Capital Punishment: A Brief History

Sunday 2 November 2003 7:10AM

While Australian society has conclusively rejected the practice of capital punishment, events such as the recent Bali bombing have created some public discussion of the issue within our own society. We trace thoughts on this issue from Jewish, Islamic, Graeco-Roman, Buddhist, Christian and humanist perspectives. The ninth in a regular monthly series of Ethos looking at issues in ethics.


David Rutledge: Hello, and welcome to Encounter - and because it's the first Encounter of the month, I'm also welcoming you to Ethos, which is Encounter's monthly foray into the realm of ethics. This week: capital punishment. We no longer execute people in Australia, and we haven't done since 1967. But recent events elsewhere in the world have made us acutely aware that not all our neighbours - or even all of our very close allies - share the same values.

Today's program is produced by Bill Bunbury.


Bill Bunbury: Capital punishment in one form or another has been around ever since human beings formed societies, and the Graeco-Roman world was no exception.

Doug Kelly: Well I'm here under a kind of species of fraud, because in the Graeco-Roman world, capital punishment was not a moral issue. Now, some people would say this was a kind of moral blindness; rather it's a fact that different societies and different cultures have quite different moral maps, and moral values. And in the ancient world, capital punishment was a regular part of civic and judicial administration. There may have been debates over whether capital punishment fitted a particular crime, but no-one objected in principle to the taking of human life.

Bill Bunbury: ANU classicist Doug Kelly. And we'll follow more of those moral maps as they relate to capital punishment in different times and places.

A warning, by the way: some of the readings in this program do not make pleasant listening.


But if we're looking at ancient beliefs, Judaism poses a stark contrast to Graeco-Roman severity. Chief Rabbi, David Freilich of the Perth Synagogue.

David Freilich: Well, of course Scriptures talk quite extensively about capital punishment for various transgressions. In fact there is one account of capital punishment mentioned in the bible about - interestingly enough, in a ritual situation - when a certain gentleman went out from a camp at Israel, and collected sticks on the Sabbath, which was forbidden. Now, that's an interesting Talmudic discussion as to why he was put to death. One of the reasons given was because he deliberately did this to bring down the morale and the religious standards of the totality of the Jewish people. But that's the only reference, really, that we have in any of our sources of capital punishment being carried out. There are, in the bible, various regulations as to carrying out capital punishment for certain transgressions. Let me say this: that was really a deterrent; it was not supposed to be something that was actually carried out in practice. The reason is, we believe that the Torah itself - which is our bible - was actually written in the language of man so that man could understand it. Now, at that time, in society - I'm sure there was capital punishment in various societies. And therefore when the Torah was given, it was given in a way in which the people would understand it. Now it was (we believe as Jews) written there, and capital punishment was espoused, for the simple reason to show the severity of the crimes, which were mentioned in the bible - not that it was actually carried out in practice, but as a deterrent and to understand the severity of the crime which they carried out.

Bill Bunbury: So the general belief was, then, that this was too extreme a punishment for human beings to carry out?

David Freilich: Well, it was too much of a responsibility. We're talking about human life, and each human life is graded in the image of God, we're all very unique. Firstly, it's a grave responsibility, as one can imagine, to inflict a death sentence on another human being - you know, who are we to do so? It's virtually implying that we ourselves are perfect, to be in a position to do that. Secondly, did the person actually carry out the crime? By that, I mean there were certain restrictions. And interestingly in Sanhedrin, which was the main court of law, they put such restrictions - in other words, the crime had to be actually seen to be done, actually seen by the witnesses; had to be in such a way that the person was warned beforehand - as he was doing the crime, virtually - that all these restrictions were put onto that. Because can we be absolutely certain, then, that the person did it with (as they say in law) mens rea , deliberately planned and done - or were there mitigating circumstances surrounding this? And that's why there were so many barriers put towards really establishing - if indeed capital punishment was carried out, the Sanhedrin put such barriers to it that it was virtually impossible to actually carry those punishments out.


Bill Bunbury: But capital punishment was, and is, different for the followers of Islam.

Professor of Middle Eastern Studies at the Australian National University, Amin Saikal.

Amin Saikal: Islam endorses capital punishment. It operates on a principle of an eye for an eye and a tooth for a tooth. That is very much enshrined in Islamic law, or sharia. But of course at the same time, Islam imposes some very strict conditions. There has to be a trial in a sharia court and the judge would have to issue a verdict as to whether the person has committed a crime or not, and then it will have to really determine the amount of punishment. But at the same time, relatives of the deceased have the right to either forgive the guilty, or demand blood money, and the blood money again could be determined according to the type of crime that has been committed.

