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Political Halley's Comet,
The Death Penalty in
Global Comparative Perspectives:
Case Studies of Canada, India,
Apartheid South Africa, Nigeria, Jamaica,
Grenada, Uganda,
Nazi War Crimes and International Law
Munyonzwe Hamalengwa, Editor
For Nelson Mandela
Table of Contents
Foreword. 1988 Munyonzwe Hamalengwa
Foreword, 1997 Munyonzwe Hamalengwa
Part One - Introductions
Theories of Punishment and the Death Penalty
Munyonzwe Hamalengwa
Chapter Two The Death Penalty in Comparative Perspective
David McRobert, Ministry of the Attorney-General, Toronto
Part Two - Canadian Perspectives
Chapter Three The Death Penalty: Canadian Perspectives
Ontario Criminal Lawyers' Association, Ontario
History Capital Punishment In Canada
Popular Opinion The Question of a National Referendum
The Alleged Need for a New "Free Vote" in Parliament
Popular Opinion Favours Capital Punishment
Morality The Moral Right of the State to Kill (see also Retribution)
and The Bible Says: "An Eye for an Eye"
Religion The View of the Churches
Deterrents Are There Alternative Deterrents?
The Fear of Execution Will Deter Criminals
Statistics: Abolition and the Murder Role
The Isaac Erlich Study
Justice People Are Getting Away with Murder
We Need Capital Punishment to Bring
More Murderers to Justice
Murderers Commit More Violent Crimes Once Paroled
Are Death Sentences Just or Arbitrary and Discriminatory?
Table of Contents
Justice The Consequences of Mistake
Crime Crime Occurs Because Criminals Need Not Fear for Their Lives
and We Need Capital Punishment to Curb Violent Crime and to Make
Criminals Canada Safer
Mass Murderers
Terrorists
The Police We Need Capital Punishment for Police Killers Because the Police Require Special Protection
Police Killings Since Abolition: Statistics
The Police Want Capital Punishment and They Know Better
Retribution Retribution is Society's Right
Only Death Will be Appropriate Retribution for Murder
Murderers Should Get Their "Just Desserts"
Punishment Only Through Severe Punishment Will We Stop Crime
Capital Punishment Isn't Murder, It's Punishment
Cost It Costs Too Much to Keep Murderers Alive
Chapter Four Capital Punishment: A Modified Wealth Maximization Approach
Professor Kenneth Avio, Department of Economics, University of Victoria, Victoria
Part Three - Third World Perspectives
Chapter Five The Death Penalty in India
Fari Nariman, Senior Advocate, Supreme Court of India, New Delhi
Chapter Six The Grenada Murder Trial: No Case For Hanging
Tony Gifford, Q.C., U.K.
Table of Contents
Chapter Six
(continued) Analyzing the trial
Political errors or criminal acts
Avoid simple prejudgments
The unconstitutional court
Fair Trial Motion
The withdrawal of the defence lawyers
Still no constitutional court
The prejudice of the jury
The right to challenge jurors
Contempt of Court
The absence of defendants
Physical beatings
Removal of documents
The Court House
The evidence at the trial
The defendants
The defendant turned crown witness
The evidence
1. The history of the crisis
2. Evidence from Fort Rupert
3. Witnesses to the executions
4. The case against the Central Committee
5. True confessions of statements under torture?
Inconsistent witnesses
The defendants address the Court
Analyzing the defence statements
Conclusion
Chapter Seven The Death Penalty in Jamaica
Amnesty International, London
Preface
General background
The death penalty in Jamaican law
Conditions under which prisoners under sentence of death are held
Studies and debates on the death penalty in Jamaica
The Barnett Commission of Inquiry, 1975
Parliamentary debates on the death penalty
Executions in Jamaica 1979/1984
Table of Contents
Chapter Seven
(continued) Decision of the Judicial Committee of the Privy Council in England
in the cases of Noel Riley and others
Executions after June 1982
Some further information on four prisoners executed between 1981 and 1983
The Fraser Committee on capital punishment and penal reform
Findings of the research team
Types of murder and weapons used in the cases of 40 men on death row in 1979
Patterns of murder in Jamaica since 1964
Characteristics of men on death row in August and September 1979
The prerogative of mercy
Wordings of the Privy Council
Reasons for granting clemency
Statutory commutation of death sentences
Some general considerations on the death penalty
The death penalty as a deterrent to crime
Public opinion and the death penalty
Mandatory death sentences
Other considerations
The death penalty and international human rights standards
Conclusion and recommendations
Summary and conclusions
Recommendations
Chapter Eight Political Crisis and The Death Penalty in Uganda
Akena Adoko, Barrister, U.K.
Chapter Nine Against Capital Punishment in Nigeria
Eluen Emeka Izeze, Editor, Nigerian Guardian
Table of Contents
Part Four - War Crimes and Crimes Against Humanity
Chapter Ten Nazi War Criminals and The Death Penalty
Yossi Schwartz, Roach and Smith, Toronto
CHAPTER ELEVEN The Death Penalty in the context of Commission of Crimes Against Humanity in South Africa
Munyonzwe Hamalengwa, Barrister and Solicitor, Toronto
Part Five -The Death Penalty in International Law
CHAPTER TWELVE Conclusion: The Death Penalty in International Law
Munyonzwe Hamalengwa, Barrister and Solicitor, Toronto
The manuscript of this book lay unattended to for 10 years because it appeared that once the Bill to re-introduce the death penalty was defeated in 1987, interest in the subject had waned. However, two major unrelated developments reignited interest in the death penalty in Canada in the 1990's.
The first one was that of the high profile trials and convictions of Paul Bernardo for killing two teenagers and Clinton Gayle for killing a police officer. The application for parole by child killer Clifford Olson also fueled the debate on the re-introduction of the death penalty. These cases and other brought about tough talk on law and order, particularly from the newly formed Reform Party. This party eventually became the official opposition party in the Canadian House of Commons. It is conceivable that if this party became the governing party it would re-introduce the death penalty. Its leader, Preston Manning has talked about calling for a referendum on the death penalty. The sentiment for the death penalty is reported to be very high in Canada and the U.S.A.
The second development was the very public exoneration of individuals who had been wrongfully convicted and may well have been executed if the death penalty had existed; or may have led to the execution of those individuals if the death penalty had been imposed and carried out at the time of their convictions. The most well known cases include Guy Paul Morin, David Milgaard and Donald Marshall. There have been attempts at the exoneration of Steve Truscott.
Over the last several years all over the world, individuals have been exonerated who otherwise might have been executed for offences which it later turned out, they never committed. Examples include but are not limited to: Rubin ''Hurricane'' Carter who spent 19 years in prison and Geronimo Pratt who spent 27 years in prison in the U.S.; the Guildford 4 and Birmingham 6 in the U.K.; the Sharpeville 6 in South Africa and many others around the world. The U.S. brings forth on a regular basis numerous examples of people who were at the brink of execution before exoneration. A number of people have been executed in the U.K.; U.S.A.; South Africa and elsewhere for crimes it later turned out, they never committed.
Thus the topic of the death penalty will be with us for the foreseeable future. It is like the Halley's Comet. It keeps coming back after a disappearance. This book is a small contribution to that debate.
These essays are of uneven quality. Some are academic, some are commentaries on actual cases and thus practical, some are moralistic, while others are hard edged and condemnatory. They are all relevant and important to the debate in issue. Some essays have been edited to reflect new developments while others have remained reflective of the state of affairs at the time they were written.
Munyonzwe Hamalengwa
Toronto, November, 1997
Foreword and Acknowledgments
The majority of the papers contained in this volume were presented at a conference held at Osgoode Hall Law School in Toronto on October 10th and 11th, 1987 to try to examine the death penalty in the world. The conference was organized by The Nelson Mandela Law Society* in response to the Canadian House of Commons debate on whether to reinstate the death penalty in Canada. The motion was defeated in June 1987. The conference still went ahead because the death penalty still exists in the majority of countries and the debate could still be ignited in Canada by another government seeking votes or some other benefit.**
The conference was made possible by the financial support of the Provost of York University, Professor Tom Meininger; Law Foundation of Newfoundland and the Legal and Literary Society of Osgoode Hall Law School; York University Graduate Students Association; the former Dean of York Graduate Studies, Professor David Bell and the Canadian Union of Educational Workers, Local 3. I wish to thank the above most sincerely for their assistance.
Moral and political support cannot be underestimated when organizing a conference, especially one that involves strong moral choices like the death penalty. This support was in overwhelming abundance from Farida Shaikh, a student at Osgoode Hall Law School; Professors Michael Mandel, Harry Glasbeek and Douglas Hay, all of Osgoode Hall Law School; Michael Tulloch, David McRobert, both students at Osgoode Hall Law School. My wife Lucy shared the project enthusiastically. I thank each and everyone of you most profusely.
The contributions as summarized by David McRobert in Chapter Two came from able participants. I thank them all for agreeing to participate in the conference. I further thank those who wrote papers that appear here. I thank David McRobert for writing a very informative introduction in his usual perceptive and prolific fashion. I am grateful to the Ontario Criminal Lawyers Association for agreeing to their entire publication on the death penalty to be reproduced. Mr. Earl Levy, the President gave a very stimulating paper at the conference. Charles Roach and Yola Grant summarized reports on Grenada and Jamaica respectively for which I thank them as well as the original publishers of the reports for agreeing to their reproduction. These are respectively The Committee for Human Rights in Grenada and Amnesty International. The Guardian newspaper of Lagos, Nigeria is also acknowledged for permission to have their article reproduced.
Munyonzwe Hamalengwa
August 31, 1988
* This group later became known as the Black Law Students Association.
** The high profile cases of Paul Bernardo and Clinton Gayle brought renewed talk about the re-introduction of the death penalty.
Introduction: Theories of Punishment and the Death Penalty
by Munyonzwe Hamalengwa*
The death sentence when it is carried out, is the ultimate punishment. A person is obliterated for ever by an act of state. Of the two major justifications for punishment: retribution and revenge and utilitarianism, (and the various strands of deterrence, rehabilitation, etc.) the death penalty seems to accomplish more the retributive aspect of punishment. The State inflicts the ultimate revenge against the culprit - death. If the death penalty is justified under the deterrence aspect of utilitarianism, it achieves the final specific deterrence against the individual. Because the person is killed, he is therefore 'deterred' for eternity. It is something else if general deterrence is the one sought after. Are others deterred by the death penalty?
The following papers discuss various theories both justifying and disqualifying the death penalty as a form of punishment. The thread that runs through some of the papers is that general deterrence under which the death penalty is justified has not been achieved. In those societies where the death penalty exists, for example in some U.S. States, murder, which is the major crime that commonly attracts the death penalty, continues to be committed. In some cases the murder rate dropped after the abolishment of the death penalty. In Canada, for example, the murder rate fell from 3.09 per 100,000 in 1975 (the year before abolition) to 2.74 in 1983.1 The death penalty thus does not affect the rate of murders. In the U.S., the murder rate in death penalty states has differed little from that in other states without the death penalty but with similar populations and social and economic conditions.2 Others have argued that even if the death penalty has no special effect in deterring others, the execution of the worst offenders is needed to protect society from the risk of their repeating their crimes. The evidence however is that among offenders released on parole, convicted murderers present one of the lowest risks of recidivism.3 Most murderers are first time offenders. The implication is that the death penalty is not the answer.
* Munyonzwe Hamalengwa practices law in Toronto, Ontario, Canada
What is the answer? No answer seems to come out clearly in these papers except the suggestion of alternative sentences. This means prison terms are preferred rather than persons being put to death. There may be a possibility of rehabilitation. A life sentence may be the ultimate punishment since an individual is reminded every second, minute and hour of his/her life, why he/she is in prison. The person is given the opportunity to commiserate over the crime every day. The constant realization of the wrong done may be more painful than the death sentence itself whereby the person is gone forever. There can also be minimum sentences e.g. 25 years without parole. This would be enough punishment.
It could, however, be urged that a life sentence is not the ultimate sanction since the person could escape from prison; may be paroled or forgiven; the person may turn into a sadist and not care at all about why he/she is in prison, etc. One person could kill again.
The question seems to be, should there be need for ultimate sanctions in modem society?
There are many reasons for opposing the death penalty. Perhaps the most important one is that it is a very unusual, painful and inhuman form of punishment. It inflicts irreparable damage to the victim more than the victim is likely to have meted out to the person he/she killed, if revenge was the reason for the death sentence. Amnesty International in the report cited above describes how the person sentenced to death has a long painful struggle through various appeals to the day he/she is told that he/she will die on a certain day. The person is then segregated from the other deathrow inmates, he/she is shaved and so on. The final day then comes. There are usually last minute appeals, which sometimes lead no where.
The pain through the years, months, weeks, days, hours and minutes leading up to the carrying out of the death sentence cannot be fathomed of course by anybody who has not been through the death row process and reprieved at the last minute. Many death row inmates experience mental derangement in their last days. That is cruel unusual and inhuman treatment and punishment. It is even more unusual in the sense that it is a deliberate and conscious legal policy by a government to take away a life. The death penalty is in a class by itself. It is intended to inflict painful death By the state.
There is also the question of the execution of the innocent. In a U.S. study, it was discovered that between 1900 and 1985, 349 people were wrongly convicted of offences punishable by death.4 Twenty-three of these were executed. These are lives that cannot be brought back. In Canada, Wilbert Coffin was hanged on February 10, 1956 for three murders somebody committed in 1953. Coffin maintained his innocence to the bitter end. Many lawyers believed at the time that Coffin was innocent. Also in Canada, Donald Marshall, recently released, spent eleven years behind bars for a murder he did not commit.5 Convicting and occasionally hanging wrong people is one of the strongest reasons for opposing the death penalty. David Milgaard of Canada was exonerated in 1997.6
If the death penalty existed in Canada, Guy Paul Morin who was convicted at his second trial in 1992, but exonerated in 1995, may have been hanged.7 It goes the same for the Guildford Four and the Birmingham Six in England as well as the Sharpeville Six in South Africa. All these were exonerated after spending years in prison.8
Studies on the death penalty in the US demonstrates that blacks receive the death penalty which is disproportionate to their population or the rate at which they commit offences that attract the death penalty.9 In December 1994, for example, 40% of the men on death row across the U S were black even though blacks constitute only 11% of the U S population. In Pennsylvania, blacks on death row now constitute 60% of those on death row , even though the black population there is merely 9% of the total population. The following facts have further emerged:10
(1) defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks;
(2) race [of the victim] determines whether a death penalty is returned;
(3) nearly six of every eleven defendants convicted of killing whites would not have gotten the death penalty had their victims been black;
(4) twenty of every thirty-four black defendants would not have received the death penalty had their victims been black; and
(5) cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim.
Class also plays an important role in the imposition of the death penalty. Poor defendants are more likely to receive the death penalty than rich defendants. The rich can afford to hire experienced and good lawyers while the poor retain court appointed duty counsel on a $2,500.00 U. S. fee! In the meantime, the state unleashes unlimited resources.11
In societies where the judicial system is tainted by racial prejudices, for example Apartheid South Africa and the U.S., many people have been convicted and sentenced to death, on flimsy evidence or to satisfy public opinion. If the death penalty is abolished, the racial incidence in biased death sentences will also disappear thereby ensuring equality between races within the criminal justice system. The death penalty is also imposed like a lottery, others get it while others don't. In the U.S. it also depends on where the murder is committed, retentionist state or non-retentionist state.
Lastly, maintaining the death penalty is costly both to the convict and to the State. Millions of dollars are spent to process the appeals and to ensure the existence of facilities for those on the death row. Why should resources be used in such a manner to ensure the killing of a person by the State?
Notes
1. See Study Cited in Amnesty International, United States of America: The Death Penalty (1988) p. 162.
2. Ibid.
3. Ibid at p. 168.
4. Ibid at p. 172.
5. See Marshall Commission Inquiry (1989)
6. Milgaard was vindicated after DNA tests done in England
7. See Kirk Makin Redrum the Innocent, (Toronto, 1994)
8. There are many others around the world
9. See Jesse Jackson, Legal Lynching ,( New York, 1996)
10. See Mumia Abu-Jamal, Live from Death Row, (Reading et al, 1995)
PP XIX and 35
11. See Mumia Abu-Jamal, Death Blossoms (Farmington, 1997) P.141
The Death Penalty in Comparative Perspective
by David McRobert *
This volume of essays represents an attempt to come to grips with the issue of state killing, a process usually couched in the more neutral terminology of "the death penalty" or "capital punishment." For reasons that need not be recited here, the question of state killing has become very controversial over the past decade and seems likely to remain topical well into the next century. At the beginning of the 1970s few North Americans and Europeans were aware of violent repression in the Third World and the role of their governments in perpetuating conflict in nations such as Chile and El Salvador. Fewer still thought these issues deserved serious attention. Today that situation has altered dramatically, and many people are aware of the repressive governments in Apartheid South Africa and other countries in Central and South America.
In Canada the problem of state repression and the killing and torture of citizens is qualitatively different from that evident in the Third World. However, the increasing discrepancies between sentences handed out to the rich and the poor for similar offences and other issues such as the abuse of powers by officers in the Canadian Security Intelligence Service (CISS) suggest that there are intense structural conflicts and power struggles simmering in the murky brew called the Canadian justice system. Under the calm exterior that is presented to the Canadian public by our political leaders and most of the media, some of these structural conflicts are evidenced as peculiar contradictions that rear their ugly head every decade or so.
One of these contradictions is the push by some neo-conservative agents to reinstate the death penalty in many advanced capitalist nations. Pro-noose advocates argue that it is more economical to destroy people deemed to be "rotten" by the State and the courts than attempt to rehabilitate them. They point to the rising cost of prison facilities to support their position. In the United States, the death penalty has never really faded in importance, partly because of enthusiasm for this approach to policy-making.
Canadians have never shared the same degree of enthusiasm for the death penalty that Americans and their counterparts who support military regimes in the Third World
* David McRobert, at the time was with the Ministry of the Attorney General, Constitutional Law and Policy branch.
demonstrate. There are several myths that purport to explain this discrepancy in attitudes. One myth is that our federal legislators, who are mainly lawyers and cognizant of the fact that
small mistakes can result in wrongful convictions, and even a tragic death, feel it is better to err on the side of caution than to wrongfully end a life. Another part of this myth is that the courts are not always as free from bias as they purport to be; this was shown graphically in the testimony presented at the Marshall Inquiry in Nova Scotia in 1987 and 1988. In this case, it has become apparent that the judiciary and the police in the province teamed up to frame a young Micmac Indian named Donald Marshall as the killer of another young man. Marshall was later shown to be innocent and released, a result that would have been prevented if he had been wrongfully killed by the State for a crime he did not commit.
Others would invoke the myth that Canadians are a more tolerant peoples as the explanation for our unwillingness to apply the death penalty; thus our justice system reflects an attempt to draw on the best aspects of both British and American legal culture. As a result, most Canadians have less reverence for the system of rough justice that often seems to prevail in the United States.
