The Death Penalty: A Live Issue?

Michael Travis BA/LLB (Hons) September 2001, University of Auckland Law School Criminal Law and Policy

Please notify the author if you wish to cite this paper, or use extracts in your work. A PDF is also available via Google Drive.  Introduction The death penalty is a sentence that has come under growing international attention in the last few decades. It has become a point of interest for ‘liberal’ nations, and has forced many countries to question their attitudes toward punishment. While it may seem like a dead issue for many New Zealanders, it is worth discussing the pros and cons of capital punishment for a number of reasons: i)    it makes us question our own criminal system and penal institutes, ii)   it makes us question the interaction between morality and law, iii)  it makes us question the purposes of punishment and imprisonment, iv)  it is preferable to fully understand the arguments behind abolition so that our condemnation of capital punishment is not empty, and done out of habit, and iv)  it is preferable to fully understand the arguments involved because many nations (including our own) have vacillated over abolition (abolished then reinstated the sentence). The point I aim to make with this essay is that capital punishment is not the black and white matter many exponents and abolitionists say it is. The death penalty is a loaded issue with many grey areas, and to make an intelligent statement on behalf of abolition or retention requires a thorough grasp of the various issues involved. This essay is intended to promote thought on the issue, and to arm the individual with reasoned arguments in support of their own beliefs. 1. Capital Punishment The most prized possession of a sentient being is his or her own continued existence; without which one cannot do anything and so becomes nothing. Because of the ultimate value that is stored in a human life, that person may choose to sacrifice his life for a cause in order to prove that there are values beyond the physical and material plane. In contradistinction, for someone else to deprive them of this essential principle is to commit the worst possible injury against them. Since life, and the inherent value of life, is central to our existence, the removal of one’s life is a dehumanising act. Capital punishment, though, has been the ancient penalty for crimes against religion and the State throughout the history of mankind. The State, essentially a community organised for its own defence, has historically proven itself willing to employ the most drastic measures to ensure its protection; and the death penalty has often been the method of choice (whether on an individual, or mass scale). Joyce writes that  “the nation-State exacts its pound of flesh in the name of justice, and calls it freedom.” [1] Likewise, religions since time immemorial have sought to control the populace through uniformity of community values. To ensure compliance with their laws, religions have also fallen back on the ultimate penalty: the forfeiture of life. Until quite recent times, the line between Church and State has been a nebulous one, with the penalties and procedure toward heresy and treason being one and the same. In the modern age there is no longer the same widespread division of power between Church and State. With the exception perhaps of Islamic nations, the seat of power now tends to rest firmly in the State to the exclusion of religious authority. In the process capital punishment is no longer applied for religious transgressions, but only for crimes against the State (eg treason) or ordinary crimes (eg murder). Another result of this development is the temptation to look at capital punishment in isolation, as an independent State function. Yet the sordid history of capital punishment in religious and State histories – the mass executions of Ancient Rome, the heresy trials throughout the Dark and Middle Ages, and the countless crusades in the name of religion – may “serve to remind us that the roots of violence run deep in individual psychology and social custom.” [2] Joyce argues that in “lopping off a few branches here and there from the Hangman’s Tree, the tree itself remains unfelled and continues to poison all life beneath its awesome shadow.” [3] Perhaps the practice of capital punishment within the State today cannot be isolated from the practice of violence by the State in the days of old. 2. A Brief History of Abolition 2.1 The Calas Incident The history of the modern abolition movement can generally be traced to the work of the Frenchman Voltaire in the 18th Century, as a result of the Calas trial. In 1762 the father of the Calas family was put on trial for the murder of his son, who had in fact committed suicide. The family were of the reformed religion, though one of the sons had converted to Catholicism. The father had nonetheless continued to support this son. However, he had discontinued financial support of his other son who was a drunkard and a gambler. As a result this son became disturbed and committed suicide. Unfortunately, a rumour spread amongst the Catholic community that the father had murdered this boy in order to prevent him also converting to Catholicism. This was despite the father being a sick and enfeebled 69 year old. Eventually the religious furore created by the rumour led to the trial and the execution of the father, despite the clear absurdity of the evidence. The wife and the other son were also accused of involvement in murder, but were later acquitted. They subsequently befriended Voltaire, who took up their cause and resolved to posthumously acquit the father. After four years he was successful. During this time Voltaire put into practical effect the first arguments against capital punishment: “You ask me why I interest myself in this man Calas; it is because I am a man; because I see the indignation abroad … it is not for me to condemn the lawyers of Toulouse, but there was no eye-witness; the fanaticism of the people affected the judges.” [4] 2.2 Other 18th Century Reforms In 1743 Montesquieu published L’Esprit des Lois in which he described the death penalty as “the remedy of a sick society.” While he thought it repugnant, though necessary, he nonetheless argued that it should be reformed to be more moderate. At present it was a public spectacle, but Montesquieu argued that through such displays the public would become accustomed to the horrors of death, thus reducing its effectiveness as a deterrent. In 1764 the Italian Beccaria published On Crime and Penalties in which he distinguished crime from sin, and illustrated the consequences of confusing the two. He also wrote in response to Rousseau’s Social Contract (published in 1762). Rousseau had maintained that the death penalty could only be justified when there was no other way to prevent the creation of new victims. Beccaria questioned this justification: “Who then has given to man the right to kill his fellow man? … If man has not the right to dispose of his own life, he cannot grant it to another, not even to society as a whole.” [5] He also argued that the imposition of the death penalty was not a human right: “It is nothing but a war declared on a man by the nation, which judges it useful and necessary to destroy his life.” The work of these reformers did little at this point to abolish the death penalty, but did lead to attempts to humanise the process throughout Europe. During the French Revolution, Lepeletier argued before the French Assembly that torture, fire and the wheel should be abolished in favour of whichever method of execution would provide “the simple deprivation of life” with the least suffering. (Thus was the guillotine introduced during the Reign of Terror.) 