Friday, October 28, 2005

RP: *On Capital Punishment, Death Penalty and Judicial Discretion*

Feeling too lazy to come up with a new post today and I like this post anyway. So I like to think of this as a general checklist of whether and when capital punishment should be imposed. Since I'm generally a vindictive person, I think I'll like to see it used on terrorist and any fundamentalist extremist who causes death due to rank stupidity. This might probably include those HIV/AIDS deniers who have gotten people killed. Wait, I don't want them killed, I want them behind bars for life and tortured. Oh well, guess you should never put me (or the victims' relations) in charge of determining punishment. We want to see it done in cruel and unusual methods but that's just not right.

This issue only has relevance because of the recent exceution of the Australian smuggler. I don't think that Capital Punishment can be justified on a moral, philosophical or practical basis. I think that life imprisonment is generally sufficiently enough. I do, however, think it IS an issue of sovereignity but I'm terribly uneasy as to whether this is sufficient grounds for state-sanction killing except in times of war.

And it is also worth considering that just recently another Supreme Court judge has condemned the system. And of course the ever popular Justice Buckland quote: "I no longer tinker with the machinary of death".

But onto the original post. Some new material has been added. Mostly about Texas.

s. 302 of the Penal Code states very clearly that that punishment for murder is death. The Arms Offences Act, act of killing (and not murder mind you) during a Gang Robbery (must be a group of five), drug trafficking under the Misuse of Drugs Act are offences which the state has mandated the Death Penalty for. Note, mandated i.e. there is no option for the judge who thinks that despite the person being technically legally guilty of the crime that the death penalty ought to be avoided. This can (and say it softly...has) lead to a situation where judges will end up charging the person under a less severe crime and doing weird things to the law in the process.

A hypothetical example will be of course charging a person for culpable homocide not amounting to murder (CHNAM) despite a finding of fact that there was no intent to kill in the first place. So to prevent a 'larger' miscarriage of justice in an aquittal for murder, and not wanting to charge the person under say, house-breaking...*poof*, CHNAM.

Now, entire books have been written about this issue and I would not dare to presume even with the natural arrogance of a debater (hehe...I'm so going to get kicked for that comment) that I would be able to do justice to what is essentially a complex topic.

However, having said that Mr. Fluffy thinks I should try anyway. He also says that anyone who mocks my attempt would suffer death by a thousand stuffed toys.

So here's a quick checklist to this entire debate. Note the author is very confused about this issue. Like John Kerry, he doesn't support the death penalty except for terrorist and unrepentant mass murderers.

1.On what basis are you basing your theory of the general part of the criminal system on i.e. a theory of punishment and responsibility? Is it retributivist or utilitarian?

a) if retributivist: The only justification for the punishment of a criminal is that he has done wrong. If society benefits, it's a surplus not not a primary consideration. Then the punishment must fit the crime (note: this is not a simple eye for an eye theory). What this basically means we end in the realm of political, philosophical and religious theory. Whether anyone has the right to mandate death and what the role of government is.

b) if utilitarian: Then punishment is an ill that is to be avoided unless there is more good generated from the punishment than harm. Hence inflicting the punishment of death must serve a greater good.

2. On what basis are you basing your theory of the special part of the criminal system on i.e. what acts ought to be criminalised? The importance of this question is with regards to the criminalisation of immorality or irreligiousity. As things stand, people are no longer killed because they are heretics or refuse to recant.

BUT having said that, I have argued in a separate post that in many nations, the manner in which drug policy is made is irrational and counter-productive. To put the issue closer to home should someone really be hanged for trafficking more than 500 grammes of cannabis? Has anyone died from smoking marijuanna even in the supposed potheads of the US? Does this in any way hurt the drug lord in the Golden Triangle or Columbia? All it does is to raise the risk premium, so you get paid more to smuggle or traffic drugs into Singapore. A rise in price hurts the druggie who might in turn hurt society to get his next fix. Not that serious an issue in Singapore (more to do with enforcement than punishment in my opinion), but major in other nations.

At its heart, you don't need to be a ultra-proponent of the legalisation of all kinds of drugs to feel that something is seriously wrong if we are hanging people for a substance less harmful than tobacco or alcohol.

3. What's the basis for a state's right to kill? Does that right extend beyond the right of self defence into criminal law? If so, why or why not? Linked to the retributivist point in point 1.

It is worth noting that regardless of background or inclination, the same person (or two persons of the same background) could conceivably hold differing opinions. Hence the death penalty being supported and opposed on religious grounds is an example.

4. What about rehabilitation? The death penalty is a very final measure. You can't bring a person back to life (the last times some people did, they had religions named after them). Do we simply say that the crime they have committed precludes them from reintegrating them back into society?

Now, in your usual cases, I would definately say no. But I have do have personal difficults with regards to people who simply cannot be rehabilated e.g. psychopaths and some terrorists (can you imagine Osama bin Laden seeking forgiveness for what he has done?) But the idea of consecutive life sentences without parol exists and the person can be locked away behind bars for the rest of his natural life to ensure that he will never be a menace to society.

5. Even assuming that it is justifiable (I believe in using it for convicted terrorist amongst others for example), does it do more harm than good? Here demonstrate empirically your stance whether for or against the notion of capital punishment.

And really, I think you would be seriously hard-pressed to demonstrate that capital punishment has a special deterent effect i.e. prevent an individual from committing that particular crime.

Talking about general deterence i.e. preventing the rest of society from committing that particular crime is generally even more spurious. There are way too many factors in accounting for violent crime, demographics and gun control for example so a quick time-space comparison would demonstrate that the effect of capital punishment is limited if not useless.

6. Even assuming that it is good and justifiable for say murder and terrorism, does the same logic (philosophical or empirical) apply to crimes that do not directly take lives, say drug trafficing and corruption (admitted only countries like China and Vietnam are doing it)?

Innately tied into this question is the idea of proportionality and maybe the idea of an eye for an eye. After all, if the death penalty is really so effective at preventing and reducing crime why not apply it to all other crimes? What makes drug trafficking and corruption or rape so very much different from other forms of crimes. The heniousness of the crime is only relevant if we believe in proportionality of punishment.

Texas accounts for on average a third of all capital punishments in the US and has continuous led the US in terms of capital punishments. And yet a quick look at the crime rate as compared to the statistics on its death-row populace and executions does not show any correlation much less causation.

7. And even assuming points 3, 4 and 5, what about the possibility of executing an innocent person? The judicial system is not perfect and as a law student, I'll be the first to admit it. As of Oct 29, 2005 Innocence Project has clear the names of 163 prisoners and their focus is solely evidentiary (DNA testing). Furthermore I doubt that the legal system CAN ever be perfect for mistakes and errors do occur. And even if, such human errors do not exist, the law as it stands in Singapore for drug trafficing is very harsh and via the Misuse of Drugs Act, reverses the legal burden and forces the druf trafficker to prove he did not intend to traffic the drugs. So an option perhaps is to keep the punishment but make it more difficult for the prosecutor to prove his case. The reason why this presumption was installed in the first place was because they were finding it to hard to prove trafficking (as opposed to say personal consumption)

Anyway, I hope this has been useful for anyone with a middling interest in this area of law.


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