The Death Penalty Discussed

Posted on 24. Jan, 2016 by in Papers

Among the punishments faced by citizens in a modern society, none are more severe than the death penalty. In use from Canada’s founding in 1867, till its abolition in 1976, the death penalty was exercised in the sentencing of nearly 600 persons. Having only been abolished in 1976, with an attempt to reinstate it in 1987, the death penalties use in Canada is still fresh in the minds of many Canadians. Throughout it’s use in Canada, and increasingly around the world in the 21st century, there has been controversy surrounding the use of the death penalty. This essay attempts to outline, and provide historical and modern context to this multifaceted issue. The history of it’s use, different methods, the societal and political factors that influenced the changes, where we are today, as well as the impacts of this change will all be discussed.

Unfortunately, records of the use of capital punishment in Canada before confederation are sparse due to the lack of a coordinated effort to keep records, as well as damage due to fire and rot. One of the first recorded uses of the death penalty in Canada was that of a sailor in Halifax in 1749. With the confederation of Canada in 1867, statutes were established which outlined offences that could result in the use of capital punishment. In 1927 those statutes were amended for the last time, leaving four capital offences in Canada; murder, treason, making war against Her Majesty (high treason), and rape. The last execution in Canada was a double hanging of Ronald Turpin and Arthur Lucas, both convicted murderers, that took place at the Don Jail in Toronto on December 11, 1962. In 1963, the Lester B. Pearson government effectively removed the death penalty as an option for the courts by mandating executive authority for its use. The Federal Cabinet denied the use of capital punishment in every case leading up to its abolition, and instead commuting the individual instead to life in prison. Throughout the 1960’s and early 70’s many in the House of Commons came to see the death penalty as a form of retributive punishment, something which they considered to have no place in the judicial system of a modern Canada. The moratorium on the use of capital punishment continued up till its abolition in 1976. Bill C-84 was passed as a free vote in the House of Commons on July 14th 1976 with a narrow majority of 130 in favour and 124 against.

Nearly 35 years after the abolition of the death penalty, and 50 since its last use in Canada, there is still significant support for it among Canadians. The main reason for support of the death penalty, both when it was still in use, and by many people today, is its contribution towards retributive punishment. People want to see criminals pay for their crimes. Many people still see the sentences for crimes as a means to achieve the “eye for an eye” aspect from the Code of Hammurabi. Three in five respondents to a 2013 Angus Reid poll support reinstating the death penalty for murder in Canada. Of the Canadians who support the reinstatement of the death penalty, a majority do so because they believe it would be a good deterrent for potential murderers. Two in five also support the death penalty as they believe it would provide closure to families of murder victims. One in five also believe that it should be reinstated because murderers cannot be rehabilitated. Of those who are opposed to the reinstatement of the death penalty, a majority are concerned with the possibility of a wrongful conviction. Half of those in opposition also believe that it is wrong to take a murderers life, and that it will not serve as a deterrent for potential murderers.

As a method of specific deterrent, nothing else comes close to the permanent nature of the death penalty. As of yet, there has been no cases of recidivism for persons having fulfilled their capital punishment sentence. This exemplary record should, in theory, translate into a extremely effective general deterrent. By making an example of people who commit these crimes, others should be hesitant to commit capital offences. Unfortunately, this has not been the case in Canada or around the world.
One possible indicator of the effectiveness of this deterrent is the change in crime rates before and after its abolition. If the death penalty were serving effectively in it’s role as a general deterrent then its abolition should have seen a rise in crimes that would have previously resulted in capital punishment. The most consistently convicted and reported of the four capital crimes, and that with the most data available to make a comparison, is murder. In the years leading up to the abolition of capital punishment in Canada, the murder rate climbed steadily, year over year, from a rate of 1.28 per 100000 people in 1961, all the way up to 3.03 in 1975. Murder rates in Canada have been dropping steadily ever since 1975, and were still dropping in 2012 when the murder rate was 1.56/100K. There is seemingly no direct correlation between the peak in the homicide rate in Canada, and the abolition of the death penalty. One can instead attribute the changes in the homicide rate to other variables such as possible changes in law enforcement or the changing socio-economic climate in Canada at the time, as well as today.

 

With the 1989 signing of the Second Optional Protocol of the International Covenant of Political and Civil Rights, Canada reinforced what was already enshrined in Canadian human rights and criminal law. This international treaty outlined the abolition of the death penalty, and the stance signatory states should take towards capital punishment. The most fundamental concept in this treaty is that the “abolition of the death penalty contributes to the enhancement of human dignity and progressive development of human rights”. With such a profound, and civilized statement like that, Canada would have faced tough domestic, and international, backlash for any future attempts of reinstate the death penalty, not only as a result of breaking the treaty, but also having to explain why they are seemingly regressing from their place as a civilized society.

