Social Issue: Capital Punishment essay
Deprivation of life of a person who crossed certain rules (for example, the custom of blood feud) is known long before the emergence of the state: historically, it was the first type of criminal punishment. However, the whole history of criminal law, except for certain periods, shows a tendency to limit its application. In the present period, there are countries that abolished capital punishment, and there are those that apply it quite actively. The debates between its supporters and opponents go on continuously in both kinds of countries. The discussion involves not only lawyers, but also politicians, philosophers, sociologists, economists, writers, representatives of various confessions, etc. It is also important that the deprivation of life of a guilty person is not simply a form of criminal punishment, but its measure. This term is polysemous, and serves, in particular, to indicate the limit of something. The limit of criminal law effects sets the system (“ladder”) of punishment in general. It is not arbitrary, but conditioned by the essence of punishment which is manifested in it with all its clarity. Thus, the value of research on capital punishment as a social and law enforcement problem cannot be overestimated and the debates on it fit the overall field of society.
In considering this issue, the researcher should like to be guided by two basic principles: justice and humanism. The first aspect can be considered necessary as the principle of justice is a fundamental principle at sentencing, while the principle of humanism is a kind of guarantee against the “overbalanced justice” and ensures fair attitude towards the convict.
Still, addressing the principle of humanity, scientists, authors of scientific publications and society in general being represented by ordinary citizens express different viewpoints: some believe that life imprisonment and deprivation of liberty for long terms are more humane measures of criminal punishment than death penalty, while others, on the contrary, believe that death penalty is more humane than life imprisonment. The first ones explain their views by the reason that death penalty not only deprives a person of one’s right to life but also inflicts physical and mental sufferings to the convicted that are incomparable with the sufferings of victims (Colwell, 2002). The second ones rationalize their point of view by the fact that in its essence, life imprisonment is just a lengthy and ineffective torture, while death penalty is carried out immediately (Cohen-Cole et al., 2009).
In the past, the attitude toward death and death penalty in many nations was different from today. Although executions were public and corpses and body parts of the executed were exposed to intimidation, they did not shock, did not cause disgust or protest, and the role of executioner was even considered honorable (Ekland-Olson & Dirks, 2011). The excursus into the history of legislation, in particular made by Steiker & Steiker (2010) clearly illustrates the fact that the capital punishment in the criminal policy of the state is losing its significance with the development of public relations. The detailed and neutralized approach of the researchers to tracing the evolution of social attitude towards capital punishment distinguishes the article from the flow of non-scholarly sources and shows the growing opposition to the capital punishment as one of the mainstream trends in the contemporary culture. Thus, the transformation of the capital punishment as a form of criminal punishment is largely subject to the current political, economic and social changes in the society.
It should also be noted that the process of the development of the death penalty was largely influenced by the circumstances of subjective will, when the death penalty, its cancellation and other issues associated with the practical implementation of this type of punishment were based on individual persons’ objective assessment of a number of issues of the criminal policy of the state (Steiker & Steiker, 2010; Fisher & Pratt, 2006). Its legal nature often directly depended on the factors listed above imposing its mark not only on the prevalence of this phenomenon at a certain stage of development of the society, but also directly on determination of its content. In particular it concerns the kinds of capital punishment, categories of crimes it may be assigned for, etc. All this tells about the subjective-objective nature of the origin of the death penalty, with the prevalence of objective principle over subjective is only characteristic of the last quarter of the 20th and early 21st century.
In particular, T.Sellin conducted a study of the impact of death penalty on the dynamics of US crime rates and concluded that both in states where death penalty was abolished and in states where it was applied, the number of murders remained at the same level (Cohen-Cole et al., 2009). Thus, death penalty seemed to have no deterrent effect on criminals. Basing on Sellin’s methodology, UN experts conducted similar studies in several countries, and as a result of these investigations it was confirmed that the murder rate did not depend on whether capital punishment is present in the laws of the country or not (Ekland-Olson & Dirks, 2011). However, some scholars reject Sellin’s method and insist on large deterrent effect of capital punishment on such social categories as criminals, potential criminals, adolescents, and other risk groups.
Indeed, after a rather long evolutionary period, having formed as an independent criminal law phenomenon, the capital punishment in its actual application at the modern stage can render an individually preventive impact on society. In particular, sociological studies have shown that it is the fear of punishment that keeps 14-24% of adult citizens from the committing a crime (Cohen-Cole et al., 2009). However, generally preventive effect of this type of punishment is possible only in the case of compatibility of its application to the crime level, publicity of the death penalty, increase of the number of crimes for which it can be applied. Meanwhile, the situation where all the components could reflect in reality is completely excluded. The current political situation, the level of social justice, humanization of the criminal law shows exactly the opposite process. Each of the criteria for the death penalty has a strong tendency to their reduction in the history of social development (Steiker & Steiker, 2010; Fisher & Pratt, 2006). Moreover, public exposure of this kind of punishment today is completely excluded in modern society (at least in its European part). All other factors contributing to generally preventive effect of the death penalty subject to increasing criticism from the side of the society and organizations on protecting human rights, resulting in a tendency to their reduction in the criminal law.
Basing on this, the following two ways of attempting to improve the social situation could be recommended. First, there is no evidence that the capital punishment is effective in combating crime, but there are many effective ways to prevent crime. Indeed, the state applies criminal sanctions as a means of self-defense if it has no other way to make a person unhazardous to society. But at the same time, it should seek to minimize the likelihood of applying this punishment (or more precisely, the likelihood of a situation in which this penalty has to be applied) and use the methods that are the least threatening human life and health. Since crime is multifaceted and profound, which is conditioned by a number of reasons, the measures to combat it must also be complex.
Second, there should be two types of higher punishment simultaneously: life imprisonment and the death penalty. But the courts should only sentence the convicted to higher punishment, and the sentence should not specify what punishment is to be applied, death penalty or life imprisonment. In this case, the convicted himself makes the choice. It is the convicted criminal who after the verdict of the highest measure of punishment must decide what he prefers: spending the rest of his life in jail or bring the life to an end. This solution immediately relieves a lot of problems. For example, it is impossible to blame the society for deprivation of lives of others. It is not the society that makes this decision.
These approaches to solving the discussed social issue involve various methodologies for sociological research. The methodological basis of research of various aspects of the death penalty issue is general scientific, historical, comparative-legal, formal logic, and system-structural methods of research. The empirical basis can include: the materials of judicial practice and the results of opinion polls on the effectiveness of punishment in the form of death penalty and life imprisonment, the data on the practice of correctional colonies of special regime in which prisoners are serving sentences of life imprisonment, statistics on the number of murders in states holding the opposite position on the issue, and the analysis of their legislation, the analysis of the effectiveness of measures to raise living standards as a way to prevent the growth of crime, investigation of the criminal personality and psychology of the criminals committing heavy crimes by interviewing, longitudinal studies of trends in the commission of heavy crimes to identify the causes of the formation of a criminal personality, as well as tracing the behavior of criminals throughout the sentence serving or waiting for the sentence and after release in the case of a pardon.
In general, researches using the aforementioned methods may constitute a scientific study aimed at the development of regulations, which together can be regarded as a compromise solution to the question of the capital punishment. The conclusions and suggestions may be used in conducting similar studies on the effectiveness/non-effectiveness, legitimacy/illegitimacy of the capital punishment, in attempts of a complex study of the problems associated with the regulation of the death penalty taking into account its legal status as an exceptional form of punishment for the improvement of criminal law and its practice, in shaping public opinion about the capital punishment, etc.
