IS PUBLIC OPINION A JUSTIFIABLE REASON NOT TO ABOLISH THE DEATH PENALTY? A COMPARATIVE ANALYSIS OF SURVEYS OF EIGHT COUNTRIES

24 May 2019 :

Berkeley Journal of Criminal Law

Volume 23 Fall 2018

Is Public Opinion a Justifiable Reason Not to

Abolish the Death Penalty? A Comparative

Analysis of Surveys of Eight Countries


Roger Hood


Introduction 219

Empirical Evidence 222

On What Knowledge are Opinions on Capital Punishment Based? 224

The salience of the issue 224

The impact of information 226

Assessing strength of opinion 228

Does Support for the Status Quo Indicate Resistance to Reform? 229

Generality or Specificity 231

In Abstract or in Practice? 231

Effects of case specificity: aggravating and mitigation factors .231

Support for the mandatory death penalty in practice 236

The Most Appropriate Policy? 237

An alternative penalty? 237

Executions compared with other social and criminal justice policies 239

Concluding Remarks 240


Introduction

Most, if not all, retentionist countries that retain capital punishment—both those that continue to enforce it by carrying out executions and those that maintain it on their statute books but do not enforce it —are parties to the International Covenant on Civil and Political Rights (ICCPR), Article 6(1) of which protects the right of every human being not to be arbitrarily deprived of life, and Article 7 protects everyone from torture or “cruel, inhuman or degrading treatment or punishment.” Certain restraints in Article 6 are intended to try to ensure that those countries that still retain the death penalty confine its use to “the most serious crimes;” to adults over the age of 18 at the time of committing the capital offence; and to women who are not pregnant. Further safeguards were introduced from 1984 to protect new mothers, the insane, and those who are not mentally competent, and to ensure that procedural safeguards guarantee a fair trial and access to appeal and clemency.3 However, nothing in the ICCPR or the UN Safeguards was meant to legitimize the continuance of the use of the death penalty, whether enforced by executions or not. Article 6(6) makes it clear that “Nothing in this article [All of Article 6] shall be invoked to delay or to prevent the abolition of capital punishment.”

Nevertheless, many (but a diminishing number) of the countries which continue to support the use of the death penalty, whether they have ratified the ICCPR or not, reject the claim that it is a violation of human rights. They maintain that it is “first and foremost an issue of the criminal justice system and an important deterring element vis-à-vis the most serious crimes”… to be “determined by each State, taking fully into account the sentiments of its own people, the state of crime and criminal policy.” 4 It is clear that “sentiments” encompass and are usually indicated by what is more often referred to as public opinion. To take a few examples: in December 2012, the Justice Minister of the Liberal Democratic Party of Japan, Sadakasu Tanigaki, was reported to have said; “The death penalty has strong support among victims’ relatives and the public . . . I think the death penalty is necessary.”5 In October 2014, Taiwan’s Justice Minster, Luo Ying-shay, was reported to have voiced her personal support, as a Buddhist, for abolition at a meeting of the Judiciary and Organic Laws and Statutes Committee, but asserted that because about 70 percent of the public approve of capital punishment, “one should listen to the public’s opinion instead of acting on one’s own opinions.”6 In September 2016, Dr. Balakrishnan, the Foreign Minister of Singapore, in a moderate speech at the UN emphasized his country’s view that: “Every State has the sovereign right, indeed a sovereign duty, to decide for itself what works, and to take into account its own circumstances. In Singapore, there are very high levels of support on the part of our people for the death penalty to remain on our books.” However, he went on to say: “But we do not take this support for granted and from time to time, we will `continue to review our legislation and make changes according to our circumstances.”7

In contrast, those who support abolition maintain that although public opinion is to be respected, it cannot be regarded as crucial in deciding this issue. Although the majority of citizens may support the death penalty, this may simply be because they have become socialized and conditioned to accept it as a legal and cultural norm, the justification for which they have barely considered further. Indeed, they may base their views on misinformation and misconceptions about the administration of the death penalty. In particular, they may be unaware of evidence relating to whether it can be enforced without uncorrected error leading to its infliction on innocent or undeserving persons; on whether it can be administered equitably, proportionately and without discrimination; and on whether there is valid evidence that it has a uniquely effective general deterrent effect beyond that of any lesser threatened punishment. Thus, views might change as people become more able to make an informed appraisal of the evidence.

