The abolition of Capital Punishment in New Zealand
Staff of The Nathaniel Centre
Capital Punishment and euthanasia have the manifest similarity that both concern the deliberate and state-sanctioned ending of life, which is why both also, quite rightly, are controversial issues. While the euthanasia debate is still current and appears in the media on a regular basis, Capital Punishment was finally abolished in New Zealand in 1961. The question this article raises is what we might learn from the way in which Capital Punishment was abolished that might enlighten the current euthanasia debate.
Much of the following history is drawn from a comprehensive study by Pauline Engel published in 1977, which tells the story of the abolition of Capital Punishment in New Zealand.
Abolition of Capital Punishment
There had been little questioning of Capital Punishment in New Zealand before the 1920s, and it was not until the election of the first Labour government in 1935 that the issue became political. The Labour Party was officially opposed to the death penalty and while the Labour Government did not immediately introduce legislation to abolish the death penalty it commuted all death sentences while in office.[a]
However, criticisms soon arose concerning judges sentencing people to hang while knowing it would not be carried out, leading to the government being accused of 'circumventing' the law. Then in 1940, a particularly brutal crime led to four men being sentenced to flogging. While the humanitarian elements in the Party found it unthinkable that such a sentence should be carried out, the Attorney-General was reluctant to remit the sentences without bringing forward legislation which he felt would have to cover both corporal and Capital Punishment. That an appeal against the severity of the sentence failed at the time is described by Engel as an indication of the adversity of the climate for abolition at this stage. However, with the caucus overwhelmingly in favour of a law change, a Bill was eventually introduced for the erasure of both flogging and hanging from the penal code.
Engel notes 'the reaction of the newspapers was almost universally unfavourable'[1] and that 'almost every provincial daily pontificated in its editorial columns on the government's action in removing Capital Punishment and corporal punishment from the Statute Book, and scarcely any were complimentary'[2]. Nevertheless, the Bill was passed entirely along Party lines, with no Government members speaking in favour of Capital Punishment and no Opposition members speaking in favour of abolition. Engel describes the debate as 'neither lengthy nor distinguished for anything save the incredible bathos of speakers on both sides of the House'[3]. While most arguments against abolition focused on the deterrent value of Capital Punishment, one of the arguments against was that it could mean 'the menfolk might have to take the law into their own hands'[4].
Reintroduction of Capital Punishment
When the National Government came to power in 1949, there was immediately pressure to repeal. Engel suggests that the restoration of the death penalty by this Government in 1950 was not simply a matter of a more conservative, authoritarian government favouring Capital Punishment, but a more complex interweaving of social and political factors. There had been relatively few murders during Labour's first six years in office, but the murder rate had increased in the post-war years, culminating in the 'notorious Mt Victoria murder which appalled the Wellington community in 1948'[5]. Grand juries throughout the country had been calling for the reinstatement of the death penalty and popular sentiment was in favour of it; it was widely held that the increase in murders was a direct consequence of abolition.
Although the Minister of Justice had called for a 'comprehensive report which would include statistics, philosophical and religious arguments for both sides of the case'[6], Clifton Webb, the Attorney-General, made it clear that Capital Punishment would be reinstated without waiting for the contents of the report. In the debate on the Bill to reinstate Capital Punishment, Webb focused on the deterrence argument while H.G.R. Mason, the former Minister of Justice, concentrated on the moral aspects, rejecting the argument that hanging was necessary for the protection of women and suggesting that the move back to a retributive justice was a 'spiritual and moral relapse'. The Bill passed with members voting on Party lines, except for J. R. Hanan, the lone National Government member to speak against the Bill.
Nevertheless, when within a few months the Executive was faced with its first death sentence, it appeared anxious to find a reason for a reprieve. Fortunately for the government, the reports on the case suggested the prisoner's mental development was at a level to suggest he was not fully responsible. However, public reaction and the media suggested that 'if ever there was a case for hanging this is it'[7], and the government was roundly accused of having 'cold feet'. When the next death sentence was imposed, 'the Executive could not risk a second retreat'[8], even though it was clear that this case actually presented a weaker argument for execution. Commenting on this second case, one newspaper argued that while the prisoner was 'obviously a man of subnormal mentality', this was no reason that 'such an individual should survive as a burden on society'[9].
