Civil Death

            For reasons unfathomable, the Unit recently considered the law on assisted suicide. The discussion collapsed when it was suggested and not disproved that in a state with the death penalty, obtaining official assistance for one’s own demise was generally fairly simple. The only condition of such assistance is that one shall have killed someone else in aggravated circumstances. (1)

            Solon had suspected from time to time that occasional fanatically inclined persons had attracted the death penalty to themselves in order to obtain publicity for their cause; but assumes that whatever the penalty affording maximum publicity might be, these misguided souls would go for it. He had never before envisaged that the death penalty, as such, has a perverse incentive built into it.

            Solon recalls that in his younger days the death penalty was, at heart, neither vengative nor dissuasive in purpose. In those times when life was cheap (by current standards), it was an effective and economical way of putting an end to nuisances.(2) Dissuasion was supposed to be added by appalling cruelties, such as crucifixion(3); and vengeance by such special procedures as handing the criminal over to the victim’s family, or the death of a thousand cuts. If an innocent person was executed by mistake, and the mistake was discovered, well “errare est humanum”. The remedy was religious; organise sacrifices in the temples in his honour or pray for his soul, according to the custom of the times.

            Life has only become less cheap with the advances in life expectancy and wealth of the last two centuries. In that brief period, humanity has largely adjusted away from using the death penalty to eliminate nuisances. Transportation and prison terms were substituted for it over a wide range of offences. It remains current:

• For treason, where its purpose is probably mainly ritual purgation.

• For drug dealing in some places, where the purpose seems to be a combination of putting an end to nuisance and dissuasion.

• Occasionally for corruption, where the purpose seems to combine all of the above.

• And quite widely for murder in some form of aggravated circumstances.

For ritual purgation, Solon is sure that the world’s great religions could suggest alternatives (the Communist show trial was one, perhaps). Despite much effort to prove positives and negatives, the evidence on the dissuasive effect, if any, of the death penalty remains oddly inconclusive. The deterrent effects of prison and of fines appear roughly quantifiable; execution does not show the same similarity in different assessments. Solon and the Unit have no idea why not. People fear death and the prospect should deter. But there is no clear evidence that it does. People dislike loss of liberty and fines; and there is evidence that the wish to avoid them does influence behaviour.

Solon prefers observation of what does happen to a priori reasoning on what ought to happen. A priori, it might be supposed that a considered judicial verdict “without reasonable doubt”, reviewed both on appeal and before signature of a warrant for execution, rules out the possibility of a person being wrongly executed. Unfortunately, these are human procedures, and like all human procedures throughout the centuries these are subject to error. Conviction and execution error rates are evidently far, far lower than they used to be; but errors either have occurred or will occur in ways we cannot anticipate. (4) If a mistake should come to light, we can make recompense to those wrongly convicted who are in gaol; we cannot to those who have been executed.

Solon is also troubled by the damage that participating in an execution nowadays appears to do to the executioners. Those who study the subject talk of “moral disengagement” during an execution, and of the troubles, mostly minor, in mental health and social relations that they tend to have. That they do not talk easily of the experience, and tend to repress it in some degree, is clear. And we distance ourselves from executioners; we do not like the thought of their occupation. Indeed if someone is found who enjoys executions, nowadays we regard them as something monstrous. Most of the world tended to treat executions as a public spectacle when life was cheap. Now that it is not, we find that enjoyment very hard to imagine. Executions nowadays appear to Solon to claw away at the fabric of society.

Solon therefore proposes that states with a death penalty and unwilling to repeal it make a simple amendment. Those convicted shall be sentenced to Civil Death rather than physical death. Those sentenced to Civil Death will be as completely removed from society as those experiencing physical death. They would be removed to another place. All their property would pass to heirs. All contracts they had entered into, including matrimony, would be ended. They would lose their identity.

All this would be permanent; except only that in the case of a competent court concluding that the person sentenced was wrongly convicted. In that case the person concerned would be released with substantial compensation. He or she when released would find himself or herself in the position of someone declared dead but who later was found alive. He or she would have lost a great deal – spouses would have remarried, heirs would own any property and so on – apart from the years of confinement. But the law supposes that monetary compensation can be sufficient for such losses.

The condemned would be looked after by two officials. One – called here the "Warden of the Condemned" – would look after their physical well-being and the security of the special places of confinement. In those places, there would be no visitors, and only minimal contact with the warders. The other, the “Guardian of the Condemned” would have the responsibility of carrying forward the case if evidence of wrongful conviction should appear, and looking after such interests as the condemned might legitimately have. For example, he or she would decide if it was appropriate to notify anyone of the physical death of one of the condemned when that occurs.

The advantages for the states concerned are clear. They would get rid of the whole set of problems of methods and personnel for executions. The macabre tragedies and black comedies of long years on death row would disappear. The fear of wrongful execution would vanish. The only real losers would be the lawyers who make a good thing out of delaying executions for as long as possible.

Solon recognises that some states which have abolished the death penalty may be attracted to the idea of Civil Death, and introduce it. Solon would not so vote, but the decision is properly with the state concerned.

Solon also recognises that the churches will be at least as reluctant to recognise Civil Death as they are to recognise Civil Marriage. Perhaps more so because chaplains, as visitors, could not be admitted to the places of confinement. The churches would have to rely on the condemned offering religious counsel and such services as absolution of sin to one another. However Solon is convinced that Civil Marriage serves a useful and moral social purpose, and that Civil Death will do likewise.

Should you wish to comment, an email to solon@use-solon.org may draw a response.

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(1)                  It has since been generally accepted that a sure route to the desired assistance would be to invite the Chief Justice of the Texas Supreme Court to call upon you with a view to a substantial donation to his or her favourite cause, to poison her or him treacherously, and to boast about the deed in the media. Solon has decreed that any Unit member disposed to try the experiment shall be offered a cup of hemlock at the Unit’s expense.

(2)                  Socrates, Jesus of Nazareth and Barabbas all seem to have been sentenced to death for this reason.

(3)                  The Romans persisted with this procedure for centuries, despite its apparent failure to deter; and (as Solon thinks he recalls it) the active preference of the military stuck with crucifixion detail for a simple stroke of the gladius and hang the cadaver over the city gate for a day.

(4)                  “If it can go wrong, it will.” is a rueful designers’ aphorism from experience. It applies to legal systems, as to others.