Should Capital Punishment be Allowed or Not?
Since centuries, an issue of Capital Punishment is turning the legal benches around the globe into the seats of much heated debate. Various laws are being framed taking into account the severity of crimes in deciding the method of Capital punishments. Even though, between the years 1972 to 1976, United States Supreme Court declared Capital punishment as the most severe and cruel form of punishment and deemed unconstitutional, yet the decision was soon reverted when new ways of execution was introduced. Every year around 250 offenders are given death penalties and around 35 are executed.
The reference of the first codified death penalty is found in the Code of King Hammaurabi of Babylon, in eight century BC. Before that, the reference of death sentence as the only form of punishment was also found in the Seventh Century BC’s Draconian Code of Athens and in Roman Law of Twelve tablets in fifth century B.C. The death sentences were carried in the form of impalement, crucifixion, drowning, beating to death and burning alive. In tenth century AD, hanging became the common method of punishment in Britain but in the same century William, the Conqueror stopped the executions except in the case of war but again in the sixteenth century, under the reign of Henry VIII, 72,000 people were executed. The executions were in the form of boiling, burning at the stake, hanging, beheading, and drawing and quartering. In next two years, Britain saw tremendous rise in capital punishment. By 1700, 200 crimes were considered as serious offense liable to get death sentence. Even the crimes like cutting of trees, stealing and robbing a rabbit warren were included in the list. (Death Penalty Information Center Online)
America was highly influenced by Britain rather than any other country in the use of the death penalty. European settlers brought the practice of capital punishment along with them when they came to the New World. In 1608, the execution of Captain George Kendall in the Jamestown colony of Virginia was the first recorded execution in the new colonies. He was held as a spy of Spain. (Death Penalty Information Center Online)
In 1612, the Governor of Virginia, Sir Thomas Dale put into practice the “Divine, Moral and Martial Laws”, imposing death penalty even for offenses of very minor nature like stealing grapes, killing chickens, and trading with Indians. But in 1767, European theorists Montesquieu, Voltaire and Bentham, and English Quakers John Bellers and John Howard were the first to begin with the abolitionist movement but the greatest impact was created by Cesare Beccaria’s 1767 essay, On Crimes and Punishment. In the essay, Beccaria justified that there was no validation for the state to take a life. Between the nineteenth to twentieth centuries, there was mixed response. As it was a period of progressiveness and Russian Revolution banned the death sentence but it was short lived and between 1920 and 1940’s, writings of criminologists induced again the validity of Capital offense. But again in 1950’s death sentences reduced. There were only 1,289 executions in the 1940s, 715 in the 1950s, and this number reduced further, to 191 from 1960 to 1976. (Death Penalty Information Center Online)
The legal debate regarding the constitutional validity of the capital offense began in 1960’s and is continuing till today. The Jackson and Witherspoonten ten-year moratorium on executions, which had its beginning with the various decisions, came to an end when Gary Gilmore was executed by the firing squad in Utah on 17th January1977. In the same year, Oklahoma became the first state to resort to lethal injection for executions and Charles Brooks happened to be the first person to be executed by the lethal injection in Texas on 7th December 1982. (Death Penalty Information Center Online)
After the World War II, United Nations General Assembly declared “Right to Life” in the Universal Declaration of Human Rights but restricting its scope with the only purpose to give protection to juveniles, pregnant women, and the elderly people.
During the 1950s and 1960s, many treaties were adopted including International Covenant on Civil and Political Rights focusing on death sentence only in exceptional cases followed by certain legal safeguards. Many of the Western European Nations stopped the capital punishment but did not abolish it totally. Despite the growth of European abolitions, the U.S. kept the death penalty, but imposed certain limitations on capital punishment.
The United States declared the death sentence as unconstitutional if the crime related to rape of adult woman in 1977 in case of Coker vs. Georgia (433 U.S. 584). In 1986, Supreme Court put the ban on the executions of mentally retarded criminals. Four Justices declared that the execution of offenders less than fifteen years was unconstitutional in 1988 in the case of Thompson v. Oklahoma (487 U.S. 815). The resolution in support of Worldwide Moratorium on Execution was passed in April 1999, which declared the countries all over the world to abolish the death sentence. United States, China, Pakistan, Rwanda and Sudan did not favor the resolution but again in April 2004, 76 UN member states gave their consent to the resolution.
