DOES CAPITAL PUNISHMENT DETER?

Martin Schönteich
Senior Researcher in the Crime and Justice Programme at the ISS

Published in African Security Review Vol 11 No 2, 2002

Widespread support for death penalty

Most South Africans favour the reintroduction of the death penalty for persons convicted of serious and violent crimes. A 1996 survey—when overall levels of violent crime were lower than what they are today—revealed that 71% of South Africans were in favour of capital punishment.

While the African National Congress (ANC) remains firmly opposed to the death penalty, this is by no means a uniform view within the ruling party. A survey conducted in late 1995 found that 65% of ANC supporters favoured the death penalty. In 1996, the then Minister of Justice, Dullah Omar, announced at the end of a two-day ‘crime and security’ meeting of ANC leaders, that the party’s national executive committee would be asked to review its opposition to capital punishment. This request was subsequently denied by the party leadership.

The ANC’s coalition partner at central government level, the Inkatha Freedom Party, supports the holding of a referendum on the death penalty. The official opposition in parliament, the Democratic Party, has not taken an official position on capital punishment, but grants its MPs a free vote on the issue.

Public support for the death penalty is reinforced by the large number of mainly elderly farmers being murdered on their farms. Over the past few years an average of two to three farmers are murdered every week; some with vicious brutality. The recent upsurge of cases, where infants who are only a few months old are raped, has filled newspaper letters pages with demands for a return of the gallows.

Effectiveness of deterrence

There is a popular assumption that the harsh punishment of criminals serves as a deterrent to crime and thereby ultimately reduces crime. There is, however, little undisputed scientific evidence to demonstrate a correlation between harsh punishment and levels of crime.

The behavioural premise of deterrence is based on that of responsible and predominantly rational, calculating individuals—a premise that many criminologists call into question.

A number of violent crimes, notably murder, rape and assault, are called ‘social fabric crimes’ by the South African Police Service because many of these offences are committed by people known to one another in familiar environments.

According to the 1997 national Victims of Crime Survey, 60% of assault victims and 63% of sexual offence victims knew the offender by name, while a further 17% of assault victims and 12% of victims of a sexual offence knew the offender by sight. Fewer than a quarter of assault and sexual offence victims did not know the offender at all.

It would appear that the majority of murders, rapes and assaults in South Africa (as in most countries) are not committed by calculating individuals who plan their crimes and weigh up the pros and cons of committing them. Rather, most of these crimes are committed in a moment of passion, anger, thoughtlessness, spite or drunkenness. The fear of being punished harshly if they are caught and convicted for their deeds, does little to prevent the criminal actions of such offenders.

It is more likely that criminals motivated by greed, and crimes involving a certain level of premeditation on the part of the offender, can be deterred by an effective criminal justice system. Offenders who attack farms, rob banks, hijack motor vehicles or commit fraud usually have to plan their nefarious deeds. This places them in a position to consider the consequences of their actions, and weigh up the expected gains from their crimes with their likely punishment should they be arrested and convicted. However, for a criminal justice system to deter such offenders from committing crime, more is required than merely punishing convicted offenders harshly.

Effective deterrence is based on the three Cs of Capability, Credibility and Communication.* For a criminal justice system to effectively deter criminals who commit crime in a premeditated way, it must accomplish three things.

First, it must be capable of identifying, arresting, prosecuting, convicting and punishing the majority of serious offenders. That is, the criminal justice system must have sufficient resources (both human and capital) to achieve this.

Second, the threat that the criminal justice system will arrest, prosecute, convict and punish offenders must be credible. There must be the unambiguous political will on the side of the country’s political executive and senior officials within the criminal justice system to arrest, convict and punish criminals.

Finally, the first two Cs must be successfully communicated to all potential offenders. It must become common knowledge that the criminal justice system is capable of arresting and convicting most criminals, and that such a threat is credible given the government’s unwavering commitment to fight crime. In South Africa’s case, deterrence fails on all three Cs:

Capability

The criminal justice system does not have the capability to arrest and successfully prosecute the majority of serious offenders. High levels of crime combined with a lack of skilled personnel and resources make this impossible. The figures speak for themselves. In 2000, only eight per cent of all recorded crimes resulted in the conviction of the perpetrators. For a range of serious crimes, the success rate was even lower: vehicle hijacking (2% convicted), aggravated robbery (3%), residential burglary (5%) and rape (7.6%).

