Death penalty-2: The case against the death penalty

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YEN MAKABENTA

First Read
OPPONENTS of the proposed reimposition of the death penalty should draw confidence about the strength of their case, from the fact that proponents of House Bill 4727 have been visited by second and third thoughts about their baby.

After loudly designating 21 heinous crimes for punishment by death, the House majority has now reduced the capital crimes to just one: drug-related crimes.

Really odious felonies like plunder, treason and rape were the first to be stricken from the list. Some politicians will heave a sigh of relief.

Poor Senator Leila de Lima must wrestle with one more worry. Is the administration rushing the death penalty bill in time for her trial, conviction and sentencing on drug-related charges?


With only one crime still standing for execution, there might as well be no death penalty at all.

In fact, there should be no death penalty, says the 1987 Constitution. It’s only Speaker Pantaleon Alvarez who is insisting that there should be a law to restore the death penalty in our penal system.

Constitution bans the death penalty
In Article III, Section 19, the Constitution explicitly forbids the imposition of the death penalty. But lacking the courage of their convictions, the Charter framers also provided an exception.

Section 19 reads: “(1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall [the]death penalty be imposed, unless, for compelling reasons, involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua.”

Strangely, with the insertion of the still to-be-defined term “heinous crimes,” the Charter opened the door for ambivalence on the issue; successive administrations since then have played a she-loves-me-she-loves-me-not game with capital punishment.

But with President Rodrigo Duterte, it is plainly no game.

In December 2016, the House came up with House Bill 4727, which seeks to re-impose the death penalty for 21 heinous crimes. In February 2017, 21 became one heinous crime.

The most premeditated of murders
My research on capital punishment led me to some of the most persuasive treatises and studies on the argument for the abolition of the death penalty.

I want to acknowledge three works that have been helpful in shaping my thinking on the penalty. I recommend them for study by those of our legislators, whose minds are not yet set in stone.

These works are:
1. Reflections on the Guillotine, by Albert Camus

This is an extended essay written by the French philosopher and Nobel laureate in 1957. In the essay, Camus takes an uncompromising position for the abolition of the death penalty.

Camus’s main point in his argument against capital punishment is that it is ineffective. Camus points out that in countries where the death penalty has already been abandoned crime has not risen. He explains this by arguing that the world has changed so that capital punishment no longer serves as the deterrent that it may once have been.

Camus also argued that the threat of death is insufficient to prevent people from committing crimes as death is the common fate shared by all, regardless of guilt. He also believed that because most murders are not premeditated, no deterrent can be effective and in the case of premeditated murder the deterrent would be insufficient to stop those who have already decided to act.

Without serving a purpose, Camus argued that capital punishment is reduced to an act of revenge that only breeds further violence.

Camus also argued that capital punishment was inappropriate because by effecting revenge for grievances, it simultaneously hurts the family and loved ones of the convict in the same manner as those being avenged were hurt by the initial crime.

At the end of the essay, Camus proposed that France lead the way for the rest of the world by adopting a trial period of 10 years in which capital punishment is replaced with labor for life.

In 1981, the death penalty was abolished in France, the last execution having taken place four years earlier in Marseille.

Camus’s views were instrumental in the abolition of the death penalty in the whole of Europe.

Strange decisions by US court
2. Furman v. Georgia – by William J. Brennan, Jr.

In 1972, after a five- year moratorium, the US Supreme Court confronted the constitutionality of the death penalty in the case of Furman v. Georgia, with the majority holding that the death penalty, as administered, violated the Eighth Amendment prohibition against cruel and unusual punishment and the Fourteenth Amendment requirement of equal protection under the law.

Associate Justice William Brennan, Jr. argued that the death penalty was unconstitutional under any conditions.

In his opinion, Brennan wrote:

“It is denial of human dignity for the State arbitrarily to subject a person to an unusually severe punishment that society has indicated it does not regard as acceptable, and that cannot be shown to serve a penal purpose.

