Published by the Current Law Journal: Should the Death Penalty be Abolished?  1 CLJ 25
Viewed coolly, opinions whether they be for or against capital punishment are emotional, and not rational. Pro and con arguments attempt to justify rationally an emotional inclination. On the one hand, neither criminologists nor law enforces can quickly agree that the existence of capital punishment discourages capital crimes. On the other hand, facts do not support the familiar argument that an innocent man may fall victim to made-up evidence or to a vindictive jury.Most humane persons would prefer to take their stand on the basis of facts rather than feelings. It is the object of this paper to look into the facts and to discuss the basis for punishment in general, the function and rationale of capital punishment, forms of capital punishment, and capital offences and finally the arguments for and against the abolition of the death penalty. This paper will also look into the position of the death penalty existing in other countries only as a means to compare and contrast the position of capital punishment in Malaysia.
Theories of Punishment
In any discussion on the aims of sentencing, attention has been drawn to the fact that “sentencing is becoming a more complex task”. The old idea that a sentence was right if it was proportionate to the offender’s culpability was no longer an answer to the problems facing the sentencer. Modern ideas on the objects of punishment frequently required a difficult choice between a sentence reflecting the gravity of the offender’s crime and one which would serve some other purpose.
Five principal theories or objects of sentencing have been recognised:
1. To fit the punishment to the crime – the retributive or denunciatory theory of punishment;
2. To deter potential offenders by example from committing the same offence – general deterrence;
3. To deter the particular offender from offending again – specific deterrence;
4. To prevent the particular offender from injuring society again by incarcerating him for a long period – the preventive theory;
5. To enable the offender to take his place as a responsible and law-abiding member of society – the rehabilitative theory.
The practice of punishing an individual for having committed a criminal wrong is as old as civilisation and this practice still continues today, though in not so barbaric ways. With the increase in population, there has been a corresponding increase in the crime rate and there is a dire need for society to curb, if not to eradicate, such criminal occurrences. This has led to the imposition of stiff penalties under criminal laws with the ultimate in the punishment of the criminal offender. Many countries in the world today, including Malaysia, have legislated laws that state expressly that certain offences are capital offences for which the punishment is the death penalty. However, in some countries such as Belgium, Sweden and Brazil, where the death penalty has been abolished, the alternative is long term imprisonment.
Capital Punishment: A Life and Death Issue
Capital punishment means “the officially authorised execution of the death penalty on persons determined by appropriate legal procedures to have committed a criminal offence”. So defined, capital punishment is presently a prominent feature of the administration of criminal justice in many nations of the world and has typically, although not invariably, characterised the criminal law since the beginning of recorded history. Capital punishment, as opposed to corporal punishment, is the punishment of an offender to the extent that his life is forfeited. For his wrong-doings, especially as against the State, the State claims his life in retribution for the wrongs so committed.
Theories on the Function of Capital Punishment
The antiquity of capital punishment is clearly revealed in provisions of the earliest written legal codes and it is quite obvious that capital punishment has a very important role or function in society on the whole because if it was not so, it would not be sanctioned by law and remain on the statute books of the many countries that have capital punishment over the years. According to Heinrich Oppenheimer, in “The Rationale of Punishment”1, there are four theories regarding the function of capital punishment. These theories of capital punishment and punishment in general are:
1. The theory of determent
2. The theory of reformation
3. The theory of disablement
4. Feuerbach’s theory
If execution is the most severe punishment, it will be the greatest determent. The theory of determent states quite clearly that the aims of capital punishment and other punishments in general, is to strike terror into the heart of a wrongdoer or malefactor in order that he might be brought to his senses and be taught in future to obey the law; in other words, determent is but an instrument of reformation. According to Ernest Van Den Haag, “justice, a rational but non-utilitarian purpose of punishment, requires that it be proportioned to the full gravity of the crime”. However, it is obvious that in the case of a death penalty, the wrongdoer would have no chance at all to reform. Capital punishment would thus act as a deterrent in the sense that others are deterred from committing the crime from which the criminal is seen by society to suffer. For this to be most effective, it has been argued that capital punishment should be carried out publicly as this would allow the spectators to witness the pain of the death penalty, and would thus deter them from crime. The basis of this theory is founded on two assumptions. Firstly, the potential offender will act rationally in his own best interest and seek to avoid pain. Secondly, that the offender will remember past experiences and anticipate the consequences of his intended future action. For these reasons, life imprisonment and the death penalty have been almost universally used to instil the necessary element of fear in the minds of potential wrongdoers and criminals.
