Criminal Justice (Abolition of Death Penalty) Bill, 1984: Second Stage (Resumed).

Wednesday, 20 February 1985

Seanad Eireann Debate
Vol. 107 No. 5

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[431] Question again proposed: “That the Bill be now read a Second Time.”

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  When I go through the arguments that are put forward for the retention of capital punishment, as I said last week, I find the one about using something like capital punishment as a sort of psychological support for the security forces somewhat objectionable. We should look very carefully at what actually is the real reason in many societies for demand for capital punishment. All the slightly sophisticated references to deterrents and to support for the security forces are the slightly civilised cloak over what I would still believe to be fundamentally or probably some subconscious demand for retribution. I remain convinced that it is effectively seen in the one allegedly civilised country I know of where capital punishment is still used — the United States of America — as retribution rather than as a deterrent. There is not much evidence in the United States that capital punishment is a deterrent. If there is a large element of a desire for retribution, however carefully not articulated, or however suppressed, then we have a serious problem to confront about the alleged — God forgive me for using the word —“morality” which guides our state and indeed the entire western civilisation, if it exists.

It is fairly obvious from what I have said that I find none of the arguments in favour of capital punishment in the least convincing. My own view is that it is immoral — inherently so — and it is also brutal. It brutalises both those who have to carry it out at the point and the society which uses it. It is one of the finer characteristics of the development of civilisation over the last 50 or 60 years that there has been an increasing revulsion against the idea and concept of capital punishment which has led to its virtual abolition in many countries. It is a matter of great regret that in the United States they seem [432] to be, on this as in many other issues, going entirely in the opposite direction from the rest of the civilised world.

Apart from its brutality and its inherent immorality, capital punishment, as has been said so often, brings an absolutism to human decisions and their consequences that is irreconcilable with what we know about the capacity of people to make mistakes. The most recent case in the United States was the execution of a young man who, of course, as with most people who are executed in that country, happened to be black, because he was associated with a murder. This raised the whole thing, that there was not a clearcut case of somebody brutally killing; there was a whole series of associations, connections and accessory-after-the-fact sort of ideas. The fact that a society which can make very uncertain decisions of that nature, using very unclear evidence to produce an absolute penalty, seems to me to underline the fact that we are not really talking about penalties and punishment; we are talking, effectively, about retribution. Since we cannot bring back the person who is dead, we choose the next best alternative, which is to do the same thing to the person who was responsible for the alleged criminal activity. I find unacceptable the idea of an absolute and irreversible penalty like that being carried out by humans who are quite clearly fallible. Even the Minister is fallible on some occasions; we have not found one yet but I am sure we will, since all of us are fallible. Therefore, such an absolute penalty is inherently objectionable.

We have to look at the reality we are dealing with, in the areas where capital punishment is retained, with manifestations of the same problem and the same violence that exists in Northern Ireland. It is one of the many extraordinary anomalies — I have mentioned others previously — that whereas in the United Kingdom and in Northern Ireland capital punishment has been abolished — the most recent attempt to re-instate it failed gloriously to my great delight in the House of Commons — we, in this country, much given in recent times to criticising the operations of the law and indeed [433] the security forces in Northern Ireland, retain capital punishment. The sort of attitude people have about capital punishment in Northern Ireland and the United Kingdom is very close to the actual law as it exists in this country. Many people talk about capital punishment for murders of the security forces in the United Kingdom. What we have in this country is the sort of principle enshrined in law that the British Government and that public authority that we are much given to denouncing decided would not be necessary and would not be used in their struggle against violence and terrorism. It devalues much of what we say about Northern Ireland when in this country we accuse them for reasons that seem to me as much to do with a looking over our shoulder at the security forces as to do with any matter of principle and still retain capital punishment here.

It would be probably a little risky to raise the question again, but it is worth reminding this House and anybody else who wishes to listen that we have had in this country an enormous amount of talk about the sanctity of human life. While I accept that many churches have found a device for allowing the State to kill people within the law, it is somewhat extraordinary that many of the Members of this House and indeed the other House, who would be most vocal on the issue of the sanctity of human life, will be equally vocal on the need to retain the capacity to take life in another area of the way society is organised.

Violence is inherently wrong. Whether that violence has the sanction of the State or whether it be in the form of capital punishment or some other form, it is still inherently wrong and contrary to the basic principles which most people in both Houses of the Oireachtas would claim to subscribe to.

