Overtime, Rights of individuals/Human Rights has transcended from the passive view of mere acknowledgment to the active view of its enforcement. Events in the world, ranging from the injustice that pervaded the medieval periods up until Adolf Hitler’s Holocaust to the Jews has made the issue of Human Rights active and its preservation, absolute. Human Rights are inherent claims bestowed on each and every individual from birth. These Rights are intangible, yet authoritative and therefore enforceable.
Human Rights are innate and exercisable by all because it is incidental to the birth of all humans. However, inasmuch as there is free liberty in the exercise of Rights, there are also limitation to the exercise of these same Rights. This is because, where one person’s right stops is where another person’s right begins; hence, the regulation of the rights of individuals by the law. If rights are not regulated, enjoyment of rights by one person can and will encroach into the rights of another person.
W.N. Hohfeld, an astute legal philosopher, has asserted that rights and duties correlate. In explaining his correlation concept, he expounded that every Right comes with a Duty and such Duty must be carried out and fulfilled by another person. Hohfeld’s theory on Rights and Duties indirectly stresses on the ‘Neighbourliness Principle’.
If any person breaches another person’s Right, the latter can be entitled to claims or other forms of compensatory entitlement; likewise, if there is a breach of any Right by an individual that may amount to a crime, the State takes over to punish the person who breached such Right; this is because, Governmental practices are deeply rooted in the Utilitarian Principle of Law and Justice whereby, Law is made and Justice is achieved for the greater good of the people. On the other hand, where the right of the individual is necessitated to be trampled upon to achieve Justice for the good of the people, then the State can trample on such rights of individuals to achieve its constitutional obligations of protecting lives, properties and preserving the sanctity of the State.
Many Nations of the world still uphold the punishment of death penalty as a means of redressing punishments for the breach of the Right to Life. Here, the State puts to death via public execution, any person who willfully takes the life of another person. In Nigeria, the punishment of death penalty is provided for under Section 33(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended).
Stating ephemerally, this paper will discuss death penalty as a means of punishment, the ethical issues surrounding it, as it, by myriads of people may be regarded as murder by the executing state. We will also be examining whether it is ethical and therefore justifiable to uphold death punishment as a means of retributive justice. Nigeria will be the anchor point of this deliberate discussion. Light will also be thrown on other jurisdictions as regards their stance regarding the justifiability of death penalty through use or non-use of the punishment.
The Concept of Death Penalty
Death penalty or otherwise known as capital punishment remains a sensitive subject matter, as a means of punishment the death penalty has stood the test of time in which its origin can be arguably traced back to the biblical era where in the Christian Holy Book (The Bible) several types of punishments on offenders of the Judaic law were meted out in which the end punishment was ultimately death as prescribed by the law. Some scholars have opined that God himself is the origin of the death penalty as an avid user of method of punishment, several instances can be found within the texts of the bible, (i.e “the wages of sin is death” ) This particular text imbibes that the ultimate punishment of sin is death in itself. Moving past the biblical perspective historically death penalty has been in use with different methods and techniques utilized over the course of history.
Historical Standpoints of the Death Penalty
Significant standpoints in the history of death penalty are as follows:
Purportedly the first codification of the death penalty was done in the 1700s BC, in the manner of the Code of Hammurabi. This legal document from ancient Babylon had inscribed on it the twenty-five crimes that if committed were punishable by death such as adultery, the helping of slaves to escape. Ironically the crime of murder was not a crime punishable by death.
The year 1608 in the British American Colonies the first documented execution took place for the crime of treason. Other crimes such as murder , heresy, witchcraft/socerery, and rape were all regarded as crimes punishable by death.
Italian scholar Cesare Beccaria in 1764 published his work titled Essays on Crimes and Punishment, aimed at studying the 18th century criminal justice system he called for the abolition of capital punishment as such he influenced the modern capital punishment abolition movement.
Moving past Europe in 19th century America in the colonies many states made strides in the reduction of death penalty uses by reducing the number of crimes punishable by death and in turn building state penitentiaries.
Between 1823-1837 out of the 222 crimes punishable by death the number reduced by almost have in which over a 100 crimes were removed a s crimes punishable by death.
In 1890 William Kemmler became the first person to be electrocuted this process was assisted by American Scientist Thomas E. Edison and his team of engineer.
1924 began the era of the gas chamber to be used as a method of execution. The use of mainly cyanide gas was introduced.
