Review by Alexander McCall Smith
 
 
 
Review by Alexander McCall Smith, Ph.D., Department of Scots Law, University of Edinburgh
The International Lawyer 22(3):867-870, Fall 1988
There is undoubtedly a sense in which the ultimate penalty the state can impose is the taking away of life. If I lose my life, I am diminished to an incomparable degree: all my hopes, all my plans are rendered as of nothing on the bringing to an end of my existence. For this very reason, quite apart from the promptings of any biological urge to survive, we fear death; and precisely for this reason we threaten our worst offenders with death as a punishment.
And yet, as the author of this wide-ranging study of capital and other severe punishments points out, death is only one of the ultimate penalties. Apart from the threat of execution, some offenders may face penalties such as life imprisonment and physical torture, the pain of which might well be considered to exceed the suffering implicit in capital punishment.
Which is worse: the death penalty or life imprisonment?
It takes no great stretch of the imagination to understand this point. There are circumstances in which life imprisonment may mean no more than a five-year prison sentence, but in others the period might be considerably longer. Relying on American evidence, the author points out that a considerable number of lifers actually die in prison, thus making their sentence mean what it says.
These are surely the people from whom everything, except their life, is being taken. Their sense of despair their hopelessness, is evident to those who encounter them within the prison system; in many cases they are the suicides and the psychiatric casualties of our systems of incarceration. At the same time, we probably consider them to be more fortunate than the occupants of Death Row; but are they? The fact that this question is posed in this book is part of the refreshingly new (at times, quite surprising) approach demonstrated in the author's work.
Re-examining the abolitionist stance
Rather than rehearse the familiar arguments of the abolitionists and the retentionists, Sheleff attempts a root and branch examination of what our use of ultimate penalties says of our social and moral values and challenges a re-examination of what we are actually doing with the people whom we consign into our systems of ultimate punishment. Finally, if these penalties are to be retained, he suggests ways in which existing and new institutions might be used to monitor their use and ensure minimum cruelty and arbitrariness...
Sheleff is realistic about ultimate penalties. They exist, he says, whether we like it or not, and it would seem that he should regard abolitionist protests as in some respects "pious". It is not always immediately apparent where he stands on an issue, but it seems that he would cut through the cant of our squeamishness and challenge us to face the implications of abolition.
In relation to the life imprisonment alternatives, the argument is a powerful one and it makes a telling point against the abolitionists: Life imprisonment, which tends to be the minimum that the public would accept in return for giving up the option of the death sentence, is no solution and may well be a worse penalty. Torture is also hardly an option, although it, too, has its public supporters.
What, then, do we do with the killers and others who have committed particularly serious crimes? The abolitionist movement just has not faced the question in any serious way.
Original and iconoclastic
Sheleff deals with the options, as he sees them, in two chapters that must surely rank amongst the most iconoclastic pages of recent penological writing.
In a discussion of torture, he suggests that the inflicting of pain need not necessarily amount ot physical torture, and might indeed be preferable to prolonged imprisonment. This is undoubtedly the case. It is also probably true that it demonstrates a greater disposition towards unthinking cruelty to allow imprisonment for year upon year and yet to frown upon surgical castration, which, alongside chemical treatment, might, in spite of inconclusive evidence, offer the possibility of freedom to at least a proportion of sex offenders. Yet is anathema in some circles even to suggest this. Sheleff makes the suggestion, placing great emphasis on the choice of the victim as a legitimizing factor.
There are serious objections here: a choice in such circumstances is not necessarily a free one, and, even if it were free, the least cruel alternative is not always the morally correct one. A cruel punishment might still respect the dignity for the offender, while a kind or expedient one may not. This difference is not one to be taken lightly.
In a subsequent chapter...Sheleff addresses the question of allowing convicted offenders to choose death rather than long-term imprisonment. He sees this question as connected with…the debate on euthanasia, which he feels is going to become widely accepted in time. The prisoner can choose to be killed if that is what he wants, and his death should be brought about humanely. The consensual element involved is said to make the whole process of capital punishment morally acceptable.
What is more, the prisoner's death can be given some purpose if he is allowed to donate his organs for transplantation, a cause that has already found some support amongst a small coterie of commentators in the United States.
Proposed solutions are unsatisfying
Sheleff has clearly devoted a considerable amount of time to an extensive, thoughtful, and extremely useful study of the profound issues involved in the application of ultimate penalties. He spurns, and with some justification, the simplistic abolitionist perspective, but ultimately his own solutions seem somewhat wanting.
In particular, he suggestion that there should be supra-national control of such penalties, with executions proceeding on the authority of an international judicial body seems hopelessly Utopian, as any study of previous attempts at the creation of an international criminal law will reveal. The abolitionists might be short of alternatives, but surely it is a valid tactic to label capital punishment and torture as barbaric and to seek by all available means to embarrass governments who continue to use such punishments.
Sheleff argues for a "due process" approach, but would opponents of slavery have succeeded in changing the conscience of the world by arguing that people should be sold into slavery through certain channels and after certain safeguards had been observed? If he does not approve of ultimate penalties—and he firmly pins his colors to that mast in the final paragraph of the book—then it would be as well for him to say that governments should disclaim them now, today. It is unwise to say to anybody that he can continue to misbehave but that he should try to be a little fairer in his misbehavior pending his complete conversion to goodness. Bullies don't mind such admonitions.
The suggestion that those convicted of serious crimes might be offered the option of consensual death, with possible organ provision included, is horrifying. Space does not permit the enumeration of reasons why this should be so, but there are many defenses of autonomy, both time-worn and recent, which give us very good explanations why we should not treat people this way.
Moreover, the medical profession must continue to decline any involvement in such schemes, even if its attitude is consequently described as inconsistent, paternalistic, or quite plainly wrong.
 

 
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