Is the retributivist approach to justice reasonable at all times? Is the execution of murderers the same as murder, only glorified by being sanctioned by the state? Are there merits to embracing the execution route? Or is it simply a romanticised violation of life, totally antithetical to the crystalline and sublime beauty of the principle of the sanctity of life! KEVIN MOKENTO* writes
Abolitionists advance two reasons for their aversion to capital punishment; the absence of evidence supporting the veracity of the notion of deterrence, and the likelihood of executing an innocent person. Their fear is rooted on the fact that where execution has already been carried out, and with time it becomes incontrovertibly clear that the accused person was innocent, the ultimate punishment meted out on the innocent person is unfortunately irrevocable.
Justice Koogan supported this view, “You don’t dig up a coffin, open up the lid and then tell the accused, “Oops, sorry. We made a mistake.” ………. We are human beings operating in an imperfect system and we’re bound to make mistakes, ………. for that reason, and that reason alone, ……. capital punishment should no longer be law of this State or any other state.”
Think about the 1983 Carlos DeLuna’s case. He was executed in Texas at the age of 27 for the death of Wanda Lopez; a fuel station attendant. Two ‘eye witnesses’ testified at the trial. DeLuna’s trial lasted six days and he was executed six years later. In time, the Columbia Law School reviewed the case and owing to factual discrepancies concluded that DeLuna was innocent. The culprit was actually Carlos Hernandez who resembled DeLuna. That resemblance was so strong such that from the pictures of the two men, Hernandez’s family members and acquaintances failed to tell the two men apart.
Amnesty International asserts, “The death penalty legitimises an irreversible act of violence by the state and will inevitably claim innocent victims. As long as human justice remains fallible, the risk of executing the innocent can never be eliminated.”
Regarding deterrence as a practical means for preventing commission of murder, two questions arise. Who exactly is being deterred? And of what value is deterrence in the case of impulsive murders?
Some people hold the view that dismisses the effectiveness of deterrence owing to the practice of putting murderers on death row for years. Failure to execute murderers swiftly following judgement probably softens what could have been an effective and decisive ‘scorpion-like’ sting of deterrence.
If the motive is to punish murderers by ostracising them from the society, can’t that be accomplished by incarcerating them for life? Denying them parole for life! Quite instructive are the words of Jean-Jacques Rousseau, an 18th century Genevan philosopher, “No man should be put to death, ……… if he can be left to live without danger to society.”
Since most murder cases are not premeditated, but rather a consequence of impulsive response to a transient set of circumstances, can we conclude that people would refrain from committing murder out of fear of execution? Dr. Onkemetse Tshosa who was sworn in as a High Court judge in Lesotho last year, once stated, “The factual situation in Botswana is that despite the existence of the death penalty in the statute books, murder cases are on the increase…..It would therefore appear that the deterrence function of the death penalty is not altogether working or is rather ineffective.”
Would logical reasoning on deterrence feature in the thought process of a culprit provoked on the spur of the moment? Or even for murders spontaneously committed under the influence of habit forming drugs or inebriants. At the time of the offence, the motive might not necessarily be murder, but to inflict some severe lasting pain. Since the dead can’t feel pain, wouldn’t this rule out murder as a motive?
Consider young men recruited by fundamentalist religious hate groups. Can the threat of execution deter brazenly suicidal fanatics from committing murder? How would that reconcile with the fact that he would have been brainwashed with some exaggerated empty rhetoric, promising him a life of eternal bliss somewhere above the exosphere?
Herein lies two cardinal views of logic; one; in cases of impulsive murders, probably the only people deterred from committing murder are the very people who would be permanently incapacitated through government sanctioned executions, after all dead men are incapable of killing. Two; probably, the longer the murderer is on death row, the more the death penalty is likely to be rendered inefficient as a deterrence measure.
Is there irrefutable logic in the expression, ‘If murder is wrong, it cannot be discouraged by another murder?’ In his book entitled Strength to Love, Martin Luther King Jr. (MLK) wrote, “Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate, only love can do that.”
With poetic prose, MLK was simply pushing the universally acceptable narrative of two wrongs don’t make a right. For some people, his words would trigger that epiphanic ooh and aah light bulb moment as they appreciate that it is ludicrous to confuse legitimate and rightly deserved positive punitive actions with negative hate-driven sanctions.
Worldwide, judicial systems are overwhelmed by the magnitude and increasing complexity of criminal cases. Interviewed on Btv two weeks ago, the Director of Public Prosecutions (DPP), Stephen Tiroyakgosi said they have 206 prosecutors working on over 8,000 cases per annum.
He also mentioned that for murder cases, they often have to piece together information to come up with circumstantial evidence. Add to that load grand corruption cases that are often shrouded in secrecy. The same prosecution team, including some police officers, who prosecute under the fiat of the DPP, may be grossly overworked.
For high profile murder cases, are there chances of prosecutorial misconduct, albeit infinitesimal? Can some shady police officers and prosecutors succumb to pressure and force confessions? Fired up with misplaced zeal, can they contrive or even contort evidence? Under the pretext of subscribing to the notion of zero tolerance to crime, and yielding to the pressure of being seen to be effective, is it possible for a crooked subset of the judicial value chain to bend rules and compromise their integrity?
