Abstract
A review of the global literature and research on the effectiveness of the death penalty as a deterrent show that both sides of the argument can come to varying conclusions. Within ASEAN, research and data on the use of the death penalty are especially problematic resulting in politicians being influenced more by perceptions and public opinion rather than evidence-based fact. Based upon an in-depth literature review of secondary data, this paper, therefore, looks at the various theories of deterrence for capital crimes and deconstructs them within the context of ASEAN. It argues that the theories and assumptions popular in the region in support of capital punishment are on shaky ground and that the crime rates in ASEAN retentionist countries for a number of offences suggest a much weaker prospect for effective deterrence. The paper concludes with a philosophical argument: given the lack of any evidence and the extreme severity of the punishment, then the issue of it being a deterrent should be removed from any discussion of the death penalty in ASEAN.
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Notes
- 1.
The two countries that have abolished the death penalty are Cambodia and the Philippines (although in the latter, some politicians are calling for its return).
- 2.
This BBC World Service article by Henschke and Nurdin (2020) describes the meeting (in prison) between a terrorist who killed several people in 2004 near the Australian embassy in Jakarta and family members of one of the victims of the terrorist attack whereby the defendant waved his fist after the guilty verdict was announced, declaiming, “I am thankful for being sentenced to death… because I will die a martyr!”.
- 3.
In Christianity, the Old Testament in the book of Exodus, chapter 21, verses 23–36 states “But if there is any further injury, then you shall appoint as a penalty life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.” Whilst Buddhism is founded on a principle of ‘non-violence’ some Buddhist scholars have found textual justification for the death penalty in the Buddhist Cannon. Others argue that in the teachings of the Buddha, the death penalty is rejected more explicitly than in other major world religions.
- 4.
- 5.
See studies such as Donohue and Wolfers (2010), Abdorrahman Boroumand Center (2018), Muramatsu et al. (2018), Brandt and Kovandzic (2015), National Research Council. (2012), Chalfin et al. (2013), Nagin (2014), Kirchgässner (2011a, 2011b), Gerritzen and Kirchgässner (2016) to reference against deterrence or stressing the inconclusive nature of most research. Most of these studies say that existing research is inconclusive. The key message is: results ought not to be used to influence policy decisions regarding the appropriateness of the death penalty and the deterrence argument can no longer be used to defend the use of the death penalty.
- 6.
See problems related to statistics in Deterrence and the Death Penalty by National Research Council (2012). The study identifies three major shortcomings summarised in the brief by the National Academies (2012, pp. 2–3): (i) The studies do not factor in the effects of noncapital punishments that may also be imposed; (ii) The studies use incomplete or implausible models of potential murderers’ perceptions of and response to the use of capital punishment; (iii) Estimates of the effect of capital punishment are based on statistical models that make assumptions that are not credible.
- 7.
The study noted that they did not use a theoretical model to predict the nonpenal social and economic determinants of variations in homicide as it was considered too complex and implausible.
- 8.
Although at the time of writing this paper, The Death Penalty Project (DPP) with the support of global experts on the capital punishment (Professor Carolyn Hoyle of the University of Oxford and Professor Jeffrey Fagan of Columbia University) and in partnership with academic partners in Indonesia, is carrying out research into the deterrent effects of the death penalty in Indonesia. See: Fagan (2019).
- 9.
Note that from the wider theories of justice and punishment (i.e. retribution, deterrence, incapacitation, rehabilitation), for the purposes of this paper, the issue of deterrence is the sole focus.
- 10.
A ‘specific deterrent’ is designed to stop criminals re-committing a crime. Clearly this is not valid in the case of the death penalty but is the theory behind other sanctions such as corporal punishment.
- 11.
Public executions are still carried out in some parts of the world (Amnesty International has cited Iran, N. Korea and Saudi Arabia, not to mention public executions carried out by non-state actors such as ISIS).
- 12.
A set of values, promoted by some regional leaders in the latter part of the twentieth century which prioritised discipline, hard work, deference to authority and balancing individual and societal needs.
- 13.
See: the Death Penalty Project (2013).
- 14.
Lao PDR and Myanmar have had moratoriums on the use of the death penalty for more than 30 years. The last execution in Brunei was reportedly in 1957.
- 15.
Theerasak Longji (26 years old) was executed in 2018. See: Human Rights Watch (2018).
- 16.
This was the key argument of the nineteenth century philosopher Cesare Beccaria. See Beccaria (1819) cited in Likhitpreechakul (2013).
- 17.
- 18.
See examples: (a) Indonesia on a case with drunk (Agence France-Presse, 2016); (b) Singapore on cases with jealousy (Lum, 2019; Stevens, 2020; Yang, 2016), and a case with drug user (Amnesty International, 2004, p. 7); (c) Malaysia on a case with jealousy (Hilmy, 2019); (d) Thailand on a case with drunk (Factsanddetails.com, 2014) and cases with jealousy (Ibbetson, 2019; Morris & Nguyen, 2020). In Thailand they are even proposing death penalty for a man who committed murder while driving (Online Reporters, 2019).
- 19.
In 2005, it was reported that the average costs for incarceration and execution in the US as between US$2.5 and US$5 million compared to less than US1 million for convicts given life without parole. See Fagan (2005).
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Capaldi, M.P. (2023). Fact or Fiction? Deconstructing the Death Penalty as a Deterrent to Crime in ASEAN. In: Petcharamesree, S., Capaldi, M.P., Collins, A. (eds) Unpacking the Death Penalty in ASEAN. Springer, Singapore. https://doi.org/10.1007/978-981-19-8840-0_2
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