The death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. The Oxford Advanced learner’s Dictionary1 defines death penalty as the punishment of being killed that is used in some countries for very serious crimes.
For the Black’s Law Dictionary, the death penalty is a state imposed death as punishment for a serious crime. It is a penalty that makes a person or entity ineligible to participate in an activity that the person or entity previously participated in.
2 the death penalty is a death imposed punishment for crime. It is the punishment of execution, administered to someone convicted of a capital crime.
On its part, the free Merriam defines capital punishment as on execution of an offender sentenced to death after conviction by a court of law of a criminal offence. It is a sentence of death imposed on a convicted criminal.
The Halsbury’s Laws of England on its part did not give a clear definition of treason which in the earlier years could amount to the death penalty as the later was abolished in 1998 in England.
The death penalty is usually imposed because of some type of gross misconduct. It is the sentence of execution for murder and some other capital crimes. However, the offence for which the death penalty is awarded is relative to each criminal Justice System.
Various Schools of thought on Death Penalty
The death penalty is a most controversial concept under any criminal Justice System. There has been an unresolved debate over the years on the issue. Various legal writers and scholars have held various opinions on the said concept. These views are going to be discussed under two main schools of thought.
- The Abolitionist school of thought; and
- The Retentionist school of thought. Now these schools of thoughts will be treated one after the other.
1) The Abolitionist School of Thought: This school of thought canvasses for the abolition of the death penalty. Their arguments are based on the following:
i. Morality: On the issue of morality, the abolitionists are of the view that the death penalty is against moral standards and the biblical command which says “thou shall not kill”.
For them, the death penalty is a morally outrageous practice whatever its deterrent effect. It reduces society to the ethical level of the murderer. In a society that aspires to be moral and just, there is no room for such a state sanctioned uncivilized practice. It is a penalty that subjects the individual to a fate forbidden by the principle of civilized treatment. Example of the Abolitionist are Chad, DR. Congo, Cuba, Qatar & Zimbabwe.
ii. Retribution:- For this school, retribution is another word for revenge, and the desire for revenge is one of the lowest human emotions. Perhaps, sometimes understandable, but not really a rational response to a critical situation. To kill the person who has killed someone close to you is simply to continue the cycle of violence which ultimately destroys the avenger as well as the offender. That this execution somehow give “closure” to a tragedy is a myth. Expressing anger also makes us more angry. It does not drain away. It contaminates the otherwise goodwill which any human being needs to progress in love and understanding.
iii. Deterrence: There is no credible evidence that the death penalty deters crime more effectively than long terms of imprisonment. States that have death penalty laws do not have lower crime rates or murder rates than states without such laws. States that have abolished capital punishment show no significant changes in either crime or murder rates5. The death penalty has no deterrent effect. Claims that each execution deters a certain number of murders have been thoroughly discredited by social science research.
iv. Income Level:- The low income earners are always the victims of the death penalty. After all the rhetoric that goes on in legislative assemblies, in the end, when the net is cast out, it is the poor who are selected to die. The poor people get the death penalty because of the corruption level in our criminal justice system where justice is purchased. Money gets you good defence. That is why you will never see an O.J. Simpson or Dangote on death row. As the saying goes: capital punishment means without the capital get the punishment.
v. Irrevocable Mistakes: Since the reinstatement of the modern Death penalty, over 87 people have been freed from Death Row because they were later proven innocent. That is a demonstrated error rate of one innocent person for every 7 persons executed. When the consequences are life and death, we need to demand the same standard for our system of justice as we would for our airlines. It is a central pillar of our criminal justice system that it is better that many guilty people go free than one innocent should suffer.
2) The Retentionist School of Thought:- This school of thought is of the opinion that the death penalty should be retained as a form of punishment for capital offences. They make their arguments based on the following:
i. MORALITY: According to Alex Kozinski, J.D., Circuit Judge in the U.S Court of Appeals for the North Circiut, in a November 7, 2002 Hoover Institution Interview “Immanuel Kant said it best. He said a society that is not willing to demand a life of somebody who has taken somebody else’s life is simply immoral. So the question really… when the system works and when you manage to identify somebody who has done such heinous evil, do we as a society have a right to take his life? I think the answer is plainly yes. I would go with Kant and I would say it is immoral for us not to. 6
ii. Retribution:- For this school, society is justly ordered when each person receives what is due to him. Crime disturbs this just order, for the criminal takes from people their lives, peace, liberties, and wordly goods in order to give himself undeserved benefits. Deserved punishment protects society morally by restoring this just order, making the wrong doer pay a price equivalent to the harm he has done. This is retribution, not to be confused with revenge, which is guided by a different motive. In retribution, the spur is the virtue of indignation, which answers injury with injury for public good. Retribution is the primary purpose of just punishment as such Rehabilitation, protection and deterrence have a lesser status in punishment than retribution.
iii. Deterrence: The death penalty will deter murder. People fear nothing more than death. Therefore, nothing will deter a criminal more than the fear of death.
iv. Income Level: On the issue of income level and the poor not having money to get good defence, the retentionists argue that many giant silk-stocking law firms in large cities not only provide pro-bono counsel in capital cases, but also offer partnerships to lawyers whose sole job is to promote indigent capital defence.
v. Irrevocable Mistakes: No system of justice can produce results which are 100% certain all the time. Mistakes will be made in any system which relies upon human testimony for proof. We should be vigilant to uncover and avoid such mistakes. Our system of justice rightfully demands a higher standard for death penalty cases. However, the risk of making a mistake with the extra-ordinary due process applied in death penalty cases is very small, and there is no credible evidence to show that any innocent persons have been executed since the death penalty was enacted. The inevitability of a mistake should not serve as grounds to eliminate the death penalty anymore than the risk of having a fatal wreck should make automobiles illegal.