Whatever the basis of the different attitudes held by Canadians and many other European societies on the matter of state killing, the issue of reinstatement of the death penalty has resurfaced periodically in various nations over the past fifty years. In Canada, the issue took on considerable significance in early 1987 because many people suspected the federal government would be launching a process to revamp laws and reinstate the death penalty. In the 1984 federal election campaign, Brian Mulroney, leader of the Progressive Conservatives, had promised there would be free vote on the issue in the House of Commons if his party formed the government. In stunning fashion, the Progressive Conservatives were swept to power with the largest majority in Canadian history, and pro-noose advocates were quick to claim that Mulroney's support for a vote on reopening the death penalty issue in the House was one reason.
Only days after the election, the campaign for reinstatement of the death penalty began to gain momentum under the leadership of certain Tory backbenchers such as Bill Domm, MP for Peterborough, Ontario. Death penalty advocates pointed to mass murderers such as Clifford Olson, who had murdered many children in a serial fashion in British Columbia in the early 1980s, to argue that society needed protection from uncontrollable killers who were not salvageable through reform programs. After years of lobbying, death penalty advocates finally were able to get a commitment from Brian Mulroney that a vote on whether the issue should be reopened would take place in 1987.
The forces opposed to reinstatement began to regroup and establish their own lobby to ensure that their view was not overlooked once the time frame for the parliamentary debate became clear. Prominent among opponents to reinstatement were Toronto lawyer Eddie Greenspan and the mother of a young girl who had been killed in the Toronto area in 1986. In anticipation of the debate in the House, national magazines such as Maclean's and many newspapers and other media began to feature articles on the issue. At the same time, students at Osgoode Hall Law School who had recently formed a group called the Nelson Mandela Law Society, in honour of the currently imprisoned leader of the African National Congress jailed in South Africa for the past 25 years, began to plan their first conference, tentatively titled "The Death Penalty: A Political Halley's Comet." Their intent was to provide a stimulating forum for discussion of the death penalty, and perhaps even influence the outcome of the parliamentary debate that they anticipated would take place in the Fall of 1987.
As it turned out, Parliament rejected the attempt to reinstate the death penalty in June 1987, following a passionate debate in the House of Commons.
Although some might have viewed this as a major setback, organizers decided to proceed with the conference because the issue remains topical in the international context and, like Halley's Comet, returns to haunt civil rights activists every decade or two.
The conference was held over two days and featured many excellent speakers. Their presentations provided a framework for informal discussion and participation. While it has not been possible to include all of the papers presented at the conference in this volume, all of the presentations merit at least some commentary. However, most of the analysis will focus on the papers contained in this volume.
What was so striking about the conference and the range of papers presented was their international scope. The application of state killing in countries as diverse as Jamaica, India, Chile, Apartheid South Africa, Canada, Britain and Uganda was considered by presenters and participants. While the majority of papers were presented by Canadians the ethnic mix of people who attended the conference was remarkable and added considerable life to the event and depth to this volume.
The event began with an address by Earl Levy of the Ontario Criminal Lawyers' Association. Levy summarized the paper included in this volume prepared by the Association as a brief to the House of Commons during the debate over reinstatement of the death penalty. In summarizing the report Levy reviewed various statistics on the crime rates and the death penalty, concluding that deterrence argument is misleading. "If the death penalty does have a (deterrent) value", he asked rhetorically, "why were 18,500 people killed in the United States in 1985?” In response to his question, Levy cited well-known evidence that most pre-meditated killings are committed by people who do not expect to get caught and many other murders are acts of passion. The only people who might deserve capital punishment, he contends, are terrorists. However, Levy expressed reluctance about this approach to state killing because "using the noose" might make terrorists into martyrs.
Levy then went on to criticize the media for its role in portraying people who kill. He pleaded that "people who kill are three dimensional ... their lives went on before the crime and could go on after it." Moreover, “ if Canadians believe in rehabilitation, then we must not engage in State killing.” In the discussion that followed, Levy was also critical of Victim Impact Statements. Although he acknowledged that the victims of crime have long been the orphans of the criminal justice systems, he feels that their needs are better addressed through counseling.
The next speaker, Kenneth Avio, presented one of the most scholarly papers of the conference. Avio, a professor at the University of Victoria, approached the problem capital punishment in terms of both moral philosophy and economic theory. According to Avio, these two theories suggest that an idealized legislature should reject capital punishment.
In terms of moral philosophy, rights-based theories hold that, as a matter of respect, we should allow an individual to live and repent his or her crime to the community rather than engage in state killing. Avio said that it would be difficult to take the view that state execution could enhance the human dignity of a community and thus, the argument made by some Americans to support the death penalty because it enhances community morality fails to convince.
Avio further argued that state killing is not supported by thorough economic analysis. Avio outlined a form of constrained cost-benefit analysis (CBA) that could be applied to assess the validity of the capital punishment as a deterrence mechanism. Among the key benefits of capital punishment that would factor into such an analysis would be a reduced prison population and the element of deterrence. The costs of capital punishment would include the destroyed "human capital", the cost of the judicial/legislative machinery required for death sentence appeals and the costs of "brutalization effects" of the death penalty.
This last cost is one that Avio has been unable to quantify because little empirical research has been undertaken to date. However, Avio thinks that the CBA for the death penalty hinges on the cost of the judicial / legislative machinery required for death sentence appeals. Avio doubts that the current system can be made cost effective, primarily because it is rife with racism. According to Avio, there is considerable historical evidence that race is the pre-eminent factor in decision on capital punishment cases. He cited statistics showing native Canadians were six times less likely to have their sentences commuted compared to whites who had committed similar crimes based on data for 462 death sentences handed out between 1920 to 1967.
While this does not confirm that the justice system would continue to function in this way if the death penalty was reinstated in Canada, it could be argued that based on this research, Avio believes that a "constrained" CBA would reveal that the arguments made in favour of capital punishment on economic grounds are unconvincing and illogical. Following his presentation, several commentators praised his work as particularly elegant and persuasive.
One of the most stimulating talks was presented by Professor Douglas Hay, a legal historian who teaches at both Osgoode Hall Law School and York University. Over the past decade, Hay has undertaken detailed research on the political significance of capital punishment in England in the 18th and 19th centuries and how the social meaning of the death penalty meshes with ideology. His research shows that in the early 18th century, approximately 90 state executions were carried out in England each year. Of this number, most were executed for property crimes such as theft, and only 20% were killed for committing murder. This pattern continued until the end of the 18th century with the support of the ruling elite as a mechanism for shaping public opinion, disciplining unruly workers, and instilling fear of punishment into the masses.
At the beginning of the 19th century, capital punishment was increasingly challenged by reformers who associated it with "aristocratic oligarchies” wielding power in tyrannous ways. Despite these challenges, the reformers were not successful for more than thirty years. Tories argued that if capital statutes were abolished, criminals would be more bold since policing was inadequate. Thus, an omnibus bill abolishing most capital statutes in England was only passed in 1837.
Other social forces also contributed to the erosion of the popularity of the death penalty. Many Tories believed that public executions were becoming popular, and in the United States hanging was seen as a waste of time because it led to drunkenness and attracted immigrants to congregate in a central area. This could be threatening to the State and no doubt certain critics felt pressure must be brought to eliminate state killing for minor offenses because growing awareness of the contradictions in the justice system might rile the masses who attended these events.
Hay went on to draw out the implications of his analysis for more modern attitudes towards state killing. In the result, Hay maintains that those who support capital punishment do so because it meshes with their world view. Accordingly, instrumental arguments are probably not important to most Americans who support the death penalty. A combination of socialization forces that promote authoritarianism and maintain the popularity of capital punishment are likely most important. Thus, in spite of the convincing arguments against deterrence as a rationale for capital punishment, the popularity of state killing continues to grow in the United States and certain regions of Canada.
In the session that followed, Professor Harry Glasbeek, who teaches a course titled "The Corporation as Criminal" at Osgoode Hall Law School, and has done research on corporations for more than a decade, provided an entertaining commentary on the paradox of debates on reinstatement of the death penalty. Glasbeek observed that those who make the argument for capital punishment often rely on the notion of vengeance based on the biblical adage of an "eye for an eye." At the same time, these individuals also usually advocate the minimal state and challenge state intervention in "normal" market processes such as the vicious killing of workers on the job through exposure to workplace hazards, environmental pollution or white collar crime.
In Glasbeek's view, herein lies one of the intriguing contradictions of capitalism. Somehow an arbitrary distinction between good greed, the premeditated crimes committed by corporations and their leaders, and bad greed, the crimes of thieves or drug pushers, is upheld. This distinction allows corporate executives and other white collar criminals to steal billions and violate occupational health and safety standards without facing serious penalties. Instead, relatively minor crimes such as theft or even crimes of passion are used to justify tougher criminal laws.
Glasbeek went on to observe that this distinction allows certain corporate interests to poison workers and improperly bury PCBs for profit. In an ironic manner, he suggested, with his tongue firmly in his cheek, that perhaps Canadians should welcome the return of the death penalty, particularly if Bill Domm and other pro-noose advocates can be convinced that there are some great candidates from the corporate world who should be all lined up to deal with first. Unfortunately, the papers by Glasbeek and Hay were not available for inclusion in this volume.
The fourth part of the volume contains two of the papers presented in this session. The first paper, presented by Jossi Schwartz, a lawyer at Roach and Smith in Toronto, advocates the death penalty for those criminals guilty of gross crimes against humanity. He begins with a stark inventory of the millions of people killed by the Nazis during World War II. In his view there are no more appropriate candidates for the death penalty, and Schwartz goes on to note that it is despicable that thousands of Nazis escaped to North America, South America and Australia, often with the help of western nations, after the War.
To bolster his case, Schwartz provided numerous examples of war criminals who should have been prosecuted. Specifically, Schwartz identified Nazi criminals such as Josef Mengele, Klaus Barbi and Alfred Boetcher as prime candidates. He suggested that the U.S. government has been reluctant to prosecute potential war criminals because it supports neo-Nazi groups, and it would be hypocritical to do so in view of the U.S. record in Vietnam. Similarly, Schwartz was also critical of the record of Israel in Lebanon, where it is estimated thirty thousand Palestinians and Lebanese were killed when Israel invaded on several occasions in the early 1980s.
In the last presentation on the first day of the conference, Munyonzwe Hamalengwa presented an overview of his argument for the prosecution of people accused of War Crimes and Crimes against Humanity. While Hamalengwa did not go as far as Schwartz in his analysis of the application of sanctions against war criminals in Canada, he agreed with Schwartz that it is deplorable that many despots and tyrants end up escaping to North America.
Hamalengwa went on to argue the new legislation proposed to deal with war criminals and those guilty of crimes against humanity should be used to prosecute Apartheid criminals. In the alternative, he feels it is possible that Botha and some of his cohorts will eventually seek refuge in Canada. Hamalengwa’s paper is also included in the fourth part of this volume, but severely edited and limited to the issue of the death penalty under apartheid in South Africa.
On Sunday morning, the Conference recommenced with a fascinating account of the human rights problems in Grenada since the 1983 American invasion. The account was presented by Charles Roach, a prominent Toronto lawyer hired by the family of one of those charged in an alleged coup attempt which resulted in the death of 11 people, including Maurice Bishop, on October 19th, 1983. Roach summarized a paper written by Tony Gifford, titled "The Grenada Murder Trial: No Case for Hanging."
The background to this series of events was summarized as follows. In October 1983 a conflict emerged between Bishop, the Prime Minister of Grenada from March 1979 to his death on 19th October, 1983, and members of the Central Committee of the New Jewel Movement (NJM). In the eyes of many observers, Bishop's leadership had become "a beacon of progress" in the Caribbean. However, the latter group, led by Bernard Coard, Deputy Prime Minister and Minister of Finance, challenged the moderate policies of Bishop. After a power struggle, Bishop was captured by the Central Committee of the NJM. A brief period of confinement ensued and after a public demonstration, Bishop was killed. Later that month Reagan invaded Grenada under the pretense of regional de-stabilization.
Predictably, the trial of those who were viewed as responsible for the death of Bishop was extremely political. Roach contends that the court which was eventually established did not have competent jurisdiction. In addition, he asserts that millions of dollars were funneled to the Caribbean Judiciary in anticipation of the trial and the jury selection process was extremely irregular. Roach also pointed out that the jury deliberated only three hours on over 190 murder counts which were spread among the 19 people, charged.
In view of these circumstances the trial results were also predictable. Guilty verdicts against 13 men and one woman were returned on 4th December 1986 and these fourteen people were sentenced to the mandatory sentence of death applicable in such cases. Roach does not dispute that some sort of murder trial should have taken place. However, he thinks that in this case the trial was a sham and a violation of Grenadian sovereignty. In his view, a new trial should be held and other investigations should be undertaken regarding the deaths of other people at the hands of the military. If this does not take place, the American government will have effectively used these trials to teach Grenadians that they should not dabble in socialist politics.
Following Roach's presentation, Yola Grant presented a paper on the death penalty in Jamaica. Her analysis relied primarily on a report from Amnesty International prepared in 1984, which is extracted in this volume, and on her personal knowledge of life, having grown up in the country prior to coming to Canada in the 1970s.
As background, Grant noted that prior to 1976 the Jamaican State took the lives of about 5 people a year. Between 1976 and 1980, no executions took place while a series of commissions investigated the "purpose" of the death penalty. According to Grant, a "weak-kneed" report against the death penalty was released and in January 1979, a Bill to abolish it was defeated. As a result, the hangings commenced again in 1980. Since then, the rate of state-killing has accelerated; in one month, over 18 people were killed. Grant believes that this is only part of the problem. She commented that the conditions on death row are appalling - hot and dark with no opportunity for exercise.
Grant went on to comment that there is a class basis for this pattern of execution. According to the Amnesty Report, 80% of those people executed in Jamaica were from the lower economic group. Moreover, two-thirds of those sentenced were first time offenders and many of the murders were committed in emotionally-charged situations.
Another aspect of the problem in Jamaica relates to the fact that many killings take place in the context of political fights during election campaigns. While these killings attract media attention, often the gunmen responsible are not caught and, if they are, police shoot them on the spot. Meanwhile, the widespread problem of "wife murder," which Grant contends accounts for up to 30% of the murders committed in the nation, is ignored by the media. Grant was also critical of the amount of discretion invoked by police in murder cases. She noted that police clear-up rates have declined dramatically recently and that prosecution rates have also dropped to 32% from 71% in the 1970s.
The final session of the conference continued with a presentation by Mariela Morales. Morales, a former lawyer in Chile and currently an advisor with the Ontario Ministry of Labour, surveyed the meaning of the death penalty in context of political repression in Chile. She noted that although the death penalty was part of Chile's criminal code prior to 1973, it was rarely used. Although debates on the death penalty had sometimes taken place, reformers had failed to have the provisions removed. When the military came to power in 1973 in Chile, these provisions became a powerful tool for the government. However, Morales contends that the decision to apply the provisions again was largely overshadowed by the severe violations of human rights and killings that took place over the next decade. It estimated that over 23,000 people disappeared in Chile during this period. While military officers invoke the defense that they were dealing with terrorists, others have suggested that these disappearances were merely brutal killings. In view of this pattern, the death penalty pales in comparison with the specter of state-sanctioned military killings. Morales’ paper is not available in this collection.
Papers that followed surveyed application of the death penalty in India and Uganda. The first by F.S. Nariman on the Indian experience reviews attempts to reform British laws that stipulate the death penalty is an acceptable punishment for many crimes. Nariman was critical of these laws because they allow judges to exercise an enormous amount of discretion in the application of the death penalty, and consequently provides judges with enormous amounts of political power.
Akena Adoko considered the history of the death penalty in Uganda. He concludes that many Ugandans support the death penalty for irrational and emotional reasons. For example, Adoko points out that people fear that exposure to imprisoned murderers may influence the attitudes of other prisoners and prison staff. In this respect, both Nariman and Adoko show that efforts to bring about reform have been frustrated by historical patterns and cultural values infused by Europeans into their cultures over the past few centuries.
The concluding paper was presented by Simon Daniels, an activist from South Africa who has been involved with the African National Congress (ANC) and opposed Apartheid. He provided an update on the crisis in South Africa, noting that the hanging of political prisoners in the nation had increased markedly as criticism of the Botha regime from inside and outside South Africa had mounted in the past few years. He contrasted the behavior of the Botha government with the policies of the ANC, who had signed the Geneva Conventions relating to treatment of prisoners of war. Accordingly, the ANC demanded that Pretoria should treat ANC fighters captured by the South African army as prisoners of war rather than murderers. Since this appeared unlikely to happen, the ANC suggested that crimes of apartheid would be dealt with in an aggressive manner. For example, it was proposed that when the Botha regime was defeated ANC leaders will appoint a special tribunal to mete out appropriate sentences to apartheid criminals.** Daniels’s paper was not available for inclusion in this collection.
In conclusion, it is apparent that the papers presented at the conference offered important insights into the nature of state killing in the twentieth century. Those included below are among the best presented at the event, and reflect the sentiments and concerns that motivated the conference organizers.
** After the death of Apartheid, the ANC government set up a Truth and Reconciliation Commission to vet those who would be granted immunity from prosecution for crimes committed during the apartheid era.
Part 2 Canadian Perspectives
The Death Penalty: Canadian Perspectives
by The Ontario Criminal Lawyers' Association *
History:
(i) Capital Punishment in Canada:
Prior to 1960, our Criminal Code defined murder as a "culpable killing" directly or indirectly, by any means. The only other category of culpable killing was manslaughter. The penalty for murder was capital punishment and was always carried out by hanging. The sentence of death prior to 1955 was almost always carried out. While the Executive Council of the Parliament of Canada exercises a Royal Prerogative of mercy, carried out by the Governor General, the exercising of such a power was extremely rare.
The first attempt to block the death penalty in Canada was a Private Member's Bill in 1914, which failed, and such attempts were repeated in each of the next three years, with the same result. In the mid-1950's, a joint Committee of the Senate and the House of Commons was set up to study the death penalty and corporal punishment. Its Report, issued in 1956, favoured the retention of capital punishment for murder, piracy and treason.
In 1960 the Criminal Code was amended, and among other changes murder was divided into "murder" and "capital Murder", the former punishable by life imprisonment, the latter by death. Capital murder was defined as ordinary murder that was planned and deliberate.
In 1966, the first major debate in the House on abolition took place, and a motion for abolition was tabled but was defeated 143-112. In 1967, the unlawful killing of police officers or prison employees was deemed capital murder, whether planned and deliberate or not. Under the Pearson government, a Bill aimed at abolishing the death
* This paper was summarised by Earl Levy, President of the Ciminal Lawyers’ Association
penalty for a five year "trial" period, except in cases of capital murder (murder of police officer, prison guard, member of prison staff acting in the course of their duties by the accused, counseling of such an offence, or procuring a third person to commit such an act and military offences was passed), and the five year moratorium began on December 29, 1967.
