[COLUMNIST] Death penalty has little to no effect in deterring crime – let’s put an end to it

Malaysia’s efforts in promoting human rights have faced scrutiny due to ongoing issues like statelessness and sexual exploitation of children, as well as several outdated laws awaiting repeal. However, this does not mean that progress has not been made.

Over the years, we have made some incredible improvements, particularly in the application of the death penalty.

In 2018, the then government imposed a moratorium on the death penalty. While this did not mean a pause in issuing death sentences according to the law, it prevented any executions as a result of sentencing.

In 2023, the MADANI government secured enough support in parliament to end the mandatory death penalty. This is not a full abolition of the death penalty, as judges can still hand out death sentences at their discretion. The repeal of the mandatory death penalty means that offences previously punishable only by death can now be substituted with 30 to 40 years in prison and a minimum of 12 strokes of the cane.

Soon after the repeal of the mandatory death penalty, the court began the review process to commute death sentences. In November 2023, 11 inmates became the first batch of death row inmates to have their death sentences commuted (The Diplomat, 2023).

The moratorium on executions and the abolition of the mandatory death penalty are not the end, as organisations involved in promoting human rights continue to fight for more humane ways of treating prisoners.

It is a significant step forward, but it is not enough. As of 25th June 2024, out of 1,020 applications, 474 have been reviewed, but 19 have been rejected (The Vibes, 2024). On top of that, the Court of Appeal recently reinstated the charges of murder and abetment of murder against the six former cadets primarily involved in the bullying and death of another cadet. As a result, their 18-year jail terms were overturned, and they have been sentenced to death (Free Malaysia Today, 2024).

The unanimous decision of the three judges has courted mixed responses. Some believe the death sentence is justifiable, while others, mainly human rights organisations, think it is excessive and goes directly against our efforts to end capital punishment (Astro Awani, 2024).

This has more or less rekindled the discussion and advocacy to fully abolish capital punishment in favour of more humane punishment. However, the path towards abolition is not an easy one.

According to Marzuki, Chethiyar and Sameem (2021), most communities in Malaysia still support the use of the death penalty as it has been long established in our nation. One part of the reasoning is the belief that capital punishment can deter crime.

Yet, capital punishment’s ability and effectiveness in deterring crime have always been under heavy scrutiny and are yet to be ascertained.

For example, although Leocadio (2010) found that in Texas, United States (US), the murder rate has fallen by 60% since the 1990s when Texas began to apply the death penalty more frequently, another earlier study claimed that 17 out of 20 US cities with the highest murder rates are in the states where the death penalty is applied (Mitchell, 2001).

According to Yang and Lester (2008), their meta-analysis did find substantial evidence supporting the hypothesis of the death penalty as a deterrent, but it was found to be dependent on the methodology employed by researchers. They found that research using time series and panel studies was more likely to find statistically significant results, while cross-sectional studies, studies of the effect of single executions, and studies of the effect of publicity of executions returned mixed results, with deterrent and brutalisation effects unable to reach statistical significance (Yang & Lester, 2008).

Different research methodologies are not the only factor contributing to the mixed results. Interestingly, a meta-analysis by Gerritzen and Kirchgässner (2012) found that the only major significant driver of whether the author(s) claim the death penalty deters homicides is the authors’ profession. They reviewed 102 studies from 1975 to 2011 and found that economists are significantly more likely to find a significant deterrent effect of the death penalty than scientists from law or other social science departments (Gerritzen & Kirchgässner, 2012).

Another analysis by Entorf and Rürup (2008) found that the deterrence hypothesis is more prominent in property crime but not in violent crime involving homicide or assault. Additionally, they found that the probability of punishment has a greater influence on crime deterrence than the severity of the punishment, meaning that solving crimes and catching criminals have a better deterrent effect than harsher punishment.

Dölling, Entorf and Hermann (2009) have findings that are in line with the above. Their meta-analysis indicates that the most significant deterrent effects can be found in minor crimes, administrative offences or infringement of social norms, but no significant evidence was found to prove that the death penalty has deterrent effects on homicide.

In Malaysia, our violent crime rate has been in steady decline since 2016, despite the moratorium on executions in 2018. Murder cases have also been on the decline since 2013, even though the sentencing of the death penalty dramatically decreased in 2014, and we have a lower number of executions compared to the tail-end of the 20th century (Berrih & Ngeow, 2020; Royal Malaysia Police, 2023).

Donohue and Wolfers (2006) stated that it is difficult to isolate any other deterrence factors with confidence, which suggests that even if the data did show a positive effect of the death sentence on homicide deterrence, the data is too unclear to rule out the possibility that capital punishment has no effect on deterring homicide. As Yang and Lester (2008) point out, any decrease in the murder rate after executions may, theoretically, be caused by motives, normative validation or victim mobilisation, instead of the deterrent effect of executions.

It is certainly true that the punishment of a crime is not the only factor of deterrence, and it is certainly not the only determinant of crime. According to Ishak and Bani (2017), real GDP per capita, unemployment rate, population density and the number of police are significantly correlated with property crimes, while violent crime is significantly correlated with demographic and deterrent factors, including population density and the number of police.

As different methodologies and professions analysing different sets of data produce conflicting results, it might be illogical to continue using the deterrent effect to defend the use of the death penalty, as concluded by the National Research Council (as cited in Gerritzen and Kirchgässner, 2012).

Crime deterrence is not the only and biggest reason why the public would prefer to keep capital punishment. According to Hood (2013), 56% of Malaysians said they were in favour of the mandatory death penalty, with 88% of them reporting they were “strongly in favour.” However, when asked for the reason for their support, the majority reported retribution as their main reason, followed by deterrence, which accounted for less than 15% of the respondents.

Challenging the belief that the death penalty is just for retribution is difficult on an objective basis, as it is mainly subjected to individual feelings. Hood (2013) summarised the reason given by participants as “Everyone found guilty… deserves to die,” suggesting a feeling of revenge rather than justice (Psychology Today, 2014).

On top of that, it fails to take into account the possibility of a judicial error, which can lead to wrongful convictions, potentially causing the loss of life of someone who is innocent but failed by the justice system.

According to findings by Lim, Ngeow and Arivananthan (2018), in 289 death penalty cases, an average of 27.7% of High Court and 50% of Court of Appeal rulings were overturned by the immediate higher courts.

When the possibility of executing innocent people is put under the spotlight, Hood (2013) found that the support for the death penalty for murder, drug trafficking and firearm-related offences dropped dramatically, from 91% to 33%, 75% to 26%, and 83% to 23% respectively.

Besides the potential of judicial miscarriage, the majority of people on death row are there due to drug-related offences. According to Berrih and Ngeow (2020), 70% of the 1,280 people on death row are convicted of drug trafficking, while 27% are convicted murderers.

This begs the question: Is drug trafficking truly deserving of the death penalty? According to Harry (2021), many women who have been sentenced to death for drug trafficking in Malaysia are involved in it due to economic reasons. A death sentence for the offence as retribution is certainly excessive, considering it does little to curb drug trafficking.

Capital punishment has shown to have little to no effect in deterring crime, is inhumane and is a major roadblock to our goals of promoting human rights, with an irreversible effect in cases of judicial miscarriage. Thus, it is more than justified for the government to seriously consider the full abolishment of the death penalty.

While Gerritzen and Kirchgässner (2012) mentioned the possibility of believing in the deterrent effect of the death penalty despite weak empirical evidence, they also stated that one should at least acknowledge that there is no scientific basis for this belief.

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* Chia Chu Hang is a Research Assistant at EMIR Research, an independent think tank focused on strategic policy recommendations based on rigorous research.

** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.

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