(Death Penalty Information Center Online)
Currently over more than half of the countries in the international community have totally banned the death penalty for crimes of less gravity, but more than 78 countries still kept the death penalty, including China, Iran, the United States, and Vietnam.
Though it is commonly held belief and people revoke that State has no right to put his subjects to death but this is also true that all countries since the birth of human civilization are doing so. In many of the countries, criminals expect the police forces to shoot them. The topic itself is of very grave nature and its discussions require various concepts and the social positions of the society into account.
There is no doubt of the fact that capital punishment removes the deadly criminals from the society. Nothing is reparable than the psychological trauma that is felt by the persons whose near and dear ones are murdered by the criminals or have been caused irreparable gravest injury. How can we spare the serial killers or terrorists whose main aim is to spill the blood of any human being or whose main profession is to perform mass killings? Those people who are advocating for putting the ban on Capital punishment should just think about the cries of the children whose parents are shot dead on the roads by any motorist who just come from no where and resort to firing on any one who comes in the way or any person who just picks up the gun and goes on shooting spree at the school children. By imposing death penalty on the deadliest criminals, we can save lives of many other innocents and it is cheap proposition too as compared to impersonating them. Anti capitalists campaigners are citing the higher cost involved in executions only because of the American legal system, which allows endless appeals and delays until the final day of their executions. The average time it takes to keep criminal on a death row is on an average more than 11 years.
The facts have also come to light that the abolishment of capital punishment has resulted in the increase in the number of unlawful killings. For e.g. since the day Britain abolished the capital punishment in 1964, unlawful killings have increased. The rate had doubled from 0.68 per 100,000 of the population to 1.42 per 100,000. According to home office figures, unlawful killings rose from 300 in 1964 to 565 in 1994 and then to 833 in 2004. The rates of homicides were 734 in 2007. 72 per cent of the victims were young males. Now around some 6,300 people are currently serving life in prison for murder. (Clark Online Edition)
Many people held opinion that capital punishment goes on to lower the value of human life. Human life is the most cherished possession in the eyes of law and taking it is against humanity but often the opponents of capital punishment forget that as equal the human life is for criminals, it is valuable for the people who have already been murdered. Criminals have taken away the lives of the people who must have been cherishing numerous dreams for their future. In his speech to Parliament on 21st April, 1868 opposing the bill proposed by Mr Gilpin on the issue of putting ban on capital punishment, John Stuart Mill, an ardent liberal of nineteenth century and great representative of utilitarian thought opined his view that, “When there has been brought home to any one, by conclusive evidence, the greatest crime known to the law; and when the attendant circumstances suggest no palliation of the guilt, no hope that the culprit may even yet not be unworthy to live among mankind, nothing to make it probable that the crime was an exception to his general character rather than a consequence of it, then I confess it appears to me that to deprive the criminal of the life of which he has proved himself to be unworthy–solemnly to blot him out from the fellowship of mankind and from the catalogue of the living–is the most appropriate as it is certainly the most impressive, mode in which society can attach to so great a crime the penal consequences which for the security of life it is indispensable to annex to it. I defend this penalty, when confined to atrocious cases, on the very ground on which it is commonly attacked–on that of humanity to the criminal; as beyond comparison the least cruel mode in which it is possible adequately to deter from the crime.”(Mill & Sher 66)
The philosophical viewpoint has also been drawn on general discussions on the issue of capital punishment. In legal philosophy, the corrective justice defined two theories of punishment: utilitarian and retributive and with that defenses are also utilitarian and retributive in nature. (The Internet Encyclopedia of Philosophy Online) The punishment is warranted in the utilitarian context if it helps in maintaining a cordial balance between happiness and unhappiness. Capital punishment should be undertaken if the further heinous crimes can be prevented or if it helps in deterring in the crime rates or coax the criminal not to commit the crime again and the retributive notion implies that as far as justice is concerned, criminals should be punished but the punishment should be equivalent to the gravity of the crime. Theorists further distinguish this type of punishement into two types: Firstly lex talionis retribution, which implies punishment in kind and secondly lex salica retribution, which implies punishment by compensation. (The Internet Encyclopedia of Philosophy Online) Immanual Kant too offered another type of retributive justification of capital punishment, which depends on vengeance. Kant says that capital punishment should be performed only because of the fact that life of every human being is valuable because it is the human being only that has an inherent capability to make rational choices. (The Internet Encyclopedia of Philosophy Online) In this sense, murder is also a respected proposition and death sentence is levied on the murderer to show him respect by making him realize that he is also treated in the similar way he declares to show treatment on the other people. The only problem with this theory is that it explains the capital punishment for only ideally rational killers, even though many killers are not rational. All these theories give their own rational thoughts in favor of capital punishment but all these theories have come under some or the other criticism.