Bill Bunbury: The alternative to capital punishment, of course, is in the Western world a long term of imprisonment. What does sharia law say about that as an alternative? Is that considered?

Amin Saikal: Well, I think it is considered under special circumstances, and of course it also depends really on the judge and the people who are assisting the judge, if they think that the crime has been committed which may not really deserve an equal killing on the part of the family of the deceased. In that case, a long-term sentence may be imposed. But generally speaking, sharia law basically ordains that those who take the lives of others away must give up his own or her own life. And it is very interesting, because in Islam, a very high premium is put on the sanctity of life. In Islam, it's only God who gives life and takes life; no-one else is in a position to do that. But at the same time, there is this injunction that those who take the lives of others, they will have to really pay with their own lives.

MUSIC - Between Heaven and Earth - Purim

Bill Bunbury: The notion of an eye for an eye and a tooth for a tooth crops up frequently in both the Islamic and Jewish cultures. But is an eye for an eye relevant to the traditional Jewish notion of capital punishment?

David Freilich: Not at all. An eye for an eye, a tooth for a tooth in Judaism -and it's recorded in the Talmud in black and white - is of course the law of damages, which is occurring in society all the time. You know, you go down St George's Terrace or go into the law courts down there, and they're carrying out an eye for an eye and a tooth for a tooth at this very moment, I'm sure, with litigation. That's what that means. In fact, if one looks in the book of Leviticus, one will see that one of the laws is that we are forbidden to take revenge. We're actually forbidden to take revenge. So although it's "an eye for an eye and a tooth for a tooth" you've got written in the bible, which of course means "damages" per se, we are forbidden to say "because this life is taken, therefore you've got to take that life"; it is regarded as unethical and immoral just to take somebody's life in revenge.

MUSIC - Thai Bamboo flute - Pathomdusit

Ajan Brahm: I think that just about all Buddhists would agree that they cannot accept the moral legitimacy of capital punishment, mostly for the reason that Buddhists do not believe in revenge. And also they have another idea of justice. I think many religions would agree that justice is served outside of the state imposing justice. If you're a Jew or a Muslim or a Christian, you'd think that it's God prerogative to settle the scores of justice. And as far as Buddhism is concerned, we have the law of karma, which will also settle ideas of justice. I think the biggest reason why Buddhists do not accept the legitimacy of capital punishment is because we don't accept the usefulness of revenge. One of the very core teachings of Buddhism, as said by the Buddha, is: hatred or violence never ceases with more violence. You can't put out a fire with more fire, you put out a fire with water.

Bill Bunbury: Spiritual Director of the Bodhinyana Forest Monastery at Serpentine, South Western Australia, Ajan Brahm.

So if a Buddhist offends, is a notion of punishment appropriate?

Ajan Brahm: A notion of punishment is appropriate, but it's not so much a punishment out of revenge, but a punishment out of a process of learning - to enable that person to understand the wrong they've done, the hurt they've caused, so they'll never do such a thing again.

Bill Bunbury: So if a Buddhist kills someone else, how is he treated, or she treated?

Ajan Brahm: Obviously, it depends on the law of the state which they're in. But as far as the Buddhists are concerned, we have to obviously have some sense of remorse - which I accept they would obviously have, but also that they should be encouraged to go through a process of rehabilitation, of understanding what they've done, understanding the causes of what they've done, so they'd never do such a thing again.

Bill Bunbury: Buddhist Abbot, Ajan Brahm.


Bill Bunbury: Punishment in the ancient world varied considerably between Asia and Europe. Doug Kelly and the Greeks.

Doug Kelly: When political theorists or philosophers or anyone in antiquity reflects upon punishment, they emphasise deterrents and retribution. Thoughts of rehabilitation hardly ever occur. The philosopher Plato, late in life, didn't draw up an elaborate legal and moral code for hypothetical cities - an example of his political philosophy in action. And he lays down that for people who offend by disbelieving in the gods of the state - that is, atheists - there should be an elaborate program of re-education, and they should be secluded, of course, so they can't contaminate the community. But if after a length of time they show no signs of rehabilitation, then they should be executed. The interest of this is twofold: one, it is a philosophical daydream, but it does at least invoke the idea of rehabilitation. The second point is that Plato's own master Socrates had been executed for unorthodox religious ideas. Plato doesn't seem to have objected to that in principle - although he would have said, I think, very strongly that Socrates was innocent.