The position with regard to this theory, however, is rather unsettled today. It has been, and is much more, a controversial theory now than before. This is an issue on which it is extraordinarily difficult to find conclusive arguments either way – for it, or against it. Those in favour of capital punishment as a deterrent rigidly maintain that capital punishment is a very potent deterrent which no other form of punishment has. Their attitude can be summed up in the words of Sir James Fitzjames Stephen2:
No other punishment deters men so effectually from committing crimes as the punishment of death … In any secondary punishment, however terrible, there is hope; but death is death; its terrors cannot be described more forcibly.
According to this theory, capital punishment is about the only way to reduce criminal offences like murder, rape, armed robbery and treason as the fear of the death penalty in retribution would deter potential criminals.
The theory of reformation with regard to punishment other than capital punishment in its widest sense, means such a change in the criminal’s mind and habits that he will not offend again. In the case of capital punishment, the offender obviously would not have a chance to reform but it would make others reform and this, in turn, would hopefully serve as a deterrent. Since capital punishment excludes rehabilitation and is not needed for incapacitation, the remaining rational – utilitarian purpose would be deterrence, the reduction of the rate at which the crime punished is committed by others.
According to the theory of disablement, depriving offenders of the power of doing future mischief is among the more prominent of the motives for which punishments are inflicted. Long term imprisonment and the death penalty serve its purpose. The rationale behind long term imprisonment is that, when the convict leaves prison, he would be much too old in body and in spirit, to commit crimes again. The death penalty is often considered as the complete and ultimate realisation of the principle of disablement. This reasoning arises due to the fact that capital punishment has the effect of permanently eliminating the criminal. Critics of this theory have been quick to point out that if this theory works as well in practice as it does hypothetically, then it would mean that all long term convicts, when released, would have discarded their criminal tendencies. However, as can be seen in practice, many of such convicts invariably return to their former lifestyles, and this is enough for many to consider this theory as rather unsound.
Among the many philosophers who have written much about punishment and, capital punishment in particular during the last century, few made mention regarding the relationship between the criminal laws, punishment, and the criminal in the sense that they are complementary to one another. A distinguished German philosopher who did this was Anselm Von Feuerbach. He propounded the theory that men can be prevented from committing crimes if they are made to realise the implication of the laws and the threat that such laws pose to them. In his famous work, he says:
All offences have their psychological origin in the sensual sphere in as much as man’s desire are moved to action by the pleasure to be derived from, or to be gained through, such action. This sensual impulse can be checked by the knowledge that the act will be followed, unavoidably, by an evil greater than the pain resulting from the suppression of the impulse to action … The object of the legal threat of punishment is to deter all, as possible offenders, from violating the law. The object with which it is actually inflicted is to render the threat of the law effective, since without such execution, it would remain an empty threat3.
In general, this theory emphasises the necessity of creating awareness among the members of society that they would be punished if they were to commit a criminal wrong. The threat of having the death penalty pronounced upon an individual should serve as a deterrence and the actual execution of the penalty is proof that this legal threat is not an empty threat. Through the years this theory received much criticisms, many for it and many against it. The arguments against it in essence is that the law would seem to be very harsh upon the people if they were to be severely punished for even minor criminal offences (the theory in fact advocates stringent punishments). Many critics also say that the theory refutes itself in that every crime committed proves the threat to be futile. It is for this that they argue that capital punishment does not serve its function as propounded by Feuerbach’s theory.
Forms of Capital Punishment
Since time immemorial, many methods were employed to execute a person condemned to death. Among the more popular and frequently used methods were:
(f) Pouring on molten lead
(h) Tearing to death by red-hot pincers
(l) Burning alive
(m) Burying alive
(n) Spearing alive
(o) Throat slitting
(p) Boiling to death
In many countries today, especially in militarily-governed countries e.g. Philippines and Thailand, and communist countries e.g. China and Cuba, the standard practice in execution is by firing squad.
In some of the Muslim states (e.g. Saudi Arabia, Bahrain, Iran), the method of execution by beheading as set out in the Koran is still being practised today.
The more modern and humane society today employs the less gruesome methods of execution. In fact, there are only five methods that are used now. They are:
(4) Gaseous asphyxiation
In Europe, beheading has become less employed and about the only countries that still make use of the guillotine are France and Belgium (though there has been no executions, apart from the First World War, since 1863). There has been much debate in France regarding the abolition of the use of the guillotine and if it is decided that this method of execution is abolished, then this method would join many more in absolescence.
In the United States of America, only four forms of execution are sanctioned, and they are hanging, shooting, electrocution and gaseous asphyxiation.