2.3 The Success of 19th Century Reforms In the following century Beccaria’s work was to have a more practical influence. In 1816 the Swiss de Sellon proposed that the Geneva Grand Council should abolish the death penalty, and so become a “free and enlightened people, to give an example of humanity to Europe and all Christian societies, by leaving open the door to repentance and remorse.” When the Council refused, de Sellon instigated an international competition on the subject of abolition, drawing many European intellects into the debate. In response to the competition, Lamartine wrote that: “It is not that we have to learn to fear death, it is life that we have to learn to respect.” Concurrently, the philosophy of humanitarianism was becoming more popular throughout Europe. France reformed its criminal code in 1832 to reduce the number of crimes to which the death penalty applied, and then in 1848 the new French Constitution abolished the penalty for political cases. This Swiss Federal Constitution also took this step in 1848, as did the German states of Oldenburg, Anhalt and Nassau.  Elsewhere, states amended their criminal codes to remove the death penalty for civil offences: Tuscany in 1859, Greece in 1862, Colombia in 1863, Venezuela in 1863 and Rumania in 1865. Portugal legally abolished capital punishment in 1867, followed by Saxony in 1868, the Netherlands in 1870, Costa Rica in 1880, Italy and Guatemala in 1889, Brazil in 1890, Nicaragua in 1892 and Honduras in 1894. 2.4 The 20th Century This process of abolition continued into the dawn of the 20th Century. Norway abolished the penalty in 1905 (having not imposed it for the last century), followed by Sweden in 1921, Argentina in 1922, the Dominican Republic in 1924, Mexico in 1928, Denmark in 1930, New Zealand in 1941, Iceland in 1944, Brazil in 1946, and Finland in 1949 (who had also not imposed it for over a century). Unfortunately, this healthy trend was upset by one major factor – the Second World War. The sheer magnitude of this war, its cost in civilian life and its horrific brutalities (notably the Nazi Holocaust) fostered a deep feeling of retribution in the bosoms of many nations. Following WWII many nations rescinded their abolition status, including the Netherlands, Belgium, Portugal, Spain, Italy and New Zealand. By 1965 there were only 12 abolitionist countries throughout the world. 3. Current Status of the Death Penalty Worldwide Since 1965 the trend towards abolition has again been growing steadily. According to Amnesty International there are currently (as of 1st June 2001) 109 countries that are abolitionist in law and practice. Conversely there are 86 retentionist nations. [6] Amnesty International breaks this figure down into the following sub-categories: that there are 75 countries that are abolitionist for all crimes, 14 countries that are abolitionist for ordinary crimes only, and 20 countries that are abolitionist in practice. Amnesty International also lists the countries according to these categories: 3.1 Abolitionist for all crimes Countries whose laws do not provide for the death penalty for any crime: ANDORRA, ANGOLA, AUSTRALIA, AUSTRIA, AZERBAIJAN, BELGIUM, BULGARIA, CAMBODIA, CANADA, CAPE VERDE, COLOMBIA, COSTA RICA, COTE D'IVOIRE, CROATIA, CZECH REPUBLIC, DENMARK, DJIBOUTI, DOMINICAN REPUBLIC, EAST TIMOR, ECUADOR, ESTONIA, FINLAND, FRANCE, GEORGIA, GERMANY, GREECE, GUINEA-BISSAU, HAITI, HONDURAS, HUNGARY, ICELAND, IRELAND, ITALY, KIRIBATI, LIECHTENSTEIN, LITHUANIA, LUXEMBOURG, MACEDONIA (former Yugoslav Republic), MALTA, MARSHALL ISLANDS, MAURITIUS, MICRONESIA (Federated States), MOLDOVA, MONACO, MOZAMBIQUE, NAMIBIA, NEPAL, NETHERLANDS, NEW ZEALAND, NICARAGUA, NORWAY, PALAU, PANAMA, PARAGUAY, POLAND, PORTUGAL, ROMANIA, SAN MARINO, SAO TOME AND PRINCIPE, SEYCHELLES, SLOVAK REPUBLIC, SLOVENIA, SOLOMON ISLANDS, SOUTH AFRICA, SPAIN, SWEDEN, SWITZERLAND, TURKMENISTAN, TUVALU, UKRAINE, UNITED KINGDOM, URUGUAY, VANUATU, VATICAN CITY STATE, VENEZUELA. 3.2 Abolitionist for ordinary crimes only Countries whose laws provide for the death penalty only for exceptional crimes such as crimes under military law or crimes committed in exceptional circumstances: ALBANIA, ARGENTINA, BOLIVIA, BOSNIA-HERZEGOVINA, BRAZIL, CHILE, COOK ISLANDS, CYPRUS, EL SALVADOR, FIJI, ISRAEL, LATVIA, MEXICO, PERU. 3.3 Abolitionist in practice Countries which retain the death penalty for ordinary crimes such as murder but can be considered abolitionist in practice in that they have not executed anyone during the past 10 years and are believed to have a policy or established practice of not carrying out executions. The list also includes countries which have made an international commitment not to use the death penalty: BHUTAN, BRUNEI DARUSSALAM, BURKINA FASO, CENTRAL AFRICAN REPUBLIC, CONGO (Republic), GAMBIA, GRENADA, MADAGASCAR, MALDIVES, MALI, NAURU, NIGER, PAPUA NEW GUINEA, SAMOA, SENEGAL, SRI LANKA, SURINAME, TOGO, TONGA, TURKEY. 3.4 Retentionist Countries which retain the death penalty for ordinary crimes: AFGHANISTAN, ALGERIA, ANTIGUA AND BARBUDA, ARMENIA, BAHAMAS, BAHRAIN, BANGLADESH, BARBADOS, BELARUS, BELIZE, BENIN, BOTSWANA, BURUNDI, CAMEROON, CHAD, CHINA, COMOROS, CONGO (Democratic Republic), CUBA, DOMINICA, EGYPT, EQUATORIAL GUINEA, ERITREA, ETHIOPIA, GABON, GHANA, GUATEMALA, GUINEA, GUYANA, INDIA, INDONESIA, IRAN, IRAQ, JAMAICA, JAPAN, JORDAN, KAZAKSTAN, KENYA, KUWAIT, KYRGYZSTAN, LAOS, LEBANON, LESOTHO, LIBERIA, LIBYA, MALAWI, MALAYSIA, MAURITANIA, MONGOLIA, MOROCCO, MYANMAR, NIGERIA, NORTH KOREA, OMAN, PAKISTAN, PALESTINIAN AUTHORITY, PHILIPPINES, QATAR, RUSSIAN FEDERATION, RWANDA, SAINT CHRISTOPHER & NEVIS, SAINT LUCIA, SAINT VINCENT & GRENADINES, SAUDI ARABIA, SIERRA LEONE, SINGAPORE, SOMALIA, SOUTH KOREA, SUDAN, SWAZILAND, SYRIA, TAIWAN, TAJIKISTAN, TANZANIA, THAILAND, TRINIDAD AND TOBAGO, TUNISIA, UGANDA, UNITED ARAB EMIRATES, UNITED STATES OF AMERICA, UZBEKISTAN, VIET NAM, YEMEN, YUGOSLAVIA (Federal Republic), ZAMBIA, ZIMBABWE. 3.5 Progress towards worldwide abolition In the last ten years about three countries per year have abolished the death penalty for all crimes. There is an obvious trend toward abolition as well as a growing international awareness of this trend. However, while there has been a marked increase in abolitionist states, condemnation of the penalty has never enjoyed the clear support that, for example, condemnation of genocide maintains. This suggests that the moral and practical arguments for and against the penalty can be quite balanced in the minds of many people. 4. Justification within Religion Most major religions allow, or have historically allowed the death penalty. Religion tends to use the penalty in two ways: as a tool to ensure conformity with religious principles (i.e. to punish religious transgressions), and to satisfy feelings of retribution in a victim and their community by allowing a criminal to be killed for his crime. Even the all-powerful State of modern times has fallen back on appeals to a ‘higher’ power to justify use of the penalty. Joyce describes that “it was no accident that the words ‘God have mercy on your soul’ should for so long have been uttered in an English court after the Judge had put on the black cap and pronounced judgment of death.” [7] There is, in fact, a long history behind this official gesture of belated religious concern for the soon-to-be-executed accused. 4.1 Judaism As the forerunner of Christianity, Judaism contains the historical origins of the capital penalty that was used throughout Christian Europe. Amongst the Hebrew Scriptures (the Torah, or Old Testament – the first 5 books of the Bible) are multiple references to the death penalty, and it was listed as a requisite punishment for many crimes, both civil and religious. The first mention of the death penalty as an appropriate punishment for murder is made in the Book of Genesis: “Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man." [8] While this passage describes the killing of a person as an offence against God, there is an implicit exception in the statement that “by man shall his blood be shed.” In other words, there is a distinction between murder, and the imposition by another person of the death penalty against that murderer. Likewise the 10 Commandments forbid murder (lo tirtzach - "Do not murder”) [9] but the Bible never uses the word interchangeably with the Hebrew for ‘put to death’. The Torah also lists many civil and religious transgressions that also justify the use of a capital sentence. These are contained in the Mosaic Code of the Pentateuch - the books of Exodus, Leviticus, and Numbers. They include the crimes of adultery, black magic, practising another religion, incest,  kidnapping, and murder - for “he that killeth any man shall surely be put to death.” [10] An interesting fact of ancient