MUSIC FROM ANCIENT ROME - Syunaulla - Magna Mater

Bill Bunbury: Perhaps the most celebrated victim - from a Christian perspective - of Roman law, was of course Jesus Christ.

Doug Kelly: Well, as the crucifixion - along with the death of Socrates - is probably the most famous execution from antiquity, I'd like to refer to the ending of the movie, the Monty Python movie The Life of Brian. Now in this crucifixion scene, the victims are all happily singing "Always Look on the Bright Side of Life", and this is absurdly and blackly funny. But there is a degree of historical accuracy in another aspect: both men and women are being crucified in that scene. And I mention this to underline the point that Roman practice, like Greek, did not distinguish on the grounds of sex or age, let alone status. It could be said, and not altogether flippantly, that execution was one of the few areas in the ancient world in which women had equal rights. So yes, the crucifixion of Christ is an example of a very savage and cruel form of punishment applied to a low-class offender, you know, a Jewish troublemaker, "political agitator" if we try and cast him in Roman terms. So he receives a punishment, which is not only a slow and very painful way of death, it's also a very humiliating one. Crucifixion was, of course, the particular punishment used for slaves, and it was designed both to intimidate and to offer a public exhibition of what happened to offenders.

MUSIC FROM ANCIENT ROME - Synaulla - Aetherius

Bill Bunbury: I suppose the greatest intersection - if we're looking at Graeco Roman culture, and particularly Roman culture - is the eventual establishment of Christianity as state religion, as Constantine eventually accepts it. Does this influence Roman thinking about the judicial process and punishment?

Doug Kelly: It does, but it is a long and complicated process. In theory - and, one would find, in strict rigour - Christians avoided or thought they should not take human life. That was a moral position that was quite sustainable when you were a persecuted minority or an underground cult. But when people who were Christians began to hold positions of authority, there arose the matter of ordering executions. And one semi-pragmatic way round this was for a person who was a Christian supervisor, but who held a post in the administration, to delay baptism until late in life - the idea being that he might order executions in his lifetime, and then late in life be baptised, and baptism would of course expunge the guilt. It's also a problem, for example, that we find Christians serving in the Roman army, when according to the orthodox or strict interpretation of the Christian moral code, Christians should not take life. So Christianity in the Roman world was, as is always the case with religion in any society, a series of untidy compromises that more or less work for most people - except of course the extremists, and those with very acute moral sensibilities.

But by the 4th century, Christian thinkers are beginning to elaborate doctrines or ideas of both the just war, the right of the state to take life to defend both the community and to defend the moral order, and therefore to get round the rigour of the absolute prohibition Thou Shalt Not Kill.

Bill Bunbury: Doug Kelly.

And as he's pointed out, Roman law and practice, with the public spectacle of execution, were to influence European notions of justice and punishment for a long time.

This is a description - and listeners are warned that this is horrific - of an 18th century European execution.

Reader: On the 2nd March 1757, Damiens the regicide was condemned "to make the amend honorable before the main door of the Church of Paris", where he was to be "taken and conveyed in a cart, wearing nothing but a shirt, holding a torch of burning wax weighing two pounds"; then "in the said cart, to the Place de Greve, where, on a scaffold that will be erected there, the flesh will be torn from his breasts, arms, thighs and calves with red-hot pincers; his right hand, holding the knife with which he committed the said parricide, burnt with sulphur; and, on those places where the flesh will be torn away, poured molten lead, boiling oil, burning resin, wax Andrea Shafer, sulphur melted together, and then his body drawn and quartered by four horses and his limbs and body consumed by fire, reduced to ashes, and his ashes thrown to the winds".


It is said that though he was always a great swearer, no blasphemy escaped his lips; but the excessive pain made him utter horrible cries, and he often repeated: "My God, have pity on me! Jesus, help me!"

Bill Bunbury: So how helpful is it now to look at this 18th-century-style punishment?

Simon Longstaff, Executive Director of the Ethics Centre in Sydney.

Simon Longstaff: Well, I think it's a good lens through which to look at a much older set of thoughts in human society about the whole notion of punishment and interrelationship, to the extent to which people are belonging or not belonging in society, and what that means for them. I just think that during the 18th century, there was a point at which many of the trends came into very, very sharp relief, which allow us then to reflect on why we do what we do today in reference to that, and to those older urgings.

