L’opinion publique sur la peine de mort

Public Opinion on the Death Penalty

Public officials in retentionist or de facto abolitionist countries often invoke public support for the death penalty as one of the reasons why they do not promote abolition.¹ A closer look at this justification, however, reveals some common flaws. First, public officials tend to affirm strong public support for capital punishment without actually consulting the public, relying on general impressions or unreliable data. Second, even when public officials rely on opinion polls,² these are often misleading and methodologically problematic.³ This note offers a critical assessment of public opinion polls on the death penalty and suggests tools to properly gauge the level of public support for the death penalty.

In contrast to most public opinion polls on capital punishment, a series of studies published in the last few years focuses on more accurately measuring the level of public support for the death penalty in a range of countries that still apply it (China, Ghana, Japan, Malaysia, Singapore, Trinidad and Tobago, and Zimbabwe). These studies analyze in greater depth the public’s position on how the death penalty is implemented rather than drawing conclusions from a single binary and abstract question. What emerges from these reports is a more nuanced, less widespread, and less intense level of public support for the death penalty than opinion polls and public officials often suggest. In fact, the studies show that citizens’ opinions are malleable and change depending on how much they know both about the death penalty itself and about the circumstances of the crime.

Bias and Oversimplification in Opinion Polls on the Death Penalty

Opinion poll results can be biased or inaccurate for various reasons. For example, opinion polls are often conducted when a particular crime gains public notoriety. This is problematic because the media coverage of the case can profoundly influence individual answers. Most polls consist in asking a single abstract question that only admits a “yes” or “no” answer. This approach impedes understanding of respondents’ stance on this complex issue.⁴

In contrast, the in-depth studies described above were designed to both avoid and demonstrate the consequences of oversimplification. While the studies show that in almost all countries, a majority of respondents support the death penalty (Ghana presents the lowest level of support (40.7%),⁵ followed by China (57.8%),⁶ Zimbabwe (61%),⁷ Singapore (71,9%),⁸ Japan (80%),⁹ Trinidad and Tobago (89%),¹⁰ and Malaysia (92%);¹¹ these numbers only indicate an abstract level of support, but not the intensity or limits of that support.

A closer look at individuals’ levels of commitment to this practice reveals that, in some countries at least, there may be fewer people than we believe, among those who support the death penalty, who support it strongly enough to oppose abolition under all circumstances. For example, although in Japan 80% of those who responded to the 2014 Government poll described the death penalty as “unavoidable,” it would be a mistake to consider this the actual level of support for capital punishment. Those who stated that the death penalty was unavoidable were also asked for their opinion on the possibility of abolition in the future. Almost half of them (41%) supported future abolition—indicating that they have little attachment to capital punishment over the long term.¹² A similar survey conducted a year later confirmed that the vast majority (83%) saw the death penalty as “unavoidable.” However, less than a third (27%) answered that it “should definitely be kept.”¹³ These findings reveal that the way questions are formulated has a significant impact on results. Not only can survey questions be misleading; they can also hinder the poll’s ability to elicit individuals’ actual stance on capital punishment.

Other studies also show that not all those who support the death penalty support it strongly. In Singapore, only 8.7% of all respondents stated that they were “strongly in favor” of the death penalty while 63.2% of them expressed a moderate level of support for this practice.¹⁴ Similarly, only 8.6% of the Ghanaians surveyed strongly support the death penalty.¹⁵ In Zimbabwe, among those who expressed support for the death penalty (61%), only two thirds (41%) went so far as to add that it “should definitely be kept.”¹⁶

Finally, merely asking individuals if they are in favor or against the death penalty does not allow us to distinguish between those who favor a mandatory or a discretionary death penalty. This distinction is key as favoring the discretionary implementation of capital punishment implies that citizens are willing to consider alternative sentences for serious crimes. For example, in Malaysia, 56% of those in favor of capital punishment supported the implementation of the mandatory death penalty, while 35% supported a discretionary death penalty.¹⁷ In Trinidad and Tobago, 26% answered that the death penalty should be mandatory while 63% considered that it should be implemented at the discretion of judges.¹⁸

The Limits of Public Support for the Death Penalty

In Furman v. Georgia (1972), Justice Marshall reasoned that American citizens know almost nothing about death penalty, and that information on its issues and limits “would almost surely convince the average citizen that the death penalty was unwise,” except perhaps for those who support capital punishment for retributivist reasons.¹⁹ The Marshall hypothesis assumes that citizens are not generally well-informed about the death penalty, a fact that in-depth surveys largely confirm.²⁰ By confronting respondents with evidence on the lack of effectiveness of the death penalty as a deterrent and the risk of executing innocent people, these studies revealed the limits of public support for capital punishment.

