Capital Punishment

A Hazard to a Sustainable Criminal Justice System?

Lill Scherdin

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317169925
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho penal

As most jurisdictions move away from the death penalty, some remain strongly committed to it, while others hold on to it but use it sparingly. This volume seeks to understand why, by examining the death penalty's relationship to state governance in the past and present. It also examines how international, transnational and national forces intersect in order to understand the possibilities of future death penalty abolition. The chapters cover the USA - the only western democracy that still uses the death penalty - and Asia - the site of some 90 per cent of all executions. Also included are discussions of the death penalty in Islam and its practice in selected Muslim majority countries. There is also a comparative chapter departing from the response to the mass killings in Norway in 2011. Leading experts in law, criminology and human rights combine theory and empirical research to further our understanding of the relationships between ways of governance, the role of leadership and the death penalty practices. This book questions whether the death penalty in and of itself is a hazard to a sustainable development of criminal justice. It is an invaluable resource for all those researching and campaigning for the global abolition of capital punishment.

PART I
Governance and the Death Penalty

Chapter 1
The Death Penalty: A Hazard to a Sustainable Development of Criminal Justice?

Lill Scherdin¹

The terrorist attack on Norway in 2011 struck at the very core of the Norwegian governing power as well as at our young and vulnerable. The gruesome details are described in the Foreword by Knut Storberget, the Minister of Justice at the time, and in Chapter 2 by Nils Christie. The first part of the attack destroyed the offices of the prime minister and several other central ministries: eight people died. The second part of the attack targeted the ruling party’s youth league – killing 69 children and adults (some as young as 14 years old). The assassin’s explicit intention was to eradicate the seeds of Norway’s social democratic political future, to radically change the democratic form of government in Norway and to replace it with totalitarian rule. It was not just the most gruesome crime; it was a crimen majestatis, i.e., a crime against the heads of government or the state itself. The prime minister came to no harm, but if ever there was the ultimate test of a criminal justice system without the death penalty, this was it. Yet there were no demands for the death penalty by any professional or citizen group, by any political party or by the government itself.

This is in stark contrast with the role the death penalty played in the aftermath of Timothy McVeigh’s bombing in Oklahoma, after the sarin gas attacks in the Tokyo underground, and most comparably, in the aftermath of the attacks of 9/11 in the USA.

It is also in stark contrast with the way that crimen majestatis, and particularly dreadful murders, have been punished throughout most of world history, including in the Norwegian past. Governing without the death penalty has a short history – even in the west.

The death penalty was for centuries an ordinary and largely uncontested tool for the exercise of government power (Garland 2014). How then is it that Europe has turned its back on this punishment, and how is it that the Norwegian government and its people, in the face of such an atrocity, rejected any call for the death penalty? What characterizes the sustainability of a moderate criminal justice system with no death penalty, in the face of events that in many societies would lead to moral outrage immediately crystallizing into a cry for the death penalty? How is it that states move from having such pride in the spectacle of the death penalty as an expression of their identity and might, to a pride in not having it? Indeed, many states are seeing their core identity defined by the very act of stepping back from it. They express something central about their state when recoiling both from taking the life of a human being who is already pacified and under state control, and from asking or ordering other citizens – human beings – to kill someone already under state control.

The sustainability perspective tentatively explored in this chapter is inspired by, and combines knowledge from, three different but interrelated fields of comparative research. Although largely developed in the west, I suggest that the findings of these research traditions might also be highly relevant for understanding differences in governance through punishment – including the death penalty – in Asia and in countries with Muslim majority populations. This book invites further exploration along such lines. The first of these research traditions arises out of studies of holocaust and genocides, the second from historical and sociological studies of the interrelationships between political economic governance and governance through punishment, and the third tradition from studies of how different types of harms or risks are seen and tackled in differently governed societies.

This chapter will be a step-by-step exploration of such a sustainability perspective.

The Backdrop: Conditions for Empathy

An important backdrop to exploring the sustainability perspective is understanding the situational conditions in which people are willing to inflict pain on others, for example in the form of severe punishments, including the death penalty. Much of this research has its origin in genocide and holocaust research and in social-psychological experiments inspired by these (Christie 1952, Milgram 1974, Zimbardo 2007). One initial finding was that if social situations were construed in certain ways, normal people could be led to deliver limitless and deadly amounts of pain to others. Another main finding was that it becomes more difficult to inflict pain or punishment on others the more you are able to see them as people like yourself. When this happens, everyday norms of behaviour towards others kick in and might reduce or prevent extreme pain infliction. Thus the formation of social situations, indeed of whole societies, where there are great distances between people – between different classes, castes, ethnicities, religions, genders, etc. – might also generate societies where people are more likely to perceive others as fundamentally different from themselves, both rationally and morally. This leads to less empathy with their situation, and therefore fewer reservations about meting out severe pain to them (ibid.). From this it can for example be hypothesized that there is likely to be more pain infliction in societies characterized by inequality and distance, provided that institutionally there are few obstacles between the dominant groups’ inclination to define new troublesome acts as punishable crimes, or old crimes as deserving more severe punishment, and the enactment of new penal laws (Christie 1981, 1985, 1993). This leads us to the research that explores whether this might indeed be so in ‘the real world’ of today.

