A Discussion On Capital Punishment Criminology Essay

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Punishment remains an important legal process in the criminal justice system of the world. One of the world's oldest forms of punishment is capital punishment. It is also commonly known as death penalty. It has continued to be practiced in some part of their justice system even in today's society. Other than capital punishment, among the contemporary forms of punishment are imprisonment, monetary fine and probation.

This essay will discuss on capital punishment as a contemporary form of punishment and how it reflects the prevailing philosophies and principles of punishment such as retribution, deterrence, incapacitation, rehabilitation and restorative justice. However, the other principle of punishment, denunciation, will not be discussed as it does not apply to capital punishment.

Before embarking on capital punishment and the philosophies and principles of punishment, it is important to define what punishment is.

Many philosophers have tended to described punishment during their era and according to the circumstances during that time. (add who has tried to define punishment)

Sometimes when we think of punishment, we think of pain inflicted on others. HLA Hart in the Prolegomenon to the Principles of Punishment defined punishment to include five elements:-

"(i) It must involve pain or other consequences normally considered unpleasant.

(ii) It must be for an offense against legal rule.

(iii) It must be of an actual or supposed offender for his offense.

(iv)It must be intentionally administered by human beings other than the offender.

(v) It must be imposed and administered by an authority constituted by a legal system against which the offense is committed." [1] He described the "general justifying aim" of the institution of punishment as crime reduction.

The State has a right to punish a person for knowingly violating the law of the state and the punishment must be painful or unpleasant in order to prevent further crime.

During the early era, punishment was targeted at the body of offenders and performed in public. When performed in public, the society is drawn together against those who violate the law. The offender is the common enemy of the society and also the state. This symbolises the power and authority of the state over its subject in punishing the offender who violate the law. [2] Bentham also agreed that punishment should proceed before the public. [3] However, nowadays punishment is no longer conducted in public but in private. This includes the execution of capital punishment which is now done in prison, away from the public eye. It was a move towards a modern society. [4] 

The society plays an important role in the development of punishment. According to Garland, Durkheim contended that punishment has existed in every society and defined crime as an act which provokes the conscience collective of the society. Therefore punishment is seen as a matter of morality and social solidarity. (Garland, 1990, p. 28). In every stage of society, punishment serves to regulate the society within the state. Without such regulation, there would not be an order. The moral and social harmony ensures the state to function properly.

Durkheim was of the view that 'the morality of each people is directly related to the social structure of the people practising it' (Garland, 1990, p 24) and maintained that less cultivated societies tend to 'punish for the sake of punishing...without seeking any advantage for themselves from the suffering which they impose'. (Garland 1990, p 31). It seems that the law of the state depends on the moral of the society. If the society accepted certain law to regulate the conduct of the society, the members of that society must abide by it. The same goes for those who violate the law, he or she must be punished according to the regulated law.

Bentham as an early philosopher of the utilitarian principles regards punishment as 'in itself is evil' and 'ought only be admitted in as fast as it promises to exclude some greater evil'. [5] (Bentham 1843/1995, p 248). This view was supported by Beccaria, who argued that an unjust punishment goes beyond what is necessary to protect the society. However, it is just if it protects the society. [6] Punishment may be a greater evil however if it can protect the society from further harm and condemn those who tries to disturb the working order of the society, then the punishment is justified.

It is most common for society to think that he or she must be punished if he breaks the law. Garland suggested that punishment is "the legal process whereby violators of criminal law are condemned and sanctioned in accordance with specified legal categories and procedures" (Garland 1990, p 17). The law is created to provide boundaries within the society in order for the society to live in peace and harmony. With the multi-personality and multi-cultural within a society, if the laws and punishment is not regulated, there will be chaos. Garland (1990) argues that punishment is a complex concept, and an approach to punishment that is limited to a reading of moral. The moral guides the law to be regulated and enforced within society.

Once the trial complete, the court will usually hand out the punishment to the guilty offender. As there are different forms of punishment according to one jurisdiction, the court would normally sentence according to the severity of the committed crime. The main aim is to ensure that not only justice is done but that justice is seen to be done to the society. Since time immemorial, capital punishment, or the death penalty, has been one of the earliest forms of punishment. Legislative law has made it possible for the state to administer death penalty for certain capital offences. It is a legally administered state killing used as a punishment in response to a crime. [7] 

The Code of Hammurabi was the first codified death penalty in the world. Among others, death penalty also formed part of the Hittite Code, Draconian Code of Athens, Roman Law of Twelve tables, The Torah and Syariah Law in the early century. The lex talionis of biblical times 'an eye for an eye, a tooth for a tooth, a life for a life' depict death penalty executed during this era.

