The abolition of the death penalty and human dignity

By Liam Gibson   |   18 October 2023

On 15 May 2017, one of Britain’s most notorious child killers, Ian Brady, died of natural causes in Ashworth High Security Hospital near Liverpool. Brady was convicted of the murder of Lesley Ann Downey (10), John Kilbride (12) and Edward Evans (17) in April 1966.¹ A sadist who showed no signs of remorse, he was judged to be a psychopath, never to be released from prison. In October 1999, Brady demanded the right to die and threatened to starve himself to death rather than spend the rest of his life behind bars. In March of the following year, however, the High Court ruled that, due to his mental state, it was lawful for doctors to force-feed him if they believed his life was in danger.

Had Brady been convicted just a few years earlier, he would probably have faced the death penalty. The Murder (Abolition of Death Penalty) Act, which received royal assent on 8 November 1965 and came into force the following day,² suspended the use of capital punishment for five years in cases of murder. In 1969, Parliament made this suspension permanent. Yet it was only when the Human Rights Act was passed in 1998 that the death penalty, even in times of war, was completely abolished. 

Justice and the right to life

Elizabeth Anscombe begins her essay, War and Murder, with the proposition that, since there will always be people prepared to commit murder and other violent crimes, there will always be a need for people who command violence to enforce the laws against such acts. She then asks the question, “[W]hat is a just attitude to this exercise of violent coercive power on the part of rulers and their subordinate officers?”³

For Anscombe, the use of force, even deadly force, is not wrong in and of itself. Rather, for her, the critical issue is justice: is the cause just or is violence inflicted on the innocent? She argues that, since it is legitimate for lawful authorities to use violence to deal with acts of aggression within a state, it is legitimate to make war against aggressors in another state if the cause is just. She regards the pacifist’s view that all wars are equally wrong as not merely unrealistic but morally dangerous. Pacifism, she claims, “teaches people to make no distinction between the shedding of innocent blood and the shedding of any human blood”.

Whether Anscombe’s assessment of pacifism was accurate, there are good reasons for thinking that, as far as the death penalty is concerned, her thesis was correct. In Britain, while the right to life of convicted murderers is upheld as inviolable, the lives of the innocent are regarded with indifference.  

In 1983, in recognition of “a general tendency in favour of abolition of the death penalty” in several member states, the Council of Europe added Protocol 6 to the European Convention on Human Rights. This prohibited all peacetime executions; no derogations or reservations were permitted. Then, in 2002, Protocol 13 banned the death penalty during war. This time the preamble to the Protocol made clear the rationale behind its adoption. It was intended to “strengthen the protection of the right to life”. “[T]he abolition of the death penalty,” it states, “is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings”. 

Paradoxically, in the 20 years since its adoption, the protection of the right to life has grown steadily weaker. Abortion laws in Europe have become increasingly permissive while the legalisation of euthanasia and assisted suicide has continued to spread the culture of death across the continent. At the same time, the depiction of the condemned murderer as a vulnerable individual in need of protection from state-sanctioned violence has, as Anscombe predicted, helped to erase the distinction between the lives of the innocent and those who prey upon them.

Few people would argue that, since the practice of capital punishment ceased in 1965, there has been anything but a radical loss of respect in British society for human life at every stage. Eugenic abortion is permitted up to birth and, while attempts to legalise assisted suicide have so far failed, the profoundly disabled can be lawfully deprived of food and fluids for the purpose of ending their lives. The UK’s National Health Service has also become internationally notorious for its virtual abduction of severely ill children to prevent their families from seeking potential treatment abroad. And, although incalculable lives are lost through IVF and the exploitation of human embryos, it is the elimination of the disabled, the elderly and the terminally ill that has been the driving force for the unprecedented change in Britain’s legal culture over the last 58 years. This is due to the gradual replacement of the Christian view of man created in the image of God with the belief that human dignity is based on autonomy. In much of the medical profession respect for a patient’s dignity simply means respecting his or her autonomy.⁴ Those who have lost their autonomy are considered to be leading lives devoid of dignity. Those who have lost mental capacity through an organic disease or brain injury would, it is assumed, probably prefer to die rather than go on living “without dignity”.  

Sadly, in recent weeks, the case of Sudiksha Thirumalesh has meant that this bleak picture has grown darker still. Sudiksha (19) had a rare genetic mitochondrial disease that caused chronic muscle weakness, hearing loss and left her dependent on dialysis. She wanted to travel to North America to undergo experimental treatment, but her doctors argued that she was delusional for not accepting her death. In her desire to live, Sudiksha took legal action to be allowed to travel. Despite the evidence of two psychiatrists who testified that her mind was unaffected by her illness, the Court of Protection ruled that she was incapable of deciding what was in her best interests. At the request of the NHS trust, the judge added insult to injury by issuing a so-called Transparency Order, preventing Sudiksha’s family from publicising her plight or raising funds for treatment in Canada. Previous cases of this kind involved young children who were unable to speak for themselves. But Sudiksha was an adult, mentally competent and articulate. Nevertheless, a British court once again rubber-stamped a fatal decision of the medical profession. 