Over the next five years there were another seven executions as well as a number of reprieves, and Engel suggests it was often difficult to understand why, when murder cases were compared, some were not reprieved. In one case of a young man described as a 'bodgie'[b], tried and later executed for murder, the decision of the Executive to execute was considered to be influenced by reports that the 'bodgie lifestyle was an idle, violent and promiscuous one'[10] and that it was necessary to make an example of this young man. Organised opposition to the death penalty over this time led to the development of a National Committee in 1956, partly as a consequence of one particular case where the prisoner's 'childish qualities and his socially deprived background'[11] highlighted the inconsistencies around the reprieval decision-making process . Around the same time, a "Truth" article appeared, describing an execution in detail, ostensibly for the purpose of promoting the deterrent aspects of hanging, but having an ulterior motive of conveying to the public 'the sordid reality of hanging and to indicate the effect it had on many of those responsible for carrying it out'[12]. The final paragraph of the article stated:
'Criticism of the method is not an argument against Capital Punishment. Murderers may deserve to die. It may be that the prospect of death does deter would-be murderers. What happens to them does not matter; what can happen to the people who have to hang them does.'[13]
Effects of hanging on those involved
It was commonly claimed that the older prison officers who had been involved in and experienced hangings saw their participation as part of their duty; a duty which, while unpleasant, did not affect them deeply. One of these described himself and his generation of officers as having 'lived through the depression, seen active service overseas for some years during the last war, and been in German prison of war camps', experiences that 'toughened the spirit as well as the flesh'[14]. In particular, Engel notes that 'they did not become emotionally involved in the execution process because they did not feel responsible for the decision which had been made to hang that particular person, although their professional position obliged them to carry out that decision. They did not feel that they were "inhumane" or "hardened", any more than a nurse or doctor who had become inured to much unpleasantness which would make the average lay person squeamish.'[15]
However, while these officers were reportedly able to carry out their duty without too many after-effects, even if it took the experiences of a depression, war service and prison of war camps to achieve this, Engels notes that for the 'lay' officials the story was quite different; for at least some people, including sheriffs, prison psychologists, chaplains, and the prison Superintendent, the hangings had serious psychosomatic effects.
The first two sheriffs had breakdowns, due at least partly to their participating in executions; the prison doctor threatened to resign rather than participate in further executions; the prison psychologist wrote that his own feeling was one of 'complete revulsion' and that as he left the execution yard, felt that the hanged man was 'the only actor in the drama who came out of it clean'[16]. The prison chaplain was infected 'with a peculiar horror so that he felt an almost irresistible urge to get as far away from the prison as possible at the time of a hanging – something he was rarely able to achieve'[17]. The Superintendent of Mount Eden Prison had officiated in eight executions and although he was described 'as rough as guts, as tough as they come', resorted to drinking to get through the hangings and eventually suffered a major psychological breakdown[18].
Public referendum
From the mid-fifties, there was an increase in activity from the abolitionist movement and a referendum was proposed. This was opposed by some abolitionists on the grounds that the issue was too 'volatile' and too complex for a straight yes or no answer. J.R. Hanan and E.P. Aderman, the known abolitionists in government, and J.R. Marshall, a strong supporter of Capital Punishment, all supported a referendum, both sides thinking the public supported them. The two Wellington daily newspapers opposed a referendum, the Evening Post stating the question was 'not a subject for a decision by mass vote' and it would be 'wrong, clumsy and unsuitable' because many would wish to qualify their answers. The Dominion suggested that to conduct a referendum on any issue subject to emotion was bad policy: 'Impassioned appeals by abolitionists could stir up a fever far beyond the merits of their arguments. Similarly, a particularly fiendish or callous crime just before the poll could cause a public revulsion much stronger than the merits of the case for retention'[19]. These sentiments, along with letters to local papers and submissions to Government led to the Prime Minister calling off a referendum. It would, if re-elected, legislate to provide the death penalty for 'the worst cases of murder' only[20].
Engel argues that a referendum would have without doubt supported Capital Punishment. 'Public opinion polls, except in Scandinavian countries, were consistently in favour of the death penalty' and in 1969 a United Kingdom survey reported that 'a substantial majority of men and women favoured the return of the death penalty for certain types of murder'[21]. She suggests that New Zealand voters in 1957 would not have 'proved themselves more enlightened than their European and North American counterparts'[22].
Abolition succeeds
After Labour won the 1957 election, the Attorney-General announced that it would follow its former policy of commuting the death sentence to life imprisonment. The Crimes Bill, introduced by the National government at the end of its term in 1957 and that dealt with Capital Punishment was shelved. When Labour then lost the 1960 election, the National Government that came in had abolitionist J.R. Hanan as Minister of Justice and Dr J L Robson, who also opposed to the death penalty, as Secretary for Justice. Hanan requested that Robson proceed with a ministerial report setting out the case for the complete abolition of the death penalty.