In England and many other countries, hanging still ranks as the main method of execution. Hanging is, in fact, the oldest form of capital punishment4. It displays the victim to the public in the most discreditable and degraded of postures and would thus be likely to enhance the deterrent effect of this punishment on anyone who might be tempted to do what the victim had done. Execution causes by this method a slow and distressing death by suffocation; the victim’s last agonies would be a warning not soon forgotten by many who watched them. However, now that most executions are done within prison perimeters and closed to the public, as is done in prisons in Malaysia, few have the chance of witnessing such executions apart from those involved with the executions.
Crimes Punishable by Death
(A) In Other Countries
(B) In Malaysia
(A) Centuries ago in England and Europe, a person found guilty of theft of even an apple, could be, and often was, sentenced to death. In fact, the death penalty was decreed for several hundreds of offences mostly against property and person. Fortunately, the harshness of the law on petty offences gradually diminished over the years and today only the most serious offences warrant the death penalty.
The question then to be asked is:
What Criminal Offences in today’s modern society warrant the death penalty?
This issue is not definite and is rather subjective as it varies from country to country. A crime that may justify the death penalty in one country may not in another. As it is beyond the scope of this paper to look into the details of the various types of such offences in every legal system, a simple study will be made in general, with particular attention to Malaysia.
In France, capital offences include assassination, parricide, poisoning, perjury resulting in a death sentence, premeditated infanticide by someone who is not the mother, homicide connected with another serious crime, and intentional arson leading to another’s death.
In Japan, murder and parricide warrant the death sentence.
United States of America
In the United States of America, many offences other than first degree murder are punishable with death. Among these are lynching, arson, train robbery, killing a woman by abortion, supplying heroin to a minor and even desecration of a grave. Despite all these offences, the death penalty has not been inflicted on these crimes in recent times. Since 1930, capital punishment has been inflicted for only seven types of offences:
(3) Armed Robbery
(7) Assault by a life term prisoner.
History was made recently when, on 10 March 1981 killer Stephen Judy was executed in Indiana by electrocution for the murder of a young woman and her three small children. Judy became the fourth person to be executed in the United States of America since the U.S. Supreme Court revived the death penalty in 1976 and the first person to be executed in Indiana in twenty years.
In England, murder as defined by the Homicide Act 1957, s. 5, was a capital offence, but that section has been repealed by the Murder (Abolition of Death Penalty) Act 1965. As such, the punishment for murder today is life imprisonment. As of date, the only capital offences are treason, as provided for by the Treason Act 1945 (which amended the Treason Act 1800), and an act endangering life committed in connection with or in furtherance of piracy (Piracy Act 1837, s. 2). The punishment for treason is hanging unless the Crown sees fit to alter the sentence to beheading (Treason Act 1913; Forfeiture Act 1817, s. 31)5.
Many communist countries consider the following capital offences punishable with death:
(b) The killing of an official or public employee in order to undermine the republic or socialist progress
(c) Counter revolutionary activities undermining defence
(d) Armed insurrection
(g) Destruction of important economic installations, or
(h) Injury to means of production to undermine the Government.
Apart from these, there are many other offences that carry the death penalty.
Most countries have separate laws for their military. Normally, in such laws, treason, espionage, sabotage, looting, desertion, etc. may warrant capital punishment especially during times of war.
In Malaysia, there are quite a number of offences which carry the death sentence. Among such offences are those found in the Penal Code, the Internal Security Act 1960 (Revised 1972), the Dangerous Drugs Ordinance 1952, the Firearms (Increased Penalties) Act 1971 and the Kidnapping Act 1961. The offences in these Acts will be dealt with in some detail.
Penal Code – It is provided in the Penal Code that the death penalty may be imposed for the following offences:
Section 121 – Waging or attempting to wage war or abetting the waging of war against the Yang Di Pertuan Agong, or Ruler or Governor.
Section 121A – Offences against the Yang Di Pertuan Agong’s person.
Section 132 – Abetment of mutiny, if mutiny is committed in consequence thereof.
Section 194 – Giving or fabricating false evidence and procuring a conviction and execution for innocent man of a capital offence or such false evidence.
Section 302 – Punishment for murder (death is the only penalty).
Section 305 – Abetment of suicide of a child or an insane person.
Section 364 – Kidnapping or abducting in order to murder.
Section 396 – Gang robbery with murder.
Internal Security Act 1960
This Act has provisions that make death the sentence under three sections, namely s. 57(1) for being in unlawful possession of firearms or ammunition in any security area, s. 58 – for consorting with a person being in such unlawful possession of firearms or ammunition and s. 59 which deals with offences relating to supplies. The death penalty is mandatory upon conviction of an offence under s. 57(1) of the Act.
