The ultimate penalty
Chiuri Ngugi
"It is the supreme indignity to the individual, the ultimate corporal punishment, the final and complete lobotomy and the absolute irrevocable castration. [It is] the ultimate desecration of human dignity ..."1
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The words quoted above express the opinion of three judges of the Canadian Supreme Court in Kindler v. Canada [1] on the death penalty as being cruel and unusual. This is also my opinion as will be evident from what follows. As far as any arguments which might be advanced in favour of the death penalty are concerned, I have deliberately overlooked those; I hold the view that such arguments are not sustainable under strict scrutiny by any civilized society on the eve of the 21st century.
Much has been written on the pros and cons of the death penalty. However, no serious discussion of this final penalty for crime can take place without taking into account the writings of Dostoyevsky on the subject of crime and punishment. In his well-known novel, Crime and punishment [2] , Dostoyevsky addresses the twin issues given in the title of the book.. The protagonist, Raskolnikov, a former student, steeped in poverty, indolence and loneliness, murders an old woman money lender as well as her sister. Although crudely and naively executed, the murderer slips away unseen, without leaving behind any incriminating evidence. Raskolnikov originally justifies the murder on his own brand of intellectual theory; after all, he "only killed a louse...[a] useless, nasty, harmful louse." The murderer is, however, soon trapped in a web of personal guilt and psychological torture. He falls sick and almost loses his mind. He can no longer relate normally to his family and friends. He finally confesses his crime to his love, Sonia, a beautiful girl who has been forced into prostitution to provide for her drunken father's family. In the end, he surrenders himself to the authorities.
Given his own psychological torture in the aftermath of his crime, Raskolnikov does not even attempt to create any justification or raise a defense at his trial. The Court, however, is not blind to the available mitigating circumstances and sentences him to eight years of hard labour in Siberia. The story concludes with a vision of hope, continuity and renewal for Raskolnikov and Sonia as they await the completion of his sentence. There is hope, rejuvenation and life for the reformed murderer. One sympathizes with the private horror of Raskolnikov's personal guilt. According to Dostoyevsky, the savage societal notion of "an eye for an eye and a tooth for a tooth" and the destruction of one life to atone for another is not an answer to crime and can never constitute a remedy to homicide.
Coming closer to our own times, the example of South Africa may be cited. On June 6, 1995, the Constitutional Court of the Republic of South Africa in a landmark decision (Nkwanyana and Mchunu v. Republic [3] ) abolished the death penalty, declaring it an unconstitutional, cruel, inhuman and degrading punishment. The leading judgement was given by the President of the Court, Mr. Chaskalson. The other ten judges all wrote concurring judgments. South Africa has therefore joined the growing ranks of civilized nations that have woken up to the realization that "the death penalty is not amenable to any remedial measure and that evolving standards of civilization require that it be abandoned as a penal sanction"3.
Around January, 1995, the NAACP Legal Defense and Educational Fund [.4 ] and Human Rights Watch [5] , both of the US, submitted an amicus curie brief to the South African Constitutional Court in support of the Appellants' argument for the abolition of the death penalty. (The interim Constitution of the Republic of South Africa had a provision that allowed for recourse to public international law and decisions from comparable jurisdictions in the interpretation of the Bill of Rights.) Their memorandum gave a detailed analysis of the application of the death penalty in the United States and all its attendant ills. It asserted in plain and unequivocal terms the objection these organisations had to the death penalty as practiced in the United States:
"[W]e cannot conscientiously advocate that the Constitutional Court of the Republic of South Africa should adopt the proceduralist approach to regulating capital punishment that the United States Supreme Court has attempted. That attempt has been an utter failure. It has perpetuated arbitrariness, unreason and injustice while squandering the legal and moral resources of a nation in the futile effort to accommodate fundamental tensions that make any civilized administration of the death penalty impossible"4
In spite of its fidelity to the constitutional commands of due process and equal protection the Supreme Court of the United States has been unable to eradicate error, caprice, arbitrariness and uncertainty in the application of the death penalty. True, it has endeavored to put in place a number of procedural safeguards to make its administration purportedly fair and just for all. This, however, has remained an unattainable ideal.
Perhaps the most cogent indictment of the penalty of death, even where purportedly applied in strict compliance with the Constitution and with an avenue to the exhaustion of the appellate process is found in the dissenting opinion of Justice Blackman from the denial of certiorari in Callins v. Collins. He candidly admitted:
For more than 20 years I have endeavored•indeed, I have struggled•with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question•does the system accurately and consistently determine which defendants `deserve' to die?•cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed . . . relevant mitigating evidence to be disregarded . . . and vital judicial review to be blocked . . . . The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.7
The decision of the Constitutional Court of the Republic of South Africa should be of paramount concern to us. The trend in public international law and in many countries of the world has been towards the abolition of the penalty of death as a form of punishment under criminal law. Many societies have come to realize and appreciate the fact that the rights to life and to human dignity are the most fundamental rights and constitute the heart of the bundle of rights to which any human person is entitled. The application of the death penalty, where permissible under the law, annihilates the individual and thus terminates and subverts all the other rights.
In his pivotal judgment, the President of the South African Constitutional Court critically addressed the element of chance or caprice in capital trials. The same concern has been raised by the NAACP Legal Defense and Educational Fund in its perennial crusade for defendants on death row in American courts. The fact that the fate of an accused person in a capital trial may depend on factors of chance extraneous to the specific offense and to the individual on trial should be of grave concern to those who believe in equal justice and protection for all.
