Capital Punishment: the difference between “values”, “fundamental values”, and “EU values”

orbc3a1n-viktor-3With his suggestion that a re-introduction of the death penalty should be discussed in his country, Hungarian Prime Minister Viktor Orbán has stirred up excitement and angry reactions from all over Europe, including his political allies of the European People’s Party (EPP) who accuse him of violating the EU’s fundamental values.

The question is whether not having the death penalty really is a “fundamental value”.

There is a simple and a somewhat more complicated answer to this. The simple answer is that the EU Fundamental Rights Charter explicitly and specifically excludes the death penalty, which means that any EU Member State re-introducing it would have to expect the heftiest sanctions from the EU, including a suspension of membership. Thus, from the perspective of positive law the situation could hardly be clearer: the death penalty is contrary to “EU values”.

From the perspective of natural law, the situation is less clear. There are good arguments against the death penalty, but there also are good arguments speaking in favour. One might therefore view the rejection of capital punishment as a legitimate political position – but is it really a “fundamental value”??

One argument that is obviously flawed is that the death penalty is by definition unjust. If one considers criminals like the Belgian Marc Dutroux, the Austrian Josef Fritzl, the Frenchman Michel Fourniret, to name just some of the more prominent cases, there can be little doubt that these persons would in a certain sense have “deserved” death – and that a swift and painless execution would indeed be a rather modest sanction if measured against the enormity of their crimes. And if one thinks of political mass murderers like Hitler, Stalin, Lenin, or – more recently – Ratko Mladic and Radovan Karadzic, it becomes even clearer that death can be “deserved”. “Injustice” is therefore not per se a good argument against the death penalty.

But what are then the reasons that speak against it?

One of these reasons certainly is the risk of judicial errors that cannot anymore be corrected. However, that argument is ambivalent, as it may also operate in the opposite sense. Consider for example the case of Peter (Jack) Unterweger, a serial killer from Austria. Convicted for a murder he committed in 1974, he served a life sentence in prison, with no possibility to be released on parole during the first 15 years. However, during his time in prison he became an author of short stories, poems, plays, and an autobiography, Fegefeuer oder die Reise ins Zuchthaus (Purgatory or the trip to prison), which was adapted into a motion picture. This turned him into a minor celebrity and attracted the attention of Vienna’s radical-chic set, which adopted him as their new darling. A media campaign to obtain his early release from prison was started by writers, artists, journalists and politicians, including the (later) Nobel Prize winners Elfriede Jelinek and Günter Grass. Due to his (maybe somewhat over-valued) writing skills, Unterweger was the model of successful re-integration into society. He finally was released from prison in May 1990 – but immediately after his release a new series of (sexually motivated) murders set in, which cost the lives of not less than nine female victims in less than one year. During that time, he was part of Austria’s cultural élite: his autobiography was taught in schools and his stories for children were performed on the radio. Unterweger himself hosted television programs which discussed criminal rehabilitation, and he reported as a journalist for the state broadcaster ORF (Austria’s equivalent of the BBC), including reporting stories concerning the very murders for which he was later found guilty.

So, while there is no doubt that judicial errors can occur, there also can be no doubt that leniency is not always life-saving…

Another argument against the death penalty is that it can be abused, i.e. by a political strongman who seizes power and then uses it against his opponents. However, such a political strongman might as well newly introduce the death penalty even if it was not used before he comes into power – so this risk of political abuse, while undeniable, is not a convincing argument why in a democratic system there should be no death penalty.

Ultimately, the strongest argument against the death penalty is that most of us do not feel comfortable with the idea of the State killing people, irrespective of whether they may deserve tis or not. This is certainly a valid consideration, but not a compelling one. Thus, we may of course agree with those holding such a position, or indeed hold it ourselves – but defining it as a “fundamental value” goes somewhat too far.

What is certainly disturbing with contemporary Europe’s rejection of the death penalty is that the very same societies that find the killing of convicted murderers unacceptable have no qualms at all with regard to accepting the killing of totally innocent unborn children – at times even in the last stadium of pregnancy or – even more absurdly – when a child has been born alive as a result of a botched abortion.

Are we a society of hypocrites?

Anyway, as long as the Fundamental Rights Charter remains unchanged, it is clear that Hungary cannot re-introduce the death penalty. And if the Charter were to be changed, there are some other points that would require more urgent consideration…

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