As is well known, the great increase in the number of countries that have abolished the death penalty since the end of the 1980s has not been achieved as a result of the majority of the general public in these countries demanding abolition, or even supporting abolition at the time. Political will and judicial support— what Frank Zimring has characterized as “leading from the front”— have been the keys to abolition.8 Abolitionist nations hold steadfastly to the view that popular sentiment alone should not determine penal policy. They believe that the issue should be determined by political leaders who can exercise their judgment based on an informed and rational appreciation of the case for abolition, judged in the light of contemporary human rights standards. Thus, even though the South African Constitutional Court accepted, in the case of State v. Makwanyane in 1995, that the majority of South Africans were in favor of the death penalty in extreme cases of murder it nevertheless held it to be unconstitutional.9 As William Schabas pointed out, to make human rights guarantees “contingent on public opinion, one of the very forces it is aimed at counteracting or neutralizing,” would “contradict the raison d’être of human rights law.”10 Abolitionists hold that it is the duty of the State not to respond to the vengeful sentiments and demands of a vociferous majority so as to satisfy and reinforce such emotions. Rather, it is to ensure that even those who commit the very worst of crimes must have their right not to be treated inhumanely protected by the State and its organs of criminal justice. In fact, public opinion is shaped by the use made of capital punishment, not vice-versa, as demonstrated when executions become no longer legitimated by the state. As Franklin Zimring and Gordon Hawkins put it in 1986, illustrating their argument with convincing data on the decline in public support for the death penalty in Germany from 74% in 1948 prior to abolition in 1949, to 26% thirty years later in 1980: “…once abolition is accomplished, the death penalty, although previously the subject of wide-spread debate, ceases to be a pressing public issue.”11

Empirical Evidence

The purpose of this article is to shed light on these issues from the findings of public opinion surveys carried out in eight retentionist countries (named below) which have continued to maintain that abolition is not feasible because of the depth of public opposition to it. Building on previous research, mostly in the USA,12 these surveys have attempted to assess not only the size but also the strength of public opinion in favor of the death penalty and the level of actual opposition to its abolition; to what extent opinion is based on sound knowledge about the use and administration of the death penalty; whether citizens are “in general” supportive of capital punishment or their support is conditional on the gravity of the particular circumstances of the offence, including both aggravating and mitigating factors; and what level of support there is for a mandatory rather than discretionary infliction of the death penalty.

The surveys also investigated the extent to which respondents were steadfast in their views or prepared to change them when confronted with new information about the effectiveness of the death penalty and its administration: such as scientific evidence on the general deterrent effects of executions; the availability of satisfactory alternative punishment or social and criminal justice policies; the existence of the possibility of error leading to execution of innocent persons; and the extent to which opinion is affected by awareness of international trends towards abolition in other countries.

In particular, several of the surveys attempted to compare immediate opinion, in response to being asked whether they favor the death penalty or not, with decisions made when they were faced with practical examples of capital cases and asked to decide whether or not they merit the death penalty. This method enables us to test whether or not citizens living in different retentionist countries do make substantially different judgments as regards their level of support for the implementation of capital punishment, such as may constitute, as their governments proclaim, a barrier to its abolition.