Some of the traditional methods of administering capital punishment include beheading, stoning, flogging, spearing alive, boiling to death, hanging, and drowning. However as in 2010, beheading, hanging, shooting, electrocution, gas chamber and lethal injections remain the modern method of executing capital punishment. The method of execution varies according to the countries' law.

According to the Amnesty International 2011, 96 countries have abolished death penalty. This includes Albania, Andorra, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Belgium, Bhutan, Bosnia and Herzegovina, Bulgaria, Burundi, Cambodia, Canada, Cape Verde, Colombia, Cook Islands, Costa Rica, Cote D'Ivoire, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Dominican Republic, Ecuador, Estonia, Finland, France, Gabon, Georgia, Germany, Greece, Guinea-Bissau, Haiti, Holy See, Honduras, Hungary, Iceland, Ireland, Italy, Kiribati, Kyrgyzstan, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Marshall Islands, Mauritius, Mexico, Micronesia, Moldova, Monaco, Montenegro, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niue, Norway, Palau, Panama, Paraguay, Philippines, Poland, Portugal, Romania, Rwanda, Samoa, San Marino, Sao Tome And Principe, Senegal, Serbia (including Kosovo), Seychelles, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sweden, Switzerland, Timor-Leste, Togo, Turkey, Turkmenistan, Tuvalu, Ukraine, United Kingdom, Uruguay, Uzbekistan, Vanuatu and Venezuela. Death penalty is not provided for in their laws as punishment for any crime.

Another 34 countries have abolished capital punishment in practice. This include Algeria, Benin, Brunei, Burkina Faso, Cameroon, Central African Republic, Congo (Republic of), Eritrea, Gambia, Ghana, Grenada, Kenya, Laos, Liberia, Madagascar, Malawi, Maldives, Mali, Mauritania, Morocco, Myanmar, Nauru, Niger, Papua New Guinea, Russian Federation, South Korea, Sri Lanka, Suriname, Swaziland, Tajikistan, Tanzania, Tonga, Tunisia and Zambia. This means that although the death penalty for ordinary crimes is retained, it has not been implemented from some time.

The remaining 58 countries which has retained the death penalty for ordinary crimes include Afghanistan, Antigua and Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize, Botswana, Chad, China, Comoros, Democratic Republic of Congo, Cuba, Dominica, Egypt, Equatorial Guinea, Ethiopia, Guatemala, Guinea, Guyana, India, Indonesia, Iran, Iraq, Jamaica, Japan, Jordan, Kuwait, Lebanon, Lesotho, Libya, Malaysia, Mongolia, Nigeria, North Korea, Oman, Pakistan, Palestinian Authority, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Sierra Leone, Singapore, Somalia, Sudan, Syria, Taiwan, Thailand, Trinidad and Tobago, Uganda, United Arab Emirates, United States of America, Viet Nam, Yemen and Zimbabwe.

In addition to the above, according to Amnesty International (2011), in 2010 in 67 countries at least 2,024 new death sentences were known to have been imposed and at least 17,833 globally were under death sentence.

The society must be protected from any crime. According to Beccaria, death is 'just and necessary' if the offender still causes danger to the security of the state when his liberty is denied and in order to prevent future crime being committed. [8] 

In the law of nature, every person and also the society have the right to protect themselves from any harm against another who contravenes the law. Having possessed this right, in political society, such right is given to the state as the state is now the protector of the people. The state will carry out its function in protecting its society. [9] 

Traditionally, there are two philosophies and principles of punishment, namely retributivism and utilitarianism. From these philosophical theories, rises further theories on deterrence, rehabilitation, incapacitation and denunciation as principles of punishment. In the twentieth century, restorative justice has also emerged as a philosophy and principle of punishment.

Duff and Garland (1994) considered the distinction between the two approaches of philosophy of punishment, namely consequentialism (or utilitarian) and non-consequentialism (or retributivism). Where the former refers to punishment as instrumentalist and forward-looking, which focuses on the effect or consequences of the crime on the past crime of an offender; the later as intrinsicalist and backward-looking, focuses on the past action of the offender. [10] For non-consequentialism, the nature of the prohibited act is important than the consequences of punishment.

