The South African Institute of Race Relations (SAIRR) this week published a study in which it asks whether there is a case for South Africa to reintroduce the death penalty. It concludes that it should not be reintroduced as “[h]uman beings who are not infallible ought not to choose a form of punishment which is irreparable”. For once, I agree with the SAIRR. Here is why.
Many, perhaps most, humans have a deep-seated belief in the concept of retribution (more commonly known as revenge). If a person feels wronged or believes that those close to him or her have been wronged, that person may wish to address the perceived imbalance created by the wrong by lashing out at the wrongdoer. Revenge, in this view, re-establishes an equilibrium between the wrongdoer and the person or group wronged.
This desire for revenge is almost certainly the most powerful reason why so many South Africans still yearn for the re-introduction of the death penalty in South Africa, despite its abolition more than 20 years ago. But while revenge (retribution) is one of the legitimate aims of criminal punishment, it is inappropriate in a constitutional democracy based on the values of human dignity, equality and freedom to impose a punishment on somebody convicted of a crime, purely based on the desire for revenge.
Punishment should, at least partly, also be aimed at deterring perpetrators from committing crimes in future. If proponents of the death penalty could demonstrate that its abolition had encouraged more South Africans to commit murder or that the re-introduction of the death penalty would deter individuals from committing murder, they would be able to advance a plausible argument for its reintroduction.
Of course, some of us who believe that the society as a whole is demeaned when the state or those working for it deliberately kills its citizens – whether this occurs during a massacre as it did at Marikana or far way from the public eye at a legally sponsored execution – will not be persuaded that it is ever ethically justified for a state to impose the death penalty.
But those of us who know that the death penalty is difficult to square with respect for the human dignity of all individuals, and hence with a human rights-based culture, might have a more difficult time of it if it could be shown that the death penalty was an extremely effective way to deter those who might be thinking of committing heinous crimes such as murder from going ahead with their plans.
In S v Makwanyane – the judgment in which the Constitutional Court declared the death penalty unconstitutional – Justice Arthur Chaskalson rejected the notion that violent crime only escalated in South Africa because the death penalty was abolished.
“The cause of the high incidence of violent crime cannot simply be attributed to the failure to carry out the death sentences imposed by the courts. The upsurge in violent crime came at a time of great social change associated with political turmoil and conflict, particularly during the period 1990 to 1994. It is facile to attribute the increase in violent crime during this period to the moratorium on executions. It was a progression that started before the moratorium was announced.”
This argument has been proven to be correct. As South Africa stabilised after the transition, the murder rate came down drastically. As the SAIRR report shows, South Africa’s murder rate has dropped from 67 per 100,000 in 1994/1995 (when the death penalty was formally abolished) to 33 (by 51%) in 2014/2015. This means that despite the abolition of the death penalty, the murder rate has gone down drastically.
Justice Chaskalson also noted that from the point of view of law enforcement it is not the nature of the punishment that is the problem, but rather the slim possibility of ever being caught and convicted for a violent crime.
“The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system; and it is at this level and through addressing the causes of crime that the state must seek to combat lawlessness.”
The fact of the matter is that the overwhelming majority of people who commit murder are never apprehended, prosecuted or punished. The conviction rate for murder is currently under 11%, which means that for every 100 people who are murdered only 11 murderers are ever convicted of the crimes. This suggests that most South Africans who commit murder do so not because they are happy to face life imprisonment instead of the death penalty, but rather because they believe (and the statistics back them up) that they will never be caught.
Oscar Pistorius surely did not murder Reeva Steenkamp because he knew that he would not be sentenced to death for her murder. He did so because he thought he would never be convicted of murder in the first place.
It is also important to consider that other – less drastic and irrevocable – forms of punishment also act as deterrents. If the police actually managed to catch the majority of those involved in violent crime, and if they were all convicted and sentenced to long prison sentences, this would also serve as an effective deterrent. As Chaskalson noted:
“In the debate as to the deterrent effect of the death sentence, the issue is sometimes dealt with as if the choice to be made is between the death sentence and the murder going unpunished. That is of course not so. The choice to be made is between putting the criminal to death and subjecting the criminal to the severe punishment of a long term of imprisonment which, in an appropriate case, could be a sentence of life imprisonment. Both are deterrents, and the question is whether the possibility of being sentenced to death, rather than being sentenced to life imprisonment, has a marginally greater deterrent effect, and whether the Constitution sanctions the limitation of rights affected thereby.”
Supporters of the death penalty have one further argument up their sleeve. They argue that the vast majority of South Africans support the re-introduction of the death penalty. It is not clear whether the South African public would in fact favour the death penalty. But if we assume that the death penalty is supported by a majority of South Africans, this may be of little help to those who support the death penalty.
As Chaskalson noted, public opinion cannot be decisive in deciding whether the rights of individuals should be protected. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, and the rights of those who do not find favour with the majority of parliamentarians could be extinguished. Chaskalson notes:
“By the same token, the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us that all of us can be secure that our own rights will be protected.”
There are many other arguments against the re-introduction of the death penalty – including the potential racial bias in imposing it and the potential for wrongly imposing it on the innocent.
However, as long as almost 90% of people who commit murder in South Africa are never apprehended, prosecuted and convicted, individuals are unlikely to be deterred from committing murder regardless of the punishment imposed on the 10% who are in fact caught and convicted.
Instead of discussing the re-introduction of the death penalty, the time might well be better spent finding solutions for the bizarrely low conviction rates for murder and other serious crimes. DM
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Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
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