Some of the more extraordinary comments of politicians in this regard in recent times are rather difficult to understand. It appears to me that we are coming to a stage where violence can be justified provided we are dealing with somebody who is socially unacceptable. It seems to be necessary in this House [434] and in the other House, I hope, in the immediate future, for many people to demonstrate that Christianity is at its core positive and compassionate and forward-looking and not some sort of dreary recitation of negatives designed to enslave humanity. At the centre of my objections to capital punishment is what I believe to be the Christian perception of humanity as dignified, as noble and particularly, as capable of repentance. The idea of an absolute penalty suggests a level of absolute culpability and irreversible refusal to admit wrong-doing. That is unChristian and subhuman. It is difficult to reconcile something as absolute as capital punishment with any concept of forgiveness whether it be Christian or simply humanistic. Any concept of forgiveness and the capacity to forgive in all circumstances is irreconcilable with an absolute penalty such as the death penalty.

The death penalty taints us all. It is largely a reflex. I do not believe that this Government or any of its immediate predecessors would, under any circumstances ever have used the death penalty. We are getting into the logic of nuclear deterrence and the same thing could be said of capital punishment in that we need it in some way but, of course, we would never dream of using it. I would worry that circumstances could develop in the case of a particularly obnoxious crime, or a particularly offensive attack on a member of our security forces, perhaps a sustained campaign against our security forces, and something which may be in the legislation may become irresistibly attractive for a Government that is under pressure. Therefore, the fact that this reflex is available to them by way of a reserve power to commit what is, effectively, judicial murder should be removed from our Statue Book, largely to ensure that, no matter what the pressure, it would take votes of both Houses of the Oireachtas to enable it to be carried out.

Capital punishment taps into some very primitive emotions in people. It goes into some very deep and conflicting emotions that people have about their security and about violence. It is very necessary that we should confront that [435] side of human instinct and deal with it at a very basic level by removing from ourselves the possibility of such a primitive and brutal reflex action. It is indeed true that a decision to abolish capital punishment absolutely in this State would be, as recent history would suggest at least, entirely symbolic. But it would be foolish to underestimate the importance of symbols. The Church of which I am a member appreciate the importance of symbols. The State, itself, appreciates the importance of symbols. Therefore, the symbolic gesture of abolishing capital punishment would be a statement about the values of the State and society. It would be a positive symbol and indicate a willingness to deal with all our problems within the limits of normal human behaviour.

The arguments for abolition are irresistible. It is a decision that a reforming Government could handle and deal with without any great difficulty. Many members of the present Government showed their willingness, three or four years ago, to deal with this issue. They can now deal with it.

As for the Bill, in order to make it as easy as possible for the issue to be discussed and for Members and the Government to accept the principle we chose to introduce the Bill as originally introduced by the present Government. That is not to say that I am entirely happy with it. I hope when it gets beyond Second Stage and into Committee Stage that we can introduce appropriate amendments to deal with some of the more questionable clauses contained in the Bill.

Fundamentally, we are talking about the basic principle, the willingness to enshrine in our legislation the absolute right to life of all citizens irrespective of what we think of them and the absolute willingness to work within the human standards to deal with problems of law and order, however severe. Therefore, I support the Bill and I sincerely hope the Government will accept it.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  This has been a very [436] interesting debate in that the speeches have reflected a welcome tendency in the Houses of the Oireachtas in relation to the matter of capital punishment. In the very interesting speech which Senator Durcan made on the last occasion that the Seanad met he offered two views. First, he expressed a growing concern about the rise in crime and, secondly, he argued on moral and compassionate grounds that one should evolve towards accepting unconditionally the concept of the sacredness of life. He concluded in favour of the second principle.

The movers of this Bill, which is effectively the reintroduction of a Bill which was previously before the Houses of the Oireachtas, have put before us a draft of the Bill which they say we are welcome to amend. That is welcome also, because the Bill as it now is is far from perfect. For example, to make one immediate point, the substitution of a very long term of imprisonment, say, 40 years for the death penalty is an insufficient advance in my view. The concept of life goes very much further and when the matter is examined it will be shown to have been broadened very much more than the saving of physical life. It is really a notion of the retention of social and psychological existence and fullness and, therefore, excessively long periods of detention in a prison will be seen to be objectionable in principle.

Since I intend to be very brief, may I just reflect on a few points made in the debate on this issue? Most people now no longer use some of what could be called the classical traditional arguments in favour of the death penalty. Perhaps the most primitive of these — and I use this word in a very negative sense — was the justification on the basis of revenge, that is, that the loss of a life required the payment of a life. Related to that, something which survived long after the original revenge principle had disappeared was the ritual of revenge. In other words, the principle that was joined to that revenge was the principle of demonstration. Thus it was that in the earlier archaeology of punishment and destruction of life, for example, public hanging [437] places, execution places were usually located in the centre of towns and cities where crowds could come and witness executions. It was held in such a view that their witnessing provided some kind of social cement that secured a sphere and a kind of collective celebration, if you like, of virtue. In the execution of the ultimate criminal, the ultimate morality of the majority would be celebrated, so to speak. The principle of revenge has not survived even though some of the arguments about the demonstration effect of capital punishment have survived in a more indirect form.

