How the death penalty could be fairly reintroduced (and why it should not be)

Martin van Staden

The notion that murderers have forfeited their right to life through their own actions is not unreasonable, but as with most big social issues, “who decides?” is the key question. South Africa could reintroduce the death penalty, but the conditions for doing so are rightly so onerous that we should rather just banish the thought.

Tiego Thotse makes an enticing case for reinstating capital punishment. Having experienced an attempt on his life and the now common “we can’t do anything to help” response from the police afterwards, I can understand the desire to see would-be murderers disincentivised by a guaranteed threat to their own lives.

I have never objected to the death penalty out of principle. Real murderers, as Thotse rightly notes, do deserve to die. But I and many other liberals have had concerns about how the institution of the death penalty might threaten other sacrosanct principles of due process.

However, because I do not think there is necessarily a principled liberal objection to the death penalty, here are – in my view – the conditions under which South Africa could reintroduce this punishment.

Higher burden of proof

Thotse writes “executions should only occur in situations when there is absolute proof that the accused committed murder”.

Presently, murder is treated like any other crime, for which the burden of proof is not absolute proof but instead beyond a reasonable doubt.

This is a high standard, but it is not so high that it is virtually impossible for the innocent to end up in prison. Sometimes, even the innocent seem guilty beyond a reasonable doubt.

There is an important principle of jurisprudence within the criminal justice paradigm, expressed by Sir William Blackstone, that “it is better that ten guilty persons escape than that one innocent suffer.”

It would, in other words, be better for multiple guilty people to roam freely and threaten the safety of others, than for even a single innocent person to be unjustly punished by the legal system.

This principle should be endorsed wholeheartedly, because the utilitarian alternative – that it would, on a cost-benefit analysis be okay for one innocent to be punished if it means society is protected from ten criminals – is irreconcilable with a free society where every individual is recognised as an agent with inalienable rights.

The individual has solemnly submitted themselves to the jurisdiction and dictates of the state, and pays for its upkeep. The individual has no way out of the state’s reach.

In exchange, the state’s behaviour towards the individual may only ever be fair. An innocent person being imprisoned is problematic enough, but them being executed is the highest injustice.

The only fair standard for crimes carrying the death penalty would be to raise the burden of proof from beyond reasonable doubt to no doubt – or Thotse’s principle of absolute proof. Under this standard, if it is, under any circumstances, conceivable to the judge that the accused could be innocent, they must be acquitted.

Cost orders in criminal acquittals

I have written before about the iniquity that is the principle that there are no cost orders in criminal cases. If there is to be a death penalty, this principle must be swiftly abandoned.

The state must be afforded no benefit of the doubt or any assistance by the courts. And if murder accused – including the innocent murder accused – are effectively forced to rely on overworked, underpaid legal aid lawyers, that would amount to the state receiving significant indirect assistance.

Those charged with murder – and therefore liable for execution – must have access to not only the country’s, but the world’s, most experienced (and therefore most expensive) private criminal defence lawyers. They should be secure in the knowledge that when they are found to be innocent, every cent that they spent in their defence will be paid back.

No first-time offenders

There should be no question of a death penalty for a first-time offender of any crime, no matter how heinous. The fact is that no matter how convincing the evidence, there is a chance that the person was incorrectly convicted. The possibility of them exonerating themselves must thus at all times be kept open.

This means that, if there is to be capital punishment for murder, it should only be applicable to repeat offenders. If, on the higher burden of proof, a person has been convicted of murder twice, it is probably fair to assume that this mistake has not been made twice – unless some prima facie evidence of prosecutorial or political victimisation is evident.

It is true that this means at least two people would have to die before the murderer is themselves executed, but the proponents of the death penalty will probably find this to be better than no death penalty at all.

Let’s… not.

Having said all of that, it remains my view that South Africa should stay comfortably away from reintroducing the death penalty. There are a few reasons for this.

Firstly, if we do introduce the no doubt standard of proof for crimes carrying the death penalty – as we must – it follows that fewer murderers will be successfully prosecuted. “No doubt” is an extremely high standard that very few prosecutors will be able to meet. This means that even in cases where the guilty party is basically obvious, the chances of them walking free remain high.

