As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Herman Mashaba, former Democratic Alliance (DA) mayor of Johannesburg who will launch his own political party later this month, is well-known for his Afrophobic and anti-immigrant utterances. Earlier this week he also reminded his followers that he supported the reintroduction of the death penalty, despite the fact that the Constitutional Court declared the death penalty unconstitutional and invalid. As there is no evidence that the death penalty has any deterrent effect, it is unclear why Mashaba would honestly support its reintroduction.
Support for the reintroduction of the death penalty is not based on fact or reason, but on emotion – a desire for revenge, dressed up as a desire to deter crime. To some extent, this is understandable, as violent crime is an emotive issue, leaving many people fearful and angry. (This is also why people seldom invoke the “innocent until proven guilty” mantra so beloved by politicians when a person is arrested for a gruesome murder.) It leaves people searching for an instant solution to a structural problem, and so they embrace fake solutions like the reintroduction of the death penalty.
A politician willing to ignore the facts could potentially benefit handsomely from exploiting such emotions, by falsely selling the death penalty as a deterrent to murder and other heinous crimes. Herman Mashaba appears to be such a politician.
While most people who support the death penalty are unlikely to be persuaded otherwise by rational arguments and by the relevant research (as some responses to this article will no doubt illustrate), I am nevertheless going to take a stab at discussing the research that demonstrate that the death penalty is not a deterrent in the manner hoped for by its proponents. Who knows, maybe I am wrong about supporters of the death penalty. And even if I am not wrong, it cannot do any harm to point out why the support for the death penalty is based on the false assumption that it deters violent crime.
As any law students will be able to tell you, in 1995, in S v Makwanyane, the Constitutional Court declared the death penalty unconstitutional and invalid. The various judgments contain many arguments pointing out why the death penalty was immoral, inhumane, arbitrary and unfair, and why it infringed on many of the rights guaranteed in the Bill of Rights. Of these, the argument that the death penalty is imposed in an arbitrary and potentially discriminatory manner is particularly important in the South African context. As Justice Arthur Chaskalson pointed out in Makwanyane:
The differences that exist between rich and poor, between good and bad prosecutions, between good and bad defence, between severe and lenient judges, between judges who favour capital punishment and those who do not, and the subjective attitudes that might be brought into play by factors such as race and class, may in similar ways affect any case that comes before the courts, and is almost certainly present to some degree in all court systems.
In short, you are more likely to receive the death penalty if you happen to be unlucky enough to get the wrong judge or the wrong lawyer, or if you are black and poor. If you are really unlucky you are going to be executed despite the fact that you are innocent, often because you could not afford decent legal representation. This is especially problematic in a country like South Africa, with its racialised inequality and the weak system of legal aid. If you support the death penalty, you therefore necessarily support a system that will lead to a disproportionate number of black and poor people being killed by the state.
This raises serious ethical problems for advocates of the death penalty, which is exacerbated by the fact that the death penalty is almost certainly not a deterrent. In S v Makwanyane Chaskalson pointed out that the “greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished”. Most people who commit violent crime do so because they do not think rationally at all. And those who think rationally, commit violent crime because they believe they will never be caught, not because of the severity of the sentence.
This is widely accepted by experts. In a study published in 2009 in the Journal of Criminal Law and Criminologythe authors report that 88.2% of criminology experts is of the opinion that the death penalty does not deter murder. This is about the same percentage of scientists who confirm that climate change is real. Studies that compare similarly situated countries or areas without the death penalty with those who impose the death penalty, support the conclusion of these experts. As John Donahue points out:
Whether one compares the similar movements of homicide in Canada and the US when only the latter restored the death penalty, or in American states that have abolished it versus those that retain it, or in Hong Kong and Singapore (the first abolishing the death penalty in the mid-1990s and the second greatly increasing its usage at the same), there is no detectable effect of capital punishment on crime. The best econometric studies reach the same conclusion.
The United States is a particularly interesting case, as some states in the USA have abolished the death penalty while others retain it. After studying the evidence – including various scientific studies – John Lamperti concludedthat “murder has been more common in states with capital punishment than in those where it is not used. Data from 1973 to 1984 show that murder rates in the states without the death penalty were consistently lower and averaged only 63% of the corresponding rates in the states retaining it”.
These findings are backed up by more recent findings by the Capital Punishment Research Project and the New York Times, which compared capital and non-capital states to assess deterrence effects. As economist Martin Kasten explains the findings as follows:
The investigation examined the number of murders that occurred in New Jersey before and after the imposition of a death penalty statute in 1982. No statistically significant decrease was found in the number of murders that occurred. The study also compared the number of murders per 100,000 residents in both Massachusetts (a non-capital state) and New Jersey (presently a capital state). No significant difference was found in the number of murders. In the same study, the murder rate in New York (a non-capital state when the study was conducted) was compared to the rate in Texas (a capital state); and there was no statistical difference between the two states with respect to the number of murders per 100,000 residents.
Of course, many factors may influence the murder rate in each country or state, which is why another researcher, Thorsten Sellin, compared homicide rates in neighbouring US states as nearly alike as possible in other respects. After studying the data of such comparable states Sellin concluded that:
In the face of such data, it is very difficult to maintain that the death penalty is an effective deterrent to violent crime. The finding that those who commit murder and other violent crimes are not particularly rational, should not come as a surprise to the supporters of the death penalty, as many of these supporters often explicitly say that murderers are not rational, describing them as “beasts, “animals”, “savages” and other words denoting irrationality and semi-human status.
In response to the data, some defenders of the death penalty argue that the death penalty deters at least the person who is put to death by the state and, in this way, is an effective deterrent. Somebody who is dead, they often tell me gleefully, cannot commit another crime. This is not a good argument, as the same results could be achieved by incarcerating particularly dangerous violent criminals for life. Other defenders of capital punishment, who view perpetrators serving life sentences not as a human problem but as a problem of resources, argue that it will safe the state money if it killed all the most violent criminals.
However, several studies (see for example, here and here) have shown that it is more expensive to run a system that provides for the death penalty than one that does not, dispensing with the particularly heartless argument that it is cheaper to execute prisoners than to incarcerate them.
Of course, there is also the obvious point that the death penalty cannot be reinstated without amending the Constitution. As is the case with secession of the Western Cape (I am going to go out on a limb and assume there is an overlap between supporters of secession and the death penalty – which is another strong argument against its reintroduction), this would require support by two thirds of the members of the National Assembly, something that is currently not viable. Even if Herman Mashaba’s new party gain modest electoral support, his party is not going to get two thirds of the votes, not in the next election or in any election. So the idea is dead in the water.
What many people will not be aware of is that South Africa is not permitted to reintroduce the death penalty because we have signed and ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, an international Protocol on the death penalty. Article 1.1 of the protocol states that: “1. No one within the jurisdiction of a State Party to the present Protocol shall be executed”. This means South Africa has committed itself never to reintroduce the death penalty, and in terms of international law it is obliged by its treaty obligations to honour this pledge. This is yet another reason why the death penalty is never going to be re-introduced in South Africa.
Herman Mashaba’s support for the death penalty as an effective deterrent to violent crime is therefore based on several misconceptions and deliberate misrepresentations. But because he is not advancing a rational, fact-based, argument (but making an emotional appeal), it may sadly garner his new party a few votes.BACK TO TOP