Upon expiry of the Bill, the law-reverted to its pre-moratorium status, but one week later a five year extension to the Bill was enacted. Before this extension could expire, in the 1975-76 House, Bill C-84, proposing the permanent abolition of the death penalty for criminal offences was debated, and became law on July 26, 1976.1
The debate of Bill C-84 was a long and impassioned one. Throughout the 98 hour debate, the numerous controversies relating to capital punishment were examined and re-examined by members of the House of Commons until members voted not along party lines, but according to their informed consciences. In the end, Parliament voted 130 to 124 to retire the hangman in Canada.
The last executions in Canada occurred on December 11, 1962, shortly after midnight, when Arthur Lucas and Ronald Turpin were hanged in Toronto's Don Jail.2
Popular Opinion
This Section deals with the proposition that capital punishment is "too important an issue to be left to lawyers, judges, and politicians". Proponents of capital punishment are often reported as proclaiming: "Let the people decide ". Because opinion polls in recent years have consistently demonstrated that a majority of Canadians are in favour of returning the death penalty "Let the people decide" becomes synonymous with the proposition that capital punishment should be reinstated.
The reliance upon popular opinion manifests itself primarily as a call for a national referendum on capital punishment. For very sound reasons, outlined below, a national referendum would not actually lead to an informed, intelligent, or appropriate policy regarding the death penalty in Canada.
This section also deals with calls for a new "free vote" in parliament on the issue and with the opinions of some fairly popular, and well-respected, Canadians.
(i) The Question of a National Referendum
Perhaps it was best said by the late Arthur Maloney, Q.C. an advocate for human rights and the abolition of capital punishment throughout his career as a lawyer, parliamentarian and Ontario's first ombudsman. Commenting on the apparent increasing demand for a referendum on restoring the death penalty in the early 1980s, Mr. Maloney said he felt that such a referendum would be a particularly unsatisfactory way of dealing with this issue because the outcome would depend so greatly on the public mood at the time the referendum was held; hardly an appropriate contingency upon which to decide matters of life and death.3
A prime example of this problem was demonstrated shortly after, the second killing of a York Region policeman in less than 2 months in October of 1984. A group of policemen's wives launched a petition demanding a return of the death penalty. No doubt, the event was a terrible tragedy. But that very fact led to emotional and unsubstantiated claims such as the one by Barb McDonald: "The only way to curb violent crime, which includes the killing of six Canadian police officers in the past seven weeks, is to bring back capital punishment."4 This statement, borne out of the frustration and outrage of the indicated tragic events, has no basis in fact and is not supported by any evidence whatsoever. But it is just the kind of belief which could lead to a pro-capital punishment result in a referendum (see Crime section, below).
It is also interesting to note that in the United States, a polled majority favoured the death penalty "even if new evidence showed conclusively that it did not defer criminals". There are other factors then, apart from public knowledge which could influence a referendum. In fact, the top reason stated for supporting the death penalty was revenge.5
In Manitoba, in December of 1984, a survey showed that 86% of Manitobans favoured the death penalty for those committing premeditated murder, 82.5% favoured the death penalty for killers of police officers and prison guards. Noting the extent to which recent events may influence public opinion, Gregory Mason, head of the University of Manitoba’s Institute for Social and Economic Research said the latter figure is probably the result of the many current murders of Canadian policemen and the then recent killings of two Manitoban prison guards.6
In its January 24, 1983 issue, TIME Magazine proclaimed: "Fear, pure and simple, is behind the new advocacy of the death penalty". It hardly needs stating that the decision to institute the state sanctioned taking of human life requires a more reasoned and considered process than one based on fear. At the very least, the decision should be an informed one.
And yet the evidence shows that the Canadian public, who the referendum advocates wish to decide this issue, are quite misinformed. For example, a recent study by the University of Toronto's criminology Center found that those Canadians surveyed thought Canada's homicide rate was about seven times higher than it really is. The truth is that since the abolition of capital Punishment in 1976, the murder rate has never been higher than 2.78 per 100,000 people as opposed to 3.09 per 100,000 people the year before the death penalty was abolished.8
Criminologists A.N. Doob and J.V. Roberts pointed out in 1984 that Canadians "vastly overestimate" the level of crime and violence in this country, and confuse the information they receive from American television with Canadian events. The U.S. homicide rate is three and one-half times the homicide rate in Canada.
In fact, Ontario Criminology researchers Neil Vidmar and Tony Ditenhoffer have come to the conclusion that if Canadians were informed about the facts of the death penalty, the polls would show the majority of people opposed-to it. Other surveys demonstrate that Canadians tend to believe that more than half of all crime is violent, when in fact 6 to 8 per cent is. Similarly, two thirds of Canadians believe the murder rate has increased since 1976, when in fact it has declined.9
Such erroneous public perception tend to increase greatly after a particularly heinous crime makes headlines. But headlines tend to create impressions that relatively rare events are commonplace and that capital punishment is necessary to "stem the tide". But as Toronto lawyer Leo Adler stated: "Those who call for the return of capital punishment based on the apparent dramatic increase in murders should consider the statistics rather than the headlines.” Unfortunately, the public often do not get access to statistics; but politicians do.
Of course, the most basic, and common misperception prevalent among Canadians is that capital punishment will deter murderers. As was stated in the English Methodist Recorder:
"It must be said forcibly that this simple reaction, almost wholly emotional, is mistaken. In the first place most murders are not the end products of the sort of calculated planning that provides the puzzle in detective stories. They are domestic tragedies when reason snaps under stress, or are the squalid result of drunken brawls."
It was therefore appropriate for the Inter-church Task Force for the Continued Abolition of the Death Penalty to state the following in 1980:
The Prime Minister of Canada in the Autumn of 1979 stated, apropos of another matter, that there will not be government by Gallup Poll. Nor should there be. Certainly, Parliament should, of course, show a decent respect for the opinions of mankind, but remember too, that it owes the country its own judgment. It might also be remarked that there is nothing which invests the most recent public opinion poll with the character of the immutable moral law of the universe.
Few issues have been as thoroughly ventilated by Parliament as has the death penalty. No other issue has on four occasions within a decade been the subject of full Parliamentary debate, followed on each occasion by a free vote. Those free votes show a national recognition that the difficult matter is one of conscience, and thus supremely, one for the judgement of the Members and not for a vote based on any impression of public opinion.
The Task Force asserts that the difficult question of the death penalty is a moral one, a matter of conscience which cannot be evaded by putting the burden of decision on any supposed public opinion.”12
In fact, it is undeniable that Parliamentarians are better informed, and better equipped, to deal with this kind of issue than the average member of the public. In Canada, capital punishment, abortion, euthanasia and other sensitive subjects are traditionally decided by Parliament, rather than public referendum, in the basic belief of democracy that elected politicians represent the people and have the power of informed choice.13
As Criminal Lawyers' Association President Earl J. Levy, Q.C. has stated: "In our Parliamentary system the people choose those who will decide what our laws should be, based on knowledge gained from input by interested groups from various segments of the public including police and lawyers. To seek a public referendum goes against one of the hallmarks of our Parliamentary system. Any decision on capital punishment should be based on informed opinion - not gut reactions and emotionalism.14
Indeed, in our Parliamentary system, our elected representatives have a duty to exercise their informed judgment. On November 3, 1774, English parliamentarian Edmund Burke made this now famous statement: "Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion."15 This sentiment was echoed by Prime Minister Brian Mulroney on September 25, 1984: "Yes, I do rule out the idea of a referendum. If you believe in the British parliamentary traditions and system, and I do, that calls upon members of Parliament to assume their responsibilities."16
(ii) The Alleged Need for a new “free vote” in Parliament
When they are not calling for a national referendum on the issue, advocates of capital punishment are almost invariably demanding a "free vote" in the House of Commons on the death penalty.
It is submitted that this suggestion is inappropriate for two reasons.
In the first place, the vote would be somewhat less than “free” in the context of the present government because of the overwhelming majority of the Progressive Conservative Party. Traditionally, Tory back-benchers have tended to support hanging and polls of the present Honourable members suggest nothing has changed in this regard - and the Tories hold 211 of the 282 seats. Most commentators believe a bill to restore the death penalty would pass.17
In the second place it must be recalled that a lengthy and informed debate was already undergone in the House in 1976 which resulted in the decision of Parliament to abolish the death penalty. Certainly, nothing has occurred in the intervening period which would justify a change in that decision. The 1976 decision to abolish capital punishment was reached by means of a free vote and it was arrived at only after exhaustive discussion of the issue.18
(iii) Popular Opinion Favours Capital Punishment
While it may be true that a simple majority of Canadians favour the death penalty, it is also true that one should have regard to just whose opinion is being expressed. A more careful survey reveals that the list of abolitionists includes many names of Canada's most informed and respected men and women as well as groups which are so sensitive to the value of human life - such groups as the Salvation Army, the John Howard Society, the Elizabeth Fry Society and Amnesty International. The list would also include virtually all major churches in this country as well as the United Nations.
MORALITY AND RELIGION:
This section deals with propositions that it is morally correct to kill murderers. One usually finds that such a position is usually derived from either a perceived moral imperative imbuing the state with a right to kill, in order to fulfill its obligation to protect its citizens, or from the oft-quoted biblical precept “an eye for an eye, a tooth for a tooth".
(i) The Moral Right of the State to Kill
It has been said that capital punishment merely represents society's most profound way of demonstrating that murder is wrong. By taking the life of one who engages in the most immoral of acts - the intentional taking of the life of another society indicates its revulsion of murder and clearly indicates that right prevails over wrong. Transgressing the ultimate wrong may morally lead to the ultimate loss for the immoral transgressor.
Apart from the logical fallacy of proposing that it is morally right to kill someone in order to demonstrate that killing someone is wrong, there is the question of whether or not the death penalty actually does what its proponents tell us it does. Do executions help convince society that violence and murder are morally wrong? Commentators suggest that executions lead society to the completely opposite conclusion - and in the completely 'wrong' direction: i.e. toward more murder and violence.
This question is important because even if we concede that the state has a moral right to take the life of the condemned man, the late Arthur Maloney pointed out to Parliament in 1960 that "there are many things which we are morally entitled to do but which we are not morally obliged to do." 19 The effect of capital punishment on the moral fibre of society is, accordingly, something we must have regard to.
Henry Schwarzschild, of the American Civil Liberties Union, put it this way: "A society that believes that the killing of a human being is a solution to any problem is deeply uncivilized. ... The marginally demented guy sees an execution as a prescription, not a threat. He thinks, 'if the state has a quarrel with Gary Gilmore, it kills him. Then if I have a quarrel with someone, I'll kill him.' We say we think human life is sacred. And then to prove that, we kill somebody, that's wrong".20
In reality, the principle laid down by Jeremy Bentham still holds true: the state affects the conduct and actions of its citizens more by the standards of its own behaviour than by the penalty it inflicts on others. 21
There is a danger in forgetting this point and charging on with a destructive course of action vindicated only by our own declaration that it is morally correct. As Thomas Carey, a Brampton lawyer once wrote:
"Killing another person for his crime is not "the ultimate penalty" - it is the ultimate folly. If it is motivated by a sense of outraged self-righteousness, it can reach the extremes of the regime of the Ayatollah Khomeini in Iran.
The people of Iran do not see themselves as mad, nor do they see themselves as brutal or uncivilized. Rather, in carrying out thousands of executions of people accused of everything from theft to prostitution to treason, they rely on a moral imperative based on their religion and claim that they are ridding society of useless and evil people whose death will ensure they will sin no more. Are those motives so different than those who today urge the return of the noose to Canada.22
Indeed to reinstate the death penalty in Canada would be to place this country in the same dubious league as such 'moral' regimes as Iran, Apartheid South Africa, Saudi Arabia and the Soviet Union.23 It is important to note that apart from the United States, Ireland and Liechtenstein, all Western industrialized countries have abolished the death penalty.24 When one considers the kinds of oppressive and repressive regimes which practise capital punishment on a regular basis - they also tend to be the same regimes that regularly practise torture - it becomes clear that there are some means which no government can morally use to protect
society, because in using such means, one destroys the very values that make that society worth protecting.25
Execution is an act of violence. As such, it can never be moral in a society which abhors violence. This is particularly so because it has been demonstrated repeatedly that violence tends to provoke further violence.
If there is any moral duty of the state, it is to protect the life of all persons within its jurisdiction without exception.26
(ii) The Bible ...says “An eye for an eye”
It is true that the old testament makes reference to certain Punishments which audited the formula of "an eye for an eye, tooth for tooth", and so on. But the Bible says many other things which death Penalty advocates seem to conveniently exclude. For example, the Bible also says "thou shalt not kill." It does not say "Thou shalt not kill, unless you are a publicly financed executioner".
Indeed, Salvation Army chaplain Cyril Everitt, who was present during the last executions in Canada, in 1962, said recently: "The Bible says: "thou shalt not kill", and if it is wrong for a person to kill - and I say it is - then it's wrong for the state to kill".27
But the advocates of capital punishment prefer to say that the sixth commandment is meant to be selective in its application, and they recite certain isolated Bible passages - such as "an eye for an eye" - to prove their point.
There is however, a fundamental theological problem, in selecting isolated passages from the scripture, to prove a religious point. Theologians point out that, "in seeking to discern God's will related to any complex social issue, more than reference to specific isolated passages is necessary. This is especially obvious in the controversy over capital punishment since one cannot use one passage as right and ignore a conflicting passage".28
This point is expressed well by Robert McAfee Brown in The Bible Speaks to You:
The Bible does not give us a blueprint for a "Christian political order." Whenever you find someone quoting isolated bits of Scripture to "prove" a point with regard to some specific piece of legislation, you are entitled to be suspicious. During the Civil War, preachers quoted the Bible to support slavery and to repudiate slavery. What usually happens in such cases is that a person believes something and then goes hunting the "proof texts" in the Bible to back it up. During war-time, militarists, produce verses showing God’s support of blood-thirsty Israelite wars, while non-militants isolate sayings like "Love your enemies." Anyone can find what he (or she) wants in the Bible by stressing the things that agree with his (or her) position and ignoring the things that do not. It is particularly easy to lift statements out of context in playing this fruitless game.29
It is clear then, that proper Biblical interpretation involves reading the scripture passages within context. This means examining both the Bible's internal context and the historical context within which it was written/issued.
In his famous John Howard Anniversary sermon preached at the Church of St. Martins-in-Fields in 1930, Archbishop William Temple said:
The most obvious contradiction is provided by the words, "Ye have heard that it hath been said, Love your friends and hate your enemies, but I say unto you, Love your enemies." What did the old law of retaliation really mean when it was written? It was not a licence to exact vengeance; there was no need for such a licence in the early world; vengeance took place of itself provided that men were strong enough. What was needed was a limitation of vengeance, and what the law of retaliation, "An eye for an eye and a tooth for a tooth," meant, was not, "You are at liberty to take an eye for an eye and a tooth for a tooth," but, "You must not take more than one eye for an eye, nor more than one tooth for a tooth." The whole purpose of the old law was to set a limit to the nature of the vengeance which might be exacted. But our Lord carries the principle of limitation further. Retaliation for the sake of retaliation must not be exercised at all. 30
To simply quote "an eye for an eye" then, does not necessarily demonstrate God' s will as much as it reflects the personal opinion and preference of the person quoting. Many people quote the passage "an eye for an eye" as a prescription for how justice ought to be done; but these same people rarely cite other passages where the Bible calls for death penalty; such as the case where one rebels against one's parents.
In fact, the Old Testament Mosaic Code Prescribes the death penalty for eighteen crimes, only one of which is murder. Ask anyone who says "an eye for an eye" if he or she believes we should follow the bible literally and prescribe death for all of these crimes:
(1) Murders - Exod. 21:12-14,20; 22:2-3; Lev.20:2; 24:17,21; Num. 35:11-21,30; Deut. 19:11-13.
(2) Accidentally causing the death of a pregnant woman or her baby if injured in the course of a fight - Exod. 21:22-25.
(3) Killing of a person by a dangerous animal that had killed before, yet was not kept caged (both the animal and the owner to be killed) -- Exod. 21: 28-30
(4) Kidnaping - Exod. 21:16; Deut. 24:7.
(5) Rape of a married woman (but not rape of a virgin) Deut. 22: 25-29
(6) Fornication - Deut. 22:13-21; Lev. 21:9; exception, Lev. 19: 20-22
(7) Adultery - Lev. 20:10; Deut 22:22-24; Num 5:12-30.
(8) Incest - Lev. 20:11-12, 14
(9) Homosexuality - Lev. 20:13
(10) Sexual intercourse with an animal - Lev 20:15-16; Exod. 22-19.
(11) Striking a parent - Exod. 21:15.
(12) Cursing a parent - Exod. 21:17; Lev. 20:9
(13) Rebelling against parents - Deut. 21:18-21
(14) Sorcery, witchcraft - Exod. 22:18 Lev. 20:27.
(15) Cursing God - Lev. 24:10-16.
(16) Attempting to lead people to worship other Gods- Deut. 13:1-16; 18:2b; Exod. 22:20.
(17) Avenging a death despite acquittal by the law- Deut. 17:12.
(18) Intentionally testifying falsely against someone in jeopardy of the death penalty - Deut. 19:16-19.
It becomes obvious that there is a very real danger in attempting to apply words found in the Bible literally to today's society. For Christians, such selective Old Testament text citation is particularly illegitimate because, as Canada's Roman Catholic bishops pointed out to Parliament in 1973:
"We consider it an illegitimate use of the Bible, especially the Old Testament, to quote texts in order to argue, in our time, for the retention of the death penalty. Each such Old Testament text must be weighted against any passages in the New Testament where Jesus constantly rejects the normal human tendency to redress injury by injury and calls instead for generosity. He establishes a norm that violence and hostility are not correct by counter-measures of violence and hostility."31
Even within the confines of the old Testament, passages calling for the death penalty must be placed in proper context:
In seeking to understand what light these passages throw upon capital punishment today, it is essential to see the function these laws played in their time. In that historical period, violent attitudes and acts of revenge were common (see Psalm 137). Even a slight offense could result in the death of the offender (see Genesis 4:1-8,23). Consequently, laws which linked the death penalty with particular offences provided a way to control and limit vindictive killings. The penalty was more nearly related to the offence committed. Laws of retributive punishment were actually reform measures seeking to limit violence"32
To follow the logic of the Old Testament today, seems to call for even more reform; i.e., further limiting violence in our own time, including the violence of the state. It must also be recalled that although the Mosaic code apparently called for the death penalty, the Mosaic laws relating to evidence, judgment and sentencing were much more restrictive than the Canadian judicial system. The standard of proof amounted to thorough certainty, and not our "proof beyond a reasonable doubt."
