Capital punishment is an issue which really testifies to the power an elite consensus can have. There was nothing resembling a consensus in favour of abolition when Roy Jenkins de facto abolished it in 1969, nor even when New Labour formally finished the job in 1998.
Public attitudes have trended away from it somewhat over the decades, but even now YouGov’s tracker finds a plurality of voters in favour of it in the case of a police officer being murdered.
Yet support for capital punishment is not represented in the political and media classes to anything like the extent to which headline support for it remains amongst the population at large. Even law-and-order politicians such as Priti Patel distance themselves from previous support for it.
Lee Anderson, the deputy chairman of the Conservative Party, is a relatively rare outspoken supporter – a fact which highlights again the interesting challenge he poses to those who claim to want a Parliament which better reflects the nation it governs.
This week’s attack on the Labour leader by the Sun for his years of pro bono work on behalf of the Death Penalty Project is a fascinating illustration of how the respectability politics of capital punishment plays out in public debate. It opens thus:
“Sir Keir Starmer worked for free as a lawyer to help scores of twisted killers around the world – including a monster who buried his two-year-old stepchild alive.”
This has provoked a furious reaction from the Twitter lawyers: lawyers representing clients are not supposed to be identified with their clients’ alleged crimes; everyone is entitled to legal representation.
That’s fair, as far as it goes (although there’s a slightly Schrödingerian quality to the idea that a lawyer can be praised for their pro bono campaigning work, but not condemned for it). But the Sun is not suggesting Starmer is in favour of burying two-year-old children, and it stretches credulity that anyone could think it was.
No, the Sun is criticising Starmer for sparing criminals from the death penalty who, implicitly, deserved it:
“Sir Keir also worked in Uganda, where he met “all the men and women on death row” and “assisted with the drafting of legal arguments” in 2005. Later that year, the country’s top court scrapped laws demanding judges impose the noose on anyone convicted of murder — sparing 417 criminals.”
Now, it isn’t necessarily the case, as some suggest, that one cannot consistently oppose capital punishment at home and criticise someone campaigning against it overseas. There is a section of the Venn diagram in which the argument is that there are more deserving recipients of charitable work than “sick criminals”.
Some people who oppose capital punishment have a profound moral horror of it, but many don’t. For example, it is perfectly coherent to oppose reintroducing the death penalty in Britain, but also object to our current refusal to deport foreign criminals who may face execution overseas. Nations are entitled to set their own laws, and if someone committed a capital crime in a death penalty state it isn’t immediately obvious that the British taxpayer should shield them from the consequences.
Even that, however, says a lot about someone’s actual position on capital punishment, because one suspects there would be relatively few strict legalists who would be equally happy to deport someone to execution on murder charges and someone facing the gallows for, to pick a random example, being gay.
The same applies for other overseas cases: for example, in 2018 YouGov found that 62 per cent of people supported the Government’s decision not to seek assurances that two former British citizens, on trial in the United States for alleged terrorist offences by ISIS, would not receive the death penalty.
Capital punishment exists in what I have taken to calling the Overton Shadow: the gap in the distribution of opinion between the edge of the Overton Window, where cluster the politicians and commentators who need to maintain their credibility in elite discourse, and those sufficiently far removed from that consensus that they don’t care about playing the status games it demands.
Indeed, it is perhaps the ur-example of an Overton Shadow view; not for nothing did Jeremy Driver dub the great un-represented quadrant of British politics (left on economics, right on culture) the “love our NHS; hang the paedos” section.
Such views are generally openly held by two groups of people: anonymous Twitter accounts, who care enough about the social penalties of leaving the Overton Window to hide their identities… and ordinary voters.
But like detecting dark matter by looking for its gravitational effect on visible matter, you can sometimes infer evidence of them, and things like the Sun story are a good example of how.
Given that latent support for the death penalty is not a fringe position in Britain, one should expect that view to be more widespread in our political and media circles than it appears on the surface – and it is.