Exam Question 2015: Capital Punishment

You have been selected as a policy advisor to a prominent Member of Parliament

(MP). The MP for whom you work as an aide wants to reintroduce capital
punishment in New Zealand. She says that retentionist countries like the USA are
“the way of the future.” In debate, however, another MP has argued that the wheel of
progress turns in only one direction: toward abolitionism. Drawing upon the assigned
reading by Hood and lecture notes, which one is right? Citing Furman and Gregg,
briefly describe the history of the death penalty in America for your MP. Indicate
some of the key arguments in favour of the death penalty, and explain some of the
key arguments against it. Explain, too, some of the legal challenges (racial bias,
classes of death-eligible offenders, methods of execution, and international human
rights law) that might be levelled against the penalty if it is reintroduced.

Mock Exam Answer:

Capital Punishment is a government sanctioned practise where a person is killed by

the state due to a crime they have committed. The roots of capital punishment can
be traced as far back as 1754BC, in the Code of Hammurabi. The most common
methods of execution back in the day involved: boiling, drawn and quartered,
hanging, burning at the stake and beheading. In 1936, the last public execution
happened in America. Before this time, executions were a public spectacle and
executions were done in the open for anyone wanting to act as witnesses. Today,
countries such as Iran and Saudi Arabia continue to hold public executions. 90% of
executions in our world today stem from China, Iran, Iraq, Pakistan and the U.S.

Retentionist vs Abolitionist:
In 2007, the United Nations (U.N.) initiated a moratorium against the death penalty.
This moratorium seeks to encourage Retentionist countries (countries which still use
the death penalty) to either temporarily suspend or prohibit the use of the death
penalty. Although this moratorium is not legally binding (countries do not have to
follow through with this, the U.N. clearly outlines the moral and political aspects of
the usage of the death penalty as punishment for severe crimes. Abolitionist
countries such as New Zealand, have chosen to abolish the death penalty under the
Death Penalty act in 1989.
 Arguments: For and Against the death penalty:

Pro Death Penalty:

People who generally argue for the death penalty share the idea of Lex Talionis – an
eye for an eye. The idea stems from the fact that an individual has killed another
individual and therefore, that individual must also be killed (by the state). Individuals
who partake in retributive theories of punishment which involves equal severity or
proportionality of punishment for the crime committed are non-consequentialists
(based on the idea that the rightness or wrongness of a system or act depends at
least in part on something other than the non-moral goodness or badness of the
consequence). Thus, Retributivism argues that regardrdelss of the situation, the
offender has committed a crime which infringes on the victim’s rights which has
caused them harm. Therefore, their punishment must be proportional to the crime
they have committed (Just deserts). Furthermore, vengeance is the act of
implementing a punishment for the crime committed. In the case of the death
penalty, vengeance is committed by the state by committing the sentence of death to
the offender upon examination of all evidence and a verdict has been reached.

The Utilitarian principle suggests that it is vital to maximise happiness and wellbeing
of the greater population. When a crime is committed in particular, murder, the ability
to maximise happiness is withdrawn and the wellbeing of the greater population is
affected due the actions of a particular entity. When administering punishment, it is
not so much to seek out vengeance but, to implement a deterrence to others who
might commit that same crime thereby, benefitting the greater population in the
future. According to J.S. Mill’s Harm Principle, we have a duty to act appropriately
whenever our freedom is breached or taken away from us. Thus, the state acts in
such a way as to ensure that the offender is either incarcerated indefinitely or, is put
to death as an act of vengeance in order to uphold the utilitarian principle which
seeks to ensure the safety and wellbeing of the population.
Anti-Death Penalty:
When it comes to punishing others for their crimes, there is an ethical barbarity when
the punishment for crimes is capital punishment – death penalty. There is a never
ending cyclic argument. Does killing people tell people that killing is wrong. Is the
criminal justice system infallible when it comes to punishment by death? In January
2000, 13 innocent inmates were released from death row. Yet, 12 people were
executed at around the same time. George Ryan, the state Governor declared a
moratorium on executions. For every 9 inmates executed, 1 death row inmate was
exonerated. This shows that the criminal justice system is not infallible. It is
subjected to criticism by the U.N. and other abolitionist countries as well as several
human rights activists and organisation. In particular, Amnesty. Racism with the
criminal justice system is prominent. Between 1976 – 2004, 34% of executions in the
U.S. were black Americans. 80% were killed by the state for killing a white victim.
Defendants are 4.3x more likely to be charged with capital punishment for killing a
white victim and 1.1x more likely to be charged with capital punishment for killing a
black victim. When a person of colour is convicted, they are often lacking in
education and due to the social class that they are in, they may be unable to provide
themselves with a lawyer. Thus, the state provides them with a defense lawyer.
Alongside this, with a lack of funds, they may be unable to utilise the appeals
process when they are handed down the punishment of death. Thus, these people
are somewhat left to fend for themselves without any form of support or pathway for
appeal. There is often what is regarded as a “Moral Panic”. It is a condition that
arises when there is a threat to societal and moral values. This stems from a
Utilitarian way of thinking (black people threaten the wellbeing of the upper class and
white American and therefore, should be put to death). It can also be related to
retributivism and Lex Talionis whereby, the social norm for the general public is that
black people are killers and thus, they must be put to death if they murder anyone
from the population.