“The outstanding characteristic of our present practice of punishing criminals by death is the infrequency with which we resort to it. The evidence is conclusive that death is not the ordinary punishment for any crime.

“There is no substantial reason to believe that the punishment of death, as currently administered, is necessary for the protection of society. The only other purpose suggested, independent of protection of society, is retribution.

“The claim that death is a just punishment necessarily refers to the existence of certain public beliefs. The claim must be that for capital crimes, death alone comports with society’s notion of proper punishment.

“When the overwhelming number of criminals who commit capital crimes go to prison, it cannot be concluded that death serves the purpose of retribution more effectively than imprisonment.

“As the history of this country shows, our society wishes to prevent crime; we have no desire to kill criminals simply to get even with them.

“In sum…death is an unusually severe and degrading punishment; there is a strong probability that it is inflicted arbitrarily.

“There is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment.”

For the record, one justice, Potter Stewart, decided to change his vote four years later. That reversed the score in Gregg v. Georgia.

Backlash of the Right
3. “Vengeance and the erosion of law,” a chapter in the book, The Good Life: The Moral Individual in An Anti-moral World, by Cheryl Mendelson (Bloomsbury, London,2012). The author is a philosophy professor and lawyer.

The most recent in vintage, Mendelson’s work has been the most helpful for me, because it addresses the recent trend that moved American law toward harsher, longer punishment. Mendelson contends that the growth of cruelty and harshness in the law was part of the rightwing backlash against postwar liberalism.

The radical right believed in the propriety of cruelty against prisoners, and it has produced well-documented unhappy results. The US has become “the prison capital of the world.”

Mendelson wrote:
“The death penalty, after years of disuse, is applied almost exclusively to the poor, the stupid, the mad, and the broken and disproportionately to blacks.

“A system built on the principle that protection and exoneration of the innocent always takes precedence over the conviction of the guilty has been turned on its head.

“We make a fundamental error if we offer bereaved people the criminal’s suffering to comfort and satisfy them. Retaliation or talion justice—as morality and moral religion have taught for generations—is both illogical and, emotionally and morally, self-defeating.

“Emotionally, it deprives the victim of the real comforts of moral responses to these evils and offers in its place an inadequate, narcissistic gratification.”

Mendelson concludes the chapter with these words: “In a democratic society, the rule of law is a tool of moral justice against power; it exists to serve this purpose. When it fails to serve it, it ceases to be law and its claim on our obedience is eroded.”

Filipino legislators should take care that in deciding on the death penalty issue, the Philippine legal system is not carried away by the same cruel wave that has scarred American society.

yenmakabenta@yahoo.com

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2 Comments

  1. Dudley Sharp on

    Rebuttal to Mendelson.

    The death penalty is sought for justice, as all sanctions are. Justice may be the greatest of all human goals and achievemets.

    The death penalty cannot be vengeance when due process is in place. No one connected to the murder can decide the verdict or the sentence, both of which are the sole province of the judge or jury, neither of which has a vengeance component or foundation.

    The move for longer sentences was a direct effort to protect more innocent people. Such seems to have escaped Mendelson.

    In 1991, the US violent crime rate was 758, with the murder rate at 9.8 and the property crime rate of 5,140.

    After a huge increase in prison construction and incarceration rates, the violent crime rate had dropped in half to 373, the murder rate dropped nearly 60% to 4.4, property crime dropped by 50% to 2574%, by 2014.

    It is the opposite of cruelty, when you spare so many more innocents, by properly sanctioning the guilty.

    Mendelson appears clueless.

    Mendelson seems to believe that the rich, the brilliant, the most rational and most stable should be sent to death.

    News flash to Mendelson, as a general rule, those are not the ones committing capital murder.

    Mendelson thinks that blacks are, disproportionately, sentenced to death. That is only because Mendelson, irrationally, is looking at population counts as opposed to the rates of committing capital murder, the proper barometer.

    White murderers are twice as likely to be executed as are black murderers and are executed at a 41% higher rate than are black death row inmates.