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This paper analyses the past and future of the death penalty in Britain, examining the rationale for abolition in 1965 together with the potential and merits of re-introduction in the future.
The death penalty was abolished in 1965 in Britain following a 1953 Royal Commission and pressure by abolitionist groups. While the 1953 Report went outside its remit, to examine the effectiveness of hanging, it addressed the issues of deterrence and retribution; often heralded as the twin foundations of the death penalty and consequently used as the main arguments for the failure of the punishment.
Bailey summarises deterrence theory by stating that “criminal sanctions must be severe enough to outweigh the pleasures”. A fundamental concern is that deterrence can be broken down into various components. The apex of deterrence is a swift, public, just, and painful execution. A death penalty that combined all of these features could be said to have the maximum likelihood of deterring potential criminals. It is generally believed that the majority of death penalty mechanisms in existence lack at least three if not all four of these qualities. Whether the death penalty in fact deters is the subject of numerous studies; when read objectively they give no definite answer.
Retribution is in many respects the antithesis of deterrence. Deterrence focuses on logic; retribution deals with the emotional reaction of society, with the oft quoted foundation being “an eye for an eye”. In many respects this is concurrently the most and least powerful argument for the death penalty. It is difficult to argue, in particular in the most heinous cases, that society and specifically the victim’s relatives should not have the satisfaction of retribution. Concurrently it is an argument based on emotion; an element that justice strains to minimise. The fundamental difficulty was discussed by the US Supreme Court in Roper v Simmons where Justice Kennedy made it clear that retribution can be justified only in certain cases; not in the case at hand. It is this fragmenting of the death penalty, with exceptions and splintered rationales developing, that has led to gradual reduction in the use of the death penalty.
While a number of Royal Commission Reports and campaigns debated the issues mentioned above and below, it is likely that one particular argument dealt a hammer blow to the death penalty; the concept that innocent people may be executed. This realisation was a contributing factor to Justice Blackmun’s famous dissenting statement “I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed”. Year after year, new, modern evidence uncovers miscarriages of justice that lead to innocent men and women being released. In 1991 the ‘Birmingham Six’ were released following police errors and new evidence. Had they been convicted 30 years earlier, there would have been nothing more practical to do than grant posthumous pardons. Hood argued that one of the main reasons for America still using the death penalty was that it was a populist measure. If this is so then there must be strong support for this argument of potential injustice, above the more specific, clinical reasoning, that persuades individual citizens of the dangers and risks that are inherent in the “machinery of death”.
The modern addition to these time honoured theories is the popular focus on rehabilitation over punishment. The Criminal Justice System clarifies this by placing rehabilitation on an equal plane with punishment. The rationale for this is uncomplicated and is based on the importance of working with the individual in order to help them contribute to society as a whole. The death penalty fairly obviously has no place within this new philosophy.
The theoretical objections discussed above are merely the tip of an iceberg capable of sinking at least an ocean liner. Were there to be an inclination to re-introduce the death penalty, and in 1994 a bilateral coalition of 403 MPs favoured abolition, the European Convention on Human Rights would still have to be faced. Through the Human Rights Act, the United Kingdom is a signatory to the Act and is prohibited from imposing “degrading punishment”. The issue has arisen predominantly with regard to cases of extradition to death penalty countries, and the courts have made it clear that even to extradite to such countries would constitute prohibited punishment.
Further, to contemplate such a policy reversal would risk international condemnation. Amnesty have been vocal in condemning America and would turn their and others focus to Britain in an instant. While awareness of the factors above has been instrumental in 122 countries abandoning the death penalty either in its entirety or in practice, the evolution has also been the result of constant pressure from Human Rights groups including Amnesty International. Unlike America, Britain has traditionally been more dependent on the friendship of sister nations; a friendship that could conceivably shift dramatically. In short, the practical objections to a re-introduction of the death penalty would require a change in British foreign and domestic policy; the effects of which would be felt for decades.
This paper has addressed the death penalty in succinct terms; the question asks if it is the only way to “dramatically reduce crime”. The analysis on deterrence and retribution show that far from this lofty status, there is no guarantee that it will reduce any crime.
Bailey WC ‘Murder, Capital Punishment and Deterrence: A Review of the Literature’ (part of ‘The Death Penalty in America, Current Controversies’ Edited by Bedau H, Published by Oxford University Press
Hood R ‘Capital Punishment’ (1998) (part of ‘The Handbook of Crime and Punishment’ Edited by Tonry M, Published by Oxford University Press
Hood R ‘The Death Penalty: A World-wide Perspective’ 2nd Edition
Turow S ‘Ultimate Punishment’, Published by Picador
GB Royal Commission on Capital Punishment: Report of the Royal Commission on Capital Punishment (1953)
European Convention on Human Rights
Callins v Collins (1994)510 US 1141
Roper v Simmons (2004) 543 US 551
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