A few words on Capital Punishment

Capital punishment is the practice of executing someone as punishment for a specific crime after a proper legal trial. It can only be used by a state.

It is usually only used as a punishment for particularly serious types of murder, but in some countries treason, types of fraud, adultery and rape are capital crimes.

In 1977, only 16 countries had abolished the death penalty for all crimes. As of December 2010 that figure stands at 96 and more than two thirds of the countries in the world have abolished the death penalty in law or practice. Of the 58 retentionist countries, 21 were known to have carried out executions in 2011.

Updated Statistics:

In 2012, 682 people were executed.

In 2011, 680 executions were recorded

The 2012 figures on the use of capital punishment confirm that the overall trend globally is towards abolition. Only one in 10 countries worldwide carried out executions.

Note: The figure of 682 excludes the thousands of executions carried out in China, which accounts for more executions than the rest of the world combined. Three countries - Iran, Iraq and Saudi Arabia -accounted for three quarters of the confirmed executions.

Retribution Argument

Thus each criminal should get what his crime deserves and in the case of a murderer, what his crime deserves is death.

Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.

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Do all murderers deserve the death penalty?

The situation in which the murder was committed has to be taken into account before the jury/ judge metes out a sentence to a murderer. The key terms here to note: “imposition of appropriate punishment”.

Mitigating Circumstances: Circumstances that may be considered by a court in determining culpability of the guilty and the sentence to be meted out to the guilty party. Mitigating circumstances do not justify or excuse a crime but may reduce the severity of a charge.

In cases of murder, mitigating circumstances can include:

Lack of premeditation Offender’s intention to cause bodily harm rather than to kill Provocation – Offender was provoked by the victim in a substantially significant

way Mental capacity of offender (Diminished Capacity): Mental Disorders and IQ

levels Offender’s history of childhood abuse Age of the offender

The Greater Good

The medieval philosopher and theologian Thomas Aquinas made this point very clearly:

• If any man is dangerous to the community and is subverting it by some sin, the treatment to be commended is his execution in order to preserve the common good.

The point here is this: that a person can, by their actions, forfeit human rights, including their right to life. Thomas Aquinas is here making a distinction between the killing of an innocent man (“man who retains his natural dignity”) and the killing of the guilty (“a sinner”).

According to Aquinas,

“To kill a man who retains his natural dignity is intrinsically evil, but to kill a sinner can be good, just as it is to kill a beast, for, as Aristotle points out, an evil man is worse than a beast, and more harmful.” – Thomas Aquinas, Summa Theologiea, Volume 38.

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The Arguments against Deterrence

i. Some of those executed may not have been capable of being deterred because of mental illness or defect.

ii. Some capital crimes are committed in such an emotional state that the perpetrator did not think about the possible consequences

iii. Deterrence is most effective when the punishment happens soon after the crime. The more the legal process distances the punishment from the crime - either in time, or certainty - the less effective a deterrent the punishment will probably be.

iv. Death is usually administered in private by relatively painless means, such as injections of drugs, and to that extent, it may be less effective as a deterrent.

Mental illnesses are often acknowledged by courts to be mitigating factors, and as such, many courts will not execute the convict if they do indeed suffer from mental illness or defect.

It is not proven that the time factor (“when the punishment happens soon after the crime”) makes Capital Punishment more or less effective as a deterrent. Also, the legal process which causes this time lapse is only fair – due process is justified. Defending lawyers need the time for:

(a) Evidence to surface;(b) Collation of evidence;(c) Proving beyond a reasonable doubt that defendant was wrongfully convicted;(d) Making appeals to higher courts after sentencing.

Thus it is not fair for courts to fast-track such death row cases, especially when there is an element of doubt in the case and when the legal system is inevitably fallible.

It is also not proven that the relative levels of pain involved in executions have any bearing on the effectiveness of Capital Punishment as a deterrent. Most countries indeed adopt more “humane” ways of execution – but the prospect of execution itself, and not the method, is probably more of a deterrent. There is no evidence to show that execution via firing squads or beheading is more effective as a deterrent than lethal injections.

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Right to live

Everyone has an inalienable human right to life, even those who commit murder; sentencing a person to death and executing them violates that right.

If you believe in this, then you believe that every life is of equal value – which is, well, fine. In this case, you will have to assert that even individuals who have committed the most heinous of crimes (think Hitler, Osama bin Laden, Saddam Hussein) should live.

The counter-argument for this is that some individuals have forfeited this right, by taking away this “right to life” from their victims. The right to live is accorded to human beings who do not intentionally, maliciously claim the lives of innocent victims. By taking away their victims’ lives (think war crimes and crimes against humanity), they have violated the rights of others, and thus have forfeited their own right to live.

Execution of the innocent

The death penalty legitimises an irreversible act of violence by the state and will inevitably claim innocent victims. As long as human justice remains fallible, the risk of executing the innocent can never be eliminated

There is ample evidence that such mistakes are possible:

• In the USA, 116 people sentenced to death have been found innocent since 1973 and released from death row. The average time on death row before these exonerations was 9 years.