The success rate is even lower if unrecorded cases are taken into account. The majority of rapes, for example, are not reported to the police. Moreover, most murders and rapes are relatively easy to solve, as the perpetrators are known to their victims or the families of the victims. If such murders and rapes are excluded for the purposes of calculating the effectiveness of the criminal justice system in convicting offenders, the system’s success rate is even lower.

Credibility

The government’s credibility that it is serious and committed about fighting crime is frequently undermined by its own actions. South Africa faces no discernible military or navel threat in the foreseeable future. Yet, in terms of a cabinet decision made in late 1998, South Africa will procure military-related equipment to the value of at least R60 billion over the next few years. In terms of the procurement package, South Africa will purchase, inter alia, three submarines and four corvettes. The purchase price of either one submarine or one corvette is equal to seven times the annual salary bill for all the prosecutors in the country. Similarly, the early release of some 9,000 sentenced prisoners by former president Nelson Mandela at the time of his 80th birthday in mid-1998, seriously tarnished the government’s credibility that it was serious about fighting crime.

Communication

With only a very limited capability to punish serious offenders, and a not very credible threat that this will change, there is a limit to the deterrent message which can be communicated to potential criminals. Nevertheless, the few deterrent-type messages that could be communicated, are communicated badly or not at all. For example, few people—including senior politicians, let alone potential offenders—are aware of a 1998 law which provides for a mandatory life sentence for any adult convicted of, inter alia, premeditated murder or gang rape. Similarly, few people know that persons accused of such serious crimes have to show ‘exceptional circumstances’ why they should be released on bail—a difficult onus to dispel.

History of the death penalty in South Africa

Should the South African criminal justice system get the three Cs right, and manages to communicate a credible threat to potential criminals, it still cannot be argued convincingly that criminally minded people will be deterred by the possibility of receiving the death sentence. Even in South Africa’s past, when the death penalty could be imposed for a range of offences, a very small proportion of offenders convicted of such crimes were executed.

Prior to 1990, the courts could impose the death penalty for a wide range of serious and violent crimes. Under certain circumstances, the courts were obliged to impose the death penalty. For example, in the case of conviction for murder, the death penalty was the only sentence available to a court, unless the judicial officer could find that ‘extenuating circumstances’ (which reduce the moral blameworthiness of the crime) were present. The death penalty could also be imposed on persons who were under the age of 18 years at the time they committed the offence.

Between 1977 and 1989, some 113,000 murders and 214,000 rapes were recorded in South Africa. These crimes, and offences such as robbery with aggravating circumstances, kidnapping and treason (for which figures are unavailable) resulted in 1,477 executions. Taking recorded murders and rapes only (and in excess of 50% of rapes are not recorded), less than one out of 220 of these offences resulted in the execution of the perpetrators.

Between 1990—when the Criminal Procedure Act was amended to restrict the imposition of the death penalty—and 1995—when the Constitutional Court ruled that capital punishment is unconstitutional—more than 40,000 murder cases went to trial. These resulted in the imposition of 243 death sentences of which only 143 were ultimately confirmed on appeal. That is, one confirmed death sentence for every 280 convicted murderers.

Conclusion

In his judgement in the 1995 Makwanyane case (which declared the death penalty unconstitutional), Mr Justice Arthur Chaskalson argues that there is no convincing evidence that the death penalty is a deterrent to serious crime:

We would be deluding ourselves if we were to believe that the execution of the few people sentenced to death during this period [1990–95], and of a comparatively few other people each year from now onwards will provide the solution to the unacceptably high rate of crime … The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system; and it is at this level and through addressing the causes of crime that the state must seek to combat lawlessness.

Note

* The three requirements of deterrence is taken from P Williams, Deterrence, in J Garnett et al, Contemporary strategy, Croom Helm, London, 1987, pp 70.