult to arrive at and therefore open to error.
2. The doctrine of the sanctity of a human life.
I bring this up in a more narrow sense - State executions degrade the doctrine to meaninglessness thereby removing a sanction (albeit a weak one) to murder.
3. Denial of the possibility of redemption - a strong argument from theology; In a secular form, the denial of the possibility of remorse and making a useful contribution to society (I acknowledge this is not a strong argument from the secular viewpoint).
4. In cases where there is no possibility for doubt there still remains the question of culpability (I accept that you might say this is not to the point of your question but perhaps there is an indirect relationship insofar as, for example, what if Jack Ruby was shown to be stark raving mad at the time of the shooting of Oswald?)

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Dear Ashbo,

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Thank you for your reply, which I appreciate.

It seems to me that the principal justification for your position on the death penalty is to be found in the tenants of the Christian religion, which, as I am sure you are aware, have changed quite radically over time. One simply has to refer to certain passages of the Bible, in particular, John 19:11 – at the moment that Pilate has to decide whether or not to crucify Jesus, Jesus tells him that the power to make this decision has been given to him by God.

According to Jesus, God himself gave the power to Pilate to take the decision on the possible application of the death penalty. This would appear to indicate that the Christian God approves the application of the death penalty.

In fact, 400 years prior to the birth of Jesus, the Ancient Greek philosopher, Socrates, also accepted the death penalty and willingly carried out his condemnation to drink a cup of poisonous hemlock in 399 BC with calm and dignity.

Socrates is credited with trying to free people from the tyranny of established creeds and, according to the philosopher, Susan Neiman :

« Socrates was the first to insist that we should rise above whatever particular mire happens to grip us, in order to seek something better and truer. He was thereby the first to introduce moral concepts backed by no authority but our own ability to reason ».

According to the German philosopher, Emmanuel Kant, “a society that does not sentence a murderer to death turns into an accomplice of this crime”.

He also wrote :

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« Life imprisonment is an extremely shameful measure, worse that a death penalty. Suppose there are two prisoners sentenced to death. One prefers death and the other is ready to accept shameful life in prison to survive. Which one of the two is better? Kant thinks that the first: "I say that the man of honour would choose death, and the knave would choose servitude".

Any person who can feel shame would prefer death to a lifelong imprisonment, while the life of those who have no dignity or shame is worthless »

John Locke wrote in his “Second Treatise of Civil Government” :

« A criminal who, having renounced reason ... hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or tiger, one of those wild savage beasts with whom men can have no society nor security »

And, regrettably, perpetrators of “atrocious crimes” are not known to express any sign of remorse for their acts :

http://edition.cnn.com/2001/LAW/06/11/victims.reax/

http://corsinet.com/braincandy/dying2.html

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Anyway, BTT: I'm an atheist, but I strongly support the right of anybody to hold whatever beliefs they like, provided they do not involve the killing of homosexuals, the confinement of women or the abuse of children.

I'm sure many believers honestly hold beliefs which are based on what they perceive as the divine, the unknowable but the rock of a good god/goddess. I'm easy with all that: one problem in society today may well be the withering away of a strong belief in the primacy of doing no harm, of trying to live a good life, putting more in than one takes out.

We all need strong and positive principles to live by, which don't involve hurting anybody else, or trying to win cheap points by shoving a stick up the arses of some other section of society. It does seem sometimes that, for many people, even some on OLO, 'virtue' depends on bringing others down and believing the worst about them, in a sort of zero-sum game: strangely, such people see to actually do very little for their fellow-humans, being content to exhibit their virtuousness in a sort of mutual echo-chamber (if that's not mixing metaphors too much), but almost consciously avoiding having to mix with the objects of their compassion. I guess I'm thinking of some of the Green supporters here, well-off, in leafy suburbs, pitying all those helpless Aborigines conveniently far away.

So no, I don't mean THOSE principles, which seem to pump some people up while diminishing the autonomy of others. Whether people think of themselves areligious or not, I applaud their honest search for values which do not demand anybody else.

This thread has now been going for a month: hopefully contributors can tackle its original issues. Although I learn so much even from the side-tracks :)

Joe