Hebrew procedure though, required the testimony of two eyewitnesses to prove any overt act before the death penalty could be ordered. The Pharisees required so many procedural safeguards that it became virtually impossible to impose this sentence; and as a further disincentive, witnesses who gave false testimony in a capital case were liable for execution in the same manner as the accused. Jewish scholarship has also argued that capital punishment was purposefully marginalised; that “while not abrogating it altogether, the Mishnaic and Talmudic laws for its practice were so stringent and so manifestly in favour of the accused that a conviction in a capital case was made impossible.” [11] Also, a court that orders such a sentence is thought by some Talmudic scholars to be regarded as a court of murderers. [12] 4.2 Christianity The Christian Scriptures (New Testament) do not contain overt codes of law pertaining to the death penalty, as did their Hebrew counterparts. However, there is both historical evidence and references from the New Testament that support the fact that early Christians were still applying the codes of the Hebrew Scriptures. For example, the Apostle Paul explains that the authorities must be obeyed: that “if you do wrong be afraid, for [the avenger] does not bear the sword for nothing. He is God’s servant, an agent of wrath to bring punishment on the wrongdoer.” [13] This also seems to recognise the qualitative distinction between wrongful killing (murder), and legal killing (as in executing the death penalty). There are also no direct statements by Jesus that support abolition, though  there is the often-quoted passage from the Gospel of John that suggests he was critical of the penalty. When Jesus witnesses the execution of a stoning against a convicted adulteress he makes the following statement: “He who is without sin among you, let him throw a stone at her first.” [14] Unfortunately for abolitionists, this passage is apparently a forgery, and is not present in the oldest manuscripts of the Gospel of John. This suggests an unknown agent added it at a later date. In any event, Jesus never actually denies the right of her conviction and execution according Mosaic law, but instead speaks to the hypocrisy of the crowd. There is also the added problem for Christian scholars as to whether or not the Hebrew Scriptures are a direct part of the Christian codes. To supercessionist Christians the New Testament replaces the Torah, while egalitarian Christians consider the Torah and the New Testament to reside side by side, both valid. Statements from Deuteronomy suggest that the New Testament should not override the Torah: “The entire word that I command you, that you shall observe to do; you shall not add to it and you shall not subtract from it.” [15] In any event “the original Christian conception of ‘a new commandment’ seems to have steadily dimmed and had so little practical effect on the bloody code actually practised in most places through the early centuries of the Christian era.” [16] Because the death penalty is founded on the principle of expiation, “so contrary to the law of Christian charity and respect for life, an attempt was made to sublimate the significance of the death penalty and give it a moral content.” [17] As a consequence of this confusion, the Bible has been used to both promote and condemn the death penalty. Early Christian writers such as Lactantius (260 to 330 BCE) were opposed to the sentence. Lactantius wrote that “when God forbids us to kill ... he also forbids the violence that is deemed lawful by men ... it is always unlawful to put to death a man, whom God willed to be a sacred creature.” [18] But conversely, St Augustine wrote that “the same divine law which forbids the killing of a human being allows certain exceptions. Since the agent of authority is but a sword in the hand, and is not responsible for the killing, it is in no way contrary to the commandment ‘Thou shalt not kill’, for the representative of the State’s authority to put criminals to death, according to the Law or the rule of rational justice.” [19] 4.3 Islam In Islam there are three categories of criminal acts [20] - those forbidden by Allah in the Koran (hudud); those that constitute murder and physical assault (quesas); and those within the discretion of an Islamic judge (qadi). Capital and corporal punishments are common across all three types of criminal actions, and these are justified by references to the Koran - including social responsibility and deterrence (that is, “humiliation for the convict and the lesson for the public” [21] ). However the primary justification for these penalties is one of retribution - the satisfaction for the victims in the use of capital punishment is part of a “search for justice [that] entails a measured response which serves as an index of social values and progress.” [22] The Koran puts it more simply: “Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal.” [23] As a consequence, most Islamic nations still have the death penalty (for example, no Middle Eastern country is abolitionist). Houdoud crimes (such as rebellion, callous apostasy and certain forms of highway robbery) allow for no judicial discretion on the matter of sentencing – death is mandatory. For premeditated murder the family can seek vengeance or may accept blood money as a trade off. [24] The severity of certain offences in the Middle East may be demonstrated by the Iranian law that allows for the execution of a person who produces and distributes pornographic material. 5. Moral versus Empirical Arguments When discussing the justifications of the death penalty versus the reasons to abolish it, a distinction must be made between arguments based on morality and ethics, and those based on a practical or empirical basis. Morality informs all of us, but is highly subjective in nature. As a result, justifications or condemnations of capital punishment made on moral grounds are not very useful as a persuasive tool. Nor are arguments from religion. Either the parties already agree, in which case there is no point arguing the matter, or else they will disagree, and nothing will cause the other to budge. Practical or empirical arguments are perhaps more useful in that there may be a degree of demonstrable ‘right’ or ‘wrong’. However, these arguments can be deceptive in nature. Proponents of capital punishment have often employed all manner of statistics to ‘prove’ the effective deterrence factor of the sentence, while abolitionists are likewise able to summon rafts of information to ‘prove’ the contrary. It is with caution then that we proceed into the arena of debate. 6. Arguments For and Against the use of Capital Punishment The following arguments consider the use of capital punishment as a penalty for murder - with some references to other more ‘serious’ crimes. Also, most references to the operation of death penalty systems are by default American, as it is the retentionist nation with the most similar legal system to our own. NB: where relevant the position from which the argument originates will be listed first, with the opposing argument following. 