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Democracy and capital punishment - What is the real cost? [Part 2]

Capital punishment is the practice of executing or putting to death those who are guilty of committing murder, particularly in instances where it has been established that they have committed the crime intentionally or with premeditation.
By Staff Writer Sat 29 Aug 2015, 11:20 am (GMT +2)
Mmegi Online :: Democracy and capital punishment - What is the real cost? [Part 2]

The debate over capital punishment has stretched from the beginning of time, when Cain killed his brother Abel and was reprimanded by God Himself. Undoubtedly capital punishment has been the subject of vociferous debate in the international arena and continues to be. The application of this retribution has sometimes been imbalanced against the severity of the offence in some societies, the brutality of the method of execution varied, and the social status of the guilty played a vital role in the judicial sentencing.

According to David von Drehle, in the USA the State of Florida, with one of the nation's most populous death rows, has estimated that the true cost of each execution is approximately $3.2 million, or approximately six times the cost of a life-imprisonment sentence." In 2011 in California, a broad coalition of organidsations called Taxpayers for Justice put repeal of the death penalty on the ballot for 2012 in part because of the high cost documented by a recent study that found the state has already spent $4 billion on capital punishment resulting in 13 executions.All this cost is related to the application of democratic principles in the dispensation of justice by the legal system in the USA.

Today we have an opportunity to participate in this highly controversial debate for different reasons. We claim to be civilised and therefore should be measured by a higher standard of behaviour. We have created political and social institutions that reflect our dignity and respect for human life. One of those institutions we have created is called democracy. Under this system of running the affairs of man, decisions about killing those who have killed other human beings remain highly controversial.

The next few articles will attempt to raise the profile of this debate and hopefully set the stage for our progeny to continue the debate.Democracy is supposed to protect human life, give sanctity to all persons under its cover, allow people to share life, liberty and happiness and sustain human civilisations. There are many controversies surrounding the application of democratic principles in various countries but the bottom line is that it is a system of governance that has been adopted because of its noble goals of giving all people the right to choose their destiny, political representation, ownership of private property, avoidance of inflicting 'cruel and unusual' punishment on others and full participation in the free enterprise system, traditionally labelled 'capitalism' A number of questions beg answers:

The United Nations General Assembly adopted resolution 62/149 on December 18, 2007 calling for a worldwide moratorium on executions. Out of 187 UN member states, 104 voted in favour of the resolution, 54 countries against and 29 abstentions. A second resolution on 'Moratorium on the use of the death penalty' at the United Nations (UN) was passed on December 18, 2008.

The resolution, calls upon states that still maintain the death penalty to respect international safeguards guaranteeing the rights of those facing the punishment, to reduce the number of offences for which this penalty may be imposed and 'to establish a moratorium on executions with the view to abolishing the same'. Similarly, in November 2008, the African Commission on Human and Peoples' Rights (African Commission) adopted a resolution calling on African States to observe a moratorium on the death penalty.It was an important step towards making the African Union (AU) a totally death penalty-free zone.

Of the 54 independent states in Africa that are UN members, 18 have abolished it, 25 permit its use for ordinary crimes, but have not used it for at least 10 years and are believed to have a policy or established practice of not carrying out executions, or it is under a moratorium and executions in Africa in 2010 in Libya (18+), Somalia (8+), Sudan (6+), Egypt (4), Equatorial Guinea (4), Botswana (1).

We face a contradiction in terms of the meaning and application of democracy and the meaning and application of capital punishment in many countries and their legitimate place in our modern civilised society. The true principles of democracy apply when all eligible citizens are treated equally before the law and have equal access to legislative and judicial processes obtaining, with every vote having equal weight, and with no unreasonable restrictions being placed on anyone seeking political or judicial office.

The decision to carry out capital punishment on an individual is based on the presumption that one is innocent until proven guilty and that during trial, one has been given good legal representation before the law, due process, and that he or she has not been unfairly treated because of race, gender or other considerations. In the second article we will be exposed to the real conflicts in the application of theory to the reality of human society, where matters of race, gender, age and ethnic origin play a key role in the dispensation of justice. This article will be looking at some vital statistics on the distribution of countries and their views on democracy and capital punishment. The subsequent articles will be looking at the application of capital punishment, the debate on its pros and cons.

