The Death Penalty In Light

Published Date: 02 Nov 2017

Punishment has greatly changed from systems present in the 18th century to those which we rely upon today. Before the introduction of contemporary penology and the development of the prison system; punishment was often carried out in the most violent of forms in order to create the highest possible levels of pain and suffering in the form of torture. As is described in Michel Foucault (1977, p.3) "the flesh will be torn…burnt with sulphur, and where the flesh will be torn away, pored molten lead…and then his body drawn and quartered by four horses and his limbs and body consumed by fire". British punishment was significantly deadlier than anywhere else in Europe with public execution being the most common form of punishment between the 16th and 19th century. Death sentences were passed to criminals for a number of crimes based upon the Black Act of 1723; which introduced the death penalty to over 50 criminal acts (Vann R, 1977). Despite this point in history being regarded as the Bloody Code and described as the deadliest in Europe, only 10% of those sentenced to death were executed (Scott D, 2008) with historian Douglas Hay (1975) stating that the Bloody Code was a means of social control combining majesty, justice and mercy. Public execution slowly came to an end when transportation became the preferred method of punishment based upon the Transportation Act of 1718 which saw over 30000 offenders being transported to the USA between 1718 and 1775 (Scott D, 2008, p.71). The era of the bloody code came to an end towards the middle of the 19th century when the public started to show mistrust in relation to the current system of punishment. They became reluctant to convict criminals and countries such as America started to resent the transportation of our criminals to their country and in turn punishment moved from being about punishing the body to punishing the mind.

Based upon the Hulk Act of 1776 and the Penitentiary Act of 1779 the birth of the prison system came into place which saw criminals being placed in solitary confinement, being subjected to hard labour, religious indoctrination and surveillance; in order to attempt to reform and rehabilitate the criminal. As is described by William Blackstone (1779) "The plan for these penitentiary houses, were sobriety, cleanliness and medical assistance by a regular series of labour, by solitary confinement during the intervals of work and some religious instruction to preserve and amend the health of the unhappy offenders and to injure them to the habits of industry, to guard them from pernicious company, to accustom them to serious reflection and to teach them both the principle and practices of every Christian and moral duty". By the start of the twentieth century punishment no longer focused upon arbitrary torture and execution but rather upon using prison as the main source of punishment. The prison population grew vastly within a short space of time from around 20000 prisoners at the start of the 20th century to just under 40000 by the 1970s (justice.gov.uk, 2012). Prison was seen as "a form of social service preventing further crime by a readjustment of the culprit" (Radzinowicz L, 1958) seeking to stop reoffending through rehabilitation and reformation of the criminal. However with crime rates growing the prison system began to face a crisis: with high populations, overcrowding, bad conditions and understaffing; prisoners were sleeping two to a cell in cells designed for one person while many did not have access to toilet facilities when required (Cavadino M and Dignan J, 2007).

Seminar Log 2

Punishment is about deliberately causing somebody else harm and suffering, perhaps in response to an illegal act; it must arise through a person’s illegal wrongdoing, it must be painful to the offender and it must be imposed only by state officials who have been given the power to punish (Scott, D 2008 p.17-18). Punishment is often stated to need justified and in doing so we tend to use retribution and reductivism; retributivism justifies punishment on the ground that it is deserved by the offender whilst reductivism justifies punishment on that ground that it helps to reduce crime (Cavadino M and Dignan J, 2007). Reductivism is a forward looking theory often linked to utilitarian views, which seeks to prevent further crimes from being committed by removing the pleasure of committed and replacing it with the pain of punishment through deterrence, incapacitation and reform (Lacey N, 1994). Deterrence is used to prevent further crime by threat of punishment and can be split into general and individual deterrence. Individual deterrence is used to prevent the offender from reoffending and general is used not to deter the offender but to deter everyone else (Cavadino M and Dignan J, 2007). Deterrence is often stated as being unjust for three reasons: first it allows the innocent to be punished, second it allows the punishment to exceed proportionality of the crime and lastly it punishes for offences that have and may not happen (Hudson B, 2003). Incapacitation in the most basic of forms attempts to reduce reoffending by putting offenders in prison as the capacity to commit a crime has been removed. However this is not always the case as it is often found that incapacitation creates a hardened offender that could have been avoided if placed under an alternative punishment (Souryal S, 2010). Reformation is based upon the idea that punishment can reduce reoffending by taking on a form that will improve the individual; whilst allowing the offender to still have their free will (Cavadino M and Dignan J, 2007). Reformation like all other forms of punishment is not without its problems, it is often stated that ‘nothing works’ and that ‘whatever you do to offenders makes no difference’ as is often found with reoffending rates leading to the question: is this really a punishment?

Retributivism, on the other hand punishes based on the crime that has been committed and not on the assumption that further crime may happen. It seeks to punish people because the deserve it whilst keeping the punishment proportionate to the crime using lex talionis: an eye for an eye as an example (Cavadino M and Dignan J, 2007). The retributive approach seeks to give offenders their just deserts by removing the unfair advantages gained through their behavior by imposing a penalty that balances this out (Wesley C, 1992). Therefore if someone takes someone’s life under the theory of retributivism the life of the offender should also be taken but only if it is deserved and proportionate to the culpability of the offender. Retributive justice requires that the punishment fit the crime and that like cases are treated alike. Wrongdoers deserve blame and punishment in direct proportion to the harm inflicted. Retribution can therefore be seen as vengeance curbed by outside intervention and the principles of proportionality and individual rights (Minow M, 1998). However in regards to retributivism there is often the tendency to slip from justice to an emphasis on revenge based upon past criminal offences and the belief that the offender should be made to suffer for the crime that they have committed (Maiese, M 2004).

Blackstone, W (1779) in Scott, D (2008) Penology, London: Sage

Cavadino, M & Dignan, J (2007) The Penal System: An Introduction, 4th Edition London: Sage

Hay, D (1975) ‘Property, authority and the criminal law’ in Scott, D (2008) Penology, London: Sage

Justice (2012) ‘Prison and Probation Statistics’ available online at http://www.justice.gov.uk/statistics/prisons-and-probation (accessed 12 October 2012)

Lacey, N (1994) State Punishment, New York: Routledge

Maiese, M (2004) "Retributive Justice" Beyond Intractability, University of Colorado, Boulder: Conflict Information Consortium available online at http://www.beyondintractability.org/bi-essay/retributive-justice (accessed 2 November 2012)

Minow, M (1998) Between Vengeance and Forgiveness Boston, Massachusetts: Beacon Press

Radzinowicz, L. (ed.) (1958) The Results of Probation. A Report of the Cambridge Department of Criminal Science. London: Macmillan.

Richard T. Vann (1977)."Reviews" American Journal of Legal History. Temple University Beasley School of Law 21 (2)

Souryal S.S (2010) Ethics of Criminal Justice: In Search of the Truth, Burlington Massachusetts: Anderson

Scott, D (2008) Penology, London: Sage

Wesley C (1992) The Practice of Punishment: Towards a Theory of Restorative Justice, New York: Routledge