A few years ago all or almost all states around the world claimed power to execute those who had gravely offended society. The leading candidates for execution were murderers, rapists, adulterers, treason convicts, robbers, etc. Generally, this was felt as the most appropriate punishment, especially for the offence of murder: “an eye for an eye”. It was also felt that such executions would have a profound deterrent effect on those contemplating similar acts. A Canadian judge, rhetorically stated: “if you cannot resist an impulse in any other way, we will hang a rope in front of your eyes and perhaps that will help.”
Calls for abolishing the death penalty are heard from all over the world. The United Nations has taken the lead in campaigning against the death penalty.
Many today find that grounds for meting out the death penalty are inadequate. Calls for abolishing the death penalty are heard from all over the world. The United Nations has taken the lead in campaigning against the death penalty. Positive changes have already been scored in some parts of the world. All the countries which belong to the European Union, for example, have abolished the death penalty. In today’s world it would be a strange country that can claim that it has absolutely no other way of protecting its citizens from the danger of some criminals except by executing them.
This article highlights two points. The first is that criminal and judicial systems are fallible and thus the risk of executing innocent people is ever abiding. The second is that if the death penalty is abolished, it is not enough to replace it with a mandatory life sentence. The judges should be given wider sentencing discretion powers.
INHERENT RISKS
There is no criminal or judicial system that can claim that it does not have an inherent risk of convicting an innocent person. The system could be infected with mistakes, deliberately or accidentally, from the identification of the suspect, the investigation and gathering of evidence, and the judicial proceedings.
Each of the parties involved in bringing the case against the defendant is fallible and may arbitrary read their experience and prejudices into the case at hand. The final result could appropriately be regarded as an approximation of the truth. One experienced judge aptly drives the point home: “Outside the region of mathematics, proof is never anything more than probability.” While it is true that criminal law in most cases requires a very high standard of proof (beyond reasonable doubt), it is still never 100% proof. Therefore, as a matter of principle, it is unsafe to mete out a sentence which is so irrevocable should an error be acknowledged at a later date.
Therefore, as a matter of principle, it is unsafe to mete out a sentence which is so irrevocable should an error be acknowledged at a later date.
An example can be drawn from a famous case in the United Kingdom. Mr. Derek William Bentley was on 11 December 1952 convicted of the murder of a police officer. Actually he himself did not shoot the police officer but his criminal accomplice did so in the course of a failed burglary attempt. He, Mr. Bentley, was convicted under the principle of joint enterprise. (Joint enterprise is a criminal law doctrine which holds that the defendant is liable for a crime committed by his accomplice which the defendant did not intend, assist or encourage his accomplice to commit provided that it can be shown that there was a real risk that the accomplice would act as he did.) When the deadly shot was fired by the accomplice, Mr. Bentley was metres away, having already been arrested by a police officer.
Mr. Bentley’s appeal against conviction did not succeed. He was hanged on 28 January 1953. A later review of the case in 1998 found, inter alia, that the mental deficiency of Mr. Bentley was not disclosed to the jury and that the judge was astoundingly biased in favour of the police. In August 1998 Mr. Bentley was posthumously found not guilty of the murder for which he was hanged some forty-six years earlier.
The death penalty, once executed, is irrevocable. The person who is wrongly condemned cannot be summoned to life even when a mistake is conceded later. As a result, the imposition of the death penalty risks tainting the integrity of the whole criminal and judicial system, especially in the eyes of those close to the unjustly condemned.
The imposition of death penalty risks tainting the integrity of the whole criminal and judicial system, especially in the eyes of those close to the unjustly condemned.
Monique Mathews, whose brother, Ryan Mathews, was wrongly condemned in the state of Louisiana, USA, had this scorn for the judicial system that unfairly condemned her brother: “This modern terrorist - law enforcement, prosecutors and judges - are just a bunch of liars and great actors…These people are predators”.
It is not enough that justice is done. People should have confidence in the criminal and judicial machinery that exists to serve them. We are not without a solution here. Abolish the death penalty and the judicial system may be able to redeem its integrity where a miscarriage of justice is later acknowledged.
