Abolition of Capital Punishment
History
With the mitigation of the law as to punishment, agitation against the theory of capital punishment has lost much of its force. But many European and American writers, and some English writers and associations, advocate the The question of abolition. total abolition of the death punishment. The ultimate argument of the opponents of capital punishment is that society has no right to take the life of any one of its members on 282 any ground.
But they also object to capital punishment:
- on religious grounds, because it may deprive the sinner of his full time for repentance;
- on medical grounds, because homicide is usually if not always evidence of mental disease or irresponsibility;
- on utilitarian grounds, because capital punishment is not really deterrent, and is actually inflicted in so few instances that criminals discount the risks of undergoing it;
- on legal grounds, i.e. that the sentence being irrevocable and the evidence often circumstantial only, there is great risk of gross injustice in executing a person convicted of murder;
- on moral grounds, that the punishment does not fit the case nor effect the reformation of the offender.
It is to be noted that the English Children Act 1908 expressly forbids the pronouncing or recording the sentence of death against any person under the age of sixteen (s. 103).
The punishment is probably retained, partly from ingrained habit, partly from a sense of its appropriateness for certain crimes, but also that the ultima ratio may be available in cases of sufficient gravity to the commonweal. The apparent discrepancy between the number of trials and convictions for murder is not in England any evidence of hostility on the part of juries to capital punishment, which has on the whole lessened rather than increased since the middle of the 19th century. It is rarely if ever necessary in England, though common in America, to question the jurors as to their views on capital punishment.
The reasons for the comparatively small number of convictions for murder seem to be:
- that court and jury in a capital case lean in favorem vitae, and if the offence falls short of the full gravity of murder, conviction for manslaughter only results;
- that in the absence of a statutory classification of the degrees of murder, the prerogative of mercy is exercised in cases falling short of the highest degree of gravity recognized by lawyers and by public opinion;
- that where the conviction rests on circumstantial evidence the sentence is not executed unless the circumstantial evidence is conclusive;
- that charges of infanticide against the mothers of illegitimate children are treated mercifully by judge and jury, and usually terminate in acquittal, or in a conviction of concealment of birth;
- that many persons tried as murderers are obviously insane;
- that coroners’ juries are somewhat recklessly free in returning inquisitions of murder without any evidence which would warrant the conviction of the person accused.
The medical doctrine, and that of Lombroso with respect to criminal atavism and irresponsibility, have probably tended to incline the public mind in favour of capital punishment, and Sir James Stephen and other eminent jurists have even been thereby tempted to advocate the execution of habitual criminals. It certainly seems strange that the community should feel bound carefully to preserve and tend a class of dangerous lunatics, and to give them, as Charles Kingsley says, “the finest air in England and the right to kill two gaolers a week.”
The whole question of capital punishment in the United Kingdom was considered by a royal commission appointed in 1864, which reported in 1866 (Parl. Pap., 1866, 10,438). The commission took the opinions of all the judges of the supreme courts in the United Kingdom and of many other eminent persons, and collected the laws of other countries so far as this was ascertainable. The commissioners differed on the question of the expediency of abolishing or retaining capital punishment, and did not report thereon.
But they recommended:
- that it should be restricted throughout the United Kingdom to high treason and murder;
- alteration of the law of homicide so as to classify homicides according to their gravity, and to confine capital punishment to murder in the first degree;
- modification of the law as to child murder so as to punish certain cases of infanticide as misdemeanours;
- authorizing judges to direct sentence of death to be recorded;
- the abolition—since carried out—of public executions.
Source: Encyclopedia Britannica (1911)
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