The risk of executing innocent people has a significant impact on respondents’ views on the death penalty.²¹ In China, 43.7% of those who were undecided or favored the death penalty stated that they would oppose it if there were proof of wrongful executions.²² In Malawi, a survey of traditional leaders showed a high level of distrust in the criminal justice system and widespread beliefs that it was possible for innocent people to be sentenced to death. These factors led many to oppose capital punishment.²³

In Trinidad and Tobago, Malaysia, Ghana, and Singapore, death penalty supporters were informed about the global trend towards abolition and asked if that information would change their perspective. Although in all surveys, a majority thought that their country should not follow the global trend, some respondents changed their minds. In Malaysia, 11% of respondents answered that their country should follow the global trend. Similarly, in Trinidad and Tobago, 12% changed their position in favor of the global trend. However, in Singapore and Ghana, respondents were more willing to change their position once they were educated about the global trend towards the abolition of the death penalty (24.6% and 27% respectively).²⁴

In Malawi, a judicial ruling invalidating the mandatory death penalty led to the resentencing and release of numerous prisoners who had been held on death row for many years. After the former prisoners returned to their home villages, a study conducted among the traditional leaders of these villages indicated that over 90 per cent did not support the use of the death penalty to punish individuals convicted of murder. Malawian political leaders often claim that abolition of the death penalty would be difficult because of opposition from traditional leaders, who support such punitive measures. Contrary to these assumptions, when traditional leaders were asked what they consider to be the appropriate sentence for murder, only 6 of the 102 leaders surveyed supported the death penalty as an appropriate punishment. They had seen first hand how individuals change over time, and how they can be rehabilitated even after committing violent crimes. They spoke of how prisoners formerly sentenced to death had become leaders in their communities, often pitching in to build schools, repair roads, and support family members by farming.²⁵

Most tellingly of all, the surveys confronted respondents with detailed scenarios taken from real capital cases and asked, for each one, whether they would choose capital punishment over other possible penalties. The results showed that not all those who support the death penalty in theory would apply it in practice, and that even pro-death penalty respondents were sensitive to mitigating factors.²⁶ In Singapore, for example, 47.1% of death penalty supporters stated that they favored a mandatory death penalty for intentional homicide cases. Once they were faced with real cases, however, only 24.8% of death penalty supporters actually imposed a death sentence under all circumstances.²⁷ The lack of previous convictions, a history of physical and sexual abuse, and youth, were among the mitigating factors that affected responses.²⁸

This line of studies illustrates that educating death penalty supporters on the flaws of capital punishment can lead them to change their positions in practice, regardless of whether they support the death penalty for consequentialist or retributivist reasons.²⁹ Educating respondents on how the death penalty is implemented does not necessarily reverse the majority view, but that does not mean that sustained awareness-raising campaigns could not have a broader impact. Moreover, when faced with real case scenarios, respondents revealed that their theoretical support for capital punishment did not extend to all the circumstances in which a death sentence was legally allowed.

The Evolution of Public Opinion After Abolition

Empirical studies in several abolitionist countries suggest that even if a majority of citizens supports capital punishment at the time when the political elite passes an abolition law, public support for the death penalty wanes once abolition is implemented. For instance, Zimring and Hawkins, who developed this theory known as the “elite leadership hypothesis, » describe how public support for the death penalty in the Federal Republic of Germany diminished after political elites decided to abolish the death penalty.³⁰ A similar study conducted in Australia also confirmed the so-called “elite leadership” hypothesis.³¹ Finally, in France, President Mitterrand was re-elected after abolishing the death penalty, even though 63% of the general public was in favor of capital punishment when the abolition law was first passed.³²

The available data from retentionist states suggests similar patterns. Among respondents in Japan who thought that the death penalty was “unavoidable,” 71% stated that if the government were to abolish this practice, they would “simply accept abolition as government policy.”³³ Similarly in Zimbabwe, 80% of death penalty supporters stated that they would accept abolition as a government policy.³⁴ These findings suggest that citizens of Japan and Zimbabwe would accept abolition without major opposition.

