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Wednesday, 15 September 2010

Death Penalty, 3rd Edition

The Supreme Court has been asked to declare as unconstitutional a section in the Zambian Constitution that provides that anyone convicted for aggravated robbery while armed with a firearm should be given a mandatory death sentence. This is in a matter where Alex Njamba, who was sentenced to a mandatory death sentence by the Lusaka High Court on November 21, 2008, has appealed against his sentence arguing that the sentence was arbitrary and unconstitutional. According to the defence team the appeal was not a challenge to the death penalty per se, but rather it is "the mandatory requirement of death penalty" which allegedly "deprives the Judiciary of an essential judicial function in clear violation of the constitutional principle of separation of power".

Presumably this has repercussions not only for "death" penalty but on all mandatory sentences. At the heart of the debate is whether the Legislature and Executive (by specific statutory instruments) have the power to set mandatory sentences for crimes. I think there are actually two ways to look at this issue. The first is whether government is acting unconstitutional or not. It clearly isn't. The Legislature is tasked with setting the laws of our country - it is the only body that is directly reflects people's preferences. If it decides that judges should be harsh on certain crimes, that is not unconstitutional. The Judiciary of course also makes "laws" through precedence but that is within the limit defined by the Legislature.  A related question is whether it "makes sense" to have mandatory sentences.  I think that is a harder question because the whole purpose of mandatory sentences is to remove discretion of judges and guarantee minimum applications of retributive justice. This may especially be the case where judges are too liberal relative to the population.

That said, I should note that it is folly to have a death penalty for "anyone convicted for aggravated robbery while armed with a firearm". The death sentence may be better justified where life is taken - "a life for a life". Putting someone to death for armed robbery is shocking to say the least. We have previously touched on the death penalty here and here.

5 comments:

  1. Cho,

    I must say I am shocked at your statement 'it is folly to have a death penalty for "anyone convicted for aggravated robbery while armed with a firearm"'. Are we blind to the many who have lost their lives over their own hard earned property? Why should anyone come and rob me at my gate of my possessions I ve gone hungry months on end for? Lets not overlook the fact I cant determine nor differentiate whether the intention will be to simply rob me or actually kill me, whoever goes round pointing a firearm at anyone is a potential murderer.

    We should uphold the mandatory death penalty for aggravated robbery and house breaking in addition, as these aren't petty thefts. As a deterrent and to rid society of these murderers.

    Stokely Mpashane Matwi

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  2. Stokely,

    I am not being blind to emotion pain involved. My position is based on two reasons.

    First, the punishment has to fit the crime. It is my view that taking a life for a non-life offence is just punishment.

    Secondly, the death sentence as a deterrent effect appears not to work according to the latest evidence. See here

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  3. Cho

    'First, the punishment has to fit the crime. It is my view that taking a life for a non-life offence is just punishment.'

    Meaning let us wait till the particular offender actually kills someone? What would you deem as fair punishment for a possible murderer who may actually have murdered before but just never got caught?

    'Secondly, the death sentence as a deterrent effect appears not to work according to the latest evidence.'

    I beg to differ, these measures used are neither absolute nor conclusive....'this paper fails to find a significant homicide-reducing effect of death penalty'.

    What deters a bank teller helping themselves to the vault despite the many hardships and pressures they ve left at home? Morality? In a good number of cases not, it has to do with the fear of the subsequent punishment as with most of us on various issues to a fair extent. Even most hardened criminals have a fear of death and generally will not accept being taken alive for that reason.

    Stokely

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  4. Stockley

    "Meaning let us wait till the particular offender actually kills someone? "

    If we took that approach we would all be in prison because we would be prosecuting people for their "potential" to commit crimes. We all have the capacity for the most inhumane evil. The heart of man is utterly wicked.

    We need to convict people for things they do not for our guesses on what they may do.

    "What would you deem as fair punishment for a possible murderer who may actually have murdered before but just never got caught?"

    If a person has murdered before then they need to be tried for that murder and face capital punishment accordingly. What I refuse is capital punishment for a non-capital crime. Equally, if the burden of proof is not sufficient they must acquit.

    "I beg to differ, these measures used are neither absolute nor conclusive....'this paper fails to find a significant homicide-reducing effect of death penalty'."

    All evidence is relative and inconclusive. It depends on the conditions that one assumes. It is inconclusive in the sense that it is evolving as society evolves. Also I know that cultural differences may mean that in some culture what qualifies as evidence may not be regarded as evidence. So the question is not whether it is inconclusive, it is whether the results provide a reasonable basis for policy. In my view the evidence debunking the deterrent effect of capital punishment appears sufficient.

    "What deters a bank teller helping themselves to the vault despite the many hardships and pressures they ve left at home? Morality? In a good number of cases not, it has to do with the fear of the subsequent punishment as with most of us on various issues to a fair extent. Even most hardened criminals have a fear of death and generally will not accept being taken alive for that reason."

    First, I don't deny that all law is predicated on a deterrent effect (and incapacitation for imprisonment in some instances). The question here is whether the deterrent effect is sufficient to deter capital crimes. I should not for example that "crimes of passion" are not deterred by capital punishment. I am sure you agree with that. So to speak of deterrence in that context would be largely meaningless. Similarly for children or vulnerable adults of weak cognitive ability - legal deterrence is minimal.

    Secondly, the death penalty is at best a poor attempt to solve a deeper problem. More people kill because they want something they do not have - so they covet and take it by force. We need to focus on solving those deeper incentive structures (e.g. poverty, greed, social break down, life cycles of violence and poverty, opportunities for murder, etc). That requires us to understand better the culture we have and how these problems contribute to the violence.

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  5. I wonder if this case is prompted by this recent judgement in Kenya that a mandatory death sentences for murder is “antithetical to the Constitutional provisions on the protection against inhuman or degrading punishment or treatment and fair trial”, as it does not provide individuals concerned with an opportunity to mitigate their death sentences.

    ReplyDelete

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