Again, the argument used be put forward that there was an element of retribution in the case for retention or restoration of capital punishment, the idea that, in a sense, the debts that had been incurred should be paid and perhaps one might argue that the relatives of the victim of a cruel crime required that the person who had perpetrated the crime be punished and punished ultimately.

It is to the great credit of humanity that the majority of relatives of victims of heinous crimes when interviewed are more moved by compassion than by revenge or by retribution. Even asked in the most trying circumstances what they would like to happen to the person who committed a particular crime, they usually stop short of wanting to inflict on anybody what has happened to somebody very close to them. I think this is the general view. Most of the old classical arguments are over and today the argument that is offered in relation to capital punishment is a neo-utilitarian argument that more or less concentrates on the deterrent effect of capital punishment.

On the deterrent effect of capital punishment I think there is a great deal of confusion. The deterrent argument goes usually like this: it takes, for example, murder statistics before and after the abolition of capital punishment where it has been completely abolished or almost completely, as is the case in this State. They argue that if there is a rise in the number of murders has this not established a case retrospectively for deterrent. [438] This case is confused for a number of reasons, and it surfaced perhaps most graphically in the recent debate in the House of Commons. Debating the death penalty on the 13 July 1983, as reported in the Parliamentary Debates in the House of Commons, Volume 45, July 13 to 15 1983, a case was made by Sir Edward Gardner in which he argued for the restoration of the death penalty for crimes of terrorism. In the course of doing that he advanced a proposition that was suspect I think or at least could not be demonstrated in fact. That is, does the existence of the death penalty discourage terrorism and the answer is no. One could point, for example, to countries like Turkey. Then Sir Edward Gardner is left asking would the existence of the death penalty lead to a reduction in crimes of terrorism. I think that can be challenged very effectively because I think in many ways no conclusive evidence can be produced.

The person who on that evening argued against him was no less a person than Mr. Edward Heath. I think that perhaps the most cogent argument of the debate in the House of Commons on 13 July was made by Mr. Roy Hattersley. Mr. Roy Hattersley took up this neo-utilitarian question and then he asked, what would it achieve even if we had taken Sir Edward Gardner's thesis as true? What would be the effect on society, taking the neo-utilitarian's argument on its own merits, of justifying in their case the bringing back of capital punishment, to deter crimes of terrorism. If you had accepted all the arguments and they still did not relate to most of the murders which were committed in Britain, you then had something the case for which was not demonstrable, but you had the principle of the taking of life in official circumstances remaining on the Statute Book with the inevitable effects that it would have.

I think that Mr. Hattersley quoted something that was not a matter of opinion but a matter of fact. Of one thing we can be sure, and that is in regard to the people who had their lives taken officially in mistake. You can push this argument [439] to the extreme — I do not — and say would not one such case make in itself a case against capital punishment because of the irreversible nature of such a sanction? Mr. Hattersley does no such thing. Mr. Hattersley quotes a number of cases that are in fact very much greater than the single case. He talks of going through all of the cases that he has examined.

It is far more interesting to reflect on why this debate came back in Britain. It is necessary to take up this question of the relationship of a rising crime rate which involves increasing murders to the presence or absence of the sanction that is capital punishment. I think you can demolish most of the arguments perhaps, without becoming academic at all about the matter, by simply saying that the people who make the case about the rise in the number of murders because of the abolition of the death penalty divorce the rise in the number of murders from the general rise in violence in society and the general rise in the total number of crimes. In other words, it is not a matter of the existence or non-existence of capital punishment: it simply cannot be shown because you cannot separate the kind of murder, if there be one, which would be deterred from the general nature of crime in society.

I want to turn to something that is a matter of principle. Lurking behind the debate on capital punishment and its retention is a debate that is only occasionally addressed — I am not going to develop it this evening: it would not be appropriate — and that is the whole debate on the basic philosophy of punishment. What does punishment achieve? What happens when punishments, for example, that involve the administration of pain are employed? There is very considerable evidence to suggest that the punisher suffers as well as those punished in the psychological relationship that goes on with infliction of pain. I think it is for this reason that most painful sanctions have been removed as part of the advance of society.

One could move on from that and ask what happens a society that retains the [440] concept of the taking of a life in any circumstances. I think that it is one of the good things in this country that there has been in the Legislature something that is frequently ahead of popular feeling, an attempt to move towards the fullest acceptance of that principle, that is that we would abolish capital punishment entirely. Perhaps acting as a brake on that is the fact that those who have come to that position are sometimes less moved by the fundamental philosophical principle about life than they are about what they feel to be the socially acceptable base on which you can remove capital punishment. It is interesting to note how the debate came back in Britain. It came back in an atmosphere of hysterical misconception about crime. Earlier in another debate this year I quoted the Tory attitude to the crime problem in Britain. Frankly, it was felt that their manifesto was a bit soft on crime; they discovered this through the polls and therefore they redrafted the manifesto and added in a few paragraphs that were suitably hard and sent Billy Whitelaw off to make a few speeches more or less of a “round-them-up-and-hang-them” variety and it was felt that this was going to get more votes in the Britain of the day, a Britain more fearful than anything else. When one goes through this volume of the House of Commons, you find people making statements about the connection between capital punishment and the crime rate that are really never justified. I do not believe evidence can be offered in this regard.