Bill Bunbury: What was the prevailing attitude, then, if you like, before say the French Revolution? Can we draw a line here?

Simon Longstaff: I think there are a number of elements that need to be looked at. Firstly, there seems to be a prevailing sense that people could, through their own actions, place themselves outside the full framework of rights that they might have otherwise enjoyed as citizens, and therefore in some sense forfeit the kind of concern that would normally be extended to people who hadn't engaged in criminal acts. So it goes back. I mean, you can see it in the Anglo-Saxon tradition, back in the law code of Alfred the Great, in which the notion of becoming an outlaw was very precisely stated, in that if you broke the law, you placed yourself outside of society, and people were pretty well free to do what they wanted with you - including to take your life - without any punishment of a legal kind for doing so. A second element, of course, was the notion that punishment was a reasonably public spectacle in many cases that it was in place not merely to see justice done, but also to send various messages to those who came to see the person being punished. I think it's too crude to say that it was just a spectacle; I think it probably had, again, some broader significance, almost like the cathartic experience that Ancient Greeks would have experienced when they went to the theatre. It wasn't just entertainment, there was some higher purpose associated with it. And I think you find that also in the regime of punishment.

And of course finally there was an acting-out, by the person being punished, of a process which in a sense could in some perverse way be seen to be making them whole again, even as they were literally torn apart. The whole purpose of punishment leading to torture, death, was that it be taking place in a public space, and therefore it was essential that there be citizens there to witness what was being done. We still, of course, have in a slightly different context the notion of this - even in countries like the United States, where a state execution will have witnesses from the public there to observe it.

Reader: A murderer by the name of Pierre du Fort was to be hanged; several times he "had caught his feet in the steps" and had not been able to swing freely. Seeing this, the executioner had pulled his jerkin up over his face and struck him below the knees, on the stomach and on the belly. When the people saw that the executioner was causing him too much pain, and even believing that he was killing him down there with a bayonet....... moved by compassion for the patient and fury at the executioner, they threw stones at the scaffold. Some strangers and unknown people mounted the ladder and cut the rope, while others caught the hanged man from below after he had been hanging there longer than it took to say a full Miserere. The crowd then smashed the gallows and broke the executioner's ladder into pieces...

Bill Bunbury: How effective was it, in fact, in terms of creating the desired effect? I mean, there are accounts, aren't there, of people reacting quite differently from perhaps how the executioners expected them to act.

Simon Longstaff: Well, I think that reaction from the public in this situation would have been a microcosm of all the possible reactions that you could expect. In some cases, people would have been driven to pity by what they saw, in other cases they would already have been brutalised by earlier spectacles - or by experiences in their own life, which was often treated as something pretty cheap. In some cases, there would have been a person on the scaffold, or wherever it was, who was emblematic of some system of oppression, or real or imagined wrong that had been done to people - so it was, then, a chance for people in a sense to feel the experience of vengeance. It would have been all of those things in different people, and possibly all of those things even in the same people from time to time.

Bill Bunbury: Simon Longstaff of the Ethics Centre, Sydney.

The 19th and 20th centuries marked a great change in the European notion of punishment. Extended prison sentences and transportation replaced capital punishment for many offences. And where capital punishment still existed, it became less visible; no longer a totally public spectacle, but still witnessed by a few. The state was now the anonymous executioner, and execution took place behind closed walls or doors. But the face of any kind of public death has perhaps changed too.

Simon Longstaff again.

Simon Longstaff: We have recently seen the way in which warfare has been sanitised - partly for the political interests of those who go to war, but also, I think, so that we as citizens of democratic nations who wage war, are spared having to take full account of what it is that has been done in our name. I think it holds equally true in terms of the way in which punishment is meted out in those societies where it can still be very violently done, and yet it's hidden from the gaze of the ordinary public. And I suspect that's because we recognise it's almost a kind of taboo that we might actually wish to see it, just as a spectacle. And given the fact that nowadays when you observe these sorts of things, it's not real and truly immediately present to you - in the sense that you can't really hear what's happening, you can't smell what's happening, you can't sense it such as a crowd would have done in earlier times. But perhaps just watching it on a television screen or something of that kind would also be disrespectful to the person who's being executed. So that I think there are kind of mixed feelings here: firstly, we hide from what it is that is done in our name; secondly, we think "well, even if we were to look at it, the experience would only be a shallow one compared to really confronting what's being done in any kind of execution". And I think a third thing is that there's been a tendency certainly in more recent years, whilst in those states that still wish to impose the death penalty, they have progressively tried to find ways to avoid the sense in which it is a cruel and unusual punishment. And so you now see the medicalisation of execution, where people are more or less put into a situation, which looks just like a normal operating theatre, with the arms out, and in you pump the lethal cocktail of chemicals, which ultimately cause their life to stop.