It is interesting to note that support for the death penalty is still very strong in many democratic countries, including the United States, Poland, and Russia but following the 1960's, all of the other Western democracies abandoned the death penalty for ordinary crimes. Many countries that had already abandoned it for ordinary crimes abandoned it for all crimes, including such crimes as terrorism, treason, and military offences.  In 1983 the European Union passed Protocol No. 6 to the European Convention on Human Rights, abolished the use of the death penalty in peacetime, and now membership in the Council of Europe, which is required for admission to the European Union, requires adherence to Protocol No. 6, a requirement that

ensures both that Eastern Europe will follow the abolitionist trend begun in the West and that there will be no backsliding on the issue of capital punishment in already abolitionist states.

In 2011 at least 1,923 people were sentenced to death and at least 18,750 people were under sentence of death worldwide. At least 58 countries still retain the capital punishment for ordinary crime. The European Union considers the death penalty as a cruel, inhuman and irreversible punishment which fails to act as a deterrent to criminal behaviour. The abolition of the death penalty is essential for the enhancement of human dignity and for the progressive development of human rights.

The European Union strongly opposes the death penalty in all circumstances, and works towards the universal abolition of the death penalty, if necessary by lobbying for the immediate establishment of a moratorium on the use of the death penalty with a view to/which paves the way for abolition. Where the death penalty still exists, European Union calls for its use to be progressively restricted and carried out according to minimum standards. The fight against the death penalty is an integral part of the EU's human rights policy.Why is it difficult to abolish the capital punishment in the USA, where over 50 percent of the population is in favour of the death penalty?What we learn is that democracy as practiced in the USA is different from that practiced in Europe where they have literally done away with the death penalty.

There is a large role for criminal trial and grand juries made of citizens who are chosen and/or elected to assist judges in determining the fate of criminals used in the United States. Equally the vast majority of American prosecutors are elected by the people rather than appointed.  Judges, too, are directly elected or otherwise politically accountable in a large number of states.  While federal prosecutors are appointed by the President, over 95 percent of county and municipal prosecutors are selected by popular election. Twenty-three states have popular elections for nearly all levels of the state judiciary, while an additional 10 states combine a system of popular election with executive or legislative appointment of judges. 

These clearly exceptional institutional arrangements provide a mechanism through which popular support for the use of capital punishment can influence institutional decision-making.Elected officials who campaigned on a death penalty platform, or re-elected officials who were vigorous advocates for the use of available capital sanctions while in office, no doubt perceive a mandate to use the death penalty in a way that European judges and prosecutors, more isolated products of an elite bureaucracy, could not possibly.There is thus something of a feed-back loop between voters and elected officials that tends to reinforce and intensify tendencies toward the use of capital punishment.  The United States is the only country that gives full criminal law-making power to individual federal units/states. This grant cannot be superseded by Congress, as the federal constitution is structured to ensure state dominance over criminal law. 

This arrangement necessarily permits local or regional enthusiasts to keep the death penalty going within the United States, even when attitudes and trends are moving in the opposite direction in other parts of the country. Nationwide abolition can thus be achieved, only by convincing the legislatures of 50 different states and the federal legislature as well, which is a mammoth task. The vast majority of executions within the United States, at least in the modern era of capital punishment have been carried out by a handful of states located in the American South and Southwest. First, perhaps the most obvious aspect of Southern exceptionalism is race.  The American South has a distinctive legacy of racial inequality stemming from the wide-spread practice of chattel slavery and continues to have disproportionately large black populations.

What one can observe from the American political landscape, themes of law and order have tended to dominate electoral battles at all levels of government and being soft on crime when one is seeking political office is a liability of enormous and generally negative for political actors at all levels of government.  Second, the death penalty has become a potent symbol in the politics of  law and order. The dilemna faced by many states in the USA on the application of the death penalty is based by and large on the type of democracy that is unique to the USA and how it is applied.Some interesting lessons could be drawn from the manner in which the USA has attempted to juggle its system of democracy and with the complex social, economic and political variables that are also unique to that country.  The following statistics about the application of the death penalty in the US may help us appreciate the complexity of this issue, without making on judgmental statements on the matter. Between 1930 and 1976, 455 men were executed for rape, 405 of them, making up 90 percent were black.

President Obama feels utmost caution should be taken on the subject of capital punishment, and it should be reserved only for 'heinous crimes'. "I believe that the death penalty is appropriate in certain circumstances. There are extraordinarily heinous crimes, terrorism, the harm of children, in which it may be appropriate. Obviously we've had some problems in this state, in the application of the death penalty and that's why a moratorium was put in place and that's why I was so proud to be one of the leaders in making sure that we overhauled it, death penalty system that was broken. For example, passing the first in the nation videotaping of interrogations and confessions in capital cases. We have to have this ultimate sanction for certain circumstances in which the entire community says this is beyond the pale".

*Dr Morgen Chawawa, Research Manager, Botho University


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