The eight public opinion polls from which evidence is drawn all employed a very similar methodology, often asked exactly the same questions and were all carried out within the past decade. The author was responsible for the design, analysis and reporting on two of them and acted as a consultant to the authors of four others. Thus, it was possible to a substantial degree to compare the findings. The countries, and the size of the samples from which evidence is drawn, were: The People’s

Republic of China,13 Trinidad,14 Malaysia,15 Singapore,16 Taiwan,17 and Ghana,18 plus two in which the author had no role: Japan19 and Belarus.20

On What Knowledge are Opinions on Capital Punishment Based?

The salience of the issue

The surveys reviewed here all challenge the assumption made by retentionist governments that it is necessary to retain the death penalty because public opinion reflects a high level of interest in and concern about the issue. Yet this claim was not supported by the surveys. In China, for example, where the State insists that public support for the death penalty is very high, the survey of almost 4,500 citizens, gathered from three provinces, revealed that only three percent said that they were very interested in the issue, and only a quarter were interested at all.21 Also, in Malaysia in 2012 and in Singapore in 2016, very few respondents said

they were “very interested or concerned”: only eight percent in Malaysia and five percent in Singapore.22 Indeed, 36% of Malaysian and 40% of Singaporean respondents said they were not very interested or at all concerned.23 In Accra, Ghana, where the death penalty remains the mandatory punishment for murder, a mere nine percent of the respondents said they were very interested and a third were not interested at all.24

This certainly helps to explain why most members of the public whose opinions were surveyed in these countries admitted that they possessed limited knowledge about the scope of capital punishment legislation, whether mandatory or discretionary, and how often it is enforced. In China, Japan and Malaysia, for instance, where various levels of secrecy surrounds the use of the death penalty, it was found that the proportion of those interviewed who claimed that they have a good knowledge of the system is exceptionally low: in China only 1.3 percent said they had “a lot” of knowledge and less than a third that they possessed “some knowledge;” in Malaysia a mere six percent felt they were “very well informed” about the death penalty in their country and around a half (53%) said that they were not well informed at all. In fact, only 40% knew that the death penalty was mandatory (the only penalty that can be imposed by the judge following conviction) for drug trafficking and murder, despite the public warnings issued by the authorities.

In Japan also, Mai Sato found that when she presented her respondents with seven items of factual information about the use of the death penalty and asked them to rank their prior knowledge of these facts on a four-point scale, ranging from “I knew all about it” to “It was new information to me,” only two (both abolitionists) of 535 respondents selected “I knew all about it” for all seven items.25 In a second survey carried out in 2014, Sato and Bacon found that that only nine of 1,542 respondents correctly answered all five factual questions about the death penalty put to them. They concluded that they were “misinformed or ignorant.”26 In Taiwan too, only four out of 2,039 persons interviewed knew the answers to all four factual questions put to them and 55% knew the answer to none of them.27

It was not surprising to find that in Trinidad, a country with an exceptionally high rate of homicide,28 82% of those surveyed said that they were very interested or interested in the subject of the death penalty. Yet, interest had not been due to, nor did it produce, a more knowledgeable citizenry. Only one in six (17%) said that they felt “very well informed or knew a great deal” about it, and almost half (47%) knew “little or nothing.”29 This was also the case in Ghana, where Justice Tankebe and his colleagues found that eight out of ten of the 2,448 citizens interviewed in Accra said that they knew “nothing” or “little” about the death penalty. In fact, only 2.7 percent knew “a great deal,” despite the high incidence of homicide in that city. 30 A survey in 2013 of 1,000 people in Belarus, the only European country where executions continue to be carried out, found that a third of the respondents were not even aware of this fact.31

These findings show clearly that public opinion in these retentionist countries is rarely based on a sound empirically accurate appreciation of the use and effectiveness of capital punishment in practice.