If we take utilitarian theory, Italian political theorist Cesare Beccaria said that capital punishment might not reduce the criminal activity or coax the criminal to deter from taking to crime again and there is no supportive evidence to prove this theory. Critics of Retributive punishment suggest that this theory is not based on any foundation but it is based on the human beings natural inclination of vengeance. What ever is the reason behind the favor of capital punishment, we cannot validate an act of barbarity that goes along with the punishment. It is against the civilized state and humanity. As perpetuated by the civilized society, the death penalty has proved to be an utter failure. Even in the countries where death penalties are imposed, the rates show that crime has only risen instead of being reduced. A survey conducted in 1988 and updated in 2002 by Roger Hood for the United Nations (UN) came to the conclusion that “The statistics… continue to point in the same direction is persuasive evidence that countries need not fear sudden and serious changes in the curve of crime.” (Fidh-Ditshwanelo 5). It is not true that death penalty can merely lead to the reduction of the crime rates as there are number of other factors which are involved in the crimes.
We think that making the dangerous man isolated fulfills our duty but we forget that he is also human being and by imposing death penalty on him, we are depriving him with the chances to be a better man. Similarly we are also depriving the families the decent living. The Amnesty International reported that “The families of executed inmates are also violently bereaved.”(Sharp 21) The long wait process until the day death sentence is to be executed, creates debilitating psychological impact on the families and they experience alternative hope and despair. They experience a certain sense of ambiguous loss. Long judicial processes bring with them financial hardships too. Notwithstanding this, they are also subjected to social scorn. In the entire process of death sentence or execution, it is ultimately the families that suffer the most.
Many cases have come to light where innocents have been sentenced to death because of the lack of evidence or proof of their innocence on one hand and delay in judicial processes on the other. There is ample evidence to prove this point that such mistakes can take place. Since 1973 in the USA alone, 116 convicted have been found innocent and the average time they had to spend on death row was 9 years. In many cases, crime was never committed at all but showed to be committed. For e.g. in court, suicide case turned into homicide or an accidental fire became arson. Mistakes of eye witnesses or faulty identifications, corruption in judiciary set up, political ambitious, over ambitious and zealous prosecutors hit at the very roots of justice system making mockery of the very cord of judiciary. Counsel in 1990 had really closed the fate of Luis Rojas. In November of the same year, Rojas with a friend was travelling from Greenwich Village to New Jersey and only because of the fact that he was wearing orange jacket, he was mistakenly caught as a man who shot at two men at the lower Broadway, one of whom died. As Rojas financial problem became constrain for him to hire a good lawyer, he could not prove innocence and got convicted for murder charge. Even though the fact that PATH police had on the same day seen him at their station when the shooting was taking place at the street above, he was convicted of death sentence. The lackadaisical approach on the part of the investigation procedures, mistakes during cross examination of witnesses and flaws in law brought the innocent man onto the verge of death. (Mendez Online)
In 1912, Lieutenant Charles Becker convicted for murder in New York was executed at Sing Sing on 30th July 1915. Two inmates and even jail warden kept on insisting that Becker was innocent but because of the lack of evidence he lost his life. This case became the matter of study for scholarly students as wrongful execution. (Christianson 168) These wrongly convictions raise the questions of the validity of the capital punishment.
