The South African Civil Society Information Service

Is the Call for the Death Penalty Justified?

By Saliem Fakir · 15 Aug 2008

One of the enduring images I have of the death penalty, when I think of it, is a sort of revenge - this desire to extinguish another’s life with the hope to cleanse the earth of a lingering rot by an act of violence as reprisal.

It may well be one of our primordial cultural traits from the by-gone days when tribal law required that we preserve our honor by taking a life-for-a-life.

When we did not have good social skills we relied on the symbolic power of brute force to keep the order. It only opened the hatchet for counter reprisals until entire villages were seeking the honor of their own dead. Henceforth, the cycle of violence just perpetuated itself.

We live though, in a modern world where tribal sentimentalities no longer apply and where we create institutions that require good social skills, consensus and communication to preserve order. We only make use of punishment or ought to do so until nothing else works. It is the ultimate sanction and we should do so reluctantly. It gives us a modicum of civility.

We don’t grant the right of death any longer to tribal overlords but to the State because we want the State to ensure fairness and impartiality. In so doing, we grant it also a certain dignity - this revenge - by conferring the duty of killing to the State.

However, in South Africa we have done away with the death penalty as it was used to mete out the wrong sort of punishment on the wrong people. People who resisted the tyranny and injustices of the apartheid regime and posed a continued threat were eliminated by an illegitimate State without good reason. It is one of the reasons why we fear its reintroduction – the danger that it can be abused again.

In our current dispensation we have enshrined the abolition of the death penalty in the Constitution, never again conferring the right to kill to the state. It is now holy writ and almost immovable other than through a majority vote in parliament.

Many countries oppose the death penalty because so many things can go wrong during the gathering of evidence that the wrongly accused and sentenced suffer an irreversible fate.

In highly unequal societies where the death penalty exists, one can’t help but notice the class and race of people made to walk to the gallows. It is the most economically deprived that are the dead men and women walking.

And, when it comes to justice, seemingly rich people are able to buy their way out of death. These are the inconsistencies that agitate doubt within one’s conscience about the enterprise of capital punishment - whether to have it or do away with it?

But in a country like ours with so many murders, some quite unnecessary and unexplainable, one can understand the vexation that some have towards the libertarian outlook. They are left seething as a result of what gets swept under the carpet in the name of libertarian values. The victims of crime are given a raw deal.

They want savagery to be met with harshness. No more nice talk. No more leniencies to the murderer. A brutal murderer must meet his/her death at the hands of the law and if not the law then the crowds. It seems to satisfy them that death for a death will do the trick.

The recent release of the crime statistics in South Africa still demonstrates how precarious the situation is in our country. Murder rates are down, while hijacking and robberies are up.

Statistics are the sort of thing that plays with the mind. They are only good for the police who want to know how they are performing and where they should concentrate their energies. 

South Africa’s crime is so high that statistics do not change perceptions. Despite the number of murders coming down, many feel that there are still too many people dying at the hands of others.

A life is not a statistic; it has real meaning for loved ones who suffer the absence of the dead.

Even ardent liberals are of the view that crimes are so violent that perhaps South Africa’s approach to the death penalty is naïve and that at best we are too soft on hardened criminals that cannot be reformed.

Talk to some judges privately and they think that the only solution may be the death penalty. The best thing we can do is just rid society of these people. We should go back to the biblical eye for an eye type of justice. 

Liberals who favour the death penalty take succour from the views of the great liberal Philosopher John Stuart Mill who was a proponent of the death penalty. 

In a speech given to the British parliament on April 21, 1868, Mill, responding to a bill written in opposition to capital punishment, had this to say: ‘Society is asked, then, to denude itself of an instrument of punishment which, in the grave cases to which alone it is suitable, effects its purposes at a less cost of human suffering than any other; which, while it inspires more terror, is less cruel in actual fact than any punishment that we should think of substituting for it.”

Mill supported the death penalty as he thought, at the time, that it was humane because it could save more lives.  In his speech he went on further about why capital punishment was a good thing: ‘It is not human life only, not human life as such, that ought to be sacred to us, but human feelings. The human capacity of suffering is what we should cause to be respected, not the mere capacity of existing.’

Mill’s position gave justification to a general tendency amongst some utilitarian’s that capital punishment is justified because of the nature of the crime and the general good that it is likely to bring. That it is a better instrument or form of punishment than any other form of deterrence.

The utilitarian position rests on evidence that in countries where the institution of a death penalty exists, one is likely to see fewer murders – well, that’s more less what Mill hypothesized.

We’ve come a long way since the time of Mill. We’ve had numerous experiments with the death penalty; and enough evidence to compare the deterrent effect of the death penalty to make an empirical assessment.

Experts who have had the privilege to study countries that have the death penalty and those that do not, show that the evidence does not support the utilitarian argument.

The United States is a good example of this. States that do have the death penalty still have high rates of murders compared to states that do not have it.

However, even the institution of the death penalty requires an effective policing and criminal justice system. A system that citizens are losing faith in, but have to rely on to institute the death penalty. This makes the call for harsher penalties all the more ironic. One can’t escape the very system that is the source of one’s doubt.

The murderer first needs to be caught and then brought to book. This requires that the police are able to conduct a proper investigation of the crime scene, then identify suspects and gather conclusive evidence that needs to stand up to the test of the courts. All of the basics that involve the normal processing of cases need to apply whether the death penalty exists or not.

Guaranteeing a workable and effective justice system is just the first step. Some seem to think that we can simply leap to the death penalty without the due process of law. This can’t happen and will defeat the purpose of justice.

However, even then too, our country is far too fractured and complex to make one feel comfortable that the death penalty will resolve the problem of murder.

It would seem that more than a good justice system is needed. We need to first like each other and respect each other before we can make progress on many fronts.

The death penalty obscures the obvious: that we are still strangers to each other. Perhaps because of this anonymity that exists between us - where we don’t see each other as people nor treat each other with mutual respect - the act of murder simply becomes easier to carry out.

That irritating flicker of doubt in the inner head rears itself again and asks: can the death penalty be justified in a highly unequal society where people suffer economic deprivation and die from disease, ill-health, pollution and from working on the mines - where all this death is itself given no regard and no dignity? 

These are deaths that can be avoided and that take place under our guard. 

Something would be wrong in enacting the death penalty when the whole of society and its actions are afflicted by a moral duplicity.

We can be culpable for the death of so many, in so many ways, some of which does not exist as knowledge to ourselves yet. 

Can we truly still feel justified in imposing this death on others?

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