6.1 Religion Pro-penalty As previously discussed, many religions justify the use of capital punishment as being ordained by God. For Islamic nations the religious motivation behind capital punishment remains the primary one, whereas many in America use it as an added justification for a penalty that is imposed as a criminal, not religious, response. Anti-penalty Arguments made from religion are really only answerable in comparable terms; for example, from evidence of contradictory statements within that religion, or by contrary teachings of popular and respected proponents of that religion. For example, the Society for Religious Tolerance is opposed to capital punishment on the grounds that “some Christians believe that an individual who dies without being ‘saved’ will go to Hell for eternal punishment. By killing the person, we are eliminating their chance for salvation.” [25] 6.2 Retribution Pro-penalty Many people feel that killing convicted murderers satisfies valid retributive needs and desires, either in society at large, or in the specific victims. Also, because some crimes are so horrific, desiring the execution of the criminal can be considered a natural response. Immanuel Kant, for example, was a proponent of strong retribution: that evil must be repaid with evil (a restoration of the moral balance): “[W]hoever has committed murder, must die. There is … no juridical substitute or surrogate, that can be given or taken for the satisfaction of justice.” [26] Kant was also quite willing to punish in the absence of any practical utility, as evidenced by his ‘desert island’ example: “Even if a civil society resolved to dissolve itself … the last murderer lying in the prison ought to be executed before the resolution was carried out ... in order that every one may realize the desert of his deeds, and that blood-guiltiness may not remain upon the people; for otherwise they might all be regarded as participators in the murder as a public violation of justice.” This is perhaps a dubious justification for the death penalty [27], but is one openly favoured by many proponents, particularly in America. In fact, it is such a pervasive principle that it may even be a major contributory factor to American political campaigns. For example, it is widely believed that Michael Dukakis’ response during the second presidential debate to a question posed regarding the death penalty contributed to his landslide defeat by George Bush in the 1988 election. He stated that he would not favour the death penalty for someone who had raped and murdered his wife. In a simplistic manner focusing more on symbols than on actual platforms to deal with complex social problems, the American public saw his statement as constituting a ‘soft’ stance on crime. Presumably the public expected Dukakis to make an exception in a case where the injury was so personal – as would satisfy their own heightened sense of retributive wrath. Should people be expected to transcend the natural bloodlust, the desire for vengeance, that accompanies such an awful transgression as the killing of a loved one? Afterall, our sense of justice is most easily satisfied when a penalty directly addresses the wrong committed - in other words, an eye for an eye. Anti-penalty Elements of this stance are countered by other abolitionist arguments - for example, that the victim’s desire for retribution is outweighed by other considerations, such as for the offender’s family and friends, who should not themselves be made victims through the death of someone they care for. However, one can make several statements that are a direct response to arguments favouring retribution: i)    ethical – that vindictiveness is a base emotion, and we should rise above it as sophisticated moral beings, ii)   religious – Judeo-Christian religion has established that retribution is not for the human domain; i.e. “vengeance is Mine, sayeth the Lord” iii)  super ethical – that revenge will not right the wrong therefore justice is not served by a second killing (this is akin to agape, or unconditional Christian love). “Barbarians. That’s what we have become. We kill each other and instead of mourning the tragedy we want the state to satisfy our bloodlust by killing the offender.” [28] 6.3 General Deterrence Pro-penalty advocates argue that the death sentence is an effective deterrence against the commission of crime. Specifically, that it is a more effective deterrent to crime than life imprisonment. However, this is an unstable proposition, because proponents on both sides are able to amass evidence in support of their claims. There has come a point whereby there is so much conflicting evidence that one has to pretty much discount this argument by default. Brad Watson argues that different cultures in different states must produce different homicide rates, thus abolitionist data cannot be trusted due to the particular influences of any given society. [29] Nonetheless we should investigate what has been said on the matter. Afterall, in a Gallup Poll taken in 1986, 67% of Americans expressed the view that the death penalty is an effective deterrent to murder. [30] Pro-penalty A 1975 study by Isaac Ehrlich, using multiple regression analysis, found that murder rates responded to changes in the likelihood of a criminal being apprehended and executed. [31] He was satisfied that each execution prevented 7 to 8 murders. [32] Likewise, Kenneth Wolpin’s study demonstrated that each execution in England prevented four murders. [33] In America there are other studies that support these theories. Nathan Sehba found that American prisoners themselves rated the death penalty as the most-feared punishment, [34] and the individual deterrent effect is proven by hundreds (if not thousands) of individual, fully documented cases where criminals have admitted that the death penalty was the specific threat that deterred them from committing murder. One study showed that, by a 5:1 ratio, criminals believed that capital punishment was a significant enough deterrent to prevent them murdering their victims. [35] Also, during the temporary suspension of capital punishment in America between 1972 and 1976 researcher Karl Spence of Texas A&M University gathered murder statistics from across the country. He found that in 1960 there were 56 executions and 9,140 murders. By 1964 there were only 15 executions, but the murder rate had increased to 14,590. And again in 1975, after six years and no executions, there were 20,510 murders. Spence commented on these statistics: “While some abolitionists try to face down the results of their disastrous experiment and still argue the contrary, the [data] concludes that a substantial deterrent effect has been observed … In six months, more Americans are murdered than have been killed by execution in this entire century … Until we begin to fight crime [by using the death penalty] every person who dies at a criminal’s hands is a victim of our own inaction.” [36] Similarly, Justice B. Rey Shauer of the Supreme Court of California has said: “That the ever present potentiality in California of the death penalty, for murder in the commission of armed robbery, each year saves the lives of … hundreds of victims of such crimes … [D]uring my own trial court experience … I repeatedly heard from the lips of robbers … substantially the same story: ‘I used a toy gun [or a gun in which the firing pin or hammer had been extracted] because I didn’t want my neck stretched.’“ [37] Anti-penalty On the other hand, there are many common sense reasons why we might be dubious of the concept of deterrence. With the exception of contract killings, very few murderers will ever be in a rational frame of mind when they commit the crime - they are often crimes of passion, or committed while drunk or under the influence of drugs. Lack of consideration of penalties also extends to psychopaths who will willingly flaunt the law, self-destructive individuals, and the mentally ill. Thus, while 65% of the American public may believe there to be a deterrent effect, 80% of criminologists at both the American Society of Criminology and the Academy of Criminal Justice Sciences do not. [38] There is also a statistical basis for their contrary belief. For example, between 1976 to 1996 in the United States, executions increased from 0 to 60 per year while the homicide rate remained constant (10 per 100,000). [39] Meanwhile, the murder rate (per 100,000) in Canada was increasing 0.127 per year, but has been declining at a rate of 0.029 per year since the death penalty was abolished in that country. [40] Most notably, when one compares homicide rates across various Western democracies, the clear fact to emerge is that the United States, a persistent retentionist, has the highest homicide rate in the industrialized world. Statisticians have also compared the homicide rates across contiguous states within America, but observed that the homicide rates in abolitionist states were not higher. Thorsten Sellin concluded in 1980 that there was no evidence of a greater deterrent effect in states with the death penalty. Sellin also made comparisons across states that abolished or reinstated the penalty. By comparing before and after homicide rates, including across contiguous states, he found that changes in penalty status had no effect on murder rates. Others have studied the impact of specific executions on homicide rates within