The Death Penalty Unit 21

Preview Purposes of punishment History Exemptions Procedural safeguards Death penalty today European Convention on Human Rights Lord Kenneth’s speech Discussion

Purposes of punishment? Retribution: punishment should be inflicted in proportion to the offence ‘Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground thatt he has committed a crime’ (Kant, The Metaphysical Elements of Justice)

Purposes of punishment? Denunciation: society expresses its disapproval of criminal activity and condemns certain types of behaviour „Punishment is the way in which society expresses its denunciation of wrong doing: and in order to maintain respect for the law it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them.’ (Lord Denning)

Purposes of punishment? Protection of the public: punishment must serve a useful purpose for society as a whole Incapacitation: the ofender is incapacitated from re-offending

Purposes of punishment? Crime reduction: aimed at reducing future levels of crime Deterrence 1) individual: makes sure that the offender does not re-offend through fear of future punishment 2) general: preventing other potential offenders from committing crimes

Purposes of punishment? Rehabilitation: the aim is to reform the offender and rehabilitate him or her into society Especially important for young offenders

Purposes of punishment? Reparation: aimed at compensating the victim by ordering the offender to pay a sum of money to the victim or to make restitution (e.g. by returning stolen property to its owner) Reparation to society as a whole: the use of an unpaid work requirement

Approaches to sentencing: Summary Retributive theories Deterrence theories Rehabilitative theories Incapacitative theories Restorative (reparative) theories

Task: Try to apply what has been said about purposes of punishment to death penalty

Early Death Penalty Laws The first established death penalty laws date as far back as the 18th Century BC in the Code of King Hammurabi of Babylon It codified the death penalty for 25 different crimes

The Code of Hamurabi “If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death. If it kills the son of the owner, then the son of that builder shall be put to death”

The Torah Murder Kidnapping Magic Violation of the Sabbath Blasphemy Sexual offences

Qur’an “If anyone kills a person – unless it be for murder or for spreading mischief in the land – it would be as if he killed all people. And if anyone saves a life, it would be as if he saved the life of all people”

Moses Maimonides, 12th c. “It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death”

Death penalty in English history At Common Law capital punishment was imposed for a few very serious offences such as treason, murder, rape and burning a dwelling-house. As late as 1688 about 50 offences carried the death penalty By 1800 English law had some 200 capital offences (including cutting down a tree or stealing an animal)

John Locke (1632-1704) A person forfeits his rights (including his right to life) when committing a crime Once rights are forfeited, punishment is justified for two reasons: 1) criminals deserve punishment 2) punishment is needed to protect our society by deterring crime through example

Cesare Beccaria (1738-1794) On Crimes and Punishment (1764): the right to life is not forfeitable People do not sacrifice their rights to life when entering into the social contract

Death penalty today Progressive restriction of capital offencces The International Covenant on Civil and Political Rights (1966): “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes”

Restriction of applicable offenders The exclusion of child offenders, i.e. those under 18 years of age at the time of the offence The exclusion of pregnant women, new mothers and people over 70 years of age The exclusion of “persons who have become insane” and “persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution”

Procedural safeguards The right of appeal to a higher court The right to petition for clemency

Death Penalty Today In April 1999, the UN Human Rights Commission passed the Resolution Supporting Worldwide Moratorium on Executions Over 90 countries still retain the death penalty, including China, Iran and the US Today over 60 % of Americans support the death penalty

Atkins v Virginia (2002) The Supreme Court held that it was a violation of the American Constitution to impose the death penalty on a mentally retarded person; Also: a challenge to the constitutionality of executing persons who had committed a capital offence when under the age of 18 – not successful

Capital crimes today Premeditated murder Espionage Treason Part of military justice

Abolition of capital punishment in western Europe Portugal 1843 Followed by the Netherlands, Romania, Italy, and Norway After the first world war: Sweden, Denmark, Switzerland In 1962: executions were carried out in western Europe in the UK, France, Greece, the Irish Republic, Spain

Alolition of capital punishment in Eastern Europe Croatia: 1987 Hungary 1988 Poland 1988 Bulgaria 1989 Moldova 1989 Estonia 1991 Armenia 1991 Lithuania 1995 Ukraine 1997 The Russian Federation: moratorium on all executions since 1996

European Convention on Human Rights Protocol No 6 (1983): abolition of capital punishment in time of peace Resolution 1044 (1994) links membership in the Council of Europe to abolition of death penalty (the Russian Federation – the only member that has not abolished capital punishment) Protocol No 13(2002): abolition of capital punishment in all circumstances

Human rights violation The right to life and the right not to be subjected to cruel,inhuman and degrading treatment or punishment the right to a fair trial

Abolition of the death penalty in the UK 1969 (except for treason) in 1998 the home secretary signed the 6th protocol of the European Convention of Human Rights which formally abolished the death penalty in the U.K.

Abolitionists Abolitionists – people who are against the death penalty Death penalty does not deter criminals, violates human rights, leads to executions of wrongfully convicted people, discriminates against the minorities and the poor

Retentionists People who support the death penalty Main arguments: prevent (from repeating the crime), deter and avenge (“an eye for an eye”)

Lord Kennet’s speech on November 9, 1961 outlined main arguments against the death penalty in five verbs: prevent, reform, research, deter, avenge

Prevent To prevent the same man from doing it again

Reform Rehabilitation; a man should be helped with his social function by a rehabilitatory treatment

Research We should find out about the motives, characters and personality structures of criminals, thus finding things that would enable taking measures to reduce the crime rate

Deter The evidence proves that the death penalty is not an effective deterrent against violent crime

Avenge Vengeance is not a proper motive for the State in dealing with convicted criminals

The 14th Dalai Lama on the Death Penalty The death penalty fulfils a preventive function, but it is also very clearly a form of revenge... I am optimistic that it remains possible to deter criminal activity, and prevent such harmful consequences of such acts in society, without having to resort to the death penalty.

Concerns: Can a system, based on the rule of law, run the risk of killing an innocent person? Is it acceptable to apply the death penalty when there is an alternative? Is it humane to keep a person on death row for years, not knowing if the next day will be his/her last? Is it acceptable to execute a person with a mental disorder? Can this punishment be applied to a person who was a minor at the time of the crime? Does the death penalty serve a real purpose?

Legal terms Death penalty Capital punishment Smrtna kazna Poena capitalis

Legal terms To commit a crime Počiniti kazneno djelo To try Voditi sudski postupak, suditi To convict Proglasiti krivim To sentence Osuditi, izreći kaznu