Cases

Furman v.Georgia, 408 U.S. 238, U.S. Supreme Ct., Jun. 29, 1972 (Mr. Justice Marshall, concurring, affirmed that American citizens would not support the death penalty if they had information about the limits and problems of this practice).

Commentary

Chan Wing Cheong et al., Public Opinion on the Death Penalty in Singapore: Survey Findings, National University of Singapore Working Paper 2018/002, https://law.nus.edu.sg/wps/pdfs/002_2018_Chan%20Wing%20Cheong.pdf, Feb. 2018.

Cornell Center on the Death Penalty Worldwide, Malawian Traditional Leaders’ Perspectives on Capital Punishment: A Targeted Survey of Traditional Leaders Affected by the Malawi Capital Resentencing Project, https://deathpenaltyworldwide.org/pdf/2018_04_12_PUB%20Malawi%20Village%20 Headman.pdf, 2017.

Dietrich Oberwittler and Shenghui Qi, Public Opinion on the Death Penalty in China: Results from a General Population Survey Conducted in Three Provinces in 2007/2008, Max Planck Institute for Foreign and Intl. Criminal Law, https://www.mpicc.de/files/pdf2/forschung_aktuell_41.pdf, last accessed on Jun. 4, 2018.

Franklin E. Zimring and Gordon Hawkins, Capital Punishment and the American Agenda, Cambridge University Press, 1986.

Jonathan Kelley and John Braithwaite, Public Opinion and the Death Penalty in Australia, Justice Quarterly, Vol. 7:529, 1990.

Mai Sato, 12 Years Without an Execution: Is Zimbabwe Ready for Abolition?, The Death Penalty Project, http://www.deathpenaltyproject.org/wp-content/uploads/2018/05/12-Years-Report.pdf, 2018.

Mai Sato and Paul Bacon, The Public Opinion Myth: Why Japan retains the Death Penalty, The Death Penalty Project, http://www.deathpenaltyproject.org/wp-content/uploads/2015/08/The-Public-Opinion-Myth.pdf, 2015.

Phillip W. Harris, Over-Simplification and Error in Public Surveys on Capital Punishment, Justice Quarterly, Vol 3:429, 1986.

Phoebe C. Ellsworth and Lee Ross, Public Opinion and Capital Punishment: A Close Examination of the Views of Abolitionists and Retentionists, Crime and Delinquency, Vol. 29: 116, 1983.

Roger Hood, The Death Penalty in Malaysia: Public Opinion on the Mandatory Death Penalty or Drug Trafficking, Murder and Firearm Offences, The Death Penalty Project, http://portfolio.cpl.co.uk/DPP/Malaysia-report/1/, 2013.

Roger Hood, Abolition of the Death Penalty: China in World Perspective, City University of Hong Kong Law Review, Vol. 1:1, 2009.

Roger Hood and Florence Seemungal, Public Opinion on the Death Penalty in Trinidad, p. 11, University of the West Indies Faculty of Law, http://www.deathpenaltyproject.org/wp-content/uploads/2012/12/Public-Opinion-on-the-Mandatory-Death-Penalty-in-Trinidad-Report-Final.pdf, 2011.

Justice Tankebe et al., Public Opinion on the Death Penalty in Ghana, Centre for Criminology and Criminal Justice, http://nebula.wsimg.com/6653665afb945630ea4f6c0beffe65bd?AccessKeyId=50A9833FCBD2E20E7634&disposition=0&alloworigin=1, 2015.

William J. Bowers et al., A New Look at Public Opinion on Capital Punishment: What Citizens and Legislators Prefer, American Journal of Criminal Law, Vol. 22:77, 1994.

Websites

Death Penalty Information Center, International Polls and Studies, https://deathpenaltyinfo.org/international-polls-and-studies-0#150326UKPoll, last accessed on Jun. 4, 2018.

Last updated on June 20, 2018.