particular states. In 1935 Robert Dann studied the impact of six executions in Philadelphia. He found that the murder rate actually increased in the 60-day period that followed. Similarly, in 1956 William Graves examined the homicide records of Los Angeles and San Francisco and found that, compared with weeks when no death sentences were carried out, the number of executions actually increased the day prior to an execution, and on the day itself. Graves speculated that would-be-murderers were “stimulated by the state’s taking of life to act sooner.” This suggests another argument; that the death penalty actually has an anti-deterrent effect, perhaps because it conditions people to violence and killing. In 1996, US states with capital punishment had an average murder rate of 7.1 per 100,000 population, compared to a rate of 3.6 in abolitionist states. [41] Various other studies give similar data, and Canada has reported a 27% homicide drop since it abolished the penalty for ordinary crimes. If this is the case, why is capital punishment not a more effective deterrent than life imprisonment? Douglas Heckathorn [42] posits that, because both are very harsh sentences, “an upper threshold is reached with respect to severity beyond which no additional deterrence occurs.” In other words, criminals cease to distinguish between the two penalties. Conclusions? Overall it cannot be decisively said that capital punishment works as a deterrent - but should that matter? Some, like poet Hyam Barshay, argue that we should err on the side of caution - afterall: “The death penalty is a warning, just like a lighthouse throwing beams out to sea. We hear about shipwrecks, but we do not hear about the ships the lighthouse guides safely on their way. We do not have proof of the number of ships it saves, but we do not tear the lighthouse down.” Even Lord Denning, as Master of the Rolls in the Court of Appeal, told the 1950 Royal Commission on Capital Punishment that “some crimes are so outrageous that society insists on an adequate punishment, because the wrong doer deserves it, irrespective of whether it is a deterrent or not”. But since we can’t dismiss the possibility that capital punishment actually increases the murder rate, the deterrence argument advanced by pro-penalty advocates becomes ultimately untenable. 6.4 Special deterrence, and recidivism This specifically questions the value of deterrence on convicted criminals; that “with no death penalty and only life without parole, there is no deterrent for life without parole inmates killing others while in prison or after escape.” [43] Alternatively, it is an undeniable fact of capital punishment that executing a known murderer will prevent them from re-offending. While an obvious statement, it is nonetheless an important one. In the United States there have been terrible incidents of re-offending by criminals who were given life imprisonment without chance of parole. Afterall, a life sentence is not necessarily literally a life sentence. Changes in parole law, amongst other events, can enable the prisoner to eventually go free. Once free he is able to re-offend – and even while he is incarcerated there is the possibility of his killing fellow inmates or prison guards. Kenneth McDuff, for example, was imprisoned in 1966 but released in 1989 after his death sentence was commuted to life (following the Supreme Court decision to abolish the death penalty in 1972). He was able to commit another nine murders before he was executed in the state of Texas. Also notable is this extract from the 1988 Stanford Law Review: “Of the roughly 52,000 state prison inmates serving time for murder in 1984, an estimated 810 had previously been convicted of murder and had killed 821 persons following their previous murder convictions. Executing each of these inmates would have saved 821 lives.” [44] This argument is most interesting when we consider the anti-penalty argument of mistake. Abolitionists argue that the accidental execution of an innocent person outweighs all other considerations. However, as a numbers exercise (perhaps on utilitarian grounds) it may be that the lives saved by preventing recidivism in actual murderers outweighs the number of innocents executed by the State. However, it can be argued in the alternative that those on death row have nothing to fear from committing further murders, except that death row inmates are more securely incarcerated, and less able to re-offend that life without parole inmates (who often share facilities with lesser offenders). Still, Kappeler argues that “the death penalty offers little additional protection to society over that which can be achieved through life imprisonment. It is a myth to believe that the safety of citizens, inmates or prison staff depends in any way on the imposition of capital punishment.” [45] 6.5 Risk of executing the innocent It is impossible to convict people with an absolute certainty of their guilt – as a result our own criminal standard only requires guilt to be established ‘beyond reasonable doubt’. Consequently there are probably at least some innocent people languishing under sentence. Capital punishment is such a final penalty that it prevents the state from ever making amends to these people - and the risk, however minimal, of executing an innocent person is arguably too great to allow. While an ultimately unanswerable complaint, it can however be argued that the risk is in fact very minimal. The United States uses a complex system of pre-trial, trial, appeals, writ and clemency procedures to reduce this risk. Even Biblical and Koranic systems required extraordinary standards of proof (such as multiple eye-witnesses). However, anti-penalty proponents contest this legal ‘safety net’. The most famous example is the Bedau-Radelet Study of 1987, which concluded that some 350 innocent people may have been convicted between 1900 and 1987; and that 139 “were sentenced to death and as many as 23 were executed.” [46] In contrast, a number of others have condemned the report as deeply flawed, with high margins of error. It has been described as "consistently present[ing] incomplete and misleading accounts of the evidence." [47] Michigan Court of Appeals Judge Stephen Markman finds that the study was “remarkable not ... for demonstrating that mistakes involving the death penalty are common, but rather for demonstrating how uncommon they are.” [48] More importantly, he says that “Bedau has written elsewhere that it is ‘false sentimentality to argue that the death penalty ought to be abolished because of the abstract possibility that an innocent person might be executed when the record fails to disclose that such cases exist.’” Utilitarian calculus In 1986, Massachusetts prisoner Willie Horton was paroled for a two-day period and fled; murdering a young couple on the way. At Horton’s sentencing (after his re-apprehension) the judge imposed a capital sentence. He explained: “I’m not prepared to take the chance that Mr Horton might again be furloughed ... This man should never draw a breath of free air again.” As mentioned in Section 6.4, it may be possible to balance whatever innocent lives are lost in wrongful executions against the lives of would-be victims that are saved when we execute actual criminals. While no one will want to ignore wrongful executions, it is still hard to ignore an argument that may show, statistically, that more innocent lives will be saved by the imposition of the death penalty. As a matter of risk assessment, is this a compelling argument? Prima facie arguments can be made on utilitarian grounds to favour the use of punishment where the outcome may not be just, but serves a useful purpose – such as in the killing of occasional innocents to save other lives. To understand this we need to understand how utilitarianism works – it is a system where any action is defined as “right if it produces as much or more of an increase in happiness of all affected by it than any alternative action, and wrong if it does not.” [49] It is a consequentialist theory of ethics, concerned with goals. Jeremy Bentham (1789), a leading proponent of the theory, describes “all punishment [as] mischief, all punishment is in itself evil.” He is discussing the evils of restricted liberty (for those who