In addition, conviction required the testimony of more than one witness. No one could be convicted on the evidence of one witness or by circumstantial evidence. Clearly, if the Mosaic code of law were adopted there would not be nearly as many convictions for murder as there are now. Those who lobby to restore the death penalty for biblical reasons ought to understand the full implications of adopting Old Testament law, including its more stringent safeguards.
The other major distinction between the modern approach to capital punishment and that of Bible times is the issue of responsibility. The sentence of death in the Bible was to be carried out by stoning. The common stoning of the victim made it impossible to conceal responsibility (Deuteronomy 21:21).
John H. Leith of the Union Theological Seminary in Virginia has made the following observation in this regard:
Today the responsibility for an execution is so diffused that neither the police, nor the prosecutor, nor the jury, nor the judge, nor the governor has to take full responsibility. Citizens in general are far less aware of their personal responsibility for the execution. The common stoning, when each member of the community had to cast a stone, had the advantage of clarifying the issue. Personal responsibility does not prejudge the rightness or wrongness of the death penalty; it does mean that all Christians and citizens ought to hold themselves accountable for public policy on this issue. 33
For Christians, the issue of responsibility must b+e addressed for it impacts upon the Christian's right to participate in the death penalty. "Let one who is without sin cast the first stone" said Jesus (John 8:53-8:11).
Iindeed, the Bible has much more to say than "an eye for an eye". The Bible also says that "violence begets violence"34 . The scriptures preach mercy as well as retribution. In numerous biblical passages Jesus makes it clear that we are to "repay no one evil for evil" so as to compound and multiply the very evils we are seeking to minimize (Cf. Romans 12:17-21, 1 Peter 3:8-9). Christ said on the cross: "Father, forgive them, for they know not what they do."
(iii) The View of the Churches
It is indeed curious that many advocates of capital punishment defend the death penalty by characterizing it as the triumph of moral Christian values over the pagan evil personified in the person of the condemned criminal. This is curious because, as we shall see below, virtually all leaders of Canada's mainstream Churches have spoken in opposition to the death penalty. Men and women who consider themselves to be very religious, and "good Christians", continue to agitate for the return of the noose notwithstanding the strong opposition to capital punishment on religious grounds, of the very churches to which they belong.
It is often said, for example, that capital punishment is needed to protect the righteous and the moral from the depraved and the dangerous. This is said despite evidence of rehabilitation through programs of personal contact with inmates. It has led the Committee on Outreach and Corporate Witness of the Presbyterian Church in Canada to ask the following questions:
"When can a Christian give up on an individual? What responsibility do we as a Church and as individuals have for the rehabilitation and redemption of offenders? Is it possible that the reinstatement of the death penalty would be an easy way out for us, removing our responsibility to care for those whom we might label as 'enemies'?" 35
One of the important reasons for church opposition to capital Punishment is its complete denial of the possibility of reform; there remains no question of repentance or rehabilitation. "And yet", wrote Jack Costello S.J., "this 'hope for conversion' is the pivot of Judeo-Christian-faith. Without the constant hope that every heart can turn to God and ask for forgiveness, we act out of something less than, and other than, the gospel. Jesus asked His followers to show mercy as He showed mercy." 36
This thought was echoed in 1983 by the Bishop of St. Germans of the Church of England, the Right Rev. Brother Michael, SSF, who, at the General Synod's debate on capital punishment, said that there had to be room for forgiveness to be offered to a murderer, time for him to appropriate it, repent and bring forth fruits of repentance. This, he said, would also allow room for society to correct errors. 37
It should come as no surprise then, to read the reflections of Rev. Thomas Dailey of St. Augustine's Seminary in Toronto who writes that: "leading Catholic theologians are now saying that the death penalty is incompatible with Christian teaching on reverence for life."38 Indeed, in January of 1983 Pope John Paul II sweepingly recommended "clemency, or pardon, for those condemned to death. 39
The concrete manifestation of this principle in Canada is the fact that the Canadian Council of Churches in Toronto, which represents 13 Protestant denominations, and the Canadian Conference of Catholic Bishops are both "implacably opposed" to the death penalty. 40
Indeed, on April 19, 1986, Toronto Star Religion editor Michael McAteer wrote:
"In the face of frequent loud public calls for the restoration of the death penalty, Canada's mainline Christian denominations have preserved an unwavering solid front in opposition to capital punishment.
In statement after statement, the churches have voiced their opposition to the death penalty, calling it a barbaric, vengeful, violent act that brutalizes society and breeds more violence.
The churches have argued that there is no evidence that capital punishment is a deterrence and have also called for a whole re-examination of Canada's penal system.
Canada's Roman Catholic bishops have persistently opposed the death penalty and have said they consider the use of scripture, especially the Old Testament, to support the death penalty as "an illegitimate use of the Bible." The spirit of the Gospel, the bishops say, directs Christians towards forgiveness, clemency and reconciliation and not towards vengeance. 41
It should be noted that Jewish rabbis have also been largely opposed to the death penalty. When the State of Israel came into being in 1948, the rabbinate objected to provision in the law for the death penalty. Formal abolition was enacted in 1954, except for offences under the Crime of Genocide Law of 1950. 42
If anything, more and more Churches and religious organizations are making statements opposed to the death penalty.- In July, 1983, the British Methodist Conference, for example, affirmed its opposition to the death penalty 43 as did the General Synod of the Church of England. 44 As recently as June, 1986, the Baptist Convention of Ontario and Quebec went on record as opposing capital punishment.45
Deterrence
In this section we deal with the general question: "Does capital punishment deter would-be murderers?" Deterrence of police killings is dealt with in the section dealing with "PROTECTING THE POLICE".
(i) Are there alternative deterrents?
In subsection (ii) we shall deal with the question of whether or not capital punishment serves as a deterrent to murder. Suffice it to say, the overwhelming majority of studies on the subject indicates that it does not. But let us assume for a moment that it does. Or let us assume that we do not know. An important question remains: whether or not capital punishment deters murders, are there other deterrents which could serve equally well without our having to resort to the grisly business of legalized state murder?
As early as 1960, respected lawyer and parliamentarian Arthur Maloney was able to point to a "wealth of incontrovertible evidence" which "demonstrates to the point of moral sureness and certainty that the penalty of death is not the only effective deterrent to the crime of murder and that a sentence of imprisonment for life has proven, where these experiments have been made, to be equally effective.”
"This evidence is to be found in some 40 jurisdictions, countries and states that are spread across the world... This embraces all different types of countries. It embraces a complete cross section of people of all races and of all religious creeds. The inescapable conclusion is that the incidence of homicide, the number of homicidal killings in any jurisdiction, bears no relationship whatever to the presence or absence of the penalty of death but is related instead to other factors altogether including cultural, sociological, geographical and other factors."
Maloney added that if death were not the only effective deterrent then this horrible certainty would be quite needless. "The point I am endeavoring to make," he told Parliament "is that the alternative sentence of imprisonment for life has proved itself to be equally effective as a deterrent and therefore, having regard to the horrible character of the death penalty, a much more satisfactory sentence for the law to impose. 46
By concentrating only on the penalty of death, capital punishment advocates neglect other alternatives, and possibly more effective, means to deter killing. New York University Law Professor Anthony Amsterdam has noted that: "The degree of punishment is not necessarily a deterrent even to someone who thinks rationally. What deters people from crime is the likelihood of getting caught and undergoing punishment."47 This conclusion has been borne out by Canadian studies.
In a Law Reform Commission of Canada study completed in 1976, a survey of all studies available comparing the effects of certainty of punishment to the effects of severity of punishment was published.
The studies encompassed not only Canada but Europe and the United States as well. The study states that no support was found for severity of sentence alone as a deterrent to crime, but a consistent moderate effect was found for certainty of punishment. The introduction of more severe penalties usually results in a temporary decrease in the incidence of the proscribed behavior. At the same time, as punishment is increased, the attitude towards marginal cases becomes more permissive.
Certainly, this indicates that our best efforts in deterring crime are being misdirected. As Thomas Reppetto, of the Citizens Crime Commission of New York City, has observed; "I always favour something that will get tough with a lot of offenders instead of setting very tough with just a handful.” 48
But instead of taking concrete steps to actualize such a goal, we waste time and money attempting to resolve just how severely we will punish those murderers we have already caught. one would hope our best efforts should be aimed at saving lives.
In this regard, the comments of Jim Manly, M.P. during the 1984 debates on the Execution of Mass Murderers Act is instructive:
It was revealing that when the news of the Olson murders first broke several years ago,, a psychologist pointed out that there were five or six young people, children, in British Columbia at that time who, he believed, had the potential to act in the same manner as Clifford Olson. He was saying this at the same time that British Columbia was shutting down facilities to help such children.
Why are we not demanding diagnostic or treatment facilities for children in crisis so that they have some possibility of growing up and living normal and decent lives? We have to attack this kind of problem at its roots instead of waiting until we have a crisis, saying that we will take the life of a person we all find objectionable and feeling that somehow we are dealing with the problem. 49
(ii) The Fear of Execution Will Deter Criminals
It may be appropriate to begin with this quote from the January 24, 1983 edition of TIME Magazine: "To work at all, deterrence requires murderers to reckon at least roughly the probable costs of their actions. But if a killer is drunk or high on drugs, that kind of rational assessment might be impossible. Passions are often at play that make a cost-benefit analysis unlikely ... Says New York University Law Professor Anthony Amsterdam: 'People who ask themselves those questions - 'Am I scared of the death penalty? Would I not be deterred? - and think rationally, do not commit murder for many, many reasons other than the death penalty.”50
This point was expressed equally well by M.P. Terence Nugent during the commons abolition debate in 1966: "The only excuse society has for taking the life of any person is if it is proven necessary to do so for the protection of society and our way of life ... I have not yet found a criminal who ever plotted a crime and guided his conduct on the basis of the length of the punishment which would be awarded for such an offence.”51
The point that the death penalty will never act as a deterrent to murder has been stated most eloquently by Anthony Genovese: a man who has himself been incarcerated for some 20 years. He has known the kinds of perpetrators of the vast majority of killers: the professional thief, the amateur, and the domestic killer. None are deterred by the thought of their ultimate punishment.
The professional criminal never intentionally kills. His experience tells him to avoid confrontation because it greatly increases the risk of detection. Deaths occur as a result of unexpected events: a sudden move from the victim, the sudden appearance of a policeman, the interference of a would-be hero: "The choice is then and there. He has but one split second, life or death. Capital punishment is not among his thoughts. The hero lunges, the gun fires, and he is now a killer ... There was no intent; there was no premeditation." 52
The amateur is uncertain, he is nervous and he is fearful. "He is unpredictable and often dangerous ... Life has no meaning to this criminal. He fears imprisonment yet will not fear the ultimate fate of death ... He finds it difficult to spell capital punishment let alone comprehend its meaning. He will kill at the slightest provocation and without thought. Without thought, there is no pre-meditation."
The domestic killer can be anyone. This killer is a neighbour, a friend, a doctor, a janitor. He acts out of passion, he acts spontaneously without thought and without care. "That lack of thought, that blind rage that took the life of a loved one would not have been deterred by the consequences of his own ultimate death at the hands of the state. There was no premeditation."
Despite these insights, advocates of capital punishment insist that the possibility of execution may hold back some people from killing.
But the facts show that this is unlikely. In Canada, about 40 per cent of murders are within domestic relationships, and about 33 per cent among acquaintances or business colleagues. 53
Josh Zambrowsky, executive director of the Canadian Criminal Justice Association has observed: "Experience from years of working with people convicted of violent crimes makes it clear that the consequences of the act are virtually never in the mind of the perpetrator."
"In Britain, a study by the Home Office statistical division found that “Murders of women and children were mainly due to rage or jealousy. Sexual motives and motives of gain accounted for most of the remainder. Murders of men were also largely emotional. Rage, quarrels, jealously and revenge accounted for about half the known motives. Theft or other gain was next ... Feuds or murders while escaping or resisting arrest were only a small proportion of the total."54
In a sense, it is curious that we attribute to the criminal a quality of reason and rational foresight absent even in ourselves. The point has been ably made by Jack Costello SJ:
"Even the 'rational' killer appears, on inspection, to be no more or less rational than the rest of us. And we all appear to be relatively incapable of comprehending our own destruction. Ernest Becker called this the denial of death. And we do it every day.
No one expects personally to die in a car or plane crash, in a war, from cancer - or even of old age. We fly, we settle in areas of high risk from storm or earthquake, we smoke, we drive cars. As Martha Wylie notes, “ almost all our decisions are a denial of death, not just as a certainty, but even as a possibility."
So too, the 'rational' killer denies that he will be caught, convicted and executed just as a petty thief denies apprehension; just as we all did when we raided the cookie jar as kids, and as we still do with our grownup crimes, peccadillos and risk-taking. So we must ask ourselves - if this killer is as 'rational' as any of us, then is it not likely that the death penalty is the least of his worries when he makes his decision?"55
Even the graphic proximate reminder of public execution has been shown to have little or no deterrent effect on actual criminals because they believe they won't get caught. As Camus noted in his 1957 essay on capital punishment: "When pickpockets were punished by hanging in England, other thieves exercised their talents in the crowds surrounding the scaffold where their fellow was being hanged."56
Montreal psychologist Paul Williams, executive director of the John Howard Society of Quebec, has spent years dealing with offenders in and out of prison. He says: "In 20 years I never encountered a single convicted murderer for whom capital punishment would have worked as a deterrent. Almost always, murders are committed in a moment of uncontrollable emotion. The concern about capital punishment comes later."57 Certainly no one whose
mind is clouded by alcohol or drugs will weigh the consequences of his or her actions.
This is particularly true of the mentally unbalanced, insane and deranged persons who commit a significant proportion of murders. Indeed, as Brampton lawyer Thomas J.P. Carey has pointed out:
"If a psychopathic killer thinks at all about the consequences, the prospect of execution probably is seen as sort of a glorious martyrdom in his distorted mind. Most shoplifting offences involve a higher degree of planning and forethought than the average murder, which is classically an act of momentary rage, drunken violence or secondary to an escape from another crime." 58
One must consider the conclusion of Stanford Psychiatry Professor Donald Lunde:
"For every person for whom the death penalty is a deterrent, there's at least one for whom it is an incentive.”59 Even Charles Dickens had wondered whether it was a "craving for notoriety which produced the incentive and impulse to commit murder" citing the statistics of 167 persons who were under the sentence of death at the time, 164 of whom had witnessed a public execution.60
The truth is that there is no evidence to show that violent criminals are deterred by the death penalty. In fact the lowest murder rates are found in those countries and states where the death penalty has been abolished for a long time - in the United Kingdom, Sweden, Austria, Italy, Minnesota, Wisconsin, Maine. 61
What the evidence shows is that most of the popular arguments about deterrence reflect the response of society to murder and not of murderers to criminal sanctions.62
(iii) Statistics: Abolition and the Murder Rate
Any notion that the Canadian murder rate would decrease if capital punishment were reinstated should be completely dispelled by the indisputable fact that the Canadian murder rate actually decreased only after the abolition of capital punishment in 1976.
According to Statistics Canada the homicide rate in 1975, the year before the death penalty was abolished, was 3.09 per 100,000 people. That rate has never been reached since the abolition of the death penalty. In 1985, the last year for which figures are available, the homicide rate was 2.78.
The following are the Canadian Crime Statistics breakdown of the average annual homicide rates per 100,000 people from 1979 to 1985 in Canada: Newfoundland 1.2; Prince Edward Island - 0.4; Nova Scotia - 1.7; New Brunswick - 1.9; Quebec - 3.0; Ontario 2.0; Manitoba - 3.4; Saskatchewan - 3.3; Alberta - 2.9; British Columbia - 3.9; Yukon - 11.3; Northwest Territories - 12.4.
The newest study by Statistics Canada 63 shows some interesting trends which run contrary to public opinion: less than 1% of all violent crimes committed over the past 25 years in this country were murders the percentage of homicides throughout this period has been consistent; serial killing is rare in this country; and 77% of all homicide offences involve relationships where the suspect and the victim knew each other beforehand.
This same study shows that there has been an increase in first degree murder charges from 202 per 100,000 people in 1977 to 338 per 100,000 people in 1985, an increase of some 65%. However this statistic should not be viewed as having anything to do with the fact there is no death penalty. They are charges only, not convictions. It is this Association's feeling that, particularly with the emergence of many vocal victims' rights groups, some police forces and / or Crown Attorneys are more prone than before to charge first degree murder rather than second degree murder in borderline cases in order to escape public outcries. In addition, by charging first degree murder the prosecution has more plea bargaining strength than if second degree murder was charged. Our view is confirmed in part by the fact that during the period of this rise in first degree murder charges, second degree murder charges dropped from 1.83 to 1.23 per 100,000 people.
It can not go unnoticed that the most recent statistics from Statistics Canada show that in 1986 first degree murder charges dropped 23% from 1985.
Evidence from the United States is no less persuasive. TIME Magazine reported the following results from studies of homicide rates of states that did and did not prescribe the death penalty:
The most persuasive research compared the homicide rates of states that did and did not prescribe the death penalty. For instance, Michigan, which abolished capital punishment in 1847, was found to have had a homicide rate identical to adjacent states, Ohio and Indiana, that were executing. Similarly, Minnesota and Rhode Island, states with no death penalty, had proportionately as many killings as their respective neighbors, Iowa and Massachusetts, which had capital punishment. In 1939 South Dakota adopted and used the death penalty, and its homicide rate fell 20% over the next decade; North Dakota got along without capital punishment for the same ten years, and homicides dropped 40%.
Similar before-and-after studies in Canada, England and other countries likewise found nothing to suggest that capital punishment had deterred murderers any better than the prospect of long prison terms. And in Britain during the 1950s, a typical "lifer" actually served only about seven years, compared with a much tougher average U.S. "life" term today of 20 years. A comprehensive study in the U.S., by the National Academy of Sciences in 1978, also found that the death penalty had not proved its worth as a deterrent.64
In another study, "U.S. Professor Thorsten Sellin studied 15 states over a 43 year span (1920-1963) and found that homicide death rates in all the states had followed the same trends, with no discernable differences among the states with capital punishment and those without. The rise and fall of the homicide rate in all the states was parallel over the period.65
The state of Florida has had 16 executions since the Supreme Court's 1976 ruling that the death penalty was not "cruel or unusual punishment". These executions are exceeded in number only by the state of Texas which has had a total of 20. Florida's death row houses approximately 260 convicts, which is more than any other state. Yet Amnesty International has noted that Florida's murder rate is higher at the present time than it was during the period between 1964 and 1979, when the electric chair was not used.
The only logical conclusion which can be drawn from such studies is that there is no demonstrable evidence that capital punishment has ever actually had a significant deterrent effect on the rate of homicide, including murder. These results "dove-tail" with findings concerning the actual perpetration of murders. Statistics Canada reports that most victims continue to be single males who are usually killed in their own homes by someone they know, most likely a relative. Alcohol or drugs often contribute to the murder.66 In such instances, deterrence - that is foresight on the part of the killer - is highly unlikely to play a factor because murders in such circumstances are thoughtless explosions of violence, usually associated with highly agitated passionate scenarios.
