Abolish the Death Penalty

by Magnus Schifter-Holm. Published 2nd of February, 2012.

The death penalty has, throughout history, been the ultimate detterent in keeping populations in check. Sovereigns, political, military and religious leaders, kings, emperors, generals, popes and judges around the world sought to establish their dominion, and their judicial ideal, and the threat of execution was their most powerful tool in curbing dissent, disobedience and crime.

We often look at the judicial systems of old as having been unfair, crude, or extemist, through historical accounts of Spanish inquistion or the tales of Vlad the Impaler, but fast forward to the twenty-first century, and capital punishment is still very much present within the legal systems of numerous jurisdictions.

Government ... can't be trusted to control its own bureaucrats or collect taxes equitably or fill a pothole, much less decide which of its citizens to kill

— Al Gore, presidential debate, 2000

Pre-mediated murder is the offence which most commonly might result in capital punishment in the jurisdictions where capital punishment is available. On one side, criminal law would be seemingly attributing the same value to all human life while on the other hand, it is the traditional eye for an eye approach, passed down since antiquity. The intentional taking of person's life is one of the oldest and gravest of crimes and legal systems around the world have traditionally appointed to it, the harshest form of punishment in order to deter potential criminals from resorting to such an action. However, in my opinion, deterence is too abstract of a concept to use to overthrow the fundamental right to live, in the sense that there is no real evidence of it being effective. In a contemporary society whereby the trend favours corrective measures and redemption of criminals, together with pecuniary compensation, as opposed to punishment, the death penalty provides neither. It definitely does not seek to correct the criminal's behaviour, or make him atone for his actions.

In my judgement, it is also too harsh to be considered a punishment — it does not provoke discipline, or submit the criminal to hard work. The only thing the death penalty does effectively is the tortorious wait for criminals on deathrow, not knowing when they will be facing execution, more often that not, having to wait for years to be put out of their misery. The ultimate deprivation of all is that at the end of the day, this sounds more like vengeance and retribution, rather than justice, and it is not the place of the law to instill revenge. Payback is not a judicial concept, at least, not in contemporary democracy. The argument that criminal law is there to protect the lives of the innocent at all costs, even at the cost of killing the guilty, does not hold as a legal argument, because human rights law, which, in most countires supercedes and ranks above ordinary criminal law, protects the fundamental right to live. What the death penalty is essentially doing, from a theoretical legal standpoint, is that it is preferring the lives of the guilty to those of the innocent, so the question is, from where does such a hierarchy of human life gain legitimacy?

Can the state, which represents the whole of society and has the duty of protecting society, fulfill that duty by lowering itself to the level of the murderer, and treating him as he treated others? The forfeiture of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process. And I believe that future generations, throughout the world, will come to agree.

— Marietta Jaeger, whose 7 year-old daughter Susie was kidnapped and murdered in the US in 1973.

Ultimately, legitimacy comes from the people themselves. The death penalty itself is very controversial, and while it has many opponents, there are as many people who say that it is vital for their own personal security. It could be said to be a matter of culture. Europeans in general, early on in the twenteeth century, legislated against, and outlawed the death penalty, yet several states in the United States of America retain it as a beacon against the most heinous of crimes.

Even if the death penalty managed to deter the murder of innocents, something which is already very hard to prove initself, the concept of ideal justice does not prescribe to utilitarianism. A punishment should reflect the gravity of the offence commited, not a generic social need, especially when it comes to other crimes apart from homicide whereby the death penalty may be invoked.

How can one claim that the death penalty is an effective deterrent, when for example, countries lacking capital punishment, such as Canada and most states in Europe have lower murder rates than the United States, which still upholds the death penalty at federal level, even though it is not available in all the states? It is logical to assume then, that there are forces much more powerful than the death penalty itself, that affect the murder rate. This could be social and economic conditions, or the culture itself. It could itself have an adverse effect on the people — legalised killing, as it is sometimes called, may nurture a culture whereby ending a life is acceptable in certain situations, and this itself could breed more death.

To a logical person, a life sentence in prison should not be less of a deterrent than capital punishment. It also follows that since a significant number of murder cases are not premeditated, the fear of the potential punishment would not have sunk in before the act is committed, thus in this regard, the argument for deterrence is weak. Violence as a response to violence does not make peace, but rather, creates avenue for more hurt. Sure, the first instinct one would have towards a murderer who has killed someone close to you, would be that of returning the favour, but the consequence of that would be of angering the murderer's own loved ones, who themselves, would develop the motive for further vengeance, resulting in an everlasting cycle, thus the eye for an eye approach is a poor way of doing justice.

To me the death penalty is vengeance, and vengeance doesn't really help anyone in the healing process.

— Bud Welch, a father whose daugther died at the hands of a criminal who ended up being executed.

The argument against is further amplified when one considers the risk of convicting, and executing innocents. Court judgements are sometimes arbitrary, affected by public opinion, despite the lack of conclusive evidence. Sometimes, the accused lack an adequate legan defence team, are affected by racial discrimination, or the evidence is tampered with or suppressed, and false testimonies are given. Statistics show that since 1973, 1,200 inmates were executed in United States, but a further 140 people who had been condemned to death, had their sentence reversed upon retrial, and this clearly shows the fallability of courts.

In a particularly famous case, Troy Davis, an African-American, was charged for murdering a policeman of European descent, and despite the absence of a murder weapon or any other sort of physical evidence, he was convicted and condemned to death only through eye witness accounts which were largely contradictory, with several witnesses saying that they were forced and pressured by the police in giving such a testimony. After a staggering number of petitioners managed to get a retrial for the accused, the judge demanded proof of innocence, a concept which goes directly against the spirit of the law, and is essentially legal blasphemy, with the end result being that Troy Davis was legally murdered by the state of Georgia, US in 2011.

Whilst first degree murder is the offence most commonly attributed to the death penalty, there are more crimes that may result in such a sentence, differing from country to country. Armed robbery, rape, drug and human trafficking, terrorism, sodomy, homosexuality, adultery, prostitution and desertion, amongst others, are all instances whereby some countries may impose a death sentence. Furthermore, several states include crimes against the state, in particular, treason, as an offence punishable by death.

With the development of international and regional fundamental human rights law, in particular through the Universal Declaration of Human Rights, adopted by the United Nations in 1948, as well as the Council of Europe's European Convention on Human Rights, adopted in 1953, the trend is towards an international standard of human rights. Such documents where vital in the abolition of the death penalty in Europe, with Belarus and Russia being the only states still retaining the death penalty, and the latter has not used it for more than ten years. The efforts of the United Nations in establishing the universal human right to live, has led to 50% of the countries of the world to abolish capital punishment in all cases, while 25% have it, but have not used it for more than ten years. However, abolition is still far from being universal — it is considered part and parcel of religious justice in several Muslim states, while it seems ingrained in the culture of certain American states, Japan and China.

Capital punishment is a form of legalised vengeance — it is inhumane and barbaric when considering that other, effective means, such as a life sentence, can be resorted to. Ironically, the same politicians that oppose abortion, because it is the termination of a life, are then in favour of capital punishment. The ethics of just society does not favour retribution, rather it seeks to correct the wrong, by putting the victim, in as much as possible, the situation he was before the incident, and by seeking the redemption of the offender through character formation, and subsequently, reintegration in society.

Back to overview.