The impact of information

Beginning in the United States, empirical investigations have been made to assess the hypothesis which Justice Thurgood Marshall put forward in 1972 when declaring capital punishment unconstitutional in Furman v. Georgia. He had argued that if “the average citizen” had “knowledge of all the facts presently available regarding capital punishment” [he] “would . . .find it shocking to his conscience and sense of justice.” Marshall therefore believed that “it is imperative for constitutional purposes to attempt to discern the probable opinion of an informed electorate.”32

In Japan, Mai Sato found evidence to support this hypothesis. She conducted an experiment, drawing two sub-samples from her initial large- scale survey. An experimental and a control group, both with 542 members, were selected, each containing equal proportions of retentionists, abolitionists, and those who had answered “cannot say.” The experimental group was provided with information about the operation of the death penalty system in Japan, which they read for 10 minutes. The controls, on the other hand, were not given such information.33 The views of both groups on whether the death penalty should be kept or abolished were then sought again. This revealed that the proportion of respondents who said that the death penalty should definitely or probably be kept was 10 percentage points lower in the experimental group (36%) than in the control group (46%). Conversely, 30% of the experimental group thought that it should be abolished, compared with 25% in the control group.34

Furthermore, using another approach, very strong and consistent evidence has emerged from the countries surveyed to show that support for the death penalty was contingent upon a belief that it is administered without error. Respondents in China, Trinidad, Malaysia, and Singapore were asked whether they would still favor the death penalty “if it were proven to their satisfaction that innocent persons had sometimes been executed.” Support for capital punishment fell dramatically in all these countries: from 58% to 25% in China for the death penalty in general; and, for murder specifically, from nine out of ten respondents to only a third in Trinidad and Malaysia and about four in ten in Singapore.35 Similar findings emerged from the surveys in Taiwan and Ghana.36


There is also evidence that the level of support for the death penalty was affected by empirical evidence about its supposedly uniquely strong deterrent effect on criminality. Respondents were asked whether they would still support the death penalty if “new scientific evidence proved that the death penalty is not a better general deterrent than life imprisonment or very long-term imprisonment.” Of course, the size of the effect varied, depending on the proportion who had cited general deterrence as a reason for supporting the death penalty. For example, in Trinidad where very few respondents had mentioned general deterrence as a reason for supporting the death penalty, a mere 12% of the 89% of respondents who favored the death penalty had said that such information would lead them to change their mind.37 However, in Singapore, where six out of ten of the 92% who were in favor of the death penalty for intentional murder believed in its uniquely powerful deterrent effect, only 57% of the total sample said they would still favor retaining the death penalty if it were proved that it is not more effective as a deterrent to murder than life or long-term imprisonment: a bare majority.38

Thus, this is further evidence that surveys which do not test the knowledge basis on which opinion has been based will provide a very misleading assessment of the level of support that might be expected from a much better-informed general public.

Assessing strength of opinion

Another very salient consideration is how strongly people feel about their opinions: a quality often missed from opinion surveys and, in any case, rarely if even mentioned by governments.39 For example, the Taiwan survey found that while 85% of respondents said they were opposed to abolition, only 32% said they were strongly opposed. The Taiwan report concluded: “It appears that the strength of opposition to abolition has been considerably exaggerated.”40 The survey in Ghana also found that the balance of opinions was greatly in favor of those who had strong feelings against capital punishment: while 48% were intensely opposed to it only nine percent of respondents “expressed intense” approval of capital punishment. In fact, only a quarter were completely opposed to the recommendation, put forward in 2012 by the Ghana Constitutional Review Committee and endorsed by the Government, to abolish the death penalty completely.41 Even more remarkable was the response in Singapore: while 70% said that they were generally in favor of the death penalty, only nine percent chose “I am strongly in favor of it:” evidence quite contrary to the assessment of Singapore’s Foreign Minister (see page 2 above).42

Does Support for the Status Quo Indicate Resistance to Reform?