The second reason is how capital punishment could be weaponised against those who act in self-defence.

Many South Africans who defend against attacks might, formally, be guilty of murder because their response was disproportionate or unreasonable according to some academic judicial standard. These judicial standards often do not holistically recognise the adrenaline and reflexes that come into play in what are perceived, by the actor, to be life-threatening situations.

Do we want those who – even if over zealously – protect their families or property to be executed by the state? Some on the left might eagerly say yes, but I hope good sense still prevails with most people.

Thotse does add self-defence as an exception to the death penalty, but while this would certainly be the formal legal position, I am not convinced that our criminal justice system is mature enough to give those who act in self-defence the necessary leeway.

It comes down to this

The third reason is the most important, and requires elaboration.

South Africa’s police are, simply, bad. Our detectives are, likely, quite below average, even if the only reason for this is that they are overworked. And our prosecutors, at best, are mediocre, and often politically motivated.

These branches of our criminal justice system have, in an epic fashion unrivalled practically anywhere else in the world, failed at their one job to establish and maintain a safe society. That there is also widespread evidence of corruption among these professions is inexcusable.

For the death penalty, one does not simply require good cops, detectives, and prosecutors, but they must, truly, be world-class. We are nowhere close to having that.

And, perhaps most importantly, if we ever had world-class judges, that is no longer the case.

While South African judges should be lauded for their professionalism and independence in certain cases, something rarely found elsewhere in Africa, our judges are to a large degree no longer jurists.

Whereas a conversation with a South African judge in the 1950s would have been like a conversation with a legal philosopher (problematic as often their philosophies might have been), judges today are no longer immersed in their discipline. While they know, better than most, what the law in a practical sense is, they are unaware – and more than that, they are uninterested – in matters of legal tradition.

John Hlophe is not exceptional as a former judge who called – even during his tenure – for South Africa’s legal tradition to be willy-nilly thrown out and replaced. Law students, too, are taught today that our legal tradition is problematic (it is not). This does not engender respect for timeless legal principle.

To reinstitute the death penalty, not only does one absolutely require police that are not bad, detectives that are not below average, and prosecutors that are not mediocre, but one absolutely requires the notion of “corruption” among the ranks of these three professions to be truly exceptional. Our police, detectives, and prosecutors must be drawn from a moral elite that is not easily tempted.

And it is in legal tradition that a judge must be immersed to be able to apply the death penalty.

South Africa does not merely fail on all counts, but it fails dismally.

The risk of ‘sorry … oops’

Ultimately, we need to forget about the real murderers out there when deciding whether or not there should be a death penalty. Rather, the possibility of ourselves or a loved one being incorrectly charged with murder must be foremost in our minds.

The law has never required only physical evidence – there is no such thing as a requirement that there needs to be hard proof of anything. Circumstantial evidence is widely recognised.

When it comes down to it, the only thing that needs to happen for a judge to convict someone, is that the story prosecutors tell must leave little (not no) doubt in the judge’s mind about the accused’s guilt. That is all.

At least without capital punishment, one can, in time, go back to a judge, with new convincing evidence, and show that we or our loved one is, in fact, not guilty, and then have them released.

The death penalty leaves no such opportunity. If new evidence emerges, all that happens is a posthumous exoneration, a “sorry … oops” from the government, and life goes on for everyone except the executed person and those who were close to them.

There are real solutions to South Africa’s violent crime epidemic, as comprehensively set out by the Free Market Foundation’s Section 12 Initiative for a Safer South Africa. These include (1) more appropriately defining and scoping what crime means, (2) developing the institutions of our criminal justice system, (3) decentralising law enforcement to provinces, municipalities, businesses, and communities, and, most importantly, (4) decriminalising those thousands of crimes that do no real harm and simply distract our law enforcement institutions from focusing on violence.

But the death penalty is, by no means, one of these solutions. It is, at best, a measure that does no more than give a temporary injection of “good vibes” to society when murderers are (rightly) executed. It offers no sustainable or effective answer to South Africa’s most pressing social ill.

Martin van Staden sits on the Rule of Law Board of Advisors and the Executive Committee of the Free Market Foundation.