Dangerous Drugs Ordinance 1952
In view of the increase in recent years in the illegal trafficking of dangerous drugs like heroin and morphine within and without the country, the Government has amended the Dangerous Drugs Ordinance several times. In one such amendment, the Dangerous Drugs (Amendment) Act A 293 of 1975, the death penalty was introduced into the Ordinance by virtue of s. 39B.
It is of interest to note that in Singapore, the Misuse of Drugs Act 1973 also carry the dealt sentence for illegal drug trafficking. A recent case where ss. 2 and 3 of this Act were applied was that of Lee Kim Keong v. PP  2 MLJ 141. In this case, the appellant was convicted and sentenced to death by the High Court for the unauthorised trafficking in a controlled drug (diamorphine).
Firearms (Increased Penalties) Act 1971
Offences under the Act which carry the death penalty are:
Section 3 – Penalty for discharging a firearm in the commission of a scheduled offence;
Section 3A – Penalty for accomplices in case of discharge of firearm;
Section 7 – Penalty for trafficking in firearms.
The death penalty is mandatory on conviction of offences under ss. 3 and 3A of the Act.
Kidnapping Act 1961
Section 3(1) of the Act provides that abduction, wrongful restraint or wrongful confinement of a person for ransom shall be punished on conviction with death or life imprisonment.
Arms Act 1960 (Revised 1978)
Penalty for manufacturing arms or ammunition without licence and for breach of conditions of licence.
The following two tables show the number of persons convicted of capital offences under the above mentioned laws in Malaysia and the number of persons who were in fact executed over a ten-year period from 1970 till todate.
Table I: Number of Persons Convicted For Capital Offences
Year Penal Code Firearms Increased Internal Security Dangerous Drugs Total Penalties Act 1972 Act 1960 Ordinance 1952
1970 10 – – – 10
1971 – – – – –
1972 1 – – – 1
1973 4 – – – 4
1974 2 1 – – 3
1975 – – – – –
1976 2 – 3 – 5
1977 1 3 43 – 47
1978 3 – 1 – 4
1979 2 2 3 4 11
1980 5 1 15 10 31
1981 – 2 4 1 7
Total 30 9 69 15 123
(up to 18 April 1981)
Table II: Number of Persons Executed
Year Penal Code Firearms Increased Internal Security Dangerous Drugs Total Penalties Act 1972 Act 1960 Ordinance 1952
1970 1 – – – 1
1971 – – – – –
1972 – – – – –
1973 4 – – – 4
1974 2 – – – 2
1975 – – – – –
1976 – 1 – – 1
1977 – – – – –
1978 1 – – – 1
1979 – 1 – – 1
1980 3 – 8 1 12
1981 – – 9 – 9
Total 11 2 17 1 31
(up to 18 April 1981)
Note:- (a) Conviction and death sentence quashed 6
(b) Commuted to life imprisonment 30
(c) Commuted to a term of imprisonment 1
(d) Commuted to be detained under Yang Di Pertuan Agong’s pleasure 1
(e) Sentence of death already carried out (executed) 31
(f) Number of condemned prisoners in custody at the present moment 123
In Malaysia, the method of execution is clearly defined and set out in s. 277 of the Criminal Procedure Code FMS Cap 6, that: “When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.”
This has been, and still is, the practice today to execute condemned persons.
The Criminal Procedure Code provides for an exception to a class of persons who cannot be sentenced to death. By virtue of s. 275, if a woman who is convicted of an offence punishable by death, is found to be with child, the sentence to be passed upon her shall be a sentence of imprisonment for life instead of death.
Up to 1978, it was thought that by virtue of the provisions of ss. 82 and 83 of the Penal Code, juveniles who were convicted of capital offences would not be sentenced to death. Section 82 of the Penal Code provides for the age of criminal responsibility of a child i.e. nothing is an offence which is done by a child under 10 years of age. Section 83 further provides that nothing is an offence which is done by a child above 10 years of age and under 12, who has not attained sufficient maturity of understanding to judge the nature and consequence of his conduct on that occasion.
However, legal history was created in the case of Lim Hang Seoh v. P.P.7 where the offender Lim, a fourteen-year old boy, was convicted and sentenced to death for possession of a pistol and ammunition, under s. 57 of the Internal Security Act. This case, no doubt, created quite a stir and reaction among the legal fraternity and the public as well. On appeal, the sentence was upheld by the Federal Court. However, the sentence was finally commuted and the offender sent to the Henry Gurney School. This case clearly shows that juveniles are on an equal footing with adult offenders where capital punishment is involved.
Case for and Against the Abolition of the Death Penalty
The question whether or not the death penalty should be abolished must be as old as the legal systems that have the death penalty as a punishment, and right up to today, this question is still being raised and whenever raised, it will, no doubt, spark off a lively and emotional debate as to whether the death penalty should finally be removed from the statute books.
