THOU SHALL NOT KILL – CAPITAL PUNISHMENT
Deterrence of violent crimes – or the opposite?
2nd December 2005 was a mournful day for Australia as 25-year-old Nguyen was executed after being caught and convicted in Singapore for trafficking 396 grams of heroin. Hundreds of solemn mourners gathered at Sydney’s Martin Place to pay Nguyen their last respects as Nguyen’s lifeless body hung from the hangman’s noose. Tim Goodwin during his interview with Lateline described the day as a sombre and reflective day.
“I think I've never seen a protest quite like it in all my years of working on human rights. People were coming together in public places and crying openly, hugging each other and laying down flowers and I think just having those few moments silence with their thoughts about those terrible things that were happening…”
Nguyen’s case sparked off impassionate debate about capital punishment throughout Australia and the world. Those pro capital punishment believers argue that death penalty is a means of retribution and acts as a deterrent. On the other hand, those against capital punishment believe that you cannot justify punishing the crime of murder or lesser crimes with murder and that capital punishment does not serve its intended purpose of deterrence.
Theory of Deterrence
The question to be asked here is not whether capital punishment will reduce crime rates. Capital punishment just like any other punishment will instil fear and consciousness in people which will then deter people from committing crimes. Thus, the right question is: Whether capital punishment is a more effective deterrence than other forms of punishment such as life-long imprisonment?
Deterrence is defined by the Webster dictionary as “the inhibition of criminal behavior by fear especially of punishment.” In addition, the punishment must be administered swiftly so that potential criminals will se a clear cause and effect relationship between the crime and the punishment. “General deterrence” is referred to when punishment deters potential criminals from committing crimes. Another kind of deterrence, “Specific deterrence” refers to the inability of convicted criminals to commit further crime as a result of their punishment.
Statistical evidence
Contrary to popular belief, there is no concrete statistical evidence which support the idea that death penalty is a more effective deterrence than other forms of punishment. Hundreds of studies have been done and they consistently show that there is no link between capital punishment and the reduction of crime. For example, in a study done by Archer and Gartner (1984) in fourteen countries that abolished death penalty, it was examined that abolition did not cause an increase in homicide rates. One landmark studies with respect to deterrence and the death penalty was conducted by a nationally renowned sociologist at the University of Pennsylvania, Thorsten Stellin in 1959. Stellin discovered through a comparison of abolitionist and retentionist states, that homicide rates in abolitionist states were not significantly different than the rates in retentionist states. From this evidence, he drew the inevitable conclusion that executions have no direct effect on homicide death rates. His evidence was then used as a basis theme in the argument presented to the United States Supreme Court in 1971 to support a finding by the Court that the death penalty was a "cruel and unusual punishment."
Based on the above studies, it cannot be concluded statistically that capital punishment will deter violent crimes.
Common sense argument
Some pro capital punishment believers argue that social science cannot prove the effectiveness of capital punishment because of incomplete data and inadequate theory to interpret the data. Thus, they believe that the common sense argument should be the basis of the deterrence theory - it is common sense that people fear death more than life in prison. Thus, if a more fearful punishment is in place, less people would dare to commit crimes. However, for many cases, it takes an average of ten years from conviction to execution because prisoners abuse the writ of habeas corpus, which guarantees appeals of sentences and convictions in state criminal cases. Thus, some have argued that this delay breaks the cause and effect relationship and will not effectively promote deterrence. However, if the appeal process is reformed, perhaps then, capital punishment will be more effective.
In addition, the common sense argument that people have a preference for life is flawed. This argument is based on the assumption that people make rational decisions by considering all possible outcomes when committing crimes. Many crimes especially murders are committed in heated moments.
Capital punishment as a cause of homicide
A more surprising finding is the theory that death penalty has not only failed to deter criminals from committing violent crimes but has also been a cause of homicide. How is this possible? The most plausible reason would be the “brutalization hypothesis”. Researches William Bowers and Glenn Pierce studied homicide records in New York State between 1907 and 1963 and found that the murder rate increased slightly in the months following an execution. To explain this phenomenon, they believe that state-sanctioned executions brutalize the sensibilities of society, making potential murderers less inhibited. In other words, capital punishment encourages homicide by seeming to legitimize killing of people. Thus, the death penalty may, in fact, “lead by example.”
Conclusion
If the above arguments are accurate, this shows that capital punishment does not serve its intended purpose of deterrence. This will leave us with only one other purpose – retribution. If that is the case, would retribution in form of capital punishment be morally justifiable? After all, the law strives to reflect community values. This question is for you to answer.
Written by: Joanne Khoo
What say you? All comments welcomed
Tuesday, March 21, 2006
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2 comments:
Jo did u draft that? Deep!
Ok here's my two pence worth: I agree that a criminal sentence (be it a minor good behaviour bond or to the extreme, capital punishment) serves to deter and provide restitution to the victim and the macro community.
In relation to the issue of deterance, you are correct in stipulating that if an alternative, more moral and palatable punishment is viable, then the courts should apply it. In consideration however, what punishment provides a greater deterrence than capital punishment?
Society responds to and remembers knee-jerk reactions (such as the death sentence of Van Nguyen), not protracted jail terms (such as Corby's). In turn, the plight of Corby has somewhat paled into insignificance whilst the death of Van Nguyen stimulates bitterness in the Australian media. (I would not be surprised if the Commonwealth Government conducted a covert prisoner exchange in several years - below the radar of the world's media).
The issue of retribution may be starkly contrasted. Restitution to who? The victim's family (or potential victims) or the public at large?
In Van Nguyen's case, actus reas was present (the criminal act). Simultaneously, mens rea was portrayed (the intentional mindset). [The mens rea aspect is the factor that differentiates Van Nguyen's case from the S Corby saga].
In precedent decisions handed down by the commercial divisions of the courts, their honours consider not only the tangible loss to a plaintiff but the 'potential' loss that may have occurred (the 'but for' test) had the defendant not been brought to justice.
Applying the commercial law principle to criminal causes of actions, it is arguable that upon considering the potential affect of Van Nguyen's actions (ie: The distribution of drugs to the community - potentially causing countless overdoses and perhaps death), the ball-game suddenly seems larger - and the potential for retribution is hence greatly expanded.
In conclusion, my opinion is that the severity of the sentence should not only consider the actus reas in question (ie: the act of carrying drugs), but the potential affects/outcome had the defendant not been brought to justice.
The bottom line is this: The words 'Australia' and 'Singapore' once married to envisage a holidaying escapade. But sandwich the word 'drugs' in between the two, and the emotions of fear and extreme caution are bred in the Australian community. In turn, has the punishment of Van Nguyen deterred? Yes. Has retribution and restitution been achieved? Yes - Beyond a shadow of a doubt!
However, did Van Nguyen deserve another chance to live? Yes.
The ironic notions of 'moral standings' and 'the law' do not marry. And that's why the courts think with their heads (beyond reasonable doubt) and not its heart.
Hey jus, great stuff.
But a question to ponder on is not so much whether capital punishment sereves to deter future violent crimes . Rather, the question to be asked is whether other punishments such as life-long sentence without parole can serve the same purpose to the same degree.
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