Attempts in some jurisdictions to define in legislation a small class of the “worst of the worst” murders as a special class of “capital murders” for which the death penalty should be retained have not proved successful. In practice, this led to an unacceptable degree of arbitrariness in terms of who was executed and who was not.
It is precisely when there are strong reactions to serious crimes that the use of the death penalty as an instrument of crime control is most dangerous. Pressure on the police and prosecutors to bring offenders to justice — especially those suspected of committing outrages — may lead to shortcuts, breaches of procedural protections, and simple myopia in investigation once a suspect is identified. This makes miscarriages of justice more likely.
These problems appear to be endemic to the systematic use of the death penalty, and not simply a reflection of human error or faults in the administration of criminal justice in a particular country. For many abolitionists, even the smallest possibility that an innocent person could be executed is an unacceptable breach of the right to life.
It is sobering that the commission set up by then-Illinois governor George Ryan to investigate why there had been so many wrongful convictions in that state concluded that “no system given human nature and frailties, could ever be developed or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death.”
But although the risk of error is a key lever in the human rights case against capital punishment, those committed to the cause contend that even if the system could be made “foolproof” it would still be indefensible. Abolitionists who believe that all citizens have a “right to life” argue that the issue cannot be left to public opinion because the public may not be fully informed as to the consequences of employing capital punishment. Most abolitionists also contend that the means could never justify the ends: For them, serious crimes can be prevented more appropriately and effectively by tackling the factors that contribute to them rather than relying on an inhumane punishment.
There remains a large gap between believing that some persons “deserve to die” for their crimes and believing that a state system for the administration of capital punishment can be devised that meets the ideals of equal, effective, procedurally correct and humane justice and protects the right to life and freedom from cruel, inhumane and degrading punishments. Civilized societies seek to secure these rights for their citizens — even those who have committed the worst of crimes.
Now that Taiwan has suspended the execution of those sentenced to death, it is time to take the final step. Experience shows that once abolition becomes permanent, support for capital punishment among politicians and the public subsides. In the generations thereafter, it comes to be regarded as an unacceptable, uncivilized cruelty of the past.
Roger Hood is professor emeritus of criminology at the University of Oxford and an emeritus fellow of All Souls College Oxford. He has also served as a consultant to the UN on capital punishment.
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