The death penalty can be defended or criticized on grounds of either justice or utility. By “justice”, it means consideration of fitness and fairness: death either is or is not a fitting, appropriate or necessary punishment for those who commit certain kinds of crimes, and such punishment either can or cannot be fairly administered. The biblical injunction, “an eye for an eye” is an argument for death on grounds of justice; so also is the argument that the supreme penalty is the only appropriate response to the supreme crime of homicide because we cheapen the value of human life if an innocent victim dies while his convicted murderer lives. Abolitionists, on the other hand, will argue that human life is sacred and may never be taken deliberately, even by the State. Further, society ought not to encourage sentiments of vengeance or cater to morbid interest in ritual executions!
However, this issue is becoming an antiquity and of academic interest only in the many countries that have already abolished the death penalty. These countries include Venezuela (1863), Costa Rica (1880), Brazil (1891), Panama (1903), Norway (1905), Uruguay (1907), Columbia (1910), Sweden (1921), Switzerland (1942), Iceland (1944), Italy (1944), Finland (1949), the Federal Republic of Germany (1949), and England (1965, for murder), Argentina, the Dominican Republic, and Mexico (in all but four of the states).
In Australia, the State of Queensland abolished capital punishment in 1922 and in New South Wales, it has been abolished for murder in 1955.
In the United States of America, many states have abolished the death penalty. Among them are Maine (1876; 1887), Alaska (1957). Hawaii (1957) and Michigan (1963).
In Europe, the death penalty is applied in many countries of eastern Europe and the Balkans, but it has been substantially abolished in all of western Europe except France, Greece and Spain. It is retained in Canada.
As for Asian and African countries, as at 1970, the death penalty remains as a form of punishment except for Israel which abolished capital punishment in 1954 (except for offences of treason and Nazi collaboration). Nepal abolished the death penalty in 1931.
In view of the many countries that have abolished the death penalty, the issue that other countries in the free world should follow suit, commands real attention. Those who argue against abolition will highlight the pros of the death penalty while those who advocate abolition will highlight the ugliness of capital punishment.
The Retention Movement
The Deterrence Viewpoint
In brief, people are believed to refrain from crime because they fear punishment. Since people fear death more than anything else, the death penalty is the most effective deterrent, so runs the argument. It is further alleged that the effectiveness of the death penalty as a deterrent depends both on its certain application and on knowledge of this fact in the population; hence, the argument continues, regular use’ of the death penalty increases its deterrent value. The point has often been made that it is not so much the legal existence of the death penalty that deters potential murderers, but rather the certainty of its being used. In fact, a common criticism of the death penalty is that juries do not convict readily if the punishment is death, thereby reducing the certainty of punishment, and, in consequence, its deterrent value.
One of the most common arguments advanced against the death penalty is that it is not a superior deterrent to potential homicide offenders, as compared to alternative punishments. While no one has conclusively proven that the death penalty has greater deterrent effectiveness than alternative punishments, neither has it been shown that the death penalty is not a superior deterrent to homicide.
The supporters of capital punishment will rigidly maintain that it has a unique power to deter others from committing crimes. They also argue that capital punishment eliminates the “bad and unwanted elements” in society and with the destruction of such elements, they would not be able to pollute other living persons in prison (if they are sent to prison) or outside prison. Capital punishment is also considered the just retribution to heinous crimes like murder and rape. In the final analysis, the case against the abolition of the death penalty lies on one paramount singular reason that death is the most potent deterrent to would be offenders. For in words of Sir James Fitzjames Stephen (supra):
No other punishment deters men so effectually from committing crimes as the punishment of death.
It was largely on the grounds of this sort that the death penalty was recently (1950) restored in New Zealand and after a ten – year period of abolition.
Effectiveness of Capital Punishment
In the controversy over capital punishment that has persisted throughout the civilized world since the eighteenth century, the arguments have generally been of two sorts. The first are assertions based upon conflicting versions of moral, religious and humanitarian grounds, and the second may be described as “utilitarian arguments” advanced to demonstrate moral gains or losses deriving from a system of capital punishment.
Abolitionists have frequently pointed out the irrevocable nature of the death penalty which prevents the State from justifying miscarriages of justice in cases of conviction of the innocent. Retentionists, on the other hand, have urged that the death penalty is essential because of its deterrent consequences. It should be noted, however, that the crucial issue is not whether any deterrent potential can fairly be ascribed to the death penalty but whether capital punishment posesses a deterrent efficacy lacking in rather less drastic, non-lethal punishments suitable to the State when maintaining law and order.