What is the effect on society of the total retention of the death penalty, the partial abolition of the death penalty or the total abolition of the death penalty? I am totally in favour of the third option. Society is celebrating life when it has finally said that it will abolish the death penalty. I know the arguments that will be offered in relation to this last remaining source of justification for the death penalty are of two kinds: that a certain kind of criminal will be deterred by the death penalty — that is not demonstrable — and that a certain kind of victim [441] needs to be protected by the death penalty — this is not effective. On 15 October 1981 the Minister for Justice of the day quoted the 1966 Journal of Criminology of Australia and New Zealand in the Seanad debates, Volumes 96 and 97 in which it was stated:

Brutal punishments accustom people to brutality and tend to create attitudes conducive to the commission of violent crime.

I agree. The philosophical principle on which capital punishment is built as a deterrent presumes through fear you can encourage people to respect life. The alternative principle is that by removing the destruction of life, even in the name of the State, you move to a position when the State affirms the absolute right to life and in doing so moves on to sustain this view and encourage it in the population and create a respect for social values and so forth. It is a very significant stage in a society when it finally comes to accept that principle.

I need not spend too much time on the old arguments that were made as to the distinction between capital and other forms of punishment, the idea that the ultimate crime required an ultimate sanction, as if we were talking about life on some kind of scale. Neither am I interested in the argument — I think it is a partially valid one — about making a mistake. We have all read horrific accounts of innocent people who were executed, who cannot be brought back to life. I do not base my case on that.

I base it on the simple fact that in the end of the day we are left with only one kind of argument propping up the retention of capital punishment in any circumstances, that is, the notion of capital punishment being some form of deterrent. That argument has been proved to be bankrupt. The rise in crime, in violence and in killing is a separate matter from the effect on society of the continuation of capital punishment for any reason.

I have said, perhaps to the point of boredom, that the unlimited good effects of the abolition of capital punishment are very demonstrable and appreciable.

[442] Another subtle argument was advanced in a recent debate in Britain, that perhaps the price you have to pay, of another kind, for the abolition of capital punishment will be too high. The argument is being made that if you have a police force that is unarmed and if you abolish the death penalty and policemen are killed are you then not moving towards paying the price of having an unarmed police force? This is based on a misconception as to the nature of the rise in crime and the rise in violent crime. It behoves those who advance this argument to prove their case. However, we have to try to move into an atmosphere in which our philosophy of punishment is one in which we can criticise principles, if we have been moving away from revenge, away from retribution, moving through the muddy waters as to what deters and what does not deter.

We have been paying lip service to the idea of rehabilitation. There is evidence in our Department of Justice of the acceptance of the principle of rehabilitation as a guide in penal philosophy and in policy in relation to criminal matters. That is a good development. Rehabilitation is based on that positive attitude that you can encourage people to develop a social sense and encourage people to change. It is a wise and welcome development. What we are left with is interesting.

One can gather together the books written on this subject over the years when it was debated in Britain and elsewhere, for example, James Kristoff's book, Capital Punishment in British Politics, or A History of the British Movement to Abolish the Death Penalty from 1945-57, published by Allen and Unwin in 1962. That volume shows all the old arguments being disposed of. Reading an account of the debate in Britain I felt that old fossils were coming out again. What had called them out? It was an ill-informed view of crime, an abuse of power and privilege to whip up fear, and where real fear existed it was fanned into alarm. The whole nature of crime had been exaggerated and a moral panic had been created in a community.

[443] Out of history came these ancient arguments, “Let us reach back for the ultimate sanction. Show them the rope: That will deter them”. People from the Tory benches began to say, “Hear, hear”. It is to the great credit of the British Houses of Parliament that some distinguished people in the Conservative Party, including former Prime Minister, Edward Heath, and many people in the Labour Party and most of the Liberal Party stood up and opposed this kind of reintroduced savagery. The way in which public opinion had been used and manipulated to demand a debate twice in five years on the restoration of capital punishment was interesting.

We say many negative things about our society and it is to our credit that most public opinion has stopped short of this. Nobody but the odd crank has made the statement, “bring back the rope”, and so on. Such people want to have a symbol of death to sustain their society; they want to take a negative view of society and a compliance and respect for law. Think of the imagery that surrounded hanging — the black cap, “May the Lord have mercy on your soul”, and so on. People would pray at the last minute, at the moment of the departure of the individual life. That punishment was a blackness, a blight on our civilisation.