In the same report, Statistics Canada also re-iterated just how rare homicides are in Canada. Between 1975 and 1984, there was an annual average of 2.78 homicides for every 100,000 Canadians, compared with 14 suicides and 20 motor-vehicle deaths for every 100,000 people.67 If our interest is truly in saving lives, then our best efforts should clearly be directed in pursuits other than the re-introduction of capital punishment.
Despite the overwhelming statistical evidence that capital punishment will not lead to a reduction in the murder rate, death penalty advocates continue to claim that death is at least necessary to ensure that the specific convicted murderer is permanently deterred from killing again. Statistics show that this claim is false. Of 384 paroled murderers between 1970 and 1984, not one murdered again. The most recent study by the National Parole Board shows that between 1975 and 1986, 473 convicted persons were released on parole. Two murderers murdered a second time, both of these murderers had originally been convicted of non-capital murder.68 No murderers have been convicted of manslaughter, attempted murder or even wounding. While it is true that certain paroled persons convicted of manslaughter killed again upon their release, these people would not have faced the death penalty anyway.70
The simple truth is that death Penalty retentionists have no statistical evidence to support their contention that capital punishment is a deterrent to murder.71 Indeed, as Brian Cameron of Amnesty International, Ottawa, has observed: "States with the worst murder rates tend to have death penalties."72
Even The Canadian Association of Chiefs of Police, a long time capital punishment advocate, has recently conceded that it is useless to argue for capital punishment on the basis of deterrence. "The association concludes the deterrence value of capital punishment is selective and marginal. It is quite likely we will never know with certainty if capital punishment deters one who is contemplating murder” it says.73
(iv) The Isaac Erlich Study
Despite its numerous flaws, the work of economist Isaac Erlich is still cited by capital punishment advocates as a kind of proof of death penalty deterrence. Using econometrics modeling techniques to build a "supply-and-demand" theory of murder, Erlich argued in 1975 that capital punishment prevents more murders than do prison sentences. Because of the 3,411 executions carried out in the United States between 1933 and 1967, says Erlich, enough potential murderers were discouraged so that some 27,000 victims' lives were saved.74
Erlich's work was extremely theoretical and highly dependent upon complex mathematical modeling techniques and regression analysis. Erlich's work is replete with assumptions, any of which are subject to argument.
Suffice it to say that econometrics critics of Erlich have pointed out that his estimated coefficients may reflect "the response of society to murder behaviour, not to murder behaviour to criminal sanctions.”75
Other critics have pointed out that Erlich did not compare the effectiveness of the death penalty with that of particular prison terms. Also, his formula does not work if the years between 1965 and 1969 are omitted; and in accounting for the increase in homicides during the 1960's, he neglects the possible influences of racial unrest, the Viet Nam War, a loosening
of moral standards and increased handgun ownership.
JUSTICE
This section deals with the notion that the law has become weakened with the abolition of capital punishment and that its re-introduction is required to bring back real "justice" for murderers. In fact, as will be seen below, the death penalty defeats the cause of justice in many ways.
(i) People Are Getting Away With Murder
It seems as though some people believe that without capital punishment, murderers are not punished for their misdeeds. It must be remembered that a murder conviction results in a mandatory sentence of life imprisonment. A first degree murder conviction results in no eligibility for parole for 25 years. The minimum eligibility period for persons convicted of second degree murder is 10 years. This is hardly "getting away with murder". It should also be recalled that release is not automatic after 25 years - in the case of a first degree murder conviction. The decision lies within the discretion of the National Parole Board. The sentence for murder is life. There is no eligibility for parole for 25 years. The significance of this sentence should not be underestimated.
As criminologist Bernard Henheffer stated in 1984: "Imagine the hopelessness of someone confined to prison until 2009." Of course, the year 2009 may very well pass without any change. Jaime Llambias, a Montreal sociologist who visited the maximum security penitentiary at Dorchester, N.B., told Maclean’s magazine in 1983 that at least three lifer’s declared: "This is worse than death. It is not worth living under these circumstances."76
Of course, not all "lifers" opinions are so extreme. But the comments reveal that the murderer certainly has not "gotten away with it”.
Some proponents of the death penalty complain that the 25 year parole eligibility for first degree murder is illusory because an application can be made after 13 years for release. The application however must be made before a jury. It is a jury who will decide on the applicant's release; not a judge and not the parole board. If a jury of the applicant's peers feel that he or she should be released before the 25 year eligibility date, what stronger comment could be made by the representatives of the public against the death penalty?
(ii) We Need Capital Punishment to Bring More Murderers to Justice
If it has any effect at all in this regard, the death penalty results in less murderers being brought to justice. This is because juries are more likely to acquit if they think there is any possibility of sending an innocent person to his or her death. Sociology professor Jim Hackler has observed the following:
"When we punish more severely we risk making greater mistakes, juries are more hesitant to make such mistakes; thus they convict less easily. When the stakes are high a larger percentage of guilty offenders are acquitted. This pattern does not seem to be a recent one, according to a Ph.D. thesis at the University of Montreal by Pierre Tremblay in 1984.
Looking at Canada, the United States, and Norway, a pattern that persists for 100 years shows that when we punish often, we punish less severely. When punishment is severe, it is used less.
My argument is that we get better mileage out of our imperfect system if we use less severe punishments and use them more frequently. We are more likely to maintain the delicate balance between hurting the innocent and being sure that guilty people get some punishment." 77
Professor Hackler goes on to conclude:
"If punishments become more severe, we will reduce the certainty that criminals will be punished. The certainty factor is one of the most important variables for effective deterrence. Similarly, justice suffers when the penalties are severe.
We may give high-status people traffic tickets, but if the death penalty is involved, the powerful can muster such an effective defence that it is unlikely that they will ever be executed.
The mistakes made executing the losers would probably remain hidden."
The truth seems to be that technicalities which, in any other case, would receive short shrift, in a capital case receive anxious consideration as the judges strain to avoid invoking the extreme penalty. The views of Lord Denning, one of the most eminent of British judges, were expressed similarly to the British Royal Commission on Capital Punishment in 1950: “ ... in many cases which are plainly murder," he said, "juries return verdicts of manslaughter, because they do not think the death penalty is appropriate."78
This conclusion is borne out by the evidence. A federal study in Canada shows that during the capital punishment years the conviction rate for manslaughter climbed dramatically, but murder convictions declined from 37.8% in 1941 to 33% in 1960.
"Nobody wants to be burdened with sending an innocent man to his death," says Dahn Bachelor, a Toronto criminologist who has presented briefs on capital punishment in the United Nations.
"Convictions are more difficult to get. And even after a death sentence there are numerous appeals and most of the people condemned don't die. It's becoming an expensive way of ensuring that very dangerous criminals have to stay behind bars for the rest of their lives."79
One more example, presented in the position paper of the Inter-church Task Force on Responsible Alternatives to the Death Penalty:
"Students of social history will be reminded how, in 1830, when England still had over 200 capital offences, the bankers petitioned Parliament to abolish the death penalty for the offence of forgery. The Petition recited that even the possibility of the infliction of the death penalty prevented the punishment of criminals and then prayed for "that protection to their property which they would derive from a more lenient law." Under that new, more lenient, law, convictions for forgery rose!80
(iii) Murderers Commit More Violent Crimes Once Paroled
From 1977 to 1981, there were 1,344 murder and manslaughter offences across Canada. Although convicts serving their sentence on parole were responsible for less than 2% of those crimes, the public has come to believe - wrongly - that repeat offenders are common.
In fact, many of the much publicized horror stories about convicts engaging in violent crime "on parole" are really about convicts who have been released by penitentiary officials or on mandatory supervision programs, both of which are beyond the control of the Parole Board.
"We're very tough in enforcement," said Mickey Stapleton, a parole officer in Toronto. "If someone is caught drinking who has a requirement to abstain, their parole is suspended.”81
As far as paroled murderers - to whom capital punishment might have applied - are concerned, not one of the 384 released between 1970 and 1984 murdered again.82 Between 1975 and 1986 473 convicted murderers were released on parole. Two murderers murdered a second time, both of these murderers had originally been convicted of non capital murder.83 No murderers have been convicted
of manslaughter, attempted murder or even wounding.84
(iv) Are Death Sentences Just or Arbitrary and Discriminatory
As South Carolina lawyer David Bruck notes in his article "Decisions of Death" it must be remembered that even where the death penalty exists, only a fraction of convicted murderers end up on death row: "It falls to the judicial system of each of the ... states that retain capital punishment to call the few who are to die from the many who are convicted of murder.,, What does experience tell us about the selection criteria? Bruck's extensive study shows that in the United States people are convicted because they committed murder, but they are executed "because of race, or bad luck, or both."
Capital punishment in the United States is administered chaotically or arbitrarily, and the statistics show that death sentences do tend to be meted out according to criteria that are certainly less than just. Bruck cites a 1980 study by two Northwestern University criminologists:
"What they found was that in cases where white victims had been killed, black defendants in all three states were from four to six times more likely to be sentenced to death than were white defendants. Both whites and blacks, moreover, faced a much greater danger of being executed where the murder victims were white than where the victims were black. A black defendant in Florida was thirty-seven times more likely to be sentenced to death if his victim was white than if his victim was black; in Georgia, black-on-white killings were punished by death thirty-three times more often than were black-on-black killings; and in Texas, the ratio climbed to an astounding 84 to 1. Even when Bowers and Pierce examined only those cases which the police had reported as "felony-circumstance" murders (i.e., cases involving kidnaping or rape, and thus excluding mere domestic and barroom homicides), they found that both the race of the defendant and the race of the victim appeared to produce enormous disparities in death sentences in each state." 85
Much of the race bias is the result of prosecutorial discretion. In 1984, TIME
Magazine reported the following:
“ ... clear bias remains, much attributable to prosecutorial choices. A recent study of homicide cases in Houston's Harris County is troubling. In cases where a black or Chicano had killed a white, 65% of defendants were tried for capital murder; only 25% of whites who killed a black or Chicano faced the death penalty. "I don't think it's overt racism," says University of Texas Law Professor Ed Sherman. But prosecutors want to win, and they "perceive that a Texan jury is more likely to give the death penalty to a black who killed a white." A similar South Carolina study found an almost identical pattern...”86
Discrimination in the application of the death sentence is not limited to grounds of race. In the United States, as in any case in Canada, the result is very often dependent upon the quality of lawyer arguing the case:
A serious problem is the quality of legal help for murder defendants. The Texas study, conducted by the Governor's judicial council, found that three-quarters of murderers with court appointed lawyers were sentenced to death, against about a third of those represented by private attorneys.
Amsterdam, who has argued eight capital cases before the Supreme Court, contends that lawyering at the right time would save virtually everybody who is going to be executed." Scharlette Holdman, director of Florida's Clearinghouse on Criminal Justice, persuades volunteer lawyers to represent death-row inmates. "Every person sentenced to die comes from a case fraught with errors," she says. "If you're adequately represented you don't get death. It's that simple."87
The sad result of this state of affairs has been expressed well by John H. Leith of the Union Theological Seminary in Virginia:
"The persons who are finally given the death penalty are usually financially poor, powerless, sick and confused. They are frequently not the worst criminals in our society, nor are they more destructive of human order than thousands of others who escaped the death penalty.
One solid, pragmatic ground for opposing the death penalty is the arbitrariness, caprice, and human discretion that are always at work in the imposition. The result is a great selectivity that is standardless in the imposition of the death penalty, frequently rendering it upon the more pathetic rather than the more arrogant and powerful criminals. The contemporary practice of the death penalty, apart from more substantive arguments is unfair and unjust."88
The same biases are present in Canada and, hence, the same kind of results would likely obtain if the death penalty were re-instituted here. The comments of Arthur Maloney on this subject are worth quoting in full.
"There is another aspect that alarms me. It is the gross inequality of its application. This inequality manifests itself in a number of different ways. There is inequality in the trial judge before whom the accused appears for trial. Trial judges are human beings, different in outlook, temperament, attitude and personality. Some believe the death penalty is a necessary punishment of the law. Others have a feeling of revulsion to this kind of penalty. There can be no doubt that an accused person's chances of being acquitted of murder and convicted only of manslaughter are greater if he appears before one judge rather than before another.
There is a difference, too, in crown prosecutors. They have a difference in attitude and approach to the task they have to perform, some regarding themselves as ministers of justice with a duty to unfold the whole case for and against the accused, and others with utmost sincerity taking a totally different attitude toward their function. There can be no doubt that a man's chances of being acquitted of murder and convicted only of manslaughter can well depend on the differences in the personality of the prosecutor by whom his case is prosecuted.There is a difference, too, in the skill of counsel for the defence. Too often these capital cases are cases which are experiments for budding Blackstones who have just graduated out of law school. There can be no doubt that a man's chances of being acquitted of murder and convicted only of manslaughter or of being acquitted altogether can hinge upon the skill and experience of the counsel who defends him. These are all human variables around which a man's right to spend out the rest of his life in a prison or to die on a gallows should never, in my opinion, be permitted to hinge.
Finally, its selectivity and its discriminatory character is a factor which alarms me. In the great majority of cases the condemned men are both poor and friendless and, in my experience, in many cases they are quite alone. I detest any law or system that discriminates unfairly between the rich and the poor." 89
As Sociologist Jim Hackler has pointed out:
"Many Canadians like to think that our courts are more just than those in-the United States. We also deceive ourselves into believing that racial prejudice is rare here. In fact, Canada's justice system shows similar biases. It is harsher on low-status members of the society than on high-status members. It is less likely that a Prime Minister's wife will be prosecuted for smoking marijuana than a lower-class juvenile.
This bias is particularly pronounced in the use of the death penalty. People with money, those who can present themselves well in court, and women have rarely been executed. We tend to execute less attractive, ill-mannered losers. In addition, our system does not like to admit that it made a mistake.
Ontario lawyers will probably remember the case of the young man who witnessed an attack on a woman and reported the crime to the police. The dead woman had some hair under her nails. An expert witness testified that these hairs were similar to the hair of the young man who reported the crime. He was convicted of the murder.
A persistent defence lawyer was convinced of the innocence of the young man and found a more qualified expert who testified that there were similarities between the hairs found on the victim and the young man, but there were also differences which made it clear that they were from two different persons. The prosecutor did not wish to reopen the case and, in order to discourage the accused, charged him with first-degree murder instead of second-degree murder when the second trial was heard. Although the young man's innocence was established in the second trial, it demonstrated that justice is not always the primary concern of those working in the system."90
In all death penalty cases it must be remembered that the distinction between who is executed and who is not depends not only on the crime but also on a series of recommendations and decisions made by the Prosecutor, by defence counsel, by the trial judge, by appellate judges and by politicians or clemency boards. As Amnesty International notes: "It is impossible to rule cut the possibility that somewhere along this chain of decision, a step will be taken leading to one prisoner being executed while another, having committed a similar crime in similar circumstances, is not."91
(v) The Consequences of Mistake
There is no monetary compensation, no form of release, no kind of apology which can rectify the execution of an innocent person. Many Canadians are now familiar with the case of Donald Marshall, the Nova Scotia man who spent eleven years in prison for a murder he did not commit. Donald Marshall is testimony to the fact that our justice system is not perfect. Although Marshall was convicted of second degree murder and would not be a candidate for the death penalty under the proposed new legislation which seeks the death penalty for first degree murder, his case strongly points out that someone can be wrongfully convicted of a murder - whether it be first degree or second degree.
It is no defence to say that Marshall's was a rare case. In the first place, any execution of an innocent man is a tragedy unparalled in our society and our revulsion to the crime of murder only validates this point. In the second place, mistakes in the justice system are less rare than one might think. No one knows with certainty how many innocent persons in this country have been convicted whether for homicides or other crimes. Professor Neil Boyd, in his recent study of 120 murder cases states that 4 or 5 of those convicted were made on very little evidence of murder. They hanged. Some seemed to be clear cases of self-defence. In about 20 other cases, the evidence clearly supported a conviction on a lesser offence, such
as manslaughter.92
In the United States a recent study on wrongful convictions for murder has produced chilling results. In the study by two university professors, Hugo Bedau and Michael Radelet, conservative criteria were used. Those considered wrongfully convicted were not persons who were convicted of murder and after new trials were found not guilty by reason of insanity or guilty of a lesser offence or acquitted because they acted in self-defence. These were convicted persons who were not legally or physically responsible for the homicide. Lawyer Michael Bolton summed up this study in part as follows:
"In a study by Professor Hugo Adam Bedau of Tufts University in Massachusetts and Michael L. Radelet of the University of Florida, released at a recent meeting of the American Society of Criminology, the authors identify 343 clear cases of persons wrongfully convicted of a capital offence between 1900 and 1985. This amounts to an average of 38 wrongful capital convictions in the United States per decade. Twenty-five innocent people were executed and others came within a short time, even hours, of being executed. Many others spent lengthy terms in prison, some as long as 25 years.”93
Lawyer Michael Bolton has examined this study and reports the following:
"The conservatively-chosen raw data reveal that one-half of one percent of the total number of executions in the U.S. this century had been erroneous. Comparing the erroneous convictions to the number of actual executions, the authors find that the rate of error is equivalent to one definite erroneous conviction for a potentially capital crime for every 20 executions.
Putting this together with the possibility that defense lawyers, prosecutors, jurors, judges and appeal courts are more demanding of certainly in capital cases, the figures yield a disturbing inference of occasional error in our criminal justice system. The authors' point, of course, is that all this confirms the need to abolish capital punishment."
Bolton also notes that:
"Nineteen of the 343 cases are "close calls", in which execution was nearly carried out but was averted within a day or two, perhaps by a few hours, and in half a dozen cases there was less than an hour to spare."94
CRIME & CRIMINALS
There appears to be a widespread belief that the rise in the rate of crime, of any kind, is somehow related to the abolition of the death penalty. The resultant pleas for capital punishment are based upon the notion that the existence of the death penalty will somehow send a message to all criminals that their criminal antics will not be tolerated in our society. In some cases, such as with mass murderers or with terrorists, it is felt that certain crimes can only adequately be dealt with by means of capital punishment. As we shall see below, this kind of thinking not only reveals an unfortunate ignorance with regard to the causes of crime but also with regard to the most effective ways of dealing with crime.
(i) Crime Occurs Because Criminals Need Not Fear for Their Lives
Arthur Maloney may have said it best when he said this:
"The death penalty is not the answer to the problem of crime and of criminals. Crime has its cause and crime has its cure. Its causes are clear. They can be stated like the litany: they are slums, they are broken homes; they are poverty; they are drunkenness, divorce, lack of opportunity, lack of education. These are the causes of crime. As a lawyer, day after day, I see far too often, and still see far too often, in far too many cases those factors, or some of those factors, or a combination of all those factors. Those factors are the cause of crime; they are the common denominator in a great majority of cases that come before our courts from coast to coast day after day."95
Variations on this statement have been repeated countless numbers of times by sociologists, criminologists, psychologists, psychiatrists and many others who have undertaken to study crime and criminals.