Social and Economic Costs
In the United States in 1979, public opinion supported utilisation of the death penalty. A Gallup survey found that 65% of the population favoured the death penalty while only 28% opposed its use.
Objection to the utilisation of the death penalty on the grounds that offenders can be rehabilitated is also without basis. Retentionists argue that rehabilitation does not work, but that we have continued to believe that it can use it is more pleasant to believe that we are rehabilitating than it is to know we are punishing!
The fact that the death penalty is irreversible has also been cited by some as an argument against its use. They claim that, since it is possible for an innocent person to be executed, it is better not to execute anyone. The chances of executing an innocent person, however, are extremely slim. It has been argued by retentionists that the risks of not executing are greater than the risk of executing.
In the United States, the amount of money sent to maintain in prison about 3,000 persons annually convicted of first-degree murder is much greater than the cost of execution. A low estimate of the cost to maintain an individual in prison for one year is US$10,000. Assuming an average of twenty years in prison for murderers, the American society annually assumes a US$600,000,000 responsibility, to maintain the 3,000 murderers in any one year in prison for the next twenty years. This is for maintenance only and does not allow for construction costs and inflation! American society could no doubt benefit more if this large amount of money were used in any of many other ways.
The Value of Life
The death penalty does not cheapen life – it increases the value of life and elevates the importance which we attach to it. Imposition of the death penalty underscores society’s interest in maintaining law and order and an honourable life rather than chaos and a dishonourable life. The real reason that abolitionists oppose the death penalty is that they find killing of human beings under any circumstances deplorable. Murderers reduce the quality of life. They have taken life from innocent person/s and seriously reduced the quality of life for their victims’ families. By causing others to fear for their lives, the quality of life in society generally is also reduced. The large amounts of time, effort, manpower and money expended on murderers reduced the quality of life for those others who could have benefitted from such resources. Human life is of relative value. What is valuable about human life is the quality of life, not the mere fact of its existence.
The question that may then be asked:
Is there evidence for the usefulness of the death penalty in securing the life of the citizens?
Researchers in the past found no statistical evidence for the effects sought, i.e. marginal deterrent effects, deterrent effects over and above those of alternative sanctions. However, research has led Professor Isaac Ehrlich to conclude that over the period 1933-1969, “an additional execution per year … may have resulted on the average, in seven or eight fewer murders”.8
The Abolition Movement
For those advocating the abolition of the death penalty, there seem to be many and equally convincing reasons. The essential moral question: “Is the death penalty morally just and/or useful?”
The eighteenth century produced the beginnings of the movement to abolish the death penalty or greatly to reduce its use. The most important work of the period was “An Essay on Crimes and Punishments (1764)” written by Cesare Bonesana, Marquis of Beccaria (1738 – 1794). Beccaria was the first writer to urge the complete abolition of capital punishment, and this is perhaps the most influential volume of the reform of criminal justice ever published.
In the countries where capital punishment has been abolished, there is no evidence todate that there has been a significant and permanent increase in homicidal crimes as a result of abolition: in many, there has, in fact, been a decrease. The experience of these countries indicates that the death penalty need not necessarily be a deterrent. Further, there is no convincing proof that capital punishment is a better deterrent than any other form of punishment. It is only generally assumed to be so. As when the death penalty for murder was abolished in England in 1965, it was anticipated that the rate of murders would take a drastic turn for the worse. However, as can be seen, figures have in fact remained constant. Roy Calvert in “Capital Punishment in the Twentieth Century” had this to say: “It is obvious that capital punishment is no complete deterrent, for we still have murders. Obviously, if capital punishment were a complete deterrent, these murders would not have been committed.” As such, there is no valid reason why other countries that still retain capital punishment should not abolish it. Another reason for the abolition of the death penalty will be argued by the abolitionists that errors of justice could lead to executions of innocent persons, even though rare. But, with capital punishment abolished, this will never be feared.
To quote Jeremy Bentham:
Error is possible in all judgments. In every other case of judicial error, compensation can be made to the injured person. Death admits of no compensation.
But I think, if a man today is executed for a crime by the State, the likelihood is as close to a certainty as possible that the man committed the crime.
And in the immortal words of Lafayette:
I shall ask for the abolition of the death penalty until I have the infalability of human judgment demonstrated to me.
Yet in the words of Ernest Van Den Haag:
Justice requires punishing the guilty – as many of the guilty as possible, even if only some can be punished – and sparing the innocent – as many of the innocent as possible, even if not all are spared!
In today’s modern society where we all talk about human rights, it will be argued that it is barbaric and degrading to sentence another man to death; it violates the sanctity of human life and stands morally condemned. The duty of society is to redeem the offender, not eliminate him.