Professor Robert Blecker of the New York Law School, an ardent self-proclaimed retributivist once said, “I’ve come to understand that some people simply deserve to die and we have an obligation to kill them. Why do I support the death penalty? In a word – justice. The past counts independently of the future. So the wrong question to ask is what good would it do? The right question to ask is, what wrong has been done?” This was supported by a media consultant named Don Feder who said, “executing a murderer is the only way to adequately express our horror. To equate the lives of killers with those of victims is the worst kind of moral equivalency.”
Some people might subscribe to these narratives, especially those grieving from losing their loved ones. Public sympathy to this view is often anchored on the notion that murder cheapens the value of life and action consonant with the gravity of the offence has to be taken against murderers.
In 1984, there was a murder case before the Court of Appeal for the murder of a Swiss national named Beat Rauchenstein. On the strength of circumstantial evidence, Clement Gofhamodimo was sentenced to death. He had last been seen driving with the victim toward the end of March 1978, when he was just over the age of 21, only to rock up a few days later, this time alone, in possession of the victim’s automobile and traveller’s cheques.
In pronouncing the guilty verdict, Justice Maisels, quoted Van den Heever J.A. in the 1960 RSA State vs Sikosana case; “The circumstantial evidence in this case, consisting of so many probative factors all pointing in the same direction, leads one irresistibly to the conclusion that the appellant planned and executed the removal of an unwanted wife. In that rugged country a body could be as effectively hidden or disposed of as it had been put overboard on the high seas, and it is clear that the appellant thought that therein lay safety. To my mind the cumulative effect of these elements of proof is overwhelming and establishes beyond reasonable doubt the existence of the corpus delicti as well as the appellant’s agency in willfully and maliciously being its cause.”
Would one be wrong to infer that the verdict was in part based on judicial precedent? In Latin, binding precedent is expressed in the maxim, stare decisis et non quieta movere, which translates to ‘stand by decisions and do not disturb settled matters.’ This doctrine has contributed to the evolution and refinement of some elements of jurisprudence by providing stability, evenhandedness, fairness, predictability and consistency while resolving cases and bringing litigation to an end.
Owing to human imperfection, is it possible to rely on factually flawed precedents? If so, can this result in the death of the innocent? Could there be value in stirring the calm waters of settled cases?
If it’s any solace, the law does not encourage eternal perpetuation of legal flaws under the cloak of stare decisis. In Sydnor vs Gascoigne, Jeremiah Sullivan Black, Chief Justice of the Supreme Court of Pennsylvania said, “I am not saying that we should consecrate the blunders of those who came before us and stumble every time we come to the place where they have stumbled. A palpable mistake violating justice, reason and law, must be corrected, no matter by whom it may have been made.”
Add to that a sentiment expressed by Justice William Rehnquist who served in the Supreme Court of the US for 33 years. Clearly demonstrating that the doctrine of stare decisis does not bind in perpetuity, he said stare decisis is not an “inexorable command.” Hence the Latin ethical maxim, ‘Fiat justitia, ruat caelum,’ meaning, ‘let justice be done, though the heavens fall.’ This means verdicts should always be guided by the overarching principle of execution of justice, not so much the outcome.
In May 1984, Caryle Murphy of the Washington Post wrote, “At the trial ……the prosecution presented no evidence of a body, no murder weapon, no witnesses to the alleged crime. But through an accumulation of circumstantial evidence, the prosecution sought to show that Gofhamodimo was responsible for Raunchestein’s death.”
In the same article, Gofhamodimo was described as a “quiet, hardworking, personable and smart” young man who had been in the Dean’s list at the University of the District of Columbia in 1983. Five months after Murphy’s article was published, Gofhamodimo was hanged. He was survived by his wife and a year-old son.
Should Gofhamodimo have been murdered by the State? Do one time murderers, serial murderers, paedophiles, rapists and cold blooded terrorists deserve to die? Are these people beyond redemption? Would your view change as soon as perpetrators of murder are close to you, like your parent, child, sibling, partner, relative or friend, and you happen to know intimate details of what provoked the murder? Is the retributivist approach to justice reasonable at all times?
Is the execution of murderers the same as murder, only glorified by being sanctioned by the state? Does the execution of murderers necessarily uphold the sanctity of human life? Are there merits to embracing the execution route? Or is it a twisted way of giving a modicum of dignity to a miry and barbaric practice inherited from our colonial masters? Do we care that while clutching tightly to this practice, our colonial masters have not executed anyone for well over half a century? Since everyone might eventually die, is there value in fast tracking the death of some?
Quite intriguing is Advocate Richard Bourke’s view, an Australian lawyer based in the US, “Whether done with blood thirsty relish or with professional indifference, the carrying out of an execution is a wholly repugnant spectacle.”
Equally enthralling is the thought provoking sentiment expressed by an academic named Dr. Marc Lamont Hill, “There is a retributive version of justice that says justice equals punishment, and punishment equals confinement, and extreme punishment equals death? The state doesn’t have the moral authority to kill its citizens.”
Would you agree with Bourke and Hill? Or with Blecker and Feder? Should people freely terminate other’s lives, comfortable in the knowledge that whatever punishment would be meted out against them, they will continue enjoying that which they denied others? What sense of entitlement do people who despise the value of life have to the right to life? Shouldn’t those who “take the sword perish by the sword?”
Haven’t governments been endowed with the right to make decisions on such matters, for as long as they are for the public good? Is this matter really worth debating? Or should we be content with the “Dura lex, sed lex principle, Latin for “the law is harsh, but it is the law,” fully cognizant of the fact that ‘the laws of man are born, live and eventually die.’
*Kevin Mokento is the pseudonym of a Mmegi contributor who has asked for anonymity