Skip to Content »

True justice and murder sentencing

  • September 16th, 2009

I’m looking forward to reading the Judge’s notes on sentencing Clayton Weatherston.

I thought of her predicament last Friday evening as I sat among urbane and decent  men (mostly men) listening to the Hon Dr Michael Bassett deliver the 2009 Ralph Hanan speech. This year’s annual celebration of the National Party’s liberal inheritance at the Wellington Club heard Dr Bassett’s  summation of Hanan’s greatest Parliamentary acheivement – the 1961 Parliamentary conscience vote that ended here the hanging of murderers until dead.  Michael assumed, correctly judging from the respectful murmurs, that his audience agreed that an unalloyed good thing was done nearly 50 years ago by the National Minister of Justice.

Ralph Hanan put it out of Judith Potter J’s power to satisfy intuitive wisdom with Weatherston’s sentence. 

True justice may require  a death penalty.  Without it there is a hole in our promise of justice that may be unfillable. Yet as I sat among those satisfied diners, I knew that I would vote against a return of the death penalty, at least for the forseeable future – precisely because of the strength of sentiment there and elsewhere.

But first the explanation of the hole in our heart.

The belief that a price that equalises is the essence of justice lies deep in most cultures, including our own historically.  ‘An eye for an eye, a tooth for a tooth" comes from Deuteronomy in the Bible, but it is far more universal as the first codification of measured justice in place of even more primal vendetta/blood feud. The Babylonian Code of Hammurabi required a strong form of ‘mirror justice’. The Koran offers an elegant conjunction of that justice with the possibility of mercy, and victim rehabilitation (through restored power). The Koran gives victims an exclusive right to dispense with simple retributive sentencing.  The Chinese considered that the heavens remained in disharmony while a wrong-doer remained better off than his victim as a result of ,or in spite of, his crime.

The conviction that justice without equality of suffering is not justice may run deeper than such ‘recent’ religions.. Evolutionary psychology suggests that the need to make sure that "cheats dont’ prosper" may be ‘hardwired’ into us. Justice must "balance the scales".  Game theory too supports that finding. ‘Tit for tat’ strategies are the most stable decision models for maximising cooperation (over ruthless self-interest) and thus overall returns in repeat play prisoners’ dilemma experiments. And for most cultures there are many ways of expressing that need to feel that evil has been made profitless – utu or revenge, "paying the price",  "getting even", or "levelling".

Plainly it is not possible to assure the families of murder victims that the scales will be levelled, when their loved one is gone forever, while the murderer is fed, kept warm and usually safe in his bed and will be out agaiin in time to marry, produce for his parents the grandchildren the victims will never get, and bludge a living for the rest of his life off his fellow citizens if he chooses.

This imbalance can not be camouflaged. It is a hole at the heart of our system. Because fear of the strong murdering the weak is our primal fear. Unpunished it renders false the State’s promise that crime wont pay. That promise is the consideration for taking the private right of retribution.  Obvious unwillingness to deliver may fatally sabotage all State "trust us" efforts  to assure citizens that they can give up violence themsleves.

Take a sample of educated mistrust of our justice system in the comments on David Farrar’s moving post on the Weatherston sentencing. Given the environment effect (Broken Windows) on propensities to commit crime, and mistrust’s effect on community willingness to support Police in containing crime, such mistrust may be exacting a very high price indeed.

But I said would not vote to restore the death penalty? 

Because there are times when partial justice is more prudent than full justice. Since Ralph Hanan got the  parliamentary support to abolish the death penalty partial justice for murder has been more prudent than true justice..


Because we live in a democracy, and a significant number of New Zealanders have been persuaded to mistrust, indeed to be repelled by, the instinct  that would match innocent life against evil life. They feel that the State can claim higher mindedness if it "does not descend to the murderer’s level"

And though I do not agree with them, I would vote against reinstating the death penalty because they are sincere, and there are enough of them to ensure that we would be consumed in fighting ourselves over the issue when there are so many more useful criminal justice reforms to do in the meantime, while that generation grows old.

Not supporting reinstatement has the side benefit of relief from responsibility for an inevitable dreadful mistake of justice – when an innocent is convicted. But that is a cop-out. Leadership requires us to accept that many decisions will cost the lives of others. The Parole Board live with it all the time, seemingly without wounding the consciences of the anointed who regard opposition to parole as nasty.

But I would not support reinstatement of the death penalty because in a democracy there are times when the majority accepts high costs to avoid grave affront to a  minority. Pragmatically, other priorities in reform of criminal justice will be more valuable. A sufficient consensus can be achieved for them, and they will give us much more crime reducing bang for our buck than a massive identity politics battle with ourselves.

Too many trials could be undermined if the normal consequence for murder was death. Most juries would contain one or more people who would rather subvert the trial with a not guilty verdict, than feel part of a process they would characterise as the state being no better than the murderer. We would have anti-death penalty  judges feeling justified in  twisting the law beyond recognition to avoid giving that sentence. We could have witnesses and police conniving on lesser charges, to ensure prompt progress toward conviction for something, rather than seeing murder trials bogged down in controversy and spurious appeals nevertheless given grave consideration by senior judges.