In 1972, the United States’ Supreme Court, by a vote of five to four, held that the death penalty as then imposed was a “cruel and unusual punishment” and thus, a violation of the Eighth Amendment to the Constitution. However, several States have meanwhile reinstated the death penalty in ways designed to meet what they take to be the Supreme Court’s objection. As of October 1974 twenty-nine States had already restored the death penalty.
On 17 January 1977, the execution of Garry Gilmore by firing squad in Utah was the first instance of the utilisation of capital punishment in almost ten years. Among the leading cases where the death penalty was challenged as being unconstitutional are People v. Anderson9, and Furman v. Georgia10. As a result, the sentences of over 600 persons condemned to death were altered to life imprisonment.
Probably the majority of those advocating for the abolition of the death penalty will share the sentiments expressed in the following words:
Life is real! Life is ernest! And the grave is not its goal.
Longfellow: A Psalm of Life
Longfellow’s thoughts reflect the fragility and ernestness of life. The short span, a period between birth and death bestows a man to live life as he so wishes and it is this freedom of choice that determines whether he lives it well or he lives it badly.
The prison is an institution of punishment whereby those men and women whose choices have led them to violate the safety and well-being of another individual, are confined within a strict environment as a penance for the “sins” committed in the eyes of the law, and within these walls of imprisonment, some are ruled to spend part of their lives in it, others a lifetime while even others are to face the hands of death in it.
The death penalty is of course handed out to criminals found guilty of the most horrendous acts that could ever be bestowed on another human being or for defying other certain strict penal statutes of the land.
While it has been established that a prison is a necessary institution for the safety of society, the question that must be considered is whether any crime can justify the taking of a life by any legal body.
Abolitionists will argue that the death penalty should be done away with as firstly, they believe that a man’s life is a very precious thing and no man, body or institution has the right to dispense with the life of another fellow being.
This then leads to the second reason in support of the abolition of the death penalty in that, all men of crime deserve and are owed a right to reform and conform to society’s code of behaviour within the legal context.
A crime committed is somehow always a culmination of an act that stems from “abnormal” sources, whether they be that of a disturbed childhood, a broken home or the complex psychological make-up of man, amongst others. More often than not, an act of crime has been done out of desperation, out of a need or on a sudden impulse of the moment as a reaction provoked.
Whatever the reasons are, and the reasons must be sought by the appropriate authorities, death is not the answer, to the problem. For crime is a social problem, and all problems should be worked at through sweat and effort instead of being got rid off.
For imposing death on one criminal will by no means lessen or guarantee the occurrence of the crime through another “disorientated” individual at some other time sooner or later.
Rather, while punishment has already been meted out in the form of a regimented life within closely guarded prison walls and the inability of the prisoner to live his life in freedom, there should be an equal effort in attempting to restore the wrongdoer on or more socially meaningful paths. Efforts should be made to try to pinpoint the actual reasons for the commission of the criminal acts, and subsequently approaching the problem with a view to reform the individual to the best of his ability.
A prison is an institution, not solely for dishing out punishments alone but far more importantly to provide its inmates in as far as it can, with a fresher and more hopeful insight into the purpose of survival. Thereby with this aim, no cause is ever lost and no wrongdoer is given up for good and led to the electric chair or the hangman’s noose.
Death, it would seem, would be the easiest way of dispensing of a few bad apples and in its severity justify itself that the crime committed is that of a totally unforgivable nature in the eyes of the law.
But crimes of such equal severity are subjective, as evidence in the varying circumstances in different countries where the death penalty is imposed. Thereby, there is no standard definition of the crime which merits the death sentence and justice should not demand that a man should pay for it with his life.
The hands of justice should rather direct itself to the serving of a sentence within the rigid, controlled environment yet incorporating measures in which there are opportunities for self-appraisal and self-development for the wrongdoer.
Where there is a glimmer for hope in the bettering of the human self so that the person becomes a useful contributor to society and to his fellow men, the glimmer should not be squashed, no matter what the degree of crime committed. And the glimmer of hope can only be seen when there is opportunity created for it, whereas death is definitive.
Albert Camus has called punishment society’s “revenge”. Such clear language does not permit society to mislead itself with talk of lofty motivations. Revenge resolves nothing. The victims of capital crimes deserve better monuments than more bodies in the graveyards. No civilized country should be able to tolerate one or two executions daily!
Warren Burger CJ has said:
In part the terrible price we are paying in crime is because we have tended, once the drama of the trial is over, to regard all criminals as human rubbish.
Those of us who cherish human life will join in mourning those who die needlessly at the hands of murderers. We should work in attempting to eliminate that sort of conduct. But we should not kill, even with the consent of the State. A free society can only be secure when each of its members honestly cares what happens to everyone else. No human being is rubbish. They all deserve to live, no matter what they have done.
