Research and advocacy of progressive and pragmatic policy ideas.
How does support for the death penalty change, if at all, across different crimes and situations? We asked this question and more in an extensive survey undertaken pre-MCO.
By Jia Vern Tham & Nelleita Omar
18 June 2020
In Part 1 of our research write-up on attitudes toward the death penalty in Malaysia, we shared some highlights of our study which found, among others, that a small majority (60% of all respondents) feel the death penalty is needed in a society. However, even amongst this group of respondents, only two-thirds can confirm that they are clear and definite in their views.
Support for the death penalty is much more conditional and nuanced than is suggested by simple broad polling. In this piece, we share the findings of our study on support for the death penalty – including the mandatory death penalty – when tested against different types of offences, different severities of the crime and the intention of the perpetrator. We also tested respondents’ views against mitigating and aggravating factors drawn from actual past cases.
Support for the death penalty is much higher for violent crimes to individuals such as murder and rape (73% of all respondents) compared to terrorism or genocide (47% of all respondents), despite the potentially higher death tolls of the latter two. This underscores the relevance of personal empathy for named victims and their families in the public’s support for the death penalty.
Generally, respondents become more pro-death penalty with increasing levels of intention and severity of the crime. The offence with the highest support for the death penalty is ‘intentional murder’. 85% of respondents chose the death penalty as the most appropriate maximum punishment for this crime with nearly half of all respondents choosing the mandatory death penalty, a significant proportion.
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However, intention is clearly important. Only 42% of respondents chose the death penalty for cases where grievous harm or death is the outcome but without the intention to cause death, with only 4% of all respondents choosing the mandatory death penalty.
When case facts are presented, respondents’ stance on the death penalty is further moderated, even in the case of premeditated murder. Drawing from an actual case (reworded to remove identifying details), we tested respondents’ sense of proportionate punishment on a scenario where a victim of prolonged domestic abuse was found guilty of killing her abuser. Only 27% of respondents chose the death penalty for her, a starkly different figure from the aforementioned 85% of respondents who chose the death penalty for intentional murder. Mitigating factors matter greatly.
The case of the effeminate youth (the T. Nhaveen case, reworded to remove identifying details) who died from prolonged violent assault by his peers drew higher condemnation. 66% of respondents chose the death penalty but even so, less than a quarter of respondents chose the mandatory death penalty despite the brutal nature of the case.
Attitudes on the death penalty and proportionate punishment is arguably most impactful for drug-related offences as this makes up the vast majority of death sentences meted out in Malaysia. 73% of prisoners currently on death row were convicted for drug trafficking.
For small-scale selling of drugs, as well as for buying for personal use, those who favoured the death penalty were in the minority. Only 35% of respondents chose the death penalty for the former and 21% of respondents chose the death penalty for the latter.
Similar to the crime of grievous harm and murder, the impact of intention and severity also applies to the punishments chosen for drug-related offences. 63% of respondents chose the death penalty for the offence of large-scale trading of drugs with 28% of all respondents calling for the mandatory death penalty.
When it comes to transporting drugs i.e. drug mules, there is greater compassion. Only 15% of respondents are in favour of the death penalty for those who unknowingly transport drugs. Support for the death penalty increases to 38% for drug mules who commit the crime knowingly, similar to levels shown for the crime of small-scale trading of drugs mentioned above.
When presented with mitigating factors drawn from actual cases, the above attitudes towards the death penalty and minor drug offences appears to be further moderated slightly. For example, only 14% of respondents chose the death penalty for a teenager found with 600g of cannabis*.
*An actual case where an 18-year-old from a low-income household was sentenced to death for drug trafficking.
Gender. Females are more likely than men to support the death penalty for small-scale selling of drugs and knowingly transporting drugs.
Age. People above 45 years old are more punitive towards drug offenders than those below 45 years old. The older the participant, the more likely they are to agree that drug offenders should face the death penalty.
Education. Degree holders are more likely to choose the death penalty for small-scale drug traffickers than those with secondary-level education.
As shown in Part 1 of our research write-up, Malaysians are relatively conservative in outlook regarding crime and punishment. A majority (60%), though not a significant one, believe that the death penalty is needed in a society. On the other end of the spectrum, only 4% of respondents believe that the death penalty should not be used at all. A large majority of respondents believe in the need for retribution (71%) as well as the deterring power (85%) of the death penalty.
Even so, Malaysians’ stance on the death penalty, particularly the mandatory death penalty, moderated greatly when presented with offences of varying severity and intent. As we shared above, the collective stance on the death penalty moderated even further when presented with mitigating factors.
As a final overall picture: of the 60% of respondents who believed that the death penalty is needed in society, only a minuscule 1% of them voted for the mandatory death penalty as punishment for all case scenarios presented in the survey. Less than 10% of them voted for the mandatory death penalty in drug-related case scenarios.
The proportionality of Malaysia’s sentencing guidelines is clearly out of sync with the public’s collective sense of justice, particularly for drug-related offences. With the advent of medicinal marijuana, the issue of proportionate punishment and justice will only become more acute as shown in the public response to the court judgements in the case of Muhammad Lukman Mohamad.
Earlier this year, a Special Committee to review alternative sentences to the mandatory death penalty headed by Tan Sri Richard Malanjum submitted its recommendations to the then Pakatan Harapan government. Former Law Minister Datuk Liew Vui Keong had also pledged to table the recommendations to the Cabinet for deliberation before bringing the matter to Parliament.
We hope that the work of the Special Committee continues under the current government and we call for clear policy direction as well as tangible progress in closing the gap between provisions in the law and the collective sense of what constitutes just punishment. In light of cases like Muhammad Lukman’s and hundreds of others currently on death row, it is clear that much legislative work needs to be resumed even as we navigate the ‘new normal’ of a Covid-19 world. The Centre also advocates for more extensive public opinion studies, not only to capture public views more thoroughly but also to better support policymakers and lawmakers with reform.
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