Bill Bunbury: This is the general anaesthetic forever.

Simon Longstaff: That's right. And it's got all of the theatre. I mean, people are even dressed, as I understand it, in not the clothes of the state executioner, but in things that look like a hospital orderly.

Bill Bunbury: But while the outward practice of punishment has changed, how has the justice that determines punishment fared over time?

Joe Caddy: Well, I think we have learned a lot. I think we have put systems in place, and a whole system of human rights that we would hope would safeguard against those things. But the price of that is eternal vigilance, too. And we really have to watch that we don't slide back from those real measures of civilisation - and they are measures of civilisation; how we deal with those who have hurt us, how we deal with those who have offended against society, are real measures of how far we've come as a civilisation.

Bill Bunbury: Father Joe Caddy, who is Director of Social Policy for Catholic Social Services in Victoria. He's Deputy Chair of Catholic Welfare Australia, and also Chaplain to Melbourne's maximum-security prisons. All these roles bring him into contact not only with those who end up in jail, but also with the kind of life they may have lived beforehand. And it's also given him insight into the implications of capital punishment.

Joe Caddy: It has. Just this year in Melbourne, Father John Brosnan died, and he'd been a great man, a great chaplain for many years to the prison system in Victoria, and he had been with Ronald Ryan on the night before Ronald was executed, the last man to be hanged in Victoria. And Brossie, as he was affectionately known, was so strongly against the death penalty, and that was at least partly - I mean, he had strong theological reasons as well, but he had an even more compelling case because he actually befriended Ronald Ryan and the family, and he wasn't unaware of the pain to the victims, but he was also aware of just the futility and the unnecessary nature of capital punishment. I guess that's as close as I've come to it personally. But I have also met a number of prisoners, and worked with a number of prisoners, who are routinely described in the media as the so-called monsters, and if there were to be capital punishment they would be the ones who would end up on Death Row, that's for certain.

Bill Bunbury: Now, that inevitably then brings up the notion of rehabilitation. In knowing those men, have you seen possibilities in their lives that have been achieved through the fact that they haven't had their lives taken away?

Joe Caddy: A number of the men are probably extremely damaged themselves. They've caused enormous pain and enormous damage in the community, and at least some of them would probably never have much hope of being allowed out safely into the community. However, that's not to say that I don't see the humanity of those people, and in fact experience the humanity of those people. It's quite a humbling thing, in fact, to talk to some of those people and to see that yes, they've done dreadful things, they probably still are capable of doing dreadful things, and who knows what the future would be for them? - though I would always hold out some hope - but in any case, they are alive, and there is something about their humanity that has held sacred, and they do make a certain contribution in a certain way.

Bill Bunbury: I suppose also you're dealing with people who are damaged themselves in some cases, aren't you?

Joe Caddy: Extremely. I think the overwhelming majority of the people that I'm talking about - no, I'd say all of them - do not come from a well-off and privileged background; they all come from backgrounds of quite severe hardship, lack of opportunity, from basically diseases of poverty, mental illness, the sorts of things that are never diagnosed, never treated. An inordinate number of them have suffered from sexual abuse themselves in the past, so just not making excuses for the terrible things that they may have done, but just trying to understand something of where they're coming from, they have certainly come from great disadvantage and often quite violent backgrounds themselves. And when you look at how the death penalty would be applied, and how it is applied in countries like the United States, it is both racist - you're much more likely to be executed if you're from a non-white background in the United States - and also it discriminates against those who are poor.

Bill Bunbury: If we take the discussion into today's context, we keep hearing about a "global village" - and you have, of course, within that village, quite different opinions about capital punishment. In the United States, for example, the possible penalty for the offenders (or so-called offenders) at Guantanamo Bay in Cuba is death. What do you think our attitude should be there, as a country that does not hold with the death penalty, as far as our own citizens are concerned?

