Should The Death Penalty Be Eliminated? Part I

Should The Death Penalty Be Eliminated? Part I


We ordained therein for them: “Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal.” But if any one remits the retaliation by way of charity, it is an act of atonement for himself. And if any fail to judge by (the light of) what Allah hath revealed, they are (No better than) wrong-doers.

Al-Qura’n, Surah Al-Maida, Ayah 45

Everyone has the right to life, liberty and security of person.

A Worldwide discussion and debate on this important subject of death penalty separated intellectual fraternity into two divisions and this discussion is getting stronger with every passing day giving birth to much more important questions, such as; whether there should be death penalty for murder or heinous crimes? Whether it serves as a deterrence? Empirical study shows that there are many cases where due to lack of information, lack of facilities of counsel, apprehension of wrong person caught etc., innocent persons are executed for a crime which they never committed and murderer of same case remained free due to execution of an innocent person. This would cause very severe loss to administration of justice and its cause.

There are many arguments for and against the theory of death penalty/ Capital Punishment. In this paper, we’ll discuss and review the arguments throughout the world and also in the prospect of International treaties regarding abolition of the death penalty.

Soon after World War-II, there was a great debate on dignity of human and human rights which were resultantly codified in International Covenant on Civil and Political Rights, 1966 (ICCPR) and ten countries abolished death penalty by interpreting Article 6 of ICCPR, 1966, though ICCPR or International Law does not prohibit capital punishment. Death penalty is not universally abolished and is still a point of great debate and discussion; there are 140 countries which abolished death penalty in law or in practice and 7 countries which abolished death penalty for ordinary crimes. Some countries abolished the same except for most serious crimes and 98 countries which abolished it completely in law or in practice. Countries that did not amend the law relating to death penalty imposed moratorium on death penalty in the meanwhile, including Pakistan.

In Pakistan, moratorium on death penalty was adopted in 2008 which expired on 30th June 2013 and after general elections, new government also decided to renew it under international commitment. However, debate is still going on regarding abolition or retention of death penalty. There are 27 offences in Pakistan, including rape, kidnapping, and arms trading etc. punishable with death penalty.

Arguments For and Against Capital Punishment

There are many arguments in favour of death penalty and reasons to execute death penalty as well as arguments against Capital Punishment. But in this paper, only those arguments will be discussed which can significantly be considered by legislation or courts administrating criminal law. Since affects of death penalty are under discussion, mainly two heads i.e. death penalty as deterrence and death penalty as retribution, below we will discuss some other important for and against arguments including its deterrence and retribution effects.

    Arguments Regarding Death Penalty from Different Aspects:

i. Ethics, Morality and Dignity

The main argument for abolition of death penalty is that the government should never take human life, no matter what the provocation. Empirical study shows that most of the death penalties were executed on grounds of racial, ethnic and financial discrimination and it should be abolished on the basis of unjust and unequal administration of punishment which favours the rich and disfavors the poor.

On the other hand, retentionists argue that it cannot be contended as an immoral practice to execute a murderer or offender of heinous crime which causes disturbance and frustration in society. Actually, death penalty honors human dignity of person who was murdered by the murderer and treats the defendant as a free moral actor who is able to control his own destiny for good or for ill as compared to animals.

Supreme Court of USA justified death penalty as sentiment of community which believes on retributive theory of punishment and which demands an appropriate punitive response to the most serious crimes like murder, and capital punishment expresses harsh condemnation and is, therefore, fit for retribution. However, particularly where there is strict prohibition on the expression of vengeful emotion, there is an unseen and understood rule governiong that there is a severe prohibition on the expression of vengeful emotion or any phrase of pleasure in execution of death penalty. In New York State Assembly on 16.03.1995, an assemblyman namely Eric N. Vitaliano while presenting a bill, acknowledged and declared afterwards, “You have not heard vengeance from me ”. Similarly, in a landmark judgment of “Gregg Vs. Georgia” , Solicitor General Robert Bork while insisting and supporting death penalty as “Vital Social Function” but soon afterwards added that such retribution must be “Stripped of its vindictiveness” . However, this sentiment of vengeance and revenge put the families of victim to an exception, who are not only expected to but are generally permitted to express such sentiments. But the public functionaries who legislate and administer system of capital punishment in America, are ethically bound to avoid any suggestion or appearance that their actions of retribution are stimulated by revengeful desires, as it is said that “we are willing to kill murderers, but we do not want anyone to derive satisfaction from doing it” . As many of legislators, prosecutors and officials of jails responded to this issue in different words and language . A New York member of the legislature, while passing of a capital statute said:

“I don’t get any pleasure out of the death penalty and never have. ”

An Attorney General representing the state said:

“Even though justice was served, the State takes no joy in fulfilling its obligation”;

And, following another execution:

There is no joy in taking the life of another human being.

An official deputed as prison warden, talking with an inmate who was going to be penalized with death penalty;

I take no pleasure in carrying out this duty, son.

Members of an execution team, telling about their work;

“No one enjoys putting a man to death” ;
“We’re not a bunch of redneck backwoods hicks killing people. I don’t look forward to [executions].

