Page:S v Makwanyane and Another.djvu/97

 rate at which crime levels increased during periods in our history when executions were administered with vigour.

Bringing to bear upon the issue, therefore, a rational and judicial judgment, I have not been persuaded that the fear of the death penalty rationally or practically operates as a demonstrable deterrent for offenders seeking to perpetrate serious crimes. It remains, for the reasons I have previously discussed, an impermissibly cruel invasion of rights, the sustenance of which is fundamental to a defensible civilization, protected in South Africa by the ethos of a Constitution, which is manifestly humanistic and caring in its content.

Even if the fallacious and speculative assumptions which motivate the argument in support of the proposition that the death sentence does act as a deterrent against serious crime were to be accepted, rationally the fear of the death penalty would only operate on the mind of the potential offender if there was a serious risk that he could be so punished. On the information made available to us, however, that risk is in any event so minimal, as to constitute a remote statistical possibility, which, as Mr Trengove argued, might be no more significant than the risk of dying in a motor accident. It is difficult to appreciate how such a remote statistical possibility acts as a deterrent on the minds of potential offenders.

On a judicial application of all the relevant considerations and the facts made available to us, I therefore cannot conclude that the State has successfully established that the death penalty per se has any deterrent effect on the potential perpetrators of serious offences.

Is there any other basis on which the death penalty can be justified? The only serious alternative basis suggested in argument was that it is justifiable as an act of retribution. Retribution has indeed constituted one of the permissible objects of criminal punishment because there is an inherent legitimacy about the claim that the individual victims and society generally should, and are entitled to, enforce punishment as an expression of their moral outrage and sense of grievance. I have, however, some serious difficulties with the justification of the death sentence as a form of retribution. The proper approach is not to contrast the legitimacy of the death sentence as a form of retribution against no retribution at all. That is plainly untenable and manifestly indefensible. The relevant contrast is between the death sentence and the alternative of a very lengthy period of imprisonment, in appropriate cases. It is difficult to appreciate why a sentence which compels the offender to spend years and years in prison, away from his family, in conditions of deliberate austerity and rigid discipline, substantially and continuously impeding his enjoyment of the elementary riches and gifts of civilized living, is not an effective and adequate expression of moral outrage. The unarticulated fallacy in the argument that it is not, is the proposition that it must indeed be equivalent in form to the offence committed. That is an impermissible argument. The burning of the house of the offender is not a permissible punishment for arson. The rape of the offender is not a permissible punishment of a rapist. Why should murder be a permissible punishment for murder? Indeed, there are good reasons why it should not, because its execution might desensitize respect for life per se. More crucially, within the context of the South African Constitution, it appears to be at variance with its basic premise and ethos which I analysed earlier in this judgment. On these considerations, I find it difficult to hold that the death sentence has been demonstrated by the State to be "justifiable in an open and democratic society based on freedom and equality".