I am glad this Bill has been re-introduced. I am equally glad that there have been so many speeches so far in its favour. It would be wrong to create an impression that there was a lethargy on the part of the parties in Government in taking this final step, the abolition of the death penalty, within the Joint Programme for Government. It was there because forward looking people saw that we needed to have a better view of punishment, of rehabilitation, of the encouragement and establishment of social values and so forth. I look forward to the day when we will have finally abolished capital punishment.

I will conclude by addressing my remarks to any of my fellow Senators who might want to argue that times have changed, that society is breaking down, [444] that violent crimes are increasing, that murders are increasing and so forth. They would be disposing of matters of principle. They are no longer dealing with the issue of whether it is right in the name of the State to take a life. They are making that conditional and are saying that social conditions justify the taking of life, in certain circumstances admittedly, for given reasons.

They have an enormous burden of proof for a start. Will they offer us evidence of the deterrent effect of what they are going to suggest? Will they do something else? Will they tell us that they are willing to wear the effects of turning back the forward movement, that is, the total abolition of the death penalty? These are questions they must answer. If they do not answer these questions they are left with a statement that might be made. Maybe some of them are going down the road of the Tory Party, taking refuge in the inflamed fears of those threatened already by crime. I hope there is none — I am speaking entirely in the abstract. I am moving the debate from one island to another perhaps too much. I have heard politicians make the case that out of public fear one can construct a political principle. I think it is a matter of the utmost principle, a matter that cannot be mitigated by any of these fears, real or imaginary, that we should finally abolish the death penalty.

As Chairman of the Labour Party I say that as far as the Labour Party are concerned all of my predecessors felt for several decades since our party was founded in 1912, going back over our annual conferences, going back over the records, favoured total abolition of the death penalty. The Labour Party like many other parties contained working people and people harassed by many of the vicissitudes of life. They were victims of crime and many of them participated in the different penal systems here. I would urge that when we abolish the death penalty by passing this Bill we will accept that we are doing so out of principle.

I notice that the draft contained a foolish mistake of assuming that we need a [445] totally unreasonable period of incarceration to balance the abolition of capital punishment. It is not a logical position. If out of principle capital punishment is abolished totally how can one move over and immediately say, “Then we need to create a deterrent of equal magnitude, and that deterrent will be the loss of liberty for most or perhaps nearly all of one's remaining life”?

That would not be a sufficient advance. It would be an enormous regression. We must realise in principle that the final abolition of the death penalty will be accepting a position in the debate as to the philosophy of punishment, the philosophy of crime, what will be acquired as the acceptance of a new approach. I have said that the evidence is already there, that we have accepted most of the arguments of rehabilitation. It is on the best of ourselves we must build. It has taken us all this time to abolish capital punishment as it took the administration in the neighbouring island, from Wilberforce on, all of the time to abolish slavery.

The abolition of the cruelty of extraordinary long prison sentences is beginning to happen as well, because we are beginning to accept there is a need for that. I suggest that we examine the nature of our society on the basis of our fear. My views are not based on any kind of abstracted academicism. I believe that in matters medical we should look for proof. In matters social like that of crime and punishment anyone who has reservations about the total abolition of capital punishment has an enormous burden of proof on him. I would suspect that even if they could make convincing arguments, those convincing arguments cannot defeat the principle that it will be a good day when the Minister for Justice presides over the sending of a Bill to the President for signature that will celebrate life and remove finally the notion that the State can participate in the ending of a human life.

Mrs. McGuinness: Information on Catherine McGuinness  Zoom on Catherine McGuinness  I support the Bill. I hope it will be passed. I do so largely because I consider that the death penalty is simply wrong and that it should be [446] removed from our Statute Book. I personally was extremely pleased when the Seanad passed the previous Bill abolishing it. I was sorry that that Bill fell to the ground at the end of that Government. At that time I referred to the fact that there had been a good deal of opposition to the abolition of the death penalty by the Association of Garda Sergeants and Inspectors and the various sources from among the Garda. I felt and still feel that that opposition, while I accept that it was sincerely based, was not really relevant, that to do away with the death penalty will not threaten the forces of law and order in the way it was thought it would.

Largely, I think, this is because I do not accept that there is any logical proof that the death penalty works as a deterrent, particularly in the kind of crimes that we are thinking of in terms of the 1964 Act. When we look at our reasons for asking for the abolition of the death penalty we need to be sure that we are actually doing this for logical and humane reasons. When we look at the whole question of deterrent, generally the argument made by people who want to retain the death penalty is that it acts as a deterrent. I would suggest that is often a mask for what people's real feelings are than a true expression of what they think.

If the people who say that it is a deterrent look into their hearts they will realise they are looking for a form of retribution. Those people, to use an emotional term, are seeking vengeance for the crime rather than thinking that it would deter other people. If we look at deterrent in a logical way, if we are relying solely on deterrent and carry it to its extreme, there is really no reason why we should not introduce enormously out of proportion punishments for offences.