This possibility of a wrongful execution is the strongest argument against the use of Capital Punishment. We cannot deny the fact that there is the tragic possibility of error in legal processes.

Proponents of the death penalty must seek to minimize this possibility of error by addressing various factors that lead to wrongful convictions/ executions. These factors can include:

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Incompetent or Inexperienced Defense Lawyers

Case Study: Gary Drinkard

Gary Drinkard was sentenced to death in 1995 for the robbery and murder of a car-dealer Alabama. He was assigned two court-appointed lawyers; one specialized in commercial work and another specialized in bankruptcy. Neither of them had experience in a capital murder case.

Drinkard did not have the money to engage his own lawyer, which would have cost him at least $200,000.

These lawyers failed to present key expert witnesses: physicians who would have testified that Gary’s recent back injury made committing the crime a physical impossibility. Despite being home at the time of the murders, Gary was convicted and given the death sentence.

The conviction rested primarily on testimony by Gary’s half-sister, who was facing charges for unrelated crimes. In exchange for testifying, Gary’s half-sister was guaranteed that all the charges against her would be dismissed.

Source: http://www.oneforten.com/gary-drinkard

Out of all offenders who are sentenced to death, three quarters of those who are allocated a legal aid lawyer can expect execution, a figure that drops to a quarter if the defendant could afford to pay for a lawyer.

Source: http://www.bbc.co.uk/ethics/capitalpunishment/against_1.shtml

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False or Coerced Confessions

Case study: Coerced and False Confession – Damon Thibodaux

False confession sent him to death row; DNA exonerated him 15 years later. In 1996, Damon Thibodeaux confessed to the murder of his 14-year-old step-cousin, Crystal Champagne, who was reported missing July 19, 1996.

Thibodeaux was involved in the search for his step-cousin, and went on for 36 hours without sleep. Early the morning of July 21, Thibodeaux was taken into police custody and interrogated. He initially said he knew nothing about the murder.

He was then subjected to overnight interrogation and denied sleep. After about nine hours of non-stop interrogation, he confessed. He was arrested and charged with both crimes. After the confession, he was allowed to eat and rest.

“I didn’t know that I had done it,” Thibodeaux said at one point, according to a police transcript. “But I done it.”

Before that day was over, Thibodeaux had recanted his confession, telling his court-appointed lawyer that he told police what they wanted to hear in response to threats of death by lethal injection and his grief over the death of his cousin."I had no sleep, I was hungry, I was tired of it. At that point I didn't care, I just wanted to stop it."Nonetheless, Thibodeaux was later convicted of both crimes and sentenced to die.

In 2007, extensive new DNA testing established firmly that Thibodeaux’s confession was false. He claimed to have raped Champagne when in fact no rape occurred. He said he strangled her with a gray speaker wire, when in fact she was strangled with a red cord that had been tied to a tree near the crime scene.

An expert in false confessions finally concluded, as did the defense, that the confession was the result of police pressure, exhaustion and psychological vulnerability.

Source: The Guardian, http://www.theguardian.com/world/2012/dec/07/dna-testing-frees-man-death-row

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False and unreliable eye-witness accounts

Lack of Forensic Evidence Forensic Evidence includes: Fingerprint matching, DNA evidence, Polygraph tests, Hair and fiber analysis etc.

Case Study: First DNA death row exoneration

Kirk Bloodsworth was sentenced to death for a 1984 rape-murder he didn't commit - it took nine years for DNA to exonerate him, and another decade for it to link another man to the crime

Kirk Bloodsworth was exonerated by DNA in 1993 of the rape and murder of nine-year-old Dawn Hamilton - a crime for which he was sentenced to death in Baltimore County, Maryland.

In 1992, the courts approved testing of biological material preserved from the crime with a then-emerging DNA technology known as PCR (polymerase chain reaction). The tests incontrovertibly established Bloodsworth's innocence. After the FBI confirmed the results, Bloodsworth was released June 28, 1993. He was the first U.S. death row prisoner to be exonerated by DNA.

As compensation for the wrongful conviction, the state of Maryland paid Bloodsworth $300,000 for lost income, based on the rough calculation that he would have earned some $30,000 a year for the years from his arrest to his release.

Source: http://www.law.northwestern.edu/legalclinic/wrongfulconvictions/exonerations/md/kirk-bloodsworth.html

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On the issue of Retribution vs Revenge:

The Arguments against Retribution

i. Capital punishment is vengeance rather than retribution and, as such, is a morally dubious concept.

There is a crucial difference to be made here between retribution and vengeance.

Revenge entails seeking satisfaction in retaliation and seeing a convict suffer. Revenge is certainly considered a morally unacceptable reason for execution – it is not justifiable to execute an offender for the satisfaction and pleasure of the victim’s family or the crowds.

Retributive justice, on the other hand, does not mete out punishment for the sake of bringing pleasure and closure to people who seek revenge. Rather, retributive justice is impartial, not swayed by emotion or populist decisions. Retributive justice does not mete out the punishment that a victim’s family members ask for. Retributive justice seeks to deter wrongdoing, or because it might produce reform in the offenders --but not because of the pleasure it might bring to people who seek revenge.

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