.jpg) |
What can we learn from the latest studies regarding the death penalty in the United States? The central concern for opponents for the death penalty is this chilling statement as quoted in this NYTimes article {with links to the journals themselves} [FN1]:
"Those who object to capital punishment, and who do so in the name of protecting life, must come to terms with the possibility that the failure to inflict capital punishment will fail to protect life."
In other words, the claim of opponents of the death penalty that there is little evidence that the death penalty does not deter serious crime could very well be wrong. While Utility is not the only sentencing basis in our criminal justice system, Singapore ambassador to the UN has recently relied on it to argue against a draft resolution opposing the death penalty [FN2]. He said,
"It is an important component of the administration of law and our justice system, and is imposed only for the most serious crimes and serves as a deterrent."
Hence this post will concentrate largely on this basis of criminal punishment. It however does not aim to discount retributive accounts as a basis - merely to observe that chief proponents and opponents of the death penalty are asserting the utilitarian basis. Hence, the language will be a utilitarian one. In other words, this post is not a discussion which basis is right or bestest. This post will instead argue, with necessary qualifications, that the death penalty in Singapore as currently practiced is the proper approach.
Setting the Singapore Context
The Singapore context has its own particularities and any studies from other places must take into account such particularities. This is especially in relationship to how applicable such studies are to the death penalty for drug offences. We also have a mandatory regime with very strict presumptions in our drug laws, which does not require the Prosecution to prove its case beyond a reasonable doubt. [See FN3, FN4] Safeguards are very important in any system and the key to safeguards is to ensure that people do not hang unless we are reasonably satisfied they are guilty. Besides, it appears, that more than in the United States, a higher number of murder cases in Singapore cases are crimes of passion compared to organized crime. The tough question is whether people committing crimes of passion can be said to be making rational choices and will respond to incentives. In short, to use such studies in Singapore, one must take into account the particularities of the Singapore criminal justice system and society.
But what can we learn from the studies?
That said, there are many things one might learn from these studies that support the death penalty as currently practiced in Singapore.
1. Often and relatively quickly
First off, the death penalty works better when it is done "often and relatively quickly". As the NYtimes article described,
"The effect is most pronounced, according to some studies, in Texas and other states that execute condemned inmates relatively often and relatively quickly."
Singapore as we know does it "often and relatively quickly'.
2. People do in general respond to incentives
One professor, who despite being against the death penalty, said, "But I do believe that people respond to incentives." In other words, the real question is not whether the death penalty provides a deterrence effect, but whether the death penalty's deterrence effect is "worth it" considering the "value of life" and other alternatives to the death penalty. Opponents of the death penalty, with our current economic assumptions of the "rational individual" in various circumstances, might have a difficult theoretical case to meet.
3. What's the price of the death penalty
The value of life does not have much persuasive value in a debate over the death penalty if one is talking about "Utility" to society. Take an example of a young male person on death row. While opponents might argue that his life has utility to society if it was not taken away, this is foremost an argument against both the death penalty and life imprisonment as conceived in Singapore. The price of keeping a person in confinement for life is probably far greater than employing the death penalty, and one finds it hard to imagine the "relative benefit" to society.
Capital punishment is also cheaper in Singapore. The NYTimes described that "A single capital litigation can cost more than $1 million." That will not be the case for Singapore, and again, one suspects, life imprisonment might prove to be more costly in Singapore.
A good death penalty must hence be also cheap for it to be "worth it" compared to the alternatives.
4. Alternatives suggested does not necessarily apply in Singapore
Alternatives to the death penalty usually include better policing. This argument will not have great traction in Singapore because the police presence in Singapore is at least sturdy. As discussed above, life imprisonment attract its host of problems.
Conclusion
Hence, one might conclude that if Singapore is to have a death penalty at all, it should be one that approximates that which is currently conceived. It should be efficient and done quickly. But these studies also show that it is possible to argue rationally and prove through studies that death penalty does indeed deter serious crimes. It will be disappointing if one cannot back with facts what we have been claiming for a very long time.
-----------------------------------------------------------------
[FN1] The New York Times Article in Question that all should read.
[[FN2] I lifted the quote off Yawning Bread.
Two Different approaches to the standard of proof question (*from the title alone, you know which is which)
[FN3] The War on Drugs
[FN4] Drugs Life and the Democratic Choice
PS: Teh Si is against the death penalty in its present form for three reasons. He will argue that without sufficiently being assured of the guilt of the accused, which requires a high standard of proof, it is unjust, and might not serve utilitarian goals. He also thinks that a mandatory death penalty, especially in cases of crimes of passion, fails to acknowledge that life is complicated. Thirdly, he thinks that the state has all the statistics and therefore should seriously think of providing a study to back its claim on the deterrence value of the death penalty.
Comments (9)
Teh Si,
Well said. The KTM will just respond to your PS:
He will argue that without sufficiently being assured of the guilt of the accused, which requires a high standard of proof, it is unjust, and might not serve utilitarian goals.
