MEPs and the death penalty

One of the unfortunate side effects of European Parliament elections is that, since you can only vote for parties and not for individuals, people with rather extreme views can get elected. In particular, one of the East Midlands' Conservative MEPs seems to be a rabid leave-the-EU bring-back-hanging the-Guardian-is-ruining-Britain type. In particular, in the wake of the Levi Bellfield case, he's calling for a return to hanging, attacking "bien pensant opinion — à la BBC and Guardian", and lamenting that the EU is banning us from hanging people*.


The comments on his post call him out on his flawed logic and his appeal to mob rule, so I won't deal with those here. I haven't, though, noticed many responses to his claim that

The arguments against simply don’t stand up.  What about the risk of a miscarriage of justice, and an innocent man being executed?  Of course capital punishment should only be applied where the guilt is clear, as in this case.  Of course the judge should be able to commute to life imprisonment if he has any mental reservation about the jury’s verdict.  That’s what judges get paid for — to use their judgement.

I'm not quite sure why he insists on the criterion of 'only where the guilt is clear'. I would hope - and I don't think this is idealistic of me - that nobody is convicted, regardless of sentence, where their guilt isn't clear. That's what it means to be 'beyond reasonable doubt'. I'm not really sure that I'm cheered by the reassurance that 'we'll only execute you if your guilt is clear', if the implication is 'we'll just lock you up for life if your guilt isn't clear'. Of course, the clearest way to show guilt is when the criminal confesses - but if criminals know that a guilty plea means death, whereas the doubt of a not guilty plea only means life imprisonment, that's a massive incentive for them to argue their innocence and encourages a costly trial.

Further, I'm not convinced that the judge's 'mental reservation' is an appropriate safeguard. The very reason we have juries is, in part, because we recognise that judges don't represent the general population: being a judge requires being a lawyer first (except in magistrates' courts, which don't try murder cases), which means that they are, almost without exception, university graduates who either got hired by a top law firm or were rich enough to fund their own training. They'll be as biased as juries, if not more, which is not what you want  when sentencing people to death. This is a perennial problem with American justice, as the ACLU notes:

The DOJ [Department of Justice] study also revealed the influence that the race of the victim has in determining potential capital cases. U.S. Attorneys recommended the death penalty in 36 % of the cases with black defendants and non-black victims, but only recommended the death penalty in 20 % of the cases with black defendants and black victims.

But more generally, I actually suspect that the Levi Bellfield case shows us why the death penalty would actually be a bad thing. The trial seems largely to have been about a sense of closure; Bellfield received the UK's harshest sentence, a whole life tariff, in 2008 for bludgeoning two students to death, so his conviction this week does not affect his status at all. If he had received the death penalty in 2008 (and, as a multiple murderer with nine previous convictions, he seems like a prime candidate),. then today, the Milly Dowler murder would still be officially unsolved, and the closure which the trial brought would be denied to the family. As they themselves put it three years ago:

Imagine not knowing how your daughter died, or where or when and by whose hand, and imagine how we as a family live.

One last worrying thing about the Bellfield trial - not related to Helmer this time, but to the general media response - is the criticism of the cross-examination of her parents and the call for more victim's rights. Why is this worrying? Because British law is not based on defence lawyers admitting that their client is a bad egg and giving in quietly. It's based on their attempting to show grounds - any grounds - for reasonable doubt, and if it's even plausible that a child could have run away from home rather than being abducted, then the defence need to be able to pursue that line of questioning. This isn't about allowing murderers to torment their victim's family in court (and, indeed, judges already have the power to step in when barristers go too far); it's about letting someone on trial, who may or may not be a murderer, have every opportunity to defend himself. Distressed parents are never a welcome sight, but in the long run, it's better to accept that rather than to say that certain lines of questioning are taboo, and thus risk wrongful convictions.

* Although the death penalty is forbidden by Protocol 13 of the ECHR and the Human Rights Act, neither of which are directly related to the EU.