This pragmatism will be pilloried by those who are outraged by the moral superiority claimed by the liberal anointed. The anointed despise their fellow citizens’ intuitive demand for a penalty that matches the crime. In their ‘compassion’ they unintentionally cheapen the victim’s life. Their feelgood is at the expense of the victims’ families – they donate other families’ entitlement to true justice. Victims judge the community’s  value of their lost loved one by that refusal to restore traditional equality.

Those conditions will endure until a critical mass of our anointed are willing to re-examine their beliefs, or pass on. Perhaps some will ask whether there might not be a connection between a murder rate over 15 times higher now than when Ralph Hanan achieved his goal. But most will go to their graves convinced that what they believed in their youth remains true.

Interestingly, 10 years ago Phil Goff gave an Auckland District Law Society gathering a very similar message. He said he had no personal objection to the death penalty.


  • Malcolm Stairmand
  • September 16th, 2009
  • 1:24 pm

I wonder if the assumption regarding the restoration of equality is more difficult than it appears. In this sad case, does equality for the victim’s family require that the murderer be stabbed and otherwise desecrated as he desecrated the victim? If simple (humanely administered) death is not enough could that also imply in some cases it would be too much? Can you think of a way that the state would impose “like for like” brutality on an offender that would be acceptable?

  • Pete
  • September 16th, 2009
  • 1:29 pm

Great post Stephen, but there is a further important argument against reinstating the death penalty that you have not mentioned: namely, the post-modern recognition that individuals do not live in a vacuum. Rather, who we are also includes the sum of all our relationships, both at a personal and societal (and increasingly at a global) level. Therefore, some degree of responsibility for our individual actions must also be shared by the community that has helped to shape the individual and in often subtle ways to enable their actions. The cost of incarceration, and attempts at rehabilitation, as opposed to imposing the full weight of justice on the individual through the death penalty, could be thought of, at least in part, a recognition of this.


I’m less worried about the “descending to their level” argument, and a lot more about the kinds of findings coming out of the Innocence Project in the United States where they’re showing all kinds of folks wrongly put on death row.

My best read of the lit is about 8 murders deterred for every execution. But I still wouldn’t vote for a return to capital punishment. If it were to be done, it would best be done as an optional charge of capital murder that the jury could downgrade to regular murder in the alternative.


there are ten billion people in the world,
why do we spend a hundreds thousands of dollars on Murderers,
send me the money
I will do the job,
I will execute Weatherston.
lets get real,
give me the job,

  • Muzza
  • September 17th, 2009
  • 12:45 pm

Great words Stephen. I heard many of your arguments at the Wadestown candidate meeting last year. I agree with your “against” reasons. I could not vote for the reintroduction of the death penalty for many of the same reasons. An eye for an eye just seems too easy. Life is just not that simple. CW deserves the harshest penalty and he will surely get some more in prison.

  • peterquixote
  • September 17th, 2009
  • 1:16 pm

the Muzza says

CW deserves the harshest penalty and he will surely get some more in prison.

So why don’t we end the misery,
Send me in,
I can do it.

  • Bob
  • September 17th, 2009
  • 10:10 pm

I feel very simply that killing is wrong. It is wrong for the state to take a life as punishment just as much as the murderer who took a life. Should the state arrange for a rapist to be raped? Lock up the offender for life for the safety of society by all means. A callous murderer deserves to die but the state should not carry out the act.

When the death penalty was abolished it was found it hadn’t deterred murder. It had mental and emotional effects on those who had to carry it out. I understand that when the last execution was carried out here the prison manager and supervisor of the guards were effected by one becoming an alcoholic and the other developing psychological problems.

The possibility of executing the wrong person is enough to ban the death penalty.

  • Angel
  • September 29th, 2009
  • 4:36 pm

Listen to you people talking about killing a person who comitted murder, it sounds to me like you people are no better than the person who comitted murder in the first place. you are all like ooh put me in I will put him/her to death with a death penality. You are all sick people, trying to play God with human lifes. It’s not a wonder the world is at war with each other with such simple/childish mindlike humans who can’t wait to take an eye for an eye & a tooth for a tooth. I am so ashamed & amazed how you all think you have the right to end another human beings life because that person murdered someone, when No-one has that right except God himself. How dare you all to think you have the right to act as God.

  • Jim Maclean
  • October 1st, 2009
  • 9:40 pm

I have never understood how any nation which has an army could have a philosophical objection to killing people in any circumstances.
I have never understood how any nation concerned for the health and welfare of it’s citizens can release prisoners into society again knowing that the vast majority of them will reoffend withing twelve months of their release.
I know all the arguments, I just don’t see any of them following a logical argument.

  • Don McKenzie
  • October 2nd, 2009
  • 5:05 pm


Leave your comments:

* Required fields. Your e-mail address will not be published on this site

You can use the following HTML tags:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>