PICTURE: GALLO IMAGES

 

Recent statistics show there were 517 murders in the UK last year. That is just under 10 a week, in a country with a population of 65 million.

In the same period in SA, just short of 18 000 people were murdered, which is to say more than 340 each week of a total population of around 54 million. Our murder rate, in other words, is about 40 times higher than that in Britain, the country from which we tend to take our moral cues. That includes our cues on punishment policy.

I have done a bit of reading on the subject and what I have established with some degree of certainty is the following:

• In every human society of any consequence, the rulers have reserved to themselves the right to kill delinquent citizens (as you would expect);

• The forms such sanctioned killings have taken have in many cases been bone-chilling in their viciousness;

• It is only in the past 60 years or so that this kind of control device has been renounced in many places (though by no means all).

Specifically with regard to the British, they last carried out a public execution in 1964. It is fair to say that the national modern consensus, at least among sophisticates, is that state-sanctioned executions are depressing relics of more barbarous times. Today, the subject is taboo in “respectable” company, although a poll in 2011 revealed, startlingly, that 70% of the overall British population was in favour of the reinstatement of the death penalty in particular circumstances.

In SA today, popular sentiment is even more supportive of capital punishment than in the UK. And while this is not in itself sufficient justification for reintroduction, it is a factor that needs to be borne in mind, not only for the sake of honouring the democratic ideal but, perhaps more compellingly, to pre-empt vigilantism. The perception of a state apparatus unwilling or unable to protect the law-abiding majority is likely to lead, sooner or later, to widespread private vengeance-taking.

That is not a relevant consideration in Britain, and nor is the attitude of the investor community. Here though, this (very important) group routinely cites violent crime as the most significant disincentive of all, suggesting that decisive government action in this regard could unleash a confidence-stimulating, job-creating, crime-inhibiting boom.

Those are the kinds of indigenous factors that our (Oxbridge-awed) Constitutional Court failed to consider adequately when it outlawed the death penalty in 1995.

There are three other considerations, though, that are of far greater consequence. One is economic. The second is historic. And the third, and most important, is sociological. Consider:

• The economic point is a crude one. In a country with limited resources, it seems highly iniquitous that those who offend most egregiously against the common good should be housed, clothed, fed and entertained, at state expense, for the duration of their natural lives. This, when others, humble law-abiding others, enjoy far from adequate welfare protection. (The often heard argument that a death sentence costs a lot more than a “life” sentence can only make sense where the former is accompanied by a series of appeals over a number of years. If the sentence is carried out quickly, the argument has no application.)

• The history point is premised on the idea that raised levels of education, affluence and social cohesion are the best antidotes to a culture of destructiveness. That abolition is a luxury, in other words. A luxury that a country at SA’s stage of development probably cannot afford.

We are facing a level of violent crime that would be utterly incomprehensible to a policy maker in the UK, or anywhere else in the developed world. However, whereas those countries came to maturity on the back of a raft of truly ghastly punishments, we are expected to navigate our way there (to sociopolitical “adulthood”) without any comparable devices. Not to put too fine a point on it, we’re committed to an ultraliberal punishment policy when our levels of illiteracy, poverty, inequality and “dividedness” all point in the opposite direction.

• Ah but, all good abolitionists will retort, we know the death penalty does not actually deter. It’s been proven by research in the US that, whether it is in place or not, it has no meaningful effect on the murder rate. Ergo, it has no practical upside.

That is the centrepiece of the abolitionist case, but with respect, it is much less compelling than it seems.

Knowing that the average candidate killer is more or less unmoved by the prospect of being hanged (or shot or gassed or electrocuted) is interesting sociologically. What it does not do is finally dispose of the argument. Instead, what it drives us (or ought to drive us) to do is to reframe the question. What we should be asking is not “does the death penalty deter?”, but rather “what is the least barbarous punishment that actually will stay the hands of most of those contemplating grossly antisocial acts?” As for what this might mean in practice, that is an issue best left to criminologists and other experts.

Personally, I am inclined to accept, as abolitionists have long argued, that the prospect of being hanged in Pretoria Central has little deterrent power, especially given the fair likelihood that the villain will manage to avoid detection, arraignment and/or conviction. As for enduring incarceration — the strongest antidote available today — this could be positively beguiling when measured against a life of squatter-camp squalor. (Think about it. Free board and lodging, no more responsibilities, and some kind of status in a prison gang. Plus the chance of escape, or amnesty. Hardly forbidding if you’re uneducated, unemployable and underfed).

The tough question, then, is how to weigh up one’s instinctual repugnance for spectacles such as burning or dismembering, against the strong possibility that these horrors — or the threat thereof — are the only means that will serve to stem the relentless tide of wretchedness.

I’m an abolitionist by temperament, believe it or not, and by long-time conviction. However, as the horrors have mounted in tandem with the culture of impunity, I have found myself increasingly morally torn. On quiet days, in the guise of an adequately educated, left-liberal lawyer, I have no doubt that “cruel and unusual” punishments offend profoundly against universal standards of justice and fairness.

More and more, though, that seems like a dangerous campus conceit, one whose price is far higher than what we can, currently, collectively afford to pay.

Heneck is a Cape Town businessman

This article first appeared in Business Day