Since eighteenth century, cruelty, savagery and harsh treatments had been the part of the Criminal Justice system. Judicial torture was very common and as said by, “The law’s vagueness, contradictions, and wide scope for interpretation and discretion tended to reinforce the personal dependence of the disadvantaged on those with inherited property and authority. The advantaged could apply, mitigate, or withhold criminal sanctions, whereas the disadvantaged were usually those against whom the laws were enforced.” (Beccaria & Young xii)
Beccaria was the first major writer to call upon to the abolishment of capital punishment. He pinpointed to the fact that death penalty is ineffective way to control crime rate instead a life term imprisonment would better serve for Utilitarian purpose. Interpreting the broad social and political view, Beccaria formulated a liberal theory of criminal justice, which became the model of utility and humility. Beccaria held his opinion that it is indefensible and interpretative charity should create a strong presumption that no one would ever alienate power over his life to the sovereign. In short, Beccaria stated that a very mild form of legal system is very useful and follows the basic human rights. (Beccaria & Young 15) But Beccaria is also not free from criticism. Critics says that abolishment of legal system is merely an eyes wash to strengthen the support of giving privileges to wealthy along with criminal sanctions. (Beccaria & Young 15)
In his treatise, Beccaria formulated some principles on the basis of which punished should be carried out. The principles stated that punishment prevents further crime in other words it has the most deterrent but not retributive function; there should be direct relation between the crime and punishment, in other words, punishment should be applied on the basis of the gravity of the crime; the punishment should be implicated for sure but it should not be very grave; the procedure for the conviction should be made public and there should be prompt judgement.
(Vito, Maahs, & Holmes 15)
Media plays a very important role in shaping the people’s attitude towards capital punishment. According to criminologist, among the media, movies are the primary source-perhaps the most significant source of ideas about crimes and criminals, as they shape our thinking on crimes and criminals. Violence and depravity of Hannibal Lecter of Silence of the Lambs or the Knock couple of Natural Born Couples, may make Americans believe the fact that violence is every where around them which must be stopped and for them naturally, death penalty is an only form of punishment. But not all support capital punishment. Since the last decade, media too has been bringing out the essence of humanity and sensitivity in the issue of capital punishment and for those who have been declared offenders and fit for not less than death penalty. In one of the stories, The Chamber by Grisham, Sam Cayhall is facing execution trial on the charges of the murder of two children. He is shown to be very angry and irascible racist who had spent his younger years of his lives in the persecution of minorities. But within his personality, Grisham had also shown that Cayhall was not just the criminal but also imbibed several traits in his character and his execution would not serve any purpose. Later it was also found that the man, the state had put on trial for execution is not at all the same man who had committed the crime years ago. (Sharp 2)
This story brings forth the fact that inherent in every man are the traits of both goodness and evilness. In many, evilness predominates making the goodness to get crushed under the debris of aggressiveness and selfishness. This trait of evilness makes humans to give the violence and crime their essential predomination. At one angle, violence according to many psychologists and philosophers is a response to injustice to physical or emotional injury or revenge and selfishness and show of power by many. We can also call crime as a psychological outburts towards enemy. By giving the Capital Punishment of that severe nature like death sentence we are undermining the real essence of Punishment.
Punishment does not just involve putting criminals behind bars and inflicting harsh treatments on them but it also involves reforms and bringing the criminals back in to the fold of society and by giving them Capital punishmen deprive them the chance of reforming themselves.
Beccaria, Cesare & Young, David. “On Crimes and Punishments”. Indianapolis, Indiana: Hackett Publishing, 1996
Clark, Richard. “Arguments for and against capital punishment”. (Internet) Available: http://www.capitalpunishmentuk.org/thoughts.html, May 17, 2008
Christianson, Scott. “Innocent: Inside Wrongful Conviction Cases”. New York & London: NYU Press, 2003.
Death Penalty Information Center. “Part I: History of the Death Penalty”. (Internet) Available: http://www.deathpenaltyinfo.org/article.php?scid=15&did=410#IntroductionoftheDeathPenalty May 17, 2008.
FIDH-DITSHWANELO. “The Death Penalty in Botswana: Hasty and Secretive Hangings” Internet. Available: http://www2.ohchr.org/english/bodies/hrc/docs/ngos/fidh_bost.pdf, May 18, 2008.
Mendez, Franklin. “Convicted Innocents: A Failed System For Justice In New York State” Internet. Available: http://www.scopemagazine.net/innocents.htm, May 18, 2008.
Mill, John Stuart & Sher, George. “Utilitarianism”. Indianapolis, IN: Hackett Publishing Company, 2002
Sharp, Susan F. “Hidden Victims: The Effects of the Death Penalty on the families of accused” Rutgers University Press, 2005.
The Internet Encyclopedia of Philosophy. “Capital Punishment” Internet (2001) Available: http://www.utm.edu/research/iep/c/capitalp.htm, May 17, 2008
Vito, Gennaro F., Maahs, Jeffrey R. & Holmes, Ronald M. “Criminology: Theory, Research, and Policy”. Sudbury, MA: Jones & Bartlett Publishers, 2006