Summary - Over 70 per cent of South Africans support the return of the death penalty. Sadly, Tony Leon and some two-thirds of the Democratic Alliance’s parliamentary caucus also believe it should be reintroduced for murder with aggravated circumstances. These figures indicate the pervasive sense of insecurity that many South Africans are feeling, which is not surprising given the fact that our country has one of the highest violent crime rates in the world. Proponents of the death penalty argue that it would reduce the murder rate, but in so serious a matter as taking life as punishment, the onus is on them to demonstrate its effectiveness as a deterrent ‘beyond all reasonable doubt’. They have failed to do so. Indeed, mountains of data suggest that it does not have a unique deterrent effect. That is the most important utilitarian or pragmatic argument against the death penalty, but a hardly less powerful one is the possibility that innocent people may be executed. Though supporters of capital punishment insist that this risk is insignificant, the introduction of modern forensic methods such as DNA testing has revealed that there are distressingly large numbers of innocent people on death row in the US. Then there is the moral argument against capital punishment, which asserts the sanctity of human life. This arouses derision among proponents of the death penalty, who point out that the murderer showed only contempt for the idea. However, two wrongs never make a right; furthermore, abolitionists believe that certain values are so fundamental that they ought to be placed beyond the reach of happenstance majorities. Majorities are not always right, nor is majority rule the only requirement for a democracy. After all, Hitler enjoyed overwhelming support among Germans. Similarly, if a democratically elected government in a Muslim state were to impose Sharia Law fully, including the stoning of adulterers and mutilation, it would clearly lose its democratic status. The point is obvious: there can be no democracy without effective protection of human rights. Modern democratic states (with the deplorable exception of the US) have abolished capital punishment and none has reported a rising murder rate as a consequence. To the ANC’s credit, it has resisted calls to reinstate the death penalty. Prior to the 1994 election an American election expert allegedly advised Nelson Mandela that if the ANC promised to lift the moratorium on hanging imposed by FW de Klerk, it would win a two-thirds majority. Mandela wouldn’t hear of it, probably because he knew that the death penalty is applied disproportionately against the poor, and, during the apartheid era, against blacks. If restored, the presumed security capital punishment would bring is illusory. Indeed, by contributing to the further brutalisation of our society, it could possibly make things worse. It is not the severity of punishment that deters would-be criminals, but the likelihood of being arrested and charged. Abolitionists are not indifferent to the crime ravaging our society, nor do they care more for the criminal than for the victim. Their argument is that hanging is not only ineffective, it is a brutal form of punishment that demeans those who order it. Shame on the DA for its blatant political opportunism.
It was with considerable dismay that I read Tony Leon’s statement that he supported the reintroduction of the death penalty for murder with aggravated circumstances — and the subsequent statement by Douglas Gibson that some two-thirds of the Democratic Alliance’s parliamentary caucus also supported this view. Traditionally the DA and its predecessors have said that the issue of capital punishment was a matter of conscience and that MPs could vote in any debate according to their individual convictions. Although the DA has retained the principle of a free vote, the views of its leader and a majority of the caucus surely strengthen the clamour for the return of hanging.
Survey data suggest that over 70 per cent of South Africans and 60 per cent of ANC supporters support the return of the death penalty. These figures are an indication of the pervasive sense of insecurity that many South Africans feel in their country. Given our extraordinarily high rates of violent crimes, among the highest in the world — or so it is widely claimed — this is hardly surprising. The ordinary citizen simply does not believe official figures suggesting that crime rates are either stabilizing or declining.
Would restoration of the death penalty make any difference to the murder rate? Mountains of evidence from a variety of countries suggest that capital punishment has never been shown to have a unique deterrent effect. The onus in criminal trials is to prove that the accused is guilty ‘beyond all reasonable doubt’. If the principal argument for capital punishment is its supposed unique deterrent effect, then the onus, in so serious a matter as taking life as punishment, is for its proponents to demonstrate its effectiveness ‘beyond all reasonable doubt’ — and this they have conspicuously failed to do.
The arguments against the death penalty fall into two categories: first, what might be called utilitarian or pragmatic issues. Of these the most important is the ineffectiveness of its supposed deterrent effect; but hardly less powerful is the possibility that innocent people might be convicted and executed. It is customary for proponents of capital punishment to sneer at this argument, and to insist that the possibility of error is so small as to be insignificant. This is not so: recent evidence from the United States has shown that with the use of modern forensic methods, notably DNA testing, a distressingly large number of condemned people have had to sweat it out on death row until new evidence proved their innocence.
