Useless deterrent

The debate on death penalty is resurfacing apparently because of resurging incidents involving heinous crimes, the latest of which is the kidnap slaying of Coca Cola executive Betty Chua Sy.Once more, the argument has been advanced that because there has been no execution of death row convicts, there is no more effective deterrent to the commission of extremely offensive and wicked crimes punishable by death under existing laws. The argument however completely overlooks the undeniable fact that when the death penalty was carried out after its imposition was allowed by law starting with the Etchegaray execution, criminal satistics never went down but rose all the more. Indeed even the commission of the capital offense of plunder was not effectively curtailed as more corrupt officials were charged after the law on plunder was passed. The imposition of extreme penalty for an extremely hateful offense does not apparently work as a deterrent.

Our laws that define crimes and provide for their punishments are enacted not only to deter others from committing crimes by setting an example that "crime does not pay".They are also enacted for purposes of reforming the offender or preventing him from committing further crimes, or as a means for the State to defend itself from acts that inflict considerable damage to society and undermines its very existence. Depending on its purpose therefore, criminal law is punitive or vindictive, reformative and defensive.The purposes are mainly intended either for the offender himself (reformative or punitive), for others in the society as a deterrent (punitive) and for society itself as a form of self-defense(defensive).

Basically our criminal law, specifically, the Revised Penal Code is punitive and retributive in nature as its main purpose is to inflict punishment in return for some evil or wrong. This is directed more on the individual offender and on other members of society as a deterrent.It is based on the theory that man is "essentially a moral creature with absolutely free will to choose between good and evil". So if he freely and voluntarily commits a wrongful act with deliberate intent or through negligence or imprudence, he should answer for such act.Such punishment on the offender is also intended to set an example to others so that they will not commit the same or any other wrongful act.This is known as the classical or juristic theory.

On the other hand, there is also the realistic theory which considers man as occasionally subject to some strange and unwholesome circumstances which force him to do wrong inspite of or contrary to his own will. It lay stress on man as a social danger so that his punishment for the wrongful act done should be reformatory or rehabilitative rather than retributive or recompensatory in character. This is more compatible with upholding human dignity and in keeping with Christian teaching of justice with mercy.

Apparently the imposition of death penalty is punitive and retributive following the classical theory. Obviously its only effect is to prevent the offender from committing further crimes as he is totally obliterated from the face of the earth.But as a deterrent to others, statistics show that death penalty has not served its purpose. In fact our Constitution prohibits the imposition of death penalty except for compelling reasons involving heinous crimes as Congress shall provide (Section 19[1] Art.III).While Congress has already enacted a law imposing death penalty on certain crimes it considers "heinous", the various reasons for the prohibition of its imposition somehow still exist.These reasons are, according to noted Constitutionalist and member of the Constitutional Commission, Fr. Joaquin Bernas, S.J.: (1) it inflicts traumatic pain not just on the convict but also on the family, even if the penalty is not carried out;(2) there is no convincing evidence that it acts effectively as a deterrent of serious crime;(3)penology favors reformative rather than vindictive penalties;and(4)life is too precious a gift to be placed at the discretion of a human judge.

President Arroyo is therefore correct in declaring a moratorium on the imposition of death penalty until Congress has come up with an amendatory measure that would address the various reasons for the Constitutional prohibition on its imposition.Death should not be imposed as a punitive and retributive penalty for it is incompatible with reformative justice. It should be imposed only as a last resort in case of urgent necessity when the very existence of society itself is endangered like in crimes of syndicated drug trafficking and kidnap-slaying as well as large scale lethal acts of terrorism and seizure of government powers.

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