In her studies of opinion in Japan, Mai Sato has shown that the “headline” figure of support for retaining the death penalty cannot be taken at face value by political decision-makers. It needs to be qualified. For instance, when she examined the responses to the Japanese government’s survey of 2009, she found that although 86% of the respondents had chosen “the death penalty is unavoidable in some cases,” a third had also agreed with the statement “the death penalty could be abolished in the future if conditions change.” This meant, Sato argued, that far from 86% being resolutely opposed to abolition, the proportion was really more like 52%. When the option “should definitely be kept” was introduced in her own online survey (N = 2,769) only 44% of respondents endorsed it.43 Five years later, Sato and Bacon conducted a survey parallel to the government survey of that year. They found that 80% of respondents to both surveys had similarly endorsed the statement “The death penalty is unavoidable,” yet, when questioned in more detail in the parallel survey, only a quarter of respondents were firmly of the view that the death penalty should “definitely be kept.”44 Furthermore, among the three-quarters who had said they agreed that the death penalty should “definitely” or “probably” be kept, as many as seven out of ten admitted “that they would ‘simply accept abolition as government policy’ if the government decided to exercise its leadership.”45 Such was their commitment to capital punishment!

Other surveys have also revealed that the proportion of people who support the death penalty is not the same as the proportion who are resistant to reform. For example, although 64% of those surveyed in Belarus in 2013 said that they supported the death penalty, only 36% endorsed the policy of “leave it as it is.”46 The poll conducted in 2007-08 by Oberwittler and Qi of almost 4,500 Chinese citizens also revealed that, when asked whether China should follow the practice of other countries and abolish the death penalty completely, between 14% and 20% agreed, depending of the wording of the question. In fact, given facts of the international abolitionist movement, only between 53% and 55% said they were definitely opposed, plus a substantial minority (between a quarter and a third) who endorsed “I am not sure.”47 A similar response was found in Malaysia, where 91% claimed to be in favor of the death penalty, yet only 59% said definitely “no” when asked whether Malaysia should follow world trends to abolish capital punishment for all crimes.48 When Singaporean citizens were asked this question, 72% said they were not in favor of abolishing the death penalty for all crimes (the same proportion who had said they favored the death penalty in general), but this is considerably fewer than those who had said they supported it for intentional murder (92%), drug trafficking (87%), and non-lethal firearms offences (89%).49 The impact was even more significant when respondents were told about the world trend to abolish the mandatory death penalty. The proportion of respondents in Malaysia and Singapore who had supported the mandatory death penalty for any crime fell from 70% to 46% and from 60% to 40% respectively.50

The evidence clearly shows that knowledge of the international movement to abolish capital punishment can influence public opinion in retentionist countries.

Generality or Specificity

Responses to the question whether the respondent is “in general” in favor or opposed to the death penalty have been found to produce a lower proportion in favor than when the question is specifically about murder, the crime most associated with the cultural symbol of “a life for a life.” In China, 58% of respondents endorsed the statement “I am [generally] in favor” of the death penalty, 14% were opposed and 28% said they were “not sure.” Yet, when asked specifically about different capital offences, 78% said they were in favor of capital punishment for murder.51 In Singapore, where 72% said they were in favor “in general,” 92% said they favored the death penalty when specifically asked about intentional murder.52 This suggests that mention of murder probably triggers an image of a particular grave, and rare, type of incident, rather than an appropriate response to the majority of instances of murder where mitigating circumstances may prevail.

In Abstract or in Practice?

Effects of case specificity: aggravating and mitigation factors

Respondents in China, Trinidad, Malaysia, and Singapore were asked to judge and select the appropriate punishment for three scenarios of murder cases. Each scenario had an example with aggravating factors and another example with mitigating circumstances.53 This made it possible to compare across these four countries, the high level of support for the death penalty in the abstract with the willingness of respondents to enforce it in specific circumstances.54 Table 1 shows the outcome from these surveys, in all of which the proportion of respondents who chose death as the appropriate punishment was considerably lower than the proportion who had said they were in favor of the death penalty, and always lower where there was a mitigating element.55 In China, for example, even when presented with a case of a deliberate shooting and robbery by a man who had previously served prison sentences for robbery, slightly less than half of the respondents thought that the death penalty would be the appropriate punishment. If the offender had no prior convictions, almost two-thirds did not choose the death penalty. Indeed, while the pattern of findings was remarkably similar in all four jurisdictions, the proportion in favor of the death penalty was lowest in China for all the scenarios judged.

