Capital Punishment: Historical Development, Modern Practices, Public Opinion, And Controversies

1. Choose a particular law and explain its historical origins and development – poor laws, hate crime laws, property law

2. Choose a particular form of punishment and examine its historical development – capital punishment, corporal punishment, mandatory minimum sentencing, etc.

3. Choose a particular theoretical tradition and demonstrate its usage in the contemporary age.

4. Examine the difference in policing and policy approaches to street crime, corporate crime, or compare the two.

5. Focus on a particular segment of the population and explain how they are treated by the criminal justice system – ie. Violence against women, minoritized communities, etc.

6. Choose a particular aspect of popular culture and examine its relationship to the representation of crime –ie violence and music, video games, etc.

7. Choose a particular film or television series and examine how it represents crime and society’s response. – CSI, Law and Order, The Wire

8. Choose a current event related the course content and explore how the study of crime would examine such a topic – War Crimes in Iraq, Prisoner Abuse, Wrongful Convictions, etc.

The History of Capital Punishment

Capital punishment or death penalty is the highest form of punishment pronounced generally by a competent court of a nation on rarest of the rare cases. The court passes a sentence that directs the execution of a criminal offender under the provisions of law. The offences or crimes that attract death penalty is regarded as capital crimes or offences and they comprises offences like murder, genocide, treason, crimes against humanity, war crimes, espionage etcetera. According to Wheeler (2018), 103 countries have abolished Capital punishment completely by way of statutory enactment, while only 56 countries still hold on to death penalty.  This paper strives to discuss about capital punishment as a form of punishment in modern day, its historical development, public opinion about it, death penalty for juveniles, movement for painless execution and controversies pertaining to it.

Ancient records of capital punishment have been found as it was a regular practice since the dawn of civilization. The earliest recorded legal documentation of death penalty has been found in the ‘code of Hammurabi, an ancient Babylonian code or manuscript which was performed in the 1700s B.C. (East, 2016). The code records the inclusion of 25 types of crimes as a punishable offence by death. However to a great surprise, murder was not among one of them. Death penalty has always been a part of the justice system favouring as a deterrent factor for not enough variation of different form of punishment was prevalent back then. Therefore, it is possible to be unrecorded dating even before 1700. Communal punishment for general wrongdoing comprised of compensation or damages paid by the offender, branding, corporal punishment, shunning and banishment. While grave offences like murder, treason, rape, witchcraft, blasphemy would call for death execution. Earlier vendetta or blood feud between families made killing one another seem easier in absence of a codified law (Garland, 2018). In the medieval era, capital punishment was treated as a general form of punishment for it was recorded as many as 72,000 times during the reign of Henry VIII of England. Such wide volume of use of death penalty still could not pave the idea of reformative punishment till 12^th century when the Jewish legal thinker, Moses Maimonides laid down the ethical norm that said it is desirable to acquit a thousand guilty than to prosecute an innocent man (Ormsby, 2018). Sexual offences (like sodomy) were regulated by the Buggery Act 1533. With the dawn of modernization, codified laws have checked and removed the theory of ‘an eye for an eye” and helped distinguish between an act of vendetta or a case of conquest (Hood and Hoyle, 2015). Some last centuries have witnessed the formation of the concept of natural and lawful rights with the evolution of modern states. Jeremy Bentham, the father of modern utilitarianism strongly spoke against death penalty (Macias, 2017). In the 20^th century Nazi Germany rule, three kinds of capital punishments were observed; hanging, shooting and beheading. Similarly, Stalin executed over a million soviet citizens during the Great Terror of 1937- 1938 by the means of firing squads. 800,000 people were executed by Mao Zedong of china during the Cultural Revolution from 1966-1976. In today’s world, death penalty is practiced under restriction and in case of the rarest of the rare cases like gang rape, mass murder, treason, war crimes. As per Ma (2015) in china, offences like financial crimes, corruption, human trafficking is under the purview of capital punishment. While in most military advanced countries, court martial imposes death penalty in case of cowardice, desertion, treason and others. Many developed countries like Canada, Australia, New Zealand, most European countries and developing country like South Africa have abolished Capital punishment. While some developed countries like the USA, Japan and developing countries like India, Brazil, Zambia have not given up on the strictest form of punishment even today.

