Report No. 35

XI. Discussion in other Reports.

327. Discussion in other Reports.-

Valuable discussion about the deterrent effect of capital punishment is contained in the Report of the Royal Commission. It will be convenient to set out briefly the precise conclusions of that Commission on this point. These are as follows:-

First, prima facie, the death penalty is likely to have a stronger effect as a deterrent to normal human beings than any other form of punishment.1

Secondly, there is some evidence that this is so2.

Thirdly, there is no convincing statistical evidence that the penalty of death has a stronger effect as a deterrent than any other form of punishment3.

Fourthly, this effect (that is to say, stronger effect as a deterrent) does not operate universally or uniformly; "there are many offenders on whom it is limited and may often be negligible.4".

Fifthly, the deterrent force of capital punishment operates not only by affecting the conscious thought of individuals tempted to commit murder, but also by building up in the community, over a long period of time, a deep feeling of peculiar abhorrence for the crime of murder5.

Sixthly, it is impossible to arrive confidently at a firm conclusion about the deterrent effect of the death penalty, or indeed of any form of punishment'. Seventhly, it is important to view the question in a just perspective, and not to base a penal policy in relation to murder on exaggerated estimates of the uniquely deterrent force of the death penalty6.

It would, thus, appear that the Royal Commission did not totally rule out the deterrent effect; but the Commission emphasised its limitations, and also the desirability of not overrating its importance7.

Appendix to its Report8 the Commission discussed figures and other aspects of the deterrent effect of the capital punishment.

1. R.C. Report, p. 24, para. 68 and details in pp. 19-20, paras. 57 and 58.

2 R.C. Report, p. 24, para. 63 and details in paras. 60 and 61.

3. R.C. Report, p. 24, para. 68 and details in paras. 62-65.

4. R.C. Report, p. 24, para. 68 and p. 20, para. 60.

5. R.C. Report, p. 20, para. 59.

6. R.C. Report, p. 24, para..68.

7. R.C. Report, p. 20, para. 59 and p. 24, para. 67.

8. R.C. Report, pp. 328-380, (Appendix 6).

328. It may be noted, that even in the Canadian Report1, the view taken is in favour of the deterrent effect. After a careful consideration of the statistics presented by experts, and after noting the evidence received from Law Enforcement Officers to the effect that capital punishment was an important and necessary deterrent to murder, the conclusion reached in that Report was this:

First2, that this opinion of the officers was not displaced by other evidence based upon statistical comparison, and that capital punishment did exercise a deterrent effect, which would not result from imprisonment or other forms of punishment;

secondly3, the fact that a considerable proportion of murders was committed under compulsion of passion or anger seemed to demonstrate that death penalty, coupled with the excellent standards of law enforcement prevailing in Canada, had succeeded in deterring deliberate pre-meditated murders;

thirdly4, the deterrent effect was also indicated by the widespread association of death penalty with murder;

fourthly5, it was necessary to retain the stern penalty of death as a continuing restraint against the use of violence by professional criminals;

fifthly6, public abhorrence of murder reflected a traditional attitude built up by the reservation of capital punishment for this particular crime, and the abolition of a penalty traditionally accepted as a just and effective deterrent could only be recommended if it was established clearly that the view of the ordinary citizens about its efficacy was demonstrably wrong; sixthly,7 capital punishment did protect the police to a greater extent than imprisonment alone would do, by deterring criminals from using violence to facilitate the commission of crimes, escape, etc.

1. Canadian Report, pp. 13-14, paras. 48-53.

2. Canadian Report, p. 14, para. 52.

3. Canadian Report, p. 14, para. 53.

4. Canadian Report, p. 14, para. 53.

5. Canadian Report, p. 14, para. 54.

6. Canadian Report, p. 15, para. 56.

7. Canadian Report, p. 15, para. 58.

329. We may state here briefly the conclusions reached by the majority of the members of the Ceylon Commission as to deterrent effect. That Commission, after a study of the statistics of other countries and of Ceylon, came to the conclusion that the statistics tended to prove the case against the general deterrent effect of the death penalty1. It agreed with the conclusion of the Royal Commission2, that prima facie the penalty of death was likely to have a strong effect as a deterrent to normal human beings than any other form of punishment, and that there was some evidence, though there was no convincing statistical evidence, that this was, in fact, so, and that this effect does not operate universally or uniformly.

But it noted3, that in Ceylon, this statistical evidence went further than merely leaving open the question of deterrence or no deterrence. On the basis of statistics, it came to the conclusion that in Ceylon, re-introduction of the penalty of death could not be justified on the argument that it was a more effective deterrent to potential killers than protracted imprisonment.

1. Ceylon Report, p. 45, para. 15.

2. See Ceylon Report, p. 44, para. 12.

3. Ceylon Report, p. 46, para. 17.

330. The Ceylon Commission further added1, that the experience of many countries, which had suspended or abolished capital punishment, supplied cogent evidence against the existence of the "hidden protection" believed to be afforded by the sentence of death. If the "hidden protection" existed, then, it observed, in some of the countries, which had abolished or suspended capital punishment, evidence would have appeared and would have been reported, suggesting an increase in the murder rate subsequent to suspension or abolition.

While the Commission agreed that it may be true that the fear of death is the most intense of all fears, it recorded the view, that there was a great difference between the fear of death when it was imminent, and the fear of it when it was regarded as only a remote possibility.2 In other words, from the terror of death, experienced by the unprieved murderer, during his last days on earth, one could not assume that the same fear was operative in his mind as a deterrent at the time of the crime.

It stressed the fact that developing psychological knowledge gave no support to the assumption that a potential murderer3 calculated (before killing), the ultimate consequences, and pointed out that in an impulsive action, which, as in Ceylon, frequently led to murder, it was unlikely that there was any intellectual consideration at all prior to the killing, let alone a reflection of possible and remote penalties4. Further, in its opinion5, difficulties of detection, apprehension and conviction and the discretionary exercise of reprieve, militated against death penalty being the unique deterrent which it was claimed to be.

1. Ceylon Report, p. 47, para. 20.

2. Ceylon Report, p. 49, para. 23.

3. Ceylon Report, p. 49, para. 24.

4. Ceylon Report, p. 49, para. 29

5. Ceylon Report, p. 50, para. 26.

331. The Ceylon Commission expressed its definite view1, that certainty of detection and conviction was more conducive to the reduction of crime than the actual severity of punishment. Its final conclusion2 was-"In deciding on the wisdom of retention or abolition of capital punishment, reliance cannot be placed on there being any greater deterrence to potential murderers by imposing capital punishment on a few than by imprisoning all convicted murderers.3".

1. Ceylon Report, p. 51, para. 27.

2. Ceylon Report, p. 52, para. 28(a).

3. In Ceylon, Capital Punishment was re-introduced by the Suspension of Capital Punishment (Repeal) Act, 1959 (25 of 1959).