It is significant to note that under a resolution on the question of capital punishment (32/61) the United Nations Assembly reaffirmed the main objective of progressively restricting the number of offences for which the death penalty might be imposed with a view to the desirability of abolishing that punishment, and urged Member States to provide the Secretary-General with relevant information for his preparation of the second five year report of 1980 on capital punishment, and of the report on the practices and statutory rules which might govern the right of a person sentenced to death, to petition for pardon, commutation or reprieve11.
One can debate forever the morality of the death penalty for after all the retention or abolition of the death penalty is more a moral issue than a legal one. There are sane, sensitive persons who will argue that the death penalty is a “barbarous instrument” and that its use indicates a lack of respect for human life. There are others, no less sane or sensitive, who will argue that not having a death penalty debases the value of life (for after all, what greater price can one assess for a life than a life?). Because I cannot think of a legal system that would not permit an Adolf Hitler to be put to death. I favour the latter argument.
I have attempted, in this paper, to present and discuss the views for and against the abolition of the death penalty in some detail. While the views so presented may tend to indicate a stronger inclination towards the abolition of the death penalty, I am however, essentially a retentionist.
I subscribe to the theory of determent in the punishment of offenders and that if execution is the most severe punishment, then the death penalty will be the greatest deterrent.
Although I hold the view that the law enforcement authorities should be given every encouragement and power in their efforts to combat crime, and that the Courts should pass deterrent sentences to reflect the gravity of the offences and public interest a line must, however, be drawn between what crimes warrant the death penalty and which do not.
At the same time, it cannot be denied that the global trend today is to progressively restrict the number of offences for which the death penalty might be imposed with a view to the desirability of abolishing that punishment.
Speaking primarily of the position in Malaysia today, I am of the view that only three types of offences, namely “treason”, homicide and drug trafficking, warrant the death penalty and ought to remain on the statute books as capital offences. No doubt when discussing this topic in the Malaysian context, emphasis might be laid on the social, economic, cultural and political background of the Malaysian populace. It is with these considerations in mind and the views expressed for the Retention Movement that the death penalty should not be abolished for homicide and drug trafficking, offences which I hold to be the most heinous and horrendous of crimes-offences which involve the taking of human life or the debasing of the value and quality of life; and for “treason” – an offence which involves the sovereignty of the nation and the concept of rule of law.
I am of the opinion therefore that for the rest of the present offences which carry the death penalty, the best alternative would be life imprisonment, which in fact is the substitute for the death penalty in the countries that have abolished capital punishment. I say this since these offences do not involve the taking of human life or the debasing of the value and quality of life but are committed primarily for monetary or political gains for which the penalty of life imprisonment would be a sufficient punishment and deterrent to the offenders themselves and other would be offenders.
To further enhance the deterrent effect of the death penalty in this country for the three offences enumerated above there should be more public sentiment and awareness of the executions when carried out. Short of having executions in public there should be better coverage by the mass media. As it is now, the execution of a condemned person in our jails attracts no more attention from the press than a couple of lines of the news in brief. Bearing in mind that the deterrent value of the death penalty lies not so much in the legal existence of it but rather in the certainty of its being used – that it is not an empty threat – the maximum deterrent value of the death penalty can only be achieved if it is brought to the attention of the public sufficiently to demonstrate the severity of this penalty.
In the final analysis, the main issue remains that of justice – the main point is not whether capital punishment prevents future crimes, but whether it is a proper and fitting penalty for crimes that have occurred. That is probably as it should be, for such a question forces us to weigh the value we attach to human life against the horror in which we hold a heinous and horrendous crime. Both that value and that horror change with time.
1. Montclair, NJ: Patterson Smith, 1975
2. “Capital Punishments” in Fracer’s Magazine, Vol. LXIX, June 1864, p. 753
3. Oppenheimer, ‘The Rationale of Punishment’, p. 266
4. Berkson, ‘The Concept of Cruel and Unusual Punishment’, p. 21
5. Osborn’s Concise Law Dictionary, 6th Edn., p. 64
6. Statistics from Ibu Pejabat Penjara, Taiping – 18 April 1981
7. 1978 MLJ (1) 68
8. As quoted in Calvert, “Capital Punishment in the Twentieth Century”, p. 120
9. 64 Cal. 2d. 633 Cal. Rept 238
10. 408 US 238  at p. 239 – 240
11. Assembly Adopts Resolution on Crime Prevention. Capital Punishment. UN Monthly Chronicle, January 1978
12. Poins of view or opinions stated in this paper are my own and do not represent the official position or policies of the Attorney-General’s Chambers.