But if either direct punishment, the fear of it, be what deters men from a vicious and criminal course of life, and not the turpitude of the thing itself, then none can be guilty of injustice, and the greatest offenders ought rather to be called imprudent than wicked. (Cicero, from The Laws)
Punishment, especially capital punishment, has historical antecedents that infringe the boundaries of prehistory, and the merits of that punishment have been argued since. Punishment has been generally recognized by all who have seriously considered its genesis and its merits, to have three functions:
- allowing the society or individuals some form of vengeance or retribution
- deterring the future commission of crimes and
- reforming individuals who have committed crimes.
With respect to the first function, that of retribution or vengeance, the British Columbia Civil Liberties Association takes the position that legalized homicide as punishment is generally inconsistent with the values it is presumed to protect, and in a broader context is demeaning of the dignity of human life. Civil liberties of individuals are the collection of traditions and laws that serve to protect and enhance the inalienable rights of personal freedom and the dignity of individuals, insofar as they do not substantially infringe the rights of others.
These values and rights are, or should be, embodied in the laws of a society, and in our opinion, they should not be applied in a discriminatory manner. The prohibition against homicide is intended to protect the basic values of human dignity and personal freedom and in our view, those prohibitions apply equally to individuals and to society. This is particularly true when the purpose of homicide is vengeance, for society considers this is a heinous crime when perpetrated by an individual.
How then can society or its agent, the laws, use retribution or vengeance as a justification for homicide, when the homicide is capital punishment? Retribution has been rejected as justification for capital punishment for many years, even by those who are proponents of capital punishment. Sir John Anderson, a proponent of capital punishment in the United Kingdom, vigorously rejected retribution as justification:
I think there would be general agreement that the justification for the capital sentence cannot be retribution; for the salient features of our penal system must be sought in the protection of society and that alone… there is no longer in our regard of the criminal law, any recognition of such primitive conceptions as atonement or retribution.
The B.C. Civil Liberties Association echoes this sentiment but argues that the protection of society is not served through the use of capital punishment.
Protection of society
Protection of society is the second general basis on which many people have argued the necessity of capital punishment. This protection is of a twofold nature, the first being the expedient and economical elimination of individuals who may threaten the society, and the second being through the so-called deterrent effect of the threat of capital punishment.
The most sophisticated form of this argument (the usefulness of calculated elimination through homicide of those individuals who threaten the society), asserts that resources of the society that would be utilized in incarceration and reformation of convicted murderers could be used to greater economic advantage of they were directed toward the support of those who do not threaten the society. The use of homicide for economic advantage has been uniformly rejected by all civilized societies, whether by individuals of by the society, and to elevate that argument to a position whereby it is worthy of counterargument would be a travesty on the integrity of anyone who is sincere in their consideration of the merits of capital punishment.
The most salient argument for the use of capital punishment is, and has been, the protection it affords society through its deterrent value. However, clearly, capital punishment as a deterrent has failed each time a murder is committed. One cannot know the number of times it has succeeded, since there is no way of knowing how many times a murder has been prevented by the thought of the possibility of the death sentence.
Two types of argument purport to support the use of capital punishment as a deterrent; the first could be called the common sense argument, which invokes what are taken to be generally held concepts of human nature. This type of argument is frequently the most forceful and dramatic, though the second type—that of appealing of statistical evidence—is more rational. The first type of argument is exemplified by Sir James Fitzjames Stephen who, over one hundred years ago, appealed to the House of Lords with the following sentiment:
Was there ever a criminal who, when sentenced to death and brought out to die, would refuse the offer of commutation of his sentence for the severest secondary punishment? Surely note. Why is this? It can only be because “all that a man has will he give for his life”… death is death; its terms cannot be described more forcibly.
It is clear that if arguments of this nature have to be persuasive they must have some basis in fact, viz: that capital punishment does indeed deter potential murderers. If there is no basis in fact that capital punishment has a deterrent effect, then no amount of dramatic oratory will change that fact. It thereby becomes important to establish whether capital punishment does in fact deter potential murderers and the principal method for determining that is to examine the statistical evidence.
