I’m looking forward to reading the Judge’s notes on sentencing Clayton Weatherston.

I thought of her predicament last Friday evening as I sat among urbane and decent  men (mostly men) listening to the Hon Dr Michael Bassett deliver the 2009 Ralph Hanan speech. This year’s annual celebration of the National Party’s liberal inheritance at the Wellington Club heard Dr Bassett’s  summation of Hanan’s greatest Parliamentary acheivement – the 1961 Parliamentary conscience vote that ended here the hanging of murderers until dead.  Michael assumed, correctly judging from the respectful murmurs, that his audience agreed that an unalloyed good thing was done nearly 50 years ago by the National Minister of Justice.

Ralph Hanan put it out of Judith Potter J’s power to satisfy intuitive wisdom with Weatherston’s sentence. 

True justice may require  a death penalty.  Without it there is a hole in our promise of justice that may be unfillable. Yet as I sat among those satisfied diners, I knew that I would vote against a return of the death penalty, at least for the forseeable future – precisely because of the strength of sentiment there and elsewhere.

But first the explanation of the hole in our heart.

The belief that a price that equalises is the essence of justice lies deep in most cultures, including our own historically.  ‘An eye for an eye, a tooth for a tooth" comes from Deuteronomy in the Bible, but it is far more universal as the first codification of measured justice in place of even more primal vendetta/blood feud. The Babylonian Code of Hammurabi required a strong form of ‘mirror justice’. The Koran offers an elegant conjunction of that justice with the possibility of mercy, and victim rehabilitation (through restored power). The Koran gives victims an exclusive right to dispense with simple retributive sentencing.  The Chinese considered that the heavens remained in disharmony while a wrong-doer remained better off than his victim as a result of ,or in spite of, his crime.

The conviction that justice without equality of suffering is not justice may run deeper than such ‘recent’ religions.. Evolutionary psychology suggests that the need to make sure that "cheats dont’ prosper" may be ‘hardwired’ into us. Justice must "balance the scales".  Game theory too supports that finding. ‘Tit for tat’ strategies are the most stable decision models for maximising cooperation (over ruthless self-interest) and thus overall returns in repeat play prisoners’ dilemma experiments. And for most cultures there are many ways of expressing that need to feel that evil has been made profitless – utu or revenge, "paying the price",  "getting even", or "levelling".

Plainly it is not possible to assure the families of murder victims that the scales will be levelled, when their loved one is gone forever, while the murderer is fed, kept warm and usually safe in his bed and will be out agaiin in time to marry, produce for his parents the grandchildren the victims will never get, and bludge a living for the rest of his life off his fellow citizens if he chooses.

This imbalance can not be camouflaged. It is a hole at the heart of our system. Because fear of the strong murdering the weak is our primal fear. Unpunished it renders false the State’s promise that crime wont pay. That promise is the consideration for taking the private right of retribution.  Obvious unwillingness to deliver may fatally sabotage all State "trust us" efforts  to assure citizens that they can give up violence themsleves.

Take a sample of educated mistrust of our justice system in the comments on David Farrar’s moving post on the Weatherston sentencing. Given the environment effect (Broken Windows) on propensities to commit crime, and mistrust’s effect on community willingness to support Police in containing crime, such mistrust may be exacting a very high price indeed.

But I said would not vote to restore the death penalty? 

Because there are times when partial justice is more prudent than full justice. Since Ralph Hanan got the  parliamentary support to abolish the death penalty partial justice for murder has been more prudent than true justice..

Why?

Because we live in a democracy, and a significant number of New Zealanders have been persuaded to mistrust, indeed to be repelled by, the instinct  that would match innocent life against evil life. They feel that the State can claim higher mindedness if it "does not descend to the murderer’s level"

And though I do not agree with them, I would vote against reinstating the death penalty because they are sincere, and there are enough of them to ensure that we would be consumed in fighting ourselves over the issue when there are so many more useful criminal justice reforms to do in the meantime, while that generation grows old.

Not supporting reinstatement has the side benefit of relief from responsibility for an inevitable dreadful mistake of justice – when an innocent is convicted. But that is a cop-out. Leadership requires us to accept that many decisions will cost the lives of others. The Parole Board live with it all the time, seemingly without wounding the consciences of the anointed who regard opposition to parole as nasty.

But I would not support reinstatement of the death penalty because in a democracy there are times when the majority accepts high costs to avoid grave affront to a  minority. Pragmatically, other priorities in reform of criminal justice will be more valuable. A sufficient consensus can be achieved for them, and they will give us much more crime reducing bang for our buck than a massive identity politics battle with ourselves.

Too many trials could be undermined if the normal consequence for murder was death. Most juries would contain one or more people who would rather subvert the trial with a not guilty verdict, than feel part of a process they would characterise as the state being no better than the murderer. We would have anti-death penalty  judges feeling justified in  twisting the law beyond recognition to avoid giving that sentence. We could have witnesses and police conniving on lesser charges, to ensure prompt progress toward conviction for something, rather than seeing murder trials bogged down in controversy and spurious appeals nevertheless given grave consideration by senior judges.

This pragmatism will be pilloried by those who are outraged by the moral superiority claimed by the liberal anointed. The anointed despise their fellow citizens’ intuitive demand for a penalty that matches the crime. In their ‘compassion’ they unintentionally cheapen the victim’s life. Their feelgood is at the expense of the victims’ families – they donate other families’ entitlement to true justice. Victims judge the community’s  value of their lost loved one by that refusal to restore traditional equality.

Those conditions will endure until a critical mass of our anointed are willing to re-examine their beliefs, or pass on. Perhaps some will ask whether there might not be a connection between a murder rate over 15 times higher now than when Ralph Hanan achieved his goal. But most will go to their graves convinced that what they believed in their youth remains true.

Interestingly, 10 years ago Phil Goff gave an Auckland District Law Society gathering a very similar message. He said he had no personal objection to the death penalty.