The death penalty. The harshest punishment that existed in secular civilization since its beginning, but yet the most controversial one. The execution came in many forms over the years, from a gas chamber, to firing squads, and today the more widely practiced methods of execution include hanging and lethal injection.
Whereas globally, support for the death penalty has been declining with increasing awareness towards human rights causes, certain factors do play a part in individual countries’ opinions, such as foreign interests, social order and culture.
As of 2003, the Council of Europe (CoE) has strictly enforced Protocol 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms in all member states that have ratified the Protocol. Effectively, the Council has created a death-penalty free zone, declaring the pursuance of the abolition of the death penalty in the world ‘a matter of the utmost priority’. In fact, the Council was so strict that it put states’ membership statuses on the line in defending it. As such, some countries that may have had differing national positions were morally obliged to abide by the Council’s ban on death sentences.
Most notably was Armenia’s case. In order to retain the benefits of foreign aid in democratization, including processes such as the strengthening of their justice system, establishing social equality and combating corruption, Armenia put their nationally-held, pro-death penalty beliefs aside to abide by the CoE’s Protocol when dealing with a parliament shooter. Therefore, with the sole purpose of avoiding a threat of expulsion from the CoE, the member-state had to defy their own values in setting such policy.
As can be seen, states’ positions on the death penalty may be greater influenced by external “soft” powers that offer otherwise unattainable benefits to states’ interests than most noticeable facets of democratic national opinion.
Though, when countries do consider their positions on the death penalty from a national standpoint, the first question that usually comes to mind is the effectiveness of the death penalty.
The utilitarian mindset especially seen in secular states like Singapore focuses on the practical purposes of the death penalty in deciding its implementation: whether they work as a form of general deterrence (as a message against potential perpetrators), as well as specific deterrence (preventing that criminal from committing the offense again). Here, the restorative purpose of retribution will then be inapplicable.
The city-state that has openly embraced the extremity of the death penalty in its purpose of deterring crime has always sought to defend its merits. With a deliberate intent of focusing solely on the practicalities, Home Affairs Minister Shanmugam has referred to it as a “law that have kept our population safe from the global scourge of drug abuse” as recently as October 2022.
In response to that point on deterrence, opponents often pick up on the idea that pathologically impaired people who are willing to inflict extreme lengths of torture onto others usually do not get limited by laws; in fact it is that notion of outrage that may even spur these fringe individuals.
Is there, then, any point in imposing on the irrational the threat of death, when their poor decision-making skills may undermine their fear of all that comes with the jaws of the judicial system?
Of course, a recognition beyond the practicalities is increasingly present today. In Singapore for instance, the case of convicted drug trafficker Nagarnthran K. Dharmalingam (involving the execution of a supposedly cognitively-impaired individual) yielded significant backlash for the death penalty, as newfound awareness on its ethics were raised.
See, not all societies around the world consider the question of the death penalty from a cost-benefits’ perspective of maintaining foreign relations or social order. In primarily the case of the United States, culture plays a leading role in the decision of the death penalty.
Endowed with a remarkably populist Constitution (the first ever that defends the rights of the People from potential tyranny of the government), the death penalty in America uniquely zooms in on whether the government had the right to execute citizens, no matter how grave or immoral the criminal’s actions were.
As the Declaration of Independence describes, all Americans are “endowed… certain inalienable rights, including life, liberty and the pursuit of happiness”. Clearly, the death penalty in the US is not simply seen as an extreme measure to punish and deter the harshest of crimes. It’s seen as a threshold that the government will have crossed, to deny a citizen those inalienable rights due to their actions. It represents an exception to their founding principles, one that many believe should never be the case, regardless of the crime.
Is it though? Should someone still be considered a citizen with the full suit of rights awarded if one commits such deeds, assumably disrespectful of the victim’s inalienable rights? Will the government, then, in fulfilling its purposes of justice, be overstepping its boundaries by performing the same extent of “disgrace” on the perpetrator?
Effectiveness of Death Penalty in Deterring crime
Across the globe, in countries where capital punishment is practised (or once was), many of us here may have spent hours as a child thinking about the law, and this in particular: Why does it take so long for the execution of death sentences?
It is firstly important to note that each country has its own appeals system with unique processes. For example, some countries allow legal defences to be raised indefinitely as long as they are genuine, whereas others allow for only one such sitting (Texas is one such example, with the exception of habeas corpus challenges, whereby prisoners question the legality of their detention by the state). Moreover, raising “frivolous and vexatious" motions devoid of legal merit that only serve to delay court proceedings are generally frowned upon by the judicial system regardless of jurisdiction. Lawyers acting on behalf of Dharmalingam were ordered to bear costs of their last-minute, albeit unsuccessful attempt to stay his execution in mid-2022, after the Attorney-General's Chambers found that the appeal was unmeritorious in nature.
On the other hand, some countries do not in fact put convicted persons on long, extended periods of death rows. China, while releasing no records of the exact number of capital punishments executed each year, typically carries out death sentences within a year of the ruling. Capital punishment in Chinese courts should not be taken as equivalent to death sentence with reprieve, which allows for criminals who demonstrate good behavior and repentance over a span of two years a reduction of the sentence. For sentences of capital punishment, once the verdict has been given in court, the ruling will be passed on to China’s Supreme Court to issue a warrant of execution for the death sentence. This order is then returned to the original court where the ruling was first given, during which, by law, the order of capital punishment must be executed within a week of its issuance.
