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With a generally incompetent police force, and very limited detective and DNA capacity, the death penalty will do little to protect those who live in this country, writes Serjeant at the Bar.
It is hardly surprising that calls have been made for the reinstatement of the death penalty in the wake of the recent horrendous murders of young women. Indeed, it is understandable that the public is desperate for any possible solution to the ever-increasing violence, particularly against women and children. The criminal justice system has failed the country abysmally at the very time that any scintilla of social cohesion has disappeared.
While no justification for the gross inhumanity perpetrated on a daily basis, in these latest cases against young women with their lives full of promise cut short so savagely, we are truly reaping the harvest of more than 300 years of violence which manifested itself systemically on the basis of race and gender.
Twenty-five years into constitutional democracy, and the violence has only intensified. It should not be forgotten that unemployment, even on a conservative estimate is 29%. The geography of our cities have hardly transformed from their apartheid formats and millions live in the same squalor and despair as characterised life before 1994. Patriarchy is still dominant and populist forms of politics seek to divide between us and them – vide the xenophobia engulfing Johannesburg at present.
The past 10 years have eviscerated the competence of key institutions, including the National Prosecuting Authority and the police service, which has never been able to transform itself from its repressive past into the key guardian of the safety of 58 million people. I mention all of this, albeit briefly, to focus attention on the key question – can the reinstatement of the death penalty serve the purpose claimed for it by those who now wish it to return? In other words, can the death penalty assist in reducing the current levels of violent crime? Comparative research on this issue is not particularly helpful.
In 2012, the National Research Council in the USA published a report on the available research at that time. Of particular relevance was the following passage: "The relevant question about the deterrent effect of capital punishment is the differential or marginal deterrent effect of execution over the deterrent effect of other available or commonly used penalties, specifically, a lengthy prison sentence or one of life without the possibility of parole. One major deficiency in all the existing studies is that none specify the non-capital sanction components of the sanction regime for the punishment of homicide. Another major deficiency is the use of incomplete or implausible models of potential murderers' perceptions of and response to the capital punishment component of a sanction regime. Without this basic information, it is impossible to draw credible findings about the effect of the death penalty on homicide."
In 2014, Franklin Zimring - a famous criminologist - took the debate further by analysing the effect of the death penalty in Singapore and Hong Kong. He and his co-researchers found that Singapore had an execution rate close to 1 per million per year until an explosive twentyfold increase in 1994-95 and 96 to a level that we show was probably the highest in the world.
Then over the next 11 years, Singapore executions dropped by about 95%. Hong Kong, by contrast, has no executions during the last generation and abolished capital punishment in 1993. Homicide levels and trends are remarkably similar in these two cities over the 35 years after 1973, with neither the surge in Singapore executions nor the more recent steep drop producing any differential impact.
In summary, the available evidence does not suggest that the re–introduction will serve the claim of a reduction of the brutality that continues to engulf South Africa. Indeed, our own history of the death penalty, where outside of China we executed more people per capita than any other country, serves as a clear warning – rape and homicide never reduced during this period.
For certain poor, mainly black accused felt the brunt of capital punishment and almost invariably they were represented by the most junior of lawyers. Anyone interested in this past should read Johnny Steinberg’s recent book One day in Bethlehem to understand how, within this context, innocent people can be murdered by the State due to the inadequacy of the criminal justice system.
That this did not happen in the devastating account rendered by Steinberg was only because, at the time of conviction the death penalty was no longer in operation. Even if the research and history indicated otherwise, with a generally incompetent police force, and very limited detective and DNA capacity, the death penalty will do little to protect those who live in this country, particularly women and children, from the heart of darkness which is contemporary South Africa.
In addition, this debate should not be used to divert attention for the core issues - a competent and accountable police service, a definitive and decisive set of initiatives to grow the economy and give millions real hope, an end to residential ghettos inherited from apartheid spatial policy so that residential areas can provide dignity for all, free from the violence of gangs and determined policies immediately implemented to expose the horrendous forms of patriarchy that exist in this land. Any less and we will continue to repeat the present.
- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.
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