The report attacked the deterrence theory; suggested the death penalty ignored the principle of all punishment which was the reform of the offender; discussed the risk of an error in justice which could cause the execution of an innocent man; and stressed the 'great strain the process of execution imposed on officials, and detailed breakdowns in health which had occurred as a result'[23]. The moral arguments against the death penalty were rounded off by John Bright's dictum that 'the best means of cultivating respect for human life were to refrain from taking it in the name of the law'[24].
When it was initially introduced, the Crimes Bill included a compromise clause which stipulated different degrees of murder. The intention behind this was that the death penalty would apply only for deliberate and premeditated murder, for homicide in the course of another crime or in flight from the law, where there was a previous conviction for murder, or a second murder. Hanan, however, argued that there was no 'compromise clause' that could be drafted that did not have serious flaws and indicated that another Member (Aderman) would be moving an amendment for total abolition of the death penalty which he would support. This amendment was subsequently passed with the support of the Opposition and ten Government members crossing the floor.
Engel notes that the reason for the Government Members crossing the floor was often attributed to the fact that they wanted to see the end of 'hanging by politics'. However, she suggests that this was not the real reason; Hanan and Aderman were long-term abolitionists whose motives needed no explanation. She suggests the others voted for a variety of reasons, including that the death penalty was not a deterrent to murder; that it was seen as 'the natural instinct of outrage, anger and the desire for revenge' (Muldoon); that it did not make sense when murder in 'the heat of the moment' received the death penalty or life imprisonment but when 'through inattention, carelessness or drink' someone kills in a motorcar, the event is not treated very seriously (Macintyre); the possibility of execution of an innocent person (Pickering); and that murder was usually the result of a 'twisted mind' that did not qualify for the death penalty (Talboys)[25].
Steiner claims that in its 1961 report, the Justice Department recommended abolition primarily on the basis that the state could not legitimately take life as it could not be shown that its actions had a deterrent effect on the murder statistics. The report emphasised the comments of the (1958) Massachusetts Commission on Capital Punishment:
"The only moral ground on which the State could conceivably possess the right to destroy human life would be if this were indispensable for the protection or preservation of other lives. This places the burden of proof on those who believe that Capital Punishment exercises a deterrent effect on the potential criminal. Unless they can establish that the death penalty does in fact protect other lives at the expense of one, there is no moral justification for the State to take life."[26]
In the years following the 1961 abolition of the death penalty there was little public enthusiasm for its reinstatement. Steiner mentions two National Party conference motions, one in 1961 to reinstate the death penalty, and another in 1976 to reintroduce flogging, which were both easily defeated. However, Steiner also notes that a number of opinion polls over the period 2004-2007, which may not be particularly reliable, appear to indicate that a significant number of New Zealanders would support reinstatement of the death penalty for some crimes. He notes that 'The continued sensationalisation of crime by the media has a lot to do with these findings. People are bombarded by images of the raw emotion from the victims and their families and informed of every sickening detail of the crime. The harsh reality of Capital Punishment is a million miles away from public consciousness, and it is easy to see why retributivist support for its practice lingers.'[27]
Staff of The Nathaniel Centre
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[a] There were a number of reasons for legislation not being introduced: the Labour Government had a full legislative programme, there were relatively few murders between 1936 –40 and, as it transpired later, the Prime Minister, Peter Fraser, was actually opposed to abolition.
[b] 'Bodgie' - a youth, especially of the 1950s, analogous to the British Teddy boy; often viewed as delinquent, 'bodgies' adopted particular clothing styles and frequented 'milk bars'.
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[1] Engel, Pauline F. "The Abolition of Capital Punishment in New Zealand 1935 – 1961". Department of Justice, Wellington, 1977, p. 19.
[2] Ibid., p.23
[3] Ibid., p.21
[4] Ibid., p.22
[5] Ibid., p.27
[6] Ibid., p.39
[7] Ibid., p.56
[8] Ibid., p.56
[9] Ibid., p.56
[10] Yska, Redmer "All Shook Up. The Flash Bodgie and the Rise of the New Zealand Teenager in the Fifties". Penguin Books, Auckland, 1993, p.192.
[11] Engel, op.cit., p.58
[12] Ibid., p.59
[13] Ibid., p.60
[14] Ibid., p.60
[15] Ibid., p.60
[16] Ibid., p.61
[17] Ibid., p.61
[18] Steiner, op.cit., p.33
[19] Engel, op.cit., p. 72
[20] Ibid., p.73
[21] Ibid., p.74
[22] Ibid., p.74
[23] Ibid., p.80
[24] Ibid., p.81
[25] Ibid., p.99
[26] Steiner, op.cit., p.25
[27] Ibid., p.49