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Is Capital Punishment Justified?

Mistakes can and have been made and, in maintaining the death sentence, innocent people will be killed

by Prema Devaraj


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death_penalty (2K)
Mistakes can and have been made
n the US state of Illinois, the Governor recently commuted the death sentences of 167 death-row prisoners to life imprisonment instead. It was a highly controversial decision. But it shouldn’t have been seen as surprising. States and countries around the world are slowly but increasingly abandoning the death penalty as an instrument of punishment.

For the Governor of Illinois, the decision had followed the earlier pardoning of four death-row inmates because they had, in his opinion, been tortured into confessions. Illinois had instigated a thorough review of the death penalty three years earlier, after it was found that 13 people had been wrongly convicted. The whole system, it was concluded, was “haunted by the demon of error”.

In Malaysia, of course, the death penalty still exists and is still used. Indeed, people are constantly exhorting that its use should be extended, constantly saying that it is the appropriate punishment for even more crimes. You will recall statements made recently, for example, in relation to the issue of incest and rape. Why? Why are we so keen on imposing the ultimate sentence, so keen on sanctioning the killing of another person through the enactment of certain laws? Why, when the experience and evidence from states such as Illinois should encourage us to do exactly the opposite: to give very, very careful consideration to the justification and use of the death penalty, with a view to its curtailment.

These are questions which have pre-occupied countries around the world. And we can and should note that the majority of countries have actually abolished it, though there are still a substantial number who maintain its use, Malaysia among them. According to Amnesty International, 76 countries and territories have stopped using the death penalty completely. Fourteen countries have abolished the death penalty for all but exceptional crimes such as wartime crime and 20 countries can be considered abolitionist in practice. This means that they retain the death penalty in law but have not carried out any executions for the past 10 years. In other words, 110 countries have abolished the death penalty either in law or practice and 85 other countries retain and use the death penalty.

Amnesty further reports that in 2000, 1,457 prisoners were executed in 28 countries and 3,058 people were sentenced to death in 65 countries. These figures constitute just the known cases. A breakdown of these figures shows that 88% of the executions took place in China, Iran, Saudi Arabia or the USA.

The Situation in Malaysia

Under Malaysian law, the death penalty is mandatory for some offences and discretionary (the judge decides) for others. Table 1 lists the offences for which the sentence is a mandatory death penalty. Table 2 lists offences for which the death penalty is up to the judge.

According to the National Human Rights Commission (Suhakam), 159 people are currently on death row pending appeal. There are also cases of prisoners being in jail for more than 10 years after being sentenced to death (Malaysian Human Rights Report 2001, SUARAM). According to the Deputy Home Minister, Zainal Abidin Zin, between 1970 and October 2001, 359 death sentences were carried out. The majority were for trafficking in dangerous drugs.

So what are the arguments for and against the death penalty? Here is a brief presentation of the major ones. We hope you can take this chance, whatever your persuasion as to the rights and wrongs of the death penalty, to review and think about the assumptions on which justification for the death penalty is based.

For The Death Penalty
  1. Retribution - The taking of a criminal’s life allows society to show convincingly that certain crimes will not be tolerated. They are considered so heinous that executing the criminal is the only reasonable response.


  2. Deterrent - Potential criminals will think twice before breaking the law for fear of losing their life.


  3. Safety - Once a convicted criminal is executed, we don’t have to worry anymore about that person. There is no chance of them escaping or getting parole or somehow coming out of jail, to repeat their crimes.


  4. Cost - Once someone is executed and buried, there are no further maintenance costs to the state.


  5. Value of human life - “It is by exacting the highest penalty for the taking of human life that we affirm the highest value of human life “ (Edward Koch)


  6. Justice for the victim and their families - The rights of the victims are more important than the rights of the criminal. Although the victim and the victim’s family cannot be restored to the status which preceded the crime, at least an execution brings closure to the criminal and closure to the ordeal for the victim’s family.