For instance we could suggest that one might be put to the torture for parking offences. I have no doubt that that would deter people who leave their cars at a meter for too long. But I think that all of us would regard that as being the wrong approach to crime.

We could also suggest if we really wanted to deter people from committing crimes that their relations would be [447] imprisoned, for instance, that their children would be taken away, their wives or husbands could be imprisoned. Perhaps that might be an excellent deterrent. But most of us would regard that as being the wrong approach, and we would be right in doing so. That is because we accept that if we are to punish for a crime we will punish someone who has actually committed it. It is punishment. It is not just deterrent. We cannot carry the deterrent argument to its logical extent in that way.

Most of the research that has been done into the way in which the death penalty may deter people from committing crimes has resulted in a non proven verdict. Most of it does not show that the death penalty works, as a deterrent, that fewer murders were committed simply because there was the death penalty.

Though I would naturally be extremely anxious to protect the members of the Garda from attack, the sad experience over the last few years has shown that the kind of people who are most likely to murder gardaí are those who would be quite prepared to offer themselves up for martyrdom and might feel they were making sacrifices for their ideals and so on and would not necessarily be deterred at all. It is sometimes suggested that we use the death penalty as the extreme sign that society disapproves of the crime that has been committed, a sort of reprobation by society. We do not need the death penalty to show this. On the various occasions when gardaí have been murdered and when the situation envisaged in the 1964 Act obtained, it has been perfectly clear how much the public disapproved of it and how very strong public feeling was about the murders of members of the forces of law and order. This was very clear without invoking the death penalty, and it will continue to be so because people's reactions were not at all dependent on the fact that there was a death penalty on the Statute Book. If the people involved look at it logically they are probably bound to say that even if the death penalty is there it is unlikely to [448] be carried out. Therefore, how can we say that it is acting as a full deterrent?

There is great difficulty in comparing statistics between one country and another because the types of murders committed very often vary greatly from country to country. The type of murder envisaged in the 1964 Act, in which we have our limited death penalty, is frequently for political or quasi political reasons or which arises out of a crime committed by persons who are doing it in a context of subversion or quasi political feelings. They are not the sort of persons who would be deterred by the death penalty.

It is sometimes suggested that perhaps a very long sentence in prison is a penalty almost worse for the person who has committed a murder but if you asked anyone who is facing the death penalty would he accept commutation to life imprisonment, I think you would find exceedingly few who would refuse.

If one replaces death by terms of imprisonment there is the hope of rehabilitation, that during the period of imprisonment, if our prisons and systems of detention go about it in the right way, prisoners will reconsider their position, accept their punishment and return to society as persons who can contribute in an ordinary way to the community. I say this particularly because murder is a separate crime; it is not usually committed by what I would call regular criminals. It is very often a crime which stands out very much on its own. The person who commits murder may not be the sort of person who in our prison system, our probation and legal systems, would be regarded as being recidivists, hopeless of rehabilitation. I imagine that the hope of rehabilitation may be greater in some of these cases.

I am very much in favour of protecting the institutions of the State and above all the ordinary gardaí carrying out their duties, but we are not protecting them by a theoretical penalty whose deterrent effect is very doubtful indeed.

To return to the main point of the Bill, the abolition of capital punishment, one [449] of the major questions in this is on whom is the onus of proof here? The onus of proof is on those who wish to retain capital punishment because all of us feel that the taking of a life is a very serious matter. The State takes life surrounded by, as it were, the panoply of law and State. It is done with great deliberation. For the State to take this action it must be able to show that it is achieving something worth while by so doing. This onus of proof has simply not been met in any of the discussions which I have heard on the form of death penalty we have. The Government accepted the desirability of abolishing the death penalty on a previous occasion and we have a similar Government here who should accept this Bill and bring it into law as soon as possible. I very much regretted that the previous Bill passed by the Seanad did not succeed in being brought on to the Statute Book. I hope that this time we will succeed.

Mr. McDonald: Information on Charles B. McDonald  Zoom on Charles B. McDonald  I listened with great interest to Senators Higgins and McGuinness and they have stated the case extremely well. In listening to the debate I was thinking of what value there is on human life nowadays. The situation seems to be deteriorating almost weekly. Every weekend there is a series of attacks on the more defenceless people in our society, on old persons and persons living alone in remote areas. I tried to envisage what are the ideas of the ordinary person in the street, the people whom we represent, about this Bill. I believe that there should be a deterrent, and the death penalty is the ultimate deterrent, but I am not arguing that it should be a mandatory sentence for a court to impose. Nevertheless, it surely must be of some use to have it there so that there will always be the possibility that it could be used if the situation arose. If one reads the papers one sees the difficulties our law enforcement people are having. The Garda have been under severe pressure for the past few months and from that point alone this is an inappropriate time to introduce a Bill of this kind. On the other hand the modern thing now is that when one [450] speaks about the sanctity of human life it is nearly always used when people are speaking in defence of the unfortunate lawbreakers in our society who, once they commit a heinous crime, the more horrible it is the more sympathy they evoke from some quarters. This is difficult to understand.

