Adam Goldenberg is a Kirby-Simon Human Rights Fellow at Yale Law School. He was chief speechwriter to Michael Ignatieff.
Egyptians took to the streets and defeated a dictator. Earlier this month, they returned to Tahrir Square, this time after Hosni Mubarak escaped the gallows.
Libyans, too, tore down a tyrant, Muammar Gadhafi. But as they buried their Caesar, they made it a crime to praise him–a law that may soon be struck down by the infant democracy’s high court.
And on the other side of the Sahara, Charles Taylor of Liberia was sentenced not to hang, but to 50 years in prison. The fallen strongman will die in jail, watching the lone and level sands stretch far away.
To many of their former subjects, Mubarak, Gadhafi, and Taylor are avatars of evil, their names synonymous with autocracy and dictatorship. That they deserve to die–and that those who might yet venerate them ought to be silenced–is, to many, a foregone conclusion. But as courts in Cairo, Tripoli, and Freetown may well teach us, justice demands otherwise; even the most righteous impulses to kill or repress deserve almost always to be subdued.
In Canada, some conservative politicians should heed that lesson.
Yes, Luka Rocca Magnotta is alleged to have filmed himself murdering and dismembering his victim, before mailing pieces of him to schoolchildren. And yes, Christopher Husbands is accused of shooting a gang rival in cold blood, in a crowded downtown shopping mall in downtown Toronto.
But do they deserve to hang?
Toronto Councillor Giorgio Mammoliti seems to think so: “As a city, a province and nation, capital punishment should be something we are talking about,” he declared, after the Eaton’s Centre shooting.
“There are times where capital punishment is appropriate,” mused Prime Minister Stephen Harper, in an interview with the CBC’s Peter Mansbridge last January. His government, meanwhile, continues to defy decades of precedent by sitting on its hands while a Canadian citizen, Ronald Smith, awaits execution in Montana.
Ask for justification, and the answer is gore. “Before I answer my honourable colleague’s question,” then-Minister of State for Foreign Affairs Peter Kent said, during Question Period, in March 2009, “I would like to remind him of the two young aboriginal men whose lives were brutally cut short by Ronald Allen Smith, who marched them into a Montana forest and shot them execution style.”
Conservatives depict depravity, cruelty, and criminality so starkly for good reason: it sells. By appealing to passion, rather than reason, in support of their crime-and-punishment agenda, they seek to cloak vengeance in the guise of justice. They play to the same primal impulses—the same base human instincts—that argue for the swift execution of a dictator, or the abrogation of a tyrant’s stubborn defenders’ freedom of speech.
Of course, to place Magnotta, Husbands, or Smith in the same category as Mubarak, Gadhafi, and Taylor is largely ludicrous. But brutality and barbarism are born of the same darkness, to whatever degree. They provoke the same righteous fury, and they demand the same countervailing virtue in response: forbearance.
There is, after all, no quantum of due process that can alter the equivalence of murderous instincts. To indulge our own in pursuit of vengeance is to indulge the whims of murderers themselves. Neither they nor we are the rightful agents of cosmic justice; there is no place for the state in the karma of the nation.
The phrase “law and order” appears nowhere in the Charter of Rights and Freedoms. Neither, for that matter, do the words “crime” or “punishment,” except to prohibit cruel and unusual forms of the latter. Our constitutional commitment is, instead, to “fundamental justice.” Such justice requires forbearance–mercy, even–unless we intend to accept the barbarity of madmen as our own.
Hence the raft of national and international legal instruments that outlaw the death penalty, including Pierre Trudeau’s Bill C-84 in 1976, and the Second Optional Protocol to the International Covenant on Civil and Political Rights, which Canada joined in 2005. And while capital punishment falls farthest from the pale, it is not alone; earlier this year, a judge of the Ontario Superior Court found the Conservative government’s throw-away-the-key mandatory minimum sentences to be unconstitutional.
That Mubarak and Taylor were both spared execution speaks to the resilience of what is slowly becoming a global consensus–with some obvious exceptions. Our neighbours to the south are one. Saudi Arabia is another. Yet, as Gadhafi’s fate illustrates, mob justice can prove impossible to subdue. And when we allow our leaders to use our bloodiest impulses against us, for political gain, we join the mob ourselves.
Death, wrote the English poet John Donne, is the slave of kings and desperate men. We can deter or quarantine the desperate—or destroy them, if exigency demands. But, in a democracy, the king answers to us, and so does his slave. In this country, we still choose to set him free.