Time to abolish capital punishment

Time to abolish capital punishment
By Roger Hood

TAIPEI TIMES, Monday, Nov 16, 2009, Page 8

Twenty years ago, at the end of 1988, 52 countries had abolished the death penalty — 35 of them for all crimes in all circumstances, and the rest of them for murder and other “ordinary” crimes, but not for treason or crimes in time of war. Today, 103 countries have abolished the death penalty, 95 of which have abolished it in all circumstances. Very few countries carry out executions: Only 48 have done so in the last 10 years, and the number has decreased during that time.

Last year, only 25 countries executed people, compared with 41 in 1995. In addition to those that have abolished the death penalty in law, 45 countries have kept it on their statute book but have not executed anyone for more than 10 years. Amnesty International regards 36 of them as truly “abolitionist in practice,” having a settled policy not to resume executions. If this group is added to those who have abolished capital punishment in law, 71 percent of countries have dispensed with executions as an arm of law enforcement.

Furthermore, with very few exceptions, once capital punishment has been abolished it has not been reintroduced. Only four countries, plus two states of the US, have done so since 1961, and only one of these resumed executions: the Philippines, which reinstated capital punishment for many offenses in 1994, and carried out seven executions between 1999 and 2000 before again abolishing the death penalty in June 2006 by overwhelming majorities of both the Senate and House of Representatives.

Why have the majority of countries abandoned the use of the death penalty in recent years? The foremost factor has been the political movement to view capital punishment not as an issue to be decided solely or mainly as an aspect of national criminal justice policy, but rather as a fundamental violation of human rights — the right to life and to be free of excessive, repressive and tortuous punishments, and the risk that an innocent or undeserving person may be executed.

This movement gained force as more and more countries emerged from totalitarian and colonial repression to embrace values that seek, in the name of democracy and freedom, to protect citizens from the power of the state and the tyranny of public opinion.

This new dynamic embraces the view that capital punishment should be regarded neither as a weapon of national criminal justice policy to be enforced according to a government’s assessment of its value as a crime control measure, nor as an issue to be judged in terms of local cultural or socio-political values.

The human rights approach to abolition rejects the most persistent of justifications for capital punishment: retribution and the need to denounce and expiate crimes that shock our sensibilities by their brutality.

It also rejects the utilitarian justification that nothing less severe can act as a sufficient deterrent to those who contemplate committing capital crimes. This is not only because the social science evidence does not support the claim that capital punishment is necessary to deter murder, but because even if it did have a marginal deterrent effect, it could only be achieved by high rates of execution, mandatorily and speedily enforced.

This, abolitionists assert, would increase the probability of innocent or wrongfully convicted persons being executed and lead to the execution of people who, because of the mitigating circumstances in which their crimes were committed, do not deserve to die.

Attempts in some jurisdictions to define in legislation a small class of the “worst of the worst” murders as a special class of “capital murders” for which the death penalty should be retained have not proved successful. In practice, this led to an unacceptable degree of arbitrariness in terms of who was executed and who was not.

It is precisely when there are strong reactions to serious crimes that the use of the death penalty as an instrument of crime control is most dangerous. Pressure on the police and prosecutors to bring offenders to justice — especially those suspected of committing outrages — may lead to shortcuts, breaches of procedural protections, and simple myopia in investigation once a suspect is identified. This makes miscarriages of justice more likely.

These problems appear to be endemic to the systematic use of the death penalty, and not simply a reflection of human error or faults in the administration of criminal justice in a particular country. For many abolitionists, even the smallest possibility that an innocent person could be executed is an unacceptable breach of the right to life.

It is sobering that the commission set up by then-Illinois governor George Ryan to investigate why there had been so many wrongful convictions in that state concluded that “no system given human nature and frailties, could ever be developed or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death.”

But although the risk of error is a key lever in the human rights case against capital punishment, those committed to the cause contend that even if the system could be made “foolproof” it would still be indefensible. Abolitionists who believe that all citizens have a “right to life” argue that the issue cannot be left to public opinion because the public may not be fully informed as to the consequences of employing capital punishment. Most abolitionists also contend that the means could never justify the ends: For them, serious crimes can be prevented more appropriately and effectively by tackling the factors that contribute to them rather than relying on an inhumane punishment.

There remains a large gap between believing that some persons “deserve to die” for their crimes and believing that a state system for the administration of capital punishment can be devised that meets the ideals of equal, effective, procedurally correct and humane justice and protects the right to life and freedom from cruel, inhumane and degrading punishments. Civilized societies seek to secure these rights for their citizens — even those who have committed the worst of crimes.

Now that Taiwan has suspended the execution of those sentenced to death, it is time to take the final step. Experience shows that once abolition becomes permanent, support for capital punishment among politicians and the public subsides. In the generations thereafter, it comes to be regarded as an unacceptable, uncivilized cruelty of the past.

Roger Hood is professor emeritus of criminology at the University of Oxford and an emeritus fellow of All Souls College Oxford. He has also served as a consultant to the UN on capital punishment.