Death Penalty - History

History

Execution of criminals and political opponents has been used by nearly all societies—both to punish crime and to suppress political dissent. In most places that practise capital punishment it is reserved for murder, espionage, treason, or as part of military justice. In some countries sexual crimes, such as rape, adultery, incest and sodomy, carry the death penalty, as do religious crimes such as apostasy in Islamic nations (the formal renunciation of the state religion). In many countries that use the death penalty, drug trafficking is also a capital offence. In China, human trafficking and serious cases of corruption are punished by the death penalty. In militaries around the world courts-martial have imposed death sentences for offences such as cowardice, desertion, insubordination, and mutiny.

The use of formal execution extends to the beginning of recorded history. Most historical records and various primitive tribal practices indicate that the death penalty was a part of their justice system. Communal punishment for wrongdoing generally included compensation by the wrongdoer, corporal punishment, shunning, banishment and execution. Usually, compensation and shunning were enough as a form of justice. The response to crime committed by neighbouring tribes or communities included formal apology, compensation or blood feuds.

A blood feud or vendetta occurs when arbitration between families or tribes fails or an arbitration system is non-existent. This form of justice was common before the emergence of an arbitration system based on state or organised religion. It may result from crime, land disputes or a code of honour. "Acts of retaliation underscore the ability of the social collective to defend itself and demonstrate to enemies (as well as potential allies) that injury to property, rights, or the person will not go unpunished." However, in practice, it is often difficult to distinguish between a war of vendetta and one of conquest.

Severe historical penalties include breaking wheel, boiling to death, flaying, slow slicing, disembowelment, crucifixion, impalement, crushing (including crushing by elephant), stoning, execution by burning, dismemberment, sawing, decapitation, scaphism, necklacing or blowing from a gun.

Elaborations of tribal arbitration of feuds included peace settlements often done in a religious context and compensation system. Compensation was based on the principle of substitution which might include material (for example, cattle, slave) compensation, exchange of brides or grooms, or payment of the blood debt. Settlement rules could allow for animal blood to replace human blood, or transfers of property or blood money or in some case an offer of a person for execution. The person offered for execution did not have to be an original perpetrator of the crime because the system was based on tribes, not individuals. Blood feuds could be regulated at meetings, such as the Viking things. Systems deriving from blood feuds may survive alongside more advanced legal systems or be given recognition by courts (for example, trial by combat). One of the more modern refinements of the blood feud is the duel.

In certain parts of the world, nations in the form of ancient republics, monarchies or tribal oligarchies emerged. These nations were often united by common linguistic, religious or family ties. Moreover, expansion of these nations often occurred by conquest of neighbouring tribes or nations. Consequently, various classes of royalty, nobility, various commoners and slave emerged. Accordingly, the systems of tribal arbitration were submerged into a more unified system of justice which formalised the relation between the different "classes" rather than "tribes". The earliest and most famous example is Code of Hammurabi which set the different punishment and compensation according to the different class/group of victims and perpetrators. The Torah (Jewish Law), also known as the Pentateuch (the first five books of the Christian Old Testament), lays down the death penalty for murder, kidnapping, magic, violation of the Sabbath, blasphemy, and a wide range of sexual crimes, although evidence suggests that actual executions were rare.

A further example comes from Ancient Greece, where the Athenian legal system was first written down by Draco in about 621 BC: the death penalty was applied for a particularly wide range of crimes, though Solon later repealed Draco's code and published new laws, retaining only Draco's homicide statutes. The word draconian derives from Draco's laws. The Romans also used death penalty for a wide range of offenses.

Islam on the whole accepts capital punishment, and the Abbasid Caliphs in Baghdad, such as Al-Mu'tadid, were often cruel in their punishments. Nevertheless, mercy is considered preferable in Islam,, and in Sharia law the victim's family can choose to spare the life of the killer, which is not uncommon. In the One Thousand and One Nights, also known as the Arabian Nights, the fictional storyteller Sheherazade is portrayed as being the "voice of sanity and mercy", with her philosophical position being generally opposed to punishment by death. She expresses this through several of her tales, including "The Merchant and the Jinni", "The Fisherman and the Jinni", "The Three Apples", and "The Hunchback".

Similarly, in medieval and early modern Europe, before the development of modern prison systems, the death penalty was also used as a generalised form of punishment. During the reign of Henry VIII, as many as 72,000 people are estimated to have been executed.

By 1820 in Britain, there were 160 crimes that were punishable by death, including crimes such as shoplifting, petty theft, stealing cattle, or cutting down trees in public place. The severity of the so-called Bloody Code, however, was often tempered by juries who refused to convict, or judges, in the case of petty theft, who arbitrarily set the value stolen at below the statutory level for a capital crime.

Although many are executed in China each year in the present day, there was a time in Tang Dynasty China when the death penalty was abolished. This was in the year 747, enacted by Emperor Xuanzong of Tang (r. 712–756). When abolishing the death penalty Xuanzong ordered his officials to refer to the nearest regulation by analogy when sentencing those found guilty of crimes for which the prescribed punishment was execution. Thus depending on the severity of the crime a punishment of severe scourging with the thick rod or of exile to the remote Lingnan region might take the place of capital punishment. However the death penalty was restored only 12 years later in 759 in response to the An Lushan Rebellion. At this time in China only the emperor had the authority to sentence criminals to execution. Under Xuanzong capital punishment was relatively infrequent, with only 24 executions in the year 730 and 58 executions in the year 736.

