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Rafael Domingo Osle, Full Professor at the University of Navarra, researcher of Institute for Culture and Society and researcher at Emory University.

Is the death penalty democratic?


Fri, 12 Feb 2016 16:45:00 +0000 Published in El Español

It has only been a few days since 72-year-old Brandon Astor Jones was executed by lethal injection on death row in Georgia, USA, just a few kilometres from where I live at work. Brandon had been convicted of the 1979 murder of a shop owner, employee , in an armed robbery. Attempts by lawyers to placate the merciless justice of the criminal court were futile, especially after the US Supreme Court declined to consider the case (thus missing a unique opportunity) and allowed the execution to go ahead. The disconsolate silence of tens of thousands of people who have lived with intense solidarity those last moments of the life of a person who committed a very serious crime almost thirty years ago, which the American justice system, after severely condemning him, has not seen fit to condone or commute, was also sterile.

The circumstances of the case, reported in detail in the local Atlanta press, are of little interest here. For me, all death sentences are the same, regardless of what those executed have or have not done, because they all involve taking the life of a person worthy of life. For a few seconds it seems that, with the death penalty, the state becomes the master of other people's lives. I do not see sufficient justification for making death pay with death. The argument of legitimate social defence seems to me stale and inappropriate in a society with the development and the means of the United States.

One of my greatest disappointments as a columnist came when the director of a certain media outlet called me personally, which was very nice of them, to tell me that they refused to publish a column of mine in which I harshly attacked the imminent execution of Saddam Hussein for crimes against humanity, which happened on 3 December 2006. I argued then that if Saddam, who was guilty of so many crimes, was not executed, the death penalty would quickly disappear from the global map, because if anyone seemed to deserve it, it was him. That was the moment, not to annihilate Saddam, but to eradicate the death penalty once and for all. This was not how US public opinion saw it, and even less so the censorious director , who preferred to support his execution in the face of so much accumulated crime.

In my opinion, there is a powerful legal argument for ending the death penalty, namely: if human beings are limited, everything they do is limited. In other words, there is no such thing as a perfect human deed. If this is so, then there can be no perfect legal system either. Therefore, any legal system, because it is imperfect, must contain corrective elements to resolve any legal errors that may be committed during its application. At the same time, any legal system must try to avoid all unreviewable decisions and penalties. If even a constitution, which is the fundamental rule of a people, is reviewable, how can a judicial sentence not be? The execution of a person, on the other hand, by its very nature, is not reviewable, as no legal system is capable of refund the life of the executed person. Therefore, as a principle of justice, which should inform every legal system, the death penalty should be abolished.

Miscarriages of justice do exist. According to Witness of Innocence, one in nine people sentenced to death in the United States has subsequently been found not guilty. If this is so, how is it possible to continue to allow executions? It is understandable that the Florida Supreme Court, with good judgement, overturned a few days ago the death sentence against Pablo Ibar, the Spaniard who has been held for 22 years in a Florida prison accused of a triple murder in 1994 because an officer claimed to have identified him in a video of leave quality that recorded the criminal acts.

The execution of Troy Anthony Davis in September 2011 reignited the discussion death penalty in the United States. Troy, an African-American, was convicted of murdering a policeman in 1989 in Savannah, the old capital of Georgia. The defendant repeatedly denied all charges. The execution was postponed three times, but finally took place. Shortly before his death, Davis addressed the family of the slain policeman in terms that left no one indifferent. I quote and epitomise some of his sentences, which are not to be missed: "I am innocent. I did not shoot the policeman. I didn't have a gun that night. I am sorry for his death. I mean it sincerely. The truth must be established. I ask my family and friends to pray, and to forgive. May God have mercy on those who are about to take my life". Just the thought of the possibility that an innocent person could have been executed gives anyone goose bumps. Can such an extreme be taken in a democratic society in order to protect it from crime?

There is not only a legal argument, but also a democratic argument which I find even more convincing, because it concerns the political community as a whole and not only the legal system that regulates it. If democracy is the government of the people, a democratic society cannot, by definition, definitively exclude a citizen from it. Allowing the death penalty in a democratic system is as much as legalising tyrannicide in a dictatorship. If there is one thing that characterises a democracy, it is that power is at the service of the citizens and not the citizens at the service of power. The greatness of the system lies in the centrality of the human person, of each citizen, and not of the political community as such, which, although all citizens serve, we give an instrumental value to. Hence the inseparable link between human rights and democracy.

agreement That is why a serious democracy knows how to impose penalties in accordance with democratic principles and always in line with the most basic human rights. Punishments must be lenient, proportional, dissuasive, and must always be oriented towards social reintegration and Education. In the execution of a human being it is very difficult to see any hint of clemency. There is no element of proportionality in the death penalty, because every human life is priceless, priceless. Therefore, it is not comparable to that of another. It is unique and unrepeatable. The educational element is hard to find in the death penalty, because the death penalty desecrates human life. The element of social reintegration is also conspicuous by its absence, for obvious reasons. The only valid component of the death penalty is deterrence. When you know that the crime you are about to commit may cost you your life, you think twice. But the end (deterrence) does not justify the means (execution). Nor is it clear that in places where the death penalty is eradicated, crime increases. For a culture of death, such as the one that allows capital punishment, itself generates death. I think it is time for many American politicians to take heed.