The death penalty is morally unacceptable
By David Swanton
Posted Thursday, 5 March 2015 in in ON LINEopinion - Australia's e-journal of social and political debate
Capital punishment has recently become an increased focus of international attention and debate. From an ethical perspective, many of the arguments for and against the death penalty are missing a consideration of key issues.
Criminologists consider that the major reasons for criminal penalties are rehabilitation (reforming the prisoner to be a better citizen), incapacitation (preventing the prisoner from committing other crimes), deterrence (discouraging the prisoner and others from further crime) and retribution (society punishing the prisoner as vengeance for a criminal act). Rehabilitation and incapacitation can be achieved through appropriately lengthy jail sentences. The only reasons that could possibly be offered in support of a death penalty are deterrence and retribution.
However, the large majority of experts consider that there is no credible scientific evidence supporting the contention that the death penalty deters criminal behaviour. This is a surprising result for some, but perhaps the criminal mind doesn’t think of consequences or has difficulty computing the risk profiles associated with undertaking a criminal act.
That leaves retribution. Consider whether people would advocate retribution in a hypothetical situation. Imagine that you are the world’s best neurosurgeon and you have surgically removed a patient’s large brain tumour, which would have caused extremely violent outbursts. At the same time, a DNA test links your patient to the violent deaths and rapes of your closest friends. As the world’s foremost surgeon, you know that this person will no longer commit such crimes (they were a model citizen until the tumour developed). There is no need for incapacitation, your patient has been rehabilitated through your surgery, and there is no need for deterrence (as people don’t plan to have brain tumours). Yet some people might still consider that retribution, through capital punishment, is desirable, despite its unjustness. What would we want to happen if, instead, each of us were the patient?
This hypothetical situation is not unrealistic, because many people and cultures consider it acceptable to kill people against their will. Many religions teach that their gods or deities of choice have killed many others, through great floods, the Passover (death of newborn infants), and much general smiting done without presumptions of innocence and trials. Many people believe that these religious teachings are good. Over time, these beliefs have manifested themselves in many legal systems. Indeed, the four most populous countries, China, India, the United States of America and Indonesia, have the death penalty on their statute books.
Although many might support retribution as an argument for the death penalty, it doesn’t conform to modern notions of how we should treat fellow humans. A better alternative to many people’s eye for an eye system of morality is one based on an ethical principle that it is wrong to kill other people against their will. There are some exceptions to this of course, self defence being the most notable. According to this principle the death penalty would be forbidden. If it is wrong for one individual to kill another then it should be unacceptable for the state to cause a person’s death in civilised societies. The state, as a collective of individuals, should not generally have moral rights that individuals do not have.
Modern societies recognise that prisoners should be treated humanely, consistent with human rights obligations. Some criminals do commit horrific crimes, but capital punishment, torture, or mistreatment of prisoners serves no utilitarian purpose and signals, wrongly, that violence can solve problems. An eye for an eye society is one that is of years gone by, and unsuited to a modern civilised society.
It seems clear then that any countries that want to take the moral high ground and campaign against capital punishment for their nationals who have committed crimes in other countries should abide by some rules.
First, they should not have the death penalty on their own statute books. That would be hypocritical.
Second, they must not consider that killing some people is acceptable according to some of their belief systems. It is hypocritical to denounce killing in somebody else’s moral or legal system, if you accept it in your own.
Third, they should not campaign against capital punishment only for their citizens. In moral matters, what is right for one nationality ought to be right for people of other nationalities. To do otherwise is self-serving, nationalistic, and a form of racial/cultural/ethnic discrimination.
Fourth, they should make representations against the death penalty with equal vigour to all countries that have capital punishment. To make representations to one country, and not for example, to China or the United States, indicates bias. International relations are complex, but moral campaigns aimed at one country over others cannot be morally sound.
If countries follow these rules, they can work diplomatically and cooperatively with each other to endorse and uphold the principle that killing others against their will is wrong, and in so doing eliminate capital punishment. This principle should be applied to all people, in all countries, at all times.
Time for euthanasia to be regulated
By David Swanton
Posted Friday, 29 August 2014 in ON LINE opinion - Australia's e-journal of social and political debate
Posted Monday, 11 August 2014 in The Canberra Times
In recent weeks, Australia's most outspoken voluntary euthanasia campaigner, Philip Nitschke, has been subjected to harsh criticism from some euthanasia supporters, including the ACT's Mary Porter and the chairman of beyondblue, Jeff Kennett.
Given that this criticism is based around actions concerning a recent case of 'rational suicide', an issue that has been raised before with barely any public criticism, I suspect these commentaries are part of a broader campaign to undermine Dr Nitschke, the director of Exit International.