I am not speaking from the point of view of being in favour of capital punishment. It is no harm to have it sitting on the Statute Book. On the last occasion that the sentence was passed on a criminal, who was convicted of murdering a garda, it gave rise to a lot of protesting and clamouring for clemency and to have Article 3 of the Constitution used by the President.

I recall seeing a programme before Christmas on RTE where a young married woman was bitterly complaining outside Portlaoise prison that her infant son was being denied the right to see or embrace his father who was behind bars and would be there for the next 40 years. That interview evoked a lot of sympathy right across the country. People said; “Is this not a cruel society that would deny an infant the right to be embraced, to speak to or to be comforted by his father?” It was on two nights. I was disappointed that the Minister or the Commissioner of the Garda did not come on to set the record straight. I am not a legal luminary but I know that anyone who is serving 40 years in Portlaoise is there for only one crime, that is for the brutal murder of a member of the Garda Síochána. I believe that the Garda Commissioner should not have allowed an imbalance on the media to get away scot free. He is doing an injustice to the force he is head of.

I do not know the cure for the difficult situation this country is progressing into. I do not think any country has found the perfect solution. I listened with great interest to Senator Higgins' very charitable and well reasoned speech. I was very impressed by it. Is it sufficient to speak like that to some old person who had been visited by a group of blackguards the night before? During Christmas week outside Portlaoise two old ladies [451] over 90, who were living alone in complete independence, were visited by a gang who, unfortunately, are not yet caught. They took approximately £1,500 from them. Both of them were dead within ten days. What do you say to those kind of people? What about the fear that act instils in people? I am not suggesting that there should be capital punishment for that.

How are the Minister for Justice and the Garda Síochána going to try to provide protection for the public or to try to redress the imbalance there is in society when every second speech made appears to be coming out very heavily in favour of the people who break the law and who have scant respect for it? I am not criticising my colleagues. Is the argument put forward by Senator Higgins sufficient? Who is going to listen to him? Is the fellow who goes in with a pick axe into a pensioner of 80 or 90 in the middle of the night and breaks up every stick of furniture and so on, in the least interested in listening to that kind of argument? That is why I believe there must be a deterrent. I believe the gardaí who have to go out and risk life and limb in rounding these guys up are entitled to strong support even if it is only verbal support in the House. They are entitled to have the protection of the law behind them. It may be helpful if there is an ultimate deterrent.

The difficulty about this area is that it is one that is emotive and brings out people with very strong views one way or the other. The only people in favour of capital punishment and who operate it are the political terrorists. They are in operation every week. Hardly a week goes by without somebody being summarily executed, I do not know if they pick them by numbers. They find it effective to keep their people in order. That is deplorable. There is no point in trying to argue with people who are motivated for their own political gains and who have absolutely no hesitation in blowing the head off a person they suspect of rambling across their path.

[452] There is no real solution to the problem. While I am impressed by Senator Higgins's attitude I still think that it does not tackle the nub of the problem. How do we assist the Garda Síochána to effectively police and protect the citizens of the State? We appear to be losing the battle. The State cannot even handle young adolescents of 13, 14 and 15 years who run riot especially in the city. There is no protection. Anyone over 50 who is walking slowly in Dublin city is likely to be attacked. It is a shame that people are prisoners in their own homes. I am not saying that the crimes these young blackguards commit should fall into the capital punishment category. Nevertheless they are going in that direction.

On the question of rehabilitation I hope the Minister will set up another commission to see what progress is being made in every other country, especially the progressive countries. There should be rehabilitation for first offenders. After that they should be behind bars and securely in custody with the minimum of frills attached. I do not think there is a great deterrent in committing people to gaol. It is useful to have a measure such as this before the House as it helps to concentrate our minds on a growing problem. We should try hard to find a solution to this difficult problem. I compliment the Minister on his task and on the progress he has made since he was appointed Minister for Justice. I hope that he will be in a position to tackle this problem at a more appropriate time.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I agree with Senator McGuinness that it is a pity this was not dealt with in 1981 when the then Minister for Justice, Deputy Mitchell, brought the Bill in and the House would not have to be going through this whole process again.

With regard to a remark that Senator McDonald made, I know he did not mean that Senator Michael D. Higgins, in his contribution, was encouraging crime or that it may be taken out of context and somebody might believe it. By supporting the Bill all that I and my colleagues in the Labour Party are doing is making it [453] quite clear that it is our policy that we unequivocally support the abolition of capital punishment. This has been the Labour Party position for quite a long time and it is not likely to change.

