The issue of the death penalty is no longer unusual discussion and remains a controversial debate among society. The issue can be discussed from a variety of perspectives such as religious, academic, and so forth. Some countries have abolished the death penalty such as the United Kingdom. Some countries retain the death penalty as one of the punishments in their country such as Malaysia. The reasons why those countries decided to abolish and retain the cruel punishment will be addressed in the next paragraphs.
Understanding of the Death Penalty :
The term death penalty is also known as capital punishment. The death penalty is a punishment imposed by a court of law for a grave criminal offense such as murder, treason, and so forth. However, in Malaysia, waging war against Yang di-Pertuan Agong (The King) can be liable to face the death penalty.
The punishment of the death penalty seems to be very cruel and harsh but that is what punishment is supposed to be. Of course, there is a reason behind the punishment of the death penalty. The first reason is retribution. According to the retributive theory of punishment from the Law of Hammurabi,
“If a man puts out the eye of another man, then his eyes shall be put out, if he breaks another man’s bone, then his bone shall be broken.”
For instance, in Malaysia, if a court of law found that the accused guilty of murder, then the death penalty will be the punishment. The lives of the victim cannot be restored, so taking away the accused’s life is the only way to pay for what they have done wrong.
The second reason is a form of deterrence. According to the Cambridge Dictionary, deterrence means the action or the fact of deterring or avoiding people from doing something. From a legal perspective, the death penalty is a very intimidating punishment that possibly discourages others from committing a serious offense. According to Ernest Van den Haag, a Professor of Jurisprudence at Fordham University, he stated that
“Even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else. They fear most deaths deliberately inflicted by law and scheduled by the courts…”
The aim here is to use the offender as an example from which others can learn.
Arguments on The Death Penalty: Supporting and Opposite.
The international law does not have an absolute prohibition on the imposition of the death penalty binding on all the countries in the world. Many countries all over the world have agreed with treaty obligations not to impose the death penalty in their country. However, some countries still retain the death penalty and affirm its legitimacy, legality, and efficacy. Those countries, however, are required the follow the provision of international law concerning the type of crimes for which the death penalty may be imposed.
Arguments supporting the death penalty :
One of the main reasons why some countries retain the punishment of the death penalty is to prevent convicted killers from killing again. There have been countless cases where the killer has murdered other inmates and prison guards after being convicted and sentenced to life imprisonment.
The murder of John J Geoghan can be one of the examples. In this case, Geoghan was convicted of the inherent assault and battery of a 10-year-old boy. He was sentenced to 9-10 years in prison. Unfortunately, he was killed by an inmate and convicted killer, Joseph Druce.
There are also cases where the ex-prisoner who have been released for parole have committed murder again after returning to society. This can be illustrated in the case of Kenneth McDuff who was found guilty of murder and sentenced life imprisonment but he was released after 11 years. However, three days after his release, he began to kill again.
Therefore, it is quite reasonable why some countries retain the punishment of the death penalty. At the end of the day, the law and punishment are there to protect society and it seems like the death penalty is the only punishment that protects innocent lives from a criminal.
Arguments against the death penalty :
As mentioned in the discussion earlier, one of the purposes of the death penalty is to deter crime. However, there is no credible statistical evidence showing that the punishment of the death penalty reduces the rate of homicide. American National Academy of Sciences National Review Council in the researches started that
“The research demonstrates that capital punishment decreases or increases the homicide rate by a specified amount or has no effect on the homicide rate should not influence policy judgments about capital punishment”.
As shown in diagram 1, based on the Death Penalty Information Center the homicides rates in countries that retain the death penalty are higher than non-death penalty countries.
Additionally, even without the punishment of the death penalty, the homicides rates can still be reduced. Canada is one of the good examples of non-death penalty countries that able to reduce the homicides rate in their country. 2016 was at its lowest since 1966.
Death Penalty and International Law
Under international law, the punishment of the death penalty may violate the most Fundamental Human Rights that are right to life. Besides, the imposition of the death penalty may also violate other rights such as the right not to be subjected to cruel, inhuman, or degrading treatment or punishment.
However, as mentioned in the previous discussion, no provision under international law and a treaty that prohibits the death penalty’s imposition. For example, Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) provides:
“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”
By interpreting the provision above, everyone is entitled to have his or her right to life protected by law and should not be arbitrarily deprived of life. However, in certain circumstances, the authority has the power to deprive his or her life lawfully. A country that retains the imposition of the death penalty is bound to follow the limitations provided under ICCPR. The limitations include:
- it must be limited to only the most serious crimes
- homicide i.e murder
- it cannot be imposed if :
- a fair trial has not to be granted
- other ICCPR rights have been violated
- the offender is under the age of 18
- the offender is pregnant
Furthermore, The UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary has stated that the punishment of the death penalty should not be imposed for certain crimes such as drug-related offenses, economic crimes, and actions relating to moral values including adultery, prostitution, and sexual orientation.
Conclusively, the punishment of the death penalty does not breach any international law since there is no absolute prohibition on the death penalty’s imposition. As discussed above, a country that retains the punishment of the death penalty is bound to follow the limitation provided under ICCPR and must make sure the fairness of the court proceeding to prevent from killing an innocent person. If the justice system of the country is unsatisfactory, then the abolishment of the death penalty will be the best solution to avoid injustice.