Life for Death’ By: Roberto Siccuan De Alban’ Partner, Josefin de Alban Law Office Tumauini, Isabela Former NBI Legal Officer REIMPOSITION of the death penalty is (a) against national interest; (b) grossly immoral; and (c) pointless. Against National Interest Geographically divided into thousands of islands, the Philippines, to survive as one nation, should hope to be rendered whole-at least in the abstract- by common national goals and aspirations. This desired unity is actively threatened by forces from many sides, all of which favor the use of violence to attain objectives. Objectively, therefore, should not the State avoid any policy that encourages that threat? The pro-death sincerely believe that peace and order can be attained by killing prisoners for their heinous crimes. “Deterrence”, they say. “Self-defense” they add. “An eye for an eye”, they decree. But put another way, what the pro-death are saying is that the State should employ unilateral violence to attain an objective: What they dream to do, the so-called rebels have already been doing to satiety, By adopting measures that the State finds repugnant in its outlaws, does the State not lose the moral ascendancy it has over those that it condemns? A nation that contradicts itself cannot have a stable future. Grossly Immoral Is it moral to punish many for the crime of only one? It is bad enough that when you kill a prisoner you terminate not only his physical existence but also his hopes, his dreams, his unfinished poems. More than killing the prisoner you kill the hope of his innocent friends, relatives and loved ones. You kill their hope of ever touching him, of ever seeing him, of ever loving him again. You deprive mankind of any hope for a sudden rebirth, a sudden conversion - the miracle for which mankind is forever expectant. For the world is not excited by the deeds of good men - they are the unchanging * First Published in the 02 November 1991 issue ofthe Phillippines FREE PRESS. 2 Author rejoined the NBI in 1996 and is Director and Chief, Legal and Evaluation Division ofthe Bureau. WB RET FRM, NB! 22-5-ll<2: staples of eternity. What enriches the universe is the redemption of the damned, the return of the prodigal, the elevation of the carbon to the noble elegance of a shining diamond, The cynic will be quick to point out that such sentiments may not apply to the murderer who had killed the same hopes, dreams and unfinished poems of his victim and the hopes of the latter’s relatives and friends. We should simply disagree because in the case of the imprisoned murderer he killed because he was criminal. In the case of the State it does not have a right to choose to sink to the level of murdering criminals - it can, as it should, choose not to kill the prisoner but to be nobly aloof instead. Pointless Va We should agree that a thing (object, act or omission) is good if'does its purpose. Accordingly if the thing does not do its purpose it is pointless, it makes no sense. The intemperate would even call it stupid. And so a guitar is good if it emits agreeable sounds when its strings are touched. A fan is g00d if it cools. Etcetera. The pro-death argue that death does its purpose as a penalty because it is a deterrent (against the commission of crimes by others); it is the appropriate punishment; and, it is a justified act of self- defense (by the State). In fact death as a penalty is none of these. The idea of deterrence rests on the assumption that a would-be criminal thinks: “I am going to commit something evil because anyway I will be punished lightly for it,” or “I am not going to commit something evil because I will be punished severely, perhaps even die, for it”. In fact, a person decides to commit a crime because of a motive, not because of the existence or non-existence of a penalty for that crime. If he actually commits the offense he does it not because of the penalty but despite it. The theory, for instance, that murders of teen-age rape victims had been committed because of non-imposition of the “death penalty” under our statutes has the essence of the thesis that the murderers/rapists became actual criminals precisely because of their sober appreciation of the arguments of anti-reimposition advocates. Absurd.= The advocate of the deterrence-theory will be quick to point out that in fact people are afraid to commit crimes because they dread the punishment. We agree--but only in the sense that people are afraid to commit crimes openly, for fear of being caught and punished. We do not agree that penalties deter a person from committing a crime when he can do so without being detected. In short, what penalty does is warn the would-be offender of the imposition of punishment for the criminal act. Put another way, penalty, being a known warning, “forces” the offender to be more careful, the better to avoid detection and/or apprehension. Penalty merely affects the method of the criminal - it does not deter him from committing crimes, or wipe away his evil motives. That the fear of death would simply make the criminal adopt more careful tactics is better understood when we classify criminals into two: those who commit heinous crimes out of passion and those who commit the same crimes with deliberation. In the first class, the criminal cannot be deterred by any penalty because deterrence is_addressed to the mind, which, in the case of the criminal moved by passion, is subordinated to the emotions that cancel out intelligent deliberations. To the first class of criminals, therefore, the death penalty cannot be a deterrent because the passion-driven criminal cannot be deterred by something that is not appreciated by d at the moment of action or immediately prior to it. As regards the second elass of criminals, the keyword is deliberation. Given that no one (assuming our standard to be the sane) has the penalty in mind when he commits a crime, it should follow that when a deliberate criminal plans, the central consideration is the motive. His evil deed, his anticipation, must include a future that is consistent with his freedom. No sane person will plan on being caught. Therefore, since he does not intend to be caught, how can he be said to be deterred by something (i.e, the death penalty) that he does not intend to be applied to himself? The criminal’s fear of death would in fact only make him more deliberate. This fear which he intends to neutralize by carefully4. avoiding arrest and his plan to commit evil are two separate things. The latter cannot be altered unless his very motive, not just this fear, is changed. ‘On the matter of deterrence the January 24, 1983 issue of Time quoted the following from Camus’s 1957 essay against capital punishment: When pickpockets were punished by hanging in England, other thieves exercised their talents in the crowds surrounding the scaffold where their fellow was being hanged. The idea of deterrence can in fact be a trap. A case in point is the suggestion of a high-profile former government man that the death penalty be imposed on those guilty of rebellion. But how can one threaten a rebel with the risk of death when the taking of such risks is inseparable from rebellion, He would consider the death-sentence