The findings from a survey carried out in 2013 in Taiwan, where the death penalty is discretionary for murder, also showed the strong effect of mitigating circumstances. Even though 85% of respondents said they were opposed to the abolition of the death penalty, only one-third thought that it would be the appropriate penalty when presented with the example of a young unemployed man who had killed a householder during a burglary. And while 83% said that the death penalty was the appropriate punishment when faced with a scenario of a very grave random murder and rape of a 10-year-old girl, the proportion favoring death fell to only a third when the same respondents were told that the defendant suffered from a mental disorder and had a long history of mental illness.56

Table 1

Percentage of respondents choosing death for different scenarios of murder. The overall percentage of support for the death penalty for murder “in the abstract” is shown in brackets for each country.

 

TYPE OF MURDER

Trinidad (89%)

Malaysia (91%)

Singapore (92%)

China (77%)

AGGRAVATED ROBBERY MURDER

A man robbed a local shop with a gun and shot the owner in the head. He took away with him $300 in cash. He had previously been in prison twice for robbery. He was convicted of murder and sentenced to death.

70%

65%

64%

48%

MITIGATED ROBBERY MURDER

A man robbed a local shop with a gun and shot the owner in the head. He took away with him $300 in cash. He had not previously been convicted of any crime. He was convicted of murder and sentenced to death.

44%

57%

52%

37%

AGGRAVATED DOMESTIC MURDER

A woman deliberately poisoned her husband who died, so that she could be free to live with her lover. She was convicted of murder and sentenced to death.

61%

43%

51%

27%

 

MITIGATED DOMESTIC MURDER

A woman who had been abused by her husband for many years decided to kill him by deliberately poisoning his food. A neighbour discovered the death of the husband and reported it to the police. She was convicted of murder and sentenced to death.

10%

14%

17%

13%

AGGRAVATED DRUG DISPUTE MURDER

A man aged 35 with previous convictions for violence and drug possession deliberately shot dead a rival drug dealer who had failed to pay back a debt. He was convicted of murder and sentenced to death.

71%

57%

57%

Not asked

MITIGATED DRUG DISPUTE MURDER

A young man aged 19 deliberately shot dead a drug dealer who had failed to pay a debt. He had no previous convictions for violence and had said that he killed the victim on the orders of an older man. He was convicted of murder and sentenced to death.

37%

22%

28%

Not asked

 

Furthermore, as Table 2 shows, no more than half of the decisions made by respondents in Trinidad for all three of the examples of murder they “judged” favored the death penalty, and an even lower proportion in Singapore (45%) and Malaysia (43%). This gives a completely different picture compared to the nine out of ten respondents in all three of these countries had said that they were in favor of the death penalty for murder. As regards cases with an aggravating factor, in Trinidad no more than two-thirds of decisions favored death, and in Malaysia and Singapore the highest proportion was only 58% and 55% respectively. Only one third of all decisions in all three countries favored death where there was a mitigating factor.

Table 2

Percentage of decisions taken on scenario murder cases in which the death sentence was chosen by respondents in Singapore, Malaysia and Trinidad

Country and total decisions made

All murder scenarios judged

% death

Aggravated murder case scenarios judged

% death

Mitigated murder case scenarios judged

% death

Singapore

(4,500)

45%

58%

33%

Malaysia

(4,600)

43%

55%

31%

Trinidad

(3,000)

50%

67%

30%

 

Thus, there is convincing and remarkably similar evidence, found in these different jurisdictions, that members of the public react differently and less punitively when asked for their views on the death penalty in the “abstract” than they do when faced with a realistic depiction of what murder cases can look like and what it means to decide between life and death.

