The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrongdoer deserves it.
Whether or not death penalty in actual practice acts as a deterrent, cannot be statistically proved either way, because statistics as to how many potential murderers were deterred from committing murders, but for the existence of capital punishment for murder, are difficult, if not altogether impossible, to collect. Such statistics of deterred potential murderers are difficult to unravel as they remain hidden in the innermost recesses of their minds.
Retribution in the sense of reprobation – whether a totally rejected concept of punishment
Retribution in the sense of society’s reprobation for the worst of crimes, i. e., murder, is not an altogether outmoded concept. This view is held by many distinguished sociologists, jurists and judges.
Lord Justice Denning, Master of the Rolls of the Court of Appeal in England, appearing before the British Royal Commission on Capital Punishment, stated his views on this point as under:
“Punishment is the way in which society expresses its denunciation of wrong-doing; and in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else…. The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrongdoer deserves it.
Irrespective of whether it is a deterrent or not. That retribution is still socially acceptable function of punishment, was also the view expressed by Stewart, J., in Fur-man v. Georgia at page 389, as follows:
“…I would say only that I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The instinct for retribution is part of the nature of man. And channelling that instinct, in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve’, then there are sown the seeds of anarchy – of self-help, vigilante justice, and lynch law.”
Patrick Devlin, the eminent jurist and judge, in his book, “The Judge” emphasises the retributive aspect of the purpose of punishment and criminal justice, thus:
“I affirm that justice means retribution and nothing else. Vindictiveness is the emotional out flow of retribution and justice has no concern with that. But it is concerned with the measurement of deserts. The point was put lucidly and simply by the Vicar of Longton in a letter to The Times, from which with his permission I quote;
Firstly, far from pretending that retribution should have no place in our penal system, Mr. Levin should recognize that it is logically impossible to remove it. If it were removed, all punishments should be rendered unjust. What could be more immoral than to inflict imprisonment on a criminal for the sake of deterring others, if he does not deserve it? Or would it be justified to subject him to a compulsory attempt to reform which includes a denial of liberty unless, again he deserves it?”
Retribution and deterrence as the ends of capital punishment
Retribution and deterrence are not two divergent ends of capital punishment. They are convergent goals which ultimately merge into one. How these ends of punishment coalesce into one was described by the Law Commission of India, that:
“The retributive object of capital punishment has been the subject-matter of sharp attack at the hands of the abolitionists. We appreciate that many persons would regard the instinct of revenge as barbarous. How far it should form part of the penal philosophy in modern times win always remain a matter of controversy. No useful purpose will be served by a discussion as to whether the instinct of retribution is or is not commendable.
The fact remains, however, that whenever mere is a serious crime, the society feels a sense of disapprobation. If there is any element of retribution in the law, as administered now, it is not the instinct of the man of jungle but rather a refined evolution of that instinct the feeling prevails in the public is a fact of which notice is to be taken. The law does not encourage it, or exploit it for any undesirable ends. Rather, by reserving the death penalty for murder, and thus visiting this gravest crime with the gravest punishment, the law helps the element of retribution merge into the element of deterrence”. (Para 265 (18), 35th Report)
Earlier in 1949-1953, the British Royal Commission in Para. 59 of its Report spoke in a somewhat similar strain:
“We think it is reasonable to suppose that the deterrent force of capital punishment operates not only by affecting the conscious thoughts of individuals tempted to commit murder, but also by building up in the community, over a long period of time, a deep feeling of peculiar abhorrence for the crime of murder. The fact that men are hung for murder is one great reason why murder is considered so dreadful a crime. This widely diffused effect on the moral consciousness of society is impossible to assess, but it must be at least as important as any direct part which the death penalty may play as a deterrent in the calculations of potential murderers.”
According to Dr. Ernest Van Den Haaq, a New York psychologist and author, and a leading proponent of death penalty, “a very strong symbolic value” attaches to executions. “The motives for the death penalty may indeed include vengeance. Legal vengeance solidifies social solidarity against law-breakers and probably is the only alternative to the disruptive private revenge of those who feel harmed”. (See The Voice (USA) June 4, 1979.)
The views of Lloyd George, who was the Prime Minister of England during the First World War, have been referred to in the book “Capital Punishment” (1967) by Thorsten Sellin at page 65, as below:
“The first function of capital punishment is to give emphatic expression to society’s peculiar abhorrence of murder…. It too important that murder should be regarded with peculiar horror…. I believe that capital punishment does, in the present state of society, both express and sustain the sense of moral revulsion for murder.”
Abolitionist v. Retentionists of death penalty
While the Abolitionists look upon death penalty as something which is per se immoral and inhuman, the Retentionists apprehend that if we surrender even the risk of the last remaining horrifying deterrent by which to frighten the toughs of the underworld, we may easily tip the scales in favour of the anti-social hoodlums. They fear that abolition of capital punishment, will result in increase of murders motivated by greed, and in affable “crime passionelle”.
“It is feared”, wrote George A. Floris (Sunday Tribune, December 8, 1963), “the most devastating effects of the abolition will, however, show themselves in the realm of political murder. An adherent of political extremism is usually convinced that the victory of his cause is just round the corner. So, for him long term imprisonment holds no fear. He is confident that (he coming ascendancy of his friends will soon liberate him.”
To prove this proposition, Floris cites the instance of Von Papen’s Government who in September, 1932, reprieved the death sentence passed on two of Hitler’s storm-troopers for brutal killing of one of their political opponents. The Retentionists believe that the dismantling of the gallows will almost everywhere enhance the hit and run attacks on political opponents. On this premise, they argue that capital punishment is the most formidable safeguard against terrorism.
The argument cannot be rejected out of hand. A number of instances can be cited where abolitionist States feeling the Inadequacy of their penological Armour to combat politically motivated gangsterism, have retrieved and used their capital weapon which they had once thrown away. Despite their traditional abhorrence of death penalty, the Norwegians executed Major Vedkun Quisling after World War 11.
The Belgians, too, executed no less than 242 ‘collaborators’ and traitors after the liberation, although in their country, the death penalty was otiose since 1880.
In the aftermath of assassination of Prime Minister Bandernaike in 1959, Ceylon hurriedly reintroduced capital punishment for murder. Owing to similar considerations, Israel sanctioned death penalty for crimes committed against the Jewish people, and executed the notorious Jew-baiter, Adolf Eichmann in 1962.
In April 9, 1979, confronted with a wave of violent incidents after the signing of Egypt-Israel Peace Treaty, Israel sanctioned the use of death penalty “for acts of inhuman cruelty”.