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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 forward in a UK parliamentary debate by the philosopher John Stuart Mill in the 19th century. It is interesting to note that no less than 311 prisoners serving life sentences in Italy petitioned their government in 2007 for the right to be executed. They cited LWOP as a living death where they died a little every day. In the USA, as of 2009, there are over 46,000 people serving whole life sentences, of whom 2,200 were under 18 at the time they committed the crime, as US law no longer permits the execution of minors. One might be forgiven for asking what is the point of locking a person up to the day they die and one might wonder if it is indeed a far worse punishment than death.

    Death clearly permanently incapacitates the criminal and prevents them committing any other offence. LWOP cannot prevent or deter offenders from killing prison staff or other inmates or taking hostages to further an escape bid - they have nothing further to lose by doing so and there are instances of it happening in the USA.

    However good the security of a prison, someone will always try to escape and occasionally will be successful. If you have endless time to plan an escape and everything to gain from doing so, it is a very strong incentive.

    We have no guarantee that future governments will not release offenders, who were imprisoned years previously, on the recommendations of various professional

    "do-gooders" who are against any punishment in the first place. Twenty or thirty years on it is very difficult to remember the awfulness of an individual's crime and easy to claim that they have reformed.

    Myra Hindley is a prime example of this phenomenon - whilst I am willing to believe that she changed as a person during her 37 years in prison and probably did not present any serious risk of re-offending, one has absolutely no guarantee of this and it does not obviate her responsibility for her crimes. Fortunately, she died of natural causes before she could obtain the parole which I am sure she would have eventually been granted.

The Numbers Game "death versus deterrence".

    If we are, however, really serious in our desire to reduce crime through harsher punishments alone, we must be prepared to execute every criminal who commits a capital crime irrespective of their sex, age (above the legal minimum) alleged mental state or background. Defences to capital charges must be limited by statute to those which are reasonable. Appeals must be similarly limited and there can be no reprieves. We must carry out executions without delay and with sufficient publicity to get the message across to other similarly minded people. This is similar to the situation which obtains in China and would, if applied in Britain, undoubtedly lead to a large number of executions to begin with until the message got through. I would estimate at least 2,000 or so in the first year if it were applied for murder, aggravated rape and drug trafficking. This amounts to more than 7 executions every day of the year Monday through Friday.

    Are we, as a modern western society, willing to do this or would we shy away from it and return to just carrying out the occasional execution to show that we still can without any regard for natural justice? These events will be seized upon by the media and turned into a morbid soap opera enjoyed by a (large?) proportion of the population. (Note the popularity in the American media of capital murder trials there.) It is doubtful whether executions carried out on this basis will deter others from committing crimes.

    For capital punishment to really reduce crime, everyone of us must realise that we will personally and without doubt be put to death if we commit particular crimes and that there can be absolutely no hope of reprieve.

    One wonders if as many people would be willing to vote for this scenario in a referendum when they realised the full consequences of their action.

    I have no doubt that if we were to declare war on criminals in this fashion, we would see a rapid decline in serious crime but at what cost in human terms? There will be a lot of innocent victims - principally the families of those executed.

The Future.

    I wonder if in another hundred years we will, as a world still have capital punishment at all or for that matter prisons, or whether we will have evolved technological means of detecting and correcting potential criminals before they can actually commit any

    crime. It seems to me that we must first find this technology and then educate public opinion away from its present obsession with punishment by demonstrating that the new methods work, pointing out the futility and waste of present penal methods, especially imprisonment and execution.

    Punishment will remain popular with the general public (and therefore politicians) as long as there are no viable alternatives and as long as crime continues its present inexorable rise. Logically, however, punishment (of any sort) cannot be the future - we must progress and therefore we will.

    Until this utopian point is reached, which I believe it ultimately will be, I think that we will see the use of the death penalty continuing and its reintroduction in countries that had previously abolished it. Most of the Caribbean countries are trying to get it re-introduced.

    It is clear that in strict penal societies such as Singapore, that the crime rate is much lower than in effectively non-penal societies such as Britain. It is, therefore, logical to assume that Singaporean style policies are likely to be adopted by more countries as their crime rates reach unacceptable proportions.

    I do not believe that the majority of people who support capital punishment or other severe punishments, do so for sadistic reasons but rather out of a feeling of desperation that they and their families are being overwhelmed by the rising tide of crime which they perceive the government is doing too little to protect them from. I think there would, in the long term, be sufficient support for non-penal methods of dealing with criminals if these were proved to be effective.

    A particular danger in our society is that we continue to do little or nothing effective about persistent juvenile offenders. If the death penalty were re introduced, we may be consigning many of these to their death at the age of 18, having never previously given them any discipline whatsoever. Surely execution should not be both the first and last taste of discipline a person gets and yet as we allow so many youngsters to run wild and commit ever more serious crimes unpunished, public opinion and thus political expediency makes it more and more likely. Nicholas Ingram, who went to the electric chair in the American state of Georgia in 1995, is a perfect example of this phenomenon.

    We should start by introducing stricter discipline from "the bottom up," i.e. start with unruly children at school and on the streets and progress through young thugs and older thugs before we think about restoring capital punishment. This way, we might bring up a generation or two of disciplined people who might not need the threat of execution to deter them from committing the most serious crimes.

    It is noticeable that whilst Singapore retains and uses the death penalty, it also

    has severe punishments for all other offences, including caning for many offences committed by young men who are usually the most crime prone group. Thus, Singapore provides discipline at all levels in its society and has the sort of crime figures that most countries can only dream of.

Pain and suffering is the death penalty a cruel and unusual punishment?

    The Eighth Amendment to the American Constitution prohibits the imposition of "cruel and unusual punishments" and the "infliction of unnecessary pain in the execution of the death sentence". Whilst this would seem reasonable it never intended this amendment to guarantee a pain free death. When the Constitution was written execution by hanging was specified and at the time this meant the short or no drop method as the concept of a measured drop hadn't been invented. In the Supreme Court case of Rees v Baze in 2007, Ralph Baze challenged the lethal injection procedure in the state of Kentucky which was found to be constitutional by the court because it did not intentionally cause pain.

    Obviously one cannot be inside the brain of a person as they are being out to death to know what, if any, pain they are feeling. All we can do is to observe their reaction to the process and carry out an autopsy afterwards. If for instance in a measured drop hanging, there is no obvious struggling or movement after the drop and the autopsy finds that the neck has been broken and the spinal cord severed then it is reasonable to conclude that the person died a pain free death. In lethal injection if the person appears to lapse into unconsciousness within seconds of the commencement of the injection of the fast acting barbiturate that is normally the first chemical injected in the US we conclude the same.

    It is equally clear that when any form of execution is bungled the prisoner often exhibits signs of great suffering.

    The time taken in the actual preparations prior to the execution, (e.g. insertion of the catheters or the shaving of the head and legs for electrocution), must also cause great emotional suffering which again may far outweigh the physical pain of the actual moment of death which at least has an end. Remember that in 20th century Britain, it took typically around 15 seconds to carry out a hanging, whereas it can take 20 to 45 minutes when all goes well to carry out a lethal injection. It sometimes takes much longer when a vein cannot be found. Hanging may cause a degree of physical pain, but surely being executed over a period of half an hour or more must cause acute mental agony.

    We have looked at the pain caused by execution but what of the suffering? One issue rarely addressed is the length of time prisoners spend in the condemned cell or on death row in tiny cells in virtual solitary confinement prior to execution and the uncertainty of eventual execution as various stays are granted and then overturned (particularly in America, where it is an average of over 12 years in 2006, the last year for which statistics are available but can sometimes be over twenty

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