The Future of Australia's Death Penalty Abolition Act

Despite Australia’s longstanding abandonment of capital punishment since 1973, the debate over its use continues to provoke fierce opinions amongst the public. Facebook commenters and talk-back radio callers rally for severe punishments against murders, rapists, and all manner of brutal criminals who are difficult to sympathize with. Despite these (often valid) emotional reactions, there is good reason for why the death penalty does not exist in Australia and it is important to remain clear-headed about what it entails for a society.

This essay will argue that Australia ought to maintain the Death Penalty Abolition Act (1973) given that it properly reflects the values of a fair and just society that respects the accountability between the state and its citizens. This will be explored through an analysis of human rights and the problems posed by allowing the state to legally murder its citizens. This will be followed by discussing the execution of the innocent and how capital punishments denies the social responsibility of producing socio-economic conditions that deter crime.

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While some reasonable arguments for the death penalty will be examined, they pale in comparison to its flaws.

What is fundamental to capital punishment is its denial of a person’s freedom to live, and by taking this understanding further it is clear that “execution by the state is an affront to human rights” (McLeod 2017 p.3). Allowing governments to take the lives of their citizens is a dangerous proposition that effectively allows them to get away with murder. While some see a clear need for it in instances of particularly vicious crimes, it is immediately risky when the state gets to decide which crimes fall under the banner of punishment by death.

China is notorious in this area where its authoritarian mass surveillance has allowed them to monitor and punish citizens for minute notions of anti-government sentiment. This is particularly concerning given that it leads the world in number of executions (many of which are carried out in secret) with 46 types of crimes falling under it (Carney 2018). While freedom of speech is taken for granted within western democracies, other countries have criminalized it to severe extents. Handing over this allowance for murder to the state characterizes it as an extremely brutal force that is not intended to help its citizens or alleviate crime, but to dole out the necessary punishments on bad people. This was particularly saddening for the executions of Andrew Chan and Myruran Sukumaran, Australians who were executed on drug trafficking charges in Indonesia. Both men had expressed severe regret and willingness to rehabilitate themselves towards making better decisions, yet the retributive nature of the Indonesian judicial system regards the death penalty as a necessary form of punishment (Taufik 2015 in Healey 2016 p.43-44).

However, there is a particular discomfort in how the state should react to extreme crimes and whether some people have the potential to be rehabilitated. There are even points when rehabilitation would provide no value in alleviating the suffering cause by certain perpetrators. The case of Anders Breivik, who massacred 77 people in Norway, demonstrates this awkwardness where his noticeable cushy conditions (BBC 2017) have not stopped him from declaring his Nazism while interned. While capital punishment wouldn’t solve the terror caused by Breivik, its proponents argue that there is little-to-no use in keeping someone like him alive. It is also argued that him living will be at an immense cost to a society that he has attempted to destroy. Not only will his continued living need to be paid for, but immense legal resources have been put towards his case and how it relates to the feasibility of Norway’s judicial systems. Kapotas rightfully makes light of the contentions the public has towards courts that “protect the inalienable rights of abhorrent Neo-Nazi mass murders” (2017), given the swift treatment original Nazi’s received at Nuremberg. While situations like these may be clear cut, most circumstances brought under the death penalty present many problems.

While any reasonable judicial system tries its best to make fair and reasoned sentencing, there will always be circumstances where human error delivers the wrong result. While there are opportunities to pay back those wrongly accused to some degree, it is impossible to repay the damage caused by capital punishment. Despite supporters of death penalty claiming that it is only reserved for the supremely guilty, Warren explains how there have been numerous cases in the United States which call this into doubt (2009 p. 339-349). Given the prevalence of human error, having the death penalty means that innocent people will eventually (not possibly) die for crimes they didn’t commit. Furthermore, there are serious questions as to how inequality in legal systems play out in death sentences. Warren puts forth that racism within law enforcement, judicial systems, and wider society punishes black defendants with the death sentence more often than white defendants (2009 p. 358). This is especially important within an Australian context given the ongoing treatment of Indigenous Australians who are more susceptible to criminal activity. The legacy of racism and poor relationships with law enforcement mean that Indigenous people face socio-economic conditions that lead to huge over-representation in prison populations. If the death penalty were to be reinstated, it is likely that a similar situation of racism in death sentences would occur.

One of the more contentious rebuttals to the death penalty is that it places a stark moral judgement upon a situation which undoubtedly complex and multi-faceted. While it may be easy to see criminals as inherently evil, society must eventually contend with the fact people aren’t born that way and that their environment contributes greatly to the likelihood of their criminality. Baumgartner and Neill show that death-row inmates have suffered childhood trauma, illness, and physical and sexual abuse at much higher rates than the rest of the population (2017). While this shouldn’t alleviate anyone of blame, it is clear that improving the social conditions that cause crime is the necessary way forward over capital punishment. Returning to the issue of Indigenous Australians, O’Hara’s investigations into a remote community show that social conditions such as unemployment and lack of resources greatly contribute to alcoholism, proclivity to crime, and repeated incarceration (2014 p. 17). Even for particularly vicious crimes, it is important to recognize how human beings are brought to such an extreme point by their society. Contending with this fact is crucial for reducing all crime rates, rather than using the death penalty as an ineffective deterrent (Radelet and Akers 1996 p. 10).

Debate over the validity of capital punishment is likely to rage on in the public sphere. While it is understandable that some people see its use in eliminating the costs of heinous criminals, the history and continued use of execution abroad shows are much more complicated picture that leaves it as an ineffective and dangerous tool for malicious governments. It would instead be best to encourage social conditions that keep people away from crime rather than enacting the most severe of punishments after the fact. It would therefore be best for Australia to maintain its current position on the death penalty.