a badge of martyrdom. Appropriate penalty? A sermon form an alcoholic on the virtue of temperance cannot have much effect on his drug-addicted son. A father who knowingly pockets excess change may not chide his student child for cheating in class. A known rapist would not be credible speaking on continence. A teacher who falsifies election returns cannot inculcate faimess in her students. Etcetera. For as long, therefore, as government has not finally purged itself of drug- lord protectors, of “salvage” experts, of treasury-plunderers, of bribe-takers, of warlords and trigger-happy satraps and sycophants; for as long as government is unable to banish the causes of social and economic inequalities that foster criminality, that same government, as enforcer of the nation’s laws, operates in constant forfeiture of the right to put the entire blame on the murdering, cheating, thieving, mind-drugging governed. That same government cannot claim the right to kill a prisoner, much less to kill him for its own contributory faults. No man deserves to die upon the option of another. Only the Almighty Giver-of-Life has control over man’s entry into this world. Only He has any rightful control over man’s departure. It is a universally-accepted scientific truth that only the deranged commit suicide. By instinct or conscious thought man realizes that what he owns is mere usufruct over hisss body. He has no right to take his own life, much less to take that of another. But when the State imposes death on a prisoner, does it not encourage the commission of suicide or murder? For with death penalty, a man can then kill in order to be killed. The civilized find killing so abominable because it violates the sacredness of human life. When we kill to avenge a death, are we not putting a price on life --killing for killing? A nation acquires a right to survive by fostering worthy goals. Yet all goals-political, social, religious, etcetera; have one common motive, continuity of life. Is it consistent with such continuity to set a national policy of death through unilateral violence against the prisoner? It is bad enough that death of a crime-victim diminishes us. But do we regain such loss by causing still another loss? Do we in fact increase society by killing the prisoner? Is it not a better policy to substitute reconciliation for revenge, love for hate and life for death? ‘Yet some will be quick to point out that there many not be much loss from the death of a hardened criminal. This is the likely reaction of those who draw wisdom from the purity of their past and the immaculateness of their present soul ~ the very candidates likely to cast the first stone. To them must be taught the lessons of history, which clearly suggest that each man is born with a secret personal sanctum that no other man can invade: a built-in garden that his Creator had enriched with tiny seeds of his own redemption. In many the weeds of doom flower. But who is to say that the better seeds will never grow? It happened to Saul. To St. Augustine and St. Monica. It happened even to Darth Vader, he with the metal heart. If we cannot find hope in our fellowmen, is there real virtue in limiting that hope only to our “perfect selves”? Self-defense The idea of self-defense is based on man’s natural right to maintain life and to consider that life more valuable than another’s. The defending man correctly thinks: “My life is endangered by your imminent threat to kill me. I cannot allow that. [ have to resist your threat -- even if it means killing you to protect my life.” The key word is “imminent” danger. At the time the State kills the prisoner, is the State in “imminent” danger? The prisoner, inactual truth, is under the absolute power of the State acting through its officers. Probably in shackles, the prisoner is totally helpless, like a motherless baby. He is not only killed, he is murdered. What lesson of strength and other virtues can be learned from a government that kills the helpless? There are those who say that evil men should be killed lest they, on regaining freedom, do more evil to society - such a motive as that which impels an unwed socialite to dump her infant in the garbage can, to avoid the evil of shame and extra mouth to feed; that which inspires a hospital aide to suggest that psychiatric patients of the violent kind should all be gassed once and for all, lest they go berserk and kill even the doctors and innocent relatives; that which drives a sportsman, concerned for his strength, to suggest that all hospitals should be free of patients with highly communicable diseases. To allow death penalty as a national policy is to present that unwed socialite, hospital aide and sportsman as models of resolve, inspiration and strength. Justice The pro-death invoke justice to justify their thirst for revenge. A major argument is that the criminal who commits a heinous offense must be dealt a heinous punishment, The State is thereby expected to react in accordance with the behavior of the criminal; it is expected to sink to the level of the prisoner it condemns - to be just as mindless, as brutal and, worse, to be vindictive. Brutal? Yes, brutal because there is nothing noble in killing a shackled man. “An eye for an eye” is the pro-death’s battlecry. But is there justice in authorizing the jail-warden to rape and kill a prisoner who had mindlessly ravished, and then killed, a 7-year-old invalid? If we commit a second murder by killing the prisoner just because he brutally butchered his victim, we succeed only in rationalizing, even dignifying, the victim’s murder for then it could be said: “It is paid-for’. We would only have succeeded in institutionalizing violence as a means to attain a goal; in legalizing a formula that “authorizes”, albeit subliminally, the citizen to commit his own vindictive, carefully reasoned violence.Revenge does not become us human beings. We are awed by tales of cobras spending their lives tracking down a tormentor, whose image is indelibly imprinted in their eyes, to inflict the final act of revenge and of camels that, after long years and in different lands, would recognize and attack a driver for past maltreatments. But we are more than animals. We are possessed with a mind that can subjugate our emotions and baser instincts. That is what makes us superior. Man is constantly in search of things - matter or attitude - that can improve him, that can bring him closer, perhaps by heightened appreciation, to the finer things of life. Rightly so, for the reverse would condemn humanity to physical and spiritual stagnation. The keyword, therefore, is progress. But what is so progressive about revenge? What is so compellingly good about “counter-biting?” The human race is not advanced by a stubborn obedience to primal yearnings but by a willing departure from the residues of native crudeness, a sacrificial weaning for the better - the refinement of conduct and thought. Under these terms we should, as a nation, be willing to be ennobled by substituting love for hate, forgiveness for hurt, life for death. And yet this is not new. One in History, Whom we all admire, did it: dignity for slap; bread for stone. We cannot do better or less.