By Dr Emmanuel Melissaris, Associate Professor of Law at LSE
Might it be legally possible for the state to punish the dead for crimes committed while they are alive? Or even to clear their name if the allegations prove unfounded?
In the wake of recent sexual abuse allegations concerning former British Prime Minister Ted Heath, who died in 2005, it raises some interesting legal questions. How can he defend himself legally from beyond the grave and if he is, in fact, guilty of the allegations, should there be some sort of legal recourse for his victims?
These allegations throw open the question whether we – as a society – are philosophically and institutionally prepared to hold the dead criminally accountable.
It is absolutely reasonable for victims or their friends and families, as well as everyone else in the political community, to demand and expect that such serious allegations be investigated. It is also reasonable for victims to want recognition and a response from the state.
On one level, a person’s death does not preclude them from being blamed for wrongs committed in their lifetime. Even after death, they may still be subject to both justified praise and blame. Nor do their wrongs disappear with their death. But if people can be posthumously blamed, especially by the state, then they must still be treated with the respect that is currently offered to the living accused. There must be safeguards in place to ensure they won’t be fair game after their death.
Might it be legally possible for the state to respond to criminal wrongs posthumously? The standard ways in which we generally think about punishment seem ill-equipped in that respect.
If we take punishment to be a matter of deserved suffering, for example, the dead are clearly not eligible.
Posthumous punishment
Threatening with posthumous punishment to deter the living from committing crimes might make sense if we think about the punishment as having a bearing on our activities during our lifetimes. Surely some value will be detracted from much of what we do, if we know that it will be undone as punishment after our death. However, this relies too much on the assumption that people will place sufficient value in their posthumous fate. Deterrence without remainder is also a slippery slope. What’s stopping us from punishing innocent parties if that’s going to have the desired deterrent effect?
These conceptual difficulties can be overcome if we think of punishment as a means of restoring the stability of society. This can be achieved by reassuring both victims and other community members that their rightful position within it will be maintained. In practice, this means, among other things that responses to wrongdoing do not have to be punitive in the narrow sense. Restorative practices, for example, may serve better the purpose of addressing the wrongdoing. But whatever measure is taken, it must not interfere with the interests and rights of the perpetrator’s heirs or other third parties.
A trial without the defendant?
The second big issue is whether we can have meaningful and fair accountability-seeking processes – a trial – when the defendant is not and cannot be present. Many of the problems that the peculiarity of such cases generates can be addressed by granting defendants a proper right of representation in court. Fact-finding, for example, will not necessarily be compromised; in fact, not only do most of our current institutional arrangements not require the defendant’s presence in court to obtain the facts, but occasionally they also discourage it.
The biggest challenge, however, is that a central point of criminal trials is to justify to the defendant why she or he is found guilty and sentenced. We do have various other practices, which impose sanctions or essentially punitive measures on defendants who are not in a position to fully understand why they are treated in that way. This indicates that there may be principled ways of overcoming the obstacle.
To implement all this in practice will require some institutional reform, which takes time and political will. The more urgent question is whether anything can be done now, in the cases that have already seen the light. It is not impossible, although it would need to be done carefully and in a manner that aligns with our criminal justice practices. Restorative processes that recognise the wrongdoing may be a promising way forward. It is certainly something that ought to be considered.
Dr Emmanuel Melissaris is an Associate Professor of Law at the London School of Economics and Political Science. He has just published a working paper on the subject of “Posthumous Punishment: What May Be Done About Criminal Wrongdoings after the Wrongdoer’s Death”, which is available at: http://bit.ly/1UWS5z1
Posted 27 August 2015