The two most common forms of execution in China in the Tang period were strangulation and decapitation, which were the prescribed methods of execution for 144 and 89 offences respectively. Strangulation was the prescribed sentence for lodging an accusation against one's parents or grandparents with a magistrate, scheming to kidnap a person and sell them into slavery and opening a coffin while desecrating a tomb. Decapitation was the method of execution prescribed for more serious crimes such as treason and sedition. Interestingly, and despite the great discomfort involved, most Chinese during the Tang preferred strangulation to decapitation, as a result of the traditional Chinese belief that the body is a gift from the parents and that it is therefore disrespectful to one's ancestors to die without returning one's body to the grave intact.

Some further forms of capital punishment were practised in Tang China, of which the first two that follow at least were extralegal. The first of these was scourging to death with the thick rod which was common throughout the Tang especially in cases of gross corruption. The second was truncation, in which the convicted person was cut in two at the waist with a fodder knife and then left to bleed to death. A further form of execution called Ling Chi (slow slicing), or death by/of a thousand cuts, was used in China from the close of the Tang dynasty (around 900) to its abolition in 1905.

When a minister of the fifth grade or above received a death sentence the emperor might grant him a special dispensation allowing him to commit suicide in lieu of execution. Even when this privilege was not granted, the law required that the condemned minister be provided with food and ale by his keepers and transported to the execution ground in a cart rather than having to walk there.

Nearly all executions under the Tang took place in public as a warning to the population. The heads of the executed were displayed on poles or spears. When local authorities decapitated a convicted criminal, the head was boxed and sent to the capital as proof of identity and that the execution had taken place.

In Tang China, when a person was sentenced to decapitation for rebellion or sedition, punishment was also imposed on their relatives, whether or not the relatives were guilty of participation in the crime. In such cases fathers of the convicted under 79 years of age and sons aged over 15 were strangled. Sons under 15, daughters, mothers, wives, concubines, grandfathers, grandsons, brothers and sisters were enslaved and uncles and nephews were banished to the remotest reaches of the empire. Sometimes the tombs of the family's ancestors were levelled, the ancestors' coffins were destroyed and their bones scattered.

Despite its wide use, calls for reform were not unknown. The 12th century Sephardic legal scholar, Moses Maimonides, wrote, "It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death." He argued that executing an accused criminal on anything less than absolute certainty would lead to a slippery slope of decreasing burdens of proof, until we would be convicting merely "according to the judge's caprice." Caprice of various sorts are more visible now with DNA testing, and digital computer searches and discovery requirements opening DA's files. Maimonides' concern was maintaining popular respect for law, and he saw errors of commission as much more threatening than errors of omission.

The last several centuries have seen the emergence of modern nation-states. Almost fundamental to the concept of nation state is the idea of citizenship. This caused justice to be increasingly associated with equality and universality, which in Europe saw an emergence of the concept of natural rights. Another important aspect is that emergence of standing police forces and permanent penitential institutions. The death penalty became an increasingly unnecessary deterrent in prevention of minor crimes such as theft. The argument that deterrence, rather than retribution, is the main justification for punishment is a hallmark of the rational choice theory and can be traced to Cesare Beccaria whose well-known treatise On Crimes and Punishments (1764), condemned torture and the death penalty and Jeremy Bentham who twice critiqued the death penalty. Additionally, in countries like Britain, law enforcement officials became alarmed when juries tended to acquit non-violent felons rather than risk a conviction that could result in execution. Moving executions there inside prisons and away from public view was prompted by official recognition of the phenomenon reported first by Beccaria in Italy and later by Charles Dickens and Karl Marx of increased violent criminality at the times and places of executions.

The 20th century was the bloodiest in human history. Tens of millions were killed in wars between nation-states as well as genocide perpetrated by nation states against political opponents (both perceived and actual), ethnic and religious minorities; the Turkish assault on the Armenians, Hitler's attempt to exterminate the European Jews, the Khmer Rouge decimation of Cambodia, the massacre of the Tutsis in Rwanda, to cite four of the most notorious examples. A large part of execution was summary execution of enemy combatants. Also, modern military organisations employed capital punishment as a means of maintaining military discipline. The Soviets, for example, executed 158,000 soldiers for desertion during World War II. In the past, cowardice, absence without leave, desertion, insubordination, looting, shirking under enemy fire and disobeying orders were often crimes punishable by death (see decimation and running the gauntlet). One method of execution since firearms came into common use has almost invariably been firing squad.

Various authoritarian states— for example those with fascist or communist governments— employed the death penalty as a potent means of political oppression. According to Robert Conquest, the leading expert on Stalin's purges, more than 1 million Soviet citizens were executed during the Great Terror of 1937–38, almost all by a bullet to the back of the head. Mao Zedong publicly stated that "800,000" people had been executed after the Communist Party's victory in 1949. Partly as a response to such excesses, civil rights organizations have started to place increasing emphasis on the concept of human rights and abolition of the death penalty.

Among countries around the world, almost all European and many Pacific Area states (including Australia, New Zealand and Timor Leste), and Canada have abolished capital punishment. In Latin America, most states have completely abolished the use of capital punishment, while some countries, such as Brazil, allow for capital punishment only in exceptional situations, such as treason committed during wartime. The United States (the federal government and 33 of the states), Guatemala, most of the Caribbean and the majority of democracies in Asia (for example, Japan and India) and Africa (for example, Botswana and Zambia) retain it. South Africa's Constitutional Court, in judgement of the case of State v Makwanyane and Another, unanimously abolished the death penalty on 6 June 1995.