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Please forgive the inadequacy of my English...(Score: 5)
by Arthegarn on Dec 01, 2003 - 08:45 AM | (Please forgive the use of male pronouns only in this post. No offense intended.)
Hmh. Actually what is happening to the Guantanamo prisioners is an amazing example of how much the Unites States system of justice can be twisted, and to me is by far much more interesting than the Death penalty cases. From the ponit of wiew of the Science of Law it's one of the most beautiful and delicate tapestries ever done by that country. The ice is so thin in several parts... but it doesn't break, it's all arguably perfectly constitutional.
The US system of justice, as always happens with Common Law systems, is subject to potentially endless interpretations of too small and general laws. It happens with the killing methofs you talk about, for instance. The US Constitution states for instance that no man shall be put to "cruel or unusual punishment" or something like that. Well, that was written when an unusual punishment meant being burned on a stake, or the rack. It was written when flogging was NOT an inhuman punishment. But right now it has given room for interpretations that the founding fathers never bore in mind, such as not having a TV in your cell (hey, I'm serious). The methods by which death penalty is executed have to do with this amendment. Wonder what would have Washington thought if he had lost the war and had been denied a firing squad because it was "cruel" and had been poisoned instead...
Well, let's go on. Is it just to do this? Is is ust to do that? Now, I ask you : what is Justice? In Spain we lawyers don't study Law, we don't go to law school. The career is called "Derecho", which has a very bad translation to "Right", as in someone's rights, having the right to do something or doing what is right. It's not just laws, I took two years of Philosophy of the Right, in which I studied what great juridic minds had thought and said about what is Justice, what is Right, from Hammurabi to Kelsen, including the great Romans. And guess what, they don't seem to agree at all. Justice is an end on itself, it's not just a means, it's an End, even Plato saido so. I love Ulpianus's definition "Iustitia est constans at perpetua voluntas ius suum cuique tribuendi" which roughly translates as "Justice is the constant and eternal will to give everyone that what is his".
Now, what is a murdeder's? Is it death? Can we naturally or logically conclude that to one who imposes death, death must come? NO, WE CAN'T. There are two basical theories about Penal Law and the purpose of punishment. One is called Retributive Justice, based in the Law of Talion, and holds a retibutive approach. He who hurts must be hurt in the same way with several objectives a) To show him that from ill comes ill b) As a conclusion from the former, to show him that he should not inflict ill on others c) To show others, in the way of example, that from ill comes ill d) As a conclusion from the former, to show others they should not inflict ill on others e) As a way to control and insure the offended's revenge (to some degree). Only in a system of retributive justice can the Death penalty have any place.
And even then, reasons a) through d) of the retributive system are not retaliatory in the end. THEY ARE EDUCATIONAL. Punisment is not inflicted by the sheer pleasure of it, it is inflicted with a purpose: to avoid further injustices. Paraphrasing "The Siege", Justice is not a club, it is a scapel. Now, are we REALLY getting anywhere with the death penalty?
Objective a) seems accomplished by the death penalty. Isn't it? Well, the guy who dies will certainly not go back to crminal activities but did he learn anything? Did he learn that what he did was wrong and why? Given the chance would he do it again? I don't think it's any good to him. he is most likely to believe that the System and the State and the Community are hypocritical as they are condemning him to Death. So that is good for some but bad for others? Why? I think the message any country, any people should give is one and inequivocal: KILLING IS WRONG (we can discuss euthanasia or abortion some other time, OK?) And there is another point. To me the Death Penalty represents the total failure of a system, the final and utter claudication. the death penalty implies that the criminal is "damaged beyond repair", that he can never be re educated to join society again. Well I don't believe that, I can't believe that. Hope can never be lost. Perhaps he'll have to spend the rest of his life in prison, perhaps he'll never learn. But at least we keep the hope, the hope in his abilities as a human being and the hope in our society's capability of turning a bad chid into a good one.
Objective b) can be accomlished by keeping him in jail for the rest of his life. and don't talk to me about the cost of doing that, please, check your own system. The Death penalty circuit of appeals is complete AND DOUBLE. So much money is spent in lawyers as to keep that man in priosn for ten times his life span.
As for reasons c) and d) it's a FACT that what scares someone out of commiting a crime is not the strength of the punishment, it's the knowledge that he will be punished. That's a fact known by every sociologyst (and criminologyst) from here to Australia. it's not the severity of the punishment, really, believe me, it's the knowledge that some penance will be exacted. There is no need for the Death Penalty there.
As for reason e)... Well, that's really about evolution, isn't it. About growing beyond the instinct to destroy what harms us into a spirit of pity and compassion, and second chances.
I have a class to teach and I'm gonna be late, I have to leave it here. But let me share with you a graphic joke. In 1998 a Spanish local politician, Miguel Angel Blanco, age 28, was kidnapped by ETA. He was held hostage for 48 hours, the time given to the Spanish governemnt to comply with the terrorists' request. A movilization as never has been seen in my country since the arrival of democracy spread through Spain, millions went to the street to beg for Blanco's life. He was klled nevertheless, blindfolded, kneeling, two shots in the back of his skull.
The next day a Spanish newspaper portraited a caricature of a sad a man talking to his wife. He was holding a newspaper in his hand with the words "Blanco Killed" on it. He was saying "I have always been one against death penalty. Now I believe I am just another terrorist victim" |
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