Actually, w.r.t to death penalty for drug trafficking, it's pretty utilitarian, regardless of accusations of unjustness. Reason: the lives of our children and our children's children are worth more than those of the drug mules no matter how poor thing thing their defending lawyers and the anti-death proponents try to make them out to be. While this view may not sound particularly PC, it's the brutal truth. :-) It is more important to describe things as they are than to try to be "self-righteous" and say how they ought to be according to some deluded sense of moral superiority. :-P
He also thinks that a mandatory death penalty, especially in cases of crimes of passion, fails to acknowledge that life is complicated.
The following comments are made in the context of crimes of passion:
There are at least three people involved in a trial - the judge, the DPP and the accused's lawyer. Just because the DPP can prove mens rea, doesn't mean that he HAS TO press for the murder charge. The Prosecution HAS the discretion to go on man-slaughter.
Just because the DPP decides to press for murder, doesn't mean that the judge has to agree with him - and hopefully, the defending lawyer is earning his pay. So, complicated it might be, we have whole bunch of people working together trying to sort it out.
The KTM is of the understanding that DPPs do not get more year-end bonus if they convict on murder rather than manslaughter (but the AGC is welcome to state otherwise). The KTM believes also that it would weigh heavily on the conscience of a DPP who causes a man to be hanged "wrongly" (whatever that means).
Finally, for crimes of passion, the accused can often try to plead insanity and sometimes they succeed.
The KTM agrees with you that life is complex, but he fails to understand why you do not have faith that with this whole bunch of people working together, they can sort out the complications.
Thirdly, he thinks that the state has all the statistics and therefore should seriously think of providing a study to back its claim on the deterrence value of the death penalty.
The KTM believes that it is impossible to prove the deterrence value the death penalty based on available statistics.
The only way to do something like that is to have access to a parallel universe in which there is a Singapore for which there is no death penalty and for which all other factors and events remain the same (to first approximation).
Perhaps you can share your ideas on how the State could possibly quantify the deterrence value of the death penalty?
Posted by Kway Teow Man | November 19, 2007 11:15 PM
Thanks!
The PS clearly require a lot of work to explain why I think like that, and any comments shld not distract from the main thrust of the post. So forgive me if I deal with your objections too summarily.
Foremost, I do not think our disagreements severe. I try dealing with those where I think there are very slight differences.
You said,
1) "Actually, w.r.t to death penalty for drug trafficking, it's pretty utilitarian, regardless of accusations of unjustness."
And
2) "The KTM believes that it is impossible to prove the deterrence value the death penalty based on available statistics."
Actually I agree with the first part - the basis of the drug penalty for drug offences will have to be deterrence. Hard to imagine how retribution works out.
Regarding the second, that is why I said we must be careful about using these studies. The various models used in the journals are actually quite sophisticated. It is true that what the United States have is the advantage of having moratorium on the death penalty. This makes it somewhat easier to compare with rates before, after and during the moratorium.In that sense, Singapore having no such before and after data makes it "impossible" to prove - at least prove it the way the North American studies have done.
But to say that it a study will not be useful with any model will I think be somewhat misleading. We can compare our crimes rates with other countries using some of the models in the journals. The economics of it is too complex for me, but I am willing to bet that it can be convincing if one good academic in one of our universities look at the data (provided by the state) seriously. I think such studies are never by conclusive - society changes over time. I am pretty sure the death penalty had great deterrence effect for theft in times of old - now we no longer have that.
---
Okay now for the more contentious point about the "mandatory"/"crimes of passion" argument. You spoke about individuals acting out of their personal sense of justice within the system. I think that is actually an argument for further discretion - it is discretion within the system that allow people to act like that.
Besides, the usual argument is that usually, we appreciate the fact that there are lots of different types of criminals. In our criminal justice system, we look at the persons' previous criminal convictions, reasons why he did this and that, for sentencing purposes. The mandatory nature treats all such criminals alike. Both the man who killed his wife in a spate of jealously (say the defence is not made out) without any criminal record is treated the same as a man who while robbing a bank, kills 10 security officers. I think that the death penalty while necessarily rigorous, needs to have final discretion with the Judge. Frankly, i am not too hung up on that. The PP usually do not go to trial unless they are convinced they can win.
What I am hung about is the discussion about reasonable doubt. The last point is that with regards to the standard of proof for drug offences. This have been discussed in great detail in the comments in FN2, FN3. At the end of the day, this is like the golden standard - reasonable doubt. If you got reasonable doubt, you don't hang people. Maybe its not that important to some people to have ISO9001 but from what I learn, if you have doubts, you try not to go ahead (when going ahead is irreversible). There is also the sense that justice must be seen to be done. A higher standard will assure all that.
Posted by Teh Si | November 20, 2007 2:07 AM
Teh Si,
We can compare our crimes rates with other countries using some of the models in the journals ... I think such studies are never by conclusive - society changes over time.
It's not just a matter of societal values changing over time. Singapore is structurally very different from other countries also and crime rates are a function of many factors, not just the deterrence effect of the death penalty.