Understanding Why States Differ in Governance Through Punishment

The quest to understand why states differ in governance through punishment, including the death penalty, has been spurred by the sudden and fast-widening gap between the criminal justice practices of Europe and those of the USA from the start of the 1980s. States in the USA increased their use of the death penalty, while European countries totally eradicated its use. The use of prisons in the USA soon increased to a level five to ten times higher than in Europe. This rise in incarceration was accompanied by a rise in capital penalty sentences that did not peak until 1996 with 315, and a rise in executions (especially in the southern states) that did not peak until 1999 with 98 (DPIC 2013). This gigantic and all too real ‘incarceration experiment’ and the sharp rise in state killings, have both had dramatic consequences – some intended, but frighteningly many unintended. The massive suffering, the individual, social, cultural and structural ‘collateral damage’ of these decades of US governance through punishment, gradually comes into view. Because of it, comparative criminology has acquired essential insights into the relationships between state governance, crime, and punishment.

The dramatic ‘in-your-face’ differences within the west between the two sides of the Atlantic reduced the appeal of facile essentialist, orientalist or occidental ‘comparative’ approaches. More nuanced, complicated approaches were needed, leading to sociological models of increasing complexity for comparison. It was necessary to keep open ways to understand the uniqueness of each state or locality as it had developed historically, and not to lose sight of how international or transnational forces might intersect with local ones.

Theorizing about relationships between state governance, crime and punishment is classic in sociology. Various versions of critical criminology in particular have kept this tradition very much alive. However, it was not until the dramatic split between Europe and the USA in the politics and practices of punishment that a wave of comparative research with this focus gained sustained attention in mainstream criminology. The seminal works of Nils Christie, David Garland, David Nelken and Piers Beirne (Christie 1993, 2004, Garland 1990, 2001, Beirne and Nelken 1997) framed this comparative field and gave urgency and meaning to the development of the more concrete quantitative studies related below.

To understand the immense increase in incarceration Beckett and Western (2001) did an early study using data from 32 states in the USA for the years 1975, 1985 and 1995. Later, Downes and Hansen (2007) did basically the same study with data from 18 ‘capitalistic democracies’, most of them in Europe. Tapio Lappi-Seppälä (2008) used a large compilation of data from a series of international surveys, including data on crime (victimization and official statistics on crime and incarceration), data from social, economic and political indicators, and data on public sentiments from the European Social Surveys and World Values Surveys. He included East-European states, and has subsequently incorporated many countries from outside the west. Cavadino and Dignan (2006) did an in-depth study of 12 capitalist democracies, including Japan. Many others have followed: too many to address. I depart from these in order to introduce central perspectives and findings.

No Systematic Relationship between Incarceration, Death Penalty and Crime

Surprisingly for many in mainstream criminology, all these studies showed the same results. They found no clear, systematic relationship between crime and punishment in the form of incarceration numbers. For the most part, the ups and downs of incarceration did not vary systematically with the ups and downs of crime, when controlled for relevant factors. Indeed, comparison of states in the USA showed that those with the most incarceration saw the smallest fall in crime. As to the case of New York (well known for its large decreases in crime), one fact is clear: such decreases were not due to an overall increase of incarceration, nor to the use of capital punishment (Jacobson 2005, Zimring 2007). In general increased incarceration had no systematic effect on crime.² This does not mean that a further decrease from the lowest levels of punishment studied, e.g., in the Scandinavian countries and Japan, to a level of no punishment at all, would render the same result. But it does mean that those in favour of punishment levels considerably above the penal regimes with the lowest punishments, have no scientific grounds for believing that increasing prison expenditure, prison terms or the pain inflicted will lead to less crime.

As for the death penalty, a wealth of deterrence research studies has been conducted over the last decades. These studies have subsequently been incorporated into grand meta-studies of ever more complexity. In 2012 these were re-evaluated by the National Research Council of the National Academies (NRCNA). They found no scientific basis for claiming anything about the effects of death penalty, so there was no support for the claim that the death penalty had greater deterrent effect than long-term imprisonment (NRCNA 2012).

The lack of deterrent effect of the death penalty as against long prison terms for homicide is not limited to the sphere of western civilization, as some non-western death penalty retentionist governments insist. David Greenberg and Valerie West found in a worldwide study of 193 countries that there was no systematic relationship between having, or using the death penalty and trends in homicide. Although there were exceptions, they also found a positive statistical relationship between incarceration and the death penalty. For states that had the death penalty, those that proportionately imprisoned more of their citizens were also likely to kill more of them (Greenberg and West 2008).