Joe Caddy: I think that we as a nation consider ourselves to be a civilised people, a moderately decent kind of people, who have concluded, quite a while ago now, that at least within our polity, we do not wish to impose the death penalty upon people. And as such, I think we should look to those people who speak on our behalf - certainly our political leaders - to reflect that point of view, wherever they are given the opportunity to comment on what occurs around the world. I don't think that we should slump to some kind of relativism, where we say "well, just because it's done under the cover of the laws for another notion, we're going to suspend our critical faculties". Instead, I think we ought to engage with it, just as we have done previously on a whole lot of other issues where we think it's important that we speak out. And as such, Australians - without being belligerent about this - ought to make it clear that whenever our interests are at stake, we don't think it's appropriate that such penalties be imposed.

Bill Bunbury: One 18th-century philosopher said it was better to execute someone than put them into prison; does that still hold good?

Ajan Brahm: No, that's just giving two alternatives, not thinking of a third. No, it's not just one or the other, of executing or prison. How about a third alternative, which is again like rehabilitation. You can put a person in a prison for the time being in order to rehabilitate, but certainly the prison should not be for punishment. Unfortunately, most prisons are for punishment.

Bill Bunbury: I guess someone listening to this could say you might be dealing with a very dangerous person who's a menace to society; a person who, if released into the public domain, will inflict more harm, more injury, and there is a community good to be safeguarded. What's the response to that?

Ajan Brahm: Well, the response which comes to mind is: I'm sure that the South African government would say the same to Nelson Mandela, that he was a problem for the community and would actually have more harmful effect upon the community, so they put him on Robben Island and he came very close, as you know, to receiving the death penalty. So that's a very good case in point, where we should not put people in jail for punishment, or we should not execute people, because some of those people may be Mandelas or Gandhis.

Bill Bunbury: But some of them won't be, will they? Some of them will be people who in some ways are addicted to violence, and presumably are dangerous.

Ajan Brahm: Indeed. So they need to be - obviously society is protected from them, but of course when the Buddhists believe that you get re-born afterwards, that problem is not going to go away; they're going to be re-born again, with violent tendencies. And we do see this in some people who have violent tendencies, who have violent tendencies from the time they're born, even though they come from very good families, and both parents are very kind, good people. But they have violent children. They sometimes ask "where does that come from?" In Buddhism, we have a very neat answer: "that comes from their past lives". So the problem has to be solved, and it's solved in this life rather than pushing on to a future life.

Bill Bunbury: Given the nature of much crime involving murder, is deterrence effective, in the sense that you think you might be hung or executed in some other way for what you've done?

Simon Longstaff: I don't believe that deterrence is effective. It might be effective in that very small number of cases where people make a calculation about the cost and benefits associated with what could happen to them should they murder someone. But that is just going to be a very small - almost infinitesimally small - percentage of those cases in which people commit murder. My understanding is that in the vast majority of those cases, people are not thinking about anything. They just do it, and then quite often regret having done so after the event.

Bill Bunbury: I guess the counter-argument is - isn't it? - that a cold-blooded killer is somebody who will remain a danger to society, and people who see that kind of activity demand closure, they want that out of the way, because they argue that if that person, even if imprisoned, gets out of that situation, society has a problem on its hands. What's your response to those sort of views?

Simon Longstaff: It's interesting; I think that's probably been the most compelling argument that I've yet heard put. I remember Beverley Balding, the mother of a young woman brutally murdered, who subsequently became an advocate for the death penalty, making just that point. She said the only way that I can have closure is that if I know there is zero possibility that the people who have been convicted of that offence can ever do it again to somebody else's daughter. And I can only get zero possibility with their death. If they're incorporated in a prison, there's always a chance, no matter how remote it is, that they might escape and once again commit their crime. Now, that or course assumes that the people who commit such crimes are beyond any kind of rehabilitation, that they can't experience remorse and change their lives. Therefore, never to offend again, because they become a different person. And I think that's actually the answer to the point, that although people do have that terrible fear, which I can believe to be very real, what it tends to deny is the opportunity that people who commit these crimes will change, and through their own volition become a new kind of person, from what they once were - no longer willing, or perhaps able, to take a life in the way they did in the past.

Bill Bunbury: So you think we should give them the benefit of the doubt, that there is always potential in somebody to become a different person?