NO TO PERMANENT DEPRIVATION OF FREEDOM IN PRISON
The crimes for which the death penalty is still imposed vary in their seriousness and effect on society. Take the example of murder. A person who kills with excess force (but with a good reason) and a serial killer could both be murderers in the eyes of the law. But society is extremely unlikely to judge them alike. If the death penalty is abolished, would it then be appropriate to band together all the diverse types of murderers and condemn them all to permanent deprivation of freedom in prison? Should the one who kills with excessive force and a serial killer receive the same sentence?
The fact that murderers vary in their seriousness and that society recognizes that difference could be illustrated by another instance in the United Kingdom. Tony Martin, a farmer, was in April 2000 convicted of murder. Martin used a shotgun to shoot and kill one of the two burglars who had broken into his farm house. Evidence at his trial was that Martin had lain in wait for his victims, set traps in his house and had used an illegal shotgun to kill.
Politicians use this power (the prerogative of mercy) to consider individual cases and where appropriate offer a pardon, reduce or vary the sentence
He was found guilty of murder and since under the United Kingdom law murder attracts a mandatory life sentence, the judge sentenced him to life imprisonment.
But the interesting part about the case is the reaction the sentence prompted from the general public and the press. Many considered the sentence outrageously severe on a man who had simply acted to protect his property from lawless louts. But what could the judge have done when his hands were tied?
Since not all murders are heinous and not all murderers are a perennial danger to society, it is suggested that judges should be given sentencing discretion and not be fettered by law to hurling down life sentences for all convicted of murder.
DISCRETIONARY POWERS TO THE JUDGES
Many people would be skeptical about leaving such powers in the hands of judges, fearing that there could be wide uncertainty on the scale to be used in considering the seriousness of an offence. But it should be acknowledged that a power of similar nature exists in the hands of the politicians, namely the prerogative of mercy. Politicians use this power to consider individual cases and where appropriate offer a pardon, reduce or vary the sentence. Like many other problems with discretionary powers in the hands of politicians, in exercising this power there exists no serious mechanism of asking politicians to account for their choices and decisions. On the other hand judges make their decisions in broad daylight and support them by appropriate reasons. The judges’ decisions can also be appealed against. This makes their decisions open to public scrutiny and challenge.
Giving such wide sentencing discretionary powers to judges is not strange to some traditional societies within Zambia. The anthropologist M. Gluckman vastly studies the Lozi judicial system. In his book, The Judicial Process Among the Barotse (1973), he wrote: “In order to fulfill their task the judges constantly have to broaden the field of their inquiries and consider the total history of relations between the litigants, not only the narrow legal issue raised by one of them...” Judges are usually intelligent, vastly experienced and highly competent evaluators of matters laid before them. It is therefore extremely unfair and even insulting to their intelligence to fetter their hands by asking them to behave like robots when it comes to sentencing.
THEOLOGICAL REFLECTION
The issue of the death penalty and just sentence is not just a legal matter but is linked to our faith as Christians. In his encyclical, Evangelium Vitae, John Paul II uses the story of Cain and Abel (Genesis 4:1-16) to illustrate that Christians are under a duty to support a pro-life culture (as opposed to the culture of death). Although Cain committed a heinous sin, God put a mark on his head to warn anyone who met him not to kill him. God, the very God, pledged and guaranteed to protect and defend the life of a murderer from those who could seek to kill him. “God, who preferred the correction rather than the death of a sinner, did not desire that a homicide be punished by the exaction of another homicide”. (Evangeluim Vitae # 9)
It is therefore extremely unfair and even insult to their intelligence to fetter their hands by asking them to behave like robots when it comes to sentencing.
When thousands of people are killed by wars, accidents, hunger, natural calamities and diseases, abolishing the death penalty presents us with a golden opportunity to heed John Paul II’s call to be at the service of life: “…in the name of God; respect, protect, love and service life, every human life! Only in this direction will you find justice, development, true freedom, peace and happiness!” (Evangelium Vitae # 5).
When distinguishing between materialism and integral Christian spirituality, Gustavo Gutierrez, the Latin American liberation theologian, remarked: “When one is concerned with one’s stomach, it is materialism, but when one is concerned with other people’s stomachs, it is spirituality.” Christian spirituality implores us to go beyond enacting laws intended for our own protection but also enact good and humane laws guaranteeing the just treatment of those who offend society.
O’Brien Kaaba,
University of Zambia
Lusaka |