Despite this often heard truth, people continue to waste their best efforts trying to revive capital punishment instead of trying to get at the major causes of crime and work at its actual diminution. The following statement was made by Mr. Jim Manly, a Member of Parliament, during debate of a bill whose sole effective purpose was the execution of mass-killer Clifford Olson:
"It was revealing that when the news of the Olson murders first broke several years ago, a psychologist pointed out that there were five or six young people, children, in British Columbia at that time who, he believed, had the potential to act in the same manner as Clifford Olson. He was saying this at the same time that British Columbia was shutting down facilities to help such children.
Why are we not demanding diagnostic or treatment facilities for children in crisis so that they have some possibility of growing up and living normal and decent lives? We have to attack this kind of problem at its roots instead of waiting until we have a crisis, saying that we will take the life of a person we all find objectionable and feeling that somehow we are dealing with the problem.”96
Psychiatrists tell us that those who were abused as children are more likely to become child abusers themselves when they become parents. When they were children our hearts went out to them or the trauma they had suffered and for what such abuse must have done to their minds. Yet when they become what we knew they had a good chance of becoming - child abusers, even child killers - we want their death. Would not the time, energy and expense spent on trying to restore the death penalty be better used and more satisfying in trying to identify and cure the mentally disturbed?
By concentrating on capital punishment as a kind of crime cure-all, we tend to neglect less extreme legislation that effectively curtails crime. At a recent meeting of the Canadian Association of Chiefs of Police, Anthony Bouza, chief of the Minneapolis police department, made it clear that one of the major causes of violent death in the United States is the prevalence of handguns. Some 20,000 people will die this year by handguns, notwithstanding the American death penalty. There are 70 million handguns in American homes today: there will be 100 million by the end of the decade. Bouza made it clear where police priorities should lie today. "Hang on with all your might to your tough handgun restrictions" he said. "Ours is a national disgrace."97
(ii) We Need Capital Punishment to Curb Violent Crime and to Make Canada Safer
The truth is that there is no evidence that shows that the death penalty has any effect on violent crime. In fact, the lowest murder rates are usually found in those countries and states where the death penalty has been abolished for a long time - in the United Kingdom, Sweden, Austria, Italy, Minnesota, Wisconsin and Maine.
Consider the following excerpt from the Statement of the Solicitor General of Canada on the Abolition of Capital Punishment May 3, 1976:
"In a recent article published in the journal Crime and Delinquency, Daniel Glaser and Max S. Zeigler have examined possible explanations for the fact that the American states which have historically used executions most are the same ones which have the highest murder rates. Their concluding paragraph is worthy of very careful consideration by all Honourable Members:
"Demands that capital punishment be restored are raised whenever the public is outraged at a particularly heinous and highly publicized killing, but the geographic facts presented here suggest that this 'gut response' is counter-productive as a means of reducing the prevalence of murder. The evidence shows that where use of the death penalty is most frequent, there is less long-run outrage against killers than prevails in states that forbid any murder, whether by private parties or by the government. The alternatives to violence are, in addition to a respect for the sacredness of life, the many civilized procedures and practices of analyzing, negotiating, legally adjudicating, or simply tolerating disagreements. All of these alternatives are impaired or impeded rather than nurtured when the government resorts to the murderer's methods."
If this conclusion is correct - that the carrying out of executions by the state not only does not prevent murders, but actually may serve to create or maintain a climate where more murders and more violence exist - then the argument that the death penalty is a justifiable and fitting punishment in our society in order to show our outrage against murder must be seen to be empty, and dangerous rhetoric.
If we are to show our disapproval of killing, then we cannot support killing in society's name .....
... The death penalty cannot be shown to be a deterrent to murder any more effective in protecting the public than is a long sentence of incarceration."98
If anything then, state sponsored death under the guise of capital punishment is liable to increase, rather than decrease societal violence. Consider the words of Archbishop William Temple from his sermon on "The Ethics of Punishment":
"I believe Jeremy Bentham was perfectly right when he laid it down that the main influence of the State should be exercised always on the side of the limitation of penalties, as any form of excessive punishment defeated its own aim in that it encouraged a callousness in people by the very violence of the suffering inflicted, and thus did more harm by lowering the public impression of the accepted standard of treatment of citizens than it did good by its deterrence. I suggest that the defense of the death penalty has always been based in the main on its deterrent power and I believe that the example of the State taking life even when it only does so in return for a life already taken, does more to lower the value of human life in the minds of its citizens than the deterrent influence of this penalty can do to protect the lives of the citizens. In this way, I believe that the main influence of the retention of the death penalty is rather to increase than diminish the number of murders."99
"The real benefit of the death penalty," says Amnesty Intenational’s Larry Cox, "which is not a benefit to society but to a few of the people who are in charge of running the society, is that it gives the appearance of doing something about violent crime without having to touch in any way the basic structures and relations in the society which might actually/ have something to do with violent crime."100
Anyone who believes that they would feel safer with the death penalty in place should ask themselves if they would feel safer in places where the death penalty actually exists. Is it actually safer in New York, Los Angeles, Iran, South Africa or the U.S.S.R.?
As was stated in the Toronto Star, "there is no country in the world in which a death penalty, unsupported by severe political and military oppression, has proved effective in braking an escalating homicide rate."101
For reasons more thoroughly discussed in the section on DETERRENCE, above, the death penalty could not have an appreciable impact on violence because of the situations where violence tends to occur. Murder and violence do not always happen on the "mean streets". In Canada, about one-third of all murders occur within domestic relationships and another roughly third are within social or business relationships.102 Because most murders are obviously committed in emotional circumstances, fear of execution is not a factor in the perpetrator's mind.
The other major factor to be considered in this argument is whether Canada has in fact become so violent that our safety might depend on something so extreme as the death penalty. Statistics suggest that much of the fear driving the rush toward the death penalty is either exaggerated or needlessly alarmist.
The first thing to be remembered is that homicides are not actually increasing. Murders may get all the publicity but between 1975 and 1984 there was an annual average of only 2.78 homicides for every 100,000 Canadians. Of course, any homicide is a great tragedy but compare this figure with the 14 suicides and 20 motor vehicle deaths annually for every 100,000 people during the same period.103
The public perceives violence as being a major part of crime, but in fact, recent statistics show that violent crimes account for less than 8% of all crimes in Canada.104 Homicides are even rarer, comprising less than 0.5% of violent crimes in Canada.105
(iii) Mass Murderers
It is thought by some that if society were only to bring back capital punishment for some very
limited purpose, it would be for the execution of mass murderers.
The problem with such a narrow application of the death penalty is that it cannot possibly adequately address the very concerns such action would hope to address. The execution of a mass murderer could in no way relieve Canadians of their fears in general or lessen the grief or remove the anguish of the families of the victims.
One of the other major problems with such a law is one of definition. When does a murderer become a mass murderer and how do we justify the distinction. In December of 1984 a bill was introduced in Parliament which called for the execution of murderers of ten or more victims. Vince Della Noce M.P., in the course of his criticism, said the following:
"Murderers convicted of killing at least 10 people certainly deserve a particularly severe penalty and unequivocal condemnation of their actions which I would describe as savage. There is no question about the panic caused by a series of murders in a community or of the anguish suffered by the families of victims. However, by what logic would these murderers be condemned to death while others who have committed actions just as monstrous, such as nine murders, would be spared?"106
According to a new study by Statistics Canada those who kill more than once is a rarity in this country. Between 1962 and 1985, 93% of all murderers killed only once, 5% killed twice and 11 (0.1%) killed six or more.107
(iv) Terrorists
There are a number of reasons why the death penalty may be a particularly inappropriate method of dealing with terrorism.
The first, of course, is one of definition. It is now trite to say that one man's terrorist is another man's freedom fighter. Similarly, what some consider to be necessary military counterinsurgency actions others see as state terrorism. In many countries yesterday's generals and heads of state are today's terrorists. The confusion goes on and on.
But let us assume that society is capable of agreeing on who at least in this country is a terrorist and who is not. The death penalty is still not the appropriate method for stopping terrorism. Indeed, it is likely to increase it.
This very question was dealt with by the British parliament during the capital punishment re-introduction debate in 1983. The eminent French newspaper Le Monde approved of the approach of the British Commons:
"Terrorism, too, was a prominent issue in the debate on hanging. Some ministers, including Northern Ireland Secretary James Prior, had quite clearly seen the hazards of trying to combat terrorism by applying the death penalty. There was a moral danger should a great democracy resort to the expeditive and barbarous methods used by its enemies? But the political risk was no less. The execution of terrorists would, of course, have provided the IRA, INLA, and other armed organizations in both Northern Irish communities with ready-made martyrs. And martyrs are invaluable for drumming up support.
The terrorists in Northern Ireland realized this full well; just a few hours before the House of Commons was due to re-examine the question of capital punishment, they carried out a terrible act of provocation which cost the lives of four part-time soldiers near Belfast."108
Certain Ulstermen could see the folly of attempting to combat terrorism with death:
"The ARCHDEACON OF NOTTINGHAM (the Ven. R.K. Williamson) said that, as an Ulsterman, he would regard the reintroduction of capital punishment as catastrophic. The situation in Northern Ireland would not be helped one iota by the introduction of another form of violence.
So much of the violence in Ulster fed on memories of the past, and it was those memories that needed healing. To reintroduce the death penalty would produce a new crop of martyrs and build up more bitter memories on which future violence would feed."109
The comments of Amnesty International's Eric Prokosch also illustrate the wisdom of the British Parliament for not instituting the death penalty for terrorists:
"Opposition fighters would not be deterred by the death penalty”, they said. Ten prisoners belonging to violent opposition groups had fasted to death in 1981, and their deaths had gained publicity and money for their organizations. To execute such men would be to create revolutionary martyrs around whose memory stronger opposition would be rallied. "Ireland would burn the moment the first person died," one former minister said.
Introducing the death penalty for “terrorist" killings would mean conferring political status on something which the British Government had always intentionally treated as a purely criminal act. There would be the difficult legal problem of defining the word "terrorism". There would be the anomaly, as with other attempts to define categories of capital offence, of implying that "terrorist" murders were more atrocious than others. There would be the risk that opposition arouses would have assassinations carried out by children, who would escape execution because of their youth. There would be the risk of hostage-taking in reprisal. And there would be the very real problem of obtaining convictions."110
THE POLICE
(i) We Need Capital Punishment for Police Killers Because the Police Require Special Protection
Actually, a number of police officers, themselves, would disagree. In his “viewpoint” Criminal Lawyers' Association President Earl J. Levy, Q.C. has said the following:
“It is notable that the cry for restoration of the death penalty seems to receive its greatest impetus when police officers are killed. I have talked with a number of police officers who feel that their lives should not be treated as more valuable than, for example, their wives and children. They have taken their job knowing and accepting its risks, they are paid for it (perhaps not enough) and are trained to defend themselves.”111
Indeed, Chief of Police Robert Lunney of Edmonton has said: "The Canadian police community has never been of the opinion that capital punishment should be an option reserved only for the killing of police officers or correctional guards."112 As Dalhousie law professor Wagner McKay put it: "Police are on the line but do we want to say that a policeman's life is worth more than someone else’s?”113
In truth, a police officer is statistically safer than a firefighter, a miner, a sailor or virtually any other employment that has an "element of risk in it". 1l4
In 1985, professors James Hackler and Christian Jansen published a study on police killings between 1961 and 1981. After presenting their statistical data they concluded as follows:
"Policemen appear to face a higher risk of homicide than the comparable group of males aged 20 to 49 in the population at large. However, studies of public attitudes do not indicate a growing hostility toward the police; on the contrary there is a danger that the police may mis-perceive public opinion and overreact to the killings. While the data presented above does not necessarily support the "contagion" hypothesis, they are consistent with it. Over-dramatization of these events may in fact influence the least stable and most irrational elements in our population and stimulate those behaviors that we hope to avoid." 115
The general conclusion then was that it is in fact safer to be a policeman in Canada today than it was 20 years ago.116
The other significant factor to consider is the non-deterrent value of capital punishment. An examination of the killings of police officers in the last two years reveals that capital punishment would not have saved the policemen's lives.
This was-expressed in a 1984 Toronto Star editorial:
"It's hard to see how the existence of capital punishment would have saved the lives of any of the three officers who died recently.
If the man who engaged in a shoot-out with Constable Dunmore and other officers and who ultimately was fatally shot himself wasn't deterred by the prospect of immediate death at the hands of armed and trained policemen, it seems unlikely he would have been deterred by the more remote prospect of future death by hanging.
The man who stabbed Peel Regional Police Constable Dwayne Piukkala to death last month subsequently used the constable's gun to commit suicide. The threat of capital punishment clearly would have been irrelevant in his case.
And it seems safe to assume that whoever shot York Regional Police Constable Douglas Tribbling while he was investigating a burglary last month was thinking in terms of escape, not the consequences of capture. Indeed various studies have indicated that most killings are committed either by people acting in the heat of passion without regard to the consequences, or by people who expect to evade being caught and paying the consequences.”117
"Ironically" wrote the Star's Trish Crawford, "it is the civilian present during a crime who is much more likely to be murdered by a criminal. The variety store owner, bank teller, shopper and innocent bystander is 10 times more likely to be killed.
Between 1961 and 1974, crooks in Canada killed 53 police officers while on their crime sprees, but they also murdered 55 citizens."118
The archetypal police killer is hardly influenced by the possibility of capital punishment, in part because he tends to be suicidal. "Suicide and murder are both parts of the same destructive violent package, the experts say,” Crawford wrote. Dr. Fred Jensen, clinical director of the Metro Toronto Forensic Center operating out of the Queen Street Mental Health Center added that confronting a police officer violently "is an easy way to commit suicide. Its a reasonable idea that the police will respond. The person knows that the police shoot to kill, not to maim.” 119
Death is not a deterrent to such men, it’s a positive incentive.
One of the policemen shot in 1984 was killed by a man dressed as Sylvester Stallone in the film First Blood. He was apparently obsessed with the film and viewed it over and over. In the same week as the shooting a U.S. psychologist told a Toronto conference: "Commercial cinema and T.V. violence have the power to teach both children and adults how to commit violence. Repeated violence viewing in films clearly incites some viewers to engage in violent behavior." 120
If death penalty advocates are really concerned about growing violence, one must aware why they are not agitating for increased research into the effects of media violence. Again, are efforts being made in the wrong place?
(ii) Police Killings Since Abolition: Statistics
It may surprise some people to know that notwithstanding the rash of police killings in 1984, there were more police killed when the penalty for such was death than after the abolition of capital punishment.
"From 1967 to 1976," wrote Earl Levy, "Canada experimented with a partial ban on hanging, restricting the capital punishment option to judges sentencing persons for killing policemen and prison guards. But in the five years before Parliament's abolition decision there were 19 police killings, compared to 18 in the subsequent five-year period."121 Thus, it could hardly be said that more police died as a result of the decision to abolish the death penalty.
If we compare the number of policemen killed with the total number of officers on Canadian police forces, we find that since 1962 there has actually been a general decline in the number of policemen killed through criminal acts in the line of duty per 1000 of police force. It is also interesting to note that this downtrend in the number of policemen murdered per 1000 of police force has occurred during the same period as an increase in the number of homicides generally. In their analysis of these statistics, James Hackler and Christian Janssen observe: "The findings suggest ... that the police may actually be experiencing falling homicide rates while the population at large is experiencing rising rates."122
In an October, 1984 Globe and Mail article, the following information was given:
"The statistics show that 11 Canadian police officers were killed in 1962, and six were slain in both 1974 and 1978. Five officers died in 1968, as well as in 1969, 1973, 1977,and 1981.
The 86 policemen killed in Canada in the 23 years since StatsCan began keeping records of police homicides pales in comparison to the 79 slain in the United States in 1982 alone.
A Canadian policeman's chance of being killed on duty is about six times greater than that of most civilians, but is less than that of a miner, a construction worker, a farmer or someone working for a transportation company or public utility.
About 18 per cent of police slayers subsequently took their own lives, leading criminologists to believe they possess a death wish.”123
The yearly average for police murders in Canada is 3.5. Despite considerable growth in the number of police, this number has remained very stable over the years. From 1961 to 1970, 36 police officers were wilfully killed. From 1971-1980, the number was 37. The highest number over this period was 11, and occurred in 1962, when the death penalty was still in effect, and executions were still being carried out. This constant figure must also be perceived in light of the growing crime rate over the period.
From statistics available from Statistics Canada, one can compare the number of police officers per 100,000 people to the average rate of 3.3 police murders per year from 1960-1980, and see that while police murders remained fairly constant, the number of officers went from 143.6 per 100,000 in 1960 to 222.4 per 100,000 in 1979. In addition we can compare the number of police murders to the crime rate, which increased from 5,211.9 criminal acts per 100,000 people in 1970 to 8,307.4 in 1980. In comparing these figures, the number of police murders in relation to criminal acts and police officers at risk has decreased.124
Statistics Canada reports that 38 police officers were murdered in Canada between 1966 and 1975 compared to 37 in the ten years after the death penalty was abolished. During this period of 20 years the number of police officers almost doubled.125
Statistics Canada reports that in 1986, four police officers were slain, consistent with the average over the past decade.
(iii) The Police Want Capital Punishment and They Know Crime Better
Do they really? Or should we accept that they are human beings like the rest of us and tend to speak out - particularly when some of their brethren are killed - on the basis of emotionalism and-not on the basis of knowledge. In February of 1985 John Gault put it this way:
"What the reborn capital punishers have managed to do is manipulate people's perceptions. Consider, for example, the comments of York Regional Police Chief Bruce Crawford at the funeral of a young officer killed October 9, the sixth policeman to be killed in seven weeks. "Many crosses will have to be borne by those who have sat idle during the past years and watched this beautiful Canada of ours descend into the scandalous state of lawlessness we see today," is what Crawford said. "York Chief rakes lawless Canada"' was the headline for the Sun's story. "Spate of deaths ‘national disgrace’ mourners told," said the Star."
Citizen Crawford has the right to any opinion he wants to hold, and so does Police Chief Crawford. But it seems to me that Police Chief Crawford has an added responsibility, which is to support his opinion with facts. But he chose not to, and the reason he chose not to, I suggest, is that the facts do not support that opinion. There is simply no evidence whatsoever that Canada has descended into a state of lawlessness, scandalous or otherwise, over the past seventeen years - since capital punishment was officially abolished for all murders save those of police and prison guards. (Abolition became total in 1976). One can only assume that the chief was deliberately rabble-rousing, a questionable pursuit for one in his ;profession, and that the reporters were either too ill informed or too complicitious to call him out on it."126
Shortly after Metro Toronto Police Officer David Dunmore was shot on September 19, 1984, police began their calls for the death penalty. Paul Walter, the president of the Metro Toronto Police Association said the reinstitution of the death penalty was a necessary step to protect society.
