ABSTRACT: Two types of States are compared, and it would seem that government policy on justice and law and order is responsible for the final choice. An essay which could prove extremely useful for law-makers and abolitionist activists

(WORLDWIDE PARLIAMENTARY CAMPAIGN FOR THE ABOLITION OF THE DEATH PENALTY BY THE YEAR 200 - Radical party/International League for the abolition of the death penalty by the year 2000)

The repeated and much-talked about executions that serve as an "example" in a number of U.S. States have once again raised the issue of the death penalty. And the usual points of view are being exchanged. On the one hand, people who rigorously maintain that capital punishment is both opportune and useful exploit a widespread sentiment, fired by the mass media, to put forward the same old arguments one more time, i.e., that the death penalty is the sole instrument capable of "repaying" society for the unbearable violence inflicted by those who, violating the rules of community life, break the law in the most irreparable and incommensurable manner (by committing particularly atrocious crimes, such as: premeditated murder, child rape). It is a question of "justice" - they maintain - it is "right" that people who put no value on the life of others should be eliminated. Otherwise they would be a threat to the very supremacy, and strength, of the State, the exclusive holder of the power to resolve "questions" of j

ustice; neither would it be possible to suppress a tendency towards individual vendettas which, in an uncontrollable spiral, would disturb the peace and calm of society by further delegitimizing the "effective" authority of the State.

I have started by drawing your attention to this "retributive" concept, because it is the one that most easily influences the judgment of so-called "ordinary people" so often featured in "man-in-the-street" interviews on T.V. or in the press; and it is also the concept that dominates opnion polls. In effect, it is not difficult to provoke a widespread favourable reaction towards the death penalty, for example, by offering as an alternative the (hoped for) "rights" of victims who "expect" at least a degree of leniency (in the sense of their not being sentenced to death) when they are punished for the crime they have committed.

Environmental and institutional factors are also partly responsible for the success of this retributive doctrine; in those countries with a uninominal electoral system a candidate's desire to be elected (not infrequently at all costs) results in his kowtowing to the voters' mood. Recent events in America, in fact, tend to confirm this: Bill Clinton, the then Governor of Arkansas and Democratic canditate for the presidency, refused to suspend a number of executions in his State, not necessarily for "just" reasons, but (also) in consideration of the negative effect - in terms of "popularity" - that a different decision might have had on an already difficult campaign.

Amongst the ranks of people who support the death penalty, there are also those who uphold specific theories that have been variously defined as: opportunist, realistic or preventive. They mostly follow a line of argument which is held to be "empirical"; the death penalty is an indispensable instrument for protecting society, in that it acts as a deterrent against the most intolerable crimes. "Irrefutable" testimonies, surveys, comparative studies, etc., etc., are often produced to support this belief. It is an approach which forces people to reflect on a dilemma that could more simply be expressed as follows: "is it preferable to have an efficient penal system, capable of preventing or, at least, limiting the most serious crimes, or a less efficient penal system, which is controlled, i.e., subject to options (ideological), perhaps related to economic or criminal policy?

Without a doubt, this is an insidious approach, also because it quite often leads people who are against the death penalty to accept the Utilitarianist method as a means of confrontation. And, in effect, there are those who try to demonstrate that a society which puts its faith in an alternative means of punishment functions in a better way. They justify this by saying that is not so much the harshness of the punishment that will act as a deterrent, but its immediacy and the fact that it will be carried out.

This particular solution is often backed up by empirical data, that is also open to question.

In truth, as Bobbio so convincingly argued in two important essays on and against the death penalty (now included by the author in the L'età dei diritti (The Age of Rights) collection, Turin, 1990) the abolitionist position tends to be irreducible, inasmuch as it is based on the imperative ethic "do not kill". This ethic may not always be applied in full to the individual (one only has to think of the classic mitigating circumstances such as self-defence and force majeure); on the other hand, it is categorical for the State, and plainly adheres to a precise concept of the State's role as the most elevated form of integrated society.

If we take this viewpoint - the only possible one for those who refuses to accept the death penalty as "hypothetical" - we cannot base our reasoning on the "function of punishment", which is neverthless a part of the problem; but we have to go beyond: we have to get to the heart of the question of the function of the state and its justification. It is the provision for the death penalty in legal systems that has an implied significance, in the sense that it is an essential element in the positive (re)qualification of the State, especially at this moment in history when old structures (traditionalist democratic states as opposed to socialist and/or authoritarian regimes) merit being brought up to date (or maybe even forgotten).

The functions - and consequently the structure of a State can, in effect, assume different levels and different aims.

