In the current debate over the death penalty, it is significant to note that the two opposing sides wish to be seen as equally speaking for life. The articulation of this issue with an actual case of incestuous rape has enabled us to view the problem in its full complexity. We now realize there is no easy way about it.
The Catholic Church argues that its opposition to the death penalty should be seen not as a simple attempt to snatch Leo Echegaray from death, but as a general defense of the sanctity of human life. There is no intent here, it says, to absolve Echegaray of his crime or to mock the pain of his victim. If there was jubilation over the recent stay of his execution, the Church clarifies, what was being applauded was not the triumph of Echegaray, but the victory of life over death.
Not surprisingly, the Church has been unable to gain much sympathy for this view. Critics say the Church’s record of defending life has been more visible in such acts as speaking up for the rights of unformed fetuses and deformed criminals than in the affirmative defense of the rights of abused living children and women. By this selective solicitousness, it cannot but communicate the message that life is more valuable in its marginal than in its normal forms.
Equally distressed are the various woman-activists who have fought on the side of human rights but have now found themselves awkwardly aligned with passionate advocates of the death penalty. Though they do not believe in the death penalty or have strong reservations about it, they want to see Echegaray executed. They think that to spare him now is to risk nullifying what has been achieved in the struggle to have rape recognized as a violent and heinous crime. They believe that the Church’s last minute intervention in this particular case has encouraged the perception that since violence against women and children occurs very often anyway, it should be forgiven. They see themselves as defending the value of women’s and children’s lives when they demand the maximum penalty for rapists like Leo Echegaray.
As I have previously argued, I find it difficult to accept the view that sparing the life of a convicted rapist could constitute an encouragement to rapists and child-abusers. Or that his killing might be crucial to the recovery of a rape victim. I am convinced that more than the death penalty, a more effective deterrent to the commission of crimes is ensuring that offenders are caught and promptly punished. And I have not heard of a psychology of healing that requires the death of the offender as a component of therapy.
But having said this, I can also see why the death penalty issue cannot be debated in the abstract. To do so would be to slight the historical context in which the current debate is embedded – in this particular instance, a context so crucial to the cause of women’s and children’s rights. The Church chooses to ignore this connection, that is why it is aghast over the number of clear-thinking Filipinos now supporting the death penalty.
I oppose the death penalty because I think it serves no meaningful purpose. I believe that punishment has a two-fold purpose: first as an act of retribution; and second, as a step towards reforming the criminal. In the olden days, retribution meant that if life was taken, life must be given. But just as there is no sure-fire method for rehabilitating criminals, so too there is no single formula for retribution that best represents justice. Such calculations, as Michel Foucault’s book “Discipline and Punish” shows, depend on our changing social practices and evolving concepts of human identity, rather than on some unchanging notion of what it is to be human.
Though a majority of our people seem to favor the death penalty, I am convinced that our nation’s moral identity today points us in the general direction of its abolition. The framers of the 1987 Constitution signaled this decisive shift by outlawing the death penalty, permitting its exceptional restoration only during abnormal or extraordinary times. They were not wrong. What makes their act seem impractical today is the prevailing feeling of despair and panic among our people in the face of rampant criminality.
But this is a problem of law-enforcement that, I believe, cannot be improved by executing criminals. The solution to crime lies in the extirpation of its root causes, and the formation of a less corrupt police. I agree with President Estrada that the structural effects of mass poverty must be considered in designing an appropriate approach to crime. But I disagree with his conclusion that effective law-enforcement in a poverty-stricken society like ours requires the terror of the death penalty. The death penalty can never be a shortcut solution to the complex problem of criminality.
In the final analysis, the decision to retain or abolish the death penalty cannot rest on some abstract notion about the sanctity of life, or on some unchanging idea of the requirements of true justice, or least of all, on prevailing views about deterrence. Debates premised on such notions lead us nowhere. The resolution of the issue by Congress must begin with a clear appreciation of the present practical context in which it is being posed. Then it may proceed to debate the questions:
What problem is the death penalty meant to solve here and now? Why is it indispensable?
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