In Oklahoma 1977 the introduction of lethal injection as a method of execution was adopted for the first time, subsequently December 7, 1982 Charles Brooks became the first person in the United States to be executed by form of lethal injection.
The Landmark case of Ford v Wainwright where the Supreme Court banned the execution of insane persons.
It is pertinent to note that much of the history of death penalty or capital punishment arises from its history in the United States of America as they remain at the forefront for the use of death penalty in today’s modern world, because of this their history reflects just that.
Methods of Execution of Death Penalty
1. Lethal Injection: Lethal Injection involves the use of harmful chemical substances being pumped into the human body by means of injecting the drugs through an IV. The drugs include sodium thiopental which is also used as a general anesthetic such that the prisoner would feel nothing. Pancuronium bromide which is used to paralyze the lungs and the diaphragm, followed by potassium chloride which induces cardiac arrest stopping the heart. The prisoner at this stage succumbs to the lethal doses of these drugs and dies.
2. Electrocution: This usually involves the use of a contraption known as the electric chair invented by Harold P Brown, an understudy of Thomas Edison. The prisoner would be strapped to a chair with metal straps, a sponge upon his head to aid conductivity and electrodes are placed on the head as well as the leg to create a closed circuit an average of 2000 volts are applied and the person experiences death before falling into unconsciousness and eventually dying.
3. Gas Chamber: The gas chamber is a mean of execution that uses harmful gaseous compounds in order to end the prisoner’s life. The combination use of potassium cyanide and sulphuric acids. This death is unpleasant as it deals with the pain of holding ones breath in order not to breath in the gases before the lungs give in and the prisoner dies.
4. Firing Squad: This method of execution involves a group of men with guns who then fire a bullet aimed towards the heart of the prisoner. It is seen as honourable way as the bullet to the heart within a split second ends the life with virtually no pain.
5. Hanging: This remains an ancient form of execution that is still being utilized today where a rope of some sort is used to tie the neck whereby the offender will then be hoisted on an object of height where the executioner will then remove such an object leaving the offender to dangle until death by asphyxiation or strangulation occurs.
6. Beheading: Especially in relation to nations who imbibe Islamic Sharia Law the use of beheading as means of execution is not foreign. This involves the decapitation of the head of the offender by a blade to break the neck, killing the offender.
7. Stoning: As a popular method utilized during the bible times stoning involves the use of usually reasonably sized rocks that will be used to hit the person usually aimed at the head to effectively kill the person it remains an excruciating process that has no specific time limit before the offender dies.
Death Penalty/Capital Punishment Described
The issue of death penalty is subject to scrutiny by means of interpretation as such like many other concepts it has no universally accepted definition as such it has been defined severally by a plethora of dictionaries, scholars each one having a unique view of the subject matter.
Encyclopedia Britannica defined it as an eexecution of an offender sentenced to death after conviction by a court of law of a criminal offense. Capital punishment should be distinguished from extrajudicial executions carried out without due process of law. The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment.”
The Columbia Encyclopedia, in its 2008 sixth edition defined it as an iimposition of a penalty of death by the state. Capital punishment was widely applied in ancient times; it can be found (c.1750 BC) in the Code of Hammurabi. From the fall of Rome to the beginnings of the modern era, capital punishment was practiced throughout Western Europe…
Some of the first countries to abolish capital punishment included Venezuela (1863), San Marino (1865), and Costa Rica (1877). As of 2004, 81 countries had entirely abolished the death penalty, including the members of the European Union. Some other countries retained capital punishment only for treason and war crimes, while in others, death remained a penalty at law, though in practice there had not been any executions for decades.
The Catholic Encyclopedia, a compilation of Catholic teachings and definitions originally published in 1907, in an entry titled “Capital Punishment,” stated:
“The infliction by due legal process of the penalty of death as a punishment for crime. The Latins use the word capitalis (from caput, head) to describe that which related to life, that by which life is endangered. They used the neuter form of this adjective, i.e., capital, substantively to denominate death, actual or civil, and banishment imposed by public authority in consequence of crime. The idea of capital punishment is of great antiquity and formed a part of the primal concepts of the human race.”
From the following definitions therefore, the concept of death penalty can be rounded up as the idea or entity of killing convicted accused and criminals, for the purpose of retribution for their crimes.
A Necessary Punishment (Argument For)
Belgore JSC (as he then was) in the case of Kalu v State in his judgment described in relation to the death penalty its retributive nature:
“It is clear that much as the victim of a murderous assault was entitled to life, so also is the murderer liable to death for his death”
In this case the Nigerian Supreme Court unanimously upheld the constitutionality of death penalty.
