15.11.2005 Feature Article

The Death Penalty Debate:

The Death Penalty Debate:
15.11.2005 LISTEN

The Intersection Of Religion, Ethics, Law, And Public Policy The death penalty has not attracted much attention from scholars, the public, and the popular press as a matter of public policy despite the recent public pronouncements by the chief law enforcement officers in Ghana. This is surprising since the death penalty involves the public, judges, courts, statutes, lawmakers, and institutions of legal interpretation and authority. The Daily Graphic reported that the Attorney General and Minister of Justice has joined other people in their call to abolish the death penalty in Ghana (Ghanaweb). They recommend the death penalty should be replaced with other forms of punishments such as long sentences without parole. The Ghana News Agency sometime ago also quoted Mr. Joe Ghartey, the Deputy Minister of Justice and Attorney –General as saying, “no one including the State should kill anyone in pursuit of justice since it was only God who had the prerogative to take human life.” Mr. Ghartey was also quoted as saying, “I do not believe in the death penalty for any type of crime including armed robbery because of the sanctity of life.”

It is difficult to understand why a government grappling with the problem of armed robbery continues to speak louder and louder to the armed robbers that they can kill and rob innocent people without facing the severest punishment. I think these pronouncements against capital punishment by the top law enforcement officers in the country are politically unwise, technically inappropriate, and without merit. I intend to argue that the reasons that have been adduced so far by the opponents of capital punishment are not compelling enough to justify their position. I will argue this from theological, ethical and philosophical standpoints.

The tone and the toner of Mr. Ghartey's assertions sound like a Christian using the Bible as a proof-text to make a case against capital punishment. While his assertions may appeal to the average Christians, a good Biblical exegesis contradicts Mr. Ghartey's claims. The Old Testament teaching on the principle of capital punishment predates the Mosaic Law. Capital punishment is based on a belief in the sanctity of life according to Genesis 9:6. It says, "Whoever sheds man's blood by man his blood shall be shed, for in the image of God, He made man." Contrary to Mr. Ghartey's claim, capital punishment was instituted to ensure the sanctity of human life. Also, in Exodus 21, God commanded capital punishment for murderers. Premeditated murder (or what the Old Testament described as "lying in wait") was punishable by death. The principle in Genesis 9:6 is not tied to the theocracy. Rather, the principle of Lex Talionis (a life for a life) is tied to the creation order. There are some Christians who believe capital punishment does not apply to the New Testament and the church age. First, we must recognize that God gave the principle of capital punishment even before instituting the Old Testament laws. Also, others argue that in the Sermon on the Mount Jesus seems to be arguing against capital punishment. Here again, Jesus is not arguing against the principle of a life for a life, but instead, He is speaking to the issue of our personal desire for vengeance. He is not refuting the power and responsibility of the government. In the Sermon on the Mount, Jesus is speaking to individual Christians. Contrary to Mr. Ghartey claim that “no one including the State should kill anyone in pursuit of justice since it was only God who had the right to take human life,” the New Testament teaches in Romans 13:1-7 that human government is ordained by God and that the civil magistrate is a minister of God. Rather than abolish capital punishment, the Bible uses the image of the sword to drive home its point. I cannot understand how Mr. Ghartey could read his Bible exegetically and miss this point. There is therefore no Biblical basis for the call to abolish capital punishment by the state. The opponents of capital punishment including the Minister of Justice argue that little reason exists to believe that capital punishment deters criminals more than life imprisonment without parole. Others also insist that execution of capital punishment is based on vengeance and is therefore morally wrong and archaic form of punishment. Some people also say that by an error of justice an innocent person may be put to death. They contend that a mistake can never be corrected if an innocent person is put to death. Some opponents of capital punishment equate state execution of murderers to murder. Their logic is that the two acts have the same results. Still others contend that death penalty has a “brutalization effect.” Their reason is that executions show a low regard for human life and by it causes an increase in the murder rate. The question is: Are these arguments convincing enough to warrant abolishing death penalty in Ghana? The argument of the justice system committing the horror of an irrevocable error is an argument that is overblown. Available data from many countries support the view that executing innocents is rare given reasonable due process protections. Also there is always a risk and inevitability of risk for any public policy. There is no such thing as a risk-free public policy. For instance, air bags are provided to save lives, but some people are killed by air bags once in a while. Also governments allow citizens the freedom to smoke, but we know that smoking kills people. Likewise, new drugs that are approved to save lives sometimes kill people. Indeed, many public policies risk killing innocent people. Besides, the idea that death penalty does not deter criminals is based on anecdotal evidence. What is clear about the empirical evidence is that there is a correlation between executions and homicides in places that death penalty has been judiciously exercised (William Tucker, 2003). According to Tucker there was falling murder rate when the death penalty was carried out and increasing murder rate when the courts prohibited capital punishment in the early 1960s in United States. We should not assess the benefits from capital punishment only by its effects on hardened criminals, but also by its effects on the innocents. John Stuart Mills, one of the most influential thinkers of the enlightenment observes that the influence of a punishment is not to be estimated by its effect on hardened criminals. Mills maintains that the indifference of some hardened criminals to death punishment may be due to their bravery, and the idea that they could be lucky to escape the gallows. The failure of the state to consistently apply the death penalty sends wrong message to the criminals that the death penalty will not be inflicted. The criminals also believe that judges would seize any excuse for not sentencing them to death. They often believe that the judges will be merciful to them. In addition, they think that the state may exercise its clemency to redeem them from death. Indeed, an argument can be made that the application of death penalty today is more arbitrarily and more inconsistent to judge its effects on criminals. Mills further contends that the efficacy of capital punishment which acts principally through imagination is mainly to be measured by the impression it makes on those who are innocent. Mills argues that the horror that surrounds the first prompting of guilt and the restraining influence it exercises over the beginning of thought exerts an influence on would-be murderers. One wonders how the opponents of capital punishment assess the successes and the failures of capital punishment. Judging the effect of capital punishment based on those that have not been deterred by capital punishment is statistically and logically untenable. We can only know those who have not been deterred by capital punishment, but we can't know those that have been deterred by capital punishment. How do the abolitionists know how many human lives capital punishment has deterred? The conclusion that capital punishment does not deter murderers is based on faulty reasoning and wrong counter-factual analysis.