To further explore the death penalty’s possible deterrent effect in Asia, Franklin Zimring, Jeffrey Fagan and David Johnson did a comparative study of Singapore and Hong Kong in 2009: Executions, Deterrence and Homicide: A Tale of Two Cities. The tale they told was that these two jurisdictions were as similar as is possible in a ‘natural experiment’. They were similar in scale, density, geography, demographics, literacy, culture, historical and economic development, and in recent growth in population (Hong Kong is a bit larger and 95 per cent Chinese, compared with 75 per cent Chinese in Singapore). When it came to the death penalty, however, they were totally different. Hong Kong had not had an execution for a generation and abolished the death penalty in 1993, thus having no executions throughout the 35 years period of comparison. Singapore, on the other hand, had an execution rate close to one per million per year until there was an explosive twentyfold increase in the middle of the nineties (1994–96), escalating to a level of execution that was probably the highest per capita in the world. It was higher than that of the county with most executions in the most-executing state in the USA at the time: Harris County in Texas. It was probably higher than in China, which was in the middle of its most violent ‘hard strike’ campaigns. Then over the next 11 years Singapore’s executions fell back by almost 95 per cent. Singapore had mandatory death for murder, and a short time between conviction and execution. Thus high predictability and certainty gave ideal conditions for measuring deterrent effect (ibid.).

So what happened to the homicide rates in the two cities? They were remarkably similar, following each other, sloping downwards, albeit with ups and downs. Despite all Singapore’s killings, there was a remarkable lack of effect on the homicide curve.

In conclusion, one found no greater deterrent effect of the death penalty vis-à-vis long-term imprisonment, when comparing states with and without the death penalty in the USA. No such effect was found in quantitative studies worldwide, and no such effect was found in the clear-cut, dramatic ‘Tale of Two Cities’ in Asia (ibid.). At least when focusing on deterrence of homicides, one can claim that this research sets us free to choose a moderate criminal justice system with no death penalty without fear: such a system can be sustainable.

This is what many criminologists, with Nils Christie in Scandinavia in the lead, claimed years ago, with considerable impact on penal moderation in the Nordic countries (Christie 1981, 1993, 2004). The new quantitative and qualitative studies support them.

Different Political-Economic Governance, Different Prison and Death Penalty Policies

If they are not related to crime, how can one understand extreme increases in imprisonment and the death penalty, e.g. in the USA? And how can we understand the opposite: What has made a moderate criminal justice system with no death penalty sustainable in other states in the same period? To understand the conditions for the sustainability of a moderate criminal justice system both in a balanced relationship to other part of the state, and over time, we shall explore: What differences in how states are governed generally, make a difference for the sustainability of criminal justice systems with or without the death penalty?

For most of the capitalist economies in the west the last decades of the twentieth century were times of global economic changes, beginning with the 1970s recession. They saw the contraction or collapse of manufacturing industries, with serious increases in unemployment, and the flight of investment overseas. This is referred to as the end of the Fordist era of western capitalism. These were brutal societal changes. Business elites still made money from increased salaries and investments abroad, creative financial products and global financial trade, but local and smaller businesses suffered, and public employees and blue-collar workers lost their jobs or had their salaries cut. Many states saw increases in inequality, albeit to different degrees (Lacey 2008, Wilkinson and Pickett 2011).

With this in mind we return to the comparisons between states in the USA and also between capitalist democracies more broadly from 1975 to the turn of the century. At any particular time throughout the period, all the comparative research studies found that the greater the inequality, and the higher the percentage of poverty and minorities, the more people there were in prison. They found that the larger the percentage of GNP states allocated to social welfare, the lower the incarceration rate in the state (Beckett and Western 2001, Cavadino and Dignan 2006, Downes and Hansen 2007, Lappi-Seppälä 2008). Beckett and Western found that these relationships got stronger over time and were strongest in 1995 (Beckett and Western 2001).

A primary finding of Wilkinson and Pickett 2011 is that the greater the inequality, the more incarceration there is, and the greater the likelihood that the state will use the death penalty. They point out that there are different ways to bring about less inequality. Most states that do well as to equality have comparatively higher social and welfare expenditures. However, the state of New Hampshire (USA) is cited as a state that achieves a great degree of equality through more equality in market income (income before taxes) though with low social, health and welfare expenditures (Wilkinson and Pickett 2011: 241).

One may question whether equality based on market income, with minimal redistribution schemes, is as sustainable in times of fluctuating international markets, when more people suffer hardship and can no longer rely on the market to survive. In other words, the question is whether sustainable equality over time in any state must rely on some decommodification measures, i.e., redistributive measures that allow people to be not entirely dependent on markets; when they are too young, too old, too sick, or for some other reason unable to find work. Similarly, when one is unable to find work combinable with care giving, or when one lacks the re-education to fit a changing market.

Other important and often underestimated forms of decommodification, which are less typical of western democratic capitalist societies, can characterize more collective and traditional societies. Today, the sheer size of transnational remittances from workers in the diaspora to families in developing countries is vastly important as a form of decommodification. I will, however, continue to f...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Contents
• List of Figures and Tables
• List of Contributors
• Foreword
• Acknowledgements
• Introduction
• Part I Governance and the Death Penalty
• Part II The USA
• Part III Asia
• Part IV Countries with Majority Muslim Populations
• Part V Reflection and Outlook
• Index