Support for the mandatory death penalty in practice

Another significant measure of the relationship between abstract and practical judgements, was to test in Malaysia, Singapore, and Trinidad (in each of which the death penalty is mandatory on conviction for murder) whether those who approved of this law actually would apply

it in practice by choosing death as the punishment for all three murder scenarios they were asked to judge, irrespective of the circumstances of the crime and the character of the offender—as required by law.

In Malaysia, where 56% of the sample said they were in favor of the mandatory death penalty for murder (88% of them being “strongly in favor”), only 14% of them actually chose to “impose” the death penalty in all three of the murder cases they judged, as required by the law. Thus, only eight percent of the total of over 1,500 respondents both said they favored it and they practiced it.57 Similarly, about half of Singaporeans interviewed said they supported the mandatory penalty for intentional murder, yet only 12% of all 1500 respondents chose death in all three cases.58 In Trinidad, a quarter of those interviewed said they favored the mandatory death penalty. But of this minority, only four out of ten chose to sentence to death all three murders they were asked to judge: accounting for only 12% of the 1,000 respondents to this survey.59

Thus, support for the mandatory death penalty by members of the public in these three countries turned out to be very low indeed, and in line with international human rights norms.60

The Most Appropriate Policy?

An alternative penalty?

It has been clear for many years that asking whether people favor the death penalty will reflect what proportion accepts it as an appropriate punishment but not whether they think it is the only appropriate, or even the most appropriate punishment. In Asia, as in the USA, the picture changes when polls have asked whether respondents would support the death penalty in preference to the alternative of life imprisonment, with or without the possibility of eventual parole.61

The findings are very similar from all the surveys reviewed in this paper. The large-scale study of public opinion in China found that that the proportion favoring death fell from 58% to 38%, if the alternative were to be life imprisonment with early release, and declined still further to 29% if it were to be life imprisonment without parole (LWOP), and even further to only 24% if it would be life imprisonment without parole plus restitution to the families of victims. Similarly, in Taiwan the proportion of respondents who said they would be opposed to abolition fell from 85% to 27% (with only eight percent strongly opposed) if the alternative were to be life imprisonment without parole plus compensation.62 Thus, the majority favored alternative punitive penalties that were, in their opinion, sufficiently severe to mark the gravity of the crime rather than demanding “a life for a life,” while at the same time giving the public greater protection from the most dangerous offenders. In Belarus, half the respondents said that they agreed or somewhat agreed that life sentences would be an acceptable alternative to the death penalty, while only 18% strongly disagreed.63

When the 72% of Singaporeans who had said they were in favor of the death penalty were asked if they would continue to do so “if the government proposed to replace it by a discretionary maximum term of life imprisonment without the possibility of ever being released,” a third of them said they would be content with this alternative in cases of murder. If these respondents were added to those already not in favor of the death penalty in general, support for it would fall below half (46%). When all respondents were asked what their preferred sentence would be if the death penalty were to be abolished altogether and discretion given to the judges, two-thirds (69%) chose LWOP. But decisions made when judging the scenario cases showed that LWOP had not been so frequently chosen as the alternative to the death penalty when mitigating circumstances were present. For example, in a case of domestic murder with mitigation, 17% chose the death penalty and only 14% chose LWOP as the alternative, compared with 39% choosing life with the possibility of parole after 20 years and 27% a determinate prison sentence. Yet again, the findings reveal a large gap between opinions and judgements made in the abstract and the reality of choosing an appropriate punishment in particular circumstances.

