Should The Death Penalty Be Abolished?

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...