First, the outcome might turn on the investigations by the police. The conduct of the police will in turn depend on their training, their commitment and observance of the law and their respect for human rights. It becomes vital for the courts to be effective in ensuring that such investigations meet the benchmark laid by the Constitution. Are the police a law unto themselves? Do they break the law with impunity to net their suspects believing that "the only good nigger is a dead nigger."?
Second, the sentence of death may depend on the presentation of the case by the prosecution. A competent prosecution may carry the day with the Court while a sloppy and slipshod one may not succeed in spite of the evidence assembled. Woe therefore to those accused persons whose trials are handled by proficient and competent prosecutors and happy those whose cases are handled by incompetent ones. Do the prosecutors hoodwink the courts by employing all the tricks in the books to obtain convictions?
Third, the effectiveness, competence and thoroughness of the defense may mean life or death for the accused person. Remember the O. J. Simpson murder trial and his "dream defense team" that saw to his acquittal. Justice Douglas of the US Supreme Court has noted that "[o]ne searches our chronicles in vain for the execution of any member of the affluent strata of this society." This according to him is "as a result of the ability of the rich to purchase the services of the most respected and most resourceful legal talent in the Nation."8 The fact that poor persons are unable to do so tilts the scales of justice against them.
It is a well-known fact that most accused persons facing a capital trial are economically incapable of employing legal services. When provided by the state, pro bono counsel are those who are young and inexperienced. Such counsel are paid a nominal fee which rarely inspires them to go out of their way to prepare an adequate defense. They lack the financial resources and the infrastructure support to carry out the requisite investigations. They cannot employ experts to advise on relevant matters, summon expert witnesses and gather evidence. It is obvious that "[a]n offender's economic status and his or her related ability to secure quality representation always play a critical role in determining who shall suffer death, making capital punishment purely a game of chance based upon wealth and privilege."9
Fourth, the personality and particular attitude to capital punishment of the trial judge may tilt the scales on which the accused person lives or dies. If the case proceeds on appeal, it further depends on the panel of judges selected to hear the appeal.
Fifth, the race and poverty of the accused person may also determine his fate. The social disparity between him and those who sit in judgment over him might tilt the scales against him. One will search in vain for any records on non-Africans who have been convicted of a capital offense even in post-independence Kenya.
There looms the crucial issue of irrevocable and fatal errors in capital trials. Judicial history is replete with cases of miscarriages of justice. Sadly, the mistakes are discovered only after the execution of the victim. They are post-mortem. As articulated by the NAACP Legal Defense Fund's Memorandum:
The death penalty literally buries its mistakes. That is probably more often true of legal errors than of factual ones. But factual errors too are unavoidable in capital prosecutions. They include extremely subtle misinterpretations of the states of mind and circumstances that demark the differences between murder and manslaughter or between justifiable and non-justifiable homicide. They include gross miscarriages of justice [against] wholly innocent defendants).10
Let me conclude by adopting verbatim some of the findings made by the President of the South African Constitutional Court in his leading judgment:
"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 at this level and through addressing the causes of crime that the state must seek to combat lawlessness."11
"Law is brought into disrepute if the justice system is ineffective and criminals are not punished. But if the justice system is effective and criminals are apprehended, brought to trial and in serious cases subjected to severe sentences, the law will not fall into disrepute."12
"The state does not need to engage in the cold and calculated killing of murderers in order to express moral outrage at their conduct. A very long prison sentence is also a way of expressing outrage and visiting retribution upon the criminal."13
"In the balancing process, deterrence, prevention and retribution must be weighed against the alternative punishments available to the state, and the factors which, taken together, make capital punishment cruel, inhuman and degrading: the destruction of life, the annihilation of dignity, the elements of arbitrariness, inequality and the possibility of error in enforcement of the penalty."14
Like the learned President, I hold that the scales of justice should always remain tilted in favour of life, even for the most savage capital offender.
Notes
1. Quoted by Chaskalson, President, Constitutional Court of South Africa, his Judgement in Nkwanyana and Mchunu V. R., Case No. CCT/3/94, par. 60, p. 5. unreported.
2. Fyodor Dostoyevsky, Crime and Punishment, Penguin Books.
3. In: The Constitutional Court of the Republic of South Africa, Case No. CCT/3/94, unreported.
4. The National Association for the Advancement of Colored People is a public interest law firm incorporated for litigating for the civil rights of the Blacks in the US. It was fundamental in laying the constitutional groundwork for the civil rights revolution in the US.
5. Human Rights Watch is an NGO established in 1978 to monitor internationally recognized human rights.
6. Par. 2, Summary, p. 2, Memorandum of Law in Support of the Appellants’ Position in Nkwanyana v. Mchunu, presented by the NAACP Legal Defense Fund and Human Rights Watch to the Constitutional Court of the Republic of South Africa.
7. Ibid., Note 6, p. 39-40.
8. Ibid., Note 6, p. 19.
9. Ibid., Note 8.
10. Ibid., Note 6, p. 23-24.
11. The Judgement of Chaskalson, President South African Constitutional Court in Nkwanyana and Mchunu v. R., par. 122, p. 86.
12. Ibid, par. 124, p. 87.
13. Ibid., par. 129, p. 90.
14. Ibid., par. 135, p. 94.
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