One of the prevailing philosophies of punishment is retribution. It is one of the earliest justifications for punishment. The well known 'an eye for an eye, a tooth for a tooth, a life for a life' in the biblical time, represent this clearly. This means that if the offender has inflicted any harm to his or her victim, the same punishment should be inflicted upon the offender. Capital punishment may represent this principle if one person kills another person in the society, the law of the state allowed that person to be killed. For example in other jurisdiction such as Singapore, Malaysia and China, death penalty is also imposed on drug trafficking as it causes further harm to the society.

Another classical principle of retribution which justifies the punishment with the crime is 'let the punishment fit the crime'. However, it was argued that other factors such as the mental state of the offender, the aggravating and mitigating factors are to be considered and not only the crime committed by the offender. It was held that retribution is invalid for capital punishment especially for cases involving mental illness offender. [11] The offender must not only predict and then endure the punishment but must suffer the punishment and acknowledges the severity as consequences of the crime. [12] 

Many people link retribution with vengeance which is a narrow and a restricted basis for punishment. For Durkheim, 'passion ... is the soul of punishment', and vengeance is the primary motivation which underpins punitive actions. (Garland 1990, 31). Punishment is deserved when an offender commits an offence that violates the law of the society. Here, the society has the moral right and duty to punish the offender for committing the offence. The punishment is justified when the offender is punishment according to the gravity of the offence committed. However, it is not limited to vengeance but more than that.

Garland (1994) suggested two types of retributivism. Positive retributivism holds those responsible for a crime deserve to be punished whereas negative retributivism holds only the guilty may be punished and to the extent of their desert. (Garland 1994, p 7). If a person has done some harm to another, he should be responsible for his or her own conduct. Unless there are some factors to be considered, the offender deserves the upcoming punishment. However, the degree of punishment must be appropriate.

Although it is believed that the offender deserves to be punished, the punishment imposed must be proportionate to the crime he or she has committed. [13] The punishment is to reflect on the severity and gravity of the offence committed. Andrew von Hirsch (1976) in "Giving Criminals Their Just Deserts", [14] argued that sentences should, as a matter of justice, be decided according to a principle of commensurate deserts.' Once all the relevant factors are considered, the punishment for the committed crime must be proportionate.

The court is empowered to carry out such punishment after considering the relevant factors in the case.

It was viewed that 'if the purpose of punishment is to restore balance of advantages necessary to a just community, then punishment must be proportioned to the offence; any unduly severe punishment would unbalance things in the other direction'. [15] Therefore, not only must the punishment be just but also appropriate. It must not be distorted. In order for it to be just and proportionate will depending on the law within the society. Factors such the gravity of the offence, the manner in which the crime is executed all plays an important role to determine the just punishment. When one person is killed, there is an imbalance in the world. Therefore the restore balance to the society, an appropriate punishment must be met to justify such commission of the act.

Again the mental state of person is important, he must be aware of his or her conduct. Locke views men as peaceful creature. The law of nature has set certain procedure to be abided and these laws are used to control the society and also those who violate it. [16] Those who violate these laws must act consciously and voluntarily in committing the crime. If the person deserves to be punished, the punishment must be proportion to the severity and gravity of the crime. If this is done, the offender will likely be remorse and scare would-be offenders from committing the same crime. As the state has the right to punished, the punishment must be determined according to what is deserving and proportionate to the crime that was committed.

For death penalty, if the offender had knowingly and voluntarily committed the offence, he or she must be punished for the crime that he or she has committed. Therefore if one were to murder another person, there is a right to impose the death penalty upon those who violates the law. This is considered deserving and also appropriate.

In contrast with Hobbes in De cive (1643) and Levitathan (1651), who perceived men (and women) as selfish and self-centred beings and willing to do anything to achieve the preservation of life. Men (and women) are willing to do anything for survival. Hence to preserve this, punishment is aimed to regulate the society so that men and women will have to tolerate and try to accommodate each other because that is the nature of men and women in society. Therefore, on crimes that deserve the death penalty, the state has the utmost right to impose death penalty to those who knowingly violates the law.

By the very nature of capital punishment, it does offer justification for punishment and the lex talionis can be seen as justification for capital punishment [17] and this view is still prevailing.

The second prevailing philosophy of punishment is deterrence. Many philosophers considered deterrence as an important factor in capital punishment. Society uses punishment to deter others from doing an act when they think of the potential outcome of their action. Punishment will discourage would-be offender from violating the law.