obey the law), and the evil of fearing or suffering punishment (by those who do not obey the law). Nonetheless, he recognised that the law could produce an artificial harmony between the general and individual interest – where the punishment is strong enough to outweigh the potential benefits of a crime the balance is misery, and thus constrains a person from offending. The theory has been criticised by its own logic, though. Because ‘justice’ isn’t necessarily a relevant factor, utilitarianism might uphold severe punishments for minor offences where the excessive sentencing would create an overall deterrence. Nils Christie gives this example: “[Norway has] passed a law making it compulsory to wear seatbelts … Here are noble tasks for deterrence. Just a few five-year sentences, and we would have done it.” This is plainly unjust, but potentially very useful. Some evaluations of utilitarianism have countered this example by reference to the theory’s scale of penalties – the need to show that some wrongs are more serious than others, otherwise there is “a risk of either confusing common morality or flouting it and bringing the law into contempt.” [50] This is another part of utilitarianism’s ‘weighing’ process – if the overall respect for law is diminished then this is large evil to be considered against the good of ensuring compliance. Thus, while our prima facie utilitarian assessment would have us favour whichever outcome saved the most lives, it does not necessarily follow that moral consideration should be left out of the felicific calculus. There is a quality distinction between abolishing the death penalty and risking further killings by previously convicted murderers, and the imposition of the death penalty by the State, despite knowing that at least some innocent people will be killed. In the first the State is guilty of an omission, at worst, while in the second the State is forced to make a positive act. When we consider this qualitative difference, it appears that a proper utilitarian assessment of the problem does not merely balance the numbers. As a consequence, and I imagine this would accord with most people’s natural intuition of justice, one cannot justifiably allow the State to kill innocent people, even if it would save other lives. 6.6 The Sanctity of Human Life Anti-penalty This is an argument obviously based on personal morality and ethics. It posits that all human life has an intrinsic value, and therefore no life should ever be taken unnecessarily; even by the State. To repeat some of what I discussed in Section 1, the most prized possession of a sentient being is his or her own continued existence. This is a quality we cherish, and can sacrifice if necessary to make some ultimate statement that there are values beyond the physical and material plane. Thus deprivation of the ‘right to life’ is the most fundamental injury we can sustain, both in physical and spiritual terms. It denies us our identity, and so dehumanises us. For this reason, to execute people who no longer pose any immediate threat (and are thus killed ‘unnecessarily’) is to dehumanise them, and is to dehumanise ourselves as complicit in the act. By demanding or condoning the death sentence we encourage what Eric Schlosser calls a “culture of murder”. Pro-penalty Pro-penalty advocates can make one of two responses to this argument. The first is to simply deny the so-called ‘intrinsic’ value of human life. It is equally possible to suggest that, at least, a convicted murderer is a human whose life has no value. Alternatively, and this is favoured by most advocates, “it is by exacting the highest penalty for the taking of human life that we affirm the highest value of human life.” [51] Does not the imposition of the death penalty demonstrate that we take murder seriously, as the penalty is equally serious? This is not mere sophistry. John Stuart Mill claims that it is “unreasonable ... to think that to take the life of a man who has taken that of another is to show want of regard for human life. We show, on the contrary ... our regard for it, by the adoption of a rule that he who violates that right in another forfeits it for himself and that while no other crime that he can commit deprives him of his right to live, this shall.” Others argue that the sanctity of human life demands a like response as a form of moral duty. Mike Royko says that “[m]urder is the most terrible crime there is. Anything less than the death penalty is an insult to the victim and society. It says ... that we don’t value the victim’s life enough to punish the killer fully.” Similar is Kant’s example of the deserted island with its last death row inmate (Section 6.2). 6.7 Capital Punishment is Illogical Anti-penalty campaigners have questioned the process of showing condemnation for the taking of a life, through the taking of a life. They argue that such a statement is essentially illogical. Afterall, “does it make sense for the state to hire murderers to kill defenceless victims on death row, in order to prove that hiring murderers to kill defenceless victims is morally wrong?” [52] In response, pro-penalty supporters can argue that there is a qualitative distinction between the crime of murder, and an execution by the State. Simply because two acts have the same ending or result does not mean they are morally equivalent – for example, a Police officer may have to break the speed limit in order to apprehend a speeding criminal. 6.8 Desensitisation Anti-penalty As an extension of Section 6.6, anti-penalty campaigners argue that by allowing the state to kill, the intrinsic value of human life is cheapened, with the result that we become ‘used to’ killing. If the data on the anti-deterrence effect of the death penalty is to be believed, then this conditioning process may be partly responsible. Capital punishment “violates our belief in the human capacity for change ... [and] powerfully reinforces the idea that killing can be a proper way of responding to those who have wronged us. We do not believe that reinforcement of that idea can lead to healthier and safer communities.” [53] Pro-penalty A counter-argument based on similar moral or ethical grounds is that the value inherent in a human life derives from some spiritual element. Thus heinous offenders are somehow spiritually deficient, and so lack the quality that makes them truly ‘human’. In other words they may be physically human, but lack the spiritual aspect that would give their life value. 6.9 Victim Closure The imposition of an execution allows the victims of a crime to get the benefit of seeing a ‘defining punishment’ carried out, and the death of the killer provides an obvious, concrete form of closure. But this is not always the case, and may depend on the victim – some of who prefer to confront people that have had a negative impact on their life (similar to the concept of restorative justice). Besides, the practical reality is that the death penalty is infrequently applied - and in the United States many offenders will take a “plea bargain” (commutes to a life sentence). 6.10 Unintended Victims One side effect of killing convicted offenders is that their family and friends may suffer loss, though they are innocent of any crime. In seeking revenge for the victim we are effectively creating new victims - but while this is a true and unfortunate effect of the penalty, does it provide an overwhelming reason not to allow executions? Even the lesser imposition of lifetime incarceration has similar negative side effects on the offenders’ family and friends. 