John Philipsborn is a criminal defense lawyer in California and the
author of many publications on criminal law and procedure. He recently visited
Cambodia and contributed this comment.
IN the United States from about
1930 to the late 1960s, approximately 100 people were executed every year.
Executions became relatively rare in the late 1960s, and due to a variety of
legal challenges, from 1972 through 1976 there was a hiatus in the use of the
death penalty. But the death penalty was reintroduced in 1976 and is practiced
in more than half of the individual states in the United States, and by the
federal government. In California and Texas, two of the largest states, several
hundred people currently await execution.
Cambodia's Under-Secretary of
State at the Ministry of Justice Ouk Vithun, was quoted recently as saying
criminals "... might be scared of this penalty."
It is unclear that it
has ever been established that the death penalty in fact has dissuaded people
from committing crimes of violence. Indeed, more than one law enforcement
officer has served notice that the greatest deterrents to crime are (1)
knowledge of a high probability of apprehension, and (2) knowledge that
punishment will be relatively swift.
In theUnited States, police and
scholars believe that a low percentage of those who commit crimes are actually
apprehended - which leaves many, many perpetrators untouched by any legal
action. According to a recent survey, the arrest rates are 24 percent for
robbery, 13 percent for burglary, and 66 percent for homicides. The arrest rate
for homicides are deceptive because many are committed by family members or
persons known to the victim. Many homocides in which suspects are not identified
within 48 hours remain unsolved.
There may be little benefit in comparing
the situation in Cambodia to that in the United States.
A few words of
In Canada, a relatively large country geographically
but sparsely populated compared to the United States, after 1976, when the death
penalty was abolished, homicide rates actually fell.
Studies conducted in
the United States have demonstrated that in states which do not have the death
penalty, homicide rates have been equal to, or in certain cases even lower than,
those in states where the death penalty is used consistently.
deterrent effect of the death penalty has been debated in the United States for
In a controversial study published in 1975, Isaac Ehrlich
concluded, using an econometric approach, that each execution deterred certain
murders which would otherwise have occurred. But Ehrlich and a few colleagues
are in a minority on this issue. Other respected researchers and scholars
including Bowers, Pierce, Klein, Glaser, Bedau (who wrote The Death Penalty in
America) have pointed out that in fact there is no clear link between the use of
the death penalty and decreases in crime.
Indeed, it can be suggested
that periodic increases in crime, and particularly violent crime, often have
little to do with the type of punishment predominantly in use in a given
Again, looking at the United States, the sharpest increase in
crime occurred after 1960, when the death penalty was still in use. For
approximately six years, from 1972 to 1976, the death penalty was not used. An
increase in the homicide rate continued after its reintroduction, but has since
fallen off in a number of populous states.
Popular social commentator Tom
Wolfe, in a talk about crime in America, suggested that Americans are
preoccupied with a problem that is really, in the aggregate, no worse today than
it was approximately 30 years ago.
The "crime problem" has simply become
increasingly prominent in the press and a "hot button" issue with politicians.
Further, figures have shown that as the population ages, the crime rate has
actually remained relatively steady, and the homicide rate which bulged through
the 70s and 80s has begun to drop.
It does not appear that statistics on
the deterrence of crime, particularly homicide, have ever seriously played a
part in a national decision on death as a legal punishment. But the First Prime
Minister may wish to consider a last few factors before seriously pursuing the
institution of the death penalty in Cambodia.
First, while it certainly
does not cost much to kill a person, it does cost a great deal to use a legal
system to do so.
In a world in which the predominant economic powers
often attach requirements to foreign aid, it can be predicted that use of the
death penalty in Cambodia will sharpen human rights concerns and tax an already
underfunded court system. In order to assure proper investigations, prosecutions
and defenses in death penalty cases, budgets will need to be vastly increased. A
few poorly investigated cases, and any case involving execution of a
demonstrably innocent person will cause international concern.
though the United States does not depend on foreign aid, it does want
international approval, and the accusation that there is disproportionate
imposition of the death penalty on minorities and that historically several
hundred factually innocent people have been legally executed in the U.S. is a
profound black spot on this country's international reputation. After years of
sitting on the U.S. Supreme Court and upholding use of the death penalty,
Justice Harry Blackman concluded prior to his recent retirement that the penalty
should not be administered.
The history of punishment worldwide has
demonstrated different approaches, taken at different times, in the various
regions of the world. Corporal punishment is still used in certain parts of the
world, and even in the United States, which had pioneered the use of
"humanitarian" measures such as imprisonment, there are concerns about the
social costs of imposing some of the longest prison sentences in the world
The use of the death penalty is a choice, and one which should not
be made on the basis that the death penalty clearly deters violent or
money-induced, drug selling behavior.
Continued modernization of the
police force in Cambodia, continuing development of the court system, continuing
economic development, and continuing education will go along way in keeping
These goals are ones which many Cambodian leaders are urging
But the legalization of the death penalty at this point in
Cambodia's history will not be viewed as a positive step.
Not only might
it not bring about the benefits sought by the Prime Minister, but it may entail
many more problems than might be anticipated.