Much statistical evidence has been gathered by many government and private agencies in a variety of countries that have formally considered the issue of capital punishment for the purpose of modifying the laws of punishment. In particular, countries including England, Belgium, Denmark, the Netherlands, Norway, Sweden and Canada have all commissioned extensive statistical studies that are available for examination.
In addition, many private organizations like the John Howard Society, have collected relevant statistical evidence. The statistical evidence falls into two categories: that which compares the rates of capital crimes in countries with and without the death penalty, and also included in this category are those studies of changes in rates of capital crimes when capital punishment has been modified, removed from the legal codes or when a moratorium has been in effect; the second category of studies examines the effect of executions in any given year on the rate of capital crimes in succeeding years, in countries which do have capital punishment. These latter studies assume that if capital punishment has a deterrent effect, capital crimes in succeeding years would be reduced in some relation to the number of executions in preceding years.
When these studies are examined, it becomes patently clear that neither the inclusion of capital punishment in the criminal code, nor the number of actual convictions, nor the number of actual executions has any relation to the rate of capital crimes. The evidence is so clear that noone seriously disputes it any longer. It is also clear from this evidence that the vast majority of capital crimes are crimes of passion and that the rate of these bears no relation to whether capital punishment is part of the criminal code. What does a small but statistically insignificant relationship to capital punishment are the capital crimes committed by professional killers, but these are so small a percentage of the total number of capital crimes that it would be inadmissible to generalize from that group to all people who commit capital crimes.
Another factor that becomes apparent is that convictions and sentencing to death of murderers is related to their socio-economic position in the jurisdiction; more murderers who are executed come from lower socio-economic levels than do murderers who are convicted but not executed.
The conclusion about the deterrent value of capital punishment at which the Royal Commission on Capital Punishment arrived (The U.K., 1948-1953) summarizes the general findings of the body of statistical data they examined:
We recognize that it is impossible to arrive confidently at firm conclusions about the deterrent effects of the death penalty, or indeed on any form of punishment. The general conclusion which we reach, after careful review of all the evidence we have been able to obtain as to the deterrent effect of capital punishment, may be stated as follows: Prima facie, the penalty of death is likely to have a stronger effect as a deterrent to normal human beings than any other form of punishment, and there is some evidence (though no convincing statistical evidence) that this is in fact so. But this effect does not operate universally or uniformly, and there are many offenders on whom it is limited and often negligible. It is accordingly important to view this question in a just perspective and not to base a penal policy in relation to murder on exaggerated estimates of the uniquely deterrent force of the death penalty.
The last recognized function of punishment is reformation. It may be argued that reformation has no applicability where the death penalty is in place. This is certainly true, since the killing of another person can hardly be thought of as reformation. However, evidence from jurisdictions in which there is no capital punishment points clearly to the conclusion that the prospects of reformation of convicted murderers are at least as favourable as they are with those who have committed other types of serious crimes. Recidivism rates among murderers who serve terms of imprisonment are negligible. It is also far more likely that individuals who have committed theft will commit a similar crime upon release, than it is that murderers will murder again. Thus, the evidence we have strongly suggests that the possibility of reformation after capital crime is good, perhaps better than that possibility with most other classes of crime. If that is the case, what is the justification for the death penalty?
We have examined the arguments and evidence on this issue and have come to the conclusion that the death penalty is not justified in a democratic society.
The arguments for retribution are not arguments but an emotional rather than a responsible reaction to capital crimes. Further, it is clear to us that all civilized societies have rejected this argument as inconsistent with the values which the society is attempting to propagate.
Our examination of the evidence with respect to the possibility of reforming murderers who have not been executed leads us to the conclusion that murderers are at least as likely, or more likely, to never again commit crime, as are those who commit lesser crimes.
We also reject the argument that capital punishment has deterrent effects. The statistical evidence affirms that this is simply not the case.
We therefore conclude that capital punishment places society in a position of committing the act which it itself considers the most dastardly.