It is not a question of whether crime will be encouraged but a question of whether the State should take revenge by the sentencing to death of one human being and by doing so bringing about a deterrent. This is a debate also about the world movement towards the abolition of capital punishment. World experience is measured against our experience. The fact that the Bill was not completed in 1981 when it was first introduced has given the opportunity for more information to become available to us. Some of us may not have had an opportunity of up-dating ourselves on it although recent events will be supportive of the views put forward by the Labour Party.

In 1981 over 50 countries had abolished the death penalty. In Belgium the last civil execution was in 1863, in Finland 1826, in Norway 1876, in the Netherlands 1860, Uruguay 1877 and Venezuela 1863. There are many other countries which I could refer to. I shall refer to other areas later where abolition of the death penalty has taken place and also the areas where it still exists.

Uruguay is a small country like Ireland and is South America's smallest democracy. It has a population of about three million people. It is sandwiched in between Brazil and Argentina. Up until recently that country was in the midst of an upsurge of guerilla warfare which was not as accentuated as other areas in South America. The guerillas were very active on the streets of Montevideo. There were killers of government members, diplomats, armed forces and so on. At that time it was suspected that they were supported by the President of El Salvador and by Fidel Castro of Cuba. Both of those people believed that it was an ideal centre for the springboard to generate a revolution in the whole of South America. In the midst of these killings, a lot of kidnapping and assassination was going [454] on and the guerillas took over radio stations, burned, bombed and ruined business generally.

The futility of all this was seen and eventually it all finished by them going to the ballot boxes in 1971. Whilst they were defeated at the ballot box it is interesting to note that in the interim the question of the reintroduction of the death penalty was not discussed. This is the point I should like to establish. In this small country where they had this atrocious situation, they were able to contain it and eventually bring murderers, kidnappers, extortionists and so on into the way of the ballot box. When those people lost at the ballot box and more trouble sprang up it was not found necessary to reintroduce capital punishment to deal with the problem. If we are sincere about the arguments for retention of the death penalty for certain murders we should look at the situation in Uruguay I have outlined. It is a good example as it is a small country like ours. There was much more trouble on the streets of Montevideo and it was not found necessary to reintroduce the death penalty. They brought the situation under control. Senator Michael D. Higgins would probably know a lot more about the present situation there, but up to 1971 and later things were quite stable.

You can carry that argument in relation to a lot of other countries. Take for example America. In some of the states they have the death penalty and in other states they have not got it. They have even had anarchy in some of the states where they have not got the death penalty and yet they did not find it necessary to introduce it. Of course, America is not the best example in the world. The fact remains that an awful lot of thinking goes into it in America because of the variations in states why one state does not bring it in and another does. By and large, you have got to come down on the side of the people who in fact do not reintroduce it, where they have done away with it in the sense that they, on the basis of acquired knowledge throughout the whole of the United States, do not believe it to be a deterrent. This is the nub of it all. Is it a deterrent? [455] Will it prevent some guy, in the heat of the moment with excitement running through his veins and trapped in a corner, from firing a shot whether the man is a civilian or in uniform? Quite frankly the answer to me seems to be that it will not.

In the world situation the abolition of the death penalty has led neither to an increase nor a decrease of the number of murders committed. Where it has been retained the situation seems to be no different from where it has been abolished. It is quite clear that if a fellow has the glamour of being in a power situation and has a gun in his hand and he has no way out he will not at that particular time think of whether there is a death penalty. That will not enter his mind. Survival will be in his mind. He will not even think at that time that even if he bumps somebody off the process of law is finished, it could be anything up to two years. His immediate concern will be to get himself out of there and to survive.

The question arises as to whether everybody who goes out with a gun in fact goes out to kill. I am not saying that some do not. By and large it seems to me that the people who go on out with a gun and use it as a means of persuading people to hand over money and if, in the course of doing that, he or she is detected, then the whole question of whether that person will blast his or her way out of that situation is what is uppermost in his or her mind. That person's first priority is to get out of there and whether there is capital punishment or anything else will not in fact stop that person from coming to that particular conclusion in the heat of the moment. Most of us agree that there is glamour and power surrounding the muzzle of a gun.

I do not think that there is any way we can guarantee complete security, peace, happiness or freedom for our people. They all have to be continually worked at. We are at it day in and day out. If it is not this legislation it is some other legislation. I do not think the abolition of the death penalty will mean that we will get this security or that gardaí or prison wardens, diplomats and others [456] whom we are trying to protect under the existing legislation will be protected in any way by the fact that the death penalty is kept.

So far, we have not proved that we have managed to keep the death rate down by having this law still on the Statute Book. To some extent it is a little bit of a joke, because it is about 30 years since Pierpoint's services were found necessary.

Debate adjourned.

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