It's hard not to be perplexed by the hypocrisy of this criticism. As people with public standing and substantial influence, why don't Ms Porter and Mr Kennett work to fix the voluntary euthanasia regulatory system, rather than complaining about Dr Nitschke operating in an unregulated environment? There are options the pair can explore.
Does Dr Nitschke push the legal limits in the current environment? Yes. Are there risks that people who are depressed, not elderly or terminally ill might access information in the unregulated environment? Yes. But these risks are mitigated somewhat as Exit members are required to be either seriously ill, notionally older than 50, and not clinically depressed. However, exceptions are permitted, and I'm one such exception.
Since I was in my thirties, I have been actively supportive of the fundamental human right to choose what is right for one's own body. I'm not terminally ill and my mental state has never been questioned.
If I had committed suicide, should Dr Nitschke be blamed? No, as I have shown no outward signs of depression, Dr Nitschke is not my physician, and people of sound mind should be responsible for their own actions.
Rational suicide is not a new issue in Australia, but the level of public debate on the issue is immature. For three years, Lisette Nigot warned Dr Nitschke that she would take her life at 80 because she will have had enough by 80. A movie (Mademoiselle and the Doctor) documented her case.
Iris Flounders chose to take her life when her terminally ill husband, Don, took his life with Nembutal. Neither Iris or Lisette were terminally ill, nor were they depressed. In both cases, the women emphatically told Dr Nitschke, friends and relatives to mind their own business.
There was barely any adverse commentary in the press on these matters, although there were ructions in the pro-euthanasia community regarding Lisette Nigot's case, particularly around where the line ought to be drawn. Dr Nitschke was then understandably surprised and caught off guard in his response to media criticism when ambushed on the most recent case of rational suicide.
We should note that while many people commit suicide, it is not illegal. It was not possible to dissuade these women from their suicides, and regrettably, this will sometimes be the case.
While legislative reform is the main objective of the state and territory-based Dying with Dignity organisations, it is also a desired objective of Exit International. Much of Dr Nitschke's time, however, is devoted to complementary activities, in particular research and providing information on end-of-life options to the elderly and terminally ill.
In pushing the boundaries of what is legally permissible, Dr Nitschke has not always endeared himself to some in the voluntary euthanasia movement. That's understandable (though it is always hoped that those working for voluntary euthanasia reform can work together).
However, his information and guidance not only fills the regulatory gap left by politicians who refuse to act, it is also immensely comforting to the many thousands of Exit members in Australia and overseas who attend his workshops and read his books on end-of-life options.
Acting on Dr Nitschke's advice, thousands of elderly Australians, and many hundreds of Canberrans, have acquired their illegal drugs (imported or manufactured, and stashed well away from inquiring eyes) or other equipment. That's also why so many support him. People, including many average grandparents, need information on drugs now and cannot wait for politicians to legislate for voluntary euthanasia.
At Dr Nitschke's ACT workshop in mid-July 2014, about 115 Canberrans were thoroughly engaged for three hours. How did Exit try to mitigate risks at this workshop? Everyone signed disclaimer forms. Anyone who claimed to be over 50 but possibly was not, was approached by me, or others, and questioned.
This process is not a grilling but an effort to ascertain the nature of their interest, and whether their attendance could be regarded as suspicious or unusual. We blocked someone whose disclaimer form indicated they suffered a depressive illness a decade earlier, until emphatic assertions, including from their partner, that their condition was no longer present.
We have refused people entry to workshops and Exit membership when their eagerness to procure drugs bordered on the fanatical or their behaviour was otherwise peculiar. And I direct people to an appropriate medical professional if there are doubts about their mental state. Nonetheless, appropriate legislation would give society more certainty about what goes on.
Politicians, parliaments, assemblies and society have so far abrogated their responsibilities for regulating voluntary euthanasia. The onus is therefore on Exit and Dr Nitschke to screen those who may not be suitable for the information provided in his books and workshops.
This is not ideal because such screening cannot be perfect, especially in an unregulated environment. Consequently, given Ms Porter's and Mr Kennett's general support for euthanasia, I propose to outline some activities that they could undertake to further the euthanasia cause, and I would be happy to work with them to ensure this occurs. In this way, their concerns about Dr Nitschke's activities can be addressed.
In addition, it would be a good opportunity for Ms Porter to act on the information she obtained during her three-week European study trip examining euthanasia.
The Commonwealth's Euthanasia Laws Act 1997 prohibits the ACT from legislating for voluntary euthanasia. But, unsurprisingly, there are ways around this. One is an issue I first raised with then chief minister Jon Stanhope, and it was raised again by Queensland University of Technology law professor Ben White at a euthanasia forum organised by Ms Porter earlier in 2014.