State administrators and governors, emphasizing their support for the institution does not amount to unsuitable passion:

It’s a necessity, but an unpleasant necessity” ;

“Capital punishment is never pleasant to contemplate” ;

“Some crimes deserve it, but that doesn’t mean I like it. ”

It is to be think of ethically and morally while executing death penalty through legislators and law enforcement agencies being educated and aware of facts of the country, law and worldwide civilization. Since, it’s not the general public who represent a state and run the administration of country and obviously, their sentiments and views are different from that of legislators and judges etc.

ii. Deterrence or Theory of Incapacitation

Deterrence or incapacitation is one of the main, and to some extent, logically justified objects of death penalty. It is said that executing murderer will lessen the number of upcoming murders. Incapacitation is one of the ways to stop crime by incapacitating the ability of the offender to repeat the same offence again in future e.g. cutting of hands of pickpockets, castrating rapists etc. but, the main focus of incapacitation is solely upon the future behaviour of specific offender regarding specific crime and how it can be determined in case of homicide as there is no chance of repetition because, deterrence is not for other probable offenders having similar nature or thinking. Deterrence means to deter the criminal from repetition of same crime and if he is incapacitated, there is no argument left for deterrence as he is already incapacitated for the same crime. Then, what is the role of punishment or authority in deterrence of further crime and if he or she does not repeat the same offence again, then it is not due to fear of more punishment; instead, it is incapacitation which plays its role. So, it could be concluded that death penalty just serves incapacitation and not the deterrence part, logically because for effectiveness as deterrence, there must be an offender or chance of repetition of same offence, which vanished with the death of criminal.

One argument may be the escaping of the criminal from the prisoner which remains intact until his natural death.

For deterrence, one valid argument is that there must be implementation of law, speedy trial of the accused person so that the dilemma of both parties, victim as well as accused, comes to an end. Offender who knows well that he’ll be caught and will be put under trial and resultantly be punished whatever the punishment may be, punishment will have its deterrence effect.

No doubt that it does not serve by knowing or not knowing about execution of death penalty or imprisonment because most of the murderers don’t lean to think before doing such like acts, but do have some impractical thinking of their capability to escape arrest and conviction.

iii. Retribution

The basic logical reason and rationale behind capital punishment is retribution, as one must pay for his or her acts in a way in which the act is done. Mostly, this act of retribution is based upon desire and wishes of the family whose beloved one has been murdered and they want execution of the offender in the same way. Retributive theory roots from emotions of revenge and, relatives of victims always desires to kill the murderer and; due to this revengeful emotional feeling, it has no justified place in civilized administration of criminal justice. In 1976, while passing a renowned judgment “Gregg Vs. Georgia” Supreme Court of U.S.A held that retribution is one of the numerous satisfactory reasons for the death penalty but while giving dissenting note, Justice Marshall stated that retribution is below the decorum of law being considered as legal punishment.

There is no doubt that there are too many questions that arise, if we focus on the theory of retributive punishment, while executing death penalty justifying it as basic human instinct and desire of family members of victims; whether the administration of justice is based upon wishes and desires of public? If yes, then what will be the fate of victim who has no one left in his family and what will be the punishment of the murderer. If retribution is prevailing the theory of punishment in the administration of criminal justice then what will be the punishment of rapist and dacoit or trespasser, embezzler?

In the 17th and 18th century, one of the purposes of capital punishment for serious crimes was considered as retribution. When the reason for commission of crime was extensively considered as when a criminal fails to control a natural human propensity toward some wickedness, capital punishment was adapted as a legitimate act of retribution duly heading for a person responsible for his or her own actions. And if he or she is left un-punished, then that very criminal act would spread to the whole community.

In a murder case, the crime results in death of a person (for whatever reasons). Well, if the crime is to murder someone, without having any authority and by committing such illegal act and taking the life of another person, then legislation authorizing death of such murderer through legal force under retribution theory is committal of murder of a person also. No doubt punishment for murder of a murderer by any other person would also be penalized through death penalty, then what is left for executing death penalty is just AUTHORITY which is justifying theory of retribution and punishment of crime and nothing else.

In another landmark judgment in the history of USA; “Furman Vs. Georgia ”, three convicted persons, one for murder and two for rape, were put to death penalty and USA Supreme Court granted certiorari and after considering the matter it was held by Justice Marshall, that usually the poor, uneducated, the unprivileged or the members of minority groups or men having no means or defended by less interested court appointed attorney, become surrendered and sacrificial lambs. It is manifested that lumber of capital punishment have to be borne by poor, unaware and unprivileged members of community and members of minority groups who are unable to raise their voice against death penalty. In this way, capital punishment is used against the dejected and pitiful, who can be easily be forgotten and as a practice, wealthier and well represented members of society easily escape the punishment. Hence, legislators are well satisfied to maintain status quo in this regard as change or amendment in law would draw attention to problems which need solutions. Americans have less knowledge of who is executed and for what and similarly, they are unaware of potential danger of execution of an innocent person. In a criminal administration of justice “burden of proof” is based upon “beyond reasonable doubt” and it is just to protect innocent persons, but it is not infallible. Study shows that whose virtuousness and innocence is later persuasively established, were convicted and sentenced to death. Despite of the extraordinary careful procedure adopted by courts, possibility of a perjured testimony, mistaken honest testimony and human error, still exists. There is no way to review how many innocent persons are executed but there is certainty about this fact and there will be more executions of innocent persons since the death penalty will be the part of penal system.

This paper, “Should The Death Penalty Be Eliminated?” consists of two parts. Part II is available in the Commentary section of the website.

Moeen Ahmed

Author: Moeen Ahmed

The writer is an Advocate of the High Court, holds a Bachelor of Science Degree in Double Mathematics and Stats and an LL.B. Degree. Currently, he is pursuing an LL.M. Degree from University of Lahore.