The main line of argument in favor of capital punishment spans on the notion that a guilty person deserves a proportionate punishment as to the crime committed, as such the more severe the crime the more severe the punishment. This proportionality principle stands to assert that those who kill must also in turn be killed.
Death penalty is still in use in Nigeria and has been proven as one of the best possible avenues to stop crime in the society our arguments are based on the following salient points
The deterrence argument is based on the notion that the use of the death penalty prevents future murders. Society has always used punishment to discourage would be criminals from unlawful action since society has the highest interest in preventing murder, it should use the strongest punishment available to deter murder and that is the death penalty. If murderers are sentenced to death and executed, potential murderers will think twice before killing for fear of losing their own life.
Ernest van den Haag professor of jurisprudence and public policy, Fordham University said in his book, The Ultimate Punishment: A defense (Harvard Law Review Association 1986)
“Execution of those who have committed heinous murders may deter only one murder per year, if it does it seems quite warranted. It is also the only fitting retribution for murder i can think of” death penalty deters murders; there is a strong moral implication, that without death penalty, it is rational for a thief or rapist to kill the victim .
A just society requires the death penalty for the taking of a life
When someone takes a life the balance of justice is disturbed. Unless that balance is restored society succumbs to a rule of violence. Only the taking of the murderer’s life restores the balance and allows society to show convincingly that murder is an intolerable crime which will be punished. Retribution has its effects in religious values, which have historically maintained that is proper to take “an eye for an eye” and a life for a life.
Although the victim and the family cannot be restored to the former status quo before the murder, but an execution brings closure to the murderers crime and closure to the ordeal for the victim’s family and ensures that the murderer will no more victims.
Robert Macy, District Attorney of Oklahoma City, described his concept of the need for retribution in one case: ‘In 1991, a young mother was rendered helpless and made to watch as her baby was executed. The mother was then mutilated and killed. The killer should not lay in some prison with three meals a day, clean sheet, cable TV, family visits and endless appeals. For justice to prevail, some killers just need to die.”
Even the Christian Holy Book: The Bible says in the New Testament Romans 13: 1-4, “let every person be subjected to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists what God has appointed, and those who resist will incur judgment…. if you do wrong, be afraid, for the authority does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer. According to the Bible, the authority to punish, which presumably includes the death penalty comes from God. But we need not appeal to a religious justification for the approval of death penalty. Just as the state has the authority to act justly in allocating scarce resources, in meeting minimal needs of its (deserving) citizens, in defending its citizens from violence and crime and in not waging unjust wars; so too does it have the authority, flowing from its mission to promote justice and the good of its people, to punish the criminal. If the criminal, as one who has forfeited a right to life, deserves to be executed, especially if it will likely deter would be murderers, the state has a duty to execute those convicted of first degree murder. Kant held that “the state may and indeed should put murderers to death, for they deserve it. Justice requires equality offence and punishment and only death is equal to death. The murderer has committed himself to a maxim of killing, and the state is only applying his own maxim to him in executing him”.
Prevention of Re-offending
One who is dead can no longer commit crimes, as such this argument stands on the fact that a dead person cannot commit crimes again while advocates for life imprisonment may not see this as a justification the truth remains that there is a possibility that the prisoner may escape while serving a life sentence which is not foreign in history but death ends it all by not bring about an avenue for the offender to re- offend.
Closure and Vindication
With reference to the “an eye for an eye” principle this argument is based on the fact that many atimes death penalty brings about release, closure and vindication knowing that the one who committed such a heinous crime against their loved one(s) is no longer in the land of the living.
Fair Application through Discretion
The death penalty is not just applied lightly and as the law provides for it has been seen to be applied for the most part fairly through the use of the discretion of the justice system. Discretion has always been an essential part of the justice system. No one expects the prosecutor to pursue every possible offense or punishment nor do we expect the same sentence to be imposed just because two crimes appear similar. Each crime is unique, both because the circumstances of each victim are different and because each defendant is different, ideally not all crimes even though punishable by death make it mandatory that the death penalty will be utilized as a means of punishment. It can therefore be argued that because the use of the death penalty is not always applied it does a greater good to the society knowing that it remains a possibility either by form of deterrence for potential offenders or for hope for justification for the victim and their families.
...(download the rest of the essay above)