Capital Punishment in the Modern World

Public opinion in present world differs from one country and political setup to another. Citizens of Norway, France, Finland, Italy opposes death penalty, however super power like USA and other countries like India, China, South Africa has voted in favour of Capital punishment (Sarat, 2018). Painless and private execution is the present demand in respect to death penalty. Long drop hanging, lethal injections, gas inhalation, electrocution are some of the less painful form of death penalty observed by modern countries. In today’s time, juvenile execution has become a rare case due to the various international conventions such as the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. The USA abolished death penalty for juveniles under the age of 16 since Thompson v. Oklahoma case in 1988 and removed it for all minors after the Roper v. Simmons case in 2005.

Capital punishment being the highest form of punishment in the world faces strict criticism. Some see it as a necessary evil while the abolitionists believe it as the worst infringement of human rights.  Supporters of capital punishment have put forwarded their views that they support it is morally just and proper when applied in severe cases like massacre, terrorism, genocide, mass killing, sexual torture, etcetera. Immanuel Kant, a philosopher, strongly stated that all murderers deserve death, for loss of life is incomparable to any length of jail term (Kant, 2017). However, more and more activists are voicing against capital punishment saying that a life-long imprisonment without parole is an appropriate substitute of cruel and degrading practice of death penalty. It is argued that capital punishment is a gross violation of Human Rights as the right to live and sustain a respectful life is the most fundamental right a person can have (Schabas, 2016). The United Nations has tried its best to introduce resolution for banning the concept of capital punishment globally, during its 62^nd General Assembly Session in 2007. The European Union in its European Convention on Human Rights completely abolished death penalty from all over Europe. Many non-governmental organizations like Amnesty International and Human Rights Watch are known for their constant opposition to death penalty.  In 2002, some of these NGOs, trade unions, local authorities had formed an association called ‘World Coalition against the Death Penalty’.

Over the passage of history, the concept of death penalty has been a growing controversy worldwide. Human activists oppose the theory as states that it is inhuman and cruel to take away a life for it has taken away another. If the age old theory of an eye for an eye continues, the philosophers say that the world will soon be blind. While political thinkers are of the opinion that capital punishment is a must for create deterrence in the minds of probable as well as habitual offenders which would help in keep a check in the crime volume and intensity in a nation. Capital punishment has evolved through generations and has taken a wider and humanitarian shape by embracing reformed and less painful forms of execution, including abolition of juvenile execution. Most of the modern and civilised countries have welcomed such amendments while a few developing and backward countries are still lagging behind. 

References: 

East, A. N. (2016). Justice and punishment. The World of Ancient Egypt: A Daily Life Encyclopedia [2 volumes]: A Daily Life Encyclopedia, 315.

Garland, D. (2018). Punishment and welfare: A history of penal strategies (Vol. 29). Quid Pro Books.

Hood, R., & Hoyle, C. (2015). The death penalty: A worldwide perspective. OUP Oxford.

Kant, I. (2017). Kant: The metaphysics of morals. Cambridge University Press.

Ma, C. (2015). China's Death Penalty Practice Undermines the Integrity of the Death Penalty as a Sentencing Option.

Macias, S. J. (2017). Utilitarian Constitutionalism: A Comparison of Bentham & Madison. NYUJL & Liberty, 11, 1028.

Ormsby, E. L. (Ed.). (2018). Moses Maimonides and His Time (Vol. 19). CUA Press.

Sarat, A. (2018). When the state kills: Capital punishment and the American condition. Princeton University Press.

Schabas, W. A. (2016). The United Nations and abolition of the death penalty. In Against the Death Penalty (pp. 29-62). Routledge.

Wheeler, C. H. (2018). Rights in conflict: the clash between abolishing the death penalty and delivering justice to the victims.