Dominic Lawson: Before you rush to condemn the death penalty, remember the victims' families

This might seem irrelevant to an English court, but in the Muslim world it is integral to criminal justice
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The Independent Online

Leviticus gets a bad press these days. Yet, judged by the standards of the time in which it was written, the injunction "An eye for an eye, a tooth for a tooth" was a most enlightened criminal code. It made the case for proportionate rather than disproportionate punishment.

The offence for which Saddam Hussein was executed was itself a clear example of disproportionate punishment: he had ordered the killing of 148 Shiite villagers in retaliation for an unsuccessful attempt on his own life in 1982. The late dictator of Iraq was, of course, a specialist in disproportionate punishment: mere critics had their tongues ripped out, while more dangerous opponents were dissolved in acid baths. The misery and torment still endured by the relatives of his victims is almost impossible to encompass.

I was not surprised to read a furious letter in an English newspaper which had criticised the hanging of Saddam; after listing some of the atrocities which Saddam's regime had carried out over three decades, Mohammed Abdullah wrote: "Charges that the trial was illegitimate, humiliating for Arabs, or that its timing was offensive make me - an Iraqi Shia - ask, what on earth makes you think we care what you think?"

It's a good question: why should we think ourselves qualified to criticise the actions of a sovereign Iraqi court in sentencing a man for crimes committed against the Iraqi people? Those who argue that the procedure was an American puppet show are missing the point; the fact that Saddam was in American custody during the course of the trial was as much as anything else for his own protection. Saddam himself had been terrified of falling into the hands of the Shia mob. Perhaps part of the reason for his extraordinary calm at the moment of his execution was the knowledge that he could have fared much worse, as the tortured bodies regularly dumped on the streets of Baghdad bear witness.

One of the paradoxes in this case is that the sort of people who were most opposed to Britain's intervention in Iraq are also likely to be those who would force our own political conventions on the Iraqi people - namely a refusal to countenance capital punishment. It is a political convention because it has been imposed by politicians: the death penalty was not abandoned by public demand, and it's doubtful that it ever would have been.

I have nothing against political elites - wisdom is not shared around equally- but nor do I think we should sneer at America for having a more democratic judicial system than our own. The result of that greater sensitivity to popular sentiment is that some states have the death penalty, while others closer in culture to Europe have abandoned it.

It's obviously true that innocent - usually black - men have been judicially killed in America and that horrible possibility has long been the most telling practical argument against capital punishment. Now, however, DNA testing has revolutionised the legal system. It has exonerated the innocent - sometimes posthumously - but it can also help to provide cast-iron proof of guilt. Capital punishment will never be reimposed in Britain, but even supposing that it were, it is hard to imagine it would be applied in cases in which DNA evidence was not conclusive.

Under these circumstances, the case for and against the death penalty becomes both more simple and more intractable. Is it always and in every case wrong to apply the ultimate punishment? In Illinois, where the debate on capital punishment raged for years, the case of Henry Brisbon is often cited by those who want to restore the death penalty.

On 3 June 1973, Brisbon forced a car off the interstate that runs due south of Chicago, and found a woman, whom he forced to undress. He then discharged his shotgun into her vagina. Later that day he stopped another car, and told a couple to "make this your last kiss" before killing them also. By the time Brisbon came to trial, many years later, the Supreme Court had declared the death penalty unconstitutional. He was sentenced to 3,000 years in jail, an absurdity which presumably was an attempt to indicate the severity of his crime.

Eleven months after his sentencing, Brisbon stabbed a fellow prisoner to death, having held a guard hostage with a home-made knife. On a later occasion he stabbed two other inmates, though not fatally.

Even the Vatican, which deplored as "tragic" the hanging of Saddam, might accept Brisbon as a special case. The Catholic Church's opposition to abortion and capital punishment is principled, admirable and consistent, but in both areas it does allow for exceptions. In the latter case, the encyclical Evangelium Vitae points out that when a state inflicts punishment "the nature and extent of the punishment ought not to go to the extreme of executing the offender except in cases of absolute necessity; in other words, when it would not be possible otherwise to defend society."

I was fascinated that in the discussion of the death penalty in yesterday's Independent, the Catholic convert Ann Widdecombe expressed her continued support for the death penalty in the UK, and added that she had "no problem with the decision to execute Saddam" while the secular novelist AS Byatt argued that: "The only absolute moral value I have is that the death penalty is wrong... [it] produces a kind of horror in me that not even paedophilia can."

Byatt, I suspect, speaks for those who are most vehemently opposed to the death penalty. It is pure gut feeling; no arguments based on its ability to deter or prevent future murders would have any relevance. There is, however, a gut argument for the other side, and it's the one closest to Mohammed Abdullah's: what about the victim's families?

Should the state have no particular concern for them? Legally, all crime in this country is an offence not against people, but against the Queen's Justice. In practice, however, every crime is committed against a specific individual, or group of people. When those people seek justice, they mean something very specific. In the case of murder it may well seem unjust to them that the criminal will inevitably end up better off than the victim. One day he will be released from prison, and smell the air that, for example, their son or daughter has been forever denied.

This might seem irrelevant to an English court, but in the Muslim world it is integral to the criminal justice system. That is why in countries such as Pakistan the death penalty for murder can only be lifted if the victim's family agree - usually in a deal involving "blood money". In fact there is only one country throughout the Middle East which has abandoned capital punishment. Not surprisingly, it is the one most influenced and colonised by Europeans: the State of Israel - the only country which still studies the book of Leviticus.

d.lawson@independent.co.uk

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