Policy discussions about capital punishment usually either focus on the normative question or procedural flaws. In countries like China and the United States, clear majorities of the population favor capital punishment, which takes care of the moral issue for many lawmakers. However, because of that public support, many procedural problems are overlooked or deliberately ignored, such as racial bias in the U.S.

In China, some of the procedural challenges have been addressed by reforms in the past few years, including a mandatory review by the nation’s Supreme People’s Court. There are limits to major reform efforts, though, and strong public opinion supporting capital punishment is often used not only to beat back attempts at abolishing the death penalty entirely, but also to push back on new rules that would significantly reduce the number of capital cases.

An Op/Ed today on this issue muddles the normative and procedural issues somewhat, and misses an opportunity in doing so. Here’s the basic argument:

Despite efforts from the government and lobby groups to reduce death sentencing, the Chinese public still favors capital punishment for those convicted of violent crimes. This contradiction often raises doubts over whether China can ever eventually abolish the death penalty.

[ . . . ]

However, critics point out that people wrongfully executed have no means of redress.

Some credit should be paid to grass-roots movements by NGOs and public figures, whose efforts have significantly raised public awareness on the fairness of the death penalty and its impact on human rights.

[ . . . ]

But will these changes reach the minds of the Chinese public? It is possible. More and more legal professionals and public intellectuals are starting to participate in grass-roots campaigns to promote values that cherish human life more.

OK, granted, this Op/Ed is not a lengthy, well-reasoned argument. However, there’s enough there to reveal the muddled approach. If the issue is public opinion and “rights,” then we’re talking about a normative discussion. Many of the NGOs that compile wonderful statistics and conduct detailed studies are making a mistake when they bring that data into a question of the morality of capital punishment. Who cares whether one or a thousand people are executed if the argument is that it is morally reprehensible? The numbers are irrelevant, unless perhaps the goal is to increase people’s feelings of personal guilt.

But when the discussion turns to “wrongful execution” and “fairness,” that’s another matter. Sure, there’s obviously a moral problem with executing the wrong guy, but the fundamental criticism is one based in rule of law: the system isn’t working the way it is supposed to. In this discussion, data is paramount. One or two procedural mistakes might be acceptable from an administrative point of view, for example, but when the number of mistakes reaches a certain level, the argument that a system is fundamentally flawed becomes much stronger. (I personally favor a zero-tolerance policy towards administrative failures when it comes to the death penalty, which is why I don’t support it.)

The advantage of this argument is that it completely sidesteps the normative question. It doesn’t matter whether you think the death penalty is right or wrong. Everyone should support fairness and attempts to minimize wrongful execution. This can be used in support of significant reforms. For example, one can say that because of problems with local courts (e.g. corruption, lack of proper training), the SPC review process is necessary to ensure fairness in capital cases. This reform measure can be supported entirely on rule of law/procedural grounds without any invocation of fundamental rights, good and evil, or any other moral framework one wishes to drag into the discussion.

Because the procedural argument attacks rules from a fairness perspective, it has a much greater chance of success when it comes to public support. For some reason, folks have a tendency to be defensive when you attack their personal ideas concerning moral philosophy. Who needs some holier-than-thou NGO telling someone that their moral compass is off kilter? That doesn’t personally bother me in the least, but most people are more sensitive than yours truly.

So, you want capital punishment? That’s fine, as long as it’s carried out properly. And by the way, once those reforms kick in, the number of cases will shrink dramatically. Everyone’s happy short term: advocates for reform see a drop in executions, while folks who support the death penalty can sleep better at night knowing that fewer innocents are being executed.

Yes, there will be many “law and order” types who will continue to push back against any reforms. But critics of capital punishment are never going to get much help from those folks. And besides, with a “fairness” argument, critics and reformers will at least be able to occupy the moral high ground, so to speak.

© Stan for China Hearsay, 2012. | Permalink | 3 comments | Add to del.icio.us
Post tags: capital punishment, death penalty, morality, rule of law