Modes of punishment have broadened over the years due to concerns over the impact of the penal policy and based also on considerations of equality and justice and the ever increasing concern over the ineffectiveness of the conventional or classical modes of punishment.
With regard to the death penalty, the main argument used against it is its lack of consideration for the individual rights of the offender. This, however, has to be balanced with the rights of the victim and the safety of the society as a whole because of the threat that the particular offender poses to society and the long-term risks that would arise from lack of effective punishment. Other questions that may arise may deal with whether it is at all necessary to appropriate the death penalty to such crimes as robbery with violence, murder and treason and whether policy should consider other modes of punishment that are equally more effective.
When punishing or formulating policies for punishment, there are several factors that have to be taken into consideration. To begin with one of the most apparent factors as regards to punishment is the moral consideration.
Punishment usually entails some form of pain. What, however, distinguishes punishment from other forms of mortal discomforts is the indignation or societal condemnation that backs it. The gravity of a crime and the punishment that it deserves many times will depend on the revulsion that society attributes to it. The more revulsion a society attaches to a particular crime (based on the moral norms of that society) the more severe the punishment. It will suffice, then, to conclude that every punishment is reflective of the moral indignation of society towards a particular crime. It is universally accepted that a crime like murder occupies the highest caste of criminal offences and is visited with more indignation; therefore it is only tenable to award it a punishment reflective of the natural condemnation it evinces. And what manner of punishment should it receive other than that which is equally proportional to it?
Proponents of the death penalty also argue that political and economic factors have to be taken into consideration. Economically the cost of processing offenders is enormous. If the alternative to the death penalty that is incarceration is to be taken into account what manner of resources will the government have to pull together increase prison space. Capital offenders, it may be argued, may be few or their numbers negligible to warrant this train of logic. But to add them to the population of already overflowing prison occupants would only aggravate the situation, and governments will consider it cheaper to eliminate them. Government expenditure and its impact on the populace are not alien to anyone living in the world today. And how or what the government chooses to spend on will definitely a variable on the economic situation of the nation.
There are other reasons that look to the individual victims of the crime and the offenders themselves. Human rights being a central issue in the world of today also have a bearing on what formulators of penal policy will take into account when deciding modes of punishment. Nowadays sentences must take into consideration all the rights of the parties involved as it the scope of rights have been widened to argue that even convicted criminals have rights thus bringing on the argument that death penalties violate the offender’s right to life, and no one, not even the government has the right to take alienate that right from them – all the noble purposes notwithstanding.
The late Pope John Paul II in his encyclical letter Evangelium Vitae writes that capital punishment should be avoided unless it is the only way to defend society from the offender in question. Punishment “ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.”
By Daniel Kobimbo
The writer is a law student at the University of Nairobi