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capitalpunishment

By Donald Nelson,2014-04-12 14:29
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capitalpunishment

Background.

    Capital punishment is the lawful infliction of death as a punishment and since ancient times it has been used for a wide variety of offences. The Bible prescribes death for murder and many other crimes including kidnapping and witchcraft. By 1500 in England, only major felonies carried the death penalty - treason, murder, larceny, burglary, rape, and arson. From 1723, under the “Waltham Black Acts”, Parliament enacted many new capital offences and this led to an increase in the number of people being put to death each year. In the 100 years from 1740 - 1839 there were a total of up to 8753 civilian executions in England & Wales, the peak year was 1785 with 307 as transportation was not an option due to the American War of Independence. Remember that the population in 1800 was just 9 million.

    Reform of the death penalty began in Europe by the 1750’s and was championed by academics such as the Italian jurist, Cesare Beccaria, the French philosopher, Voltaire, and the English law reformers, Jeremy Bentham and Samuel Romilly. They argued that the death penalty was needlessly cruel, over-rated as a deterrent and occasionally imposed in fatal error. Along with Quaker leaders and other social reformers, they defended life imprisonment as a more rational alternative.

    By the 1850’s, these reform efforts began to bear fruit. Venezuela (1853) and Portugal (1867) were the first nations to abolish the death penalty altogether. In the United States, Michigan was the first state to abolish it for murder in 1847. Today, it is virtually abolished in all of Western Europe and most of Latin America. Britain effectively abolished capital punishment in 1965 (for the full story of abolition click here).

    The USA, together with China, Japan and many Asian and Middle Eastern countries, plus some African states still retain the death penalty for certain crimes and impose it with varying frequency. Click here for a detailed list of abolitionist and retentionist countries.

Is capital punishment ethically acceptable?

    The state clearly has no absolute right to put its subjects to death although, of course, almost all countries do so in some form or other (but not necessarily by some conventional form of capital punishment). In most countries, it is by arming their police forces and accepting the fact that people will from time to time be shot as a result and therefore at the state's behest.

    A majority of a state's subjects may wish to confer the right to put certain classes of criminal to death through referendum or voting in state elections for candidates favouring capital punishment. Majority opinion in some democratic countries, including the U.K., is still in favour of the death penalty.

    It is reasonable to assume that if a majority is in favour of a particular thing in a democracy, their wishes should be seriously considered with equal consideration given to the downside of their views.

    A fact that is conveniently overlooked by anti-capital punishment campaigners is that we are all ultimately going to die. In many cases, we will know of this in advance and suffer great pain and emotional anguish in the process. This is particularly true of those diagnosed as having terminal cancer. It is apparently acceptable to be "sentenced to death" by one's family doctor without having committed any crime at all but totally unacceptable to be sentenced to death by a judge having been convicted of murder or drug trafficking (the crimes for which the majority of executions worldwide are carried out) after a fair and careful trial.

Let us examine the merits of both the pro and anti arguments.

Arguments for the death penalty.

    Incapacitation of the criminal.

    Capital punishment permanently removes the worst criminals from society and should prove much safer for the rest of us than long term or permanent incarceration. It is self evident that dead criminals cannot commit any further crimes, either within prison or after escaping or after being released from it.

Cost.

    Money is not an inexhaustible commodity and the government may very well better spend our (limited) resources on the old, the young and the sick etc., rather than on the long term imprisonment of murderers, rapists, etc.

    Anti-capital punishment campaigners in the U.S. cite the higher cost of executing someone over life in prison, but this, whilst true for America, has to do with the endless appeals and delays in carrying out death sentences that are allowed under the U.S. legal system where the average time spent on death row is over 12 years. In Britain in the 20th century, the average time in the condemned cell was from 3 to 8 weeks and only one appeal was permitted.

Retribution.

    Execution is a very real punishment rather than some form of "rehabilitative" treatment, the criminal is made to suffer in proportion to the offence. Although whether there is a place in a modern society for the old fashioned principal of "lex talens" (an eye for an eye), is a matter of personal opinion. Retribution is seen by many as an acceptable reason for the death penalty according to my survey results.

Deterrence.

    Does the death penalty deter? It is hard to prove one way or the other because in most retentionist countries the number of people actually executed per year (as

    compared to those sentenced to death) is usually a very small proportion. It would, however, seem that in those countries (e.g. Singapore) which almost always carry out death sentences, there is far less serious crime. This tends to indicate that the death penalty is a deterrent, but only where execution is a virtual certainty. The death penalty is much more likely to be a deterrent where the crime requires planning and the potential criminal has time to think about the possible consequences. Where the crime is committed in the heat of the moment there is no likelihood that any punishment will act as a deterrent. There is a strong argument here for making murder committed in these circumstances not punishable by death or for having degrees of murder as in the USA.

    Anti-death penalty campaigners always argue that death is not a deterrent and usually site studies based upon American states to prove their point. This is, in my view, flawed and probably chosen to be deliberately misleading. Let us examine the situation in three countries.

Britain.