He said this notwithstanding the fact that figures from Statistics Canada indicated that the murder rate for police officers had declined since the early 1960s and has shown no increase since the abolition of the death penalty.127
Indeed, the police have called for the death penalty at times knowing full well that it would not have prevented the deaths of their comrades.
At the funeral described by John Gault, above, Police Chief Crawford also said that the death penalty may not have prevented recent police killings but it is the "only appropriate punishment. l28 He gave no reasons as to why the death penalty was the “only appropriate punishment”.
In fact, it seemed like a particularly inappropriate punishment in the case of the officer at whose funeral Crawford was speaking, because the killer had shot himself with the officer's service revolver after he drove into the officer's cruiser.
Police have had a tendency to automatically assume that the death penalty as a deterrent to murders of policemen even though all evidence points to the contrary conclusion. Referring to the refusal of the federal Progressive Conservative government to reopen the debate on capital punishment, Paul Walter said: “They are procrastinating as police officers are dying. The responsibility for some of the deaths may rest on their shoulders.”129
Well, it is apparent that not even the Canadian Association of Chiefs of Police believe that any more. At their last conference during the summer of 1986 the association concluded that it could no longer argue for the death penalty on the basis of deterrence. The evidence simply could not support such an argument. Unfortunately, they have not dropped their demand for the death penalty. But not as "a gesture of revenge; it is based upon a moral imperative” said Moncton Chief Greg Cohoon, the association's current President. 5 We must now ask ourselves; on what factual basis is a moral imperative derived? Indeed, in what way can the purposeful killing of a human being ever be characterized as stemming from a moral imperative?
Retribution
Retribution is really a nicer way of saying 'revenge'. This section deals with arguments that capital punishment should be reinstated so that society may properly take revenge upon the murderer for what she/he has done.
(i) Retribution is Society's Right
The first question one might ask is: “what kind of a society do we want to live in?" And do we want to live in a society where retribution is considered a right. Consider societies where it is.
Criminal Lawyers' Association President, Earl Levy has put it this way:
"Retribution and vengeance should not be what motivates a civilized society. Retribution and vengeance are the handmaidens of terrorists and the underworld; retribution and vengeance are ever present in the penitentiaries where we continually hear of prisoners killing each other. Has our society become so desensitized to killing that we are prepared to emulate the lowest elements of our society?"130
Former prime minister Pierre Trudeau asked essentially the same question during the Commons abolition debate in June of 1976:
"Are we, as a society, so lacking in respect for ourselves, so lacking in hope for human betterment, so socially bankrupt that we are ready to accept state vengeance as our penal philosophy? ...To retain (capital punishment] in the Criminal Code of Canada would be to abandon reason in favour of vengeance; to abandon hope and confidence in favor of a despairing acceptance of our inability to cope with violent crime except with violence."131
One of the major problems with revenge is that it is a human dead end. "What revenge brings into the world," wrote Jack Costello, "is simply a heaping of injury upon injury with no break in the cycle, without any healing of the basic hurt." Costello goes on to point out that it is commonly believed that those who really require retribution are the families and close friends. But as Rev. Thomas Daily of St. Augustine's Seminary in Toronto observed: "What they need is friendship and solace and the healing power of time - not the death of another human being." 132
Some people base their claim on the right to retribution upon the principle of restitution or compensation. But as Albert N. Wells observes, "Clearly, there can never be total compensation for, say, a life that has been taken away by violence. But simply demanding the offender's life in return does nothing to improve the situation. It cannot bring any degree of good out of what clearly was an evil act." 133
Pastor Wells then went on to say:
"Many of our attitudes and policies only aggravate our common problems. Capital punishment, for example, simply perpetuates violence under the name of what some would call "justice." But it is a poor justice indeed. In fact, capital punishment actually prevents justice being carried in the fuller, more adequate sense we have described. When we carry out the death penalty, we only create another victim, with all the attendant agony and horror that families of “capital” crimes already know. Who will be advocates for the families of the people upon whom we corporately visit the violence? We all shall be responsible. Our hands all will be on the switch.”134
(ii) Only Death Will be Appropriate Retribution for Murder
Let us assume for a moment that, notwithstanding any of the foregoing, we still feel justified in exacting at least some retribution from the offender. We must then ask ourselves whether or not capital punishment is appropriate. By its use, are we in fact exacting an amount of revenge equal to the crime the offender committed? Or are we taking more and are thereby exacting more than revenge.
Consider that the condemned convict, unlike his or her original victim, spends every waking moment contemplating his or her impending and certain violent death. The wait may be years. No victim has had to undergo such torment. Speaking about such condemned men, Arthur Maloney said: "These men have died a thousand deaths. They suffer more torment and torture than was ever meted out by any murderer to his victim."134
Indeed, the torture may not end with the actual execution. The only form of capital punishment ever used in Canada is hanging.
From Maclean's:
"Since Confederation, there have been more than 700 hangings in Canada - the only method of legal execution ever used in the country - and not all of them were swift and efficient. In some cases hangmen have miscalculated to the point where condemned persons have strangled or, as in the case of Thomasina Sarac, who was 40 lb. heavier than the hangman expected at her 1935 execution in Montreal, were decapitated.
Indeed, hanging may be one of the most cruel and drawn-out forms of legal execution used in modern times. 135
We must also ask whether a life sentence isn't just as harsh for the offender as execution. If it is, then the execution is not required, not even for the purpose of revenge. A moment's thought should reveal that imprisonment for life without parole eligibility for the next 25 years is as harsh a punishment as anyone could imagine having to undergo.
(iii) Murderers Should Get Their “Just Desserts"
What people who say this kind of thing in relation to the death penalty often mean is that murderers should receive exactly the same treatment they meted out to their victims. Although this may sound logical in theory it soon becomes ridiculous when we attempt to apply such a rule as part of our criminal justice system. Are we to start running over dangerous drivers, assaulting muggers, burning down arsonists' homes and vandalizing the homes of vandals?
An often heard corollary to this argument, however, is that murderers are especially liable to extreme retribution because they simply ‘deserve’ to die. They deserve to die because they have committed acts which put them outside of the human race. Being something other than a human being, the condemned murderer is not entitled to human rights.
The problem is that history has shown us that we embark on a rather dangerous route when society begins declaring which of its members are people and deserving of basic human rights and which members are deemed to be no longer deserving of such rights.
This kind of distinction is of paramount concern to groups opposing torture and promoting human rights such as Amnesty International:
“ ... because governments are always telling us that it is not that they are torturing, or "disappearing" or locking up people; they are torturing, "disappearing" and locking up terrorists, or communists, or counter-revolutionaries or CIA agents, people who because of their acts should no longer be treated as part of the human race. Those governments do not like to be reminded that the very meaning of human rights is that they are inalienable. Human rights are not awards given by governments for good behavior, and they cannot be taken away from people for bad behavior. But it is simply difficult to kill or torture people if you regard them as being human, if you see some shared humanity."136
In North America, we are told that those who ought to be killed by the state are not really people - they are monsters, or they are animals, or they are cancers which have to be cut out of the social body. But should the analysis end there? Again, from Amnesty International's Larry Cox:
"The people on death row in the United States have in fact committed -- many of them, most of them -- terrible acts of cruelty that ought to be condemned. It doesn't do any good -- in fact, I would submit that it does a lot of harm -- to romanticize who those people are, or to somehow cover up the horrible cruelties that they have committed. But it is not an objection to romanticism or sentimentality that explains the outrage which is directed so often against anyone who tries to point out that the people, the lives of the people on death row cannot be summed up in one single act that they have committed; that the people on death row have histories, and that those histories predate what they have done; and that those histories often show that they themselves were the victims of abuse and neglect by society long before they committed the acts for which the society now proposes to kill them. The reason that line of argument is so offensive to people is because it reminds them that these are in fact people. And again, it is very hard to kill someone when you are reminded that he or she is a human being." 137
Punishment (i) Only Through Severe Punishment Will We Stop Crime
When we are not trying to deter criminals - either specifically or generally - we are trying to punish them. While the merits of punishment as an effective method of dealing with crime has been debated numerous times, it remains fairly clear that our criminal justice system is not exclusively concerned with punishment. Treatment and rehabilitation are certainly important interests within the criminal justice system.
Nonetheless, advocates of capital punishment often concentrate on punishment alone as being the sole goal and raison d’etre of criminal justice. The death penalty thus appears reasonable as being the ultimate punishment for the ultimate crime. But there is a problem with the basic premise of this argument because it is the height of social naivete to believe that punishment in and of itself is effective in dealing with crime and criminals.
Lawyer Arthur Maloney had made this clear in remarks given upon his receiving the John Howard Society's Award for Distinguished Humanitarian Service from the Lieutenant-Governor, John Aird in 1982. The remarks were reported in the John Howard Society Newsletter:
“Mr. Maloney maintains that the most critical concern in criminal justice continues to be the popular belief that all criminal misconduct must be answered by penalties and punishment without regard to the causes of crime and criminality. He said we must give up the myth that very crime must be punished and work at alleviating the social causes of crime - poverty, lack of education, lack of opportunity. He is convinced that a more sophisticated, more realistic and more common sense approach to the causes of human misbehavior would result in a great advancement in solving the problems of crime." 138
It is said by some, that only through punishment does the offender recognize the evil of his mis-deeds and the sanctity of life. But, as Walter MacLean, M.P. now a member of the federal government, once pointed out:
“... capital punishment degrades life and thereby facilitates murder.
The abolition of the death penalty lifts life to a higher plane - even the life of a criminal - and gives him and us the incentive to respect ourselves and others; for the person who cannot respect himself will seldom respect others.” 139
It is, in this context, instructive to have regard to this statement of Sir Christopher Ewart-Biggs:
“... In my view it should be the responsibility of a civilized society to contain the destructive elements within it without resorting to similar methods. This whilst striving through social reform to eradicate the root causes of crimes and violence. We must judge the criminal, condemn and isolate him, but not emulate him.....”140
(ii) Capital Punishment Isn’t Murder, It's Punishment
Capital punishment is the intentional killing of a human being and is therefore, by definition, murder. Nonetheless, some people believe that murder by the state is somehow better - is even justified - because it is done to punish one who has already murdered.
Punishment carries with it an aura of moral supremacy. The state punishes the offender to make it clear that the offender has transgressed the state's moral code. It punishes killers to demonstrate that killing is wrong. It is correct in doing so, say the advocates of the death penalty, even if it kills as a punishment and thereby transgresses its own moral code - in the name of which it claims the right to punish.
But capital punishment, observes U.S. lawyer Joel Berger, attempts to vindicate one murder by committing a second murder. And the second murder is more reprehensible because it is officially sanctioned and done with great ceremony in the name of us all." TIME Magazine's Kurt Andersen went on to add:
"Not simply just as bad, but worse: this may be the central emotional truth for those who most passionately disapprove of executions. The cretinous killer or the seething psychopath is a loose cannon. But the well orchestrated modern execution, careful, and thoroughly considered, is horrible because of its meticulous sanity. Executions are worse, in the abolitionists moral scheme, because the government is always in control: it knows better, but kills anyway.”141
COST
(i) It Costs Too Much to Keep Murderers Alive
In the first place, a society which decides who shall live and who shall die on the basis of money considerations is a very inhuman and dehumanized society indeed.
In the second place, capital punishment is not as cheap a process as its advocates would have us believe. The existence of execution as a penalty means that any and all appeal procedures will have to be exhausted. It also means that the initial determination of whether or not the ultimate sanction is to be imposed makes for an exceedingly meticulous, and therefore expensive, trial.
The U.S. experience, as David Brock pointed out, shows us that imprisoning convicts for life may actually be a bargain for the taxpayers when compared with the costs of adding capital punishment to our justice system:
"So far, the power of the death penalty as a social symbol has shielded from scrutiny the huge demands in money and resources which the death sentencing process makes on the criminal justice system as a whole. Whatever the abstract merits of capital punishment, there is no denying that a successful death penalty prosecution costs a fortune. A 1982 study in New York state concluded that just the trial and first stage of appeal in a death penalty case under that state's proposed death penalty bill would cost the taxpayers of New York over $1.8 million - more than twice as much as imprisoning the defendant for life. And even that estimate does not include the social costs of diverting an already overburdened criminal justice system from its job of handling large numbers of criminal cases to a preoccupation with the relative handful of capital ones." 142
This subject was also analyzed in TIME:
"The careful legal course demanded by the Supreme Court is expensive. Last year the New York State Defenders Association estimated the trial costs for a typical capital punishment case: a defense bill of $176,000, about $845,000 for the prosecution and court costs of $300,000. The total: $1.5 million, and this before any appeal is filed. Getting a writ before the Supreme Court, just one appellate step, might cost $170,000.
It is often argued, with blithe inhumanity, that there are good fiscal reasons for executing murderers: prison is too costly. It is cheaper to send a student to Stanford for a year than it is to keep a con in nearby San Quentin ($10,000 vs. $20,000). But imprisoning one inmate for 50 years would require less than $1 million in New York, not bad compared with the costs of the painstaking appeal process.”143
Notes
1. Capital Punishment - Handout Fact Sheet.
2. "Hanging", MacLean's, Oct. 8, 1984.
3. John Howard Society of Ontario Newsletter.
4. Toronto Daily Star, Oct. 14, 1984.
5. N.Y. Times, Feb. 3, 1985.
6. Globe & Mail, Dec. 13, 1984.
7. TIME Magazine, Jan. 24, 1983.
8. Maclean's Magazine, March 16, 1987.
9. Toronto Daily Star, Jan. 27, 1985.
10. Globe & Mail, Sept. 27, 1984.
11. Methodist Recorder, July 7, 1983.
12. Task Force Position Paper, Winter, 1980.
13. Op.Cit. (9).
14. President’s Viewpoint.
15. Macleans, Oct. 8, 1984.
16. Ibid.
17. Maclean's, Oct. 8, 1984.
18. John Howard Society of Ont. Newsletter.
19. Arthur Maloney, House of Commons debates (Hansard) Feb. 18, 1960.
20. TIME, Jan. 24, 1983.
21. Quoted in "The Death Penalty" (London, The Spectator 154 (Jan. 25, 1935) (111-2).
22. “Viewpoint” Brampton Guardian Oct. 3, 1984.
23. "Decisions of Death" by David Bruck, Dec. 12, 1983.
24. Madean's, Oct. 8, 1984.
25. Amnesty International, Speech, June 23, 1984.
26. Amnesty International, Declaration of Stockholm, 11 Dec., 1977.
27. Toronto Star, April 19, 1986.
28. HANGMAN A Study Resource Kit prepared by The Committee on Outreach and Corporate Witness, The Presbyterian Church in Canada.
29. The Bible Speaks to You, Robert McAfee Brown.
30. Archbishop William Temple, "The Ethics of Punishment", John Howard Anniversary Sermon.
31. Rev. J.A. Davidson, Ottawa Citizen - Jan. 5, 1985.
32. Ibid. Source (2).
33. John Leith, "Theological Reflections on the Death Penalty".
34. Dr. Richard Devor, Catholic New Times, Oct. 22, 1978.
35. HANGMAN Resource Kit, Presbyterian Church in Canada.
36. Costello, "Can a Christian Support Capital Punishment, Catholic New Times, Oct. 22, 1978.
37. Church Times (England), July 15, 1983.
38. Quoted by Costello, in (2) supra.
39. TIME, January 24, 1983.
40. Macleans, Oct. 8, 1984.
41. Toronto Star, April 19, 1986.
42. Inter-church Task Force for the Continued Abolition of the Death Penalty, Position Paper.
43. Methodist Recorder, July 7, 1983 (England).
44. lbid, (3) supra.
45. Toronto Star, June 21, 1986.
46. House of Commons debates, Feb. 18, 1960.
47. TIME, January 24, 1983.
48. Ibid.
49. House of Commons debates, Dec. 13, 1984.
50. TIME Magazine, January 24, 1983.
51. Commons Abolition Debate, March 23, 1966 quoted in Macleans, October 8, 1984.
52. Whig-Standard, Dec. 4, 1984.
53. Toronto Star, Oct. 14, 1984.
54. Ibid.
55. "Can a Christian Support Capital Punishment" Catholic New Times. Oct. 22, 1978.
56. TIME, January 24, 1983.
57. Maclean’s, Oct. 8, 1984.
58. Brampton Guardian, Viewpoint, Oct. 3, 1984.
59. TIME, January 24, 1983.
60. The Lesson of the Scaffold by David D. Cooper, p. 79 published by Allen Lane.
61. HANGMAN Study Resource on Capital Punishment, Fact Sheet.
62. Position paper, Inter-church Task Force for the Continued Abolition of the Death Penalty.
63. Historical Homicide Data and Other Data Relevant to Capital Punishment Issue.
64. TIME, January 24, 1983.
65. Rubel, "Notes on the Death Penalty".
66. Maclean's Magazine, March 16, 1987.
67. Globe and Mail, August, 1986.
68. 1987 Study by the National Parole Board.
69. 1987 Study by the National Parole Board.
70. Globe and Mail, April 11, 1986.
71. Toronto Star, October 14, 1984.
72. Ibid.
73. Toronto Sun, August 27, 1986.
74. TIME, January 24, 1983.
75. Canadian Coalition Against the Death Penalty, Position Paper Issued Winter, (1984/85).
76. Maclean’s, October 8, 1984.
77. "Executed in Error" Ontario Lawyers Weekly April 12, 1985.
78. Quoted in Position Paper (Winter, 1980) of the Inter-church Task Force for the Continued Abolition of the Death Penalty.
79. Toronto Star, October 14, 1984.
80. a.k.a. The Canadian Coalition Against the Death Penalty Position Paper (working draft).
81. Globe and Mail, June 2, 1984.
82. Globe and Mail, April 11, 1986.
83. 1987 Study by the National Parole Board.
84. 1987 Study by the National Parole Board.
85. All of the foregoing from Bruck’s article, published in New Republic Dec. 12, 1983.
86. TIME, January 24, 1983.
87. Ibid.
88. From "Theological Reflections on the Death Penalty" by John H. Leith.
89. House of Commons Debates, Feb. 18, 1960.
90. Ontario Lawyers Weekly, April 12, 1985.
91. Address given to the 9th International Conference on Criminology (Vienna, September 30, 1983) by Eric Prokosch (Amnesty International).
