Notes on abolition movement of death penalty

Information about historical overview of abolition efforts

The abolition movement of death penalty started with Beccaria in Italy in the 1700s. The increasing emphasis on humanitarianism resulted in the mitigation of harsh punishments. The utilitarian philosophy was that “punishment should be no more than just, nor more than necessary”.

This led people in Italy and other countries to question the need for capital punishment. Death penalty was thus gradually eliminated in most European countries during the last half of the nineteenth century. However, by the turn of the twentieth century, a counter-movement began as crimes increased.

Garofalo wrote about socially dangerous criminals in 1885, Lombroso wrote about born criminals in 1911, Healy wrote about personality disorders of criminals in 1915, and Hooton wrote about feeble-mindedness of criminals in 1939. These ideas led some people to conclude that capital punishment was a necessary eugenic measure.

In America, death penalty was abolished in 1967 but restored in 1976. In June 1972, three persons who had received death sentences appealed to the American Supreme Court arguing that the imposition on death penalty constituted crude punishment and was, therefore, unconstitutional.

But the court did not rule that capital punishment per se is cruel and unusual punishment and, therefore, unconstitutional. The court, thus, left open the door for new legislation for capital punishment in those states, which had retained death penalty.

In England, King Henry VIII executed 72,000 thieves and vagabonds during his regime. We may never know if this figure is accurate since complete records have not survived; but it is certainly true that death penalty was awarded even for petty offences.

In 1500, England had only seven major crimes (treason, murder, larceny, robbery, burglary, rape and arson) for capital punishment but by 1800, there were over 200 crimes, including crime against public peace, for death penalty. (Reid, 1976: 474) Capital punishment has now been abolished in England.

Those countries which have abolished capital punishment may be classified in three groups:

1. Those in which it has been abolished through legislative or constitutional provision (Abolitionist de jure).

About 22 countries fall in this group which include Portugal (1867), the Netherlands (1870), Switzerland (1874 however, out of 22 cantons, 7 have reintroduced it), Norway (1905), Sweden (1921), Denmark (1933), and England (1969). In Austria, capital punishment was abolished in 1949 but was reintroduced in 1952.

In Rumania, it was abolished in 1865 but was reintroduced in 1939. In West Germany, it was abolished in 1949 but was restored in 1932.

2. Those where law makes provision for death penalty but death sentences are never awarded/carried out by virtue of an established custom (Abolitionist de facto). About four countries, including Belgium, fall in this group.

3. Those in which death penalty are laid down only for offences which are never committed (Almost abolitionist). This category includes two states in Australia and three states in America (Social Defence, January, 1964).

Capital punishment, however, is still prevalent in India, China, Russia, France, Japan, Indonesia, Iran, Iraq, Burma, Pakistan, in 13 states of the USA, and so on.

Amongst those countries which permit capital punishment, death penalty is awarded for murder in 58 countries, for revolution in 24 countries, for arson in 21 countries, for spying against the country in 20 countries, for kidnapping in five countries, for rape in five countries, for black marketing in four countries, for drug trafficking in three countries, and for counterfeiting currency in two countries.

Some countries have provided reasonable safeguards against miscarriage of justice. Four such safeguards may be identified as: (i) appeals (retrial by higher courts), (ii) review (re-opening of cases after new facts come to light disclosing miscarriage of justice), (iii) confirming by some non judicial authority, as in Iran, the Philippines and Thailand, and (iv) confirmation by the Council of Ministers or by the Ministry of Justice, as in the Sudan and Somalia.

Islamic law offers three choices to a victim’s kin: (i) to pardon the murderer, (ii) to accept money in compensation, or (iii) to kill the murderer in the same way he killed his victim.

For instance, in March 1991 in Pakistan, a person convicted of murder was executed by his victim’s brother, who was permitted to use the same gun that was used by the criminal in his brother’s murder. In Sudan, a Palestinian terrorist killed seven people in 1988 including a Britisher, his wife and their two children.

When he was arrested, the Sudanese government asked the Britisher’s parents to decide if the suspect should live or die. North Carolina law in the United States of America allows a prisoner to be hanged to invite guests to his execution.

When murderer Gary Gilmore, sentenced to death in Utah (in the USA) in 1976, was granted his last request by the judge that he be executed by a firing squad, citizens actually volunteered to pull the trigger.