    The rates for unlawful killings in Britain have more than doubled since abolition of capital punishment in 1964 from 0.68 per 100,000 of the population to 1 .42 per 100,000. Home Office figures show around unlawful killings 300 in 1964, which rose to 565 in 1994 and 833 in 2004. The number of killings recorded by police rose to 636 in the 12 months to March 2011, up from 608 the previous year. The principal causes of homicide are fights involving fists and feet, stabbing and cutting by glass or a broken bottle, shooting and strangling. 72% of the victims were male with younger men being most at risk. Convictions for the actual crime of murder (as against manslaughter and other unlawful killings) have also been rising inexorably. Between 1900 and 1965 they ran at an average of 29 per year. There were 57 in 1965 the

    first year of abolition. Ten years later the total for the year was 107 which rose to 173 by 1985 and 214 in 1995.

    A total of 29 people released after being convicted of murder and six people convicted of manslaughter, killed again between 2000/1 and 2010/11, according to figures released by the Home Office. 13 of these committed murder, the most serious homicide offence, and 16 committed manslaughter.

    Some 6,300 people are currently serving sentences of “life in prison” for murder. Figures released in 2009 show that since 1997, 65 prisoners who were released after serving life were convicted of a further crime. These included two murders, one suspected murder, one attempted murder, three rapes and two instances of grievous bodily harm. The same document also noted that 304 people given life sentences since January 1997 served less than 10 years of them, actually in prison.

    Statistics were kept for the first five years that capital punishment was suspended in Britain (1965-1969) and these showed a 125% rise in murders that would have

    attracted a death sentence. Whilst statistically all this is true, it does not tell one how society has changed over nearly 40 years. It may well be that the murder rate would be the same today if we had retained and continued to use the death penalty. It is impossible to say that only this one factor affects the murder rate. Easier divorce has greatly reduced the number of domestic murders, unavailability of poisons has seen poisoning become almost extinct whilst tight gun control had begun to reduce the number of shootings, however, drug related gun crime is on the increase and there have been a spate of child murders recently. Stabbings have increased dramatically as have the kicking and beating to death of people who have done something as minor as arguing with someone or jostling them in a crowd, i.e. vicious and virtually motiveless killings. As in most Western countries, greatly improved medical techniques have saved many victims who would have previously died from their injuries. Careful analysis of the situation in Britain between 1900 and the outbreak of the second World War in 1939 seems to point to the death penalty being a strong deterrent to what one might call criminal murders, i.e. those committed in the furtherance of theft, but a very poor deterrent to domestic murders, i.e. those committed in the heat of the moment. A very large proportion of the victims of those hanged during this period were wives and girlfriends, with a small number of husbands and boyfriends. So where a crime was thought about in advance the criminal had time to consider the consequences of their action and plan differently. For instance they may decide to rob a bank at the weekend to avoid coming into contact with the staff and to do so without carrying firearms.

America.

    In most states, other than Texas, the number of executions as compared to death sentences and murders is infinitesimally small. Of the 1099 executions carried out in the whole of the USA from 1977 to the end of 2007, Texas accounts for 406 or 37%. Interestingly, the murder rate in the U.S. dropped from 24,562 in 1993 to 18,209 in 1997, the lowest for years (a 26% reduction) - during a period of increased use of the death penalty. 311 (62%) of the 500 executions have been carried out in this period. The number of murders in 2003 was about 15,600.

    America still had five times as many murders per head of population as did Britain in 1997 whilst Singapore had 15 times fewer murders per head of population than Britain. How can one account for this? There are obvious cultural differences between the three countries although all are modern and prosperous.

    It is dangerously simplistic to say that the rise in executions is the only factor in the reduction of homicides in the US. There has been a general trend to a more punitive society, (e.g. the "three strikes and your out" law) over this period and cities such as New York claim great success in reducing crime rates through the use of "zero tolerance" policing policies. But otherwise, there has been political and economic stability over the period and no obvious social changes. Improvements in medical techniques have also saved many potential deaths. Various recent academic studies in the USA have shown that capital punishment is a deterrent there. For details of these go to http://www.cjlf.org/deathpenalty/DPDeterrence.htm

Texas.

    As stated above, Texas carries out far more executions than any other American state (between 1982 and 2007 it executed 404 men and 2 women) and there is now clear evidence of a deterrent effect. My friend Rob Gallagher (author of Before the Needles website) has done an analysis of the situation using official FBI homicide figures. Between 1980 and 2000, there were 41,783 murders in Texas

