Correspondence
| Author | W. S. Reynolds,D. E. Lord,Howard Zelling |
| DOI | 10.1177/000486586800100307 |
| Date | 01 September 1968 |
| Published date | 01 September 1968 |
Correspondence
SIR. I desire
to
discuss abasic assumption
in
the
article on
Deterrent
Aspect of Capital
Punishment and
its
Effect on Conviction
Rates appearing
in
the
current
issue of
your
Journal
at
page
100. namely
that
the
statistics submitted in relation to New
South Wales and
South
Australia provide
(a)
auseful comparison
and
(b) do
not
show
that
the
death
penalty is a deterrent.
Ican speak only
with
relation to South
Australia. Iam
not
sufficiently
aware
of
the
operation of
the
law
relating
to
homicide in New
South
Wales'
to
be able
to
write
usefully on
the
position
in
that
State. Taking (a)
first:-
(1) Idoubt
whether
the
population of
South Australia in
the
period
taken
(300000
up to about 500000) is asufficient sample
statistically.
(2) South Australian Judges
have
for
generations dealt
out
severer
sentences
to
interstate
crimin-als. particularly armed
criminals, coming to this
State
which bas
in itself been ,a deterrent.
(3)
We
have
never
had
periods of "gang
warfare" such as account for a number of
the
Eastern States murders each decade.
(4)
Our
juries
were
until recently
taken
from
the
Legislative Council
roll
which
has
arestricted franchise and
Eastern
States
barristers
have
frequently told me
that
in their experience
this
would
make
for a higher conviction
rate
than
with
juries
taken
from
the
whole electoral
population.
(5) Judges like
other
people
vary
in
the
attitude
they
take
to
defences by accused
persons -
the
admissibility of confessions.
the
stress
that
is placed OD'
what
is reason-
able doubt,
the
stress
that
is placed on
the
accused's defence
when
summing up, and
so on.
For
much
of
the
period
under
statistical review we
had
either
three
or
four Judges of
the
Supreme Court which
would require an examination, in each case
of
murder
as to which
Judge
tried
the
case
as
the
statistical
sample of
the
judiciary is clearly
too
small for
any
"cancelling
out"
factors to be
taken
into
account.
Turning
to
(b)
the
common understand-
ing of mankind is
that
people do
fear
death
and accordingly -it has always
seemed to me
that
where
the
statistics
appear
not
to bear this out, it is
at
least
likely
that
the
statistics
are
not
being
correctly interpreted.
The obvious criticism of
the
statistics is
that
under
the
heading of
"murder"
they
subsume seven completely different
situations:
(a)
what
the
ordinary man knows as "cold
blooded murder":
(b) killing in
the
heat
of passion which is
not
saved by
the
defences of provoca-
tion or self-defence;
(c) killing to avoid
social
pressures:
the
illegitimate
baby
and
the
spouse whose
church or social
stratum
does
not
allow
divorce;
(d) suicide pacts
where
only one dies;
(e) accidental killing whilst committing
some
other
'serious felony;
(f) killing
where
the
intention is only to
do grievous bodily harm, e.g.,
to
administer poison
to
make
an
errant
husband sick
but
not
kill him;
(g) killing by a person
who
is medically
but
not
legally insane.
With
the
possible exception of (c)
the
existence
or
non-existence of
the
death
penalty has no
deterrent
effect on
any
situation except (a)
but
all seven are
correctly lumped
together
for statistical
purposes
under
"murder".
It is
the
first of
these
seven situations:
the
criminal who will kill a
man
as easily
as
he
will
swat
a fly,
the
poisoner who
stands
by and watches his victim slowly
die and
the
man
who
will shoot police.
warders
and
other
persons
in authority
to
gain his ends.
where
the
death
penalty is
some
deterrent
and
it is this class of
murder
which
the
ordinary man has in
mind when he says. as opinion
poll
after
opinion poll has clearly demonstrated,
that
he
wants
the
death
penalty
retained.
Until statistics
are
produced, if
they
ever can be, which are restricted
to
this
class of murder,
the
criminologist and
the
public will be
at
cross purposes in
their
dialogue. The criminal
law
like all
other
branches
of,
the
law has
in
the
last
resort
to be acceptable to,
and
supported by,
public opinion and until it can be demon-
strated
that
the
death
penalty
bas
DO
deterrent
effect on situation (a)
the
ordin-
ary
man will
want
it retained.
The second obvious criticism is ·that
deterrence is
not
the
only factor to be
considered though undoubtedly it is an
important one. Periods, even long periods
of imprisonment, do
not
deter
or reform
habitual criminals and it would be
just
as logical for
the
opponents of capital
punishment to
argue
that
imprisonment
ought to be abolished also as it cannot
183
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