The second category is a moral one: the sanctity of human life. Those who argue for the death penalty snort with derision on hearing this, and point out that the murderer, by definition, showed only contempt for the idea, and the equally valid injunction, that ‘thou shalt not kill’. (More primitive retentionists will invoke the Old Testament belief in ‘an eye for an eye’, etc.)
Apart from pointing out that two wrongs (the murder and the execution of the murderer) never make a right, abolitionists argue that certain values are so fundamental that preserving them ought to be placed beyond the reach of happenstance majorities. (Dictators, of course, are not troubled by moral considerations.)
I immediately concede that were a referendum on the death penalty to be held in South Africa, it is likely that over 70 per cent of voters, including 60 per cent of ANC supporters, would opt for its reinstatement. The figures are taken from survey data in the 1990s, and are unlikely to have changed very much.
Surely, if democracy means anything it means ‘majority rule’? Why should the abolitionists be able to trump this argument by insisting that certain values are unassailable, even by democratic means? There are two answers: first, the idea of majority rule is one principle among a cluster that collectively constitutes a democratic polity. The other major principle is respect for human rights, enforced by an independent judiciary.
Secondly, majorities are by no means always right. There is little doubt that by about 1936, Hitler, having destroyed Weimar democracy, enjoyed overwhelming support among Germans. Likewise, Stalin probably enjoyed majority support in the Soviet Union, especially after 1945. If ‘majority rule’ (or, more accurately, ‘majority support’) were the essence of democracy, the bizarre conclusion would be that both Hitler and Stalin were authentic democrats!)
To extend this argument further: assume hypothetically that a wholly or preponderantly Muslim state, with a democratically elected government, were to impose the Sharia Law in its full rigour, including beheadings, stoning of adulterers and mutilation, it would clearly lose its democratic status.
The point should be obvious: there can be no democracy without the effective protection of human rights. With the (deplorable) exception of the USA, where 38 states retain the death penalty, modern democratic states have abolished capital punishment — and none has reported a rising murder rate as a consequence.
Moral considerations about punishment have changed over the past 200 years or more. Democratic states no longer burn people at the stake or impose other barbarous forms of punishment: The changed morality now deems the death penalty to be an unacceptable form of punishment, although, you may be sure, that were referendums to be held, say, in the European Union, where abolition of the death penalty is a condition of membership, majorities in several, perhaps most, states would support its reinstatement.
It is to the ANC’s credit that it has resisted what must be tempting calls to reinstate the death penalty. I am told that an American electoral expert advised Nelson Mandela on the eve of the 1994 election that if the ANC were to lift the moratorium on hanging (imposed by FW de Klerk in 1990) it would win a two-thirds majority. Mandela would not hear of it. Probably he knew that inevitably the death penalty operates selectively against poorer people who are unable to afford experienced advocates — just as it operated in a racially discriminatory way in the apartheid era.
The flood of letters to newspapers attacking Helen Suzman for her abolitionist views suggests how emotional an issue the death penalty is. If restored the presumed security it would bring is illusory. Indeed, by contributing to the further brutalization of an already violent society capital punishment could possibly make things worse.
The eighteenth century Italian criminologist Beccaria advanced a proposition that has stood the test of time: that it is not the severity of punishment, but the likelihood of being arrested and charged that deters would-be criminals.
Abolitionists are anything but indifferent to the crime that ravages our society; nor are they, as the hoary canard alleges, more in sympathy with the perpetrators of capital offences than the victims. Their contention is that hanging is not only ineffective, but also a brutal form of punishment that demeans those who order it. Proponents of hanging ought, in the interests of consistency, be required to watch an execution. If their arguments are correct, that hanging has a unique deterrent effect, then even greater consistency requires that executions should be public spectacles, as they were 150 years ago.
No one who watched the recent TV documentary or read press reports that recounted the effect hangings had on the prison officials in attendance could fail to be sickened by what Dickens called ‘the hideous apparatus of death’. Do we really want it restored?
I accuse the DA of a blatant piece of political opportunism, masquerading behind the fig-leaf of a free vote. Shame on you!
