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Lex talionis

Observer Viewpoint | Thursday, January 19, 2006

The first written laws of ancient Athens were produced by Draco, a man of exacting standards who assigned the death penalty to almost every crime, including such minor infractions as “idleness” and stealing a cabbage. When the justice of this arrangement was questioned, Draco replied that small crimes deserve death and he knew of no punishment worse than death which could be given for greater ones. The thought that the problem with his laws might not be an excessive lenience towards murderers but rather an undue severity in the treatment of cabbage-stealers seems never to have occurred to him.

These days the story of Draco is not widely known and “draconian” has consequently become a dead metaphor, but, like other dead metaphors, the word has not disappeared from use but continues to lead a shadowy post-mortem existence as a vague and pretentious adjective. Frequently it is used as if it were an exotic synonym of “tyrannical,” but Draco was no tyrant – the laws he made may have been absurdly harsh, but they applied to all Athenians, himself included.

The crucial difference is this: in Athens in the 7th Century B.C. you could be executed for even the most minor infraction, but you still had to break the law; whereas in Mesopotamia during the same period you could be put to death simply because the man in charge decided that he would prefer for you to no longer be alive.

(Actually that was true in Mesopotamia as recently as 2003, although the region is now known by the name it was given in the 20th Century: Iraq.)

It is impossible to imagine a just society not based upon the rule of law, but the rule of law by itself does not guarantee justice. Draco’s one-size-fits-all approach to criminals meant that his punishments did not fit their crimes. Solon, his successor, recognized this and quickly changed the laws so that only murder was punishable by death.

I have difficulty deciding what to think about the use of the death penalty in the modern world, but I am convinced that any compelling case against its use must reckon with the fact that there are some criminals who deserve to be killed. We do not need to turn to such extreme and monstrous examples as Eichmann (executed by the Israeli government in 1962) or notorious serial killers like Ted Bundy to make the point. Stanley Williams, who was executed last month by the State of California, killed four people. If there is a reason why he should not have received the death penalty it surely cannot be that his crimes did not deserve it.

Some argue that when the state executes murderers, it is coming down to their level, but the state no more murders those it executes than it steals from those it taxes. Nor does the use of the death penalty show a disregard for the value of human life – you might as well argue that the imprisonment of criminals shows that society does not value liberty.

Especially in the United States, a large proportion of those who advocate the abolition of the death penalty do so on religious grounds. At anti-capital punishment protests you will often see the Fifth (in the Catholic scheme of counting) Commandment written on placards. But for all its apparent clarity, the command “Thou Shall Not Kill” cannot mean that the death penalty is not permissible. You don’t need to know Hebrew to see this, you just have to keep reading – Exodus and Deuteronomy, the books in which the Ten Commandments are given, both contain divine laws that explicitly prescribe the death penalty for a variety of offenses.

Those who support the death penalty but oppose abortion are often accused of contradicting themselves. Strangely, the argument is rarely made in the other direction, with opponents of the death penalty being charged with inconsistency if they do not also oppose abortion.

Since I am not persuaded that the death penalty is in principle an illegitimate form of punishment for the crime of murder, I was surprised to find that the executions of Stanley Williams and Clarence Ray Allen (who was put to death by lethal injection on Tuesday at San Quentin State Prison) have left me deeply uneasy. This is not because the punishment seems to me excessive, but because in both cases the men were executed more than two decades after they were sentenced for their crimes. It seems to me that if a person is found beyond reasonable doubt to be guilty by a jury of their peers, then the sentence should be carried out within months or at most years of sentencing. Death should mean death, not life imprisonment followed by execution. A legal system that allows decades for appeals and retrials is tacitly admitting that “beyond reasonable doubt” does not mean beyond reasonable doubt. If it really is necessary to wait decades before executing those sentenced to death, then the death sentence should not be used.

Peter Wicks is a graduate student in the Philosophy department. He can be contacted at pwicks@nd.edu

The views expressed in this column are those of the author and not necessarily those of The Observer.