The Bali Nine, and how not to argue for the death penalty

Australians don’t like the death penalty – we just don’t want the discomfort of having to care about the people it’s applied to. EPA/Made Nagi

Barring some sort of last-minute miracle, two relatively young Australian men, Andrew Chan and Myuran Sukumaran, are going to be killed by the Indonesian state. They will not be the first to die this way in 2015. Six other drug criminals have already been executed in Indonesia this year, and more are scheduled.

The Brazilians and Dutch recalled their ambassadors in response to the last executions, which involved two of their citizens. Australia is reportedly doing what it can to save Chan and Sukumaran, but apparently to no avail, and it remains to be seen if we would follow the Brazilian and Dutch examples. ACU Vice-Chancellor Greg Craven has claimed that:

The attitude of Australia and Australians will become part of the reason why these men are executed if we are not sending the right signals to Indonesia.

Meanwhile, Roy Morgan polling finds that 62% of Australians think their government should not do more to stop the execution. A slim majority, 52%, favour such executions going ahead. Yet as recently as 2009 Roy Morgan also found a clear majority not in favour of capital punishment in Australia – not even for murder.

That re-introducing the death penalty doesn’t have majority support isn’t surprising. The consequentialist arguments against the death penalty aren’t hard to find. The irreversibility of execution means sickening and unfixable miscarriages of justice are more or less inevitable.

The imperative to avoid those injustices makes the process extremely slow – almost 15 years on average in the US, as of 2010 – and accordingly more expensive than life imprisonment. As a deterrent it simply doesn’t seem to work, perhaps because, oddly enough, it turns out humans aren’t rational, cool-headed calculators who deliberate carefully and act accordingly.

We know all this, or at least we should.

So, it seems a large proportion of us are against the death penalty, but say we are for executions abroad and don’t want us to try harder to stop them. How do we reconcile these apparently incompatible beliefs?

I suspect we’re doing it with “arguments” that at bottom have nothing to do with the death penalty as such, but are really just excuses for not caring about it in particular cases. We don’t like the death penalty, we just don’t want the discomfort of having to care about the people it’s applied to. And so we trot out a series of trite, clichéd slogans.

‘Do the crime, do the time’

The obvious rejoinder to this is that execution isn’t “doing time” – even if the years spent on death row is.

Philosophers continue to grapple with the surprisingly difficult question of why death is a harm and why, by extension, killing is wrong. The closest thing to a standard answer is that death deprives us of good years we would otherwise have enjoyed.

But as the ancient Greek philosopher Epicurus insisted, not existing for what would have been the rest of your life is not the same as suffering for that many years.

You might rephrase this as: “Do the crime, pay the penalty”. But just how far do we follow that principle? Penalties can be excessive, or unjust. So surely for such a principle to have force, the penalty has to be proportional to the crime.

If you say Chan and Sukumaran should accept their punishment, you’re thereby committed to saying that execution is a fitting punishment for drug trafficking – a claim that needs to be argued for.

‘They knew the risk they were running’

Radio host Garry Linnell offered a version of this argument in response to artist Ben Quilty’s candlelight vigil for the pair. He wrote:

Sukumaran and Chan knew the penalty if they were caught. You cannot arrive anywhere in Indonesia without signs explicitly stating the consequences of importing and exporting drugs on Indonesian soil. It is Indonesian law.

But this confuses moral responsibility with prudential responsibility. If you leave your car unlocked with the window down and your laptop on the front seat, someone might say that you “deserve” to have your laptop stolen. But being imprudent in such a case isn’t the same thing as moral culpability: that rests with the thief. We wouldn’t refuse to stop the thief, or let him off the hook, simply because you’d been careless.

You can agree that Chan and Sukumaran were stupid to take the risk they did, and even that what they did morally deserves punishment, given the misery and death heroin brings with it. But the argument that “they knew the risks” doesn’t, on its own, make their execution appropriate. Those who assert this still owe us an argument.

Australian artists, such as singer and actress Justine Clarke, have campaigned for mercy for Chan and Sukumaran. AAP/Dan Himbrechts

‘Different countries have different laws and we should respect that’

Linnell, like many others, also insisted that:

… the Bali Nine controversy is equally about sovereign rights and the penalties imposed on those who decide to flout them.

Sovereignty has moral weight, and it’s not hard to imagine cases where it might be ethically right to abide by local laws or norms you nonetheless disagree with.

But, again, this only goes so far. It would be obscene to subordinate the profound wrongness of killing – the very thing many death penalty proponents appeal to – to the need to respect sovereignty or avoid giving offence. To say that the laws of other countries must always be respected – no matter what they demand – is not so much a statement of principle as a moral abdication.

And that, in a nutshell, is the problem with making arguments like this. It’s not so much ethical reasoning as ritual hand-washing.

If you honestly think that killing two young men, who are so effectively rehabilitated that even their jailers want them to live, and destroying the lives of their families, all for no deterrent effect, is somehow going to achieve something – well, you have to argue for it.

If there’s some knock-down argument that makes premeditated killing on the part of the government appropriate, or shows how more death and misery is somehow going to put the world to right, let’s hear it. Those who think we shouldn’t care about this owe us better than rhetorical fig leaves for indifference.

Bali Governor Made Mangku Pastika has said that the executions should take place – just not in Bali. It seems it’s OK for things like this to happen, so long as they don’t happen here, where we have to confront the full reality of what is done when the state ends a life, of what it is to shoot a man tied to a stake.

Sadly, many Australians seem to agree.


Editor’s note: Patrick will be answering questions between 2 and 3pm AEDT on Wednesday February 4. You can ask your questions about the article in the comments below.