6.11 Excessive Cruelty Anti-penalty It has been argued that capital punishment is excessively cruel – indeed, when the Supreme Court of the United States first suspended the penalty in Furman v Georgia [54] , it was on the grounds that it was “cruel and unusual punishment,” and thus in violation of the Eighth and Fourteenth Amendments of the American Constitution. A local article from the Listener describes how it is not the method of execution itself which is cruel, but that “the heart of this torture is the prisoner’s knowledge of the precise time and manner of his death ... The torture of unknown terrors, of fearful imaginings ... knowledge which the rest of us are spared”. [55] The extended appeals process can also add to this torture by prolonging the potentially inevitable. Pro-penalty While the US Supreme Court may have abolished the death penalty on these grounds, it also reinstated the penalty in Gregg v Georgia [56]. The majority Justices claim that, although the issue was addressed in Furman, it was not fully resolved by the Court. They then turn their attention to the problem. “We now hold,” states the majority, “that the punishment of death does not invariably violate the Constitution.” It is only where the punishment is “excessive” that it is in violation of the Constitution. What is excessiveness? “First, the punishment must not involve the unnecessary and wanton infliction of pain. Second, the punishment must not be grossly out of proportion to the severity of the crime.” Having established these principles, the Court looks to “public perceptions of standards of decency with respect to criminal sanctions,” and finds that “a large proportion of American society continues to regard [the penalty] as an appropriate and necessary criminal sanction.” Consequently, it was established that capital punishment is not per se “cruel and unusual” unless “excessive.” This decision has been subsequently reaffirmed in other American cases. For example, Chief Justice Earl Warren in Trop v Dulles: “the death penalty has been employed throughout our history, and in a day when it is still widely accepted it cannot be said to violate the concept of cruelty.” And again in the Supreme Court: “The punishment of death is not cruel, within the meaning of the words used in the Constitution [which] implies there is something more inhuman and barbarous than the mere extinguishment of life.” As well as what is argued above, it is certainly possible to also advance the idea that any anguish involved in anticipating one’s death is part of the punitive element of the capital penalty. 6.12 Jury Problems In America, the voir dire procedure of challenging witnesses may be made on the grounds that a would-be witness has ‘scruples against the death penalty’. This procedure was developed during a period where juries established guilt, but had no ability to rule on sentence. Babington writes that: “There is nothing novel about the theory that the severity of criminal punishments can have the effect of influencing juries to acquit.” [57] This leads to ‘nullification of the law by the jury’ – in other words “the danger that the jury would acquit a defendant of the capital charge, not because it thought hum not guilty of it, but because it wanted to avoid the death sentence.” [58] Despite subsequently transferring the decision to impose a capital sentence from the judge to the jury, the law of jury selection has not changed. Writes Zeisel, “their elimination raises questions about the fairness of the jury selection in capital cases.” [59] Apart from the obvious exclusion of generally ‘liberal’ persons, information gathered from Gallup Polls has shown that there are major segments of the American population which are likely to be excluded; afterall “most attitudes towards public issues have since been found to be related to the demographic characteristics of those who hold them.” [60] In this case, three Polls (1960, 1965 and 1966) found that women and African-Americans were the least likely to approve of capital punishment – 55% of white men approved, 42% of white women approved, 35% of African-American men approved, and only 31% of African-American women approved. [61] The conclusion: “As long as the law allows challenge for cause of all who have scruples against the death penalty, it is bound to remove … various subgroups of the citizenry … more of the college educated men, more of the men in the lower income bracket, fewer women in the low income bracket, more of the less educated women. But mainly, this automatic challenge is bound to remove many more Negroes than whites, and more women than men.” [62] Elimination of the death penalty would remove this impediment to women and African-Americans being able to serve on juries. Also, the extended voir dire has an impact on trial costs (Section 6.13). [63] 6.13 Costs Anti-penalty Once a convicted murderer is dead and buried there are no further costs to the State – surely this is preferable to the on-going costs of keeping an inmate incarcerated for many years? Certainly “a system of justice that executed suspected murderers on the spot would be less expensive than maintaining those individuals in prison for life.” However, “this is not the way that capital punishment is carried out in a democratic society. Because our justice system places a very high premium on protecting the lives of innocent persons, an extensive number of procedural burdens must be met.” [64] These safeguards prove to be very expensive – higher standards of guilt have to be met at the immediate trial, there is likely to be more expert testimony, capital trials are bifurcated (sentencing is determined in a separate hearing following the verdict), and there are likely to be more appeals on both factual and procedural grounds. There are even increased costs in providing the special accommodations for death row inmates within the correctional system. The extra security provided for death row increases staff costs, compounded by the length of stay for most inmates. The average time spent under a sentence of death in America is seven years and eleven months. [65] The Death Penalty Information Center lists the following cost examples (as well as a number of other similar cost claims): [66] i)    North Carolina – costs $2.16 million per execution over the costs of a non-death penalty murder case with a sentence of imprisonment for life, [67] ii)   Florida – an average of $3.2 million per execution, [68] and iii)  Texas – an average of $2.3 million (about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years). [69] As Franklin Zimring of the University of California explains: “It’s always more expensive to have and use the death penalty than it is to not have it, for the simple reason that lawyers are more expensive than prison guards.” [70] Pro-penalty Death penalty supporters simply deny these statistics, and counter-argue with their won. The Justice For All group estimates that life without parole cases cost $1.2 million to $3.6 million more than equivalent capital cases. [71] This is partially based on a comparison of the up-front costs of the death penalty against the long-term costs of long-term incarceration (life without parole of, say, 30 years). Rather than present more examples of bewildering statistics [72] it is preferable to suggest that, in the absence of overwhelming and undeniable statistic evidence, this argument should be considered currently unsubstantiated by either side. 6.14 Slippery Slopes For some there is the fear of ‘slippery slopes’ – that if we condone the death penalty for murder, we may, over time, allow its imposition for less serious crimes. European society does in fact have a history of imposing capital punishment for minor acts of transgression – such as the English Waltham Black Act of 1722, which ordered the death penalty for “cutting down trees or shrubs ... or demanding money in an unsigned letter.” [73] Realistically, it is unlikely that the death penalty will spread back into trivial offences. For the last century, Western nations have only concerned themselves with the penalty in cases of serious crime – such as murder or drug trafficking – and for serious crimes against the state – such as treason. However, we must still consider the possibility of ‘panic legislation’ in which legislatures rush to respond to a public outcry. In such cases the legislation is often a blunt tool, and may cause more harm than good. If the death sentence is widely accepted then it may be caught up in such situations. 