Simon Longstaff: Well, I might be naively optimistic about this, but I do believe there is that chance. I think that there are just too many examples that we run into in day-to-day life, or hear about through history, of people who become radically changed by an experience in their life, who just turn around completely, and then live consistently in their new way of being for all of the time that remains to them. Now, we shouldn't presume, I think, that such life-changing experiences are not available to those people who've committed crimes, even such horrific crimes as murder.

Bill Bunbury: The emphasis we're putting at the moment in this conversation, is on the person who commits the offence. But I guess we have to say something about the offended too, don't we, in this discussion?

Joe Caddy: Yes. I have enormous feeling for those who have suffered at the hands of violent crime, and the senselessness of it and the randomness of it at times. And the sheer cruelty of it, especially when it's inflicted on innocent people - or anybody, in fact - and the victims are the families of those victims; I can understand the enormous feeling of pain, and enormous feeling of hurt that they feel. I can also understand - and even feel a part of, at times - the enormous hurt and pain that the rest of the community feels at the horror of some of those crimes, and some of the behaviour of people. Feelings are feelings, and we can't deny them, and we have to acknowledge them, and we have to find ways of working through them, as well.

Bill Bunbury: Is there a reconciliation, then, between dealing with that hurt and achieving a sense of closure? Is this possible in a society that doesn't use capital punishment, as we don't?

Joe Caddy: Well, firstly I would dispute whether or not capital punishment achieves that sense of closure. I thought it was very interesting recently to hear the people being tried in Indonesia around the Bali bombings, which was a horrible event. But to hear the sentence of death penalty being passed, and then to hear some people from Australia expressing their delight at that death sentence, and then hearing the same delight being expressed by the people who had been found guilty, I thought "what's this, a win-win?" And it isn't, of course it isn't. It hasn't addressed the situation, it hasn't really addressed the grief of the people who've been hurt, and it hasn't allowed for any healing in society. And it also fails to look at what are some of the underlying causes of that violence.

Bill Bunbury: We've been talking, of course, about the effect of punishment on a would-be offender, and we've been talking about what could happen to an offender if capital punishment is prosecuted. What's the effect, however, on us, the people who actually allow that to happen in a society? Can we measure that?

Simon Longstaff: Well, I don't know about exact measurements. You hear anecdotal stories of people who go along to executions, including executions of those people who have murdered their own loved ones, with a belief that they will find closure and that at last they'll be able to put everything that has happened behind them. And you hear enough stories of those people finding that they're traumatised by the sight of the person having their life taken from them, and that it doesn't bring them closure. Now, I don't know whether I just noticed those stories because they confirm my own view; there might be lots of people who feel fabulous after watching another person killed, and that things are better for doing so. But I think that it's hard to see how seeing another person coldly killed actually ennobles the human spirit in any circumstance.

Joe Caddy: In many ways, by taking a knee-jerk and understandable reaction, and calling for capital punishment for a serious offender, we're doing no better than what the offender has done. And we're modelling something in society that I think is very dangerous, because we're saying that ultimately, when a question gets too hard for us to handle, when an issue gets too confronting for us, then our solution, our socially instituted solution, is to kill it. So we apply an act of extreme state-sanctioned violence as our ultimate solution. And I think if that's what we're modelling through our criminal justice system, and modelling in society, then it's not going to be surprising if, at lower levels, people are finding at a personal level, areas where they're getting frustrated and can't find solutions, or solutions seem too difficult to find - that they take quick and easy solutions as well, that they won't work right through the issue. If we're doing it as a state, it's not going to be surprising that our citizens will resort to the same strategy, and when something gets too difficult, they'll resort to violent ends and violent means. That's not surprising, it's very poor modelling from the state, and it's not a mark of civilisation.

David Freilich: Well, the divine level of punishment, we believe that there is an afterlife, and the person will eventually be judged by the Almighty, and depending on how that person's behaviour in this world, if the person has taken another life in this world, the Almighty, we believe, in the next world will deal with it accordingly. But we've never been up there to see exactly what he's going to do. But our belief is that he will be dealt with, he or she will be dealt with. It's a blend of mercy and a blend of justice; whatever the Almighty does will be for the ultimate benefit of his world that he created. I'll leave it to him.


Bill Bunbury: How does the notion of capital punishment square up with the notion of the good of all, is there a connection here?

