Let judges choose to not impose death penalty

KUALA LUMPUR - Judges should be allowed to use their discretion in whether to impose the death sentence as Malaysians have demonstrated that they prefer the death sentence to be discretionary.

This was the finding of the Death Penalty Project (DPP) survey that was carried out in association with the Bar Council end of 2012, with results released in July.

Malaysian were polled on how they would mete out punishment for a few hypothetical capital cases, where the death sentence is mandatory upon conviction.

A shift to discretionary sentencing, all the way to the total abolition of the death penalty, is supported by the findings of the survey which sampled 1,535 Malaysian citizens.

The study found there was little public support for a mandatory death penalty to be imposed upon those convicted of murder, drug trafficking, and certain non-fatal firearms offences.

As reported by the Sunday Star, the survey as well as the high number of recommendations from the United Nations during its Universal Periodic Review form the basis for the Malaysian Bar and Suhakam's calls to the Government to abolish the mandatory death penalty, or to give judges the discretion whether to impose it.

In an email to The Star, Emeritus Prof Roger Hood of Oxford University, who analysed the findings of the survey, said the respondents' had considerably lower support for both, for the death penalty in general and the mandatory death penalty in particular, when asked what the sentence should be for a number of "scenarios" typical of crimes that appear in court.

"When judging cases of murder, the highest proportion to choose death as the most appropriate penalty was 65 per cent for a recidivist robber who shot a storekeeper in the head; and in one case of domestic murder only 14 per cent chose death.

"Of the 56 per cent who favoured the mandatory death sentence for murder only one in seven thought the death penalty was the right sentence for all the murder cases they were asked to judge; the majority used their discretion to fit the punishment to the circumstances of the crime.

"Only one in 12 citizens (8 per cent) of the total sample favoured the mandatory death sentence for murder when they were asked to judge real cases," said Prof Hood, former Director of the Centre for Criminological Research at All Souls College.

In cases of drug trafficking, he said the highest proportion choosing the death penalty was 29 per cent and that this was for attempting to smuggle 25kg of heroin into the country.

He said that only 1 in 12 respondents thought death was the correct penalty for all the drug trafficking cases they judged.

And in the scenario of a burglar shooting and wounding a householder, only 20 per cent chose death as the appropriate sentence, he added.

"When we analysed the sentences imposed on all 12 cases, only just over one in a 100 (1.2 per cent) would have sentenced all of them to death."

Taken as a whole, Prof Hood said the majority of Malaysian citizens favoured a discretionary death penalty for murder, and only a minority favoured use of the death penalty at all when presented with typical cases of drug trafficking and non-fatal firearms offences.