For example, if you will check the statistics on executions in Singapore, you will find a sudden spike in the 90s. If the KTM is not wrong, it's not that we started sentencing more people to death. It's just that this was a result of the former CJ Yung took office and started clearing up the backlogs. So things change even in the administration of justice -- and you claimed that how quickly executions are executed (pardon the pun) actually matters?
Too many uncontrolled factors. How to make any real conclusions? :-P
Okay now for the more contentious point about the "mandatory"/"crimes of passion" argument .... The last point is that with regards to the standard of proof for drug offences.
Not sure if there are fundamental disagreements here, but point is: if you want to take issue with mandatory sentencing or the lower burden of proof for trafficking, then be more specific lah. The KTM believes that crimes of passion are a bad example 'cos that's probably sufficient discretion already (but that's just the KTM's opinion, and he might be wrong).
Posted by Kway Teow Man | November 20, 2007 11:19 AM
"but point is: if you want to take issue with mandatory sentencing or the lower burden of proof for trafficking, then be more specific lah."
I know... that's why PS mah.. supposed to ensure that the anti-death penalty people don't come and any hell whack me. :)
Posted by Teh Si | November 20, 2007 4:27 PM
Teh Si,
Ultimately, it boils down to a matter of choice on what perspective to take. We can argue till the cows come home on whether the utilitarian perspective or "humanistic" perspective is better. I believe that each perspective has strengths and one is not necessarily better than the other.
Reconsidering the issue of the death penalty with both KTM's and your comments, I'm going to shift my opposition towards the death penalty. The reason is because it now appears to me that the chief problem is not the tool itself but rather, how usage of the tool is being informed. Indeed, as the KTM rightly pointed out, the DPP doesn't have to press for murder, the defending lawyer can convince the judge that the DPP is wrong in classifying a killing as murder and the judge has the ability to make the discretion.
Opponents of mandatory death penalty must be able to see that they too are arguing for a "mandatory" case, that is, a mandatory non death penalty punishment. To argue against a blanket solution with another hardly makes for a convincing argument. This is the trap I realised I fell into in arguing against a mandatory death penalty. So, the death penalty can stay but the spotlight should be cast on the criteria used by a prosector to determine what charge to press. I don't think it's fair for the prosecutor's hands to be tied when an extremely harsh punishment is required but at the same time, I can't help but worry that the death penalty is being meted out for a crime that might not really warrant one.
Posted by Aaron | November 21, 2007 11:29 AM
" rather, how usage of the tool is being informed. Indeed, as the KTM rightly pointed out, the DPP doesn't have to press for murder, the defending lawyer can convince the judge that the DPP is wrong in classifying a killing as murder and the judge has the ability to make the discretion."
Well, as I said above, i responded somewhat summarily. The above interpretation of what KTM said is only true to a certain extent. The discretion of framing a charge does not lie with the Judge but lies with the PP. For reasons of the constitution, even if the judge disagree with the use of prosecution discretion - he cannot overturn a conviction/amend charge. Regarding the PP, I doubt we have to worry about the PP in this debate. That is all in terms of framing charges. PP have been framing charges since time immemorial.
What the judge has is sentencing discretion in the usual case but not in the death penalty case. I think we should focus on that. Pardon me, if I confuse anyone with being unclear - there is already a discretion for the charge that the PP has. That was the example KTM gave saying that will make the system work and no need to make it voluntary. I said that to say PP discretion good should be an argument to give the Judge discretion too because discretion cannot be said to be bad in one instance and bad in another. I think KTM meant when the judge could disagree - he probably mean it that the judge could disagree as to the fact the guy indeed committed murder - not that the prosecution charged that guy for murder. The distinction is thin but crucial.
Sorry for the delayed reply. Up to my neck and choking. I am sure you too. :)
Posted by Teh Si | November 23, 2007 1:13 AM
Actually, after re-reeading my comment, I have been too polite. The above quote was in no way true - the charge is generally a PP thing, not a judge thing except in rather limited circumstances. But all these are small details really. :)
Posted by Teh Si | November 23, 2007 1:16 AM
Personally, I think it is just ridiculous to think of the death penalty as a law and justice issue as Singapore ambassador to UN voiced out. The taking of a life is essentially an issue of human rights and it's absolutely absurd to be twisting words the way Singapore is doing.
Posted by Juliet | December 3, 2007 9:06 PM
I think he called it a "criminal justice" issue. I believe.that term is selected as a means of 'characterization' - that is to say, it is choosen in order to ground the argument for "sovereignty" in. This is to say it is something that is local - that is to be governed within the four walls of the nation-state. On the other hand, if you (and most of the world) see it as "human rights" then you will think it has more of an international/universal element - so there is more of an "international" thing where other states might compel other states to 'follow' vis-a-vis the UN.
Characterisation seen this way is merely a method to compel others to follow this or that school of thought. Besides, even if you follow the traditional school of thought that it is possible to logically 'classify' things into this or that box, I think neither characterization precludes the other.
The better question perhaps is then which characterization serves your ends best and which characterization is likely to succeed. I think that matters in Singapore should be settled within Singapore on a logical basis of utility, regardless of what the world thinks.
Posted by Teh Si | December 4, 2007 5:18 PM