Dating back to the Treaty of Paris, and the subsequent withdrawal of France from North America, the use of hanging has been the sole method used to carry out a capital punishment in Canada. There have been several variations on the technique used to hang those convicted of a capital crime over the years. Each successive variation attempted to make the process quicker and to cause less suffering for the condemned.
This first methods used was hoisting, where the convicted person would be lifted into the air by a rope, pulled by others, suspended over a beam where by the slip-knot would tighten around the neck until strangulation occurred.
The first major change to the technique used in hanging took place when instead of being lifted up, the condemned was dropped, having had the support they were standing on removed from underneath them. They would then fall five feet, resulting in the dislocation of the neck, allowing for them to asphyxiate while unconscious.
A modification of this methods was adopted from the development by the famous British hangman, William Marwood. This “long drop” method meant that the extended fall guaranteed that the prisoners neck was broken at the end of the fall, ending their life without asphyxiation. This methods was considered more humane than the traditional “short drop” method which often had the prisoner hang for minutes, conscious, slowly asphyxiating. The main drawback of the long drop method was that if the drop was too long then the convict could be decapitated.
The final method used was a jerking technique in which a counterweight was dropped, attached to the other end of the rope around the prisoners neck, suspend over a beam. This technique worked in a similar way to the short drop method.
Some institutions in larger cities had permanent execution facilities, while other merely assembled scaffolding for specific instances. Some jails that made use of the drop technique would suspend the prisoner in the air to be dropped to ground level, while other would drop from ground level into a pit.

The abolition of the death penalty in Canada came as the culmination of many years of work by high level politicians. This progression was driven by the desire to elevate Canada among its allies and bring itself, and the Canadian Criminal Justice system, into the modern era. Although there was an attempt to reinstate the death penalty in Canada in 1987, a reinstatement would have faced serious domestic and international legal opposition. The main legal reason facing retentionists it the signing of the Canadian Charter of Rights and Freedoms in 1982. Article 7 of the Charter states that “Everyone has the right to life, liberty and security of the person”. While prison is able to deprive freedom from convicts, it still abides by Article 7. Though uncontested at the time, during a case in the early 2000’s, the Supreme Court of Canada surmised that the death penalty would be incompatible with the Canadian Charter of Rights and Freedoms should an attempt be made to reinstate it. This incompatibility also extends to upholding international law and criminals located in Canada, but facing extradition for capital crimes in other countries. All persons in Canada, whether Canadian or not, are still protected by the Canadian Charter of Rights and Freedoms. In 1991, during a case in front of the Supreme Court of Canada, the extradition of two American fugitives was only carried out following the United States signing a guarantee that they would not face the death penalty for their crimes.

There was never any significant attempt to find a replacement for hanging in Canada as most of the alternative methods were introduced after Canada stopped using the death penalty. There has been extensive efforts, specifically in the US, to find a humane way of sentencing people to death. Should Canada ever consider reinstating the death penalty, and provided they were able to find a way to successfully challenge the death penalty’s incompatibility with Article 7 of the Charter of Rights and Freedoms, the government would need to carefully consider the ramifications of Article 12 of the Canadian Charter of Rights and Freedoms. This section states that “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” Many, if not all, of the current methods in use by the United States would fail to live up to this due to their systemic unreliability.
The United States has made use of five different methods of capital punishment; hanging, electrocution, firing squad, lethal gas, and lethal injection.
Unfortunately, none of these methods of capital punishment are completely humane. Long drop hanging has always required a fine balance between a long enough drop to break the neck, and one short enough so as to not decapitate the prisoner. Canada’s second hangman was relieved of his duty for the miscalculated hanging of Thomasina Sarao in Montreal in 1935, where she was decapitated. If the drop was too short prisoners would end up hanging by their neck, slowly suffocating until they died of asphyxiation.
The use of electrocution as a methods of execution has also been phased out as it too is considered too inhumane. The practice was phased out after multiple cases where recipients were only killed after multiple shocks, and with large electric burns to areas of their bodies around the electrodes.
Firing squads have historically been used mainly in military settings, both by the Canadian Forces as well as the US military. While not in extensive use today, there have been instances where the condemned has survived the first volley of shots, and has suffered in agony waiting for a second round.
Lethal gas chambers also have a controversial history as they have resulted in situations where the condemned has suffered for minutes on end, gasping for air as they slowly suffocate on the poisonous gas.
Finally, the use of lethal injection, which is currently the main method used in carrying out capital punishment in the US, has also not been without incident. There have been multiple cases where prisoners have writhed in agony from internal chemical burns for minutes after being injected before they finally succumb to the chemicals. There is also a shortage of chemicals needed to perform these procedures as the only companies able to produce them are located in Europe, and are banned from exporting them for execution purposes.