It is possible under section 20 of the ACT's Director of Public Prosecutions Act 1990 that the ACT attorney-general could direct the ACT director of public prosecutions (DPP) on the circumstances under which the director should institute or conduct prosecutions for an offence.
For example, the DPP could be directed not to prosecute a physician for assisting with voluntary euthanasia, so long as various conditions are met, including that the patient be assessed for the absence of any depressive illness, or perhaps that the patient is terminally ill etc.
This is not legalising euthanasia. It is only specifying the conditions under which a person assisting with voluntary euthanasia would or would not be prosecuted. Given the minor penalties that have been given to elderly Australians who have assisted a terminally ill spouse or partner to die, this would be an understandable and reasonable direction to the DPP.
The ACT Legislative Assembly would need to be onside with this proposal, and this, I suggest, is one option on which Ms Porter could focus her efforts to achieve regulatory reform.
Mr Kennett is concerned that information on end-of-life options should only be available for the terminally ill, for those for whom the dignity of life has been lost and under special conditions (presumably not for the clinically depressed). This cannot be completely assured, even with legislation. But penalties can be provided to deter regulatory breaches, so voluntary euthanasia legislation is highly desirable.
Society needs to have a clear debate about rational suicide, and given that parliaments struggle with voluntary euthanasia, any such debate is unlikely to be free of invective and visceral reactions for some time.
Unfortunately, many Liberal and Labor politicians nationally, and many Liberal politicians in the ACT Legislative Assembly, do not support voluntary euthanasia. Greens politicians are generally supportive.
Mr Kennett could usefully lobby his Liberal colleagues (even assisting Ms Porter with her proposed discussions) to legislate for voluntary euthanasia and reduce the risk that some people, including those who are depressed, could access information on end-of-life options.
Furthermore, media organisations might want to place greater emphasis on scrutinising the intransigence of politicians who refuse to establish appropriate regulatory systems despite overwhelming public support. The media might also offer a more balanced appraisal of Dr Nitschke's activities, because in a democracy, no public activities should be beyond reasonable scrutiny.
Philip Nitschke won't go away. He has been the strongest activist for euthanasia reform and the provision of information to the elderly and terminally ill for almost 20 years-in Australia, and now overseas. He has ruffled feathers and will continue to do so.
Dr Nitschke cares for people, particularly when they are at their most desperate. People will continue to derive comfort from his advocacy, determination, advice and research into end-of-life options. And despite increased diligence in mitigating the risk of information getting into the wrong hands, it will, no doubt, still occur.
However, if politicians don't like the fact the voluntary euthanasia agenda and Dr Nitschke's activities are moving into areas they don't agree with, they should establish a voluntary euthanasia regulatory framework.
Legislation will provide sureties for society and reduce the risk of inappropriate access to information. If politicians won't act, they should stand aside for those who will.
Discrimination must not be tolerated
By David Swanton
Posted Thursday, 7 February 2013 in ON LINE opinion - Australia's e-journal of social and political debate
The equality of all humans should be one of the most fundamental principles embedded in the moral frameworks and legal systems of civilised societies. It rightly forms the basis of Article 1 of The Universal Declaration of Human Rights.
Unfortunately, such a fundamental principle has not been properly established in many countries. Equality is denied when discrimination occurs. Discrimination is relatively commonplace, and particularly firmly entrenched in many religious organisations. Widespread discrimination can lead to intolerance and conflict, because, unsurprisingly, those who arediscriminated against object to being treated as second-class citizens.
Australia's recently drafted Human Rights and Anti-Discrimination Bill 2012 is commendable in its objectives but does little to reduce discrimination. It claims aspiringly 'to eliminate discrimination, sexual harassment and racial vilification, consistently [sic] with Australia's obligations under the human rights instruments and the ILO instruments'. However, this proposed legislation offers special measures, including exemptions to religious organisations so they can continue to discriminate on such attributes as religion, sexual orientation, gender identity, pregnancy etc. It would seem that most governments lack the courage to stop religious organisations from discriminating. Some religions discriminate against people if they are not of the requisite religion (and subjective religions are related to race/culture), or preferred sex, sexual orientation, and marital status. Australia's proposed legislation does not remove this inequity.
A distinction should firstly be made between invidious discrimination, which should be eliminated, and appropriate differentiation, of individuals or groups. Invidious discrimination occurs when a person or organisation treats others unfavourably because of their particular attributes, whether that be a person's sex, sexual orientation, marital status, race etc. In contrast, appropriate differentiation would allow, for example, without claims of discrimination, segregated sporting events to occur for men and women, and an age limit to be applied to learning drivers, because a reasonable and objective explanation can be developed in these cases.
