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

caution, however.

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.

The

deterrent effect of the death penalty has been debated in the United States for

years.

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

country.

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.

Indeed,

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

today.

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

crime down.

These goals are ones which many Cambodian leaders are urging

today.

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.