Capital Punishment

Capital Punishment and its Perils

Capital Punishment in Kenya

Brief Overview of Capital Punishment

Capital punishment is the legalized infliction of death as a penalty for violating criminal law.  By that same token, criminal law is the branch of law that defines crime, establishes punishment, and regulates the investigation and prosecution of people accused of committing crimes.  Throughout history, the controversial death penalty, for various forms of crimes, had existed in antediluvian acts such as stoning, drowning, crucifixion, burning and impaling; with beheading being universally satisfactory. Today, capital punishment is widely accomplished by lethal injection, electrocution, shooting and hanging. Only corporal punishment comes close in severity to capital punishment (or the death penalty), which still remains the most controversial penal practice of the modern world.  Although corporal punishment has been generally eliminated in modern times, the death sentence remains widespread, especially in the developing countries.  “In 2008, there was a growing reluctance among those countries that do retain the death penalty to use it in practice. Only 25 out of 59 countries that retain the death penalty carried out executions” – AI. The trend in developed countries has been to abolish executing prisoners and substitute it with life in prison. While many supporters of capital punishment say that it is a necessary form of retribution, the detractors, and there are many, argue that it’s a barbaric and degrading act. 

Many such detractors dispute the proper interpretation of statistical analysis of its deterrent effect. They present it as a human rights issue involving the proper limits of governmental powers. Today, partly thanks to extensive government legislation authorizing immoral practices like abortion, it is an elusive theme to find any lawful authority that is justifiable with regards to the implementation of the death penalty.  Still and all, many agree that the ethical inadequacies of a government do not disqualify every facet of its authority, and if that were that the case, anarchy would prevail. Capital punishment is not, therefore, a flawless system in actual practice, because imperfect human beings are involved in the procedure of finding the guilty party, and, as such, they are in peril to human error.  A conference at the University Law School in Chicago brought under the limelight that since 1976 (when capital punishment was reinstated in the USA) that 75 convicts were found guilty of capital crimes, sentenced to the death penalty, and were later found innocent – accounting roughly for one seventh of prisoners who have been executed.  The counter argument is that courts would have to abolish all laws to avoid completely the punishment of innocent people.

An extreme version of this question arises in connection with the practices of capital punishment. What justifies the institutionalized killing of those guilty of murder or other grave offenses? Why do we, or should we, seek the death of some criminals? This question is much more pressing in Kenya as a result of the crime bill of 2015 that unsatisfactorily sought to abolish capital punishment in Kenya. How might we define institutionalized punishment, the justification of which is being debated here? Widespread academician agreement holds that legal retribution involves five characteristics. Firstly, that the punishment must engross unpleasant consequences for the offender; for example, imprisonment, fine, or death. Secondly, that the retribution must follow from the violation of a law: a rule of behavior prescribed by a properly constituted governing authority. Thirdly, the one punished must have been found blameworthy of violating the law. Fourthly, the affliction must be administered by someone other than the guilty party. And fifthly, the one administrating the said punishment must be a properly designated authority. Is it reasonable for an authorized representative of society to cause ultimate suffering on those found guilty of violating the law?


Top Five Facts About Capital Punishment


The History of Capital Punishment

The unnerving forms of retribution in ancient societies like Rome and Greece had ruthless chastises, taking to horrific forms like stoning, throwing offenders off a cliff, crucifixion, burning in public, burying alive, hanging, dragging and, of course, the fateful guillotine.  Other bizarrely inventive forms of punishment included physical mutilation like cutting off a hand, mutilating of a tongue or ear, branding, and corporal punishment like thrashing, torture, taking away of personal property, exile and forced hard labour like working in the mines, in the galley of a boat or forced to participation in gladiatorial combat. In medieval England similar hard-hearted capital punishment techniques were in effect, most carried out in public to deter likely offenders and public disesteem for the victims. For severe crimes, punishment took the form of exile and physical mutilation. So, by 1500, capital punishment, including the death penalty, was available for as many as 200 felonies. In fact, the benefit of clergy was applied as a way to downgrade the rampant use of capital punishment.  This is because the clergy in those dark-days was only answerable under ecclesiastical law.  As a result, common law courts could not impose capital punishment.  As the benefit of clergy extended, parliaments endorsed statutes quoting that many serious crimes were not be subject to the opinion of the clergy. And for minor crimes, varied forms of public shaming like the pillory and branding were usually used.

By the 1600’s, and more so in the 1700’s, transportation to new colonies, which involved forced labour in a penal colony, became a popular form of punishment and was by and large seen as an apposite substitute to the death penalty. Forced labour in ship galleys and workhouses was another form of punishment for the minor offenders. In England, anyone convicted of a crime was likely to lose all property rights and rights to inherit property.  In the late 1700’s transportation to the colonies became a less viable alternative, more so for those inhabiting the new colonies. At this point the penitentiaries gave rise to an alternative, capital punishment.  Penitentiaries were designed for holding death penalty offenders and long-term imprisonment.  Great Britain through her expansion of colonies influenced the use of the capital punishment in the United States, Canada and colonial Africa. In Canada for example, the first penitentiary system was ground in Kingston, Ontario, in 1835. Like other consequent penitentiaries, it adopted the congregate method. Retribution for crimes at the start of 19th century was comparable to England.  Death penalty, transportation, corporal punishment, banishment, pillory and branding were in wide use. In 1800, fines were set up in Canada as an alternative to branding, as was imprisonment with hard labour.

Canada’s Race to Abolish Capital Punishment

In 1830, branding was eliminated as a punishment in Canada as was corporal punishment in the form of public flogging. However, whipping in the private confines of the prison continued for many serious crimes offenders.  Whipping remained an alternative punishment for sexual offences in Canada until 1972. Also, capital punishment was also losing goodwill.  In 1833 the Upper Canada legislature restricted capital punishment by death penalty to only nine serious crimes: rape, treason, murder, rape, bestiality, buggery, robbery, arson, and burglary. In 1867, in the advent of Confederation, the federal government had exclusive legislative jurisdiction for determining punishment and crimes.  In 1869, the federal government passed a number of Consolidation Acts, one of which adopted the penalty structure delineated in a similar English Act of 1861. That penal structure for offences started with capital punishment, then life in prison, then terms of imprisonment for shorter spans ranging from six month to fourteen years.  That penalty scheme subsequently adopted in the first Canadian Criminal Code of 1892 and has remained in effect in many ways to date. The BNA Act also assigned the mandate to the federal government to establish and run penal facilities and assigned responsibility for reformatories and local jails to the provinces. Capital punishment by hanging was officially abolished in 1975 in Canada. The last hanging to occur in Canada was in 1962.