Daily Times

One of the biggest controversies surrounding punishment for terrorists is whether or not it is legal to use the death penalty against them. Although the letter of the 21st Amendment quite clearly restricts the use of the death penalty to cases of religiously motivated terrorism, the suspension of the moratorium has brought about the execution of many who have been convicted in cases unrelated to terrorism. This, of course, also leads to the question of exactly where the line between prison sentences and punishing a terrorist by the death penalty lies.

Some would suggest that the denial of freedom is punishment enough and that the very features of prison demonstrate our serious concern with preserving a person’s essential humanity inside a prison facility. But human dignity also consists in remembering the victims and asking how they would feel looking down on these vicious terrorists. If we really care about human dignity, those who committed aggravated murders should live or die as they deserve. At the same time that we fundamentally disconnect the punishment from the crime, for the worst of the worst we equally and oppositely defile justice.

Terrorists get released back into the public, free to once again prey upon innocent individuals with a vengeful rage fuelled by the anger and fury of temporary incarceration. So why would the government willingly let these accused killers back into society to potentially recommit the devastating wreckage of their dangerous pasts? Instead of just giving the terrorists a slap on the wrist and sending them on their way, a greater form of punishment would help prevent the loss of innocent lives as well as making an example that would send a strong and clear message. The question is: how many more lives must be lost before we can put an end to this injustice?

While the subject of capital punishment has been hotly debated for decades, in many countries the taking of a life is considered to be worthy of losing your own. This is especially true in cases where the killing of one or more people is planned in advance, which is the case for every act of terrorism. Retributivists who believe in justice would reward those who bring us pleasure but punish severely those who sadistically or wantonly cause us pain. A basic retributive measure satisfies our deepest instincts for justice. On the other hand, if prison is simply a holding place that prevents people inside from committing crime then it is failing in creating deterrence; terrorists sometimes feel it is better to commit a crime when released in order to get back into prison. As a nation, we have decided that terrorism that results in loss of life should face the possibility of the death penalty. But is this wise?

One can argue about the effectiveness of the death penalty generally but when it comes to terrorism, national security concerns should be paramount. It can be argued that the execution of terrorists, especially minor operatives, has effects that go beyond retribution or justice. Executions can play right into the hands of adversaries and turn criminals into martyrs, inviting retaliatory strikes in reaction. However, the most potent weapon against terrorists is the state’s commitment to the rule of law; the Pakistan government must therefore use the courts to make it clear that terrorism is a criminal act, not jihad, not heroism, not holy war. We must not make martyrs out of murderers.

It is a terrible commentary on society, as if tapping the roots of how ordinary people feel, but it seems we have reached that point where people by their acts do in fact give up the right to survive. It is hard not to realise how victims always get the first headlines but when their killers are caught, they are almost always the first to be forgotten. The lasting suffering of their families and friends are afforded even less respect. In their arguments and demonstrations against capital punishment, activists overlook the emotions of ordinary people. Not everyone has the detachment of a legal scholar or moral philosopher. The common person identifies with a victim, not with a defendant. What the activists call cruel and inhuman punishment, a victim’s family calls justice and the ordinary person calls a punishment fitting the crime.

According to Amnesty International, there are currently 58 nations that actively practice the death penalty, including the US, which uses capital punishment in 32 of the 50 states. The death penalty eliminates the possibility of the criminal repeating his offence. Removing the problem directly can undoubtedly deter further violent crime. Let the punishment fit the crime but do we really mean what we say? Our so-called system of justice mocks the very idea of just and proportional punishment.

There are two aspects of the question: should the government suspend the moratorium on the death penalty? The first is ethical: is it moral to execute terrorists? The second is philosophical: what should be the burden of proof for capital cases? In order to support the death penalty, it must be moral to execute criminals and the burden of proof must specify and always be met. There is a concept in justice called proportionality, which states basically that the reaction should fit the action. Taking proportionality into account, the premeditated murder of an innocent by a criminal justly deserves the premeditated execution by the state of that criminal. A lack of justice would encourage citizens to take justice into their own hands.

It is tempting to side with either the moral argument or the philosophical argument. Both have appeal. It is right to punish criminals and, in some cases, the death penalty is appropriate. On the other hand, to kill even a single innocent man is reprehensible. Most people try to pick one argument while neglecting the other.

The answer is not so simple and clear, which is why so many people disagree on the topic. Ultimately, the courts must be trusted to enact justice. This means no temporary restrictions, such as the prevention of the death penalty. If the restrictions are too high, confidence in the courts will be lost, undermining their purpose. In cases of the death penalty, the burden of proof must be higher than normal though. It must be clear that death is final. The risk of killing an innocent man must be weighed heavily. The burden of proof is higher but it must be objective and possible. A burden that cannot be met is the same as eliminating the death penalty.

The writer is a professor of Psychiatry and consultant Forensic Psychiatrist in the UK. He can be contacted at fawad_shifa@yahoo.com