When Capital Punishment is used as a deterrence. There is little to no evidence to

suggest that Capital Punishment dissuades people from committing crime. If the
death penalty was implemented as a deterrent, we would see: less murders, the
police are significantly safer and there should be an overall decline in crime across
the country. However, there is no correlation between death penalty as a deterrent
and the rate of crime. In fact, there is actually more murders in retentionist countries
than those of abolitionist countries. Part of the reason is because most offenders
don’t really think about the repercussions of their actions. An effective punishment
must be certain swift and proportionate when punishment is being carried out. The
Death Penalty is a laborious and time consuming process that often involves shelling
out thousands of dollars for court costs, appeals and equipment to be used
(depending on the method of execution).

Trial by Fire is an article written by The New Yorker. It sheds light on the human
fallacies and how expert verdicts and evidence from scientists are ignored in favour
of those testimonies and verdicts within the criminal justice system. When a person
is charged with the death penalty, the state essentially murders the victims for their
crime. This is on the assumption that they are, in fact, guilty of the crime they have
committed. However, if there is binding evidence that says otherwise, the state must
hold off the execution. In the case of Trial by Fire, the defendant was sentenced to
death. However, expert analysis suggests that the defendant was, in fact, not guilty.
However, the state including the Governor, ignored the evidence, overthrown the
appeals and decided to execute. There is a certain amount of human fallacies
involved. The state prefers to listen to criminal justice as opposed to scientific
experts with evidence to suggest that the defendant was innocent.

The barbarity of capital punishment in terms of execution which can range from:
Electrocution by means of the electric chair, lethal injection, hanging, firing squad
and the gas chamber is a moral issue. An evil deed such as murder is not redeemed
by killing the offender. This is a moral problem and one that can only be solved by
changing the way we think. A problem in itself cannot be solved by utilising the same
method of thinking that was used when the problem was created.

Law Changes:
In America, there are currently 2673 inmates on death row. In the last year, 25
people were executed from the 29 states where capital punishment is legal. In New
Zealand, the Labour party abolished the death penalty for murder in 1941 however,
was reinstated by the National party in the 1950. The only crime punishable by death
in NZ at the time was for treason until the conception of the Abolition of the Death
Penalty act in the 1989. In the case Furman v. Georgia 1972, Furman was charged
with aggravated robbery which led to the death of an innocent person. His gun was
accidentally discharged because he tripped which led to the death. Thus, the 8th
amendment right was invoked (fair and just punishment). This led the courts rule that
the 8th amendment was violated and thus, the sentence of death was ruled out. This
was an extreme example of the human fallacy that can occur through wrongful
sentencing and conviction.

Moral Dilemmas:
The method of executions can stem from being fired upon by a firing team, strapped
to a chair and electrocuted or gassed, hung from the neck and stoned to death and
whilst these were all implemented as forms of execution, there is still a moral
dilemma when the state murders a defendant – regardless of whether they are guilty
or innocent. Murdering an innocent victim is already a cruel act frowned upon by
many nations. Yet, murdering the murderer will not solve anything. Restorative
justice principles suggest that the murderer must take responsibility for his actions,
must work together with the victim and community to rectify the wrong that was
done. However, by killing the murder, this doesn’t solve the problem. Resolution,
forgiveness and healing is a process and not an act (death penalty). The only way
forward is through abolition of the death penalty and to find alternative methods to
punish murderers for the crimes they have committed either through a restorative
way or by other means of punishment.

Exam Structure:

- History of Capital Punishment and Death Penalty

- Indicate key arguments for and against the death penalty and criticisms (Pro
DP: Lex Talionis – Retribution punishment proportional to the crime
committed, Utilitarian – for the greater good of society i.e. kill murderers looks
at Week 1 Utilitarianism maybe Mill’s Harm principle? and Vengeance – an
act of revenge looks at Week 2 Retribution -> can be countered with R.J. but
after offending, may be too late. Against: Ineffective deterrence due to length
of time, courts are racialist - biased and can be neglectful of certain groups,
financial cost of execution – court costs, appeals process and methods and
equipment required + supply and demand)
- Explain legal challenges
- Restorative Justice Ideas