92. Globe and Mail, April 10, 1987.
93. Column: From the Far West by Michael Bolton, Criminal Lawyers' Association Newsletter.
94. Ibid.
95. House of Commons debates, February 18, 1960.
96. House of Commons debates, December 13, 1984.
97. Toronto Sun, August 27, 1986.
98. Quoted in "Hangman" Resource Kit. Committee on Outreach and Corporate Witness.
99. Preached at the Church of St. Martins-in-Fields, 1930.
100. Speech Given at Amnesty International U.S.A.'s Annual General Meeting, June 23, 1984.
101. October 14, 1984.
102. Homicide in Canada, 1982, Statistics Canada, 1984.
103. Globe and Mail, August, 1986.
104. Crime & Traffic Statistics, Statistics Canada.
105. Globe and Mail, April 4, 1985.
106. House of Commons Debates, December 13, 1984.
107. Historical Homicide Data and Other Data Relevant to the Capital Punishment Issue.
108. LeMonde editorial July 14, 1983.
109. Church Times, July 15, 1983 referring to the vote on hanging of the General Synod of the Church of England.
110. Address given to the 9th International Conference on Criminology (Vienna, 30 September, 1983).
111. Reprinted in Ontario Lawyers Weekly, Nov. 2, 1984.
112. Maclean's, October 8, 1964.
113. Ibid.
114. Leo Adler, Globe and Mail, September 27, 1984.
115. "Police Killings in Perspective" Canadian Journal of Criminology, April, 1985.
116. Globe and Mail, April 26, 1985.
117. Toronto Star, September 19, 1984.
118. Toronto Star, October 13, 1984.
119. Ibid.
120. Toronto Star, September 24, 1984.
121. Levy, Ontario Lawyers Weekly, November 2, 1984 adapted from Maclean's, October 8, 1984.
122. Police Killings in Perspective, Canadian Journal of Criminology, April, 1985.
123. Globe and Mail, October 11, 1984.
124. Howard Rubel, "Notes on the Death Penalty".
125. Maclean's Magazine, March 16, 1987.
126. "The Surge to Kill" by John Gault Toronto Life, February, 1985.
127. Globe and Mail, September 10, 1984.
128. Toronto Sun, October 13, 1984.
129. Ibid.
130. Ontario Lawyers Weekly, November 2, 1984.
131. Maclean’s, October 8, 1984.
132. "Can a Christian Support Capital Punishment?" Catholic New Times, October 22, 1978.
133. "Toward a More Biblical Understanding of Justice" The Presbyterian Outlook, April 26, 1982.
134. Commons Debates, February 18, 1960.
135. Macleans, October 8, 1984.
136. Speech given by Larry Cox at the Annual General Meeting of Amnesty International, U.S.A. (Chicago, June 23, 1984).
137. Ibid.
138. The John Howard Society of Ontario Newsletter, Summer, 1982.
139. From a sermon by Reverend Walter MacLean, M.P. reprinted in “Hangman” Capital Punishment Resource Kit.
140. Manchester Guardian Weekly, July 15, 1979.
141. TIME, January 24, 1983.
142. "Decisions of Death" The New Republic December 12, 1983.
143. TIME Magazine, January 24, 1983.
A Rights-Constrained Wealth-Mazimation
Approach to Capital Punishment
Kenneth L. Avio *
1. The 1976 and 1987 debates on capital punishment in Canada differed markedly in character. The earlier debate centered on deterrence. This was the clear focus in both the House of Commons and in the media. Moreover, the Canadian courts took a related consequentialist perspective in the major Canadian case on capital punishment, which just happened to be decided in 1976.1 In marked contrast, the 1987 debate focussed on deontological matters such as rights, justice, desert, and the duty of the state. William Domm, the backbencher who spearheaded the pro-capital punishment cause, claimed that deterrence was only a peripheral issue.2
Here, I'm going to argue that this switch in emphasis is not entirely desirable. I consider the following stylized question: in a regime where the rule of law applies, how should an idealized legislature go about deciding the capital punishment question? That is, what general justifications support the adoption of the death penalty, and are these justifications sufficient to move the idealized legislature to adopt the supreme sanction? The discussion is limited to the crime of murder, and I shall assume that the idealized legislature achieved its authority by legitimate means.
I first consider the reasons for the shift in emphasis noted above. This will lead to a brief consideration of two competing theories of punishment which are fashionable amongst social theorists. Shortcomings in the applications of these theories to capital punishment will be identified, and an alternative basis for
* Kenneth Avio is a Professor of Economics at the University of Victoria, Victoria, B.C.
reaching a decision proposed. This third approach combines elements of the two competing theories. Recent empirical work will be relied upon to partly implement this approach, and the additional (currently unavailable) information necessary to reach a conclusion will be noted. The paper ends with the speculation that were the full information available, the idealized legislature would reject capital punishment.
2. The radical change in the nature of the capital punishment debate over the past decade or so appears to be a reflection of changes in philosophical thinking on matters of social policy in general, and penal philosophy in particular. Three trends may be noted. First, there has been a revival of interest in rights-based social and political theories. With the possible exception of the Law and Economics literature, consequentialist philosophies have been overshadowed by the resurgence in deontological lines of thought. The contributions of philosophers such as John Rawls, Robert Nozick, and Ronald Dworkin all broadly reject consequentialist philosophical programs. The focus of these philosophers is on the nature of rights, what these rights properly consist of, and the source and authority of these rights. Natural rights theorists, social contractarians, and moralists all reject the notion that social
policy should, broadly speaking, be guided by some forward-looking goal such as the maximization of aggregate or average utility.
Second, with respect to penal philosophy itself, The consequentialist-based emphases on rehabilitation, treatment and 'corrections," which dominated thinking in the 1960's and through the mid-1970's, has given way in the face of a perceived failure of programs based upon such philosophies. The work of Martinson is a case in point.3 In Canada, a forced rehabilitative correctional model was replaced by an “opportunities" or "facilitation" model.4 No longer would the state use its coercive power to attempt to change the behavior of those convicted of crimes. Instead, while the prisoner served out his period of incarceration, the state would simply make available resources that could be enlisted by the prisoner to effect his own transformation into a law-abiding citizen. If the offender refused the opportunity, so be it. The payment of a prisoner's debt to society simply involved putting in one's times and did not require any effort on the part of the offender to learn new skills or to otherwise rehabilitate himself.
Third, there has been an increased emphasis on the once forgotten but now restored actor in the crime-punishment relationship, the victim. Beginning in the late 1960's in the United States, a great deal of academic and practical work has focused on the plight of the victim. While the theme of vengeance has not been particularly prominent in this work, the idea of the offender making rectification of atoning for an act which brought harm to a real person, has been. While one could argue that the ultimate purpose of the victim's movement is to prevent future crime, it is the offender-victim nexus of the criminal act itself that is the focus of victimologists, and not the prevention of harm inflicted by future yet unknown offenders upon future yet unknown victims.5
While none of the above-mentioned three factors is directly related to the capital punishment issue, each in the recent past has played a major role in how we think about the state's responsibilities, and how we think about the criminal law. Hence any particular issue pertaining to criminal law and discussed by the legislative body may be at least, indirectly influenced by the deontological theme that underlies these factors. With respect to capital punishment, a sympathetic discussion would focus on the appropriate punishment for murder, where propriety would be judged not in terms of some ulterior and contingent goal of the state such as deterrence, but in terms of an internal justificatory framework for punishment which relates to the just desert of the convicted offender. The question which I address next is whether such an approach yields a reliable and dispositive answer to the capital punishment question.
3. Kantian retributivism anchors the class of recently rehabilitated rights-based theories as applied to crime and punishment. Two principles are the common ground of this diverse set of theories. First, moral guilt and harm are claimed to be jointly necessary and sufficient for punishment to be deserved. Second, the severity of the punishment must be proportional to the wrong-doing. The first of these principles rejects the punishment of the innocent (the necessity of guilt and moral harm) and consequentialism (the sufficiency of moral guilt and harm). The second principle is simply a rendering of the biblical lex talionis. These two principles by themselves are insufficient to guide an idealized legislative body to a definitive answer an the capital punishment question. A brief excursion into Kantian moral philosophy will clarify why.
Kantian moral philosophy is grounded in what is often termed the respect principle. Basically, this principle demands that persons be treated as ends, and never as means to some other goal, even if that goal serves some larger social purpose. Individuals are to be treated as rational beings, capable of autonomous and responsible moral decision-making, and all individuals are to be treated as equals in the Kingdom of Ends.
Perhaps the retributive theory of punishment ' with the greatest currency at the present time is the Reciprocity Theory.6 A crude paraphrase follows: The respect principle is said to require an equal distribution of the burdens and benefits of law. But those who break the law gain an unfair advantage because the law has not constrained their activities whereas it has constrained those of law-abiding citizens. The "balance" is restored by the state imposing proportional suffering onto the law-breaker.
Note that this theory, like all true retributive theories, does not admit vengeance or a desire for revenge or retaliation as rationales for punishment. The guilty law-breaker is punished because he deserves to be punished by virtue of the autonomous act of seeking self-advantage in an unfair manner. Moreover,, it could be argued that, in punishment, offenders are getting what they asked for. This line of thinking relies on the Rawlsian notion of a social contract adopted behind a veil of ignorance, That is, it may be supposed that all individuals would unanimously support the rule of law (including punishment) in a hypothetical choice situation where individual characteristics and endowments are unknown to the choosers. Then it could be said that, ex ante, offenders have willed their own punishment, and that they have a "right" to proportionate suffering.
What conclusion does the Reciprocity Theory yield when applied to capital punishment? On the one hand, the respect principle would seem to suggest, via the Reciprocity Theory, that the "proportional" punishment of state execution would be warranted. On the other hand, the respect principle would seem to be fundamentally inconsistent with certain acts, which may include executioner for example, torture as punishment violates the respect principle even if the crime for which punishment is being exacted is torture.' The capacity for rational thinking is suspended during the torture session; the offender is reduced to little more than an animal. In contrast, legal execution irrevocably destroys this capacity, which leads some philosophers to argue that execution directly violates the respect principle. Others argue that a proper interpretation of the respect principle simply requires that the state foster the capacity of ratiocination in living beings, which would seem to rule out torture but perhaps allow execution. In this view the manner of execution would seem to play an important role, but capital punishment in principle would be permissible. What is required is that the process (of state execution) comports with human dignity (the death of Socrates is taken as the quintessential example).9 Whether a real world penal system could realize this objective is not considered here. However, there exists the conceptual objection that legal execution ends the possibility of innate human growth and development, which is arguably a capacity protected by the respect principle.10 In sum, reciprocity-style retributive theories based on the categorical demand that all individuals be treated as autonomous moral agents are not dispositive on the capital punishment issue; “reasonable” legislators starting from the same set of premises may disagree.
A second class of models based on Kantian principles stresses the expressive function of the criminal law and legal punishment. The recent important book by Duff is illustrative.11 Duff argues that the state, in punishing offenders, expresses the moral outrage of the community. Moreover, punishment provides the opportunity for, and indeed invites, the repentance of the offender and encourages his reconciliation with the community. This approach is inherently retributive because offenders are treated as autonomous moral agents who, via the process of punishment, are led to see the moral harm they have inflicted and to realize the nature and impact of their actions. This awareness may have the fortuitous consequence of stimulating offenders to their own reformation. However, this reformation is never enforced, even if the attempt is doomed to failure. The acknowledgment of the offender's status as a person requires that the offender be allowed to make his own choice, but the state, via the punishment process, invites, assists, and exhorts the offender to realize his own reformation.
Unfortunately, when Duff applies this approach to capital punishment, he finds that the result is not dispositive. On the one hand, he notes that capital punishment may be a rightful expression of society's outrage at crimes which by their heinousness are destructive of the community itself. The purpose of the punishment is to reconcile the offender, by his death, to the community. In Duff's words: "In consenting (as we hope and intend that he will consent) to his execution, he expresses his understanding of the implications of his crime, and his renewed commitment to the community and its values; in and by his death he is reconciled to those with whom he can no longer live."12 On the other hand, Duff points out that one could argue, in a vein similar to the objection presented above (i.e., that no punishment should destroy the capacity of a human being to continue to flourish and develop) that "every offender must be given the chance to repent his crime and to restore himself, in life and not just in death, to the community...” [emphasis added].13 Thus, as with the reciprocity variety of retributivism, Duff's expressive and reformative Kantian-based theory does not lead to firm conclusions on the capital punishment issue. Our idealized legislature will have to look elsewhere for a reliable philosophical account yielding an unambiguous solution.
4. Before turning to alternative accounts, a potentially -important oversight in the retributive models discussed above should be noted: third party effects are largely ignored. Does the respect principle require that such effects be considered, or do retributivist principles require that such ulterior consequences be ignored?
The conflict can be clarified with reference to the capital punishment issue. Suppose that the idealized legislature follows a retributivist approach and in the first instance, is somehow convinced of the impropriety of the capital sanction in all circumstances. Now let us suppose that the legislature obtains new and irrefutable information that the execution of rightfully condemned murderers would prevent, via a deterrence mechanism, a number of future murders, an impact that could not be obtained by any alternative punishment. Would the idealized legislature, under the given assumptions, be swayed to reconsider its position?
Alternatively, suppose that the idealized legislature, again acting on retributivist (but obviously different) grounds, supports capital punishment but then receives irrefutable information that executions have a "brutalizing" effect, and no off-setting deterrent effect. That is, suppose executions induce murders in excess of those induced by any alternative punishment, perhaps because of the impact of the news of executions upon the minds of unstable individuals, or upon murderers when their capture appears imminent. Again, would the new information change the position of the legislature?
Retributivists typically deny the relevance of deterrence in punishment, and the relevance of ulterior consequences in hard cases in general.14 In the scenarios sketched above, the truly retributivist legislature would be bound to ignore the empirical information. But how could ignoring the information be consistent with the respect principle as applied to the (ex ante unidentifiable) additional victims? Have these victims been treated as equals in the Kingdom of Ends?
It appears that third party effects may render the retributivist position precarious or even internally incoherent. It will not do to claim that an increased risk of victimization is consistent with equal treatment on the grounds that all citizens ex ante face the same risk (assumed). The inequality of treatment is based upon a comparison of prospective victims' situations in the alternative punishments scenario. Prospective victims are treated differently depending upon which punishment (imprisonment or death) is adopted by our idealized legislature. Moreover, in the brutalization scenario one could argue (along Dufiian lines) that it would be unfair to the convicted offender to impose the lighter sentence which it may be supposed is not sufficient to arouse his reformation. But it would be bizarre for the idealized legislature to compare these two harms and decide in favor of convicted offenders and against the innocent prospective victims.
In summary, two points have been made. First, Kantian moral principles, notoriously ambiguous as they may be, are not dispositive on the capital punishment issue. Kant himself insisted upon capital punishment for murderers, whereas many Kantians reject this position based upon Kant's own respect principle. It is unlikely that an idealized legislature adopting a generalized retributivist approach would be unanimously and unalterably convinced of one view or the other. Indeed, acceptance of a retributive approach will practically guarantee periodic flip-flops in policy (the "political Halley's Comet' title of this symposium). Second, even if policy reversals could be avoided, hard choices may arise for the idealized legislature following Kantian principles. Treating one group in accordance with the respect principle may result in treating a second group in a manner violative of the same principle. One could argue that the legislature does not will the violation to the prospective victims, but if the legislature knows the effect of its action (even in a probabilistic sense) then the notion of distinguishing effects on the basis of volition breaks down.15 On a less theoretical plane, it would seem odd that an idealized legislature would and should ignore evidence or information such as the deterrent effectiveness of capital punishment if indeed that information were reliable. Yet, making use of such information suggests either that retributive accounts must be extended to include third party effects, or else that retributivism must be replaced by an alternative theory. A consequentialist approach which in its general form has recently enjoyed considerable but controversial discussion is considered next.
5. The "economic theory of punishment" may be treated as a part of the Law and
Economics literature.16 It posits that the level of crime is determined in part by the amount of resources society devotes to the police, the courts and penal institutions. Society may also choose between different forms of punishment: fines, loss of liberty, corporal punishment - each of which entails different social costs. All these choices are made with reference to the overarching goal of maximizing social wealth, or alternatively, minimizing the social cost of crime. This suggests an important difference between this particular consequentialist theory and purely retributive accounts. Resource allocation plays a central role here whereas it is largely ignored in traditional deontological approaches.17
As an example of this difference, consider Kant's demand that a society even in the process of dissolution has the moral duty to seek out and execute all murderers within its jurisdiction. This account fails to acknowledge that the demanded executions require the use of social resources, however small in amount. Thus Kant's approach would result in the reduced wealth of society (relative to simply ignoring the offenders), and hence the potential reduced well-being of every individual (other than perhaps the offenders themselves) in that society. On this interpretation, the coherence of Kant's paradigm therefore depends upon interpreting "dissolution" to mean that the society is in a situation where the present discounted value of the resources to be used for the executions is zero. Or to put it another way, the "opportunity cost" of these resources is zero. But even a society in the process of dissolution would value productive resources positively as long as they could be the source of utility, however brief the span of enjoyment. Thus Kant's scenario and the implications he draws have little relevance for actual social policy. One criticism, then, of the purely retributivist account of punishment is that it fails to perceive that punishment is resource-using and that this use of resources by itself potentially reduces the well-being of the citizenry.
This failure can be seen in a second aspect of retributive models of punishment. These accounts largely ignore the matter of the selectivity of punishment. That is, only those who are caught and convicted are subjected to punishment. What do retributive accounts tell us about those who are not caught? Is the apprehension and punishment of only a portion of those who have committed crime consistent with retributive doctrine? Retributive principles fail to present a complete account of the criminal system, which would require an informed view as to how many of society's resources should be devoted to the apprehension of law-breakers. It will not be sufficient to say that retributivism simply requires that each law-breaker be at equal risk of capture, regardless of the social resources devoted to punishment. Some offenders are easier to apprehend than others, so equating the risk for a given expenditure of resources will result in fewer offenders captured. In the limit, it may take “all" of society's resources to impose a positive risk on the one criminal poised to commit the "perfect" murder.18
In contrast, the economic model of punishment appears to provide a consistent argument forpunishing as well as for determining how many of society's resources should be devoted to the task. Is this approach entirely empty of Kantian notions, which possess an undeniable, intuitive appeal? The emphasis on the scarcity of resources directs attention to the foregone cost of any activity. If the Kantian ideal of humans developing as rational, autonomous and responsible moral agents requires the use of scarce resources (time, effort, human capital), then any social policy which is sub-optimal, by definition results in a reduction of opportunities by at least one individual to participate to the fullest extent in the quest to develop and flourish as moral agents.19 In this sense then, the economic model, which appears anti- or a least a-Kantian, can be interpreted as embodying Kantian principles; its precepts allow for the fullest possible potential moral development. Obviously this account would have to include some notions of distributive principles and rights, which. are typically lacking in standard law and economic treatments.
6. At this point one familiar and powerful objection to consequentialist accounts of punishment must be considered: these models allegedly invite the punishment of the innocent, which directly violates Kantian principles. That is, in furthering the consequentialist goal, the punishment of the innocent may be required. Is this the case with the economic model?20