Deterring crime

Detail from Pisanello's Saint George and the Princess
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PRESIDENT-ELECT Rodrigo Duterte’s reiteration of a campaign promise to have Congress restore the death penalty resonates among most Filipinos who’re justly concerned with,  and are in fact terrified by, the crimes that almost daily threaten their homes, their property and their lives and those of their kin. The number of rapes has nearly doubled, say women’s groups, and murders, kidnappings, assaults, and robberies have been multiplying, even as the drug trade destroys entire families. Outrage over these crimes’ persistence and their going unpunished is not limited to the survivors and kin of the victims. The demand for retribution cuts across classes but is especially strong among the students, professionals, office employees, and graveyard shift workers who feel they’re most vulnerable, and who are the most common crime victims.

Duterte’s suggestion that executions be through hanging would very likely satisfy the widespread desire for vengeance through State action. Whether it would indeed deter crime  because, as a method of putting criminals to death, it would inflict even worse suffering than lethal injection or the electric chair is at the very least debatable. The suggestion that hanging would be “more humane” is even more contentious. No method of execution that has so far been tried in any place and at any time—whether by musketry, the garrote, the guillotine, the electric chair or lethal injection—can be so described.

But we may safely assume that the promise to put an end to crime was among the reasons for the phenomenal support Duterte received in the May 9 elections. During the campaign, the implication of Duterte’s support for the restoration of the death penalty was that the surge in criminality was due to the suspension of capital punishment  and that its re-imposition would deter crimes.

Human rights groups including the Philippines’ own Commission on Human Rights (CHR) have supported the suspension of the death penalty for a number of reasons, including the finding by numerous studies that capital punishment does not deter crime. 

What does is the rigorous and equal application of the law. But it is in the areas of apprehending crime suspects, building the cases against them, and prosecuting them where the Philippine justice system has been failing. The limited forensic and investigative capacity of the police, for example, has been blamed for the failure to build strong cases against wrong-doers, while cases that do end up in court often drag on for years because of the slow-as-molasses judicial process.  

What has been happening in the prosecution of the alleged masterminds behind the Ampatuan Massacre and those who actually did the killing is illustrative. One of the worst  crimes that has ever been committed in the Philippines—and anywhere else in the world—was neither a rape nor a kidnapping.  The latter crimes are most often described as “heinous” and as supposedly deserving of the death penalty, but the killing of 58 men and women  including 32 journalists in Ampatuan town, Maguindanao province on November 23, 2009 was even more outrageous  in terms of the number of victims, its brutality (the victims were killed with automatic weapons, and some of the women were raped before they were shot) and the use of superior force (over a hundred men were involved in the killing). It was more than a crime. It was also an assault on democracy and on one of the major pillars of its support, the press. 

Although the Massacre was as monstrous as rape, kidnapping and drug trafficking, its perpetrators have yet to be punished.  Eighty-four out of the 197 individuals accused of planning and carrying out the massacre are still at large, while the trial of the 113 individuals under State custody is proceeding in fits and starts, hampered by, among others, the accused individuals’  numerous petitions, motions and other attempts at exploiting the technical complexities of the Philippine judicial process to delay the proceedings.  

The killing of journalists has meanwhile continued, driven by the sense among those who would silence the press that they can escape punishment. Four journalists have been killed for their work in 2015, while one journalist has so far been killed this year, although it is possible that some cases of election-related violence include journalists, Philippine elections being seasons of special peril for broadcasters and other media practitioners in the communities. Others have been threatened, harassed with libel suits, physically assaulted, or prevented from covering events of public interest. Only 14 cases of those accused of killing journalists since 1986 have been concluded, while six cases have resulted in acquittals.  

Because the culture of impunity—the exemption from punishment of wrong-doers that has become the rule rather than the exception—is the single most crucial factor in the persistence of crimes against journalists, to assure the prosecution and punishment of those responsible it is necessary to, among others,  strengthen the capacity of the police to gather evidence and build cases against suspects; review the rules of court towards preventing their use to delay judicial proceedings; and involve journalists’ and media advocacy groups in quickly reporting killings in the communities and assuring police preservation of evidence.  

The killing of journalists could conceivably be a category of crimes for which the penalty would be death should Congress restore it, as President-elect Rodrigo Duterte has said he favors.  But the penalty for the killings has never been the crucial factor in dismantling the culture of impunity.  Restoring the death penalty would not make the prosecution of the killers and the masterminds behind them any quicker; taking the steps mentioned above would.

It is extremely doubtful if, without the assurance that they will be prosecuted, the killers of journalists would be discouraged by the re-imposition of the death penalty. While the death penalty would satisfy the demand for a ” quick fix” to address criminality, only a functioning justice system can arrest the surge in crimes, including the continuing killing of journalists.

The disturbing increase in the number of heinous crimes is due to other, more complex institutional reasons than the severity of the penalty for them. What is needed is to identify the flaws of the justice system and to take the corresponding steps that are needed to correct them. But despite such efforts, since no human institution is perfect, the innocent can still be convicted and executed should the death penalty be restored. It has happened in other places, such as, for example, in the US state of Texas, where a number of people wrongfully convicted have been put to death. Because death is irreversible, such insults to justice cannot be corrected.

(First published in BusinessWorld. Image is a detail from Pisanello’s “Saint George and the Princess.”)

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