Table 1: Mandatory Death Penalty in Malaysia
Offence Legal Provision which provides for mandatory death penalty
Trafficking in dangerous drugs Section 39(B) of the Dangerous Drugs Act 1952
Discharging a firearm in the Commission of a scheduled offence Section 3 of the Firearms (Increased Penalties) Act 1971
Accomplices in case of discharge of firearm Section 3A of the Firearms (Increased Penalties) Act 1971
Offences in Security Areas for possession of fire-arms, ammunition and explosives Section 57(1) of the Internal Security Act 1960
Offences against the Yang di-Pertuan Agong’s person Section 121A of Penal Code
Murder Section 302 of Penal Code
Many of us may sympathise with at least some of these arguments. Some of us may particularly like the “eye for an eye” argument. Others may justify the existence and use of the death penalty on the basis of its acting as a deterrent – despite the evidence to the contrary. It is hoped that the arguments implied in (3) and (4) above are not used as the main justifications for the taking of a human life – the logic of (4) would lead us to abolish all sorts of state expenditure and by the way underestimates the actual costs involved.

Statement (5), elevating the discussion to a more philosophical plane, may be matched by a statement from Amnesty: “Central to human rights is that they are inalienable.... they are accorded equally to every individual regardless of status, ethnicity, religion or origin. They may not be taken away from anyone regardless of the crimes a person has committed. Human rights apply to the worst of us as well as to the best of us, which is why they are there to protect all of us. They save us from ourselves”.

Table 2: Discretionary Death Penalty
Offence
Abduction, wrongful restraint, wrongful 1 confinement for ransom (kidnapping) Section 3 of Kidnapping Act 1961
Consorting with person carrying or having possession of arms or explosives Section 58(1) of Internal Security Act 1960
Waging or attempting to wage war or abetting the waging of war against the Yang di-Pertuan Agong, a Ruler or Yang di-Pertua Negeri Section 121 of Penal Code
Courtesy of Sitham and Associates, Advocates & Solicitors, Penang
And the increasing concern in countries such as the USA and UK about the rights of the victim, completely understandable, has also been the subject of much study. The argument that the death penalty allows for “closure” is by no means proven; in many cases, it has made little difference to the victim and/or their families and loved ones and, in some cases, where there is doubt as to whether the right person has been convicted, it only makes matters worse.

These are matters well worth thinking about. They are difficult but crucial issues. Let’s attempt to summarise briefly the arguments against the death penalty.

Against the Death Penalty
  1. 1. End the Cycle of Violence - The death penalty only serves to further brutalize society. Vengeance is a strong and natural emotion but the demand for a life in retribution should have no place in a civilized justice system. Our aim should be more humane and holistic responses to the growth of (violent) crime, including paying attention to root causes such as poverty and injustice.


  2. 2. Lack of Deterrence - The overwhelming conclusion from years of deterrence studies is that the death penalty at best is no more of a deterrent than a sentence of life in prison. Murders are often committed in the heat of the moment. Not much thought is given to the punishment at that particular time.


  3. 3. Value of human life - Far from enhancing the value of human life, the death penalty lowers it. It violates the belief in the human capacity to change (i.e. negates the principle of rehabilitation of offenders) and reinforces the idea that killing is a reasonable response to those who have wronged us.


  4. Cost - There are costs, for example to maintain state of the art execution techniques and personnel and huge costs in terms of the inevitable series of appeals through the court system.


  5. Unfairness - The death penalty is prone to being unfairly administered. Many argue that those facing capital punishment are not the worst offenders but merely the ones who may suffer from prejudice against them (for example, racism) and/or with the fewest resources to defend themselves.


  6. Chance of Error - No justice system is infallible. There are very many instances where the wrong people have been convicted and killed, by us, the state. How can we possibly justify this?
I would like us all to accept that the strength of the arguments of (1), (2) and (3) from above and abolish the death penalty on that basis. But over and above the philosophical arguments, it is the practical administration of the death sentence which may unite us all against the death penalty. Human beings are not infallible. Our prison and justice systems are not infallible. Mistakes can and have been made. And, in maintaining the death sentence, innocent people will be killed, their lives taken away, their families and loved ones as devastated as those of victims we seek to protect.

The situation in Illinois is not exceptional. The Governor’s decision was greeted with relief by many campaigners against the death penalty. “It is a system that suffers from flimsy evidence, police misconduct and the influence of race”, as one of them put it. DNA testing has cast new doubts on the reliability of old convictions and so-called confessions of accused criminals. As mentioned earlier, worry that confessions may be extracted in a way which make them highly reliable had helped change the Governor from a supporter of the death penalty to someone who doubted its efficacy. As he wrote to the victims’ families: “I am not prepared to take the risk that we may execute an innocent person.”

In Malaysia, are we?

* The writerwishes to thank James Lochhead for his help in preparing this article.

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