There is one possibly humane method of execution that isn’t currently in use. Oxygen deprivation to the brain as a method of rendering the person unconscious before they finally die of asphyxiation. This is different from the other methods of execution by asphyxiation as there is a guarantee that the person will be unaware of their predicament due to the nature of oxygen deprivation to the brain The use of altitude testing chambers as a method of execution was explored by a documentary team from Britain. They found that the simulated high altitude conditions resulted in the person entering a hypoxic state where their brain was deprived of oxygen, releasing natural chemicals which left them in a delusional euphoric state. In the case that was tested, the subject was completely unaware that they were seconds away from falling unconscious and instead thought they were somehow beating the test being performed.

With the death penalty having not been used in Canada since 1962, it is hard to pinpoint the exact cost of a reinstatement of the death penalty in Canada today. Using examples from the United States it is easy to see that the costs involved are astronomical. In Kansas, the trial involving someone charged with a capital crime costs the state over 500 thousand dollars, more than sixteen times greater than that of a regular trial. In 2010 it was estimated that it cost the state of Florida $51 million a year to impose the death penalty. It is also estimated that it costs $24 million to carry out each execution. This is compared to $500 thousand, the cost of housing an inmate in prison for the rest of their life. This trend of extremely expensive processes can be seen across every state in the US that still practices the death penalty. Some states have tried to cut back on these costs by simplifying the process, and reducing certain safeguards, and options for appeal, some of which could breach the condemned’s right to due process. Capital punishment cases take longer to try, longer for the judge to write a report, longer for the appeal process. All this time costs money and backs up an already sluggish judiciary system. Canada would have to find a completely new way of conducting their capital punishment process if they were to consider its reinstatement.

The biggest problem of all with the use of capital punishment is the possibility that an innocent person will be put to death. Where as with a jail sentence the person can be pardoned, and then compensated for their incorrect imprisonment, there is no recourse for those falsely put to death. The advent of more advanced forensic techniques have made it harder to falsely convict someone for which they could be sentenced to death. Unfortunately, there are still cases where new evidence is exonerating those that have been executed years after their sentence was carried out. There have been 17 cases in the the United States since 1992 where inmates sentenced to death, awaiting execution on death row, have been exonerated due to new DNA evidence becoming available. A conservative estimate on wrongful convictions of capital crimes estimates that 4.1% of people on death row in the United States are innocent of the crimes they are convicted of. This number is probably much lower that the actual rate as there is little pressure, or incentive to further investigate cold cases once the convicted person has been executed.

As the developed world has moved into the 21st century the number of countries still making use of capital punishment is continuing to drop. From a societal and economic standpoint there are extremely compelling reasons to avoid the use of the death penalty. That being said, there will always be those who will want retribution for crimes committed regardless of societal advancement.

Bibliography

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Canadian Charter of Rights and Freedoms, s 2, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

John Howard Society of Ontario. (March 2001). The Death Penalty: Any nation’s shame. Retrieved from http://www.johnhoward.on.ca/wp-content/uploads/2014/09/the-death-penalty-any-nations-shame-march-2001.pdf

Jonas, O. (June 2013) Human Rights, Extradition and the Death Penalty: Reflections on The Stand-Off Between Botswana and South Africa. International journal on human rights. Volume 10, number 18.

Loney, H. (2013, December 19). Canada’s 2012 homicide rate at lowest level in nearly 50 years: StatsCan.

Podlow, J. (March 1, 2010). Take a hard look at the real cost of the death penalty. The Florida Bar News. Retrieved from http://www.floridabar.org/divcom/jn/jnnews01.nsf/8c9f13012b96736985256aa900624829/bce3cb33c0857da4852576ce0066f7b4!OpenDocument

S.V. (2000, January 4). The High Price of Killing Killers. Palm Beach Post, A Section, Pg. 1A

Thompson, A. S. (2008). Uneasy Abolitionists: Canada, the Death Penalty, and the Importance of International Norms, 1962-2005. Journal Of Canadian Studies, 42(3), 172-192.

Topping, C. W. Annals of the American Academy of Political and Social Science Vol. 284, Murder and the Penalty of Death (Nov., 1952), pp. 147-157

Von Drehle, D. (April 28, 2014). More Innocent People on Death Row Than Estimated: Study. Time. Retrieved from http://time.com/79572/more-innocent-people-on-death-row-than-estimated-study/

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