European Day Against the Death Penalty
In 1860 the Netherlands carried out its last death sentence in peacetime. Twenty-seven-year-old Joannes Nathan was hanged at Maastricht’s market square for murdering his mother-in-law. The death penalty was banned throughout Europe in the 19th century; in 2019, only Belarus still has capital punishment. Nevertheless, Jacques Claessen, criminal lawyer from Maastricht University’s law faculty, still thinks the European Day Against the Death Penalty on 10 October is important. "In China, the United States and the Middle East, among others, the death penalty is still very topical. One could also argue that life imprisonment, which we use in the Netherlands, is as horrific as the death penalty – it’s like a deferred death sentence."
"If the world ends tomorrow, the last murderer must be hanged today." This statement is by one of the Enlightenment’s greatest thinkers, Immanuel Kant. The notion of retribution informed his favouring the death penalty. In the same period, the British philosopher Jeremy Bentham opposed capital punishment because, from the perspective of prevention, you can protect society by imprisoning someone for life. Dr Jacques Claessen: "In the 16th to 18th centuries, the death penalty was a popular public spectacle to deter people and show the power of the state or sovereign. There are many ways to kill someone. You had the ‘honourable’ way – beheading with one well-aimed sword stroke – and those considered dishonourable, such as strangulation, hanging, wheeling, burning, quartering and the like. During the French Revolution, a physician named Guillotin designed a decapitating instrument, the eponymous guillotine, whose quick and painless removal of the head was ‘relatively civilised’. Morbid stories recall the head remaining conscious for a few seconds; if the executioner picked it up, those gathered could see rolling eyes or quivering lips. I don’t know whether that’s true."
How humane and effective is the death penalty?
The emergence of liberal democracies in the 19th century saw the death penalty’s abolition across most of Europe. At least in peacetime, because shortly after the Second World War the Special Court in The Hague handed down death penalties, including to NSB leader Anton Mussert. “For a long time, the death penalty was the ultimate retribution and preemptive deterrent in one. Over time, however, this punishment was increasingly regarded as inhumane. In the 19th century, liberals in the Dutch parliament pushed for abolishing the death penalty, arguing that civilized criminal law, which focuses on the moral improvement of criminals, could not accommodate such a punishment. The death penalty’s effectiveness was also increasingly questioned: did it really deter potential perpetrators and was the death penalty necessary for protecting society against extreme perpetrators, or was life imprisonment a better alternative? In some cases the death penalty was counterproductive because people would pity the perpetrator and rebel against the government.” The question is whether the death penalty can be carried out in a civilized manner. “In recent years, the lethal injection currently used in roughly half of the US has led to some executions becoming an agonising death battle. ‘Death row’, the period in which people sometimes wait years for their sentences to be enforced, is also not very dignified.”
How humane is life imprisonment anyway?
A life sentence in the Netherlands means for life, unless a pardon is granted. For more than 30 years, the practice of getting a pardon has proven a false hope, which for Claessen raises the question of whether a life sentence is more humane than the death penalty. ”I sometimes ask my students whether they would prefer being locked up for life, with the guarantee of never being released again, or the death penalty. They often say they would prefer the latter.” The last time a pardon was granted to a life-serving prisoner in the Netherlands was in 1986. Several important rulings by the European Court of Human Rights have required the Netherlands to amend its rules for life sentences: a life-serving prisoner can now start reintegration activities and leave after 25 years, and an official parole procedure follows after 27 years. “However, in practice, the parole is still not granted,” says Claessen. ”A minister must make that decision, but such people are politically transient. In recent years they have mostly come from the VVD or the CDA political parties. These right-wing parties usually favour stricter penalties. I believe a judge should be adjudicating on this because they can impartially assess whether sufficient retribution has taken place and whether someone still poses a threat to society; not a politician who is afraid of losing seats and always mindful of the electorate’s retaliatory urge.”
Only the will of the people can change or abolish punishments
Like the death penalty’s abolition, such a change in the law requires a different political climate, where society stands up for human rights, such as the right to life and to freedom. ”These are not things you can impose ‘top-down’ on a country or people.” History also shows time is an important factor. ”The abolition of the death penalty in Europe has indirectly required several revolutions, and I do not expect things to go differently in the countries where such sentences still exist. And it is why a European Day Against the Death Penalty is so important. It means respect for every human life can ultimately prevail.”
Dr. Jacques Claessen LLM (Maastricht, 1980) graduated with honours from the Faculty of Law at Maastricht University in 2003. Since 2010, Jacques works both in the field of criminal law and restorative justice in general and penal sanctions, victims in the criminal trial, and restorative mediation in criminal cases in particular. In the field of restorative justice, Jacques is considered an expert in the Netherlands. In 2017, he published a monograph in English about forgiveness in criminal law.