 

Executions compared with other social and criminal justice policies

But, of course, punishment is not the only alternative policy. In order to test whether members of the public in Malaysia and, Singapore would choose a “greater number of executions of murderers” as the “most likely” policy to reduce very violent crime leading to death, the respondents were given four other policies to consider and asked to rank them. The ranking of these policies was remarkably similar: those that seek to promote prevention through social action and police effectiveness were regarded as much more likely to be regarded as effective than “greater number of executions,” which in both countries was ranked as the least likely to be effective (See Table 3).64 The same was also the case in Trinidad. 65

Table 3

Ranking of policy most likely to reduce violent crime leading to death (%)

 

MALAYSIA

SINGAPORE

 

POLICY

Ranked First

Ranked Last

Ranked First

Ranked Last

Better moral education of young people

39

14

56

7

More effective policing to bring criminals to justice and make punishment more certain

25

9

27

4

More effective policies to control conflict between

drug traffickers and dealers

13

13

7

6

More effective policies to control the possession of

firearms

11

15

6

9

Greater number of

executions of murderers

12

48

5

74

 

Social policies were also found to trump severe penalties as a means to prevent and reduce heinous crimes in Japan. Respondents to Sato and Bacon’s survey ranked “focus on family discipline and education” first (63%), while “keep the death penalty” was only the fourth most frequently endorsed policy, and by only a quarter of them.66

Concluding Remarks

Taken together, the findings of these surveys of public opinion, conducted in eight retentionist countries, do not support the claim of their governments that support for retention of the death penalty is so strong that it acts as a barrier to its abolition. Nor do the findings support the claim that attitudes towards capital punishment are so variable between states, depending on unique cultural and social influences, that governments are justified in regarding the question of capital punishment as a matter solely to be determined by considerations of the needs of its criminal justice policy after “taking fully into account the sentiments of its own people,” rather than an issue to be determined by adherence to international human rights norms.

In fact, all these surveys have revealed the very limited level of knowledge that most citizens possessed about the death penalty in law and practice when forming their opinion and that only a minority felt “strongly” in favor of it or opposed to its abolition. Opinions in favor were dependent on the belief that the death penalty is administered fairly, without the possibility of error leading to the execution of the innocent. When respondents were asked whether they would favor the death penalty if it were to be proven that innocent persons had been executed, support for it plummeted from nine out of ten to only a third. There was a remarkable degree of concordance between judgments, made by respondents from different countries, on the appropriateness of imposing a sentence of death when they were presented with scenarios of real cases. In every survey where this technique was employed only a minority favored the death penalty when mitigating circumstances were present. Even in cases with aggravating factors, the proportion choosing death was considerably lower than the proportion who had supported the death penalty “in the abstract.” In countries where the death penalty was the mandatory punishment, support for it proved to be very low when respondents were faced with judging cases with differing factual circumstances. They accepted that to treat all cases the same as if they were of equal culpability would amount to injustice.

The strength of opposition to abolition was also questioned when respondents were asked whether they would accept an alternative sentence of life imprisonment, varying in its severity and length, in place of capital punishment. This showed that although death had been regarded as an appropriate punishment in the abstract, it was not the only appropriate punishment that a majority of respondents would accept. In fact, one of the most remarkable findings was that, when asked to compare the likely effectiveness of five social and criminal justice policies aimed to reduce violent crimes leading to death, “greater number of executions” was ranked first by only a small minority and ranked last by the largest proportion of respondents.

Thus, the findings have revealed that the balance of views, values and judgments on the death penalty, made by respondents interviewed in

retentionist countries drawn from the Caribbean, Asia, Africa and Eastern Europe, far from being country-specific and unique, were based on commonly shared norms. Furthermore, in every country, opinions on the death penalty, whether in its favor or opposed to its abolition, were far more nuanced and moderate than governments apparently believed or were prepared to accept. It is not surprising therefore that Frank Zimring and David Johnson concluded, from their reflections on the public opinion survey in China, that:

. . . public opinion seems to tolerate substantial changes in execution policy notwithstanding general support for the death penalty as an abstraction. Changes in government death penalty policy are rarely inspired by public sentiment, and the efforts of government to shift policy are usually tolerated by the citizenry.67

Certainly, public opinion should not be employed as a justification for maintaining a cruel, inhuman, and degrading punishment.