The Penalty Is Death: State Power, Law, and Justice

THE PENALTY IS DEATH

Barry Jones (1932- ) edited the first edition of The Penalty is Death in 1968 while secretary of the Victorian Anti-Hanging Committee (later Council) from 1962 to 1975. He has been a teacher, lawyer (briefly), academic, politician, and author. He was a Labor member of the Victorian Parliament 1972-77 and of the Commonwealth Parliament 1977-98. The Minister for Science in 1983-90, he represented Australia at UNESCO in Paris 1991-96 and carried out research in Cambridge 2000-01. His books include Sleepers, Wake! (1982), A Thinking Reed (2006), The Shock of Recognition (2016), What Is To Be Done (2020), and Dictionary of World Biography (latest edition 2021). A Fellow of four of Australias five learned Academies, Barry Jones was awarded an AC in 2014.

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First published as The Penalty is Death: capital punishment in the twentieth century by Sun Books, in association with the Anti-Hanging Council of Victoria, in 1968

This edition published by Scribe in 2022, in association with the Capital Punishment Justice Project

Editorial notes copyright Barry Jones, 2022
This collection copyright Barry Jones, 2022
Individual pieces copyright individual copyright holders

All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without the prior written permission of the publishers of this book.

Scribe acknowledges Australias First Nations peoples as the traditional owners and custodians of this country. We recognise that sovereignty was never ceded, and we pay our respects to their elders, past and present.

978 1 922585 77 6 (Australian edition)
978 1 922586 75 9 (ebook)

A catalogue record for this book is available from the National Library of Australia.

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For politicians, judges, lawyers, journalists,
teachers, and opinion leaders in retentionist nations

A note on grammar and punctuation

A collection such as this, containing diverse historical material, inevitably features a range of grammatical and punctuation styles. Throughout, we have retained what were contemporary conventions, making changes only in order to remove ambiguity and improve clarity.

Contents

Forewords

Part I
The Death Penalty: an overview

1. ,Barry Jones

2. ,Max Charlesworth

Part II
The Case for Abolition

3. ,Cesare Beccaria (1764)

4. ,Sir Samuel Romilly (1810)

5. ,Charles Dickens (1846)

6. ,Clarence Darrow (1924)

7. ,Thorsten Sellin (1959)

8. ,Sir Ernest Gowers (1956)

9. ,Gerald Gardiner (1956)

10. ,Albert Camus (1957)

11. ,Hans W. Mattick (1963)

12. ,Sir John Vincent Barry (1966)

13. ,Sir Eugene Gorman (1966)

14. ,Stanley Johnston (1966)

15. ,Arthur Koestler & C.H. Rolph (1961)

16. ,Arthur Koestler & C.H. Rolph (1961)

Part III
The Case for Retention

18. ,Joseph de Maistre (1820)

19. ,J. Edgar Hoover (1959-61)

20. ,Edward J. Allen (1960)

21. ,P.R. Biggin (1966)

22. , Geelong Advertiser (1967)

Part IV
The Reality

23. ,Arthur Koestler & C.H. Rolph (1961)

24. ,George Orwell (1931)

25. ,Peter Lewis (1961)

26. ,Patrick Tennison (1967)

Part V
The Decline and Fall of the Death Penalty in the English-speaking World

27. ,Barry Jones

Appendices

A.

B.

C.

D.

E.

F.

Acknowledgments

The second edition of The Penalty is Death , fifty-four years after the first, is entirely due to the initiative, drive, and encouragement of Stephen Keim, SC, chair of the Capital Punishment Justice Project (CPJP), who wanted its publication to mark the centenary of the abolition of the death penalty in Queensland on 1 August 2022. He has been enthusiastically supported by Dr Sarah Pritchard, SC, Nick Cowdery, AM, QC, and Lex Lasry, AM, QC.

Forewords have been written by Justice Michael Kirby, AC, CMG, Richard Bourke, an Australian barrister, now director of The Justice Center in Louisiana, and Julian McMahon, AC, a Melbourne barrister with extensive overseas experience in death-penalty cases.

Mike Richards, author of The Hanged Man (2002), has been a great resource and has contributed a new chapter. (See Appendix D.)

Brian Walters, AM, SC, made valuable suggestions.

The Queensland Parliamentary Library was very helpful.

Russ Radcliffe has been an inspired choice as publishing editor.

The Penalty is Death , while essentially retaining the 1968 format, has been updated and extensively rewritten.

In the 1968 edition, there was grateful acknowledgment of permission to reprint texts and extracts from the following:

Professor Thorsten Sellin for The Death Penalty ; Sir Ernest Gowers and Chatto & Windus for A Life for a Life? ; Lord Gardiner of Kittisford for Capital Punishment as a Deterrent .

Reflections on the Guillotine by Albert Camus (1957), reprinted in the Evergreen Review , vol. 4, no. 12 (MarchApril 1960) by courtesy of Grove Press Inc, NY. The John Howard Assoc., Chicago and Hans W. Mattick for The Unexamined Death ; The Herald , Melbourne and Sir Eugene Gorman for The Victims of a Hanging are You and Me; Sir John Barry for Views on the Alternative to Capital Punishment and the Commutation of Sentences; The Australian and Stanley W. Johnston for Why Cant We Be Reasonable About Hanging?; Statements in Favour of the Death Penalty by J. Edgar Hoover are from the FBI Law Enforcement Bulletins ; Capital Punishment: Your Protection and Mine by Edward J. Allen from The Police Chief , vol. 27, June 1960; The Wimmera Mail-Times for Crime increase a threat to all citizens by P.R. Biggin; the editor of the Geelong Advertiser for Crime and Punishment. The authors and Penguin Books for extracts from Hanged by the Neck by Arthur Koestler and C.H. Rolph. A Hanging by George Orwell by kind permission of Mrs Sonia Orwell; An Execution by Peter Lewis by the editor of the New Statesman ; Death of Ronald Ryan by Patrick Tennison and The Australian . The chart Hangings in Australia 190167 has been adapted (and corrected) from Stanley W. Johnstons Criminal Homicide Rates in Australia .

FOREWORD

Michael Kirby

The original version of The Penalty is Death , edited by Barry Jones, was published in 1968 in the aftermath of the hanging of Ronald Ryan at Pentridge Prison, Melbourne on 3 February 1967. Ronald Ryan was the last person in Australia to be executed.

The State of Queensland had its last execution in 1913. However, capital punishment remained in South Australia and Western Australia until 1964. It lingered on in Victoria until the hanging of Ronald Ryan, carried out on the insistence of Premier Henry Bolte, who was strong and successful on law and order politics. He won six elections in succession in Victoria. He was not interested in criminology, theology, or philosophy. He pandered to a majority of electors who then supported capital punishment in Victoria, amongst other causes. It was only when he was replaced by his younger Liberal successor, Dick Hamer, that it became possible to get abolition of capital punishment through the Victorian Parliament. The editor of this book, Barry Jones, played an important part in securing the majority that achieved that objective.