Ajan Brahm: There is a connection here. Maybe I'll give a little story. In the late 70s/early 80s in Thailand, there was a Communist army within Thailand, there was fighting, a very vicious war trying to overtake Thailand. They had support from the Communist armies in Vietnam, Laos and Cambodia. The government at that time had a triple strategy, which was of non-violence; which was of forgiveness, amnesty, and also for trying to settle the real problem. So they put roads and hospitals and schools in the poor areas. At the same time, because they didn't kill those people who are killing their soldiers and their teachers and their monks, but they gave them forgiveness. And there's always an amnesty, a way out; little by little every one of those soldiers gave themselves up, and they just blended back into society. Now the interesting part of this, when the leaders gave themselves up in the early 80s - and these were like Communist generals who had actually killed, murdered, blown up, they were terrorists - when they gave themselves up to Thai authorities, not only were they forgiven, they were given very good jobs in the government service. And I was recently told by the Thai Consul in Sydney that two of those - "activists", he calls them, rather than terrorists - two of those activists are currently, as we speak, serving as Ministers in the Thai government. So instead of punishing them and killing them, sometimes we leave justice to other means. And as far as we are concerned, we try and forgive and rehabilitate, and allow a person to redeem themselves by serving the country in other ways.


David Freilich: Today, by the way, in Jewish law, we are forbidden to carry out capital punishment - Israel is not run by rabbinical Talmudic law; if indeed there was a country today which was run by rabbinical law, they would be forbidden to carry out capital punishment - firstly, because the Sanhedrin no longer exists, and really they only had it in their power to know the intricacies, and the various regulations which had been in place, before capital punishment could be carried out. And number two: society today is such that we don't regard ourselves as on the same level as the Sanhedrin were at that time. Maybe society itself also has some social responsibility for these crimes today.

Bill Bunbury: So an individual, then, is not judged to be solely responsible in terms of a crime. Society has a role towards the individual - presumably, then, a preventive one, to do its best to ensure that crimes like this are not committed.

David Freilich: Correct. Even if a crime is committed, did society put the structure in place to at least try and prevent this happening in the first place? We also have a responsibility. So you've got to look at the whole picture rather than just the individual situation that's occurred.

MUSIC - 'Waltzing Matilda' - Brodsky Quartet

Simon Longstaff: Whether it's real or whether it's just our own capacity at myth-making, there's an underlying sense in the Australian story that much of the punishment which was brought down upon the heads of the people sent as convicts to Australia was capricious, and unjust and unusually harsh. Needless to say, there were people there who actually had committed quite serious crimes within the United Kingdom and other places from where convicts were sent. But the general sense of it was that this was not a great system, to see people being strapped up to the triangle and flogged with a cat-o'-nine-tails, or any of the other things that tended to happen. So I wondered whether or not part of our sense about what's an appropriate punishment is, as much as anything else, a reaction against our mythic sense of the imbalance and sheer unfairness of what occurred to our convict predecessors.

This notion of a fair go, I suppose, is part of it. You give people a chance, that Australia since European settlement is a rather improbable success, that if people hadn't given that convict stock a fair go and a second chance, then we would never have been able to build the society which subsequently emerged, for good and for ill, from that rather unpromising beginning. And so I think that maybe at some level we think, as Australians, that it's not just our own ancestors who should have enjoyed that opportunity, that maybe we should extend it to others today.

Bill Bunbury: You've been with Encounter on ABC Radio National.

My thanks to our contributors from different faiths and beliefs who shared their thoughts on the ethics and practice of capital punishment in different times and places.

Readings for Encounter today: Adam Salur. And studio production: David Lemay.

I'm Bill Bunbury, bye for now.


Ven. Ajan Brahmavamso
is the Spiritual Director of the Bodhinyana Forest Monastery at Serpentine in Western Australia. He is also the Spritual Director of the Buddhist Society of W.A, the Spiritual Advisor to the Buddhist Society of Victoria, and the Spiritual Director of the Cittabhavana Buddhist Hermitage in Bundanoon, N.S.W.
Fr Joe Caddy
is Director of Social Policy for Catholic Social Services in Victoria, Deputy Chair of Catholic Welfare Australia and Chaplain to Melbourne's Maximum Security prisons.
David Freilich
is the Chief Rabbi at the Perth Synagogue in Western Australia.
Dr Douglas Kelly
is Senior Lecturer in the Classics Program of the School of Language Studies at the Australian National University in Canberra.
Simon Longstaff
is the Executive Director of the St James Ethics Centre in Sydney.
Professor Amin Saikal
is Director of the Centre for Arab and Islamic Studies (The Middle East Central Asia) and Professor of Political Science at the Australian National University.


Bill Bunbury