If these are assigned according to a minimal perspective - which seems to be undergoing an historical revival - the functions of the State can be limited to the pursuit of objectives like the safety and just treatment of its citizens. The concept of "safety" can be interpreted simply as an efficient method of maintaining public order and a peaceful society, or it can be developed to include providing for the well-being of the majority of the community. The concept of "justice" can also vary in a similar way: it can either express the attitude of the State, and its capacity to ensure that all its laws are respectted (a formal approach), or it can manifest the political will to create real equality, to prevent profound splits from occurring in society. The structure of a State - in the so-called "Western" world - is also created according to a number of unrenounceable "principles" (procedural). The most important of these is certainly the consensus principle, by which political and legislative decisions are ta

ken by institutional bodies which are, however, democratically legitimized (either directly or indirectly, according to the form of government chosen). This principle is supported by others, which can also be used as modifiers, whose main purpose is to circumscribe or counterbalance the power of the different authorities/apparatuses, or to defend very clear indivdual and/or social positions (principle of separation of powers, principle of self-government, etc.).

This is the type of State which is generally defined as "liberal": a State "of principles" which reveals, as a result of its past economic situation, a multifaceted identitiy and social reality that is a product of the culture expressed by the society in question. I would like to emphasize that this type of State is preoccupied mostly with the efficiency of today's society, and very little with indicating, also to future generations, various goals and/or restrictions that can certainly be called transcendent, in that they are prerequisites of the basic human condition.

It is in fact a question of "values", which are very often confused with principles, but which, in truth, differ from the latter because they create the context within which these same principles function and are, therefore, stronger. Values exist, they do not have to be proved. They cannot be (re-)verified by a consensus or a majority. Values are established just once, during that wonderful and unrepeatable moment (the birth of a nation) when a State is created which is more advanced than the simplistic, sterile, liberal state of principles, in that it stakes everything on a more profound level of integration in society. Values, in fact, recognize the lasting and indeed permanent human condition.

Looking at it this way, one can logically speak of a "State of values". This type of State is certainly vulnerable, because its duration and its prospects of success depend almost solely on self-evident "truths" which are incorporated into its constitution, and on the power reserved, by the constitutional structure, for those institutions offering guarantees and sound judgment (which are not legitimized immediately) that are given the task of perpetuating those same truths.

For the purpose of this essay, I would like to draw your attention to the value of persons, which is interpreted legally in two different ways: first, as a reference point for the actions and the "free" activities of everyone who is subject to the laws of the Constitution, on a public or private level; second, as an absolute limit to the potential and undiscriminating expansion of those same principles that govern the fulfilment of those fundamental duties which guarantee safety and justice for everyone. But not as a matter of course.

The State of Italy does not put even the most savage criminals to death because they remain persons, and further declares that it does not have the right to dispose of their "lasting human condition." And in keeping with this premise, the Italian Consitution excludes that anyone may be deprived of their legal competence, their citizenship or their name (Art. 22).

The reference to a "sense of humanity" (that governs every form of penitentiary treatment which, precisely because of this, is aimed at "re-educating the prisoner") therefore acquires - in the context of the provisions of the Constitution (Art. 27) which does not allow the death penalty - a significance that is in no way rhetoric or pleonastic, in that it recalls the absolute value.

This is belied by the exception provided for in the same regulations - which "saves" a person from death "in those instances specified in the Military Code" (during wartime, therefore). This demonstrates that at least in a number of situations, albeit exceptional, the death penalty is considered as being usable and useful; in that the value of persons would have to give way to other superior "values" (for example, military loyalty and discipline in defending the Fatherland).

However, this objection can be overcome by thoroughly reading the Constitution, from an historical point of view. The truth is that a State of values cannot stand up to the possibility of war, even if it is formally constitutionalized, so to speak, as it is in the Italian Charter which also acknowledges, and not by mere chance, the pacifist value. An act of war (including one to which a country has to submit) inevitably means a "breakdown" of the Cnstitution, as it blatantly negates the accepted human condition. For this reason, new laws are created to replace existing ones, using procedures (principles) which are also governed by the Constitution.

The "self-evident" truth that the death penalty is inadmissable in a State of values which, as such, assumes a different (and superior) role towards the individuals, communities and generations it has undertaken to integrate, was confirmed by our Constituent Assembly without any need for discussion: instinctively, one might say. Certainly, that same "truth" is also threatened and questioned in Italy by the worst teachers. The risk of the "State of values" breaking down is accentuated by the possible success of a number of constitutional reform bills aimed at creating a pseudoplebiscitarian democracy, in which appeals addressed to the people, to the individual's common sense, could provoke basic emotions and responses. What is happening in America at present is, therefore, extremely worrying.

We can only put our trust in the good judgment of the institutions, which have so far done an excellent job in preserving values. A fine example of this is the Constitutional Court which - as we all know - arrived at its magis ut valeat interpretation of the constitutional law prohibiting the death penalty, when it judged as unlawful the granting of extradition for crimes punishable with the death penalty in the country applying for extradition

(sent. no. 54 of 1979).

Alfonso Pecoraro

Green Group MP. Rapporteur on the death penalty for the Justice Committee of the Chamber of Deputies, Italy.

In Italy an absolute majority of parliamentarians signed the bill to abolish the death penalty from the Military Code. This will make us one of the six European countries whose laws no longer provide for the death penalty. We want to send out a strong message to those countries which still maintain the death penalty.