If the offender considers the risk of committing a crime, being caught and the consequences of such breach, this may deter the offender from committing a crime. As punishment deters potential offenders from violating the law thus it is justifiable if it is used to prevent a crime. [18] 

Punishment is able to improve the offender by changing the offender's attitude and conduct. According to Bentham [19] , human are always rational, seeking pleasure and avoiding pain and the right or wrong of its conduct is motivated by the pleasure and pain one will enjoy or suffer. As the penalty of capital punishment is death, human tends to avoid this as it causes pain. If these were the issue, human tend to guard their place and try to avoid disturbing this scenario. They will also observe and calculate the risk involved before conducting or participating in any unwarranted behaviour. John Austin has also mentioned that the purpose of punishment is to instil fear. According to him, "the term superiority signifies might : the power of affecting others with evil or pain and of forcing them, through fear of that evil, to fashion their conduct to one's wishes". [20] Where there is fear, there is a silent willingness to obey the law.

In brief, fear of the potential punishment deters the would-be offender from committing a crime. In administering punishment to the offender, it causes fear to the offender (specific deterrence) and others (general deterrence) in preventing future crime from reoccurring. Specific deterrence cannot be materialised in capital punishment cases as the offender is executed. [21] Therefore punishment only applies to general deterrence.

It was argued that '[n]o other punishment deters men so effectually from committing crimes as the punishment of death ... In any secondary punishment, however terrible, there is hope; but death is death; its terrors cannot be described more forcibly.' [22] 

Although the offender has no hope of reform, it will make other would-be offenders to reform and this will serve as a deterrent factor. Death penalty will definitely raise fear of losing their life. If death penalty is imposed, it will also deprive the offender's opportunity of committing any future offence.

Deterrence also refers to intimidation. [23] By deterring potential offender, not only will it prevent future crime but also control the crime as "the greater the threaten penalty, the more it deter," as "[o]ne is most deterred by what one fear most". [24] If by executing one man who murdered another can save the lives of the community, then the capital punishment has served its purpose. For this view, the offender deserves the punishment due to the gravity of the offence committed and the offender is responsible for such crime. [25] 

However, some may view death penalty as unjustified, cruel and ineffective. [26] It was argued that the state does not have the right to take away the life of a person. Fear and intimidation are not the only justification to deter society from committing a crime. It was argued that imprisonment without parole will also ensure the safety of the society.

On the other hand, if there is no serious implication for offences that warrant capital punishment, it may raises disruption in the society as the most severe punishment is not available. If the society is made aware of the implication of the law and its threat in violating such law, the threat itself serves as deterrence. Where the implementation of such law is executed to those who violate it, it confirms that it is not a mere threat. Due to the certainty of the punishment and also its severity, it is an effective way to deter a would-be offender and also as a warning to society to abide by the law.

It was previously considered that preventing crime is "the sole justification [of punishment] known to the scientist." [27] If the punishment is done in a fair and open manner, it may be a justification to prevent crime.

Punishment can improve the good of community as it deter potential offender of committing the crime. And even if capital punishment may or may not deter would be offender from committing an offence, it protects the society from any reoccurring offence when the person on death penalty is executed. It ensures that the community are secured protected from the offender. [28] Therefore it is justified for capital punishment to protect the community from those who impose a threat to the community. When one violates the law of the community, he or she must be aware of the repercussion of violating such law. Therefore it is justified to protect ourselves and also the community from such offender. It was considered that in political society, 'the right to punish has been transferred from the individual to the state.' [29] 

There are certain offences in the world that require the imposition of death penalty, among others murder, treason and drug trafficking. Although there is no actual bodily harm for drug trafficking, however the nature of such offence can endanger the society. This is due to the deterrent effect of capital punishment which can deter others from committing a crime. [30] 

Ehrlich (1975, 1987) had reported that there is a significant effect of deterrent on capital punishment. This is based on his theory of regression equation.

However there are no sufficient evidence to suggest that death penalty does or does not deter murder more than other punishment (Van den Haag, 1997) and that the crime rates in countries with capital punishment is lower or higher than those without capital punishment.

Another principle of punishment is incapacitation. This will only be mentioned briefly. Some argued that incapacitation may be a possible principle of punishment for capital punishment. It is more concerned on protecting the society. Thus removing the offender away from the society, further crime may be prevented. If the person is in prison, he is unable to commit any offence while is incarcerated. Ever more, if a person is sentenced to capital punishment or has been executed, there is no further risk or minimum risk of reoffending any crime. As such, it was suggested that capital punishment offers the ultimate goal for recidivism. [31] Bentham noted that "for a body to act it must be there". [32] Therefore, once a person is executed, the 'body' is unable to reoffend. However, due to its irreversible consequences, for example if killing an innocent person, there may be other punishment that serves to justify this purpose as compared to capital punishment which may involve lesser costs and risk.