6.15 Systemic Discrimination Anti-penalty Out of those found guilty of murder in the United States, racial minorities and the poor are over-represented on death row. Likewise women are almost never executed. As a consequence there has been much criticism of capital punishment as being unfair and discriminatory. The Texas Civil Rights Project issued a report in September 2000, which made the following criticisms of the American justice system: i)    that defence lawyers are often incompetent, and the poor compensation paid to this job does not encourage competent lawyers to become involved in cases, ii)   that poor people and members of minority groups are more likely to be targeted for the death penalty as a result of the District Attorney’s “unrestricted discretion” in this matter, iii) that the appeals process has “burdensome, if not impossible, procedures”, and that iv) the operation of the Board of Paroles is seriously flawed. [74] The race of the victim also appears to influence the judicial decision to execute, such that a 1986 study in Georgia found that a murderer who killed white victims was “four times more likely to be sentenced to death” than if he had killed otherwise. [75] The American justice system was also criticised by the UN Human Rights Commission in 1997, which found that it was applied in an unfair, arbitrary and discriminatory manner. In a 1998 report, Bacre Nidiaye wrote that: “The use of the death penalty in violation of international standards will not help to resolve social problems and build a more harmonious society but, on the contrary, will contribute to exacerbated tensions between races and classes.” [76] Amnesty International raised the same complaints in their January 2000 “rights for all” report, [77] as did the American Civil Liberties Union in their 2000 major moratorium campaign. They write: “Right now, more than 3,500 inmates sit on Death Row in America. Almost all are poor, and a wildly disproportionate number are people of color. In addition, most had legal representation that ranged from inadequate to grossly incompetent.” [78] Pro-penalty Those in favour of the death penalty argue that the statistics prove the opposite. A 1991 Rand Corporation study by Stephen Klein found that white murderers received the penalty more often (32%) than otherwise (27%) - while Patrick A. Lanangan for the Department of Justice Statistics reports that there is no evidence “that the justice system is treating blacks and whites differently.” More importantly, if discrimination is occurring then that is more an argument in favour of reforming the system than for the abolition of the death penalty. Ernest van den Haag writes: “If and when discrimination occurs it should be corrected. Not ... by letting the guilty blacks escape the death penalty because guilty whites do, but by making sure that the guilty white offenders suffer it as the guilty blacks do.” 7. Conclusion We have not come very far in history from the days when the death penalty was widely accepted as a legitimate form of punishment throughout the world. While so many countries are moving towards abolition, we have only recently passed the halfway mark; and of the 86 countries that remain retentionist, few will be swayed by shifts in international policy. The United States remains firm in its resolve, as do the many Islamic nations that see calls for abolition as signs of ‘Western meddling’. China too, shares this disregard for Western ideology. In response, the United Nations appears to be cautious about taking a hard-line abolitionist stance for fear of alienating two major powers (China and the US) and many smaller nations. It seems absurd that the arguments du jour in America focus on the inhumanity of delays and prison conditions, when the prisoner has already been sentenced to have their life extinguished by the State. Yet the Supreme Court has ruled that inmates cannot appeal against the inhumanity of this sentence in and of itself. That so many countries continue to support the penalty is proof of the compelling nature of capital punishment. The strongest arguments seem to be those that appeal to retribution, deterrence, and efficiency. As we’ve seen, though, cost and deterrence benefits are largely unsubstantiated. When balanced against the risks of executing innocent people, and the moral offence caused by the State’s positive act of execution, capital punishment loses favour. But there is still a lot of symmetry in the assessment. It is for this reason that advocates of either position should inform themselves of all the arguments at hand – because the issue is of such import and consequence that one should not hold a position without resolute justification.  Bibliography Journals, Newspapers and Magazine Articles Dyhrberg M, “Capital Punishment: An Option for New Zealand?” [2001] New Zealand Lawyer 7. Edwards B, “Death out of season” New Zealand Listener 7 April 2001, 40. McLauchlan G, “Executions these days so nice and hygienic” The New Zealand Herald 28 April 2001, section A, 21.  “The Effect of Islamic Legislation on Crime Prevention in Saudi Arabia” [1976] Ministry of Interior, Kingdom of Saudi Arabia. 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Joyce J, The Right to Life: A World View of Capital Punishment (1962) London, The Camelot Press. Kappeler V, The mythology of crime and criminal justice (1996 2nd ed)  US, Waveland Press. Lippman M, Islamic Criminal Law and Procedure: An Introduction (1988) US, Greenwood Press. Nixon E, Voltaire and the Calas Case (1961) London, Gollancz. Viscount Templewood, The Shadow of the Gallows : The Case Against Capital Punishment (1951) Great Britain, The Camelot Press. Zeisel H, Some Data on Juror Attitudes Towards Capital Punishment (1968), Center for Studies in Criminal Justice, University of Chicago. Zimring and Hawkins, Capital Punishment and the American Agenda (1986). [1] Joyce J, The Right to Life (1961) 53. [2] Ibid 52. [3] Ibid 52. [4] Nixon E, Voltaire and the Calas Case (1961). [5] Beccaria C, On Crime and Penalties (1764). [6] www.amnesty.org [7] Joyce J, The Right to Life (1961) 54. [8] Genesis 9:6 (King James Version). 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[30] Jamieson and Flanagan, 1989. [31] Ehrlich, The Deterrent Effect of Capital Punishment : A Matter of Life and Death. [32] Ehrlich, Capital Punishment and Deterrence : Some Further Thoughts. [33] Wolpin, Capital Punishment and Homicide in England : A Summary of Results. [34] Sehba, Further Explorations in the Scale of Penalties (1984) British Journal of Criminology. [35] (1961) People v Love 56 Cal 2d 720. [36] Wekesser C, The Death Penalty (Opposing Viewpoints) (1991). [37] Lowe W, Pro Death Penalty Webpage. [38] Radelet/Akers, Deterrence and the Death Penalty? The Views of the Experts. [39] Facts about deterrence and the death penalty, http://www.essential.org/dpic/deter.htm [40] The Open Hand Punishment Page. [41] Kappeler V, The Mythology of Crime (1996) 316. [42] Ibid 316. [43] Sharp, Death Penalty and Sentencing Information : In the United States, (Justice For All)  http://prodeathpenalty.com/ [44] Stanford Law Review 11/88, 153. [45] Kappeler V, The Mythology of Crime (1996) 323. [46] Bedau and Radelet, Miscarriages of Justice in Potentially Capital Cases (1987) Stanford Law Review. [47] Markman & Cassell, Protecting the Innocent: A Response to the Bedau-Radelet Study. [48] Judge Markman, Innocents on Death Row? [49] Singer P, Practical Ethics. [50] Hart H, Punishment and Responsibility (1968). [51] Edward Koch. [52] Anonymous. [53] Friends Committee on National Legislation, Federal Death Penalty. [54] (1972) 408 US 238. [55] Edwards B, , “Death out of season” New Zealand Listener 7 April 2001, 40. [56] (1976) 428 US 153. [57] Babington A, The Power to Silence: A History of Punishment in Britain (1968) 48. [58] Zesiel H, Some Data on Juror Attitudes Towards Capital Punishment (1968) 3. [59] Ibid 1. [60] Ibid 11. [61] Ibid 12. [62] Ibid 18. [63] The voir dire process takes 5.3 times longer than in non-capital trials: Spangenberg and Walsh (1989). [64] Kappeler V, The Mythology of Crime (1996) 317. [65] Bureau of Justice Statistics (1990). [66] http://www.deathpenaltyinfo.org/ [67] Duke University, May 1993. [68] Miami Herald, 7/88. [69] Dallas Morning News, 3/92. [70] Chapman S, Dead Reckoning (1995) 25. [71] Supra 20. [72] Such as from TIME Magazine 2/7/94, or http://www.prodeathpenalty.com/DP.html [73] Viscount Templewood, The Shadow of the Gallows (1951) 19. [74] http://www.religioustolerance.org/execut4.htm [75] Alice Wolf, http://alicewolf.org/death-penalty.htm [76] http://www.religioustolerance.org/execut1.htm [77] Killing with prejudice: Race and the death penalty in the USA, www.amnesty.org [78] www.aclu.org