    In 1980 alone, 2,392 people died by homicide, giving it a murder rate of 16.88 for every 100,000 of the population. (The U.S. average murder rate in 1980 was 10.22, falling to 5.51 per 100,000 by the year 2000. Over the same period, Texas had a population increase of 32%, up 6,681,991 from 14,169,829 to 20,851,820. There were only 1,238 murders in 2000 giving it a rate of 5.94, just slightly higher than the national rate which had dropped to 5.51/100,000. In the base year (1980), there was one murder for every 5,924 Texans. By the year 2000, this had fallen to one murder for every 16,843 people or 35.2% of the 1980 value. If the 1980 murder rate had been allowed to maintain, there would have been, by interpolation, a total of 61,751 murders. On this basis, 19,968 people are not dead today who would have potentially been homicide victims, representing 78 lives saved for each one of the 256 executions. The overall U.S. murder rate declined by 54% during the period. Therefore, to achieve a reasonable estimate of actual lives saved, we must multiply 19,968 by 0.54 giving a more realistic figure of 10,783 lives saved or 42 lives per execution. Even if this estimate was off by a factor of 10 (which is highly unlikely), there would still be over 1,000 innocent lives saved or 4 lives per execution. One can see a drop in the number of murders in 1983, the year after Charlie Brooks became the first person to be executed by lethal injection in America.

    In 2000, Texas had 1,238 murders (an average of 23.8 murders per week), but in 2001 only 31 people were given the death sentence and 17 prisoners executed (down from 40 the previous year). This equates to a capital sentencing rate of 2.5% or one death sentence for every 40 murders.

Singapore.

    Singapore always carries out death sentences where the appeal has been turned down, so its population knows precisely what will happen to them if they are convicted of murder or drug trafficking - is this concept deeply embedded into the sub-consciousness of most of its people, acting as an effective deterrent? In 1995, Singapore hanged an unusually large number of 7 murderers with 4 in 1996, 3 in 1997 and only one in 1998 rising to 6 in 1999 (3 for the same murder). Singapore takes an equally hard line on all other forms of crime with stiff on the spot fines for trivial offences such as dropping litter and chewing gum in the street, caning for males between 18 and 50 for a wide variety of offences, and rigorous imprisonment for all serious crimes.

Arguments against the death penalty.

    There are a number of incontrovertible arguments against the death penalty.

    The most important one is the virtual certainty that genuinely innocent people will be executed and that there is no possible way of compensating them for this miscarriage of justice. There is also another significant but much less realised danger here. The person convicted of the murder may have actually killed the victim and may even admit having done so but does not agree that the killing was murder. Often the only people who know what really happened are the accused and the deceased. It then comes down to the skill of the prosecution and defence lawyers as to whether there will be a conviction for murder or for manslaughter. It is thus highly probable that people are convicted of murder when they should really have only been convicted of manslaughter. Have a look at the cases of James McNicol and Edith Thompson and see what you think.

    A second reason, that is often overlooked, is the hell the innocent family and friends of criminals must also go through in the time leading up to and during the execution. It is often very difficult for people to come to terms with the fact that their loved one could be guilty of a serious crime and no doubt even more difficult to come to terms with their death in this form. One cannot and should not deny the suffering of the victim's family in a murder case but the suffering of the murderer's family is surely valid too.

    There must always be the concern that the state can administer the death penalty justly, most countries have a very poor record on this. In America, a prisoner can be on death row for many years awaiting the outcome of numerous appeals, some of which are fatuous and filed at the last minute in order to obtain a stay of execution. Although racism is claimed in the administration of the death penalty in America, statistics show that white prisoners are more liable to be sentenced to death on conviction for first degree murder and are also less likely to have their sentences commuted than black defendants.

    It must be remembered that criminals are real people too who have life and with it the capacity to feel pain, fear and the loss of their loved ones, and all the other emotions that the rest of us are capable of feeling. It is easier to put this thought on one side when discussing the most awful multiple murderers but less so when discussing, say, an 18 year old girl convicted of drug trafficking. (Singapore hanged two girls for this crime in 1995 who were both only 18 at the time of their offences and China shot an 18 year old girl for the same offence in 1998.)

    There is no such thing as a humane method of putting a person to death irrespective of what the state may claim (see later). Every form of execution causes the prisoner suffering, some methods perhaps cause less than others, but be in no doubt that being executed is a terrifying ordeal for the criminal. What is also often overlooked is the mental suffering that the criminal suffers in the time leading up to the execution. How would you feel knowing that you were going to die tomorrow morning at 8.00 a.m.?

    There may be a brutalising effect upon society by carrying out executions - this was apparent in this country during the 17th and 18th centuries when people turned out to enjoy the spectacle of public hanging. They still do today in those countries where executions are carried out in public. It is hard to prove this one way or the other - people stop and look at car crashes but it doesn't make them go and have an accident to see what it is like. It would seem that there is a natural voyeurism in most people.

    The death penalty is the bluntest of "blunt instruments," it removes the individual's humanity and with it any chance of rehabilitation and their giving something back to society. In the case of the worst criminals, this may be acceptable but is more questionable in the case of less awful crimes.

"Life without parole" versus the death penalty.

    Many opponents of capital punishment put forward life in prison without parole as a viable alternative to execution for the worst offenders, and surveys in America have shown that life without parole (LWOP) enjoys considerable support amongst those who would otherwise favour the death penalty.

However, there are drawbacks to this:

    It is argued by some that LWOP is in fact a far more cruel punishment that death. This proposition was put for