Further, the argument that one can equate death penalty to murder is a spurious one. Common sense tells us that kidnapping and legal imprisonment are not the same, yet both involve imprisoning people against their will. We also know that killing in self-defense is not the same as murder, yet both result in taking human life. We know that rape and consensual sex are not the same, yet both may results in sexual intercourse. Notwithstanding, the abolitionists of death penalty want us to equate state imposed execution to murder. The claim that executions show a low regard for human life and by it results in an increase in the murder rate lacks both evidence and reasoning. Why would criminals commit more crimes simply because the punishment for their crimes has been increased? There is overwhelming evidence that criminals fear death penalty more than life imprisonment without parole. In United States about 99% of all convicted murderers and their lawyers pleaded for life without parole in the punishment phase of their trial. This shows that murderers and their advocates fear the death penalty. The call for the state to substitute death penalty with life imprisonment without parole raises more questions than it answers. What prevents a criminal who has committed a life without parole offense and had not yet been arrested from committing more murder? Without capital punishment there is no deterrent from killing more people while in prison or after escape. What happens to inmates who kill people in prison or after escape? There is more incentive to kill because their punishment could not be increased if capital punishment is not an option. By executing murderers in our society we prevent them from murdering again and by so doing save innocent lives. In US 6% of young adults paroled in 1978 after having been convicted of murder were arrested for murder again within six years of their release. It is estimated that 9-15 % of those on death row committed at least one murder before their last murder cases. It is against this background that many of the great thinkers of the enlightenment argue for death penalty. For example, J.J. Rousseau in his book the social contract writes:” Again every rogue who severely attacks social rights becomes, by his wrong, a rebel and a traitor to his homeland. By breaking its laws, he ceases to be one of its citizens: he even wages war against it. In such circumstances, the state and he cannot both be saved: one or the other must perish. In killing the criminal, we destroy not so much a citizen as an enemy. The trial and judgments are proofs that he has broken the Social Contract, and so no longer a member of the State.” Strong words from Rousseau, one of the greatest thinkers of the enlightenment.

Also, Immanuel Kant a man of great intellectual repute writes, “Whoever has committed murder must die.” Kant argues that a court decision is mandatory for punishing a murderer. He contends that a society that does not sentence a murderer to death becomes an accomplice to the crime. It is therefore, politically unwise, and technically inappropriate for political leaders grappling with the problem of armed robbery to assure criminals that they will not face the severest form of punishment. The arguments that have been advanced so far to justify the abolition of the death penalty are logically unsound, Biblically in error, socially unacceptable, and politically unwise.

This article has argued that our society stands to benefit from the death penalty. It has shown that there is no Biblical basis for abolishing the death penalty in Ghana. The article has also considered the objections to capital punishment, and presented a critique to those objections. The position of this article is that none of the objections to capital punishment forces us to reject it. Instead of engaging in a debate on how to protect the criminals, the Attorney General and the Minister of Justice should devise plans to protect the innocent and law-abiding citizens from the constant harassments and killings by the criminals in our society. Views expressed by the author(s) do not necessarily reflect those of GhanaHomePage.

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