Within this framework, it is apparent there is no reasonable and objective explanation why a mathematics teacher at any school could not be an unmarried, pregnant, multi-coloured lesbian of no religion (or of another religion). The ability to teach mathematics is independent of the aforementioned attributes. To be denied a job because of a person's particular attributes is a denial of equality that ought not be tolerated in a civilised society.
The discriminatory and bigoted values of some of the mainstream churches are no more ethically 'right' than the racist values that were relatively commonplace in the middle of the twentieth century. How can racial discrimination be ethically wrong but sexual discrimination be permitted? How can there be a moral basis for an Islamic black man who discriminates against women complaining that he is being discriminated against? How can a religious male politician who denies lesbians the right to marriage or to be a leader in his church claim that he treats people equally? There is no justification for any of these situations because there is no moral distinction between these types of invidious discrimination. Intolerance of, and discrimination against, people with particular attributes is bigotry.
Many religions try to justify their religious discrimination as a right, the freedom to practise one's religion. But such a right impacts adversely on others. So what happens when there is a conflict between religious freedoms and the rights of an individual, such as an individual's right to be treated equally and not to be subjected to invidious discrimination?
Many religions preach some variant of the ethical golden rule, or doing unto others as they do unto you. Members of one religion would not like members of other religions to exercise their religious freedom if that involved the imposition of the other religion on them, or allowing the other religion to kill them (if that were a 'view' of the other religion). Even if it were something more trivial, such as having another religion's eating rituals being imposed on them, this would be a cause of stern objection.
That people do not want their individual rights to be violated by another religion (or any other person, organisation or government for that matter) is the key. It is then straightforward to conclude that a freedom of religion should only extend so far as to where it does not impinge on the rights of other individuals. People can believe in and practice what they wish, no matter how profound, or silly and deluded, that might be, but not if it denies other people's equality or human rights, causes discrimination, or otherwise adversely affects other individuals. A regime of religious discrimination juxtaposed on a principle of doing unto others as they do unto you is hypocrisy.
To avoid claims of having hypocritical bigoted views, one would think that religious organisations would reject their current discriminatory views and advocate legislative change that condemned and prohibited all invidious discrimination. Unfortunately, enlightened change is not the way of the bigot.
To explore further the nature of religious discrimination, consider the following scenario. What if a new religion were to be established tomorrow, and an inspired person drafts a religious text that reflects the views of the newly conceived and perfect God. The newly drafted religious text includes the following verses attributable to the new God.
- A black person should learn in quietness and full submission. I do not permit a black person to teach or to have authority over a non-black person; the black person must be silent.
- Any black person who is arrogant enough to reject the verdict of the priest who represents your God must die.
- A black person who works on God's holy day will be put to death.
- If a person has sex with a black person, both of them have done what is detestable. They must be put to death; their blood will be on their own hands.
The above verses are racist and abhorrent. They deny black people equality. Such a religious text must be treated with the contempt that any racially discriminatory text deserves. The proponents of the new religion would say that their God moves in mysterious ways or that the text is not meant to be taken literally. Neither explanation conceals the underlying racism and discrimination.
The astute observer would realise that these verses have been extracted from the Christian Bible and reworked to substitute the phrase 'black person' in biblical verses that condemn women, non-believers, a person who works contrary to God's laws, and homosexuals. It is clear that the terms 'woman', or 'gay, lesbian, bisexual, transgender, intersexperson', 'Caucasian male', or 'pregnant person' could have been similarly substituted.
If the newly drafted religious text is abhorrent, discriminatory and unacceptable in modern society, then so too is the Christian religion. Other discriminatory religions and organisations should be condemned with equal vigour.
It follows that public funding or support of any discriminatory religious organisations should be handled in the same manner as that for a body that might discriminate on the basis of race: governments should condemn them and never support or finance them, directly or indirectly.
It is absurd in modern society that governments give massive tax exemptions, and exemptions from discrimination legislation, to religious organisations. Many religions teach that only people of their religion are worthy of reward in a speculated afterlife. They discriminate in churches and hospitals, educational institutions and nursing homes. In recent times a horrendous record of child sexual abuse in religious institutions has become public. Furthermore, many churches indoctrinate children to worship a god or gods that, according to their scriptures, are guilty of indiscriminately killing humans-the most warped of moral messages. Religions peddling discrimination and perverse moral messages deserve condemnation.
It would seem that the Universal Declaration of Human Rights is no more than an aspirational piece of paper. People must work hard to secure the most fundamental of rights, because, while governments continue to allow people, organisations and religions to invidiously discriminate, there can be no equality.