Rehabilitation is another philosophy of punishment. Although it may seem that there might not be sufficient time to rehabilitate an offender who is to be executed of any future crime, it is recognised that people do change their perception over some times and this includes murderer. [33] By reforming the character of the offender, it will effectively reduce future crime and improve the offender's character and behaviour (Duff and Garland 1994).

This principle of punishment is based on utilitarian philosophy of forward looking and concerns with the consequences of punishment. [34] This primary aim is to rehabilitate the offender to prevent a crime from being committed. Where an offender can be reform, it may be better for the offender to be rehabilitated. This will ensure that the offender does not commit the crime again. It looks at the background of the offender and punishment.

In relation to capital punishment, although there is no conclusive evidence that the offender may be rehabilitate, however, the notion that the execution is real and to be executed may change the value or characteristic of the offender. Sometimes before any execution, the religious or spiritual people would offer their services to the offender on death penalty, I am incline to believe that the offender has rehabilitate if this service is accepted by the offender before his or her execution. Furthermore, if there is a rehabilitation program for those on death penalty rolls, they can be evaluated on the possibility of providing opportunity to contribute to the community before its execution. This may also serve as an evaluation on the progress of the person on death penalty. It may also be easier to evaluate and determine on the prospect of pardon or clemency. However, the question as to what extent of the rehabilitation on the person and whether those who is granted pardon or clemency would prevent any further crime is yet to be seen. For this to happen, further analyses on the risk and costs factor have to be undertaken.

Another principle of punishment to be considered for capital punishment is restorative justice. The rights and needs of the victim are increasingly recognised especially in the late twentieth century. The family of the victim may attend watching brief while the case against the offender proceeds. This is to allow them to hear and watch the case closely until the disposal of the case to ensure that justice is served. If the judgment is announced, the family may also hear the verdict. As some jurisdiction has the victim's statement (include family of the victim) the court may or may not consider it weight. However, the judgment must be based on the evidence presented before the court.

Restorative justice is 'a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future'. [35] The purpose of restorative justice is '[t]he restoration into safe communities of the victims and offenders who have resolved their conflicts'. [36] By being in contact with the offender, it is desired that some or any issues might be resolved. It may also be seen as a closure for the victim of the family so that they can move on with their life.

It focuses on the victim, to address their need and suffering. [37] This also includes the family of the victims and those affected. With this increase pressure especially worldwide, restorative justice is anticipated to restore and balance the needs of both offenders and victims by reconciling relationships.

Although it cannot change what has happened, it may restore some balance of the relationship between the victim and offender, the offender and community, or the offender and the victim's family. For capital punishment, those affected by the crime may try to understand the underlying factor leading to such crime to enable them to proceed with their life.

Restorative justice not only focuses on the offence and the offender but also the past and future behaviour. [38] There is a mixture of both the retributive and utilitarian theories in restorative justice.

In order to restore the balance within the community, it tries to repair the harm from the offence. It focuses on the relationship between crime victims, offenders and society. [39] 

It was stated that 'the primary distinguishing feature of restorative justice is an effort to repair the harm crime causes.' [40] 

Restorative justice also involves the process of shaming the offender. (Braithwaite, 1989 p 13; Cunneen 1997 p 293). The offender must firstly admit his part of the crime in order for the restorative process to be effective. However, there must be some level of respect as well.

Before the execution of offender, if restorative justice can be held, it may provide repair the harm that it causes to the family of the victim. The victim of the family sometimes wanted to know the reason behind the crime and so on. By having this communication between the offender and the family of the victim, it can clear some doubt and also understand the situation before them.

By reconciling the relationship between the offender and family of the victim, it is hoped that balance is restored to the society.

In conclusion, we can see that capital punishment is still relevant as a form of contemporary punishment in the criminal justice system of the world. The effect of capital punishment in jurisdictions that retain capital punishment still reflects the prevailing philosophies and principles of punishment such as retribution, deterrence, rehabilitation and restorative justice. These philosophies of punishment ensure that while it may prevent further crime from occurring, it also protects the society. There must be a balance between the offender and the society in order for the punishment to be met. Relevant factors were considered to realize an appropriate punishment and to prevent chaos in the society. However, death penalty should only be justified for serious and heinous offence where capital punishment is the only form of punishment to protect the society from greater evil.