Sudiksha died from cardiac arrest on 12 September 2023, before an appeal could be heard. Reporting restrictions were only lifted 10 days later. The cold-blooded determination shown by the courts and the medical establishment to obstruct all efforts to save the life of an innocent young woman provides a grim warning of what the NHS could become if assisted suicide were to be legalised in Britain.

The “Bloody Code” and the mark of Cain

Many valid, rational and persuasive arguments exist for the abolition of capital punishment and there can be no question that it has a long history of abuse.⁵ Between 1688 and 1820, the number of crimes which carried a death sentence in England and Wales increased from 50 to over 220.⁶ In addition to major offences — robbery, rape, piracy and murder, etc. — the “Bloody Code”, as it was known, included minor offences such as destroying a fishpond or cutting down young trees, although the sentence for lesser crimes was often commuted to imprisonment or transportation. By 1832 the Home Secretary, Sir Robert Peel, had ensured that only the most serious offences incurred the harshest punishment, and from 1840, the House of Commons voted on at least eight occasions on measures that would have abolished the death penalty, but it would be almost 100 years after public executions were ended in 1868 that the cause of abolition gained a similar level of support.⁷

These shifting attitudes to the death penalty can also be seen within the Catholic Church. The understanding that a legitimate temporal authority has the right to use deadly force to uphold the law or punish the guilty is embedded in Mosaic law. This, however, can be understood, as with the provision of divorce, as a concession due to the people’s hardness of heart (Matt 19:8). It also provided an alternative to personal revenge. Writing in the 1860s, Antonio Rosmini points out that, in Genesis, God “set a mark upon Cain that whosoever found him should not kill him” for the murder of Abel. (Gen 4:15) God, Rosmini argues, sets the positive law in opposition to the natural law and the instinct for moral retribution.⁸

Despite this, the Church has never taught that the death penalty in itself was illicit, but warned that those who unjustly condemn the innocent to death will one day account to God for the abuse of their power.

The 1997 edition of the Catechism of the Catholic Church (paragraph 2267) acknowledged the legitimate use of capital punishment, but introduces a caveat: 

“The traditional teaching of the Church does not exclude, presupposing full ascertainment of the identity and responsibility of the offender, recourse to the death penalty, when this is the only practicable way to defend the lives of human beings effectively against the aggressor.”

A far more significant change came in 2018, when Pope Francis issued a rescript of that section that stated:

“Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good.

“Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.

“Consequently, the Church teaches, in the light of the Gospel, that ‘the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person,’ and she works with determination for its abolition worldwide.”⁹

This is not so much the development of Church teaching as a radical break with the past. The flat assertion that society has gained “an increasing awareness” of the dignity of the person is not only patently false, but it makes a mockery of the countless lives lost to abortion, infanticide and euthanasia every year. In his latest Apostolic Exhortation, Laudate Deum, Pope Francis makes the equally dubious claim that climate change is an issue “intimately related to the dignity of human life”.¹⁰ In fact, in the seamless garment of ecology, individual humans have been devalued as the status of humanity in general has been lost in the vastness of creation. In the same way, the gospel of social justice has blurred the distinction between murderers and their victims, as the campaign to completely decriminalise abortion in Britain demonstrates.     

The abandonment of the perennial teaching of the Church through a revision of the catechism has also raised the prospect that Pope Francis will seek to make other Catholic teachings more acceptable to the secular world. Whether these concerns are justified may become clearer after the conclusion of the Synod on Synodality. In the meantime, the evidence that vindicates Anscombe’s warning against the failure to distinguish between “the shedding of innocent blood and the shedding of any human blood” grows stronger with every passing week.

Notes

1. Brady also admitted the murder of Pauline Reade (16) and Keith Bennett (12).
2. This Act did not extend to Northern Ireland, where capital punishment was abolished in cases of murder by the Northern Ireland (Emergency Powers) Act 1973.
3. G E M Anscombe, “War and Murder” in Walter Stein (ed), Nuclear Weapons: A Catholic Response (Sheed & Ward, 1961), pp44–52.
4. Ruth Macklin, “Dignity is a useless concept, it means no more than respect for persons or their autonomy” (2003) 327 BMJ.  p1419.
5. For example, miscarriages of justice, the impossibility of a fair trial in a polarised society, the creation of martyrs for a political cause and hanging the “monkey” instead of the “organ grinder”.
6. John Walliss. The Bloody Code in England and Wales, 1760–1830. (Palgrave MacMillan, 2018) p 1.
7. Randall McGowen, “History, Culture and the Death Penalty: The British Debates, 1840–70”, Historical Reflections, 29, 2, Interpreting the Death Penalty: Spectacles and Debates (Summer 2003), pp 229–30. The issue was debated in 1840, 1841, 1847, 1848, 1849, 1850, 1856, 1864, 1866, 1868 and 1869.
8. Antonio Rosmini, The Philosophy of Right: Rights of the Individual, Denis Cleary and Terence Watson (trans) (Rosmini House, 1971) p 465.
9. New revision of number 2267 of the Catechism of the Catholic Church on the death penalty — Rescriptum “ex Audentia SS.mi” (2 August 2018).
10. Pope Francis, Laudate Deum, 3 (4 October 2023)