This presents the very dilemma behind the increasingly lengthy periods of death rows in courts that continue the practice of capital punishment. By human nature and in upholding principles of humanity, especially when death penalties direct the matter of life and death, courts would want to exhaust all possibilities of exoneration, that the convicted person is innocent and should be absolved of the charges of guilt. In doing so, the necessity for long processes of appeal arises, often meaning that persons sentenced to death have to spend decades behind bars. Many, including psychologists and lawyers across the world, posit that the bleak isolation and years of uncertainty on their time of execution that inmates experience for decades behind bars, form an impact so detrimental on one’s health, that such a toll on their mental health punishes them to a greater extent than originally intended. These effects of long death rows have been termed as the ‘death row syndrome’, and some courts have determined that such mental torment is unconstitutional, as is in the South African case of S v Makwanyane and Another (1995).
The question of dilemma, then, that arises for courts practising capital punishment across the globe, is if bureaucratic appeal processes both create the ‘death row phenomenon’ and ensure a convicted person’s innocence, does it defeat its inherent purpose? Moreover, if an innocent person is released only after decades behind bars, is the value of exoneration diminished? In other words, what is the point of ensuring certainty of guilt through appeal processes when such bureaucracy is the very reason why innocent persons spend decades behind bars?
As seen, the key argument for most that call for change in the way capital punishment is carried out is targeted at the process causing the need for lengthy death rows, rather than the death penalty itself. At the core, there remains a need for a system of law, to enforce order and set precedents: The question is on the processes behind death penalty and the way such processes are executed, rather than the mechanism itself.
On another note, the closest alternative to the death penalty – the life sentence – is also not without its share of problems. In this case, instead of human rights issues, the problem lies with the interests of the state.
For terms like such, even with parole schemes in place, as with all other long sentences, the individual does not serve to benefit the state after release. The problem is with the sheer length of the sentence – by the time they are released, they would have already, or almost, hit retirement age, where the state will, in many cases, fund their lives until death.
Therefore, to sum up such a criminal’s life, it would be: significant harm to society as a result of their crime, followed by feeding off taxpayer-funded meals, security and accommodation in prison, then finished by more taxpayer-funded pension paychecks at old age. What is the true cost to society then?
As an alternative, some have raised the possibility of doing away with long sentences altogether. It’s either death, or a very short sentence focused on rehabilitation. Judicial systems of the Nordic countries are especially renowned for their success in such schemes, with special emphasis placed on re-education and re-integration in their correctional facilities. Their rehabilitation-centered approach ensures that even the harshest of criminals are incarcerated with the purpose of restoring morality, as the longest sentence stands at 30 years. This way, the appeals process for death rows could also be expedited: precise definitions of crimes are no longer needed: a rough idea that can prove criminality above a certain threshold is simply needed to convict.
Of course, such ideas are admittedly radical and may not be accepted by most. Should the death penalty, for all its worth with the deterring effects and retributive functions, yet with all its logistically-caused paradoxes and its prone-ness to errors in convictions, or out of sheer humanity, still exist? How much value do we place on a life? Would the world be a better place if capital punishment wasn’t there to act as a threat to dissuade people who would commit horrible crimes otherwise? Regardless of what we might believe, it is unlikely that anything will change anytime soon, especially without another viable solution bar a lifetime in prison. In any case, the morality and practicality of the death penalty will always be called into question, and perhaps we should be considering how we can create a society that does not require us to go to such lengths, rather than whether such a sentence is needed at all.
References
Asbarez. (2002, July 8). Council of Europe Again Warns Armenia Over Death Penalty. Retrieved from https://asbarez.com/council-of-europe-again-warns-armenia-over-death-penalty/
Death Penalty Information Center. (n.d.). Time on Death Row. Retrieved from https://deathpenaltyinfo.org/death-row/death-row-time-on-death-row
Death Penalty Information Center. (n.d.). Examples of Prisoners With Extraordinarily Long Stays on Death Row. Retrieved from https://deathpenaltyinfo.org/death-row/death-row-time-on-death-row/examples-of-prisoners-with-extraordinarily-long-stays-on-death-row
European Parliament. (2019, February 13). The death penalty and the EU's fight against it. Retrieved from https://www.europarl.europa.eu/RegData/etudes/ATAG/2019/635516/EPRS_ATA(2019)635516_EN.pdf
Jansen, T., & Madatali, H. A. (2022, November 9). The European Union’s relations with Armenia and Azerbaijan. Retrieved from https://www.europarl.europa.eu/RegData/etudes/STUD/2022/734676/EPRS_STU(2022)734676_EN.pdf
穿跑鞋的律师. (2022, January 04). 死刑犯被判立即执行后, 多久开始执行. https://110law.org/flyy/xingfa/xfzl/sx/3223.html
The Criminal Justice System has 4 principal purposes: deterrence, rehabilitation, incapacitation, and retribution.
Perhaps when discussing the death penalty, rehabilitation and incapacitation are moot points: if the crime committed is so heinous that an execution is pondered, and the only other real alternative is a life sentence, then clearly rehabilitation is a non-consideration, and any option would likely fulfil incapacitation.
Deterrence then. Your article was a nice read, but a few further areas were worth elaborating on.
The courts have found that Dharmalingam understood the action(s) he was performing. Nonetheless, he was a man of below average intelligence, and an indisputably low-level drug mule. As long as poor, dumb, and desperate men such as himself exist, kingpins and cartels have…